INTELLECTUAL PROPERTY ASSETS PURCHASE AGREEMENT
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Exhibit
2.1
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This
INTELLECTUAL PROPERTY ASSETS PURCHASE AGREEMENT (“AGREEMENT”), dated as of May
22, 2009, is among Peace Mountain Natural Beverages Corp. ("PEACE MOUNTAIN"), a
Massachusetts corporation with a business address of X.X. Xxx 0000, Xxxxxxxxxxx,
Xxxxxxxxxxxxx 00000, Xxxx Xxxxx Xxxxx, an individual with an address at 00
Xxxxxx Xxxxx, Xxxxxxxxxx, Xxxxxxxxxxxxx 00000 (“PRINCIPAL” and together with
PEACE MOUNTAIN, “SELLER”) and Skinny Nutritional Corporation ("SNC"), a Nevada
Corporation with a principal place of business at 0 Xxxx Xxxxx Xxxx, Xxxxx 000,
Xxxx Xxxxxx, Xxxxxxxxxxxx 00000 (collectively, “the parties”).
WHEREAS,
PEACE MOUNTAIN owns proprietary and trade secret information (including, without
limitation, know-how), good-will, copyrights, Internet domain names, trademarks,
and trade names (collectively, “IP ASSETS”) relating to the design, development,
manufacture, distribution, and sale of beverage products sold under, among other
designations, Skinny Water, Diet Water, Skinny Tea, Skinny Juice, Skinny Shake,
and the “Skinny” brand (collectively, “SKINNY PRODUCTS”);
WHEREAS,
the IP ASSETS include, but are not limited to, the registered trademarks,
trademark applications, and common law trademarks (collectively “trademarks”)
identified and set forth on Schedule A and
all foreign rights throughout the world corresponding to the trademarks listed
on Schedule A;
WHEREAS,
the IP ASSETS also include, but are not limited to, the registered Internet
domain names identified and set forth on Schedule B;
and
WHEREAS,
PEACE MOUNTAIN has agreed to sell and assign and SNC has agreed to purchase from
PEACE MOUNTAIN all of its right, title, and interest in, to, and under the IP
ASSETS subject to the following terms and conditions:
TERMS AND
CONDITIONS
NOW,
THEREFORE, in consideration of the above premises and the covenants and
agreements contained in this AGREEMENT, the parties agree as
follows:
1.0 SALE
AND PURCHASE
1.1 Upon
the terms and subject to the conditions set forth in this AGREEMENT, including
the representations and warranties set forth herein, SNC hereby agrees to
purchase from PEACE MOUNTAIN, and PEACE MOUNTAIN hereby agrees to sell, assign,
convey, transfer, and deliver to SNC, as of the Closing (as defined below), the
IP ASSETS.
2.0 PURCHASE
PRICE AND PAYMENT BY SNC
2.1 The
total purchase price of the IP ASSETS being sold under this AGREEMENT shall
be:
2
(a) Seven
Hundred Fifty Thousand Dollars ($750,000.00) paid as follows: (i) Three Hundred
Seventy Five Thousand Dollars ($375,000.00) shall be paid at Closing by check or
wire transfer to PEACE MOUNTAIN (the “First Payment”), and (ii) the remaining
Three Hundred Seventy Five Thousand Dollars ($375,000.00), less the Credit as
defined below, shall be paid over the period of one (1) year commencing May 1,
2010, in four (4) equal quarterly payments (each, a “Quarterly Payment”); it
being understood that with respect to the Quarterly Payments in clause (ii)
above, SNC shall be entitled to offset amounts previously paid for the first
calendar quarter of 2009 under that certain Definitive License and Distribution
Agreement dated August 1, 2004, as amended, in the amount of Thirty Seven
Thousand Four Hundred Thirty Eight Dollars and 56 Cents ($37,438.56) (the
“Credit”), such that each Quarterly Payment shall be in the amount of $84,390.36
(i.e., $375,000 - $37,438.56 = $337,561.44 divided by 4 = $84,390.36), with the
first of such Quarterly Payments made on May 1, 2010, and subsequent Quarterly
Payments made on August 1, 2010, November 1, 2010, and February 1, 2011; it
being further understood that in the event SNC shall fail to make a payment when
due, such due and unpaid amount shall accrue interest at an annual rate of 10%
until such time as such unpaid amount is paid; and it being finally understood
that SNC shall have the right to prepay any or all of the outstanding amounts at
any time without premium or penalty; and
(b) SNC
shall pay directly to the Law Offices of Xxxxx X. Xxxxx LLC the sum of
Twenty-Five Thousand Dollars ($25,000.00) at Closing for past legal services
billed to PEACE MOUNTAIN related to the SKINNY PRODUCTS.
