ASSET
PURCHASE AGREEMENT


 


This
Asset Purchase Agreement (this “Agreement”) is entered into as of May 18, 2017 (the “Effective Date”),
by and between PMC Holdings, Inc., a Delaware corporation, and Premier Micronutrient Corporation, a Delaware corporation (collectively,
“PMC” or “Seller”), and New Age Beverages Corporation, a Washington corporation (“NBEV”
or “Buyer”), (Buyer
together with Seller constitute the “Parties” and each individually a “Party”).


 


WHEREAS,
Seller wishes to sell to Buyer and Buyer wishes to purchase from Seller, certain assets of Seller, used in connection with Seller’s
business on the terms and conditions contained herein.


 


WHEREAS,
in connection with such sale, the Buyer will assume certain obligations and liabilities of Seller subject to the terms and conditions
contained herein.


 


NOW,
THEREFORE, in consideration of the covenants, premises, representations and warranties set forth herein, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:


 


ARTICLE
I.


PURCHASE
AND SALE OF ASSETS


 


SECTION
1.1 Sale and Purchase of Purchased Assets. 


 


(a)
Purchased Assets. Subject to the terms and conditions of this Agreement, at the Closing, Seller shall sell, convey, assign,
transfer and deliver to Buyer, and Buyer shall purchase, free and clear of all Encumbrances other than Permitted Encumbrances,
all right, title and interest in and to all of Seller’s Assets, other than the Excluded Assets, to the extent used in, related
to, or necessary for, the operation of the Business as conducted immediately prior to the Closing, (collectively, the “Purchased
Assets”). Without limiting the generality of the foregoing, the Purchased Assets shall include all of the following
Assets of Seller existing on the Closing Date:


 


(i)
all Contracts, including all license and other agreements, contemplated or entered into (including, but not limited to, any sales
of existing products and planned products or contracts, including contracts with Bergamet and Celvitali) by Seller prior to the
date of this Agreement to the extent that Buyer notifies Seller in writing not less than five (5) Business Days after the Effective
Date that such Contracts shall be Purchased Assets (collectively, the “Assumed Contracts”);


 


(ii)
all inventory (including raw materials, supplies, containers, labels, packing and shipping materials, work in process and finished
goods across all product types) (collectively, the “Inventory”);


 


(iii)
all systems, tools, equipment, content management systems, databases and other Tangible Personal Property;


 




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(iv)
all of Seller’s intellectual property (“IP”), including but not limited to all patents and patents pending listed
in Exhibit A, and any contemplated future IP considered prior to the Effective Date;


 


(v)
all studies, both completed and in-progress, clinical trials and any results, and all cooperative research and development agreements;


 


(vi)
all web domains, trademarks, brand names, and other archived digital assets;


 


(vii)
copies of all books and records including, but not limited to, books of account, financial and accounting records (including all
records related to accounts receivable, general ledgers, purchasing, billing and payment), Tax Returns and Tax records, correspondence
with Governmental Authorities, sales, marketing, promotional and advertising materials and records, strategic plans, files relating
to Seller’s IP and all other documentation, forms, records (including support records and audit records), procedures, policy
documents, manuals, customer materials, system specifications, scripts, logs, databases and other materials of any kind, whether
in print or electronic form, but excluding the books and records related exclusively to the Excluded Assets and the Excluded Liabilities;


 


(viii)
all customer lists, user lists, goodwill and other intangible Assets;


 


(ix)
all membership interests, stock or other securities in any joint ventures or other subsidiaries, security deposits, refunds, deposits
and prepaid expenses of the Seller and all vendor rebate accounts and prospective rebates, whether soft dollar or hard dollar
(other than those constituting Excluded Assets);


 


(x)
all accounts receivable (other than those constituting Excluded Assets); and


 


(xi)
all prepaid expenses.


 


SECTION
1.2 Excluded Assets. Notwithstanding any other provision of this Agreement to the contrary, the following Assets of Seller
existing on the Closing Date (collectively, the “Excluded Assets”) are not part of the sale and purchase contemplated
hereunder, are excluded from the Purchased Assets and shall remain the property of Seller after the Closing:


 


(i)
all minute books, seals, equity record books and equity transfer records of Seller and the books and records of Seller;


 


(ii)
all personnel records and other records that Seller is required by Legal Requirement to retain in its possession;


 


(iii)
all rights and interests under or in connection with, and any assets of, any of the Employee Plans maintained by Seller solely
for the benefit of its employees and any related trusts or funding vehicles;


 




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(iv)
all rights of Seller under this Agreement and the other Transaction Documents, including with respect to the NBEV Shares;


 


(v)
all rights, claims, and causes of action against third parties existing as of the Closing;


 


(vi)
all rights and claims under or with respect to Seller’s insurance policies;


 


(vii)
all cash and cash equivalents;


 


(viii)
all rights and obligations of Seller (including accounts receivables thereunder) under that certain Settlement Agreement between
Seller and Engage Global, Inc.


 


SECTION
1.3 Liabilities Assumed by Buyer. Upon the terms and subject to the conditions of this Agreement, at the Closing, the Buyer
will effective as of the Closing, assume and agree to duly and timely pay, perform and discharge the following liabilities (collectively,
the “Assumed Liabilities”):


 


(i)
the accounts payable of the Seller;


 


(ii)
accrued liabilities of the Seller; including the loan with Dr’s Haase and Erlich;


 


(iii)
obligations of the Seller with respect to any Purchased Asset, including any Contracts and Assumed Contracts; and


 


(iv)
all categories of liabilities set forth on the Balance Sheet other than Excluded Liabilities.


 


SECTION
1.4 Excluded Liabilities. Notwithstanding any provision of the Transaction Documents to the contrary, the Buyer will not accept,
acquire, assume or become liable to pay, perform or discharge, and the Assumed Liabilities will not include, the following liabilities
(the “Excluded Liabilities”):


 


(i)
all Liabilities for Taxes of Seller, other than as set forth in Section 1.3(iv) above;


 


(ii)
all Liabilities of Seller under Environmental Laws;


 


(iii)
all Liabilities of Seller and the ERISA Affiliates arising under, or with respect to, the Employee Plans;


 


(iv)
all Liabilities with respect to any current or former employee, director, member, manager, stockholder, partner, agent or independent
contractor of Seller, other than as set forth in Section 1.3(ii) and (iv) above;


 




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(v)
all Liabilities arising out of, or relating to, any conduct or alleged conduct of any employee or independent contractor of Seller;


 


(vi)
all Liabilities arising out of, or relating to, any Proceeding pending as of the Closing Date or any Proceeding commenced after
the Closing Date to the extent arising out of, or relating to, any act or omission of Seller or any event, circumstance, condition,
breach or default occurring on or prior to the Closing Date (other than those relating to any Purchased Assets);


 


(vii)
all Liabilities arising out of, or resulting from, Seller’s compliance or noncompliance with any Legal Requirement or Order
occurring on or prior to the Closing Date;


 


(viii)
all Liabilities of Seller to Seller’s stockholders or any Affiliate of any of Seller’s stockholders, originating prior
to Closing, or originating prior to or after Closing due to any acts or omissions of Seller;


 


(ix)
all Liabilities relating to, or resulting from, Seller’s IP to the extent arising on or prior to the Closing Date;


 


(x)
all Liabilities (the “First Bank Loan”) owed to First Bank in Nashville (“First Bank”), which Liabilities
will be satisfied and released as part of the Closing of this Agreement, in accordance with the provisions of Section 2.1(a) below;
and


 


(xi)
all Liabilities based upon Seller’s acts or omissions occurring after the Closing Date (other than those relating to the
Buyer’s ownership of the Purchased Assets).


 


SECTION
1.5 Contracts. Notwithstanding anything to the contrary in this Agreement, this Agreement shall not constitute an agreement
to assign or transfer any Assumed Contract if such assignment or transfer, or an attempt to make such an assignment or transfer,
without the consent of a third party would constitute a material breach or violation thereof or affect adversely the rights of
Buyer or Seller thereunder. To the extent that prior to the Closing Seller has not obtained any Consent required to assign or
transfer any Assumed Contract to Buyer, Seller shall use commercially reasonable efforts to obtain such Consent as promptly as
practicable thereafter. Until such Consent is obtained, Seller shall cooperate and shall cause its representatives to cooperate
with Buyer in any arrangement designed to provide Buyer with the interests, rights and benefits of Seller under such Assumed Contract
at Buyer’s sole cost and expense. Nothing in this paragraph shall be deemed to constitute an agreement to exclude from the
Purchased Assets any Assets set forth above in Section 1.1; provided, however, that Buyer shall be responsible for,
and shall promptly pay, (x) all costs and expenses of Seller to establish, implement, monitor, maintain, execute on, or carry
into effect any such arrangement (including any costs and expenses incurred in connection with enforcing rights under any such
Contract), which Seller shall not incur without Buyer’s prior written consent, and (y) all payment and other obligations
under such Contract (all of which shall constitute, and shall be deemed to be, Assumed Liabilities hereunder) to the same extent
as if such Contract had been assigned or transferred at Closing. The obligation of Seller to cooperate with Buyer set forth in
this Section 1.5 shall not require Seller to incur any expenses, liabilities or obligations or to provide any financial accommodation
or to remain secondarily or contingently liable for any liabilities or obligations under any applicable Contract.


 




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ARTICLE
II.





SALE
CONSIDERATION


 


SECTION
2.1 Consideration; Payment. In consideration of the sale to Buyer of the Purchased Assets, and for each other right acquired
by Buyer under this Agreement, Buyer shall:


 


(a)
at the Closing, issue to Seller, or its designees set forth on a notice delivered before Closing, One Million Two Hundred Thousand
(1,200,000) restricted shares (subject to adjustment as provided below) of Buyer’s common stock, $0.001 par value per share
(the “NBEV Shares”) (for clarification, Two Hundred Thousand ($200,000) of the NBEV Shares shall be issued
at Closing directly to First Bank in order to satisfy the First Bank Loan in full);


 


(b)
assume the Assumed Liabilities.


 


If
Buyer effects a stock split, reverse split or similar transaction before the Closing, the number of NBEV Shares to be issued to
Seller or its designees shall be adjusted accordingly.


 


ARTICLE
III.





CLOSING;
DELIVERIES


 


SECTION
3.1 Closing. The closing of the transactions (the “Closing”) will take place at the offices of New Age
Beverages Corporation, 1700 East 68th Ave, Denver, CO 80229 as soon as practicable following the date as of which all
of the conditions to Closing set forth in Article VIII are either satisfied or waived (other than conditions which, by their nature,
are to be satisfied on the Closing Date), or at such other time, date or place as the Parties may mutually agree upon in writing.
The date on which the Closing occurs is the “Closing Date”.


 


SECTION
3.2 Closing Deliveries.


