EXHIBIT 10.4
ASSIGNMENT OF TRADEMARK
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This ASSIGNMENT OF TRADEMARK is made as of this 14th day of
January,
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 SQUEEZE BEVERAGES, INC., a
Massachusetts corporation with its
principal place of business at Deer Ridge
Run, P.O. Box 641, Williamstown, MA 01267
("Assignor").
RECITALS
WHEREAS Assignor hereby agrees to sell, transfer and assign the
Mark
"SQUEEZE" for carbonated flavored soft
drinks and seltzer water, 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 "SQUEEZE"
for
carbonated flavored soft drinks and seltzer
water, 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
"SQUEEZE" for carbonated flavored soft
drinks and seltzer water, 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. 74/489089 for the Mark "SQUEEZE"
for "carbonated flavored soft drinks and
seltzer water", now pending before the
United States Patent and Trademark Office,
(ii) Registration No. 1,955,605 for
the Mark "SQUEEZE" for "carbonated flavored
soft drinks and seltzer water", 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.
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 Massachusetts
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 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
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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 October
31, 1937, to indentify carbonated
flavored soft drinks and seltzer water.
SECTION 2.10 CONSENT TO REGISTRATION. Assignor acknowledges that
it
entered into a Consent to Registration on
January 17, 1995 with Crystal Geyser
Water Company and this agreement is valid
and in full force and effect. A copy
of the Consent to Registration Agreement is
attached hereto and made a part
hereof as Exhibit "B".
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 PURCHASE. At Closing, Assignee agrees to deliver
four
hundred thousand (400,000) shares of
restricted common stock ("Restricted
Stock") of Xstream Beverage Group, Inc.
("XSBG"), par value 0.001, to Assignor
in exchange for the assignment of the
Marks, that are the subject of this
Agreement. Assignor agrees to execute the
Investment Letter, a copy of which is
attached hereto and made a part hereof as
Exhibit "C".
SECTION 4.2 PIGGY-BACK REGISTRATION. XSBG agrees to grant
"piggy-back"
registration rights in connection with the
Restricted Stock referenced in
Section 4.1 above as follows: If at any
time or from time to time, XSBG shall
decide to register any of its common stock,
either for its own account or the
account of a security holder or holders
(except in an S-8 registration), in a
registration statement covering the sale of
XSBG's common stock under the
Securities Act of 1933, as amended
