PORTFOLIO LEASEHOLD ACQUISITION AGREEMENT
This PORTFOLIO
LEASEHOLD ACQUISITION
AGREEMENT (the
"Agreement")
is
entered into
this 10th day of July 2008 (this "Agreement"), by and among
Implantable Vision,
Inc., a Utah
corporation (the
"Company"),
Lariat Energy
Corporation, a Nevada
corporation "Lariat",
Pilgrim Petroleum
Corporation, a
Delaware corporation
("Pilgrim"), and
American Petroleum Corporation, a Texas
corporation ("American" and, together with Pilgrim and Lariat, the
"Seller").
RECITALS
WHEREAS, the Company
desires to purchase
certain resource
property
assets of the Seller and the Seller desires to sell such assets to the Company
on the terms and conditions set forth in this Agreement;
WHEREAS, Seller owns
an undivided one hundred percent (100%) interest
(the "Subject Interest") in the oil and gas leases described on
Exhibit A hereto
(the "Leases") and in the lands described therein (the "Lands") and desires
to
sell its Subject Interest in the Leases;
WHEREAS, Seller
believes the current value of these assets is sixty
million dollars
($60,000,000),
based upon the Resource Evaluation Report
prepared according
to National Instrument 51-101 by Gustavson Associates,
Independent Qualified Reserves Evaluators, dated September 15,
2006. This report
reflected a Net Present Value of Future Net Revenues (10% discount rate) of
$52,050,000 at the
time of the report.
Based upon the
increase in the
market
value of the
underlying price of a
barrel of oil and billion cubic feet of gas
since this report, Seller believes that the value of the assets has
increased to
$60,000,000. However,
Seller can offer no
assurances as to the increase in the
value of the assets;
WHEREAS, American has the right to operate all oil and gas drilling
and
other activities
on the Leases (the "Operating Rights") under Railroad
Commission of Texas; and
WHEREAS, Seller
has agreed
hereby to sell,
assign and convey to
the
Company and the
Company has agreed
hereby to purchase
and accept the
Subject
Interest in the Leases subject to the terms and conditions of this
Agreement.
NOW, THEREFORE,
in consideration of the premises and the mutual
promises herein made, and in consideration of the representations, warranties,
and covenants herein
contained and for
other good and valuable consideration,
the receipt
and sufficiency of which are hereby acknowledged, the parties
hereto, intending to be legally bound, agree as follows:
<PAGE>
1.
Purchase and Sale.
-----------------
1.1 Assets
to Be Transferred. On the terms and subject to the
conditions set forth
in this Agreement,
the Seller hereby sells, assigns,
transfers, conveys and delivers to the Company, and the Company
hereby purchases
and assumes
from the Seller, free and clear of all liens, claims and
encumbrances, all of the Seller's right, title and interest in and
to all of the
Property described on Exhibit A to this Agreement (the "Purchased
Assets").
1.2 Purchase
Price. The Purchase Price for the Purchased
Assets shall be paid by the Company to the Seller simultaneously
with the
execution hereof. The "Purchase Price" shall be:
1.2.1 the issuance
of 29,227,273 shares of the Company's
common stock to Lariat
and a Convertible
Promissory
Note payable to
Lariat in the principal amount of seven million dollars
($7,000,000) in
the form of Exhibit B, attached hereto and incorporated
herein..
1.2.2 the issuance
of 12,525,974 shares of the Company's
common stock to American and a Convertible Promissory Note payable to
American in the principal amount of three million dollars
($3,000,000)
in the form of Exhibit C, attached hereto and incorporated
herein.
1.3 Closing
Date. The Closing Date
shall be the Effective Date of
this Agreement.
2.
Representations and Warranties of the Company.
---------------------------------------------
The Company
represents
and warrants to the Seller as of the date
hereof, that:
2.1
Organization and
Qualification. Except
as set forth in Section 2.1 of
the disclosure
schedule, the Company is a corporation
duly incorporated or
otherwise organized, validly existing and in good standing under
the laws of the
state of Utah,
with the requisite power and authority to own and use its
properties and assets and to carry on its business as currently
conducted.
