ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT is made and entered into this 11th day of
November, 1999, by and among FlightBrief Online Service, Inc., a Georgia
corporation ("Seller"), Data Transmission Network corporation, a Delaware
corporation ("Buyer"), and Xxxxx X. Xxxxx, an individual (the "Stockholder").
RECITALS:
A. Seller is engaged in the business of creating, assembling,
marketing, maintaining and publishing two web sites (the "Web Sites")
xxx.xxxxxxxxxxxxxxx.xxx, which provides real-time weather graphics to aviation,
marine, farming and construction subscribers, and xxx.xxxxxxxxxxx.xxx, which
provides real-time weather graphics and interactive flight planners, airport
databases and other resources to aviation subscribers (the "Business").
B. Seller desires to sell certain of its assets used in the conduct of
the Business, and Buyer desires to acquire such assets.
C. The Stockholder, as the owner of all of the issued and outstanding
stock of Seller, joins in this Agreement to confirm certain representations,
warranties and agreements of Seller herein, to agree to certain restrictive
covenants, and to indemnify Buyer in connection with certain matters.
In consideration of the mutual covenants and agreements set forth
herein, and for other good and valuable consideration the receipt and
sufficiency of which are hereby acknowledged, Seller, the Stockholder and Buyer,
intending to be legally bound, agree as follows:
1. Purchase and Sale. Buyer agrees to purchase from Seller, and Seller
agrees to sell to Buyer, the Business and all right, title and interest in and
to the following property and assets of Seller (collectively the "Assets"):
(a) All of Seller's computer hardware, web hosting servers, equipment
and other tangible personal property used in the conduct of the
Business, including but not limited to the items listed on
Schedule 1 attached hereto and incorporated herein by this
reference;
(b) All of Seller's right, title and interest in the software used in
the Business to the extent assignable, including but not limited
to the software listed on Schedule 1 attached hereto;
(c) All of Seller's right, title and interest in the subscriptions
(whether written, oral, or entered into via the Web Sites) with
customers to use the Web Sites, including but not limited to the
prepaid and unearned revenue from such subscriptions;
-142-
(d) All right, title and interest in and to the registered trademark
FLIGHTBRIEF and the unregistered trademarks XXXXXXX.XXX,
XXXXXXXXXXXXXXX.XXX and XXXXXXXXXXX.XXX (the "Trademarks") and
the Internet domain names XXXXXXX.XXX, XXXXXXXXXXXXXXX.XXX and
XXXXXXXXXXX.XXX (the "Domain Names");
(e) All of Seller's information, files, records, data, plans, and
recorded knowledge, including subscriber and supplier lists,
related to the Business and similar or related data; and
(f) All of Seller's goodwill pertaining to or arising out of the
Business.
2. Consideration. Buyer agrees to pay, and Seller agrees to accept, as
the entire aggregate consideration for the Assets and the noncompete agreements
of Seller and the Stockholder referred to in Paragraph 15, the cash sum of
$18,000 plus the amount determined by multiplying $108.00 (the "Subscriber
Price") by the lesser of (i) the aggregate number of subscribers to the Web
Sites on the Closing Date or (ii) the aggregate number of subscribers to the Web
Sites on the date (the "Settlement Date") 100 days after the Closing. One
Hundred Five Thousand Dollars ($105,000) of the purchase price shall be paid by
Buyer to Seller on the Closing. Prepaid subscription revenue shall be prorated
as of the Closing Date and the unearned portion thereof shall be paid by Seller
to Buyer at Closing or sum amount shall be credited against the payment due to
Seller at Closing. Eighty Seven Thousand Five Hundred Dollars ($87,500) of the
purchase price shall be paid to Seller from the escrowed funds referred to below
when the Web Sites are operational using the servers located at Buyer's
facilities. The balance of the purchase price shall be paid to Seller, without
interest, on the Settlement Date. The consideration to be given by Buyer under
this paragraph shall be allocated among the Assets and such noncompete
agreements as described in Schedule 3. Seller, the Stockholder and Buyer each
agree that they will not take a position on any income tax return, before any
governmental agency charged with the collection of any income tax, or in any
judicial proceeding which is in any way inconsistent with such allocation. Time
is of the essence with respect to payment on the Settlement Date. As security
for such payment, Seller shall escrow all conveyance instruments and Buyer shall
escrow the cash sum of $262,500 with a title insurance company acceptable to
Buyer and Seller (the "Escrow Agent") at Closing. On the date that the Escrow
Agent is notified by Seller and Buyer that the Web Sites are operational using
the servers located at Buyer's facilities, the Escrow Agent shall release
$87,500 to Buyer as provided above. On the Settlement Date, the Escrow Agent
shall release the funds to Seller to the extent the purchase price remains
unpaid and shall release the conveyance instruments and any surplus cash to
Buyer; provided, however, in the event Buyer, prior to the Settlement Date,
notifies the Escrow Agent in writing that it has a bona fide and material
dispute with Seller under this Agreement, then all of the escrowed funds are to
be retained by the Escrow Agent until the dispute is resolved. Interest on the
escrowed funds shall belong to Buyer unless otherwise agreed or imposed upon the
parties by a court of competent jurisdiction. On or before the Closing, Buyer
and Seller shall enter into an escrow agreement with the Escrow Agent consistent
with the terms set forth in this paragraph.
