TRADEMARK AND TRADE NAME
PURCHASE AND SALE AGREEMENT
This Purchase and Sale Agreement is between Netword, Inc., a company
incorporated under the laws of the state of Nevada ("Assignor"), successor in
interest to Netword, Inc., a company organized under the laws of Delaware, and
The Birdshell Corporation, L.L.C., a limited liability company organized under
the laws of the state of Delaware ("Assignee"). Assignee and Assignor are
collectively referred to hereinafter as the "Parties".
WHEREAS:
Assignor is the owner of certain right, title and interest in and to
the common law trademarks and trade names NETWORD and NETWORD, INC. and United
States Trademark Application Serial Number 75/036,328 and good will associated
therewith (the "Rights") as of the date of this agreement; and
Assignee desires to acquire from Assignor all of Assignor's interest
in the Rights;
NOW, THEREFORE, in consideration of the foregoing and of the mutual
covenants and warranties contained herein, the Parties agree as follows:
1. Effective Date. The Effective Date of this Agreement shall be April 30, 1996.
2. Assignment. Assignor shall upon receipt of payment pursuant to section 3,
execute and deliver to Assignee an Assignment of the Rights, in the form
attached hereto as Appendix A, and hereby assigns all of Assignor's right, title
and interest in the Rights and any other rights in the term NETWORD, including
the right of priority and the right to xxx and collect damages for infringement
or passing off the Rights from the Effective Date. The date of execution of such
Assignment shall be the Assignment date.
3. Initial Payment. Assignee shall, within ten (10) days of the execution of
this Agreement, pay to Assignor the sum of $7,000.
4. Continuing Payments. Assignee shall on each of the first through the seventh
annual anniversary of the Assignment Date, pay Assignor the sum of $4,800.
5. Name Change. Assignor shall and shall cause any subsidiary and affiliate to
change their respective corporate names, designations and e-mail addresses,
within three months after the Effective date, to ones that do not include the
word NETWORD or any words similar to or evocative thereof.
6. Grant Back. In the event that Assignee breaches the obligations under
paragraph 4 hereof, which breach is not cured within thirty days of notice of
such breach, as the exclusive remedy for such breach Assignor shall be entitled
to and Assignee shall immediately assign all of its right, title
and interest in and to the Rights to Assignor. Upon the reassignment of Rights,
no monies paid under this Agreement shall be refunded. In the event that
Assignee refuses to assign as required herein, the Rights shall be deemed to
have been reassigned by operation of this Agreement and Assignor may file a copy
of the executed Agreement to record the reassignment on trademark registers
throughout the world.
7. Duty To Assist. Assignor agrees that it will, at Assignee's expense,
promptly execute and deliver all papers, make all rightful oaths, testify in any
legal proceedings, and perform all other rightful and lawful acts deemed
necessary or desirable by Assignee or its successors or assigns to perfect the
title to the Rights and any registration or renewals which may be applied for or
granted therefor or thereon.
8. Warranty and Representation of Assignor. Assignor represents and warrants
that, as of the Effective date and the Assignment date, (i) it has the right to
make Assignments of the Rights free of the claims of any other person or entity,
(ii) it has the full and unencumbered right to satisfy its obligations under
this Agreement and will not execute any agreement inconsistent herewith, and
(iii) all action on the part of Assignor, its directors and stockholders
necessary for the authorization, execution, delivery, and performance by
Assignor of this Agreement and the consummation of the transactions contemplated
herein has been or will be taken prior to the Effective Date of this Agreement.
9. Warranty and Representation of Assignee. Assignee represents and warrants
that (i) it has the full and unencumbered right to satisfy its obligations under
this Agreement and will not execute any agreement inconsistent herewith, and
(ii) all action on the part of the Assignee, its directors and stockholders
necessary for the authorization, execution, delivery, and performance by
Assignee of this Agreement and the consummation of the transactions contemplated
herein has been or will be taken prior to the Effective Date of this Agreement.