3.0 NO
ASSUMPTION OF LIABILITIES; CLOSING; TERMINATION
3.1 It
is expressly understood and agreed that SNC does not assume or agree under this
AGREEMENT or otherwise to pay, perform, or discharge any debt, obligation, tax,
or liability, known or unknown, contingent or otherwise, of PEACE MOUNTAIN of
any kind or nature whatsoever including, without limitation, those pertaining to
the IP ASSETS or any income or franchise tax obligations of PEACE
MOUNTAIN.
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3.2 The
closing of the transactions contemplated under this AGREEMENT (the “Closing”)
shall occur promptly upon receipt of board approval of the issuance of the
Warrant under that certain Consulting Agreement dated as of June 1, 2009 between
SNC and the Principal for the issuance of such Warrant and board and shareholder
approval of the increase in the number of authorized shares of Common Stock of
SNC (such board and shareholder approval, the “SNC Approvals”). In
the event that the SNC Approvals are not received on or before July 15, 2009 (or
such later date as may be mutually agreed upon in writing by the parties), then
this AGREEMENT shall be terminated and neither party shall have any liability or
obligation to the other parties hereunder, and the Closing shall not be deemed
to have occurred.
4.0 REPRESENTATIONS
AND WARRANTIES OF PEACE MOUNTAIN
PEACE
MOUNTAIN represents, warrants, and covenants to SNC as of the date of this
AGREEMENT and as of the date of Closing as follows:
4.1 Corporate
Existence. PEACE MOUNTAIN is a corporation duly organized,
validly existing, and in good standing under the laws of the Commonwealth of
Massachusetts. PEACE MOUNTAIN has all requisite corporate power and
authority to own its properties and carry on its business operate its
business.
4.2 Authorization
of Transaction. PEACE MOUNTAIN has full corporate power and
authority and legal right to enter into this AGREEMENT and to consummate the
transactions provided for in this AGREEMENT. All corporate actions on
the part of PEACE MOUNTAIN necessary to approve the transactions contemplated by
this AGREEMENT have been duly taken as required by applicable law and any
applicable agreements. This AGREEMENT has been, and the other
agreements, documents, and instruments required to be delivered by PEACE
MOUNTAIN in accordance with the provisions of this AGREEMENT will be, duly
executed and delivered by PEACE MOUNTAIN and will constitute, or will constitute
when delivered, the valid and binding agreement and obligations of PEACE
MOUNTAIN enforceable against PEACE MOUNTAIN in accordance with their respective
terms.
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4.3 Absence
of Violation or Conflicts/Consents. The execution and delivery
of this AGREEMENT, and the consummation of the transactions contemplated by this
AGREEMENT, by PEACE MOUNTAIN do not and will not violate, conflict with, or
result in the breach of any term, condition, or provision of, or require the
consent of any other person under (a) any existing law, ordinance, or
governmental rule or regulation to which PEACE MOUNTAIN is subject, (b) any
judgment, order, writ, injunction, decree, or award of any court, arbitrator, or
governmental or regulatory official, body, or authority which is applicable to
PEACE MOUNTAIN, (c) the charter, bylaws or other organizational documents of
PEACE MOUNTAIN or any securities issued by PEACE MOUNTAIN, or (d) any mortgage,
indenture, or other material instrument, document or agreement, oral or written,
to which PEACE MOUNTAIN is a party, by which PEACE MOUNTAIN may have rights or
by which any of the IP ASSETS may be bound or affected, or which would create a
lien, claim, or encumbrance on the IP ASSETS as a result thereof. No
authorization, approval, or consent of, and no registration or filing with, any
governmental or regulatory official, body, or authority is required in
connection with the execution, delivery, or performance of this AGREEMENT by
PEACE MOUNTAIN, except as expressly provided herein.