3. Assumption of Liabilities. Buyer shall assume, agree to perform, and
discharge when due only those obligations of Seller arising out of the
2
-143-
subscriptions listed on Schedule 2 with respect to the period from and after the
Closing Date (the Assumed Liabilities"). Seller and Buyer agree that, other than
the Assumed Liabilities, Buyer does not agree to assume and shall have no
responsibility for any of the debts, obligations or liabilities of Seller (the
"Excluded Liabilities"), all of which shall remain the sole responsibility of
and shall be paid and discharged by Seller as they become due. The Excluded
Liabilities include without limitation all of the following:
(a) Any tax liability or tax obligation of Seller, its directors,
officers, shareholders and agents which has been or may be
asserted by any taxing authority, including without limitation
any such liability or obligation arising out of or in connection
with this Agreement or the transactions contemplated hereby.
(b) Any liability or obligation of Seller whether incurred prior to,
at or subsequent to the Closing Date for any amounts due or which
may become due to any person or entity who is or has been a
holder of any debt or equity security of Seller.
(c) Any trade account payable or note payable of Seller or any
contract obligation of Seller (other than the Assumed
Liabilities) whether incurred prior to, at or subsequent to the
Closing Date, including without limitation all obligations to
Xxxxxx Xxxxxxxxxxx (including the payment for termination of the
contract with Xxxxxx Xxxxxxxxxxx), Xxxxxx-Xxxxx, and NW Aero.
(d) Any liability or obligation arising out of any litigation, suit,
proceeding, action, claim or investigation, at law or in equity
or in arbitration, related to Seller's operation of the Business
prior to the Closing Date.
(e) Any claim, liability or obligation, known or unknown, contingent
or otherwise, the existence of which is a breach of, or
inconsistent with, any representation, warranty or covenant of
Seller set forth in this Agreement.
(f) Any liability or obligation specifically stated in this Agreement
or the Schedules hereto as not to be assumed by Buyer.
4. Transfer Documents. Seller shall sell, transfer, assign, convey, and
deliver to Buyer at the Closing the Assets by (i) a warranty xxxx of sale and
assignment in the form of Exhibit A hereto, (ii) the Registrant Name Change
Agreements for submission to Network Solutions, Inc. in the form of Exhibit B
hereto to transfer the Domain Names, (iii) an Assignment of Trademarks for
submission to the Patent and Trademark Office in the form of Exhibit C hereto to
transfer the Trademarks, and (iv) such other good and sufficient instruments of
sale, assignment, conveyance and transfer as shall be required to effectively
vest in Buyer all of Seller's right, title, and interest in and to the Assets,
free and clear of all liens, encumbrances, security interests, actions, claims
and equities of any kind whatsoever. Seller agrees to take such actions as may
be necessary to make available for use by Buyer the Domain Names and Trademarks,
including without limitation Seller's change of its corporate name. Buyer shall
be entitled to possession of the Assets upon the Closing. From time to time
after the Closing, at Buyer's request and without further consideration, Seller
3
-144-
agrees to execute and deliver such other instruments of conveyance and transfer
and take such other action as Buyer reasonably may require more effectively to
convey, transfer to and vest in Buyer, and to put Buyer in possession of, any of
the Assets.
