SETTLEMENT AGREEMENT
EXHIBIT
10.1
THIS AGREEMENT, effective as
of the date of the last signature affixed below (“Effective Date”), is made by
and between Cobra Oil & Gas Corporation, a Texas corporation having a
principal place of business at 0000 Xxxx Xxxx., Xxxxxxx Xxxxx, Xxxxx 00000
(“Cobra Corporation”), and Cobra Oil & Gas Company, a Nevada corporation
having a principal place of business at 0000 Xxxx Xxxx Xxxxx, Xxxxx 000,
Xxxxxxx, Xxxxx 00000 (“Cobra Company”). The foregoing parties are
referred to individually as a “Party” and collectively as the
“Parties.”
WHEREAS, Cobra Corporation has
alleged that Cobra Company’s use of “Cobra,” “Cobra Oil & Gas,” and/or
“Cobra Oil & Gas Company” violates Cobra Corporation’s rights in and to the
names and marks “Cobra,” “Cobra Oil & Gas,” and/or “Cobra Oil & Gas
Corporation” (all of the foregoing collectively the “Cobra Marks”), and Cobra
Corporation has filed suit against Cobra Company in the United States District
Court for the Southern District of Texas, Houston Division, Case No.
4:09-cv-02601, styled Cobra
Oil & Gas Corporation v. Cobra Oil & Gas Company
(“Lawsuit”). The foregoing is collectively referred to as the
“Dispute”; and
WHEREAS, the Parties have
agreed that it is in their respective best interests to resolve the Dispute and
thereby save the time, money, and resources which would have been expended on
the Dispute.
NOW THEREFORE, for good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Parties agree as follows:
1. CESSATION
OF USE
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1.1.
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Within
sixty (60) days of the Effective Date (“Initial Period”), Cobra Company,
its employees, officers, affiliates, and related companies shall cease all
use of: (a) the terms COBRA, COBRA OIL & GAS, and/or COBRA OIL &
GAS COMPANY, alone or in combination with other terms, logos, marks,
and/or designs; and (b) colorable imitations of such terms, which include
but are not limited to the Cobra Marks. Items (a) and (b) are
collectively referred to as the “Prohibited Marks”. Cobra
Company shall voluntarily surrender and or cancel all registrations and
pending applications for the Prohibited Marks before any and all
jurisdictions, including domain name registrations, and shall not file or
re-file for any registrations or applications in the
future. The foregoing cessation of use of the Prohibited Marks
shall include but not be limited to use in advertising and investor
documentation, in Information Statements or other documents filed with the
SEC, signage, vehicles, or web pages, as part of a domain name, a business
or company name, or an email address, in metadata, and as ad words
or keywords.
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Should
Cobra Company be unable to change to a new name, and thus cease use of the
Prohibited Marks, within the Initial Period due to a delay caused by a material
request from the SEC or from NASDAQ, Cobra Company shall have
additional time beyond the Initial Period as reasonably necessary to cease use
of the Prohibited Marks, so long as it exercises good faith efforts to satisfy
the material request (“Grace Period”). Cobra Company agrees to notify
Cobra Corporation of its need and a reasonable estimate of time for the Grace
Period, along with details of its good faith efforts.
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1.2.
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Within
five (5) days of the end of the Initial Period or the Grace Period in
Section 1.1 whichever is later, Cobra Company shall destroy all items and
information, including but not limited to investor solicitations, business
cards, advertisements, and signage that contains any of the Prohibited
Marks, provided however, Cobra Company may retain in the ordinary course
of business its internal business records that may display the Prohibited
Marks.
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1.3.
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Within
ten (10) days of the end of the five (5) day period set forth in Section
1.2, Cobra Company shall certify to Cobra Corporation that it has fully
complied with the terms and conditions of Sections 1.1 and
1.2. Such certification shall be delivered to Cobra Corporation
at the address set forth herein, be in writing, and be under the penalties
of 18 U.S.C. § 1001 and 28 U.S.C. §
1746.
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2. THE
COBRA MARKS
Cobra Company agrees that it shall not
seek to cancel, challenge, or otherwise interfere with Cobra Corporation’s
rights in or use of the Cobra Marks or any similar Cobra xxxx or
name.
3. DISMISSAL
OF SUIT
Within
five (5) business days of receiving the certification described in Section 1.3,
Cobra Corporation shall dismiss the Lawsuit with prejudice, and Cobra Company
agrees to execute all papers necessary to effect this result. In any
suit, action, or proceeding asserting a claim or cause of action arising out of,
in connection with, or related to this Agreement and/or the Dispute, the Parties
irrevocably submit to the exclusive jurisdiction of the United States District
Court for the Northern District of Texas, Wichita Falls Division, and/or the
courts of the State of Texas within Wichita County, Texas; agree that venue and
jurisdiction are proper in the foregoing; and hereby waive any right to
challenge or change the foregoing.
4. COSTS,
FEES, AND EXPENSES
Each Party shall each bear its own
costs, fees (including attorneys’ fees), and expenses incurred in connection
with the Dispute, the negotiation and drafting of this Agreement, and dismissal
of the Lawsuit.
