Exhibit 10.3
ASSIGNMENT AND INDEMNITY AGREEMENT
DATED: June 8, 0000
Xxxxxxxx, Xxxxxxxx
This Assignment and Indemnity Agreement is entered into effective the above
date between XXXXXXXXX RESEARCH AND DEVELOPMENT COMPANY, a Colorado corporation,
as assignor, whose principal executive offices are located at 0000 Xxxxx Xxxx
Xxx, Xxxxxxxx, Xxxxxxxx 00000 ("Assignor"), and GRDC, INC., a Colorado
corporation having the same address as Assignor ("GRDC").
1. Preamble. GRDC is the wholly owned subsidiary of Assignor, which owns
all of the 100 shares of common stock of GRDC issued and outstanding. Assignor
intends by this Agreement to assign and transfer its assets and liabilities, all
and sundry, to GRDC, a company formed by Assignor for the purpose of such
assignment and transfer. The officers and directors of Assignor and GRDC are the
same persons, holding the same offices in both companies.
2. Assignment of Assets. For valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Assignor hereby assigns and
transfers all its right, title and interest whatsoever in and to the assets,
properties and things listed on EXHIBIT A to this Agreement, which is herein
incorporated by reference, and all other assets, properties and things of
Assignor (collectively, the "Assets"). It is the intention of the parties that
Assignor shall assign all of its Assets whatsoever to GRDC, whether or not
listed on EXHIBIT A, and the parties agree that any asset, property or thing
whatsoever not listed on EXHIBIT A, whether due to inadvertence or ignorance or
because acquired after the effective date of this Agreement, shall nonetheless
constitute part of the Assets and be deemed assigned to GRDC for no additional
consideration other than stated in this Agreement. In any such event(s),
Assignor agrees that it will at its expense, as promptly as is reasonably
possible, at GRDC's request execute all documents necessary to assign and
transfer to GRDC any and all such assets or things and to promptly deliver all
such assets, properties and things to GRDC.
3. Assumption of Liabilities. As partial consideration for Assignor's
assignment of the Assets, GRDC hereby assumes and agrees to pay and discharge in
full all of the trade payables and other liabilities listed on EXHIBIT B to this
Agreement, which is herein incorporated by reference, and all other liabilities
of Assignor now existing (collectively, the "Liabilities"). To further protect
Assignor against GRDC's failure to pay and discharge the Liabilities, GRDC has
granted Assignor the indemnification contained in this Agreement.
It is the intention of the parties that GRDC shall assume and agree to pay
and shall pay all of Assignor's trade payables and other Liabilities whatsoever,
whether or not listed on EXHIBIT B, and the parties agree that any Liability of
Assignor not listed on EXHIBIT B, whether due to inadvertence or ignorance or
because arising after the effective date of this Agreement, shall nonetheless
constitute part of the Liabilities and be deemed assumed by GRDC for no
additional consideration other than stated in this Agreement. In any such
event(s), GRDC agrees that it will at its expense, as promptly as is reasonably
possible, at Assignor's request execute a formal assumption and agreement to pay
any such Liabilities and thereafter to pay such Liabilities in full.
1
4. Issuance of Stock to Assignor. As partial consideration for Assignor's
assignment and transfer of the Assets, GRDC shall issue and deliver to Assignor
Nine Thousand Nine Hundred (9,900) shares of the authorized and unissued common
stock, no par value, of GRDC (the "Control Shares"). The Control Shares shall
not be registered under the Securities Act of 1933, as amended ("Act"), and
shall bear a customary form of investment legend restricting transfer of the
Control Shares in the absence of registration under the Act or the availability
of an exemption from the Act's registration requirements.
5. Indemnification of Assignor. GRDC agrees, for no consideration other
than stated in this Agreement, to defend, indemnify and hold Assignor harmless
from and against any and all Liabilities herein assumed by GRDC but not paid or
otherwise discharged by GRDC, together with all damages, costs or expenses
(including reasonable attorney's fees, penalties and interest) incurred by
Assignor as a result of GRDC's failure to pay or discharge such Liabilities. For
purposes of this Agreement, the term "Liabilities" shall include any penalties,
attorneys' fees, court costs or other expenses, costs and damages incurred by
Assignor as a result of any person's collection or attempt to collect
Liabilities from Assignor.