5. Closing. Subject to the termination of this Agreement as provided in
Section 10, the closing of the transactions provided for in this Agreement (the
"Closing") shall take place at _______________________________________, at 10:00
a.m. on ___________, 1999 (the "Closing Date"), or such other place, time and
date as the parties may agree. Time is of the essence of this Agreement.
6. Obligations to Employees. Seller agrees that it shall be responsible
for any obligations to any of its employees which heretofore may have arisen or
hereafter may arise by reason of any services rendered by such employees,
including but not limited to salaries, bonuses, vacation pay, retirement
benefits, and other fringe benefits; and Seller hereby agrees to pay all of such
obligations directly to the employees involved when due. Seller agrees timely to
pay all payroll tax, withholding, and unemployment compensation payments
required to be made with respect to the compensation of such employees and to
hold Buyer harmless therefrom. Seller shall furnish to Buyer such evidence of
Seller's compliance with the provisions of this paragraph as Buyer reasonably
may request from time to time.
7. Representations and Warranties. Seller warrants, represents and
covenants to and with Buyer:
(a) That Seller has full right and lawful authority to enter into
this Agreement and to sell the Assets; that Seller's performance
of its obligations under this Agreement will not violate any
agreement, document, trust (constructive or otherwise), order,
judgment or decree to which Seller is a party or by which it is
bound; and that, upon the transfer and assignment of the Assets
to Buyer as hereinbefore mentioned, Buyer will acquire good and
merchantable title thereto, free and clear of any liens,
encumbrances, security interests, actions, claims, and equities
of any kind whatsoever.
(b) That Seller is the sole and lawful owner of and has good and
marketable title to all of the Assets, free and clear of any
liens, encumbrances, security interests, actions, claims, and
equities of any kind whatsoever; provided, however, with respect
to software Seller represents that it is the rightful licensee
(not owner) and that it has the right to assign its license to
Buyer, and with respect to trademarks, Seller makes no
representation as to the ability of third parties to assert a
competing claim to any xxxx used in Seller's business.
(c) All material items of tangible personal property to be acquired
by Buyer pursuant to this Agreement are in good operating
condition, subject to normal wear.
4
-145-
(d) That there are no suits, arbitrations or other legal or
governmental proceedings pending or threatened against Seller
which might conceivably affect the title to the Assets.
(e) That Seller has duly and timely filed all federal, state, and
local tax returns of every kind whatsoever and has paid in full
the tax liability shown on such returns; that no unpaid
deficiencies are in existence which have been asserted against
Seller by any official or agency as a result of the filing of
such returns; and that, to the knowledge of Seller, there is not
now pending any examination with respect to any such returns nor
does Seller know of any impending examination with respect to any
such returns.
(f) That promptly after the Closing Date Seller shall pay all sales
and use taxes imposed on or collectible by Seller and shall
furnish to Buyer evidence that all of Seller's sales and use
taxes have been paid (it being understood that Buyer is
purchasing the Assets for use in its business of producing goods
and services).
(g) To the best of Seller's knowledge, use of the Trademarks do not
require the consent of any other person and the same are freely
transferable and are owned exclusively by Seller free and clear
of any licenses, charges, attachments, liens, encumbrances or
adverse claims. No other person has an interest in or right or
license to use, or the right to license others to use, any of the
Trademarks. There are no claims or demands of any other person
pertaining thereto and no proceedings have been instituted, or,
to the best of Seller's knowledge, are pending or threatened,
which challenge Seller's rights in respect of the Trademarks.
None of the Trademarks is subject to any outstanding order,
decree, judgment or stipulation, or, to the best knowledge of
Seller, is being infringed by others. No claim has been made and
no proceeding has been filed or, to the best of Seller's
knowledge, is threatened to be filed charging Seller with
infringement of any adversely held trade name or trademark.
(h) There is no undisclosed fact, development, or threatened
development with respect to the markets, products, customers,
vendors, suppliers, operations, assets or prospects of the
Business which are known to Seller which would materially
adversely affect the business, operations or prospects of the
Business considered as a whole, other than such conditions as may
affect as a whole the economy generally.
(i) Seller's tax return for the year 1998 furnished to Buyer fairly
and accurately represents the financial operations and condition
of the Business for such year.
(j) That Seller has listed on Schedule 2 all of Seller's
subscriptions to the Web Sites as of ____________, 1999; Seller
has no other contracts (oral or written or entered into via the
Web Sites) with the customers of the Business. Seller has
delivered to Buyer true, correct and complete copies of all
written contracts with subscribers to the Web Sites relating to
the Business, and written summaries of the terms of all oral or
5
-146-
computer generated contracts relating to the Business, and all of
such contracts are presently in full force and effect and are
assignable to Buyer.
(k) Except to the extent disclosed to Buyer in writing prior to the
date of this Agreement, all Date Data and Date-Sensitive Systems
(each as hereinafter defined) are Year 2000 Compliant (as
hereinafter defined). "Date Data" means any data of any type that
includes date information or which is otherwise derived from,
dependent on or related to date information. "Date-Sensitive
System" means any software, microcode or hardware system or
component, including any electronic or electronically controlled
system or component, that processes any Date Data and that is
included within the Assets. "Year 2000 Compliant" means (i) with
respect to Date Data, that such data is in proper format and
accurate for all dates in the twentieth and twenty-first
centuries, and (ii) with respect to Date-Sensitive Systems, that
each such system accurately processes all Date Data, including
for the twentieth and twenty-first centuries, without loss of any
functionality or performance, including but not limited to
calculating, comparing, sequencing, storing and displaying such
Date Data (including all leap year considerations), when used as
a stand-alone system or in combination with other software or
hardware.
(l) That from the date of this Agreement to the Closing Date, Seller
will conduct the Business in a normal and regular manner and will
use its best efforts to retain the subscribers to the Web Sites.
(m) That from the date of this Agreement to the Closing Date, Seller
agrees to aid and assist Buyer in obtaining access to the Web
Sites and servers to coordinate and facilitate the transfer of
the Business to Buyer at the Closing and to coordinate in advance
the input of Buyer's content on to the Web Sites.
8. Indemnification. Provided that Buyer has fully performed hereunder,
Seller and the Stockholder, jointly and severally, agree to indemnify Buyer and
hold Buyer harmless from and against any and all liability, loss, litigation,
expense or claim (including reasonable attorney fees) arising out of, resulting
from, relating to, in the nature of or caused by:
(a) Any material breach occurring within twelve (12) months after
Closing of any representation, warranty, covenant or agreement
made by Seller and/or the Stockholder in this Agreement or in any
agreement, statement, certificate, instrument or other document
furnished or delivered or to be furnished or delivered to Buyer
pursuant hereto or in connection with the transactions
contemplated by this Agreement;
(b) The ownership or operation of the Assets or the Business prior to
the Closing Date (except to the extent included in the Assumed
Liabilities);
(c) The Excluded Liabilities; and
6
-147-
(d) Buyer agrees to give Seller and Stockholder reasonable notice of
and opportunity to defend and/or cure any indemnity claim it
intends to present.
Buyer agrees to indemnify Seller and Stockholder and hold Seller and
Stockholder harmless from and against any and all liability, loss, litigation,
expense or claim (including reasonable attorney fees) arising out of, resulting
from, relating to, in the nature of or caused by (i) Buyer's material breach
hereunder, (ii) the Buyer's failure to perform under the Assumed Liabilities, or
(iii) Buyer's act or omission in its post-Closing operation of the Assets.
9. Conditions to Buyer's Obligations at Closing. The obligations of
Buyer to purchase the Assets hereunder and consummate the transactions
contemplated hereby are conditioned on the satisfaction, unless waived, of the
following conditions at the Closing:
(a) The representations and warranties made by Seller in Section 7
shall be true and correct in all material respects as of the
Closing Date and Seller shall execute and deliver a certificate
to such effect to Buyer at Closing.
(b) Buyer shall have determined in its sole discretion that the
Assets being transferred to Buyer hereunder are free and clear of
any liens, claims, encumbrances, charges and the like.
(c) Seller shall have in all material respects performed and complied
with all of its agreements and obligations hereunder which are to
be performed or complied with prior to or on the Closing Date.
10. Termination.
(a) Termination by Mutual Consent. At any time prior to the Closing,
this Agreement may be terminated by mutual written consent of
Buyer and Seller.
(b) Termination by Buyer. Buyer may terminate this Agreement at any
time prior to the Closing by delivery of written notice to Seller
if:
(i) Seller has failed to perform any of its covenants under
this Agreement or has violated this Agreement in any material respect;
or
(ii) Any representation or warranty made by Seller in this
Agreement is false or inaccurate in any material respect or there is
any material misrepresentation or material omission by Seller.