5. RELEASES
The Parties and each of them, for
themselves, their predecessors, successors and assigns, which they have or may
have, do hereby absolutely, fully and forever release and discharge each other
for all claims and damages based on or arising out of the
Dispute. The Parties understand and acknowledge that such releases
are the result of a compromised settlement and shall never at any time for any
purpose be considered as an admission of liability or responsibility on the part
of any Party to this Agreement.
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6. NOTICES
All such
notices required herein shall be sent to the following by overnight courier
and/or facsimile only:
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6.1.
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To
Cobra Corporation:
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Xxxx X.
Xxxxxxx, President
Cobra Oil
& Gas Corporation
0000 Xxxx
Xxxx.
Xxxxxxx
Xxxxx, Xxxxx 00000-0000
Fax: (000) 000-0000
With copies to:
X. Xxxxx
Xxxxxxx
Xxxxxxxx,
Xxxxxxx & Xxxx
0000 Xxxx
Xxxx., Xxxxx 000
Xxxxxxx
Xxxxx, Xxxxx 00000
Fax:
(000) 000-0000
Xxxxxxx Xxxxxx Xxxxxxx,
Esq.
Xxxxxx Xxxx, P.C.
Granite
Park Three
0000
Xxxxxxx Xxxxxxx, Xxxxx 000
Xxxxx,
Xxxxx 00000-0000
Fax:
(000) 000-0000
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6.2.
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To
Cobra Company:
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Massimiliano Pozzoni,
President
Cobra Oil & Gas Company (or new
name)
0000 Xxxx Xxxx Xxxxx, Xxxxx
000
Xxxxxxx, Xxxxx 00000
Fax: (000)
000-0000
7. SUCCESSORS
AND ASSIGNS
The
provisions of this Agreement shall be deemed to obligate, extend to and inure to
the benefit of the legal successors, assigns and transferees of each of the
Parties hereto who may assume any and all of the above-described capacities
subsequent to the execution and Effective Date of this Agreement.
8. REPRESENTATION
All
Parties hereto do hereby acknowledge and agree that they have been represented
by independent counsel of their own choice, or given reasonable and sufficient
opportunity to be represented by independent counsel of their own choice,
throughout all negotiations which preceded the execution of this Agreement, and
that they have executed this Agreement with the consent and upon advice of such
independent counsel or assuming the risk of not having such
counsel.
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9.
ENTIRE AGREEMENT
This
Agreement contains the entire agreement and understanding between the Parties
concerning the Dispute, and supersedes and replaces all prior negotiations and
proposed agreements, written and oral, regarding the Dispute. Each
Party hereto acknowledges that neither the other Party nor any agent or attorney
of the other Party has made any compromise, settlement, promise, representation,
or warranty whatsoever, express or implied, not contained herein concerning the
subject matter hereof or concerning subject matter outside of the Dispute and
acknowledges that it is has not executed this Agreement in reliance upon any
such compromise, settlement, promise, representation or warranty not contained
herein.
10. POWER
TO EXECUTE
The
Parties by their signatures below each warrants that it has the right, power,
and capacity to execute, deliver and perform this Agreement and to consummate
the transactions contemplated hereby without the consent or action of any other
person or entity.
11. MODIFICATIONS
Neither
this Agreement nor any provision of this Agreement can be modified or waived in
any way, except by an agreement in writing signed by each of the Parties hereto
consenting to such modification or waiver.
12. GOVERNING
LAW
This
Agreement is made and entered into in the State of Texas and shall be in all
respects interpreted, enforced and governed under the laws of that state,
exclusive of choice of laws or conflicts of law provisions.
13. IRREPARABLE
HARM
Cobra
Company acknowledges and agrees that, if it fails to comply with any of the
terms or conditions of this Agreement, then (a) Cobra Corporation will suffer
irreparable injury; (b) remedies available at law, such as monetary damages, are
inadequate to compensate Cobra Corporation for that injury; (c) considering the
balance of hardships, a remedy in equity is warranted; and (d) the public
interest would not be disserved by entry of temporary, preliminary, and
permanent injunctive relief against Cobra Company. Accordingly, Cobra
Company agrees that Cobra Corporation shall be entitled to temporary,
preliminary, and permanent injunctive relief to ensure compliance with or
prevent breaches of this Agreement. The foregoing shall not affect
any other remedy that Cobra Corporation may have for non-compliance with or
breach of a term or provision of this Agreement.
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14. SEVERANCE
The
Parties and signatories hereto, and each of them, agree and acknowledge that if
any portion of this Agreement is declared invalid or unenforceable by final
judgment of any court of competent jurisdiction, such determination shall not
affect the balance of this Agreement, which shall remain in full force and
effect, as such invalid portion shall be deemed severed.
IN WITNESS WHEREOF, each of
the Parties hereto has caused this Agreement to be executed by its duly
authorized representative:
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COBRA
OIL & GAS CORPORATION
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COBRA
OIL & GAS COMPANY
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By:
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/s/ Xxxxxx W, Xxxxxxx
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By:
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/s/ Massimiliano
Pozzoni
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Printed
Name:
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Xxxxxx X. Xxxxxxx
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Printed
Name:
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Xxx Xxxxxxx
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Title:
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Vice President
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Title:
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President
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Date:
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September 8, 2009
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Date:
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September 4,
2009
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