(a) Assignor agrees to give GRDC prompt written notice of any claim
against Assignor for Liabilities which might give rise to a claim by Assignor
against GRDC based upon the foregoing indemnity, stating with particularity the
Liability and the actual or estimated amount thereof; provided, however, that
failure to give such notice will not affect the obligation of GRDC to indemnify
Assignor unless, and only to the extent that, GRDC is actually prejudiced by the
failure to give notice.
(b) In the event that any action, suit or proceeding is brought against
Assignor with respect to which GRDC may have liability under the indemnity, GRDC
shall have the right, at its sole cost and expense, to defend such action in the
name of or on behalf of the Indemnified Group and, in connection with any such
action, suit or proceeding, the parties hereto agree to render to each other
such assistance as may reasonably be required in order to ensure the proper and
adequate defense of any such action, suit or proceeding; provided, however, that
Assignor shall have the right to retain its own counsel, with the fees and
expenses to be paid by GRDC, if representation of Assignor by the counsel
retained by GRDC would be inappropriate because of actual or potential differing
interests between Assignor and any other party represented by such counsel.
Assignor shall not make any settlement of any claim which might give rise to
liability of GRDC under the indemnity without GRDC's prior written consent,
which consent GRDC covenants shall not be unreasonably withheld.
6. Expenses. Assignor shall bear all expenses related to this Agreement
arising or incurred prior to or through its effective date. GRDC shall bear all
expenses related to this Agreement which arise or are incurred after its
effective date, including but not limited to the cost of any legal advertisement
required by UCC laws.
7. Prevailing Party Clause. In the event of any litigation or proceeding
arising as a result of the breach of this Agreement or the failure to perform
hereunder, the party substantially prevailing in such litigation or proceeding
shall be entitled to collect the costs and expenses of bringing or defending
such litigation or proceeding, including reasonable attorneys' fees, from the
party not prevailing.
8. Miscellaneous Provisions. This Agreement shall be governed by and
construed under the laws of the State of Colorado and shall be interpreted as if
both parties participated equally in its drafting. Any notice or communication
hereunder must be in writing and given by depositing the same in the United
States mail, addressed to the party to be notified, postage prepaid and
registered or certified with return receipt requested, by telefax transmission
or by delivery by use of a messenger which regularly retains its delivery
receipts. Such notice shall be deemed received on the date on which it is
2
delivered to the addressee. This Agreement is made, executed and delivered
effective as of the date above. This Agreement and the performance of all
obligations herein has been authorized by all requisite corporate action of both
parties.
XXXXXXXXX RESEARCH AND GRDC, INC.
DEVELOPMENT COMPANY
By /s/ Xxxxx X. Xxxxxxxxx By /s/ Xxxxx X. Xxxxxxxx
--------------------------- ----------------------------
Xxxxx X. Xxxxxxxxx, Xxxxx X. Xxxxxxxxx,
Chief Executive Officer Chief Executive Officer
3
ACKNOWLEDGMENT
STATE OF COLORADO )
) ss.
COUNTY OF LAKEWOOD )
I HEREBY CERTIFY that before me, a Notary Public duly commissioned and
qualified in and for the above jurisdiction, personally came and appeared Xxxxx
X. Xxxxxxxxx, known to me to be the Chief Executive Officer of XXXXXXXXX
RESEARCH AND DEVELOPMENT CO., a Colorado corporation, and of GRDC, INC., a
Colorado corporation, who after being duly sworn declared that he executed the
foregoing Assignment and Indemnity Agreement as his free act and deed and the
free act and deed of the parties represented therein by him, and that the
statements therein set forth are true and correct.
IN WITNESS WHEREOF, I have hereunto set my hand and seal on Sept.30, 1998.
