5
ASSIGNMENT AGREEMENT AND COVENANT NOT TO XXX
THIS ASSIGNMENT AGREEMENT AND COVENANT NOT TO XXX ("Agreement") is
entered into this 16th day of March, 2001, by and between CYNTECH TECHNOLOGY,
INC., a Utah corporation (hereinafter referred to as "Cyntech"), and TEX-OIL
LIMITED PARTNERSHIP, a limited partnership registered under the laws of the
state of Nevada (hereinafter referred to as "Tex-Oil"), upon the following:
Premises:
During March and April 1999, through Xxxxxxxxxxx Xxxxxxx, Cyntech
engaged a number of companies to provide financial, strategic planning, investor
relations and related services (the "Consultants"). Each of the companies was
either owned by Bromley or introduced to Cyntech by him. Xx. Xxxxxxx may have
controlled or had previous business relationships with the companies that he
introduced to Cyntech. Under each of these consulting relationships, Cyntech was
obligated to pay a specified fee for defined services. As an accommodation to
Cyntech and at Cyntech's request, Tex-Oil guaranteed the obligation to pay the
fees to the Consultants under these agreements. Each of these guarantees was
secured by a block of Cyntech's common stock owned by Tex-Oil. Those shares
pledged as collateral were delivered to a custodian acting on behalf of the
Consultants, which had the contractual right to sell the shares upon Cyntech's
failure to pay timely the consulting fee. Although the agreements only required
the delivery of a total of 4,800,000 shares as collateral, Tex-Oil actually
delivered 5,000,000 shares. Cyntech understood that it would be obligated to
reimburse Tex-Oil for any stock or cash loss that it suffered as a result of its
guarantee of Cyntech's obligation.
The following table sets forth details respecting these consulting
arrangements:
Agreement Consulting Shares Pledged
Name of Consultant Services to be Provided Date Fee as Collateral
------------------ ----------------------- ---- --- -------------
Kit Bromley & Co., Inc. Business development services and 04/03/99 $ 600,000(1) 2,500,000
activities, including creation of an
advanced business plan and necessary
studies
California Business Corporate investigations, background 04/17/99 200,000 800,000
Intelligence checks, due diligence investigations and
security analysis
The Challenge, Ltd., Inc. Marketing, distribution, strategic 03/09/99 350,000 1,500,000
------------ ---------
development, and agency and
representation services within Latin
America
Total $1,150,000 4,800,000(2)
========== =========
---------------------
(1) The promissory note evidencing Cyntech's obligation for this consulting fee
has an incorrect principal amount of $625,000.
(2) Although the agreements provide for a total pledge of 4,800,000 shares,
Tex-Oil actually delivered a total of 5,000,000 shares as collateral.
In all instances, Cyntech and Tex-Oil believe the Consultants did not
provide the agreed services, or may have advanced certain third-party costs, but
Cyntech was unable to pay the fee due. In other instances, Cyntech believes that
the consulting services were not provided, but the Consultants asserted that the
services had been provided and that the fee was due and payable. In any event,
the custodian delivered to the Consultants all 5,000,000 shares that had been
pledged as collateral by Tex-Oil. Tex-Oil
contested the validity of the delivery of the collateral shares to the
Consultants. In June 2000, Cyntech reviewed the above agreements and determined
to terminate all of such relationships on the basis that each of the Consultants
had materially breached its agreement. Cyntech advised each of the Consultants
named above that (a) such Consultant had not provided the services as required
under its consulting agreement; (b) Cyntech believed it owed no fees whatsoever
to the Consultant; (c) the Consultants were to return to Tex-Oil, the pledgor,
all of the shares of common stock pledged as collateral and retained by the
Consultant's custodian; (d) stop transfer instructions were being lodged against
the certificates representing all shares pledged as collateral; and (e) if all
pledged shares could not be returned, a full accounting of the shares sold and
the application of the proceeds must be provided, both to Tex-Oil and to
Cyntech. In addition, Cyntech joined with Tex-Oil in placing stop transfer
instructions with Cyntech's registrar and transfer agent against registration of
transfer of certificates representing the shares pledged as collateral.
Each of the pledge agreements in the above relationships provided that
the Consultant was required to pay to Tex-Oil, the guarantor, all proceeds from
the sale of the shares pledged as collateral in excess of the amount due and
owing under the related consulting agreement. Notwithstanding Cyntech's
requests, the Consultants have failed and refused to account for the proceeds
from any of their sales of securities pledged by Tex-Oil or to specify the
number of shares sold. Of the total 5,000,000 shares delivered as collateral,
4,400,000 shares were tendered for registration of transfer. In the face of the
stop transfer instructions that had been placed against such stock, in January
2001, Cyntech's stock transfer agent deposited 1,500,000 of such shares with the
Third Judicial District Court, Salt Lake County, Utah, in an interpleader action
for determination of rights to the stock by the respective parties. Of the
remaining shares, 600,000 shares were transferred to third parties prior to the
stop transfer notice and apparently sold. A portion of such proceeds may have
been used to pay third-party costs on Cyntech's behalf.