10. General Provisions.
a. Notice and Deliveries. All notice given in connection with this
Agreement shall be in writing and shall be sent to the addresses given below or
to such other addresses as the Parties may hereafter specify, in person, by
first class mail, or by telecopier or other similar facsimile transmission. Such
notices shall be deemed given (i) when delivered to a party, or (ii) three days
after mailing by prepaid first-class mail:
For the Assignor: For the Assignee:
Xxxxx Xxxxxxxx Xxxxxx Xxxxxxx
Netword, Inc. General Manager
X.X. Xxx 000 The Birdshell Corporation, L.L.C.
Xxxxxxxxx, XX 00000-0000 0000 Xxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxxxx, XX 00000
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with copies to: with copies to:
L. Xxxxxx Xxxxxx, III Xxxx Xxxxxxxx, Esq.
Xxxxxx & Killeen Fulbright & Xxxxxxxx, L.L.P.
000 Xxxx Xxxxxx, Xxxxx 000 000 Xxxxxxxxxxxx Xxxxxx, X.X.
Xxxxxxxxxx, XX 00000 Xxxxxxxxxx, X.X. 00000-0000
b. Counterparts. This Agreement may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
c. Entire Agreement. This Agreement constitutes the entire
understanding agreement of the parties with respect to the specific subject
matter of this Agreement and supersedes all prior agreements or understandings,
written or oral, between the parties hereto with respect to the specific subject
matter of this Agreement. This Agreement may not be amended except by a written
instrument signed by the Parties.
d. Severability. If any of this Agreement is declared by a court of
competent jurisdiction to be invalid, void or unenforceable, the remaining
provisions of this Agreement nevertheless will continue in full force and effect
without being impaired or invalidated in any way.
e. Captions. The captions and headings used in this Agreement shall be
solely for convenience in reference, and shall in no way define, limit,
describe, or affect the scope or intent of any of the provisions of this
Agreement.
IN WITNESS WHEREOF, the parties hereto have set their hands on the dates below
indicated.
Assignor: Assignee:
Netword. Inc. The Birdshell Corporation, L.L.C.
By: /s/ Xxxxx Xxxxxxxx By: /s/ Xxxxxx Xxxxxxx
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ASSIGNMENT OF RIGHTS
WHEREAS, Netword, Inc. a corporation organized under the laws of Nevada
(hereinafter called "ASSIGNOR"), has adopted, used and has not abandoned the
trademark NETWORD, and is the owner of United States Trademark Application
Serial Number 75/086,328 (the "Rights").
AND WHEREAS, The Birdshell Corporation, L.L.C., a limited liability
company organized under the laws of Delaware (hereinafter called "ASSIGNEE"), is
desirous of acquiring the right, title and interest in and to the Rights.
NOW, THEREFORE, for good and valuable consideration, the receipt of
which is hereby acknowledged, ASSIGNOR by these presents does sell, assign and
transfer unto ASSIGNEE, its successors and assigns, all right, title, and
interest in and to the Rights, including the good will of the business
associated therewith, including all state, federal and common law rights,
including the right of priority, the right to xxx for and receive damages for
past infringements or passing off, if any, and any other rights in the term
NETWORD. The parties further agree that ASSIGNEE shall hold all rights
transferred by this agreement for its own use and enjoyment, and for the use and
enjoyment of its successors, assigns or other legal representatives as fully and
entirely as the same would have been held and enjoyed by ASSIGNOR if this
assignment and sale had not been made, including the right to xxx and collect
damages for past infringement or passing off.
ASSIGNOR hereby warrants and covenants that it has full and
unencumbered right to convey, sell and assign the entire interest herein
assigned, and that it has not executed, and will not execute, any agreement,
document or instrument inconsistent herewith.
ASSIGNOR further covenants that ASSIGNEE, its successors, legal
representatives or assigns will, upon written request, be provided promptly with
all pertinent facts and documents relating to said Rights as may be known and
accessible to ASSIGNOR, and ASSIGNOR will promptly execute and deliver to
ASSIGNEE or its legal representative any and all papers, instruments or
documents required to register, perfect title to and enforce the Rights deemed
necessary or desirable by said ASSIGNEE, its successors, legal representatives
or assigns and to carry out the purposes of this Assignment and sale.
IN WITNESS WHEREOF, the said ASSIGNOR has hereunto executed this
instrument this 1st day of May, 1996.
NETWORD, INC.
By: /s/ Xxxxx Xxxxxxxx
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Name:
Title:
