EXHIBIT 10.2
ASSIGNMENT OF TRADEMARK
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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
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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
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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
provisions of or the purpose of this
Assignment or to substantiate Assignee's
use and ownership of the Marks.
ARTICLE IV
PURCHASE PRICE
SECTION 4.1 CONSIDERATION
A. at the Closing, the Assignee shall pay the Assignor Twenty
Five Thousand Dollars ($25,000) in
cash;
B. on the first day of each calendar quarter or the next
business day if such date is not a business
day and continuing for thr
