ASSIGNMENT OF TRADE MAUI JUICE

 

 

                                                                    EXHIBIT 10.2

 

                             ASSIGNMENT OF TRADEMARK

                             -----------------------

 

         This ASSIGNMENT OF TRADEMARK is made as of this 1st day of March, 2004

("Effective Date"), by and between XSTREAM BRANDS, INC., a Florida corporation

with its principal place of business at 4800 N.W. 15th Avenue, Bay 1-A, Ft.

Lauderdale, FL 33308 ("Assignee") and THE MAUI JUICE COMPANY, INC., a Hawaiian

corporation with mailing address at P.O. Box 1087, Makawao, Hawaii 96798

("Assignor").

 

                                    RECITALS

 

         WHEREAS Assignor hereby agrees to sell, transfer and assign the Mark

"MAUI JUICE COMPANY" for juice drinks, and related common law rights to that

mark, subject to the terms and conditions of this Agreement.

 

         WHEREAS Assignee hereby agrees to purchase the Mark "MAUI JUICE

COMPANY" for juice drinks, subject to the terms and conditions of this

Agreement.

 

         NOW, THEREFORE, for the good and valuable consideration, the receipt

and sufficiency of which is hereby acknowledged and described more particularly

herein, Assignor and Assignee, intending to be legally bound, agree as follows:

 

         INCORPORATION OF RECITALS The recitals set forth above are expressly

incorporated herein by reference in their entireties to form part of the terms

and conditions of this Agreement.

 

                                   ARTICLE I

                            ASSIGNMENT OF TRADEMARKS

 

         SECTION 1.1 ASSIGNMENT. Assignor desires to transfer to Assignee all of

his rights and interests in the Mark "MAUI JUICE COMPANY" for juice drinks,

including all variations thereof such as any spelling, formatives, phonetic

variations and stylized designs of the same, and including, but not limited to

(i) Application Serial No. 75/320,247 for the Mark "MAUI JUICE COMPANY" for

"juice drinks", filed before the United States Patent and Trademark Office on

July 7 1986, (ii) Registration No. 2,258,542 for the Mark "MAUI JUICE COMPANY"

for "juice drinks", now registered in the United States Patent and Trademark

Office, and (iii) all goodwill associated therewith (the "Marks"). Assignor has

agreed to sell and has hereby sold, assigned, and transferred unto Assignee,

including its successors, assigns, heirs and administrators, all of Assignor's

individual and jointly held rights, title and interests in and to the Marks and

the application thereof, including any confusingly similar marks and the right

to sue for damages for all past infringements occurring prior to the effective

date of this Assignment, and to any and all marks and registrations which may

evolve therefrom; and including all goodwill associated with the Marks

transferred hereby. Assignee hereby accepts the assignment of the Marks from

Assignor.

 

         Assignor also assigns all of its individual and jointly held rights,

title and interests in and to the Marks in all foreign countries, and all

applications for registration of the Marks in foreign

 

                                       1

<PAGE>

 

countries and any registration(s) which may evolve therefrom, including the

right to claim International Convention priority.

 

         SECTION 1.2 ABBREVIATED ASSIGNMENT EXHIBIT. Assignor shall execute the

abbreviated assignment document shown in Exhibit A to this Agreement, which will

permit Assignee to request recordal of the assignments made herein without

making of record the entire Agreement between the parties.

 

         SECTION 1.3 WAIVER. Assignor shall not, at any time, contest the

validity of the Marks, or take any action that would impair the value of the

Marks. Without limitation of the foregoing, Assignor expressly represents and

warrants that it shall not resume use of the Marks, or any word or symbol that

is confusingly similar to the Marks or a colorable imitation thereof.

 

         SECTION 1.4 TRANSFERABILITY. In the event that Assignee shall transfer

the Marks to an entity other than a subsidiary or affiliated company of Xstream

Beverage Group, Inc. ("the Transfer") then Assignee shall, within 90 days

following the effective date of such Transfer pay Assignor any and all amounts

owing to Assignor under this Assignment of Trademark Agreement and shall on the

same date pay any and all amounts owing to Lawrence Lassek under the Business

Consulting Agreement between Lawrence Lassek and Beverage Network of Hawaii, Inc

dated March 1st 2004.

 

                                   ARTICLE II

                         REPRESENTATIONS AND WARRANTIES

 

         SECTION 2.1 TITLE TO ASSETS. Assignor has full power and authority to

own the Marks and Application ("Assets") and good and marketable title to the

Assets covered by this Agreement. Assignor's title to the Assets are free and

clear of any liens, encumbrances, or other defects.

 

         SECTION 2.2 AUTHORITY TO SELL. Assignor has full power and authority to

own the Assets and has complied with all the requirements of any applicable law

of the States of Florida and Hawaii relative to the sale of the Assets described

in this Agreement and of the consents and approvals that may be required by law

or by agreements to which Assignors may be a party will be obtained.

 

         SECTION 2.3 LIABILITIES. There are no other liabilities to which

Assignor or its Assets are subject.

 

         SECTION 2.4 LITIGATION. There is now no litigation pending against

either Assignor of which it or its officers are aware that will, might, or could

affect consummation of the transfer of title of the Assets in good and

marketable condition to Assignee and Assignor is not aware of any threatened

litigation which may affect the consummation of the conveyance described in this

Agreement.

 

     SECTION 2.5 CORPORATE ACTION. All necessary corporate action has been taken

by Assignor to authorize the execution, delivery and performance of this

Assignment, which has

 

                                       2

<PAGE>

 

been duly and validly authorized, executed and delivered by Assignor and

constitutes the valid and binding obligation of Assignor enforceable against

them.

 

         SECTION 2.6 CONSENTS. All consents and approval required for

transferring the Assets hereunder have been obtained or will be obtained. No

consent of any court, governmental agency or other public authority is required

as a condition to the enforceability of this assignment.

 

         SECTION 2.7 NO ENCUMBRANCE. Assignor acknowledges that the Assets being

transferred are not encumbered by any liens or the subject matter of any known

or anticipated litigation. Assignor further acknowledges and agrees that the

consideration paid by Assignee for the Assets is fair and adequate

consideration.

 

         SECTION 2.8 NO INFRINGEMENT. Assignor has not received any notice that

it is infringing upon the research, development, processes, methods, techniques,

inventions, know how, patents, patent rights, trade name, trademarks and service

marks of any other party.

 

         SECTION 2.9 CONTINUED USE. Assignor represents that it, together with

and through its predecessors-in-interest, has adopted and continuously used the

Marks, since at least as early as July 7 1986, to identify juice drinks.

 

                                  ARTICLE III

                         FURTHER ACTIONS BY THE ASSIGNOR

 

         SECTION 3.1 ACTIONS BY ASSIGNOR. Assignor, without the payment of any

additional consideration, agrees to execute any other documents or to provide

any further materials or documentation necessary in order to fulfill the

prov