(c) Termination by Seller. Seller may terminate this Agreement at any
time prior to the Closing by delivery of written notice to Buyer
if:
(i) Buyer has violated this Agreement in any material respect;
or
7
-148-
(ii) Any representation or warranty made by Buyer in this
Agreement is false or inaccurate in any material respect or there is
any material misrepresentation or material omission by Buyer.
(d) Effect of Termination. In the event of termination as provided
above, this Agreement shall then become of no further force or
effect, all parties hereto shall bear their own costs associated
with this Agreement and all transactions mentioned herein, and
there shall be no obligation on the part of Buyer or Seller or
the officers, directors or shareholders of Buyer or Seller.
11. Bulk Sales. The parties represent that no inventory of any kind is
being sold by Seller to Buyer hereunder; thus neither party intends to provide
any notice under the bulk sales provisions of the Uniform Commercial Code.
Seller has taken any and all actions required under local law with respect to
the transactions contemplated by this Agreement and will satisfy on or before
the Closing Date (or make arrangements satisfactory to Buyer in its sole
discretion to satisfy) all creditor claims, excluding Assumed Liabilities.
12. Survival. The representations, warranties, and covenants on the
part of Seller and/or the Stockholder contained in this Agreement shall survive
the Closing and shall be binding upon Seller and the Stockholder and their
heirs, legal representatives, successors and assigns.
13. Payment of Liabilities. Seller agrees to pay as promptly as
possible any and all liabilities of Seller existing on the Closing date and to
hold Buyer harmless therefrom. Buyer and Seller agree that Buyer is not assuming
and shall have no responsibility for any of the debts, obligations, or
liabilities of Seller, including but not limited to any liabilities or
obligations of Seller (whether fixed, absolute, contingent, known, unknown,
direct, indirect, or otherwise) whether incurred or accrued before or after the
Closing Date, which in any way relate to the performance or non-performance of,
or any other liability or obligation relating to any service or product
furnished or sold by Seller prior to or after the Closing Date, and Seller
hereby agrees to hold Buyer harmless from any cost or expense arising out of or
relating to any such debts, obligations, or liabilities; provided, however, such
indemnification by Seller does not extend to any Assumed Liabilities.
14. Transfer Taxes. Seller shall pay all sales and other similar taxes
imposed on or collectible by Seller or Buyer by reason of the transfer of the
Assets.
15. Noncompete. For a period of three (3) years after the date of this
Agreement, neither Seller nor the Stockholder shall, directly or indirectly,
whether as a shareholder, partner or investor possessing any ownership interest,
or as principal, agent, employee, proprietor, independent contractor, consultant
or in any other capacity:
(a) Solicit for itself or others, or advise or recommend to any other
person that such person solicit, any of the customers or
subscribers of the Business for the purpose of competing with
Buyer or any of its members in the Business.
8
-149-
(b) Offer, sell, license, lease, facilitate or promote the use of any
products or services presently provided or being developed by
Seller in competition with Buyer or any of its affiliates in the
Business anywhere within those territories in the United States
of America in which Seller was conducting the Business on the
date of this Agreement.
(c) Compete with Buyer or any of its affiliates in the business of
delivering or publishing over the Internet real-time weather
graphics, interactive flight planners or airport databases.
If any court having jurisdiction at any time hereafter shall hold any of such
restrictive covenants to be unenforceable or unreasonable as to its scope,
territory, or period of time, and such court in its judgment or decree shall
declare or determine the scope, territory, or period of time which such court
deems to be reasonable, then such scope, territory or period of time, as the
case may be, shall be deemed automatically to have been reduced to that declared
or determined to be reasonable by such court. Notwithstanding the foregoing, if
any clause or provision of this paragraph shall be unenforceable, then such
clause or provision shall be deemed to be deleted from this paragraph, but every
other clause and provision shall continue in full force and effect. These
covenants are an integral part of the asset purchase transaction contemplated by
this Agreement and Buyer would not have entered into this Agreement in the
absence of such covenants. Seller and the Stockholder acknowledge that the
agreements contained in this paragraph are reasonable and necessary to protect
the Business being purchased by Buyer and that any breach thereof will result in
irreparable injury to Buyer for which Buyer has no adequate remedy at law.