The
Company is
not in violation of any of the provisions of its articles of
incorporation or
bylaws. Other than BT
Acquisitions,
Inc., its wholly-owned
subsidiary, the
Company has no
subsidiaries
and no equity,
profit sharing,
participation or other
ownership interest
(including any general
partnership
interest,
limited partnership
interest
or membership interest) in any
corporation,
partnership, limited
partnership,
limited liability company or
other entity.
<PAGE>
The Company is duly qualified or licensed to do business and is in
good
standing as a foreign
corporation in the
jurisdictions in which
the nature of
the business
conducted or property owned by it requires the Company to be
qualified or licensed to do business as a foreign corporation.
2.2 Authorization; Enforcement. The Company has the requisite
corporate
power and authority to conduct its business as it is currently
being conducted,
to execute and deliver this Agreement, to perform its obligations under this
Agreement and to consummate the transactions contemplated hereby. The
execution
and delivery
of this Agreement and the performance by the Company of the
transactions
contemplated hereby
has been duly
authorized
by all necessary
corporate action.
2.3
Capitalization.
(a) The authorized capital stock of the Company consists of
150,000,000
shares of common stock, par value $.001 per share (the
"Company Common Stock"),
of which 33,178,442
shares are issued and
outstanding
as of the date of
this
Agreement, and
100,000,000 shares of Series A Convertible Preferred Stock, par
value $.001 per share, of which 1,000,000 shares are issued and outstanding
as
of the date of this Agreement.
(b) All of the issued and outstanding shares of Company Common Stock
have been duly
authorized and validly issued and are fully paid, nonassessable
and free of preemptive
rights. The Company Common Stock to be issued to the
Seller pursuant to
this Agreement will,
when issued as
specified herein,
be
validly issued and outstanding, fully paid and non-assessable, and
not issued in
violation of the preemptive rights of any other person.
(c) To the Company's knowledge, there are no voting trusts,
stockholder
agreements or other
voting arrangements
that have been entered
into among the
stockholders of the Company, or charges, liens or encumbrances on issued
shares
of the Company Common Stock.
2.4 Financial
Statements. As a
company whose common stock trades on a
the Over-The-Counter
Bulletin Board, the Company is required to file
certain
financial reports with the Securities and Exchange Commission (the "SEC").
The
Seller and its
directors have had a
chance to review said
reports as they are
public documents
(said publicly-available reports and schedules thereto are
referred to herein as the "Company Financial Statements"). Except as otherwise
set forth in Section 2.4 of the Disclosure Schedule, each of the Company
Financial Statements
filed since January 1, 2006 is complete and correct in all
material respects,
has been prepared in accordance with GAAP consistently
applied throughout
the periods
presented,
and presents
fairly the
financial
position, results of
operations,
cash flows and
stockholders'
equity of the
Company as at the dates and for the periods indicated (subject, in the case of
unaudited statements,
to normal, recurring
audit adjustments which will not be
material in amount or
significance)
and does not include
or omit to state any
fact which renders the Company Financial Statements misleading. There has been
no change in Company
accounting policies
since January 1, 2006, except as
described in the notes to the Company Financial Statements.
<PAGE>
2.5 Absence
of Certain Changes. Except as otherwise set forth in
Section 2.5 of the Disclosure Schedule or in its periodic reports
filed with the
SEC pursuant to the Securities Exchange Act of 1934, as amended,
since July 31,
2007, the Company has not:
(a) suffered any material adverse change in its business,
operations,
assets, or
financial condition, except as reflected on the Company
Financial Statements;
(b) suffered
any material
damage or destruction to or loss of the
assets of the Company, whether or not covered by insurance,
which property
or
assets are material to the operations or business of the Company
taken
as a
whole;
(c) settled, forgiven,
compromised,
canceled, released, waived or
permitted to lapse any material rights or claims other than in the
ordinary
course of business;
(d) entered into or terminated any material agreement, commitment or
transaction, or
agreed to or made any changes in material leases or
agreements,
other than
renewals or extensions thereof and leases,
agreements,
transactions and commitments entered into or terminated in the
ordinary course of business;
(e)
written up, written down or written off the book value of any
material amount of
assets, other than in
the ordinary course of business;
or
(f) declared,
paid
or set aside for payment any dividend or
distribution with respect to the capital stock of the Company.