 


(a)
Seller’s Deliveries to Buyer. At the Closing, Seller will duly execute, if applicable, and deliver to Buyer:


 


(i)
evidence that Seller has, at Seller’s expense and without cost or other adverse consequence to Buyer, sent all notices,
made all filings and obtained all Consents and Orders required to be sent, made and obtained by Seller in connection with the
execution and delivery of this Agreement and the consummation of the transactions contemplated hereby;


 


(ii)
the Bill of Sale, dated the Closing Date, in the form attached hereto as Exhibit B (the “Bill of Sale”)
executed by Seller; the executed counterpart signature page of Seller to the Assignment and Assumption Agreement, dated the Closing
Date, in the form attached hereto as Exhibit C (the “Assignment and Assumption Agreement”); and such
other bills of sale, assignments, deeds, certificates of title, documents and other instruments of transfer and conveyance as
may be reasonably requested by Buyer to effect the transactions contemplated by this Agreement, each in form and substance satisfactory
to Buyer and Seller, dated the Closing Date and duly executed by Seller;


 




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(iii)
a certificate, dated as of the Closing Date and executed by a manager or executive officer of Seller, certifying as to the fulfillment
of the conditions set forth in Sections 8.1(b) and (c);


 


(iv)
a certificate, dated as of the Closing Date and executed by a manager or secretary of Seller, certifying as to (A) (1) the certificate
of formation of the Seller and (2) certificates of good standing of the Seller of the jurisdiction of the Seller’s formation
certified not later than ten (10) days prior to the Closing Date by the Secretary of State of such jurisdiction, (B) resolutions
of the managers of the Seller authorizing and approving the execution, delivery and performance by the Seller of this Agreement
and any other Transaction Documents to which the Seller is a party, and (C) the incumbency and signatures of the managers and
officers of the Seller executing this Agreement and any Transaction Documents to which the Seller is a party;


 


(v)
a noncompetition agreement between Buyer and Seller, in the form attached hereto as Exhibits D, duly executed by Seller:


 


(vi)
any other documents as may be reasonably requested by Buyer to effect the transactions contemplated by this Agreement.


 


(b)
Buyer’s Deliveries. At the Closing, Buyer will duly execute, if applicable, and deliver to Seller:


 


(i)
The restricted NBEV Shares, issued electronically to an account or accounts in the name of Seller and its designees, including
First Bank;


 


(ii)
the executed counterpart signature page of Buyer to the Assignment and Assumption Agreement such other documents and other instruments
of assumption as may be reasonably requested by Seller to effect Buyer’s assumption of the Assumed Liabilities, each in
form and substance satisfactory to Buyer and Seller, dated the Closing Date and duly executed by Buyer;


 


(iii)
a certificate, dated as of the Closing Date and executed by an executive officer of Buyer, certifying as to the fulfillment of
the conditions set forth in Sections 8.2(b) and (c);


 


(iv)
a certificate, dated as of the Closing Date and executed by the secretary of Buyer, certifying as to (A) (1) the certificate of
incorporation and bylaws of the Buyer and (2) certificates of good standing of the Buyer of the jurisdiction of the Buyer’s
incorporation certified not later than ten (10) days prior to the Closing Date by the Secretary of State of such jurisdiction,
(B) resolutions of the board of directors of Buyer authorizing and approving the execution, delivery and performance by the Buyer
of this Agreement and any other Transaction Documents to which the Buyer is a party, and (C) the incumbency and signatures of
the officers of the buyer executing this Agreement and any Transaction Documents to which the Buyer is a party;


 


(v)
such other documents as may be reasonably requested by Seller to effect the transactions contemplated by this Agreement.


 




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ARTICLE
IV.





REPRESENTATIONS
AND WARRANTIES OF SELLERS


 


Except
as set forth in Disclosure Schedule, the Seller makes the following representations and warranties to Buyer, in each case, based
on and subject to Seller’s Knowledge.


 


SECTION
4.1 Authority, Power and Capacity. Seller has all requisite power and authority to execute and deliver this Agreement and
the other Transaction Documents to which Seller is or will be a party, to perform its obligations under this Agreement and such
other Transaction Documents and to consummate the transactions contemplated hereby and thereby. This Agreement and the other Transaction
Documents to which Seller is or will be a party have been duly authorized and when executed and delivered by Seller does or will
constitute the valid and binding agreement of Seller and is enforceable against Seller in accordance with their respective terms
(except as the enforcement of such obligations may be limited by applicable bankruptcy, insolvency, reorganization, liquidation,
receivership, moratorium and other laws relating to or affecting the enforcement of creditors’ rights generally and by general
principles of equity, regardless of whether such enforcement is considered in a proceeding in equity or at law).


 


SECTION
4.2 Conflicts; Consents.


 


(a)
The execution and delivery by Seller of this Agreement and the other Transaction Documents to which Seller is or will be a party
does not, and the consummation of the transactions contemplated hereby and thereby will not, violate any provision of the Organizational
Documents of Seller; result in the creation of any Encumbrance (other than Permitted Encumbrances) upon the Purchased Assets,
conflict with or result in a breach of, require a Consent, create an event of default (or event that, with the giving of notice
or lapse of time or both, would constitute an event of default) under, or give any person or entity the right to terminate, accelerate
or modify any obligation or benefit under, any contract, lease, permit or order to which Seller is a party or by which Seller
or the Purchased Assets are bound or affected.


 


(b)
The execution and delivery by Seller of this Agreement and the other Transaction Documents to which Seller is or will be a party
does not, and the consummation of the transactions contemplated hereby and thereby will not, result in a violation of, or require
the Consent, other action by, or registration, declaration or filing with or notice to, any Governmental Authority under any Legal
Requirement or Order applicable to Seller or the Purchased Assets. There is no pending or, to Seller’s Knowledge, threatened
Proceeding against Seller before any court or Governmental Authority, to restrain or prevent the consummation of the transactions
contemplated by this Agreement or that would reasonably be expected to affect the right of Buyer to own and control the Purchased
Assets or to use those assets in a manner consistent with Seller’s use of the Purchased Assets as of the Effective Date.


 


SECTION
4.3 Organization and Authority. Both Seller entities are C Corporations, duly organized, validly existing and in good standing
under the laws of the State of Delaware. Seller does not have any wholly owned subsidiaries (other than Premier Micronutrient
Corporation is a wholly owned subsidiary of PMC Holdings, Inc.). Seller has all requisite power and authority to own or lease
and operate its properties and assets. True and correct copies of Seller’s Organizational Documents, including any amendments
thereto, have been made available to Buyer.


 




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SECTION
4.4 Properties and Assets of Seller. Seller owns or otherwise has the right to use all of the Purchased Assets. Upon consummation
of the transactions, Buyer will acquire good and marketable title to the Purchased Assets (other than Purchased Assets to which
Seller does not have title), free and clear of all Encumbrances other than Permitted Encumbrances. The Purchased Assets constitute
all of the assets, properties and rights used or held for use by Seller in connection with the Business as conducted as of the
Effective Date.


 


SECTION
4.5 Balance Sheet. Attached hereto as Exhibit E is a true and correct copy of the balance sheet of the Seller as of
December 31, 2016 (the “Balance Sheet”). The Balance Sheet (x) is true, complete and correct in all material
respects and (y) was prepared in accordance with GAAP applied on a consistent basis in accordance with the past practice of Seller.
All liabilities of the Seller as of December 31, 2016, required to be reflected or reserved for by GAAP are fully reflected or
reserved for in the Balance Sheet.


 


SECTION
4.6 Compliance with laws; permits. Seller is not now, and has not since December 31, 2014, (a) been in material violation
of any provision of any Legal Requirement or Order applicable to Seller or the Purchased Assets, or (b) directly or indirectly
made any payment of funds to any person, or received or retained any funds from any person in violation of any applicable Legal
Requirement. Seller has (i) all permits required to conduct the Business as conducted by Seller as of the Effective Date; and
(ii) satisfied all material bonding requirements pertaining to its operations under applicable Legal Requirements. All such permits
may be transferred to Buyer in accordance with applicable Legal Requirements without violation of or loss of benefits under such
permits, without consent of or notice to any other person, including any Governmental Authority. Seller is not in material violation
of, nor is there a basis for the revocation or withdrawal of, any permit. Seller has performed all material obligations expressly
set forth in writing in each permit that by their terms are to be performed on or before the Closing Date.


 


SECTION
4.7 Litigation. There is no Proceeding pending or threatened against or affecting Seller, the Purchased Assets or the Business,
or relating to or involving the transactions contemplated by this Agreement, and Seller is not aware of any basis for any of the
foregoing. Seller is not in default with respect to any Order known to or served upon Seller.


 


SECTION
4.8 Tax Matters. Seller has timely filed all Tax Returns required of Seller under all Legal Requirements to which Seller is
subject. Seller has timely paid all Taxes required by Legal Requirements to be paid by Seller, whether or not shown on any Tax
Return. All such Tax Returns are accurate and complete in all material respects. No examination or audit of any Tax Return of
Seller is in progress. All deficiencies proposed as a result of any examination or audit of any Tax Return filed by Seller have
been paid or finally settled and no issue has been raised in any such examination or audit that, by application of similar principles,
reasonably would be expected to result in the assertion of a deficiency for any other year not so examined or audited. There are
no Encumbrances related to Taxes outstanding against any of the Purchased Assets, other than for Taxes not yet due and payable.


 




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SECTION
4.9 Licenses, Permits, Orders and Authorizations. No licenses, approvals, consents, ratifications, waivers, notices, registrations,
qualifications, designations, filings, franchises, authorizations, security clearances and other permits of, to, from or with,
any Governmental Authority are required under applicable Legal Requirements to permit Seller to own, operate, use and maintain
its Assets in the manner in they are operated and maintained and to conduct the Business, in each case as of the Effective Date.


 


SECTION
4.10 Absence of Certain Changes or Events. Seller has conducted its business only in the ordinary course of business and since
December 31, 2016 there has not been any material loss, damage or destruction to, or any material interruption in the use of any
of the Purchased Assets.


 


SECTION
4.11 Affiliated Transactions. No Affiliate of Seller is a party to any Assumed Contract or has a direct or indirect financial
interest in any Assumed Contract.


 


SECTION
4.12 Contracts. With respect to each Assumed Contract: (i) such Assumed Contract is legal, valid, binding, enforceable in
accordance with its terms and in full force and effect and, subject to obtaining any required consent, will continue to be legal,
valid, binding, enforceable by Buyer and in full force and effect on identical terms following the consummation of the transactions
contemplated hereby; (ii) such Assumed Contract is assignable without any Consent of any Person; (iii) Seller and the other parties
to such Assumed Contract are not in material breach or default and no event has occurred which with the passage of time or giving
of notice would constitute a material breach or default, or permit termination, modification, or acceleration, under such Assumed
Contract; and (iv) no party has repudiated or waived any provision of such Assumed Contract in writing.


 


SECTION
4.13 Employee Benefits Plans; ERISA. Neither Seller nor any ERISA Affiliate maintains or contributes to, or has any obligation
to contribute to, or has any Liability with respect to, any Employee Plan. Seller does not have any Liability with respect to
any Person under Title IV of ERISA. Neither Seller nor any ERISA Affiliate maintains, contributes to, or has any Liability for
any Employee Plan or any medical, health, life or other welfare benefits for present or future terminated employees or retirees.


 


SECTION
4.14 Environmental Matters. The operations of Seller are, and have been, in material compliance with all Environmental Laws.


 


SECTION
4.15 Insurance. Seller has paid or caused to be paid all of the premiums of all insurance policies (including policies providing
property, casualty, liability, errors and omissions and worker’s compensation coverage and bond and surety arrangements)
to which Seller is a party, a named insured or otherwise the beneficiary of coverage insurance policy, and has at all times operated
the Business in a manner so as to conform to the applicable provisions of such insurance policy. Seller has never made any claim
under any insurance policy.