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4.4 Title to
IP ASSETS. PEACE MOUNTAIN has good, valid, and marketable
title to all of the IP ASSETS, and has exclusive ownership thereof, free and
clear of all attachments, oppositions to registration, adverse claims,
covenants, mortgages, liens, pledges, security interests, charges, claims,
restrictions, and other encumbrances and defects of title of any nature
whatsoever. No patents have been issued to, and no patent
applications have been filed or are contemplated to be filed by, PEACE MOUNTAIN
anywhere in the world relating to the SKINNY PRODUCTS. All trademarks
owned by PEACE MOUNTAIN anywhere in the world relating to the SKINNY PRODUCTS
are listed on Schedule A. All Internet domain names owned by PEACE
MOUNTAIN relating to the SKINNY PRODUCTS are listed on Schedule
B. The IP ASSETS constitute all of the intellectual property rights
associated with the SKINNY PRODUCTS. The IP ASSETS, and any part
thereof, in addition to any use thereof, do not require the consent of any other
person and do not infringe any patent, copyright, trade secret, trademark or
other proprietary right of any third party. No other person has an
interest in or right or license to use, or the right to license others to use,
the IP ASSETS and PEACE MOUNTAIN has not received any notice of any such
interest or right. There are no claims, oppositions to registration,
or demands of any other person pertaining to the IP ASSETS and no proceedings
have been instituted, or are pending or threatened which challenge the rights of
PEACE MOUNTAIN in respect thereof. None of the IP ASSETS is subject
to any outstanding order, decree, opposition to registration, judgment, or
stipulation, or is being infringed by others. No proceeding charging
PEACE MOUNTAIN with infringement of any adversely held IP ASSET has been served
or has been filed or is threatened to be filed.
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4.5 Litigation. Other
than the arbitration between the parties captioned “Peace Mountain
Natural Beverages Corp. v. Skinny Nutritional Corporation, AAA Case No.
11133E0067208,” PEACE MOUNTAIN has no knowledge that any litigation,
including any arbitration, investigation, or other proceeding of or before any
court, arbitrator, or governmental or regulatory official, body, or authority,
is pending or threatened against PEACE MOUNTAIN which relates to the IP ASSETS
or the transactions contemplated by this AGREEMENT, nor does PEACE MOUNTAIN know
of any reasonably likely basis for any such litigation, arbitration,
investigation, or proceeding, the result of which could materially and adversely
affect PEACE MOUNTAIN, the IP ASSETS, or the transactions contemplated by this
AGREEMENT. PEACE MOUNTAIN is not a party to or subject to the
provisions of any judgment, order, writ, injunction, decree, or award of any
court, arbitrator, or governmental or regulatory official, body, or
authority.
5.0 REPRESENTATIONS
AND WARRANTIES OF PRINCIPAL
PRINCIPAL
represents, warrants, and covenants to SNC as of the date of this AGREEMENT and
as of the date of Closing as follows:
5.1 Ownership
of Peace Mountain. PRINCIPAL is the sole owner of record of
all issued and outstanding shares of capital stock of PEACE
MOUNTAIN.
5.2 Legal
Capacity. PRINCIPAL has full legal right, capacity, power, and
authority to enter into this AGREEMENT.
5.3 Absence
of Violation or Conflicts/Consents. The execution and delivery
of this AGREEMENT, and the consummation of the transactions contemplated by this
AGREEMENT, by PRINCIPAL do not and will not violate, conflict with, or result in
the breach of any term, condition, or provision of, or require the consent of
any other person under (a) any existing law, ordinance, or governmental rule or
regulation to which PRINCIPAL is subject, (b) any judgment, order, writ,
injunction, decree, or award of any court, arbitrator, or governmental or
regulatory official, body, or authority which is applicable to PRINCIPAL, (c)
any mortgage, indenture, or other material instrument, document or agreement,
oral or written, to which PRINCIPAL is a party or by which PRINCIPAL may have
rights. No authorization, approval, or consent of, and no
registration or filing with, any governmental or regulatory official, body, or
authority is required in connection with the execution, delivery, or performance
of this AGREEMENT by PRINCIPAL, except as expressly provided
herein.