2.6 Tax Returns;
Taxes. Since January
1, 2006, the Company:
(a) has
duly filed all U.S.
federal and material state, county, local and foreign tax
returns and reports
required to be filed by it, including those with respect to
income, payroll,
property,
withholding,
social
security, unemployment,
franchise, excise and
sales taxes and all such returns and reports are
correct
in all material respects; (b) has either paid in full all taxes
that have become
due as reflected on any return or report and any interest and penalties with
respect thereto or has
fully accrued on its books or has established adequate
reserves for all taxes
payable but not yet due; and (c) has made required cash
deposits with
appropriate
governmental
authorities
representing
estimated
payments of
taxes, including income taxes and employee withholding tax
obligations. No extension or waiver of any statute of limitations
or time within
which to file any return has been granted to or requested by the Company with
respect to any tax.
2.7 Litigation and Government Claims. There is no pending suit,
claim,
action or litigation,
or administrative,
arbitration
or other proceeding or
governmental
investigation or
inquiry against the Company to which its
businesses or assets are subject, and to the knowledge of the
Company, there are
no such proceedings
threatened or
contemplated. The
Company is not subject to
any judgment,
decree, injunction, rule or order of any court, or, to the
knowledge of the Company, any governmental restriction applicable
to the Company
<PAGE>
2.8 No Conflicts.
The execution, delivery and performance of this
Agreement by the Company and the consummation by the Company of the
transactions
contemplated hereby
does not and will not:
(i) conflict with or violate any
provision of the Company's articles of incorporation or bylaws, or
(ii) conflict
with, or constitute a
default (or an event that with notice or lapse of time or
both would become a default) under, or give to others any rights of
termination,
amendment,
acceleration or cancellation (with or without notice, lapse of time
or both) of any agreement, credit facility, debt or other
instrument (evidencing
a Company debt or
otherwise) or other
understanding to which
the Company is a
party or by which any property or asset of the Company is bound or
affected, or
(iii) result in a
violation of any law,
rule, regulation, order, judgment,
injunction, decree or
other restriction of any court or governmental authority
as currently in effect
to which the Company is subject (including federal and
state securities laws and regulations), or by which any property or
asset of the
Company is bound or affected.
2.9 Filings,
Consents and
Approvals.
The Company is not
required to
obtain any consent,
waiver, authorization
or order of, give any
notice to, or
make any filing or registration with, any court or other federal,
state, local
or other governmental authority or other person in connection with the
execution, delivery
and performance by the Company of this Agreement other than
such filings as may be required by the Securities and Exchange
Commission.
2.10
Independent Investigation.
(a) The Company is an informed and sophisticated participant in the
transactions
contemplated
hereby. The
Company has undertaken an
investigation, been
provided with, evaluated and relied upon certain
documents and
information
to assist it in making an informed and
intelligent decision
with respect to the execution of this Agreement. The
Company acknowledges that the Seller makes no representation or
warranty as
to
the value of or revenues obtainable from ownership of the Purchased
Assets.
(b) The Company
acknowledges
that it and
its representatives and
agents have been permitted full and complete access to the
Purchased Assets
and
any and all information the Company and its representatives and agents
have
desired or requested
to see and/or review,
and that the Company
and
its
representatives and
agents have had a full opportunity to meet with or
discuss via telephone with the Seller to discuss the Purchased
Assets. The
Company
acknowledges that
it has conducted to its satisfaction an
independent
investigation and
verification
of the financial
condition,
results of
operations,
assets, liabilities, properties and projected
operations that will
occur by the Company
upon the consummation of the
Purchased Assets
and, in making its determination to proceed with the
transactions
contemplated by this Agreement, the Company has relied on the
results of its own
independent
investigation
and verification and the
representations and
warranties of the Company expressly and specifically
set
forth in this Agreement.
<PAGE>
2.11 Brokers. The Company has not incurred, nor will the Company incur
directly or indirectly, any liability for brokerage or
finders' fees or agents'
commissions or any
similar charges in
connection
with this Agreement or any
transaction contemplated hereby.
3.
Representations and Warranties of the Seller.
--------------------------------------------
The Seller
represents
and warrants to the Company as of the date
hereof, that:
3.1
Organization
and Good Standing. Each Seller is a corporation duly
organized, validly
existing and in good standing under the laws of the State of
its incorporation.