 


SECTION
4.16 Employees. Seller is and has been in material compliance with all Legal Requirements related to employment and employment
practices, terms and conditions of employment and wages and hours, fair employment, safety, worker compensation, unemployment
and social security and with all Contracts relating to the employment of the employees of Seller. Each of the employees of Seller
is properly classified with respect to employment status for all purposes including, without limitation, employment, labor and
Tax purposes. No current or former independent contractor of Seller could be deemed to be a misclassified employee.


 




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SECTION
4.17 Brokers’ Fees. No broker, finder, investment banker or other Person is entitled to any brokerage fee, finders’
fee or other commission or payment in connection with the transactions contemplated by this Agreement based on arrangements made
by Seller or any of its Affiliates.


 


SECTION
4.18 Intellectual Property. 


 


(a)
Seller exclusively owns all right, title and interest in and to the Seller’s IP, free and clear of any Encumbrance. Seller
is not bound by, and no Seller’s IP is subject to, any contract, agreement or understanding containing any covenant or other
provision that in any way limits or restricts the ability of Seller to use, exploit, assert or enforce any Seller’s IP anywhere
in the world. All documents and instruments necessary to perfect the rights of Seller in the Seller’s IP have been validly
executed, delivered, and filed in a timely manner with the appropriate Governmental Authority.


 


(b)
Any license by which Seller has obtained rights in the Seller’s owned or licensed IP represents the complete agreement and
understanding between the Seller and the other respective party or parties thereto relating to the Seller’s Licensed or
Other IP that is the subject of such agreement, or Seller has provided Purchaser with access to all agreements and understandings
pertaining to the same.


 


(c)
No member, manager, officer or employee of Seller is (i) bound by or otherwise subject to any contract, agreement or understanding
restricting him or her from performing his or her duties for Seller or (ii) in material breach of any contract, agreement or understanding
with any former employer or other Person concerning Intellectual Property Rights or confidentiality due to his or her activities
as a member, manager, officer or employee of Seller.


 


(d)
Seller has taken all reasonable steps to maintain the confidentiality of all of its trade secrets and otherwise maintain its rights
in Seller’s IP.


 


(e)
Since Seller’s inception, Seller has not assigned or otherwise transferred ownership of, or agreed to assign or otherwise
transfer ownership of, any Intellectual Property Right to any other Person.


 


(f)
Each item of Seller’s IP that has been registered with the U.S Patent and Trademark Office or the U.S. Copyright Office
is and at all times has been in material compliance with all Legal Requirements and all filings, payments, and all other actions
required to be made or taken to maintain such item of Seller’s IP in full force and effect, including any and all priority
rights and foreign filing rights, have been made by the applicable deadline. No application for a patent or a copyright, mask
work or trademark registration or any other type of Seller’s IP filed by or on behalf of Seller has been abandoned, allowed
to lapse or rejected.


 




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(g)
No interference, opposition, reissue, reexamination or other Proceeding is or since the date of Seller’s inception has been
pending or, threatened, in which the scope, validity or enforceability of any Seller’s IP is being, has been, or would reasonably
be expected to be contested or challenged. There is no basis for a claim that any Seller’s IP is invalid or unenforceable
as a result of patent or copyright misuse or on any other grounds.


 


(h)
No Person has infringed, misappropriated or otherwise violated, and no Person is currently infringing, misappropriating or otherwise
violating, any Seller’s IP. Seller has never infringed (directly, contributorily, by inducement or otherwise), misappropriated
or otherwise violated or made unlawful use of any right of any other Person. Seller has never received any notice or other communication
(in writing or otherwise) relating to any actual, alleged or suspected infringement, misappropriation or violation of any intellectual
property rights of another Person. Except pursuant to the licenses under which Seller has acquired rights in Seller’s Licensed
IP, Seller is not bound by any contract, agreement or understanding to indemnify, defend, hold harmless or reimburse any other
Person with respect to, or otherwise assumed or agreed to discharge or otherwise take responsibility for, any existing or potential
Intellectual Property infringement, misappropriation or similar claim. No claim or Proceeding involving any Intellectual Property
or Intellectual Property Right licensed to the Seller is pending or has been threatened.


 


(i)
No software governed by a license commonly referred to as an open source, free software, copyleft or community source code license,
including the GNU General Public License or GNU Lesser General Public License is used in, incorporated into or integrated or bundled
with any Seller’s IP in a manner that obligates Seller to distribute or disclose the source code developed by Seller on
a royalty free basis.


 


(j)
No government funding, facility of a university, college, other educational institution or research center or funding from third
parties was used in the development of any Seller’s IP, and, no officer, employee or independent contractor of Seller who
was involved in, or who contributed to, the creation or development of any Seller’s IP, has performed services for the government,
university, college, or other educational institution or research center during a period of time during which such person was
also performing services for Seller.


 


SECTION
4.19 Accredited Investor. Except as disclosed by Seller to Buyer before Closing, Seller and each of its designees to whom
the NBEV Restricted Shares will be issued at Closing (i) is an “accredited investor” as defined in Regulation D promulgated
under the Securities Act and (ii) is acquiring the NBEV Restricted Shares to be issued at Closing without a view to, or for sale
in connection with, a public distribution in violation of the federal securities laws; provided however, that Seller and each
such other Person to whom NBEV Restricted Shares are issued reserves the right to resell or otherwise dispose of all or any of
such NBEV Restricted Shares pursuant to a registration statement or exemption under the Securities Act and any state law or regulations.
Seller acknowledges that the NBEV Restricted Shares to be issued pursuant to this Agreement are subject to Rule 144 regulations
and have not been registered under the Securities Act or any state securities laws, and may not be sold, offered for sale, pledged,
hypothecated or otherwise transferred in the absence of an effective registration statement under the Securities Act, or until
the holder thereof provides evidence satisfactory to Buyer (which, in the discretion of Buyer, may include an opinion of counsel
acceptable to Buyer) that such registration is not required and that the proposed transfer may be made without violation of the
Securities Act.


 




    	11 



    	 



    

 





 


ARTICLE
V.


REPRESENTATIONS
AND WARRANTIES OF BUYER


 


Buyer
makes the following representations and warranties to Seller.


 


SECTION
5.1 Authority, Power and Capacity. Buyer has all requisite power and authority to execute and deliver this Agreement and the
other Transaction Documents to which Buyer is or will be a party, to perform its obligations under this Agreement and such other
Transaction Documents and to consummate the transactions contemplated hereby and thereby. This Agreement and the other Transaction
Documents to which Buyer is or will be a party have been duly authorized and when executed and delivered by Buyer does or will
constitute the valid and binding agreement of Buyer and is enforceable against Buyer in accordance with their respective terms
(except as the enforcement of such obligations may be limited by applicable bankruptcy, insolvency, reorganization, liquidation,
receivership, moratorium and other laws relating to or affecting the enforcement of creditors’ rights generally and by general
principles of equity, regardless of whether such enforcement is considered in a proceeding in equity or at law).


 


SECTION
5.2 Conflicts; Consents.


 


(a)
The execution and delivery by Buyer of this Agreement and the other Transaction Documents to which Buyer is or will be a party
does not, and the consummation of the transactions contemplated hereby and thereby will not, violate any provision of the Organizational
Documents of Buyer; result in the creation of any Encumbrance (other than Permitted Encumbrances) upon any material asset of Buyer,
conflict with or result in a breach of, require a consent, create an event of default (or event that, with the giving of notice
or lapse of time or both, would constitute an event of default) under, or give any person or entity the right to terminate, accelerate
or modify any obligation or benefit under, any contract, lease, permit or order to which Buyer is a party or by which Buyer or
its assets are bound or affected.


 


(b)
The execution and delivery by Buyer of this Agreement and the other Transaction Documents to which Buyer is or will be a party
does not, and the consummation of the transactions contemplated hereby and thereby will not, result in a violation of, or require
the Consent, other action by, or registration, declaration or filing with or notice to, any Governmental Authority under any Legal
Requirement or Order applicable to Buyer or its business or assets. There is no pending or, to Buyer’s knowledge, threatened
Proceeding against Buyer before any court or Governmental Authority, to restrain or prevent the consummation of the transactions
contemplated by this Agreement.


 


SECTION
5.3 Organization and Authority. Buyer is a corporation, duly organized, validly existing and in good standing under the laws
of the State of Washington. Buyer has all requisite corporate power and authority to own or lease and operate its properties and
assets True and correct copies of Buyer’s Organizational Documents, including any amendments thereto, have been made available
to Seller.


 




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SECTION
5.4 Tax Matters. Buyer has timely filed all Tax Returns required of Buyer under all Legal Requirements to which Buyer is subject.
Buyer has timely paid all Taxes required by Legal Requirements to be paid by Buyer, whether or not shown on any Tax Return. All
such Tax Returns are accurate and complete in all material respects. No examination or audit of any Tax Return of Buyer is in
progress. All deficiencies proposed as a result of any examination or audit of any Tax Return filed by Buyer have been paid or
finally settled and no issue has been raised in any such examination or audit that, by application of similar principles, reasonably
would be expected to result in the assertion of a deficiency for any other year not so examined or audited. There are no Encumbrances
related to Taxes outstanding against any of Buyer’s assets, other than for Taxes not yet due and payable.


 


SECTION
5.5 Undisclosed Liabilities. Neither Buyer nor any of its subsidiaries has any Liability (and there is no basis for any present
or future action, suit, proceeding, hearing, investigation, charge, complaint, claim, or demand against any of them giving rise
to any Liability), except for (i) Liabilities set forth on the face of Buyer’s balance sheet as December 31, 2016 (rather
than in any notes thereto) included in Buyer’s Annual Report on Form 10-K filed with the Securities and Exchange Commission
(“SEC”) on March 31, 2017 and (ii) Liabilities that have arisen after December 31, 2016 in the ordinary course
of business (none of which results from, arises out of, relates to, is in the nature of, or was caused by any breach of contract,
breach of warranty, tort, infringement, or violation of Legal Requirements).


 


SECTION
5.6 SEC Filings. (i) Buyer has filed or furnished, as applicable, on a timely basis all SEC filings and reports required to
be made under applicable law since April 22, 2014. Each of the SEC Filings, at the time of its filing or being furnished complied,
or if not yet filed or furnished, will comply, in all material respects with the applicable requirements of the Exchange Act,
the Securities Act and the Sarbanes-Oxley Act, and any rules and regulations promulgated thereunder applicable to the SEC Filings.
As of their respective dates (or, if amended prior to the date hereof, as of the date of such amendment), the SEC Filings did
not, and any SEC Filings filed with or furnished to the SEC subsequent to the date hereof will not, contain any untrue statement
of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements made therein,
in light of the circumstances in which they were made, not misleading.


 


SECTION
5.7 NBEV Shares. The issuance of the NBEV Restricted Shares by Buyer at the Closing has been duly authorized and, when issued
and delivered by Buyer as provided in this Agreement, the NBEV Restricted Shares will be validly issued, fully paid, non-assessable
and free of any Encumbrances aside from the normal Rule 144 restrictions. Assuming the accuracy of the representations and warranties
of Seller set forth in Section 4, the issuance of the NBEV Restricted Shares at the Closing will be exempt from registration or
qualification under the Securities Act and applicable state securities laws.


 


SECTION
5.8 Brokers’ Fees. No broker, finder, investment banker or other Person is entitled to any brokerage fee, finders’
fee or other commission or payment in connection with the transactions contemplated by this Agreement based on arrangements made
by Buyer or any of its Affiliates.