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5.4 Title to
IP ASSETS. PEACE MOUNTAIN is the sole and exclusive owner of
the IP ASSETS, and PRINCIPAL has no ownership rights or interests
therein. PRINCIPAL hereby forever irrevocably quitclaims and
disclaims any interest PRINCIPAL may have in the IP ASSETS. No
patents have been issued to, and no patent applications have been filed or are
contemplated to be filed by, PEACE MOUNTAIN anywhere in the world relating to
the SKINNY PRODUCTS. All trademarks owned by PEACE MOUNTAIN anywhere
in the world relating to the SKINNY PRODUCTS are listed on Schedule
A. All Internet domain names owned by PEACE MOUNTAIN relating to the
SKINNY PRODUCTS are listed on Schedule B. The IP ASSETS constitute
all of the intellectual property rights associated with the SKINNY
PRODUCTS. The IP ASSETS, and any part thereof, in addition to any use
thereof, do not require the consent of any other person and do not infringe any
patent, copyright, trade secret, trademark or other proprietary right of any
third party. No other person has an interest in or right or license
to use, or the right to license others to use, the IP ASSETS and PRINCIPAL has
not received any notice of any such interest or right. There are no
claims, oppositions to registration, or demands of any other person pertaining
to the IP ASSETS and no proceedings have been instituted, or are pending or
threatened which challenge the rights of PEACE MOUNTAIN in respect
thereof. None of the IP ASSETS is subject to any outstanding order,
decree, opposition to registration, judgment, or stipulation, or is being
infringed by others. No proceeding charging PEACE MOUNTAIN with
infringement of any adversely held IP ASSET has been served or has been filed or
is threatened to be filed.
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6.0 REPRESENTATIONS
AND WARRANTIES OF SNC
SNC
represents, warrants, and covenants to PEACE MOUNTAIN as of the date hereof and
as of the date of Closing as follows:
6.1 Organization. SNC
is a corporation duly organized, validly existing, and in good standing under
the laws of the State of Nevada and has all requisite corporate power and
authority to own its properties and carry on its business.
6.2 Authority. Subject
to the SNC Approvals, SNC shall have full power and authority and legal right to
enter into this AGREEMENT and to consummate the transactions provided for in
this AGREEMENT. Upon the SNC Approvals, all actions on the part of
SNC necessary to approve the transactions contemplated by this AGREEMENT shall
have been duly taken as required by applicable law and any applicable
agreements, and this AGREEMENT and the other agreements, documents, and
instruments required to be delivered by SNC in accordance with the provisions of
this AGREEMENT shall have been duly executed by SNC and will constitute the
valid and binding agreement of SNC, enforceable against it in accordance with
their respective terms.
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6.3 Absence
of Violations or Conflicts. Except for the SNC Approvals, the
execution and delivery of this AGREEMENT and the consummation and performance by
SNC of the transactions contemplated in this AGREEMENT (a) will not violate,
conflict with, or result in the breach of any term, condition, or provision of,
or require the consent of any other person to (i) to SNC’s knowledge, any
existing law, ordinance, or governmental rule or regulation to which SNC is
subject, (ii) any judgment, order, writ, injunction, decree, or award of any
court, arbitrator, or governmental or regulatory official, body, or authority
which is applicable to SNC, (iii) the charter, bylaws, or any other
organizational documents of SNC or any securities issued by SNC, or (iv) any
mortgage, indenture, or other material instrument, document, or agreement, oral
or written, to which SNC is a party, by which SNC may have rights or by which
any of its properties or assets may be bound or affected. Except for
authorizations, approvals, consents, registrations, and filings that have either
been obtained, registered, or filed, no authorization, approval, or consent of,
and no registration or filing with, any governmental or regulatory official,
body, or authority is required in connection with the execution, delivery, or
performance of this AGREEMENT by SNC, except as expressly provided
herein.
7.0 OTHER
AGREEMENTS
7.1 Expenses. Except
as otherwise provided in this AGREEMENT, each party shall pay its own expenses
and costs incurred in connection with the negotiation and consummation of, and
the transactions contemplated by, this AGREEMENT.
7.2 Public
Disclosure. Following the execution and delivery of this
AGREEMENT, neither SELLER nor SNC shall make any public statement or release
concerning this AGREEMENT or the transactions contemplated by this AGREEMENT (i)
without the prior written consent of the other parties, such consent which will
not be unreasonably withheld, or (ii) except to the extent required by
law.
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7.3 Confidentiality. Following the
execution and delivery of this AGREEMENT, SELLER shall keep confidential and
shall not disclose to any person, corporation, firm, or entity, any
confidential, proprietary, or financial information concerning the IP ASSETS, or
the economic terms of this AGREEMENT, except as required by law and except with
respect to information that is or becomes in the public domain (through no
disclosure by SELLER).
