ASSIGNMENT OF TRADEMARK-SQUEEZE

 

 

                                                                    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