 




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SECTION
5.9 Disclosure. No representation or warranty by Buyer in this Agreement, any other Transaction Document or any Schedule or
Exhibit to this Agreement or any other Transaction Document, nor any statement or certificate furnished or to be furnished to
Seller pursuant to this Agreement, or in connection with the transactions contemplated this Agreement, contains or will contain
any untrue statement of a material fact, or omits or will omit to state a material fact necessary to make the statements contained
therein not misleading.


 


SECTION
5.10 Disclosure of Agreements. The agreements and documents described in the SEC Filings conform in all material respects
to the descriptions thereof contained or incorporated by reference therein, and there are no agreements or other documents required
by the Securities Act to be described in the SEC Filings, that have not been so described or filed or incorporated by reference.
Each agreement or other instrument (however characterized or described) to which Buyer is a party or by which it is or may be
bound or affected and (i) that is referred to or incorporated by reference in the SEC Filings, or (ii) is material to Buyer’s
business, has been duly authorized and validly executed by Buyer, is in full force and effect in all material respects and is
enforceable against Buyer and, to Buyer’s knowledge, the other parties thereto, in accordance with its terms, except (x)
as such enforceability may be limited by bankruptcy, insolvency, reorganization or similar laws affecting creditors’ rights
generally, (y) as enforceability of any indemnification or contribution provision may be limited under the federal and state securities
laws, and (z) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to the
equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. None of such agreements
or instruments has been assigned by Buyer, and neither Buyer nor, to Buyer’s knowledge, any other party is in default thereunder
and, to Buyer’s knowledge, no event has occurred that, with the lapse of time or the giving of notice, or both, would constitute
a default thereunder. To the best of Buyer’s knowledge, performance by Buyer of the material provisions of such agreements
or instruments will not result in a violation of any existing applicable law, rule, regulation, judgment, order or decree of any
governmental agency or court, domestic or foreign, having jurisdiction over Buyer or any of its assets or businesses (each, a
“Governmental Entity”), including, without limitation, those relating to environmental laws and regulations.


 


SECTION
5.11 Prior Securities Transactions. No securities of Buyer have been sold by Buyer or by or on behalf of, or for the
benefit of, any person or persons controlling, controlled by or under common control with Buyer, except as disclosed in the SEC
Filings.


 


SECTION
5.12 Recent Securities Transactions, etc. Subsequent to the respective dates as of which information is given in the
SEC Filings, and except as may otherwise be indicated or contemplated herein, Buyer has not: (i) issued any securities or incurred
any liability or obligation, direct or contingent, for borrowed money; or (ii) declared or paid any dividend or made any other
distribution on or in respect to its capital stock.


 




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SECTION
5.13 Financial Statements, etc. The financial statements, including the notes thereto and supporting schedules included
or incorporated by reference in the SEC Filings, fairly present the financial position and the results of operations of Buyer
at the dates and for the periods to which they apply; and such financial statements have been prepared in conformity with U.S.
generally accepted accounting principles (“GAAP”), consistently applied throughout the periods involved (provided
that unaudited interim financial statements are subject to year-end audit adjustments that are not expected to be material in
the aggregate and do not contain all footnotes required by GAAP); and the supporting schedules included in the Registration Statement
present fairly the information required to be stated therein. The pro forma and pro forma as adjusted financial information and
the related notes, if any, included or incorporated by reference in the SEC Filings have been properly compiled and prepared in
accordance with the applicable requirements of the Securities Act and the Exchange Act and present fairly the information shown
therein, and the assumptions used in the preparation thereof are reasonable and the adjustments used therein are appropriate to
give effect to the transactions and circumstances referred to therein. Each of the SEC Filings discloses all material off-balance
sheet transactions, arrangements, obligations (including contingent obligations), and other relationships of Buyer with unconsolidated
entities or other persons that may have a material current or future effect on Buyer’s financial condition, changes in financial
condition, results of operations, liquidity, capital expenditures, capital resources, or significant components of revenues or
expenses. Except as disclosed in the SEC Filings, (a) neither Buyer nor any of its direct and indirect subsidiaries, including
each entity disclosed or described in the SEC Filings as being a subsidiary of Buyer (each, a “Subsidiary” and, collectively,
the “Subsidiaries”), has incurred any material liabilities or obligations, direct or contingent, or entered into any
material transactions other than in the ordinary course of business, (b) Buyer has not declared or paid any dividends or made
any distribution of any kind with respect to its capital stock, (c) there has not been any change in the capital stock of Buyer
or any of its Subsidiaries, or, other than in the course of business, any grants under any stock compensation plan, and (d) there
has not been any material adverse change in Buyer’s long-term or short-term debt.


 


SECTION
5.14 Outstanding Securities. All issued and outstanding securities of Buyer issued prior to the transactions contemplated
by this Agreement have been duly authorized and validly issued and are fully paid and non-assessable; the holders thereof have
no rights of rescission with respect thereto, and are not subject to personal liability by reason of being such holders; and none
of such securities were issued in violation of the preemptive rights of any holders of any security of Buyer or similar contractual
rights granted by Buyer.


 


SECTION
5.15 Registration Rights of Third Parties. Except as set forth in the SEC Filings, no holders of any securities of
Buyer or any rights exercisable for or convertible or exchangeable into securities of Buyer have the right to require Buyer to
register any such securities of Buyer under the Securities Act or to include any such securities in a registration statement to
be filed by Buyer.


 


SECTION
5.16 No Defaults; Violations. No material default exists in the due performance and observance of any term, covenant
or condition of any material license, contract, indenture, mortgage, deed of trust, note, loan or credit agreement, or any other
agreement or instrument evidencing an obligation for borrowed money, or any other material agreement or instrument to which Buyer
is a party or by which Buyer may be bound or to which any of the properties or assets of Buyer is subject. Buyer is not in violation
of any term or provision of its charter or by-laws, or in violation of any franchise, license, permit, applicable law, rule, regulation,
judgment or decree of any Governmental Entity.


 




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SECTION
5.17 Conduct of Business. Except as described in the SEC Filings, Buyer has all requisite corporate power and authority,
and has all necessary authorizations, approvals, orders, licenses, certificates and permits of and from all governmental regulatory
officials and bodies that it needs as of the date hereof to conduct its business purpose.


 


SECTION
5.18 Litigation; Governmental Proceedings. There is no action, suit, proceeding, inquiry, arbitration, investigation,
litigation or governmental proceeding pending or, to Buyer’s knowledge, threatened against, or involving Buyer or, to Buyer’s
knowledge, any executive officer or director which has not been disclosed in the SEC Filings.


 


SECTION
5.19 Insurance. Buyer carries or is entitled to the benefits of insurance, with reputable insurers, in such amounts
and covering such risks which Buyer believes are adequate, and all such insurance is in full force and effect. Buyer has no reason
to believe that it will not be able (i) to renew its existing insurance coverage as and when such policies expire or (ii) to obtain
comparable coverage from similar institutions as may be necessary or appropriate to conduct its business as now conducted and
at a cost that would not result in a material adverse change in the financial position or results of operations of Buyer.


 


SECTION
5.20 Foreign Corrupt Practices Act. None of Buyer and its Subsidiaries or, to Buyer’s knowledge, any director,
officer, agent, employee or affiliate of Buyer and its Subsidiaries or any other person acting on behalf of Buyer and its Subsidiaries,
has, directly or indirectly, given or agreed to give any money, gift or similar benefit (other than legal price concessions to
customers in the ordinary course of business) to any customer, supplier, employee or agent of a customer or supplier, or official
or employee of any governmental agency or instrumentality of any government (domestic or foreign) or any political party or candidate
for office (domestic or foreign) or other person who was, is, or may be in a position to help or hinder the business of Buyer
(or assist it in connection with any actual or proposed transaction) that (i) might subject Buyer to any damage or penalty in
any civil, criminal or governmental litigation or proceeding, (ii) if not given in the past, might have had a material adverse
change in the financial position or results of operations of Buyer or (iii) if not continued in the future, might adversely affect
the assets, business, operations or prospects of Buyer. Buyer has taken reasonable steps to ensure that its accounting controls
and procedures are sufficient to cause Buyer to comply in all material respects with the Foreign Corrupt Practices Act of 1977,
as amended.


 


SECTION
5.21 Compliance with OFAC. None of Buyer and its Subsidiaries or, to Buyer’s knowledge, any director, officer,
agent, employee or affiliate of Buyer and its Subsidiaries or any other person acting on behalf of Buyer and its Subsidiaries,
is currently subject to any U.S. sanctions administered by the Office of Foreign Assets Control of the U.S. Department of the
Treasury (“OFAC”), and Buyer will not, directly or indirectly, use the proceeds of the Offering hereunder, or lend,
contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other person or entity, for the
purpose of financing the activities of any person currently subject to any U.S. sanctions administered by OFAC.


 




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SECTION
5.22 Related Party Transactions. There are no business relationships or related party transactions involving Buyer
or any other person required to be described or incorporated by reference in the SEC Filings that have not been described or incorporated
by reference as required.


 


SECTION
5.23 Sarbanes-Oxley Compliance.


 


(a)
Disclosure Controls. Buyer has developed and currently maintains disclosure controls and procedures that comply with Rule
13a-15 or 15d-15 under the Exchange Act, and such controls and procedures are effective to ensure that all material information
concerning Buyer will be made known on a timely basis to the individuals responsible for the preparation of Buyer’s Exchange
Act filings and other public disclosure documents.


 


(b)
Compliance. Buyer is in material compliance with the provisions of the Sarbanes-Oxley Act applicable to it, and has implemented
or will implement such programs and taken reasonable steps to ensure Buyer’s future compliance (not later than the relevant
statutory and regulatory deadlines therefor) with all of the material provisions of the Sarbanes-Oxley Act.


 


SECTION
5.24 Accounting Controls. Buyer and its Subsidiaries maintain systems of “internal control over financial reporting”
(as defined under Rules 13a-15 and 15d-15 under the Exchange Act) that comply with the requirements of the Exchange Act and have
been designed by, or under the supervision of, their respective principal executive and principal financial officers, or persons
performing similar functions, to provide reasonable assurance regarding the reliability of financial reporting and the preparation
of financial statements for external purposes in accordance with GAAP, including, but not limited to, internal accounting controls
sufficient to provide reasonable assurance that (i) transactions are executed in accordance with management’s general or
specific authorizations; (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity
with GAAP and to maintain asset accountability; (iii) access to assets is permitted only in accordance with management’s
general or specific authorization; and (iv) the recorded accountability for assets is compared with the existing assets at reasonable
intervals and appropriate action is taken with respect to any differences. Except as disclosed in the SEC Filings, Buyer is not
aware of any material weaknesses in its internal controls. Buyer’s auditors and the Audit Committee of the Board of Directors
of Buyer have been advised of: (i) all significant deficiencies and material weaknesses in the design or operation of internal
controls over financial reporting which are known to Buyer’s management and that have adversely affected or are reasonably
likely to adversely affect Buyer’ ability to record, process, summarize and report financial information; and (ii) any fraud
known to Buyer’s management, whether or not material, that involves management or other employees who have a significant
role in Buyer’s internal controls over financial reporting.