/s/ Rae Xxxxxx Xxxxx
----------------------------- Notary Commission Expires:
Notary Public
(SEAL)
4
EXHIBIT A TO ASSIGNMENT AND INDEMINITY AGREEMENT
DATED JUNE 8, 1998
ASSETS OF XXXXXXXXX RESEARCH AND DEVELOPMENT COMPANY
----------------------------------------------------
CASH - 1 ST BANK CHECKING $ 375.70
ACCOUNTS RECEIVABLE - TRADE $ 34,913.00
FIXED ASSETS CONSISTING OF THE FOLLOWING:
OFFICE FURNITURE AND EQUIPMENT
QTY ITEM
1 10 DESK (4 SECRETARIAL, 3 EXECUTIVE, 3 SINGLE DRAWER TABLES)
2 8 MATCHING SIDE CHAIRS
3 7 ADJUSTABLE DESK CHAIRS
4 4 4 DRAWER FILE CABINETS
6 4 2 DRAWER FILE CABINETS
7 2 K&E DRAFTING TABLES
8 5 BOOKCASES
9 7 COMPUTERS - IBM CLONES (1-386, 0-000, 0-XXXXXXX 000, 0- XXXXXXX 000, &
0 - XXXXXXX 200)
10 1 LAPTOP COMPUTER - TEXAS INSTRUMENTS PENTIUM 90
11 2 HEWLETT PACKARD LASER PRINTERS (SERIES II & IID)
12 1 HEWLETT PACKARD DESK JET 1000C PRINTER
13 3 DICONIX PORTABLE INK JET PRINTERS
14 1 ENCAD CROMO27 XXXXXXX
00 0 3' X 4' CALCOMP DIGITIZER
16 1 TOSHIBA 7720 COPIER
17 1 HEWLETT PACKARD 210 INK JET COLOR COPIER
18 1 UMAX SCANNER UC1260
19 6 AT&T PARTNER II TELEPHONES
20 - MISCELANEOUS OFFICE SUPPLIES (PAPER CUTTER, REPORT BINDER,
FAX, PENCIL SHARPENERS, DRAFTING SUPPLIES, CALCULATORS ETC.)
COMPUTER SOFTWARE
21 - 23 STATISTICA GOLDEN SOFTWARE GEOSOFT
24 - 26 MICROSOFT OFFICE ADOBE PREMIER PEACHTREE
27 VARIOUS PROPRIETARY IN-HOUSE PROGRAMS
LABORATORY EQUIPMENT
28 APPROX. 50' - VARIOUS LAB BENCHES
29 2 LAB-LINE ORBITAL SHAKERS
5
30 2 XXXXXX ROBOTIC ARM SYSTEMS / CUSTOM SOFTWARE
31 1 GEOCHEMICAL INSTRUMENTS - CD 1000 CO2 MONITOR
32 - VARIOUS PROBES, CHEMICALS, SAMPLE HEATERS, GAS VALVES, &
MISCELLANEOUS LAB SUPPLIES
INSTRUMENTS
33 2 HEWLETT PACKARD GAS CHROMATOGRAPHS (3790A & 5880 SERIES II)
34 2 ORION ION ANALYZER - EA 940
35 2 ORION CONDUCTIVITY METER 135
36 3 SODIUM IODIDE CRYSTALS (1 - 256 cu in and 2 - 512 cu in)
37 1 RADIOMETRIC COMPUTER SYSTEM
38 1 SPECTROMETER GR 410
39 3 MAGNETOMETERS
FIELD EQUIPMENT
40 3 GLOBAL POSITIONING SYSTEMS ( 1-XXXXXX, 2- MAGELLAN PRO XXXX X)
42 3 CUSTOM DRILL RIGS / 42" DEPTH
43 3 ATV"S (SUZUKI 0 XXXXX XXXXX)
44 1 PICKUP TRUCK TOPPER (GLASSTITE)
MISCELLANEOUS
TOPOGRAPHIC MAPS
PROSPECT MAPS
GEOLOGIC MAPS
ALL FILES, PAPERS, RECORDS AND SUPPLIES
ALL EQUIPMENT, TOOLS, AND OTHER THINGS
6
EXHIBIT B TO ASSIGNMENT AND INDEMINITY AGREEMENT
DATED JUNE 8, 1998
LIABILITIES OF XXXXXXXXX RESEARCH & DEVELOPMENT COMPANY
-------------------------------------------------------
ACCOUNTS PAYABLE $ 2,753.00
ACCRUED EXPENSES $ 6,000.00
PAYROLL TAXES PAYABLE $ 1,440.00
7