7.4 Post-Closing
Obligations. On and after Closing, SELLER, at SNC’s expense,
shall take such other actions and shall execute and deliver such other
instruments and documents as SNC may reasonably request to effectuate the
transfer of the IP ASSETS to SNC hereunder (including, without limitation, the
transfer of the ownership of the registered Internet domain names identified and
set forth on Schedule B from
PEACE MOUNTAIN to SNC within 10 days of Closing). On and after
Closing, SELLER also shall abandon the registration of the Peace Mountain Skinny
Water trademark, U.S. Serial No. 75/808,924 (filed 9/27/99) with U.S.
Registration No. 2,565,774 (issued 4/30/02), shall cause to be filed a
cancellation of such registration in respect of the same, and shall cease all
future use of, and shall not register, such trademark and any other trademark or
tradename using the word “Skinny.”
8.0 DELIVERIES
8.1 Deliveries
by PEACE MOUNTAIN. PEACE MOUNTAIN shall deliver the following
to SNC at Closing:
(a) A
trademark assignment in form reasonably acceptable to SNC (the “Trademark Assignment”),
executed by PEACE MOUNTAIN;
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(b) A
corporate resolution authorizing the appropriate officers of PEACE MOUNTAIN to
execute, deliver, and consummate the transactions contemplated under this
transaction; and
(c) Such
other instruments and documents as SNC may reasonably request.
8.2 Deliveries
by SNC. SNC shall deliver to PEACE MOUNTAIN the
following at Closing:
(a) The
payment to PEACE MOUNTAIN in the amount of Three Hundred Seventy-Five Thousand
Dollars ($375,000) by check or wire transfer ;
(b) A
check for Twenty-Five Thousand Dollars ($25,000.00) payable to Law Offices of
Xxxxx X. Xxxxx LLC;
(c) The
Trademark Assignment as executed by SNC;
(d) A
consent of the board of SNC to execute, deliver, and consummate the transactions
contemplated by this AGREEMENT; and
(e) Such
other instruments and documents as PEACE MOUNTAIN may reasonably
request.
9.0 SURVIVAL OF REPRESENTATIONS
AND WARRANTIES; INDEMNIFICATION
9.1 Survival. The
parties agree that the representations, warranties, and covenants contained in
this AGREEMENT or in any document, certificate, instrument, schedule, or exhibit
delivered pursuant to this AGREEMENT shall survive the execution, delivery, and
Closing of this AGREEMENT.
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9.2 Indemnification
by SELLER. SELLER, jointly and severally, shall indemnify,
hold harmless, and defend SNC and its shareholders, officers, agents, directors,
and employees (collectively, the “SNC Indemnified Parties”)
from and against all claims, damages, losses, liabilities, costs, and expenses
(including, without limitation, reasonable attorneys fees) (collectively, the
“Damages”) incurred or suffered by the SNC Indemnified Parties that result from,
relate to, or arise out of:
(a) any
misrepresentation, breach of representation or warranty, or non-fulfillment of
any agreement or covenant on the part of either SELLER under this AGREEMENT or
from any misrepresentation in or omission from any certificate, schedule,
statement, document, or instrument furnished to SNC pursuant to, or in
connection with the negotiation, execution, or performance of, this AGREEMENT;
and
(b) any
and all liabilities and obligations of PEACE MOUNTAIN, whether accruing prior to
or after the date hereof.
9.3 Indemnification
by SNC. SNC shall indemnify, hold harmless, and defend PEACE
MOUNTAIN and its shareholders, officers, agents, directors, and employees
(collectively, the “PEACE MOUNTAIN Indemnified Parties”)
from and against all Damages incurred or suffered by the PEACE MOUNTAIN
Indemnified Parties that result from, relate to, or arise out of:
(a) any
misrepresentation, breach of representation or warranty, or non-fulfillment of
any agreement or covenant on the part of SNC under this AGREEMENT or from any
misrepresentation in or omission from any certificate, schedule, statement,
document, or instrument furnished to PEACE MOUNTAIN pursuant to, or in
connection with the negotiation, execution, or performance of, this AGREEMENT;
and
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(b) any
and all liabilities and obligations of SNC, whether accruing prior to or after
the date hereof; and
(c) the
ownership and use of the IP ASSETS after the Closing.
9.4 Damages. For
the purposes of this AGREEMENT, the term “Damages” shall include any and all
losses including any judgments, damages, fines, penalties, costs, or expenses
(including reasonable attorneys’ fees) actually paid or incurred by an
indemnified party.
10.0 MISCELLANEOUS
PROVISIONS.
