ASSIGNMENT
THIS ASSIGNMENT (the "Assignment") is made and entered into as of November
29, 1999, by and between RICHARD A. KREITZBERG (the "Assignor") and WILLIAM E.
COOK (the "Assignee").
RECITALS:
A. Assignor entered into a Purchase and Release Agreement (the "Purchase
Agreement") with Stephen F. Rosendahl, Jim Steuer, and Dynasty Capital
Corporation (the "Purchase Agreement"), by the terms of which he purchased from
them an interest in and to the Rosendahl Agreements, the Goyak Note, the
Collateral Agreements, the OMNI Indebtedness, and the OMNI Derivative Securities
(collectively, the "OMNI Rights"); and
B. Kreitzberg desires to assign an undivided one-half (1/2) interest in and
to the Purchase Agreement and OMNI Rights to Assignee, and Assignee desires to
purchase from and accept the assignment of the Purchase Agreement and the OMNI
Rights, upon the terms and subject to the conditions set forth in this
Assignment.
NOW, THEREFORE, the parties agree as follows:
1. Defined Terms. Unless otherwise defined herein, capitalized terms used
herein and not otherwise defined herein shall have the meanings ascribed to them
in the Purchase Agreement.
2. Assignment. Kreitzberg sells, assigns, and transfers to Cook, and Cook
purchases and accepts the assignment of, an undivided one-half (1/2) interest in
and to the Purchase Agreement and the OMNI Rights purchased thereunder. Assignee
shall pay to Assignor One Hundred Two Thousand Five Hundred Dollars ($102,500)
(the "Consideration") for such undivided one-half (1/2) interest. Assignee shall
pay such Consideration concurrently with the parties' execution and delivery of
this Assignment.
3. Acknowledgment. Assignor and Assignee acknowledge and agree that all of
the OMNI Derivative Securities (except the CMDI Options) have expired and are of
no further force and effect. They also acknowledge and agree that the Rosendahl
Agreements have been terminated and that no fees or other amounts are now owing
or may be owing in the future under them except for the Rosendahl Agreements
Indebtedness.
4. Third Party Beneficiaries. Assignor and Assignee agree that OMNI Rail
Products, Inc., its predecessors in interest, CMDI and OIRP, their successors
and assigns, and their subsidiaries and parents are intended third party
beneficiaries of Section 3 of this Assignment.
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5. Confidentiality. The particulars of this Assignment will be kept
confidential and not disclosed to anyone other than the parties' attorneys,
accountants, and advisers on a "need to know" basis, except (1) to the extent
reasonably necessary to obtain advice and assistance from appropriate
professionals and advisors, such as their respective counsel, auditors,
accountants, and tax preparers; (2) to the extent reasonably necessary to comply
with tax, securities, or other laws; (3) to the extent reasonably necessary to
adequately prosecute or defend any claim or dispute by or against any party to
this Agreement; (4) to the extent required in order to comply with any subpoena,
court order, or applicable law, provided that the disclosing party shall give
the other party prompt written notice of such disclosure obligation and the
opportunity to intervene or otherwise participate in the court action or other
proceeding to protect the confidentiality of the terms and negotiations about
the terms of this Agreement.
6. Miscellaneous.
a. Each party shall bear such party's own costs, disbursements, and
attorney's fees, including without limitation any costs, disbursements, and
attorney's fees incurred in connection with this Agreement or any other
transaction or matter described in this Agreement.
b. No promise, inducement or agreement not expressed in this Agreement
has been made. This Agreement contains the entire agreement of the parties with
regard to the subject matter hereof.
c. Each of the parties hereto shall execute and deliver any and all
additional papers, documents and other assurances, and shall do any and all acts
and things reasonably necessary in connection with the performance of their
obligations hereunder and to carry out the intent of the parties hereto.
d. No amendment, change, or modification of this document shall be
valid unless in writing and signed by all parties hereto.
e. No reliance upon or waiver of one or more provisions of this
Agreement shall constitute a waiver of any other provisions hereof. All waivers
must be in writing and signed by the party waiving compliance.
f. All of the terms and provisions contained herein shall inure to the
benefit of and shall be binding upon the parties hereto and their respective
heirs, personal representatives, successors and assigns.
g. This Agreement may be executed by the parties in separate
counterparts, each of which when executed and delivered shall be an original,
but all of which together shall constitute one and the same instrument.
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h. Each of the parties represent that such party has read this
Agreement, knows its contents, has been advised by such party's own attorney in
connection therewith, and signs the same as such party's own free act.
i. This Agreement may be executed by facsimile signature.
j. The parties acknowledge that Farleigh, Wada & Witt, P.C., has
prepared this Agreement acting strictly for the benefit and protection of the
Company. The parties acknowledge their right to have their own independent
counsel review this Agreement and all matters related thereto.
k. No provision of this Agreement shall be construed against any party
on the ground that such party or its counsel drafted the provision.
l. This Agreement shall be governed by and construed in accordance
with the laws of the state of Oregon.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date set forth above.
ASSIGNOR:
/s/ Richard A. Kreitzberg
------------------------------------
Richard A. Kreitzberg
ASSIGNEE:
/s/ William E. Cook
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William E. Cook
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