Seller and the Stockholder therefore agree that, in the event either of them
breaches any of the agreements contained in this paragraph, Buyer shall be
authorized and entitled to seek from any court of competent jurisdiction (i) a
temporary restraining order, (ii) preliminary and permanent injunctive relief,
(iii) an equitable accounting of all profits or benefits arising out of such
breach, and (iv) direct, incidental, and consequential damages resulting from
such breach. Such rights or remedies shall be cumulative and in addition to all
other rights or remedies to which Buyer may be entitled.
16. Entire Agreement. This document constitutes the entire agreement of
the parties with respect to the subject matter hereof and may not be modified,
amended, or terminated except by a written agreement specifically referring to
this Agreement and signed by all of the parties hereto.
17. Binding Agreement. This Agreement shall be binding upon and inure
to the benefit of the parties hereto and their respective heirs, legal
representatives, successors and assigns.
18. Further Instruments. The parties hereto shall execute and deliver
such additional instruments and documents as may be reasonably requested by any
of them in order to carry out the purposes and intent of this Agreement and to
fulfill their respective obligations.
19. Governing Law. This agreement shall be construed in accordance with
the laws of the State of Georgia.
9
-150-
20. Severability. In the event that one or more of the provisions
contained in this Agreement shall for any reason be held invalid, illegal or
unenforceable in any respect, such invalidity, illegality or unenforceability
shall not affect any of the other provisions contained in this Agreement, which
provisions shall remain in full force and effect.
21. Counterparts. This Agreement may be executed in one or more
counterparts and by the different parties hereto in separate counterparts, each
of which shall be deemed an original but all of which together shall constitute
one and the same instrument.
22. Schedules and Exhibits. All references to Schedules and Exhibits
herein, unless otherwise stated, means the schedules and exhibits attached to
this Agreement which are hereby incorporated by reference.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the day and year first above written.
DATA TRANSMISSION NETWORK
CORPORATION, a Delaware corporation
By:/s/ Xxxx X. Xxxxx
-------------------------
Xxxx X. Xxxxx, President
FLIGHTBRIEF ONLINE SERVICE, INC.,
a Georgia corporation
By:/s/ Xxxxx X. Xxxxx
-----------------------------
Xxxxx X. Xxxxx, President
10
-151-
SCHEDULE 1
List of Certain Assets
Tangible Personal Property
xxxx.xxxxxxx.xxx
VA Linux StartX-MP
single 450 MHz PIII
256 Meg memory, two 128 meg modules
Jaton 4mb PCI video card
40x CD-ROM
Keyboard and mouse
RedHat v6, RedHat Secure Web Server
xxxxxxxxx.xxxxxxx.xxx
Sun SparcStation 20
50 MHZ
128 MB RAM
1 GB HD
1 GB External HD
Tape Back-up
CD-ROM Drive
3.5" Floppy Drive
xxxxxxxxxx.xxxxxxx.xxx
Sun XxxxxXxxxxxx 00
00 XXX
000 XX XXX
0 XX HD
CD-ROM Drive
3.5" Floppy Drive
Computer Software
In-house e-commerce credit billing software.
11
-152-
SCHEDULE 2
List of Seller's Subscriptions
"The reporting person agrees to furnish supplementally a copy of this omitted
schedule to the Securities and Exchange Commission upon request."
12
-153-
SCHEDULE 3
Allocation of Acquisition Consideration
Computer equipment.......................... $8,000.00
The noncompete agreements
of Seller and the Stockholder
referred to in Paragraph 15 of
the Asset Purchase Agreement................$20,000.00
Subscriber list,
FlightBrief Name,
Goodwill........................Final Settlement Price minus items listed above.
13
-154-
EXHIBIT A
GENERAL XXXX OF SALE AND ASSIGNMENT
KNOW ALL MEN BY THESE PRESENTS, that FlightBrief Online Service, Inc.,
a Georgia corporation (the "Seller"), pursuant to and in consideration of the
terms and conditions of the Asset Purchase Agreement dated November 11, 1999
(the "Asset Purchase Agreement") among Seller, Xxxxx X. Xxxxx and Data
Transmission Network Corporation, a Delaware corporation ("Buyer"), and in
consideration of the sum of One Dollar ($1.00) and other good and valuable
consideration, the receipt of which is hereby acknowledged, has sold, granted,
assigned, conveyed, transferred and set over to, and by these presents does
sell, grant, assign, convey, transfer and set over to Buyer, its successors and
assigns, all of Seller's right, title and interest in and to the "Assets" as
such term is defined in Section 1 of the Asset Purchase Agreement, and all
rights (whether at common law or otherwise), claims, and causes of action of
Seller arising out of transactions occurring on or prior to the date hereof in
connection with the Assets irrespective of the time or date on which any such
right, claim, or cause of action may arise or accrue.