10.1 Entire
Agreement. This AGREEMENT, together with that certain
Settlement Agreement of even date herewith and Consulting Agreement dated as of
June 1, 2009, constitutes the entire agreement between the parties with respect
to the transactions contemplated and supersedes all prior agreements and
undertakings relating to the subject matter. This AGREEMENT may be
amended, modified, and supplemented only by a written instrument duly signed by
the parties.
10.2 Further
Assurances; Further Cooperation. Upon the execution of this
AGREEMENT and thereafter, each party shall do such things as may be reasonably
requested by the other party, at the expense of such requesting party, in order
more effectively to consummate or document the transactions contemplated by this
AGREEMENT.
10.3 Captions;
Definitions. The titles or captions of articles, sections, and
subsections contained in this AGREEMENT are inserted only as a matter of
convenience and for reference and in no way define, limit, extend, or describe
the scope of this AGREEMENT or the intent of any provision. The
parties agree to all definitions in this AGREEMENT and in the other introductory
language to this AGREEMENT.
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10.4 Notices. All
notices, requests, demands, and other communications required under this
AGREEMENT shall be in writing and shall be deemed to have been duly given or
made if delivered personally or sent by registered or certified mail, postage
prepaid, as follows:
TO
SNC:
Xxxxxx X.
Xxxxxx
Skinny
Nutritional Corporation
0 Xxxx
Xxxxx Xxxx
Xxxxx
000
Xxxx
Xxxxxx, XX 00000
With
copies to:
Xxxxxxx
X. Xxxxx, Esq.
Xxxxxxxx
Ronon Xxxxxxx & Xxxxx LLP
0000 Xxx
Xxxxxxxx Xxxxxx
Xxxxxxxxxxxx,
XX 00000
TO PEACE
MOUNTAIN:
Xxxx
Xxxxx Xxxxx
Peace
Mountain Natural Beverage Corporation
00 Xxxxxx
Xxxxx
Xxxxxxxxxx,
XX 00000-0000
With
copies to:
Xxxxx X.
Xxxxx Esq.
Law
Offices of Xxxxx X. Xxxxx LLC
X.X. Xxx
00
Xxxxxxxxxxx,
XX 00000
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Either
party may change the address to which such communications are to be sent to it
by giving ten (10) days’ written notice of change of address to the other party
in the manner above provided for giving notice. Notices will be
considered delivered on the date of personal delivery or on the date of deposit
in the United States mail in the manner above provided for giving notice by
mail.
10.5 Controlling
Law; Amendment; Waiver.
(a) This
AGREEMENT shall be construed and enforced in accordance with the laws of the
Commonwealth of Massachusetts, without regard to conflict of laws
principles.
(b) This
AGREEMENT may not be altered or amended except in a writing signed by SNC and
SELLER.
(c) The
failure of any party to this AGREEMENT at any time to require performance of any
provisions of this AGREEMENT shall in no manner affect the right to enforce the
same. No waiver by either party of any condition, or of the breach of
any term, provision, warranty, representation, agreement, or covenant contained
in this AGREEMENT, whether by conduct or otherwise, in any one or more instances
shall be deemed or construed as a further or continuing waiver of any such
condition or breach or a waiver of any other condition or of the breach of any
other terms, provision, warranty, representation, agreement, or
covenant.
10.6 Representations
and Warranties. The respective representations and warranties
of each party to this AGREEMENT shall not be deemed to be waived or otherwise
affected by any investigation made by the other party, unless otherwise
specifically provided in this AGREEMENT.
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10.7 Counterparts.
This AGREEMENT may be executed in counterparts, each of which shall be deemed an
original, and all of which together shall constitute one and the same
document. Signatures of the parties transmitted by facsimile or
electronic mail shall be deemed to be original signatures for all
purposes.
10.8 Severability. The
invalidity of any provision of this AGREEMENT or portion of a provision shall
not affect the validity of any other provision of this AGREEMENT or the
remaining portion of the applicable provision.
[THIS
SPACE INTENTIONALLY LEFT BLANK]
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IN
WITNESS WHEREOF, the parties duly execute and deliver this AGREEMENT as of the
date first written above.
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By: /s/ Xxxx Xxxxx
Xxxxx
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Name: Xxxx
Xxxxx
Xxxxx
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Title: President
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XXXX XXXXX
XXXXX
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/s/ Xxxx Xxxxx
Xxxxx
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SKINNY
NUTRITIONAL
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CORPORATION
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By: /s/ Xxxxxx X.