Each Seller has no subsidiaries and does not own any equity,
profit sharing, participation or other ownership interest
(including any general
partnership interest,
limited partnership
interest or membership
interest) in
any corporation,
partnership, limited partnership, limited liability company or
other entity. Each Seller is duly qualified or licensed to do
business and is in
good standing as a foreign corporation in each jurisdiction
in which the nature
of the business conducted or property owned by it requires it to be
qualified or
licensed to do business as a foreign corporation.
3.2
Power and Authority.
Seller has the
corporate power and
authority to
own, lease and
operate its
properties
and assets,
including the Purchased
Assets, and to carry
on its business as currently being conducted. Seller has
the corporate power
and authority to execute and deliver this Agreement and to
perform its
obligations under this
Agreement.
The execution, delivery and
performance by
Seller of this
Agreement have been duly authorized by all
necessary corporate action.
3.3
Authorization. This Agreement has been duly executed by
Seller, and when
delivered by Seller in accordance with the terms hereof,
will
constitute the valid
and legally
binding obligation of Seller, enforceable
against it in
accordance
with its terms, except (i) as limited by general
equitable principles
and applicable
bankruptcy,
insolvency,
reorganization,
moratorium and other
laws of general application affecting enforcement of
creditors' rights
generally,
(ii)
as limited by laws relating to the
availability of
specific performance, injunctive relief or other equitable
remedies and (iii) insofar as indemnification and contribution
provisions may be
limited by applicable law.
3.4
Authorization;
Enforcement.
The execution and delivery of this
Agreement and the
consummation by it of the transactions contemplated hereby
require no further consent or action by the Seller.
<PAGE>
3.5 No
Conflicts.
The execution, delivery and performance of this
Agreement by the Seller and the consummation by the Seller of the
transactions
contemplated hereby
does not and will not: (i) conflict with, or constitute a
default (or an event
that with notice or
lapse of time or both would become a
default) under,
or give to others any rights of termination, amendment,
acceleration or cancellation (with or without notice, lapse of time or both) of
any agreement, credit
facility, debt or
other instrument
(evidencing a Seller
debt or otherwise) or other understanding to which the Seller is a party or
by
which any property or asset of the Seller is bound or affected, or
(ii) will not
result in a violation of any law, rule, regulation, order,
judgment, injunction,
decree or other restriction of any court or governmental
authority as
currently
in effect to which the Seller is subject (including federal and
state securities
laws and regulations),
or by which any property or asset of the Seller is bound
or affected.
3.6 Filings,
Consents and Approvals. The Seller is not required to
obtain any consent,
waiver, authorization
or order of, give any
notice to, or
make any filing or registration with, any court or other federal,
state, local
or other governmental authority or other person in connection with the
execution, delivery and performance by the Seller of this
Agreement.
3.7 Brokers.
The Seller has not
incurred, nor will the Seller incur
directly or indirectly, any liability for brokerage or
finders' fees or agents'
commissions or any
similar charges in
connection
with this Agreement or any
transaction contemplated hereby.
3.8 Purchased
Assets.
(a)
Exhibit A is an accurate and complete list of the Purchased
Assets. Seller owns
and possesses all right, title and interest in and to
the
Purchased Assets (free and clear of any
lien, claim, encumbrance,
security interest, license, or other restriction). No written claim by any
third party contesting
the validity,
enforceability, use or
ownership of
any
of the Purchased
Assets has been made against Seller or, to the
knowledge of Seller, is threatened. To the knowledge of Seller, Seller
has
not
infringed upon,
misappropriated, or
otherwise come into conflict with
any
property rights of
third parties. Seller
has not received any charge,
complaint,
claim, demand
or notice alleging any such interference,
infringement,
misappropriation or
violation relating to the Purchased
Assets. To the knowledge of the Seller, no third party has
interfered with,
infringed upon,
misappropriated
or otherwise come into
conflict with any
property rights of the Purchased Assets.
(b) With respect to each item of Intellectual Property included in
the
Purchased Assets:
(i) each item is free from any outstanding injunction, judgment,
order, decree, ruling or charge;
<PAGE>
(ii) no action, suit, proceeding, hearing, investigation,
charge,
complaint, claim or
demand is pending
or, to the
knowledge of the
Seller is threatened which challenges the legality, validity,
enforceability, use or ownership of the item; and
(iii) there is no
currently enforceable
agreement by Seller
to
indemnify any customer for or against any interference, infringement
or misappropriation of any third party's intellectual property.
