TRADEMARK TRANSFER AND ASSIGNMENT AGREEMENT
Exhibit
10.1
TRADEMARK
TRANSFER AND ASSIGNMENT AGREEMENT
The
parties to this Agreement are Execute Sports, Inc., Pacific Sports Group, Inc.,
(collectively “Seller”) and Xxxxx Xxxxx and Xxxx Xxxxxx (“Buyers”).
RECITALS
1. Seller
intends to sell and Buyers intend to buy the ACADEMY SNOWBOARD CO. trademark
(the “the Brand”). Presently, the Brand is owned by Pacific Sports Group, Inc.,
a corporation and a subsidiary of Execute Sports, Inc., a
corporation.
2. The
parties have determined to transfer the Brand to Sellers in exchange for the
assignment of certain debts that are associated with the Brand. The parties
executed a Letter of Intent expressing their intent to transfer the Brand and
assign the debts. This agreement is the Definitive Agreement mentioned in the
Letter of Intent.
TERMS
3. Seller
hereby transfers all right, title, interest and good will in the Brand,
including the ACADEMY SNOWBOARD CO. and ACADEMY trademarks and the associated
Academy logo, (including the California Trademark Registration No. 110867)
and
their goodwill, and all associated domain names and in particular the domain
xxx.xxxxxxxxxxxxxxxxx.xxx, trades secrets and copyrights and their goodwill.
The
parties shall execute such documents as necessary to effect the full transfer
of
all rights to the Brand to Buyers.
4. Seller
shall also, as part of the consideration for the transfer of the Brand, assign
to Buyers, certain of Seller’s accounts payable and accounts receivable. No cash
shall be exchanged for the sale of the Brand to Buyers. Attached to this
agreement as Exhibit A is a list all of Seller’s accounts receivable that Seller
shall assign to Buyers. Attached to this agreement, as Exhibit B is a list
of
all of Seller’s accounts payable for which Buyers shall assume the obligation to
pay. Only those accounts payable and accounts receivable listed in Exhibits
A
and B are to be assumed by Buyers. Seller and Buyers shall notify all third
parties affected by the assignment of rights and obligations under this
Agreement.
EXECUTION
AND ENFORCEMENT
5. This
Agreement and each of its provisions shall be binding on the heirs, executors,
administrators, successors, successors in interest and assigns of each of the
parties hereto.
6. This
instrument constitutes the sole and only agreement between the parties. This
instrument correctly sets forth the rights, duties and obligations of each
party
to the other party. Any prior agreements, promises, negotiations, or
representations concerning the subject matter of this Agreement not expressly
set forth hereinabove are no longer of any force and effect.
7. This
Agreement may be executed in two or more counterparts, each of which shall
be an
original, but all of which shall constitute one and the same
instrument.
8. This
Agreement has been negotiated and entered into in the County of Orange, State
of
California, and shall be governed by, construed and enforced in accordance
with
the internal laws of the State of California, applied to contracts made in
California by California domiciliaries to be wholly performed in California.
In
the event that any dispute shall occur between the parties arising out of or
resulting from the construction, interpretation, enforcement or any other aspect
of this agreement, the parties hereby agree to accept the exclusive jurisdiction
of the Courts of the State of California sitting in and for the County of
Orange.
9. No
breach
of any provision hereof can be waived unless in writing. Waiver of any one
breach of any provision hereof shall not be deemed to be a waiver of any other
breach of the same or any other provision hereof. This Agreement may be amended
only by a written agreement executed by the parties in interest at the time
of
the modification.
10. This
Agreement constitutes the entire agreement between the parties hereto pertaining
to the purchase of the Brand and the transfer of the rights and obligations
regarding the accounts receivables and accounts payable that is the subject
of
this Agreement, fully supersedes any and all prior understandings,
representations, warranties and agreements between the parties, or any of then,
pertaining to the purchase of the Brand. This Agreement may be modified only
by
written agreement signed by all of the parties hereto.
11. If
any
provision or any part of any provision of this Agreement shall for any reason
be
held to be invalid, unenforceable or contrary to public policy or any law,
then
the remainder of this Agreement shall not be affected thereby and shall remain
in full force and effect.
12. In
the
event any action or proceeding is brought to enforce this Agreement or arising
therefrom, the prevailing party shall be entitled to reasonable attorneys'
fees
and costs in addition to all other relief for which the party or those parties
may be entitled.
13. Each
party shall indemnify the other party as follows.
a. Buyers
covenant and agree to indemnify and hold harmless Seller, its parents,
subsidiaries and affiliated companies and the officers, directors, agents and
employees of the foregoing for, from and against any and all losses, claims,
causes of action, damages, expenses, judgments, awards, petitions, demands,
costs and liabilities of any type, joint or several, to which Seller or any
of
them may become subject (including its reasonable attorneys’ fees and court
costs) directly or indirectly, arising after the execution of this Agreement,
on
account of: (i) the design, manufacture, sale, distribution, advertising, and
promotion of any products marked with the Brand which are designed,
manufactured, sold, distributed, advertised, and promoted by Buyers after the
execution of this Agreement; (ii) any act or omission of Buyers or their agents,
employees, independent retailers, wholesalers, sales agents or distributors
other than those actions of Buyers undertaken in their capacity as employees,
officers, agents, and/or directors of Seller and/or Pacific Sports Group, Inc.;
(iii) any breach or claimed breach of this Agreement or activity relating
thereto by Buyers or any of their independent retailers, wholesalers, sales
agents or distributors; and (iv) any of the debt obligations of Seller that
are
assumed by Buyers; (v) and any representations that Buyers may make or have
made
regarding the Brand, the debts and assigned receivables assigned under this
Agreement, and/or Seller, and any contracts and understandings that might arise
regarding Buyers’ use of the Brand.
b. Seller
covenants and agrees to indemnify and hold harmless Buyers, their successors
in
interest, parents, subsidiaries and affiliated companies and the officers,
directors, agents and employees of the foregoing for, from and against any
and
all losses, claims, causes of action, damages, expenses, judgments, awards,
petitions, demands, costs and liabilities of any type, joint or several, to
which Buyers or any of them may become subject (including their reasonable
attorneys’ fees and court costs) directly or indirectly on account of: (i) the
design, manufacture, sale, distribution, advertising, and promotion of any
products marked with the Brand which are designed, manufactured, sold,
distributed, advertised and promoted by Seller; (ii) any act or omission of
Seller or its agents, employees, independent retailers, wholesalers, sales
agents or distributors; (iii) any breach or claimed breach of this Agreement
or
activity relating thereto by Seller or any of its independent retailers,
wholesalers, sales agents or distributors; and (iv) any debt obligations of
Seller or Pacific Sports Group, Inc. that are not explicitly assumed by Buyers
in this Agreement; (v) and any representations that Seller may make or has
made
regarding the Brand and/or Buyers, and any contracts and understandings that
might arise regarding Sellers’ use of the Brand.
14. Seller
shall cooperate with Buyer in the collection of any accounts receivable assigned
by Seller to Buyer under this Agreement.
15. Any
notice required or permitted between the parties shall be delivered in person
or
sent by overnight delivery service, or certified mail, return receipt requested,
postage and fees prepaid in all cases to addresses of the parties listed
below.
/s/
Xxxx Xxxxxx
Xxxx
Xxxxxx
/s/
Xxxxx Xxxxx
Xxxxx
Xxxxx
Execute
Sports, Inc.
By:
/s/
Xxxx Xxxxxxxx
Its:
Chief Executive Officer