Xxxxxx
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Name: Xxxxxx
X.
Xxxxxx
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Title: Pres. and
CEO
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SCHEDULE
A
U.S.
TRADEMARKS
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Xxxx
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Goods/First Use Date
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U.S.
Serial No./
Filing Date
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U.S.
Reg. No./
Issue Date
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U.S.
Status
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SKINNY SHAKE
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Dietary
meal replacement/ 3/19/03
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76/192,470
01/10/01
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2,743,268
07/29/03
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Granted
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SKINNY
WATER
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Nutriceuticals;
Isotonic drinks/
01/02/01
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76/008,776
03/24/00
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2,557,075
04/02/02
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Granted
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SKINNY
TEA
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Tea/
08/01/02
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76/187,804
12/28/00
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2,657,057
12/03/02
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Granted
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SKINNY
JUICE
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Nutriceuticals;
Isotonic drinks/
08/02/02
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76/208,424
02/12/01
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2,657,083
12/03/02
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Granted
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DIET
WATER
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Bottled
drinking water/
01/10/01
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76/192,471
01/10/01
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2,576,866
06/04/02
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Granted
(Supp.)
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SKINNY
COLA
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Colas/
07/27/02
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76/173,878
12/01/00
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2,650,352
11/12/02
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Granted
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SKINNY
SHOT
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Ready
to drink soft drinks/
Intent
to Use
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77/294,601
10/02/07
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Pending
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SLENDER
WATER
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Nutriceuticals;
Isotonic drinks/
Intent
to Use
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78/614,310
04/21/05
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Allowed
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SKINNY
JAVA