 


SECTION
5.25 No Labor Disputes. No labor dispute with the employees of Buyer or any of its Subsidiaries exists or, to the knowledge
of Buyer, is imminent.


 


SECTION
5.26 Confidentiality and Non-Competitions. To Buyer’s knowledge, no director, officer, key employee or consultant
of Buyer is subject to any confidentiality, non-disclosure, non-competition agreement or non-solicitation agreement with any employer
or prior employer that could materially affect his ability to be and act in his respective capacity of Buyer or be expected to
result in a material adverse change in the financial position or results of operations of Buyer.


 




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SECTION
5.27 Capitalization. The description of Buyer’s securities and capitalization set forth under the heading “Description
of Securities” in Buyer’s prospectus dated February 13, 2017 and filed with the SEC on February 14, 2017 is accurate.


 


SECTION
5.28 Subsidiaries. All direct and indirect Subsidiaries of Buyer are duly organized and in good standing under the
laws of the place of organization or incorporation, and each Subsidiary is in good standing in each jurisdiction in which its
ownership or lease of property or the conduct of business requires such qualification, except where the failure to qualify would
not have a material adverse effect on the assets, business or operations of Buyer taken as a whole. Buyer’s ownership and
control of each Subsidiary is as described in the SEC Filings.


 


SECTION
5.29 Intellectual Property Rights. Buyer and each of its Subsidiaries owns or possesses or has valid rights to use
all Intellectual Property and Intellectual Property Rights necessary for the conduct of the business of Buyer and its Subsidiaries
as currently carried on. To the knowledge of Buyer, no action or use by Buyer or any of its Subsidiaries necessary for the conduct
of its business as currently carried on will involve or give rise to any infringement of, or license or similar fees for, any
Intellectual Property or Intellectual Property Rights of others. Neither Buyer nor any of its Subsidiaries has received any notice
alleging any such infringement, fee or conflict with asserted Intellectual Property or Intellectual Property Rights of others.
Except as would not reasonably be expected to result, individually or in the aggregate, in a material adverse change in the financial
position or results of operations of Buyer (A) to the knowledge of Buyer, there is no infringement, misappropriation or violation
by third parties of any of the Intellectual Property or Intellectual Property Rights owned by Buyer; (B) there is no pending or,
to the knowledge of Buyer, threatened action, suit, proceeding or claim by others challenging the rights of Buyer in or to any
such Intellectual Property or Intellectual Property Rights, and Buyer is unaware of any facts which would form a reasonable basis
for any such claim, that would, individually or in the aggregate, together with any other claims in this Section 5.29, reasonably
be expected to result in a material adverse change in the financial position or results of operations of Buyer; (C) the Intellectual
Property and Intellectual Property Rights owned by Buyer and, to the knowledge of Buyer, the Intellectual Property Rights licensed
to Buyer have not been adjudged by a court of competent jurisdiction invalid or unenforceable, in whole or in part, and there
is no pending or, to Buyer’s knowledge, threatened action, suit, proceeding or claim by others challenging the validity
or scope of any such Intellectual Property or Intellectual Property Rights, and Buyer is unaware of any facts which would form
a reasonable basis for any such claim that would, individually or in the aggregate, together with any other claims in this Section
5.29, reasonably be expected to result in a material adverse change in the financial position or results of operations of Buyer;
(D) there is no pending or, to Buyer’s knowledge, threatened action, suit, proceeding or claim by others that Buyer infringes,
misappropriates or otherwise violates any Intellectual Property or Intellectual Property Rights or other proprietary rights of
others, Buyer has not received any written notice of such claim and Buyer is unaware of any other facts which would form a reasonable
basis for any such claim that would, individually or in the aggregate, together with any other claims in this Section 5.29, reasonably
be expected to result in a material adverse change in the financial position or results of operations of Buyer; and (E) to Buyer’s
knowledge, no employee of Buyer is in or has ever been in violation in any material respect of any term of any employment contract,
patent disclosure agreement, invention assignment agreement, non-competition agreement, non-solicitation agreement, nondisclosure
agreement or any restrictive covenant to or with a former employer where the basis of such violation relates to such employee’s
employment with Buyer, or actions undertaken by the employee while employed with Buyer and could reasonably be expected to result,
individually or in the aggregate, in a material adverse change in the financial position or results of operations of Buyer. To
Buyer’s knowledge, all material technical information developed by and belonging to Buyer which has not been patented has
been kept confidential. None of the technology employed by Buyer has been obtained or is being used by Buyer in violation of any
contractual obligation binding on Buyer or, to Buyer’s knowledge, any of its officers, directors or employees, or otherwise
in violation of the rights of any persons.


 




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SECTION
5.30 ERISA Compliance. Buyer and any “employee benefit plan” (as defined under ERISA) established or maintained
by Buyer or its ERISA Affiliates are in compliance in all material respects with ERISA. No “reportable event” (as
defined under ERISA) has occurred or is reasonably expected to occur with respect to any “employee benefit plan” established
or maintained by Buyer or any of its ERISA Affiliates. No “employee benefit plan” established or maintained by Buyer
or any of its ERISA Affiliates, if such “employee benefit plan” were terminated, would have any “amount of unfunded
benefit liabilities” (as defined under ERISA). Neither Buyer nor any of its ERISA Affiliates has incurred or reasonably
expects to incur any material liability under (i) Title IV of ERISA with respect to termination of, or withdrawal from, any “employee
benefit plan” or (ii) Sections 412, 4971, 4975 or 4980B of the Code. Each “employee benefit plan” established
or maintained by Buyer or any of its ERISA Affiliates that is intended to be qualified under Section 401(a) of the Code is so
qualified and, to the knowledge of Buyer, nothing has occurred, whether by action or failure to act, which would cause the loss
of such qualification


 


SECTION
5.31 Compliance with laws; permits. Buyer is not now, and has not since December 31, 2014, (a) been in material violation
of any provision of any Legal Requirement or Order applicable to Buyer, its assets or its business, or (b) directly or indirectly
made any payment of funds to any person, or received or retained any funds from any person in violation of any applicable Legal
Requirement. Buyer has (i) all permits required to conduct its business as conducted by it as of the Effective Date; and (ii)
satisfied all material bonding requirements pertaining to its operations under applicable Legal Requirements. Buyer is not in
material violation of, nor is there a basis for the revocation or withdrawal of, any permit.


 


SECTION
5.32 Properties and Assets of Buyer. Buyer owns or otherwise has the right to use all of assets it uses in its business.


 


ARTICLE
VI.


COVENANTS


 


SECTION
6.1 Public Announcements; Audit; Disclosure of Acquisition.


 


(a)
Neither Seller nor Buyer or any of their respective Affiliates shall issue or cause the publication of any press release or other
public announcement with respect to this Agreement or the transactions contemplated hereby without prior consultation with the
other Party, except as may be required by applicable Law. Notwithstanding the foregoing, Buyer and Seller shall cooperate to prepare
a joint press release to be issued on the Closing Date, which press release shall be mutually acceptable to Buyer and Seller.


 




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(b)
Following the Effective Date, Seller shall use its commercially reasonable efforts to provide all cooperation reasonably requested
by the Buyer in connection with enabling Buyer to prepare financial statements in compliance with the requirements of Rule 3-05
of Regulation S-X promulgated under the Exchange Act and enable Buyer’s accountants to audit such financial statements.


 


(c)
Upon completion of the transaction contemplated by this Agreement, Buyer shall file all necessary forms with all federal and state
regulatory agencies to properly disclose the transaction, which shall include a Form 8-K that includes the audited financial statements
described in Section 6.1(b). Buyer will furnish a copy of such Form 8-K to Seller for its review and approval (which approval
will not be unreasonably withheld or delayed) at least three days prior to the due date for filing such Form 8-K. Buyer shall
adopt all reasonable comments of the Seller with respect to such Form 8-K


 


SECTION
6.2 Cooperation.


 


(a)
Further Assurances. Each of the Seller and Buyer agrees that in the event after the Closing Date any further action is
necessary or desirable to carry out the purposes of this Agreement, each such Party will take such further action (including the
execution and delivery of such further instruments and documents) as the other Party reasonably may request, without payment of
further consideration.


 


(b)
Pre-Closing Access to Books and Records. From the date hereof through the Closing, each Party (the “Subject Party”)
shall (a) provide the other Party (the “Investigating Party”) and its representatives (including legal counsel
and accountants) with reasonable access to such information as the Investigating Party may from time to time reasonably request
with respect to the Subject Party’s business, and (b) upon reasonable notice during normal business hours and under reasonable
circumstances in a manner so as not to interfere with the normal business operations of the Subject Party, provide the Investigating
Party and its representatives (including legal counsel and accountants) with reasonable access to the premises, management, books,
records, Contracts and documents of or pertaining to the Subject Party as the Investigating Party may from time to time reasonably
request; provided, however, (i) in no event will the Subject Party be required to furnish the Investigating Party
or its representatives with any documents or information that the Subject Party is required by Legal Requirement, Order, or Contract
to keep confidential, or that would reasonably be expected to jeopardize the status of such document or information as privileged,
work product or as a trade secret, (ii) any such access shall not unreasonably interfere with the business or operations of the
Subject Party, and (iii) the Investigating Party shall not contact any customer, supplier, landlord or other material business
relation of the Subject Party without the prior written approval of the Subject Party. All such information and access shall be
subject to the terms and conditions of the Confidentiality and Nondisclosure Agreement executed by Buyer with respect to Seller.


 




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(c)
Post-Closing Access to Books and Records. Buyer and Seller acknowledge that subsequent to Closing each Party may need access
to books, records, information or documents in the control or possession of the other Party for such purposes as preparing Tax
Returns, responding to audits and the prosecution or defense of third-party claims. After the Closing, to the extent permitted
by Legal Requirements, Buyer and Seller shall cooperate fully, as and to the extent reasonably requested by each other, in connection
with the filing of Tax Returns related to the Business or the Purchased Assets and any audit, litigation or other Proceeding with
respect to such Taxes. In that regard, Buyer and Seller shall maintain such Tax information, Tax records, documents and information
relating to the Business and the Purchased Assets for a period of six (6) years from the Closing Date and, upon reasonable written
request, provide to such other Party such Tax information, Tax records, documents and information as are in the non-requesting
Party’s possession or control and which are reasonably relevant to any such audit, litigation or other Proceeding or any
other proper business purpose. Notwithstanding the foregoing, (i) no Party shall be obligated to provide any other Party with
access to any books, records documents or other information (including personnel files) pursuant to this Section 6.2(c) where
such access (A) would violate any Legal Requirement, or (B) could undermine or otherwise jeopardize attorney-client privilege
or result in a conflict of interest; and (ii) this Section 6.2(c) shall not apply in the event of any pending or threatened Proceeding
among the Parties, the Buyer Indemnified Parties or the Seller Indemnified Parties (in which case the applicable rules of discovery
shall apply).


 


(d)
Accordingly, each Party agrees that until the third anniversary of the Closing Date, to the extent permitted by Law, each Party
will make reasonably available to the other Party upon reasonable written request and at the expense of the requesting Party such
documents and information as are in the non-requesting Party’s possession or control relating to the Purchased Assets, Assumed
Liabilities or the Business to the extent the requesting Party needs such books, records, information or documents for any proper
business purpose, and, with respect to each Party, not adverse to the interests of the non-requesting Party.