3.9 Investor
Representations.
(a) Each Seller is acquiring the securities of Company Common
Stock and Notes (collectively the "Securities" to be issued as
payment
of the Purchase Price) as principal for its own account and not
with a
view to or for
distributing or
reselling such Securities or any part
thereof in violation of the Securities Act of 1933, as amended (the
"Securities Act"),
or any applicable
state securities law, has no
present intention of
distributing any of such Securities in violation
of the Securities Act or any applicable state securities law and has
no direct or indirect
arrangement or
understandings
with any other
persons to distribute or regarding the distribution of such
Securities
(this representation
and warranty not limiting such Seller's right to
sell the Securities
immediately in compliance with applicable federal
and state securities
laws) in violation of
the Securities Act or any
applicable state securities law.
(b) Each Seller is an
"accredited investor"
as defined in Rule
501(a)(1),
(a)(2), (a)(3),
(a)(7)
or (a)(8) of Regulation D
promulgated under the Securities Act.
3.10
SEC Filings.
At the Closing,
the Company will be
current in
all SEC filings
required by it to be filed
4.
Covenants and Agreements.
------------------------
4.1 Expenses. Except
as otherwise
specifically provided
herein, the
Company on the one hand and Seller on the other hand shall bear
their respective
fees, costs and expenses incurred in connection with the
preparation,
execution
and performance of this Agreement and all related documents
contemplated
hereby
and the transactions
contemplated
hereby and thereby,
including all fees
and
expenses of their representatives and Agents.
4.2 Public
Announcements. No
party to this Agreement shall make, or
cause to be made, any
press release or public announcement in respect of this
Agreement or the transactions contemplated hereby or otherwise communicate by
means of any news media in respect of this Agreement without prior written
approval of the other party, which approval shall not be
unreasonably
withheld
or delayed.
<PAGE>
4.3 Further Action.
Each party,
at the request of the
other party,
shall execute such documents and take such further actions as may be reasonably
required to carry out the provisions hereof and give effect to the
transactions
contemplated hereby. From time to time after the Closing Date, the
Company shall
prepare all
documents and the Company and Seller shall take all actions
reasonably necessary
to further the sale and assignment of the Purchased Assets
to the Company hereunder.
4.4
[Intentionally Omitted.]
4.5 Investigation.
The representations, warranties, covenants and
agreements set forth
in this Agreement
shall not be affected
or diminished in
any way by any
investigation (or
failure to
investigate) at any time by or on
behalf of the party for whose benefit such representations, warranties,
covenants and agreements were made. All statements
contained herein or in any
schedule, certificate,
exhibit, list or other document required to be delivered
pursuant hereto,
shall be deemed to be representations and warranties for
purposes of
this Agreement; provided, that any knowledge or materiality
qualifications contained herein shall be applicable to such other
documents.
4.6 Full Access and Information; Confidentiality. Seller has given to
the Company and its representatives full access to Seller's
properties,
books,
records, contracts and
commitments (collectively the "Records") relating to the
Purchased Assets, as the Company has reasonably requested, and the Company has
furnished to Seller and its representatives all such information and
documents
relating to the Company as Seller reasonably requested. Each of the
Parties will
treat, and will cause
its representatives
to treat, all
information that they
received in connection with the transaction contemplated herein, if not in the
public domain, as confidential.
4.7 Indemnification by the Seller. From and after the Closing Date,
the
Seller shall
indemnify, defend and
hold harmless the
Company from and against
any Losses incurred or suffered as a result of or arising from:
(a) any breach of the representations or warranties of the
Seller
set forth in Article 3; or
(b) the breach of any covenant, agreement or other obligation
of
the Seller set forth in this Agreement.
(c) the Company will provide indemnification to the new
Directors and
Officers for any actions that arise from actions that
happened prior
to the new Directors and Officers taking their
positions.
<PAGE>
4.8 Indemnification
by the Company.
From and after the
Closing Date,
the Company
shall indemnify, defend and hold harmless the Seller from and
against any Losses incurred or suffered as a result of or arising
from:
(a) any breach in any
representation or
warranty of the Company
set forth in Article 2; or
(b) the breach of any covenant, agreement or other obligation
of
the Company set forth in this Agreement.