Cyntech believes it has suffered substantial but unliquidated damages
as a result of the Consultants' breach of their consulting arrangements. Under
Cyntech's obligation to reimburse Tex-Oil for any stock or cash loss that it
suffered as a result of its guarantee of Cyntech's obligation, Cyntech believes
that it may have been obligated to replace the 600,000 shares that the
Consultants have not accounted for, to reimburse the value of any consulting
services actually provided, and to reimburse reasonable, authorized costs
actually paid to third parties on Cyntech's behalf, estimated not to exceed
$50,000.00.
Cyntech desires to concentrate its limited resources on its core
business, and so desires to enter into this agreement with Tex-Oil under which
Cyntech assigns to Tex-Oil all of its rights to any and all damages for the
Consultants' breach of the consulting agreements and agrees to reimburse Tex-Oil
for actual losses, net of any recoveries of damages from the Consultants, not to
exceed $300,000, payable at Cyntech's election in either cash or 600,000 shares
of Cyntech's common stock valued at the greater of $0.50 per share or the market
price of Cyntech's stock at the time of payment. In turn, Tex-Oil desires to
release Cyntech from any further liability under Cyntech's obligation to
reimburse Tex-Oil for any stock or cash loss that it suffered as a result of its
guarantee of Cyntech's obligation.
Agreement:
NOW, THEREFORE, upon these premises, which are incorporated herein by
reference, and for and in consideration of the mutual promises and covenants
hereinafter set forth and other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, it is hereby agreed as follows:
2
1. Reimbursement to Tex-Oil. Cyntech agrees that it will reimburse
Tex-Oil for its actual losses related to the pledge of shares to the Consultants
on Cyntech's behalf, net of any recovery from Bromley and the Consultants, not
to exceed $300,000. This reimbursement shall not be made until any action taken
by Tex-Oil is fully and finally resolved or the any such action by Tex-Oil
against Bromley and the Consultants has not been initiated and such action is
barred by the applicable statute of limitations for Cyntech and Tex-Oil's claims
against Bromley and the Consultants. The reimbursement shall be payable at
Cyntech's election in either cash or up to 600,000 shares of Cyntech's common
stock valued at the greater of $0.50 per share or the market price of Cyntech's
stock at the time of payment.
2. Assignment of Claims. Cyntech does hereby assign, transfer, convey,
and set over unto Tex-Oil any and all claims, demands, debts, contracts,
actions, or causes of action of any kind or nature whatsoever against the
Bromley and the Consultants, whether known or unknown, suspected or unsuspected,
and in whatever legal theory or form, at law or in equity, that Cyntech may now
have or may hereafter accrue, arising from, out of, or in any way connected with
the Consultants and the consulting agreements, together with all related
negotiations, courses of dealing, representations, expectations, agreements,
arrangements, or transactions related thereto or any act, failure to act,
statement, or omission in connection therewith, with full power and authority in
the name, place, and stead of Cyntech or otherwise, to xxx for and collect the
same.
3. Assertion of Claims against Bromley and the Consultants. Tex-Oil
hereby agrees to assert the assigned claim, in conjunction with Tex-Oil's own
claims arising out of the same or similar facts and circumstances, and to obtain
such recovery, award, remedy, or relief in cash, in kind, or otherwise, as
Tex-Oil may, in its sole discretion, deem appropriate. In asserting such claims
against Bromley and the Consultants, Tex-Oil may, but shall not be required to,
take any specific action or initiate any specific litigation, but shall assert
and pursue such claims using its commercially reasonable best efforts.
4. Matter of Common Interest. The parties agree that this Agreement,
the underlying subject matter, and the resulting assertion of claims against
Bromley and the Consultants are matters of common interest, and the parties
intend that the lawyer-client privilege apply to the fullest extent permissible
under Rule 504 of the Utah Rules of Evidence or the appropriate source of
privilege in any other relevant jurisdiction. The parties hereby covenant and
agree to assert the privilege whenever available, so as to protect the privilege
to the fullest extent permissible.
5. Information to Cyntech. From time to time as material events occur
in asserting claims against Bromley and the Consultants, Tex-Oil shall advise
Cyntech of the substance and nature thereof, either by periodic, written,
summary reports or by providing a copy of relevant correspondence, notices,
pleadings, or other matters. Tex-Oil shall notify Cyntech of the commencement of
any lawsuit or proceeding asserting such claim, enclosing a copy of the
complaint or other pleading initiating such matter. Notwithstanding the
foregoing, Tex-Oil shall not be liable for any failure of advice or notice to
Cyntech under this paragraph unless Cyntech can show that it was not otherwise
aware of the substance or matter to which such notice would have related and was
materially prejudiced by Tex-Oil's failure to give such notice or advice.
6. Right to Participate. In the event that Tex-Oil brings any action,
suit, or proceeding against Bromley, the Consultants, or any other party to
assert the assigned claim, Cyntech shall be entitled to participate in and, to
the extent that it shall wish, join with Tex-Oil to assume the maintenance of
such action with counsel selected by Cyntech. In such circumstance, Tex-Oil
shall not be liable to Cyntech for any legal or other expenses incurred by it.