TO HAVE AND TO HOLD, the same unto Buyer, its successors and assigns
forever.
Seller hereby represents and warrants to Buyer that it has good and
marketable title to the Assets, free and clear of all liens and encumbrances,
except as otherwise disclosed in the Asset Purchase Agreement.
Seller, for itself and its successors and assigns, covenants and agrees
with Buyer to warrant and defend the sale of the Assets hereby sold to Buyer,
its successors and assigns, against the lawful claims and demands of all
persons, except as set forth in the Asset Purchase Agreement, and agrees to take
all steps necessary to put Buyer, its successors and assigns, in actual
possession and operating control of the Assets.
IN WITNESS WHEREOF, Seller has caused this General Xxxx of Sale and
Assignment to be executed as of the 11th day of November, 1999.
FLIGHTBRIEF ONLINE SERVICE, INC., a
Georgia corporation
By:/s/ Xxxxx X. Xxxxx
----------------------------
Xxxxx X. Xxxxx
Title: President
14
-155-
EXHIBIT B
Form of Registrant Name Change Agreement
Incorporated herein by this reference is the form of
Registrant Name Change Agreement Version 3.0 which is
currently in effect for Network Solutions, Inc.
15
-156-
EXHIBIT C
ASSIGNMENT OF TRADEMARKS
THIS ASSIGNMENT is made this 11th day of November, 1999, by FLIGHTBRIEF
ONLINE SERVICE, INC., a Georgia corporation ("Assignor"), of 0000 Xxxxxxxxxx
Xxxxx, Xxxxxxxx, Xxxxxxx 00000, to DATA TRANSMISSION NETWORK CORPORATION, a
Delaware corporation ("Assignee"), of 0000 Xxxx Xxxxx Xxxx, Xxxxx 000, Xxxxx,
Xxxxxxxx 00000.
RECITALS:
A. Assignor is the owner of various trademarks and service marks, and
registrations and applications for registration therefor, if any, used in
connection with its business (collectively, the "Marks").
B. Assignee is acquiring Assignor's business and in connection
therewith all of Assignor's right, title and interest in and to the Marks and
the registrations and applications for registration therefor, including without
limitation the Marks listed on Exhibit A. If Assignor has filed intent-to-use
applications for any of the Marks and has not yet filed a statement of use
thereof, Assignor confirms that Assignee is the successor to the business of the
Assignor within the meaning of 15 U.S.C. 1060.
NOW THEREFORE, for valuable consideration, receipt of which is hereby
acknowledged:
Assignor hereby assigns to Assignee all of Assignor's right, title and
interest in and to the Marks, together with all of the goodwill of the business
in connection with which the Marks are used and which is symbolized by the
Marks, all registrations and applications for registration of the Marks,
including without limitation the above identified registrations and applications
for registration therefor, and the right to recover for past infringement of the
Marks.
FLIGHTBRIEF ONLINE SERVICE, INC.
a Georgia Corporation
By: /s/ Xxxxx X. Xxxxx
-----------------------------
Xxxxx X. Xxxxx, President
16
-157-
STATE OF ____________ )
) ss
COUNTY OF __________ )
On this day of _________, 1999, before me appeared Xxxxx X. Xxxxx,
President of FlightBrief Online Service, Inc., a Georgia corporation, the
Assignor, who acknowledged that he signed the foregoing instrument voluntarily
on behalf of such company.
-------------------------
Notary Public
[Notary Seal]
17
-158-
EXHIBIT A
TO ASSIGNMENT OF TRADEMARKS
BY FLIGHTBRIEF ONLINE SERVICE, INC. TO
DATA TRANSMISSION NETWORK CORPORATION
SCHEDULE OF TRADEMARKS
"The reporting person agrees to furnish supplementally a copy of this
omitted schedule to the Securities and Exchange Commission upon request."
18
-159-