4.9 Indemnity
Procedure.
A party or parties
hereto agreeing to be
responsible for or to indemnify against any matter pursuant to this
Agreement is
referred to herein as
the "Indemnifying
Party" and the other
party or parties
claiming indemnity is referred to as the "Indemnified Party".
(i) An Indemnified
Party under this
Agreement shall, with
respect to claims asserted against such party by any third party,
give
written notice to the
Indemnifying Party of
any liability which might
give rise to a claim for indemnity under this Agreement within thirty
(30) calendar
days of the receipt of
any written claim from
any such
third party, but not
later than twenty (20) days prior to the date any
answer or responsive pleading is due, and with respect to other
matters
for which the Indemnified Party may seek indemnification, give prompt
written notice to the
Indemnifying Party of
any liability which might
give rise to a claim for indemnity; provided, however, that any
failure
to give such notice will not waive any rights of the Indemnified
Party
except to the extent the rights of the Indemnifying Party are
materially prejudiced.
(ii) The Indemnifying
Party shall have the right, at its
election, to take over
the defense
or settlement of such claim by
giving written notice
to the Indemnified
Party at least fifteen
(15)
days prior to the time when an answer or other responsive pleading or
notice with respect
thereto is required.
If the Indemnifying Party
makes such election,
it may conduct the
defense of such claim through
counsel of its choosing (subject to the Indemnified Party's
approval of
such counsel, which approval shall not be unreasonably withheld),
shall
be solely responsible
for the expenses of such defense and shall be
bound by the results of its defense or settlement of the claim. The
Indemnifying Party shall not settle any such claim without prior
notice
to and consultation with the Indemnified Party, and no such settlement
involving any equitable relief or which might have an adverse
effect on
the Indemnified
Party may be agreed to
without the written consent of
the Indemnified
Party
(which consent shall not be unreasonably
withheld). So long as
the Indemnifying Party is diligently contesting
any such claim in good faith, the Indemnified Party may pay or settle
such claim only at its own expense and the Indemnifying
Party will not
be responsible
for the fees of separate legal counsel to the
Indemnified Party, unless the named parties to any
<PAGE>
proceeding include
both parties and
representation of both parties by
the same counsel would be inappropriate. If the Indemnifying Party
does
not make such
election, or having
made such election does not, in the
reasonable opinion of
the Indemnified
Party proceed diligently to
defend such claim, then the Indemnified Party may (after written
notice
to the Indemnifying
Party), at the expense of the Indemnifying Party,
elect to take over the
defense of and proceed
to handle such claim in
its discretion and the Indemnifying Party shall be bound by any
defense
or settlement that the
Indemnified
Party may make in good
faith with
respect to such claim. In connection therewith, the Indemnifying Party
will fully cooperate
with the Indemnified
Party should the Indemnified
Party elect to take over the defense of any such claim.
(iii) The parties
agree to cooperate in defending such third
party claims and the Indemnified Party shall provide such
cooperation
and such access to its books, records and properties as the
Indemnifying Party
shall reasonably request with respect to any matter
for which
indemnification is sought hereunder; and the parties hereto
agree to cooperate
with each other in order to ensure the
proper and
adequate defense thereof.
(iv) With regard to claims of third parties for which
indemnification is payable hereunder, such indemnification shall be
paid by the
Indemnifying Party
upon the earlier to
occur of: (i) the
entry of a judgment against the Indemnified Party and the
expiration of
any applicable appeal period, or if earlier, five (5) days prior to
the
date that the judgment
creditor has the right to execute the judgment;
(ii) the entry of an unappeasable judgment or final appellate
decision
against the
Indemnified Party;
or (iii) a
settlement
of the claim.
Notwithstanding the foregoing, provided that there is no dispute
as to
the applicability
of indemnification, the reasonable expenses of
counsel to the Indemnified Party shall be reimbursed on a current
basis
by the Indemnifying
Party if such
expenses are a liability of the
Indemnifying
Party. With
regard
to other claims for which
indemnification is payable hereunder, such indemnification shall be
paid promptly by the Indemnifying Party upon demand by the
Indemnified
Party.
5.
Miscellaneous.
-------------
5.1 Entire
Agreement.
This Agreement, together with the exhibits
attached hereto,
contain every obligation and understanding between the parties
relating to the
subject matter hereof and merges all prior discussions,
negotiations,
agreements and
understandings,
both written and oral,
if any,
between them,
and none of the parties shall be bound by any conditions,
definitions,
understandings,
warranties or
representations
other than as
expressly provided or referred to herein.
5.2 Notices.
Any notice or other communication or deliveries under this
Agreement shall be in
writing and delivered
personally
or sent by
certified
mail, return receipt
requested, postage
prepaid, or sent by
prepaid overnight
courier to the
parties. Any notices sent to the parties shall be at the
addresses below:
<PAGE>
If to the Seller at:
Pilgrim Petroleum Corporation/American Petroleum Corporation
4400 Westgrove Dr, Addison Texas 75001
P214-687-0015
F214-687-0019
Lariat Energy Corporation
2500 Westgrove Dr.
Suite 100
Addison, TX 75001
P: (972) 953-8239
F: (972) 930-7202
If to the Company at:
Implantable Vision, Inc.
25730 Lorain Rd.
North Olmsted, OH 44070
P: (212) 243-0721
F: (646) 452-8690
5.3 Waivers and Amendments. This Agreement may be amended,
superseded,
canceled, renewed or
extended, and the
terms hereof may be
waived, only by a
written instrument
signed by the
Company and the Seller or, in the case of
a
waiver, by the party
waiving compliance.
No delay on the part
of any party in
exercising any right,
power or privilege
hereunder shall operate as a waiver
thereof, nor shall any
waiver on the part of any party of any such right, power
or privilege,
nor any single or
partial exercise of
any such right, power
or
privilege, preclude
any further exercise
thereof or the
exercise of any other
such right, power or privilege.
5.4 Governing
Law/Venue. All
questions concerning
the construction,
validity, enforcement
and interpretation of this Agreement shall be governed by
and construed and enforced in accordance with the internal laws of the
State of
Utah (except the choice of law rules thereof). Each party hereto
agrees that all
legal proceedings concerning the interpretations, enforcement and
defense of the
transactions
contemplated by this
Agreement (whether
brought against a
party
hereto or its respective affiliates, directors, officers, shareholders,
employees or agents)
shall be commenced
exclusively
in the state and
federal
courts in Dallas,
Texas. Each party hereby irrevocably submits to the exclusive
jurisdiction of the
state and federal courts in Dallas, Texas, for the
adjudication of any
dispute hereunder
or in connection herewith or with any
transaction
contemplated hereby or
discussed herein,
and hereby
irrevocably
waives, and agrees not
to assert in any suit,
action or proceeding,
any claim
that it is not personally subject to the
<PAGE>
jurisdiction of any such court, that such suit, action or
proceeding is improper
or inconvenient venue for such proceeding. Each party hereby irrevocably
waives
personal service of
process and consents
to process being
served in any such
suit, action or proceeding by mailing a copy thereof via registered
or certified
mail or overnight
delivery (with evidence of delivery) to such party at the
address in effect for
notices to it under this Agreement and agrees that such
service shall
constitute
good and sufficient service of process and notice
thereof. Nothing
contained herein shall be deemed to limit in any way any right
to serve process in
any manner permitted
by law. The parties
hereby waive all
rights to a trial by jury.
5.5 Construction. The
headings herein are for convenience only, do not
constitute a part of this Agreement and shall not be deemed to limit
or affect
any of the provisions hereof.
5.6 Successors and
Assigns. This
Agreement shall be
binding upon and
inure to the benefit
of the parties and
their respective
successors,
heirs,
personal representatives, legal representatives, and permitted
assigns.
5.7 No Third-Party
Beneficiaries.
This Agreement is
intended for the
benefit of the parties
hereto and their
respective successors
and permitted
assigns and is not for the benefit of, nor may any provision
hereof be enforced
by, any other person or entity.
5.8 Enforcement. Each
party hereto hereby acknowledges that the breach
of this Agreement
by any party
hereto will cause irreparable damage, and
therefore, the Company
and Seller may enforce their rights under this Agreement
by equitable relief, including injunction and specific performance,
in addition
to other remedies that they may have at law or in equity.
5.9 Severability.
If any provision of this Agreement is held to be
invalid or unenforceabl