 


SECTION
6.3 Payment of Taxes Resulting from Sale of Assets. Seller shall be responsible for the preparation and filing of all Tax
Returns for the Business due either before or after the Closing Date that cover periods ending on or before the Closing Date.
Seller shall make all payments required with respect to any such Tax Returns. Buyer shall be responsible for the preparation and
filing of all Tax Returns for the Business due after the Closing Date that cover periods ending after the Closing Date. Buyer
will make all payments required with respect to any such Tax Returns; provided, however, that Seller shall reimburse Buyer concurrently
with the filing of such Tax Returns to the extent any payment Buyer makes relates to the operation of the Business by Seller for
any period ending on or before the Closing Date.


 


SECTION
6.4 Allocation of Consideration. The consideration delivered by Buyer to Seller under Section 2.1, including the NBEV Shares,
and the Assumed Liabilities that are treated as liabilities for federal income Tax purposes, shall be allocated in accordance
with Section 1060 of the Code and the Treasury regulations promulgated thereunder (among the Purchased Assets as of the Closing
Date for all purposes (including Tax and financial accounting) as set forth in a manner to be agreed by the parties prior to Closing).
Buyer and Seller shall cooperate with each other in preparing IRS Form 8594 consistent with such allocation and shall not otherwise
take a position on any Tax Return or in any proceeding that is inconsistent with such allocation unless required by a final and
non-appealable determination of the IRS or any other applicable Governmental Authority.


 




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SECTION
6.5 Post-Closing Matters. After the Closing, Seller will promptly refer to Buyer all inquiries and promptly after receipt
thereof deliver to Buyer all correspondence, funds, checks and other items and materials relating to the Business or the Purchased
Assets.


 


SECTION
6.6 Efforts to Close.


 


(a)
Upon the terms and subject to the conditions and other agreements set forth in this Agreement, Seller and Buyer shall (a) refrain
from taking any actions that could reasonably be expected to impair, delay or impede the Closing, and (b) without limiting any
other provision of this Agreement, use commercially reasonable efforts to cause all the conditions to the obligations of the other
party to consummate the transactions contemplated by this Agreement to be met as soon as reasonably practicable. Notwithstanding
the foregoing or anything else in this Agreement, nothing in this Agreement shall require Seller to agree to or execute any material
changes to any Contracts, offer or grant any accommodation (financial or otherwise), commence any Proceeding or make any payments
to any third party in order to obtain third party consents to the transactions contemplated by this Agreement, except in the case
where such material change shall only be effective upon the Closing and where such payments are expressly contemplated by a Contract
between Seller and such third party.


 


(b)
Seller hereby covenants and agrees that it will not enter into any public offering, merger, combination, divestiture, financing,
joint venture, sale and/or acquisition agreement in whatever form, except for agreements in the ordinary course of business (including,
without limitation, joint venture, sale license or distribution agreements) or enter into any other transaction that would preclude
the consummation of the transactions contemplated by this Agreement.


 


SECTION
6.7 Disclosure Schedule Updates/Corrections.


 


(a)
Prior to the Closing, the Seller may supplement and update the Disclosure Schedule to reflect any matter or information arising
after the date of this Agreement which, if existing, occurring or known at the date of this Agreement, would have been required
to be set forth or described in the Disclosure Schedule.


 


(b)
Prior to the Closing, if the Seller becomes aware of any matter existing, occurring or known as of the date of this Agreement
that was required to be set forth or described in the Disclosure Schedule, but that is not so set forth or described thereon,
the Seller may amend the Disclosure Schedule to this Agreement in any manner which is necessary to correct any existing inaccuracy
or incorrect or incomplete information in such Disclosure Schedule.


 




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(c)
Unless otherwise agreed by Buyer, no such supplement or amendment to the Disclosure Schedule pursuant to Section 6.7(a) or Section
6.7(b) shall be deemed to have modified the representations, warranties or covenants of the Seller herein for purposes of determining
whether the conditions set forth in Section 8.1(b) have been satisfied, or shall affect whether a breach of such representations,
warranties or covenants has occurred for purposes of determining Buyer’s rights to terminate this Agreement under Section
9.1(b)(i). Notwithstanding the foregoing, from and after the Closing, any supplement to the Disclosure Schedule pursuant to Section
6.7(a) and any amendment pursuant to Section 6.7(b) shall be deemed to have modified the Disclosure Schedule and the representations,
warranties and covenants of the Seller contained herein for all purposes, including any determination of the rights of the Buyer
Indemnified Parties under Article VII.


 


SECTION
6.8 Conduct of Business Prior to Closing. Except as contemplated by this Agreement or Legal Requirement, or as the other Party
may otherwise consent to in writing (which consent shall not be unreasonably withheld, conditioned or delayed), or as otherwise
set forth in the Disclosure Schedule, from the date hereof through the Closing, each Party will use its commercially reasonable
efforts to operate its business in all material respects in the ordinary course.


 


SECTION
6.9 No Right to Purchased Assets. From and after the Closing, Sellers shall not (a) have any right, license or other interest
in or to any of the Purchased Assets, (b) use, access or possess any of the Purchased Assets or transfer, assign, license or grant
any interest in or to any of the Purchased Assets to any Person or (c) permit or authorize any Person to use, access or possess
any of the Purchased Assets.


 


SECTION
6.10 Transfer Taxes. All transfer, sales, use, stamp, recording, registration documentary, property, or similar Taxes and
fees (including any penalties and interest) applicable to, imposed upon or arising out of the transfer of the Purchased Shares
or any other transaction contemplated by this Agreement shall be paid by Buyer.


 


ARTICLE
VII.





INDEMNIFICATION


 


SECTION
7.1 Indemnification of Buyer Indemnified Parties. Seller shall indemnify, defend and hold harmless Buyer and its Affiliates,
officers, directors, shareholders, employees, independent contractors, agents, successors and assigns (collectively, the “Buyer
Indemnified Parties”) from and against any and all Losses which any of the Buyer Indemnified Parties may suffer or for
which any of the Buyer Indemnified Parties may become liable and which are based on, the result of, arise out of or are otherwise
related to any of the following:


 


(a)
any material inaccuracy or misrepresentation in, or breach of any representation or warranty of Seller in this Agreement, any
of the other Transaction Documents or any certificate, schedule, list or other instrument to be furnished by Seller to Buyer pursuant
to this Agreement or any of the other Transaction Documents;


 


(b)
any breach or failure of Seller to perform any covenant or agreement required to be performed by it pursuant to this Agreement
or any of the other Transaction Documents after expiration of a reasonable cure period; and


 




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(c)
any claim, demand, suit, action or legal, administrative or other proceeding by any person (other than a party) or any federal,
state or local department, agency or other governmental body (a “Third Party Claim”) against any of the Buyer
Indemnified Parties resulting from, arising out of or in any way related to (i) the operation of the Business prior to the Closing
Date, or (ii) the failure of Seller to perform, pay or discharge any Excluded Liability.


 


SECTION
7.2 Indemnification of Seller Indemnified Parties. Buyer shall indemnify, defend and hold harmless Seller and its Affiliates,
officers, managers, members, employees, independent contractors, agents, successors and assigns (collectively, the “Seller
Indemnified Parties”) from and against any and all Losses which any of the Seller Indemnified Parties may suffer or
for which any of the Seller Indemnified Parties may become liable and which are based on, the result of, arise out of or are otherwise
related to any of the following:


 


(a)
any material inaccuracy or misrepresentation in, or breach of any representation or warranty of Buyer in this Agreement, any of
the other Transaction Documents or any certificate, schedule, list or other instrument to be furnished by Buyer to Seller pursuant
to this Agreement or any of the other Transaction Documents;


 


(b)
any breach or failure of Buyer to perform any covenant or agreement required to be performed by it pursuant to this Agreement
or any of the other Transaction Documents after expiration of a reasonable cure period; and


 


(c)
any Third-Party Claim against any of the Seller Indemnified Parties resulting from, arising out of or in any way related to (i)
the operation of the Business after the Closing Date, or (ii) the failure of Buyer to perform, pay or discharge any Assumed Liability.


 


SECTION
7.3 Claims for Indemnification. Whenever any claim shall arise for indemnification under this Article VII, even if no payment
is then due on account thereof, the party seeking indemnification (the “Indemnified Party”) shall provide written
notice (the “Notice”) to the party against whom indemnification is sought (the “Indemnifying Party”)
of the claim. In the event of any Third Party Claim, the Indemnified Party shall provide the Notice within 30 days after the Indemnified
Party has actual knowledge of its existence and, when known, the facts constituting the basis for such claim in reasonable detail,
but the failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party of any liability that it may have
to the Indemnified Party, except to the extent that the Indemnifying Party demonstrates that the defense of such Third Party Claim
is materially prejudiced by the Indemnified Party’s failure to give such Notice. In the event of any Third-Party Claim,
the Notice shall specify, if known, the amount or an estimate of the amount of the liability arising therefrom. The Indemnified
Party shall not settle or compromise any Third Party Claim without the prior written consent of the Indemnifying Party, which
consent shall not be unreasonably withheld, conditioned or delayed, unless suit shall have been instituted against the Indemnified
Party and the Indemnifying Party shall not have taken control of such suit in accordance with Section 7.4 below.


 




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SECTION
7.4 Defense by the Indemnifying Party. Within seven days after receipt of the Notice, the Indemnifying Party, at its sole
cost and expense, may, upon written notice to the Indemnified Party, assume the defense of any Third Party Claim. If the Indemnifying
Party timely assumes the defense of any Third Party Claim, the Indemnifying Party shall select counsel reasonably acceptable to
the Indemnified Party to conduct the defense of such Third Party Claim and, at the sole cost and expense of the Indemnifying Party,
the Indemnifying Party shall take all steps necessary in the defense or settlement thereof. The Indemnified Party shall be entitled
to participate in (but not control) the defense of any Third Party Claim, with its own counsel and at its own expense; provided,
however, that if the named parties to any such action (including any impleaded parties) include both the Indemnifying Party and
the Indemnified Party, and the Indemnified Party has been advised by counsel that there may be one or more legal defenses available
to it that are different from or additional to those available to the Indemnifying Party, then the Indemnified Party may employ
separate counsel at the expense of the Indemnifying Party. The Indemnifying Party shall not consent to a settlement of, or the
entry of any judgment arising from, any Third Party Claim without the prior written consent of the Indemnified Party, which consent
shall not be unreasonably withheld, conditioned or delayed. If the Indemnifying Party fails to assume and continually maintain
the defense of the Third Party Claim within seven days after the Indemnifying Party’s receipt of the Notice, the Indemnified
Party may assume sole control of defense or settlement of such claim at the sole cost and expense of the Indemnifying Party.


 


SECTION
7.5 Survival. The representations and warranties set forth in Articles IV and V of this Agreement shall survive the Closing
for a period of one year after the Closing Date; provided, however that (a) the representations and warranties set forth in Sections
7.1 and 7.2 shall survive the Closing forever. Notwithstanding anything to the contrary in this Agreement, if an Indemnified Party
delivers to an Indemnifying Party, before termination or expiration of a representation or warranty or indemnity obligation, a
notice claiming indemnification under this Article VII then the applicable representation or warranty or indemnity obligation
shall survive until, but only for purposes of, the resolution of the matter covered by such notice.


