I have put the work of Ilene and arnold together in one place. After the previous lawsuit debacle AVGI(??), my bet is that we fair no better with phanuel. These guys say they want to be deliberate and take the high road. Then they make a deal with someone and stab them in the back. If they did this crap in a school yard someone would beat the sh*t out of them. Well, this is the state of our management.
I do think CYGX will be found guilty, but I think the damages by PP are jacked way too high. Still, what was management even thinking getting into this agreement.
V.
"On or about July 21, 2003, Plaintiff and Defendant CytoGenix entered into that certain Agreement for Options and Licensing of Intellectual Property (the "Intellectual Property Agreemen") which sets forth the agreements between Defendant CytoGenix and Plaintiff for option and license agreements giving Plaintiff rights to license for production, marketing, and distribution the anti-herpetic formulatios based on 's single stranded DNA ("ssDNA") expression vector technology (subject matter technology) used to down regulate the Herpetic ICP-4 gene and subsequent improvements including, but not limited to, sequences against additional herpetic gene targets (such as ICP-47) and /or improvements to the expression vector, as well as technical know-how, show-how, materials, and methods necessary to practice the Option Rights and the License Rights.
VIII.
"Immediately subsequent to the execution of the Intellectual Property Agreement, the China Option Agreement, and the India Option Agreeent and the payment to Defendant CytoGenix by Plaintiff of the sum of $80,000.00, Defendant CytoGenix ceased working on its herpes suppression products, and instead, began working on a treatment for sepsis, thus making the marketing of the herpes treatment product (s) defined within the parameters of the "Option Rights," as defined in the China Option Agreement and the India Option Agreement. Additionally, upon further investigation of the actions of Defendant CytoGenix and Defendants Skolnick, Wunderlich, Vazquez, and Ocampo, said Defendants have knowingly and intentionally breached both the letter and the spirit of the Intellectual Property Agreement, the China Option Agreement, and the India Option Agreement. Defendants have conducted clinical trials on the suppression of gene ICP47 and refused to provide Plaintiff with information concerning the occurrence of such clinical trial or their results. Further, when Plaintiff's management asked for the results of such clinical trials, Defendant Wunderlich responded with the statement, "We will be happy to give you the results of the clinical trials the day after your options run out."
The next few pages of the lawsuit concern the Breach of Contract and Fraud charges. I'll leave that for another day, but Hogger did give the right explaination on the facts that he read at the courthouse.
Fraud Claim
XIII.
Plaintiff incorporates by reference the allegations set forth in paragraphs V Thrugh VIII.
XIV.
The actions of Defendants, as set forth herein, amount to deliberate, intentional, and willful fraud upon Plaintiff by Defendants. The essential elements of a fraud claim are as follows:
1. A material representation was made;
2. It was false;
3. When the representation was made, the speaker knew it was false or the statement was made recklessly without any knowledge of its truth and as a positive assertion;
4. The speaker made the representation with the intent that it should be acted on by the party;
5. The other party acted in reliance on the representation; and
6. The party thereby suffered injury.
Upon examination of the salient facts, it is readily shown that all essential elements of a fraud claim have been met. An analysis of the actions of Defendants, with respect to a fraud claim, is set forth below:
a. Defendants Skolnick, Wunderlich, and Vazques, individually and in their capacities of officers and directors of Defendant CytoGenix, caused the Intellectual Property Agreement, the China Option Agreement and the India Option Agreement to be executed and made the material representation that, in exchange for the payment by Paintiff of $80,000.00, and the promise to pay additional funds pursuant to the terms of the Intellectual Property Agreement, the China Option Agreement, and the India Option Agreement.
b. By Defendants failing and refusing and continuing to fail and refuse to honor the terms of the Intellectual Property Agreement, The China Option Agreement, and the India Option Agreement (after Plaintiff paid $80,000.00 to Defendant CytoGenix and promised to pay additional funds pursuant to the terms of the Intellectual Property Agreement, the China Option Agreement, and the India Option Agreement) Defendants have proved that the representations made in the Intellectual Property Agreement, the China Option Agreement, and the India Option Agreement by Defendants CytoGenix, Skolnik, Wunderlich, and Vazquez were false.
**The paragraphs titled c, d, and e don't say much more than the previous one except here is part of a sentence from c:
"Defendant Ocampo encouraged the other Defendants not to comply with the terms of the Intellectual Property Agreement, the China Option Agreement, and the India Option Agreement."
f. By Plaintiff, in good faith, complying with the terms of the Intellectual Property Agreement, the China Option Agreement, and the India Option Agreement, and Defendants acting in a fraudulent manner and refusing to comply with the terms of said Agreements, Plaintiff has been damaged in the amount of at least $500,000,000.00.
XV.
The deliberate, intentional, and willful fraud upon Plaintiff by Defendants was the producing cause of damages to Plaintiff. As a result Defendants' fraud, Plaintiff has sustained actual damages in the amount of at least $500,000,000.00. Plaintiff hereby requests that it be granted a judgment against Defendants, jointly and severally, in the amount of its actual damages.
XVI.
Plaintiff would further show that the actions of Defendants, as described herein, were committed knowlingly; that is, that Defendants were actually aware of the falsity, fraud, misleading nature, and deception of the conduct about which Plaintiff complains and were actually aware of the acts constituting the intentional, deliberate, and willful fraud committed on Plaintiff by Defendants, and Defendants intentionally kept Plaintiff oblivious as to their true malicious intent. According, Plaintiff should be awarded exemplary damages against Defendants, jointly or severally, in an amount found by the jury to be reasonable under the circumstances, in the event that the jury determines that Defendants acted with knowledge and committed fraud on Plaintiff intentionally, deliberately, and willfully, and with intent to harm Plaintiff or with reckless disregard for the rights of Plaintiff.
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