Cyntech shall have the right to employ its counsel in any such action or
proceeding, but the fees and expenses of such counsel shall be at the expense of
Cyntech, unless Tex-Oil has authorized the employment of counsel by Cyntech in
writing.
3
7. Cyntech's Participation and Support. Cyntech shall cooperate fully,
as and to the extent reasonably requested by Tex-Oil, in connection with the
assertion or maintenance of any of the assigned claims against Bromley, the
Consultants, or any other party, including any litigation or other proceeding.
Such cooperation shall include the provision of appropriate further instruments
of assignment, powers of attorney, or similar authorizations, the retention and
provision of records and information that are reasonably relevant to any of the
assigned claims, and making employees available on a mutually convenient basis
to provide additional information, examination, and testimony. Cyntech shall
retain all books and records respecting the assigned claims and shall give
Tex-Oil reasonable, written notice prior to transferring, destroying, or
discarding any such books and records prior to the expiration of the applicable
statute of limitations for the initiation of litigation to assert the assigned
claims or the settlement or conclusion of any related litigation, whichever
shall occur last. Cyntech shall pay its own expenses incurred in compliance with
this paragraph.
8. Cyntech Covenant Not To Xxx. Cyntech hereby covenants and agrees on
behalf of itself and its successors and assigns that it will not at any time,
directly or indirectly, initiate, maintain, or prosecute, or in any way
knowingly aid in the initiation, maintenance, or prosecution, of any claim,
demand, or cause of action, at law, in equity, or otherwise, against Tex-Oil,
including all of its future, present, and former employees, agents,
representatives, consultants, attorneys, fiduciaries, servants, officers,
directors, managers, partners, predecessors, successors and assigns, subsidiary
corporations and companies, parent corporations and companies, and all related
corporate and company divisions for any claim, damage, loss, or injury of any
kind arising at any time prior to and including the date of this Agreement. In
furtherance of this covenant, Cyntech agrees that, except as may be required by
an order of any court or governmental agency having jurisdiction, it will not
make available to any third party any evidence, documents, or other information
or materials in its possession or under its care, custody, or control, or in the
possession, custody, or under the control of its counsel, that in any way relate
to Cyntech's relationship, course of dealing, or agreements with Tex-Oil. In any
event, Cyntech shall notify Tex-Oil within two days after receipt of any request
from any third party for any such evidence, documents, or other information or
materials so that Tex-Oil may protect its interests hereunder.
9. Tex-Oil Covenant Not To Xxx. Tex-Oil covenants and agrees on behalf
of itself and its successors and assigns that it will not at any time, directly
or indirectly, initiate, maintain, or prosecute, or in any way knowingly aid in
the initiation, maintenance, or prosecution, of any claim, demand, or cause of
action, at law, in equity, or otherwise, against Cyntech, including its future,
present, and former agents, representatives, consultants, attorneys,
fiduciaries, servants, partners, predecessors, successors, and assigns for any
claim, damage, loss, or injury of any kind arising at any time prior to and
including the date of this Agreement. In furtherance of this covenant, Tex-Oil
agrees that, except as may be required by an order of any court or governmental
agency having jurisdiction, it will not make available to any third party any
evidence, documents, or other information or materials in its possession or
under its care, custody, or control, or in the possession, custody, or under the
control of its counsel, that in any way relate to Tex-Oil's relationship, course
of dealing, or agreements with Cyntech. In any event, Tex-Oil shall notify
Cyntech within two days after receipt of any request from any third party for
any such evidence, documents, or other information or materials so that Cyntech
may protect its interests hereunder.
10. Additional Documentation. At the request of Tex-Oil, Cyntech shall
execute and deliver to Tex-Oil a short-form assignment of its claims as
contemplated by paragraph 1 above or such other documents or instruments as
Tex-Oil may reasonably request to confirm and evidence the conveyance to Tex-Oil
of the claims of Cyntech against Bromley and the Consultants and the authority
of Tex-Oil to assert such claims against Bromley and the Consultants in the
name, place, and stead of Cyntech.
4
11. Notices. All notices, demands, requests, or other communications
required or authorized hereunder shall be in writing and shall be deemed to have
been given on the date of service if personally served or by facsimile
transmission (if receipt is confirmed by the facsimile operator of the
recipient), or on the following day if delivered by overnight courier service,
or on the fifth day after mailing if mailed by certified mail, return receipt
requested, addressed as follows:
If to Tex-Oil, to: 0000 Xxxxxxxxxx Xxxxx, XX
Xxxxxxx, Xxxxxxx 00000-0000 XXX
If to Cyntech, to: 0000 Xxxxxxxxxx Xxxxx, XX
Xxxxxxx, XX 00000-0000 XXX
Telecopy No.: (000) 000-0000
or such other addresses and facsimile numbers as shall be furnished by any party
in the manner for giving notices hereunder.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers on the date first above written.
TEX-OIL LIMITED PARTNERSHIP, lp
By /s/ Xxxx Xxxxx
-------------------------------
Its duly authorized officer
CYNTECH TECHNOLOGIES, INC.
By /s/ R. Xxxxx Xxxxx
-------------------------------
Its duly authorized officer
5