 


SECTION
7.6 Minimization of Indemnities. Each party shall use reasonable efforts to minimize the indemnification obligations of the
other parties under this Article VII by, among other reasonable things and without limiting the generality of the foregoing, taking
such reasonable remedial action as it believes may minimize such obligation and seeking to the maximum extent possible reimbursement
from insurance carriers under applicable insurance policies covering any such liability.


 


SECTION
7.7 Sole Remedy. Except with respect to any fraud, willful breach or criminal acts committed by a Party, and except as set
forth in Sections 9.2 and 12.11, the indemnification provided in this Article VII (including all limitations contained herein)
shall be the sole and exclusive remedy for all matters relating to this Agreement, the transactions contemplated hereby and for
the breach of any representation, warranty, covenant or agreement contained herein.


 




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ARTICLE
VIII.


CLOSING
CONDITIONS


 


SECTION
8.1 Conditions Precedent to the Obligations of Buyer.


 


The
obligations of Buyer to consummate the transactions contemplated by this Agreement shall be subject to the satisfaction, on or
prior to the Closing Date, of the following conditions precedent, unless waived in writing by Buyer:


  


(a)
Required Deliverables. Buyer shall have received all items required by Section 3.


 


(b)
Representations and Warranties. The representations and warranties by Seller in this Agreement shall be true and accurate
in all material respects on and as of the Closing Date with the same force and effect as though such representations and warranties
had been made at and as of the Closing Date (unless such representations and warranties are limited to such other date in which
case such representations and warranties shall be limited to such date).


 


(c)
Performance. Seller shall have performed and complied in all material respects with all agreements and covenants to be
performed or complied with by it pursuant to this Agreement at or prior to the Closing.


 


(d)
Proceedings and Orders. No Proceeding shall have been commenced against Buyer or Seller, which would prevent the Closing.
No injunction or restraining order shall have been issued by any Governmental Authority, and be in effect, which restrains or
prohibits any transaction contemplated hereby. No Governmental Authority shall have enacted, issued, promulgated, enforced or
entered any Order which is in effect and has the effect of making the transactions contemplated by this Agreement illegal, otherwise
restraining or prohibiting consummation of such transactions or causing any of the transactions contemplated hereunder to be rescinded
following completion thereof.


 


SECTION
8.2 Conditions Precedent to the Obligations of Seller.


 


The
obligations of Seller to consummate the transactions contemplated by this Agreement shall be subject to the satisfaction, on or
prior to the Closing Date, of the following conditions precedent, unless waived in writing by Seller:


 


(a)
Required Deliverables. Seller shall have received all items are required by Section 3.


 


(b)
Representations and Warranties. The representations and warranties by Buyer in this Agreement shall be true and accurate
in all material respects on and as of the Closing Date with the same force and effect as though such representations and warranties
had been made at and as of the Closing Date (unless such representations and warranties are limited to such other date in which
case such representations and warranties shall be limited to such date).


 




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(c)
Performance. Buyer shall have performed and complied in all material respects with all agreements and covenants to be performed
or complied with by it pursuant to this Agreement at or prior to the Closing.


 


(d)
Listing of NBEV Shares. The NBEV Restricted Shares to be issued at Closing shall have been authorized for listing on the
Nasdaq Capital Market, subject to official notice of issuance.


 


(e)
Proceedings and Orders. No Proceeding shall have been commenced against Buyer or Seller, which would prevent the Closing.
No injunction or restraining order shall have been issued by any Governmental Authority, and be in effect, which restrains or
prohibits any transaction contemplated hereby. No Governmental Authority shall have enacted, issued, promulgated, enforced or
entered any Order which is in effect and has the effect of making the transactions contemplated by this Agreement illegal, otherwise
restraining or prohibiting consummation of such transactions or causing any of the transactions contemplated hereunder to be rescinded
following completion thereof.


 


ARTICLE
IX.


TERMINATION


 


SECTION
9.1 Method of Termination. This Agreement may be terminated:


 


(a)
by the mutual written consent of Seller and Buyer;


 


(b)
by Buyer by written notice to Seller if:


 


(i)
there has been a breach, inaccuracy in or failure to perform any representation, warranty, covenant or agreement made by Seller
pursuant to this Agreement that would give rise to the failure of any of the conditions specified in Section 8.1 and such breach,
inaccuracy or failure has not been cured by Seller within the earlier of the Outside Date and ten (10) days of Seller’s
receipt of written notice of such breach from Buyer; or


 


(ii)
any of the conditions set forth in Section 8.1 shall not have been, or if it becomes apparent that any of such conditions will
not be, fulfilled by the Outside Date, unless such failure shall be due to the failure of Buyer to perform or comply with any
of the covenants, agreements or conditions hereof to be performed or complied with by it prior to the Closing;


 


(c)
by Seller by written notice to Buyer if:


 


(i)
there has been a breach, inaccuracy in or failure to perform any representation, warranty, covenant or agreement made by Buyer
pursuant to this Agreement that would give rise to the failure of any of the conditions specified in Section 8.2 and such breach,
inaccuracy or failure has not been cured by Buyer within the earlier of the Outside Date and ten (10) days of Buyer’s receipt
of written notice of such breach from Seller; or


 




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(ii)
any of the conditions set forth in Section 8.2 shall not have been, or if it becomes apparent that any of such conditions will
not be, fulfilled by the Outside Date, unless such failure shall be due to the failure of Seller to perform or comply with any
of the covenants, agreements or conditions hereof to be performed or complied with by it prior to the Closing; or


 


(d)
by Buyer or Seller in the event that (i) there shall be any Legal Requirement that makes consummation of the transactions contemplated
by this Agreement illegal or otherwise prohibited or (ii) any Governmental Authority shall have issued an Order restraining or
enjoining the transactions contemplated by this Agreement, and such Order shall have become final and non-appealable.


 


SECTION
9.2 Effect of Termination. If terminated in accordance with Section 9.1 above, this Agreement shall be null and void and have
no further force or effect, except as provided in the remaining provisions of this Section 9.2. In the event a Party terminates
this Agreement as a result of a breach by another Party, then such non-breaching Party shall be entitled to recover from the defaulting
Party all out-of-pocket expenses incurred by it and any of its affiliates (including, without limitation, reasonable legal and
accounting fees and expenses) in connection with (a) the preparation, drafting and negotiation of this Agreement and any other
document related to the transactions contemplated in this Agreement, and (b) the due diligence review by such Party of the other
Party.


 




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ARTICLE
X.


CONFIDENTIALITY


 


Each
Party will keep confidential all information and documents obtained from the other Party pursuant this Agreement (except for any
information disclosed to the public pursuant to a press release authorized by the Parties or for information required to be provided
in a filing with the SEC, in each case pursuant to Section 6.1); and in the event the Closing does not occur or this Agreement
is terminated for any reason, will promptly return such documents and all copies of such documents and all notes and other evidence
thereof, including material stored on a computer, and will not use such information for its own advantage, except to the extent
that (i) the information must be disclosed by Legal Requirement, (ii) the information becomes publicly available by reason other
than disclosure by the party subject to the confidentiality obligation, (iii) the information is independently developed without
use of or reference to the other party’s confidential information, (iv) the information is obtained from another source
not obligated to keep such information confidential, or (v) the information is already publicly known or known to the receiving
party when disclosed as demonstrated by written documentation in the possession of such party at such time.


 


ARTICLE
XI.


as-is;
where-is sale


 


BUYER
HEREBY ACKNOWLEDGES AND AGREES THAT, EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN ARTICLE IV OF THIS AGREEMENT, THE SELLER MAKES
NO REPRESENTATIONS OR WARRANTIES WHATSOEVER, EXPRESS OR IMPLIED, WITH RESPECT TO ANY MATTER RELATING TO SELLER, ITS BUSINESS,
the assumed liabilities OR THE PURCHASED ASSETS. WITHOUT IN ANY WAY LIMITING THE FOREGOING, SELLER HEREBY DISCLAIMS ANY WARRANTY,
EXPRESS OR IMPLIED, OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE AS TO ANY PORTION OF THE Purchased ASSETS. BUYER
FURTHER ACKNOWLEDGES THAT BUYER HAS CONDUCTED AN INDEPENDENT INSPECTION AND INVESTIGATION OF SELLER, ITS BUSINESS, the assumed
liabilities AND THE PURCHASED ASSETS. ACCORDINGLY, BUYER WILL ACCEPT THE assumed liabilities AND THE PURCHASED ASSETS AT THE CLOSING
“AS IS,” “WHERE IS,” AND “WITH ALL FAULTS.”


 


ARTICLE
XII.


MISCELLANEOUS


 


SECTION
12.1 Expenses. Except as otherwise expressly provided in this Agreement, each Party shall pay its own expenses in connection
with the negotiation, preparation and performance of this Agreement and the consummation of the transactions contemplated hereby,
including all fees and expenses of investment bankers, financial advisors, legal counsel, and independent accountants.


 




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SECTION
12.2 Notices. All notices, requests, demands, claims, and other communications under this Agreement shall be in writing and
shall be deemed to have been duly given (i) at the time of delivery if physically delivered, (ii) at the time of transmission
if transmitted by facsimile transmission or email, provided that such transmission is confirmed by prompt delivery made pursuant
to subsections (i),(iii) or (iv) of this Section 12.2, (iii) three days after having been deposited in the United States Mail,
as certified or registered mail (with return receipt requested and with first class postage pre-paid), or (iv) one business day
after having been transmitted to a third party providing delivery services in the ordinary course of business which guarantees
delivery on the next business day after such transmittal (e.g., via Federal Express), all of which notices or other communications
shall be sent to the recipient at the following address or such other address as such party may hereafter specify by like notice
to the other parties hereto:


 


(a)
          If to Buyer, addressed to:


 


New
Age Beverages Corporation 


Attn:
Brent Willis


1700
68th Avenue 


Denver,
CO 90503


Phone:
(303) 289-8655


E-mail:
bwillis@newagebev.us


 


with
a copy to (which will not constitute notice):


 


Bart
and Associates, LLC


Attn:
Ken Bart


8400
East Prentice Avenue


Suite
1500


Greenwood
Village, CO 80111


Telephone:
(720)-226-7511


E-mail:
Kbart@kennethbartesq.com


 


(b)
          If to Seller, addressed to:


 


Premiere
Micronutrient Corporation


Attn:
Randy Looper


 


Phone:
(248) 802-8905


E-mail:
rlooper@mypmcinside.com


 


with
a copy to (which will not constitute notice):


 


DeSantis
Law Firm


Attn:
Gennaro DeSantis


54
W. 11th Ave.


Denver,
Colorado 80204


Telephone:
(303) 885-3060


E-mail:
gdesantis@masopartners.com


 




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SECTION
12.3 Disclosure Schedule. The Disclosure Schedule constitutes a part of this Agreement and is incorporated into this Agreement
for all purposes as if fully set forth herein. Any disclosure made in any Section of the Disclosure Schedule shall be deemed to
be a disclosure made with respect to all of Seller’s representations, warranties and covenants contained in this Agreement,
regardless of whether or not a specific cross-reference is made thereto to the extent that the relevance of any such disclosure
in any other Section is reasonably apparent from the text of such disclosure in such Section of the Disclosure Schedule. The disclosure
of any matter in the Disclosure Schedule is not to be deemed an admission by the Seller, or otherwise imply, that such matter
is material for purposes of this Agreement, gives rise to a material adverse effect or is outside the ordinary course of business.
Matters reflected in the Disclosure Schedule are not necessarily limited to matters required by this Agreement to be reflected
in the Disclosure Schedule. Such additional matters are set forth for informational purposes and do not necessarily include other
matters of a similar nature. All references in the Disclosure Schedule to the enforceability of agreements with third parties,
the existence or non-existence of third-party rights, the absence of breaches or defaults by third parties, or similar matters
or statements, are intended only to allocate rights and risks among the Parties and are not intended to be admissions against
interests, give rise to any inference or proof of accuracy, be admissible against any Party by any Person who is not a Party,
or give rise to any claim or benefit to any Person who is not a Party. In addition, the disclosure of any matter in the Disclosure
Schedule is not to be deemed an admission that such matter actually constitutes noncompliance with, or a violation of any Legal
Requirement, Order, license, permit or Contract or other topic to which such disclosure is applicable. The headings contained
in the Disclosure Schedule are for convenience of reference only and shall not be deemed to modify or influence the interpretation
of the information contained in the Disclosure Schedule or this Agreement.