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Dietary
food supplement;
Drinks/Intent
to Use
|
78/734,027
10/15/2005
|
Allowed
|
|||||
|
SKINNY
SMOOTHIE
|
Nutriceuticals;
beverages; Shakes; Smoothie drinks/ Intent to Use
|
77/145,760
04/01/2007
|
Allowed
|
|||||
|
SKINNY
SODA
|
Nutriceuticals;
Soda pops/ Intent to Use
|
77/125,090
03/07/2007
|
Allowed
|
|||||
|
SKINNY
SNACKS
|
Nutriceuticals
in ready-to-drink or concentrate form for use as a dietary
supplement
|
77/185,768
05/21/07
|
Allowed
|
|||||
|
SKINNY
CEREAL
|
Breakfast
Cereal, snack food
|
77/185,768
11/11/07
|
Pending
|
|||||
|
SKINNY
CAPS
|
Dietary
and nutritional supplements
|
77/100,213
02/06/07
|
3,316,575
10/23/07
|
Granted
|
||||
|
“Get
Started With Skinny”
|
Common
Law
|
|||||||
|
“Skinny
Energy”
|
Common
Law
|
|||||||
|
“Get
Skinny”
|
Common
Law
|
19
FOREIGN
TRADEMARKS
|
Xxxx/Country
|
Country
|
Serial No./
Filing Date
|
Reg. No./
Issue Date
|
Status
|
||||
|
SKINNY
WATER
European
Community
|
Nutriceuticals;
Isotonic drinks
|
OHIM
857352
09/08/05
|
EU
857352
01/31/05
|
Granted
|
||||
|
SKINNY
WATER
Australia
|
Nutriceuticals;
Isotonic drinks
|
OHIM
857352
09/08/05
|
Pending
|
|||||
|
SKINNY
WATER
Mexico
|
Int’l
Class 029
|
909834
|
Pending
|
|||||
|
SKINNY
WATER
Mexico
|
Int’l
Class 032
|
908136
|
Pending
|
20
SCHEDULE
B
Internet
Domain Names
|
xxxxxxxxxxxxxxxxx.xxx
|
xxxxxxxxxxxxxxxxx.xxx
|
xxxxxxxxxxx.xxx
|
|
xxxxxxxxxxxxxxxx.xxx
|
xxxxxxxxxxxxxxxxxx.xxx
|
xxxxxxxxxxxxxxxxx.xxx
|
|
xxxxxxxxxxxxxx.xxx
|
xxxxxx-xxxxxx.xxx
|
xxxxxxxxxxx.xx.xxx
|
|
xxxxxx-xxxx.xxx
|
xxxxxx-xxxxxxx.xxx
|
xxxxxxxxxxxxxxxxxx.xxx
|
|
xxxxxx-xxxx.xxx
|
xxxxxx-xxxxx.xxx
|
xxxxxxxxxxx.xxxx
|
|
xxxxxx-xxx.xxx
|
xxxxxx-xxxxxx.xxx
|
xxxxxx-xxxxxx.xxx
|
|
xxxxxx-xxxxxxx.xxx
|
xxxxxx-xxxxxxx.xxx
|
xxxxxxxxxxx.xxx
|
|
xxxxxx-xxxxx.xxx
|
xxxxxx-xxxxxx.xxx
|
xxxxxx-xxxxxxx.xxx
|
|
xxxxxx-xxxxx.xxx
|
xxxxxx-xxxxx.xxx
|
xxxxxxxxxxx.xx.xxx
|
|
xxxxxx-xxxxxxx.xxx
|
xxxxxx-xxxxxx.xxx
|
xxxxxx-xxxxx.xxx
|
|
xxxxxxxxxxx.xxx
|
xxxxxxxxxx.xxx
|
xxxxxxxxxxxxxxxxx.xxx
|
|
xxxxxxxxxx.xxx
|
xxxxxxxxxxxxx.xxx
|
xxxxxx-xxxxxx.xxx
|
|
xxxxxxxxxxx.xxx
|
xxxxxxxxxxxxxxx.xxx
|
xxxxxxxxxxxxx.xxx
|
|
xxxxxxxxxxxx.xxx
|
xxxxxxxxxxxx.xxx
|
xxxxxx-xxxxxxx.xxx
|
|
xxxxxxxxxxxxxxxx.xxx
|
xxxxxxxxxx.xxx
|
|
|
xxxxxxxxxxxx.xxx
|
Xxxxxxxxxxxxx.xxx
|
|
|
xxxxxxxxxx.xxx
|
xxxxxxxxxxxxxxxxxxx.xxx
|
|
|
xxxxxxxxxxxx.xxx
|
xxxxxxxxx.xxx
|
|
|
xxxxxxxxxxx.xxx
|
xxxxxxxxxxx.xxx
|
|
|
xxxxxxxxxxxx.xxx
|
xxxxxxxxxxxx.xxx
|
|
|
xxxxxxxxxx.xxx
|
xxxxxxx00.xxx
|
|
|
xxxxxxxxx.xxx
|
xxxxxxxxxx.xxx
|
|
|
xxxxxxxxxx.xxx
|
xxxxxxxxxx.xxxx
|
|
|
xxxxxxxxxx.xxxx
|
xxxxxxxxxx.xxx
|
|
|
xxxxxxxxxx.xxx
|
xxxxxxxxxx.xx
|
|
|
xxxxxxxxxxx.xxx
|
xxxxxxxxx.xxx
|
|
|
xxxxxxxxx.xxxx
|
xxxxxxxxx.xxx
|
|
|
xxxxxxxxx.xx
|
xxxxxxxxxx.xxx
|
|
|
xxxxxxxxxxx.xxx
|
xxxxxxxxxxxxxxx.xxx
|
|
|
xxxxxxxxxxxx.xxx
|
xxxxxxxxxxxx.xxx
|
|
|
xxxxxxxxxxx.xxx
|
xxxxxxxx-xxx.xxx
|
|
|
xxxxxxxxxxxx.xxx
|
Xxxxxxxxxxxxx.xxx
|
|
|
xxxxxxxxxxx.xxx
|
xxxxxxxxxxx.xxx
|
|
|
xxxxxxxx-xxx-xx.xxx
|
Xxxxxxxxxxxxx.xxx
|
|
|
xxxxxxxxxxxxx.xxx
|
xxxxxxxxxxx.xxx
|
|
|
xxxxxxxxxx.xxx
|
xxxxxxxxxxxxxx.xxx
|
|
|
xxxxxxxxxxx.xxx
|
xxxxxxxxxxxx.xxx
|
|
|
Xxxxxxxxxx.xxx
|
xxxxxxxxxxx.xxx
|
|
|
xxxxxxxxxxxxx.xxx
|
xxxxxxxxxxxxxxx.xxx
|
|
|
xxxxxxxxxxxx.xxx
|
xxxxxxxxxxxx.xxx
|
|
|
xxxxxxxxx.xxx
|
xxxxxxxxxx.xxx
|
|
|
xxxxxxxxxxxx.xxx
|
xxxxxxxxxxx-xxxxxxxxxxx-xxxxxxxxx-xx-xxx-xxxxxxxxxx.xxx
|
21