 


SECTION
12.4 Governing law; Arbitration. This Agreement will be governed by and any dispute arising out of or relating to this Agreement
will be resolved in accordance with the laws of the State of Colorado, without giving effect to conflict of laws principles. Any
dispute arising out of, in connection with, or relating to this Agreement or the Transaction Documents, including but not limited
to, any claim or controversy regarding the existence, validity, construction, interpretation, breach, termination or enforceability
thereof, shall be determined by arbitration administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures
(“Rules”), modified as follows: (i) the place of arbitration shall be Denver, Colorado; and (ii) the arbitration proceeding
shall be conducted before a panel of three neutral arbitrators, one to be appointed by each party, and a third to be selected
by the two arbitrators appointed by the parties and who shall serve as chairperson. If a party fails to nominate an arbitrator
as provided herein, then JAMS shall appoint the arbitrator in accordance with the Rules. In the event that the two party-selected
arbitrators should fail to agree upon the chairperson within a period of fourteen (14) days of the appointment of the last party-selected
arbitrator, then, upon application of either party, the chairperson shall be named by JAMS in accordance with the Rules. The award
of the arbitrators shall be final and binding on the parties, and judgment upon the award rendered by the arbitrators may be entered
and enforced by any competent court. Notwithstanding the provision in the preceding paragraph with respect to applicable substantive
law, any arbitration conducted pursuant to the terms of this Agreement shall be governed by the Federal Arbitration Act (9 U.S.C.,
Secs. 1-16). The parties shall maintain the confidential nature of the arbitration proceeding (including the hearing, all submissions,
and any award) except as may be necessary in connection with a judicial application for a preliminary remedy, a judicial challenge
to an award or its enforcement, or unless otherwise required by law or judicial decision.


 




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Without
prejudice to the validity of the arbitration provisions set forth herein, the parties to this Agreement may resort to the competent
judicial authority, if and when necessary, for the sole purposes of (i) enforcing obligations subject to judicial enforcement;
(ii) obtaining injunctive relief or precautionary measures as guarantee for the efficacy of the arbitration proceedings; and (iii)
obtaining mandatory and specific enforcement or specific performance measures, it being certain that, after achievement of the
mandatory procedure, specific enforcement or specific performance, the arbitral tribunal to be constituted shall be granted full
and exclusive authority to decide over any and all matters, whether of a procedural nature or on the merits, which have given
rise to the mandatory claim or specific enforcement. The filing of any measures under the terms set out in this clause shall not
imply any waiver of the arbitration clause set forth herein or of the full jurisdiction of the arbitral tribunal.


 


SECTION
12.5 Entire Agreement. This Agreement, the Exhibits, the Disclosure Schedule and the other Transaction Documents together
constitute the entire agreement between the Parties with respect to the subject matter hereof and thereof and supersede any previous
agreements and understandings between the Parties with respect to such matters.


 


SECTION
12.6 Assignment and Successors. Neither Party may assign any of its rights or obligations under this Agreement without the
prior written consent of the other Party. This Agreement will apply to, be binding in all respects upon and inure to the benefit
of the successors and permitted assigns of the Parties.


 


SECTION
12.7 No Third-Party Rights This Agreement is being entered into solely for the benefit of the Parties, the Buyer Indemnified
Parties and the Seller Indemnified Parties, and, except as otherwise set forth in this Agreement, the Parties do not intend that
any other Person shall be a third-party beneficiary of the covenants by either the Seller or the Buyer contained in this Agreement.


 


SECTION
12.8 Amendments; Waivers. This Agreement may be amended, modified, superseded, cancelled, renewed or extended, and the terms
and conditions hereof may be waived, only by a written instrument signed by each of the Parties hereto or, in the case of a waiver,
by the Party waiving compliance. No waiver by any Party of any default, misrepresentation or breach of warranty or covenant hereunder,
whether intentional or not, shall be deemed to extend to any prior or subsequent default, misrepresentation or breach of warranty
or covenant hereunder or affect in any way any rights arising by virtue of any prior or subsequent such occurrence.


 




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SECTION
12.9 Counterparts. This Agreement may be executed in one or more counterparts, each of which will be deemed to be an original
and all of which together will be deemed to be one and the same instrument, and will become effective when one or more counterparts
have been signed by each of the parties. Delivery of an executed counterpart of a signature page of this Agreement by .pdf attachment
to a transmission by electronic mail or by facsimile transmission shall each be effective as delivery of a manually executed original
counterpart hereof.


 


SECTION
12.10 Severability. In the event any provision, or portion thereof, of this Agreement is held by a court of competent jurisdiction
to be unenforceable in any jurisdiction, then such portion or provision will be deemed to be severable as to such jurisdiction
(but, to the extent permitted by Legal Requirements, not elsewhere) and will not affect the remainder of this Agreement, which
will continue in full force and effect. If any provision of this Agreement is held to be so broad as to be unenforceable, such
provision will be interpreted to be only as broad as is necessary for it to be enforceable.


 


SECTION
12.11 Specific Performance. The Parties hereto agree that, if any of the provisions of this Agreement or any other document
contemplated by this Agreement were not performed in accordance with their specific terms or were otherwise breached, irreparable
damage would occur, no adequate remedy at law would exist and damages would be difficult to determine, and, therefore, the Parties
shall be entitled to specific performance of the terms hereof and thereof, in addition to any other remedy at law or in equity.


 


ARTICLE
XIII.





DEFINITIONS


 


Certain
Definitions. In this Agreement, the following terms have the meanings set forth below, which shall be equally applicable to
both the singular and plural forms. Any agreement or document referred to below shall mean such agreement or document as amended,
supplemented and modified from time to time to the extent permitted by the applicable provisions thereof and by this Agreement.


 


“Affiliate
or Affiliated” with respect to any specified Person, means any (a) Person that owns or holds (beneficially or of record)
twenty percent (20%) or more of the voting or equity interests of such specified Person, (b) Person that directly or indirectly,
through one or more intermediaries, Controls, is Controlled by, or is under common Control with, such specified Person and (c)
family members of such specified Person.


 


“Assets”
means all properties, assets and rights of every kind, nature and description whatsoever whether tangible or intangible, real,
personal or mixed, fixed or contingent, choate or inchoate, known or unknown, wherever located.


 


“Business”
means the business of developing, manufacturing, selling and marketing micronutrient products and formulations, as conducted by
Seller prior to the Closing.


 




    	33 



    	 



    

 





 


“Business
Day” means any day which is not a Saturday, Sunday or a day on which banks in Colorado are authorized by applicable
Legal Requirements or executive orders to be closed.


 


“Code”
means the Internal Revenue Code of 1986, as amended from time to time.


 


“Consent”
means any approval, consent, ratification, waiver, or other authorization of, notice to or registration, qualification, designation,
declaration or filing with, any Person including, without limitation, any customer or Governmental Authority.


 


“Contract”
means any agreement, contract, option, license, instrument, obligation, commitment, arrangement, promise or undertaking, in each
such case, whether written or oral and whether express or implied.


 


“Control”
(including the terms “Controlled by” and “under common Control with”) means the possession, directly or
indirectly, or as trustee or executor, of the power to direct or cause the direction of the management or policies of a Person,
whether through the ownership of stock, as trustee or executor, by Contract or otherwise.


 


“Disclosure
Schedule” means the schedules attached to this Agreement and entitled Disclosure Schedule.


 


“Employee
Plan” means any “employee pension benefit plan” (as defined in Section 3(2) of ERISA), any “employee
welfare benefit plan” (as defined in Section 3(1) of ERISA), and any other plan, program, policy, practice, Contract or
other arrangement providing for compensation, severance, termination pay, deferred compensation, performance awards, stock or
stock-related awards, fringe benefits or other employee benefits or remuneration of any kind, whether written, unwritten or otherwise,
funded or unfunded, that is or has been maintained, contributed to, or required to be contributed to, by Seller for the benefit
of any employee or with respect to which Seller has or may have any Liability.


 


“Encumbrance”
means any security interest, pledge, lien, mortgage, charge, encumbrance, claim, condition, easement, covenant, warrant, equitable
interest, option, purchase right, community property interest, right of first refusal, or other right of third parties or other
restriction of any kind including, without limitation, any restriction on the exercise of any attribute of ownership (including
any restriction on the use, voting, transfer or receipt of income related to any Asset).


 


“Environmental
Law” means any applicable Legal Requirement, Order or Contract with any Governmental Authority: (a) relating to pollution
(or the cleanup thereof) or the protection of natural resources, endangered or threatened species, human health or safety, or
the environment (including ambient air, soil, surface water or groundwater, or subsurface strata); or (b) concerning the presence
of, exposure to, or the management, manufacture, use, containment, storage, recycling, reclamation, reuse, treatment, generation,
discharge, transportation, processing, production, disposal or remediation of any Hazardous Materials. The term “Environmental
Law” includes, without limitation, the following (including their implementing regulations and any state analogs): the Comprehensive
Environmental Response, Compensation, and Liability Act of 1980, as amended by the Superfund Amendments and Reauthorization Act
of 1986, 42 U.S.C. §§ 9601 et seq.; the Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery
Act of 1976, as amended by the Hazardous and Solid Waste Amendments of 1984, 42 U.S.C. §§ 6901 et seq.; the Federal
Water Pollution Control Act of 1972, as amended by the Clean Water Act of 1977, 33 U.S.C. §§ 1251 et seq.; the Toxic
Substances Control Act of 1976, as amended, 15 U.S.C. §§ 2601 et seq.; the Emergency Planning and Community Right-to-Know
Act of 1986, 42 U.S.C. §§ 11001 et seq.; the Clean Air Act of 1966, as amended by the Clean Air Act Amendments of 1990,
42 U.S.C. §§ 7401 et seq.; and the Occupational Safety and Health Act of 1970, as amended, 29 U.S.C. §§ 651
et seq.


 




    	34 



    	 



    

 





 


“ERISA”
means the Employee Retirement Income Security Act of 1974, as amended.


 


“ERISA
Affiliate” means any entity that would be deemed a “single employer” with Seller under Section 414(b), (c),
(m) or (o) of the Code or Section 4001 of ERISA.


 


“Exchange
Act” means Securities and Exchange Act of 1934, as amended, and all rules and regulations promulgated thereunder.


 


“GAAP”
means generally accepted accounting principles in the United States of America as applied consistently.


 


“Governmental
Authority” means any federal, state, local, municipal, foreign or other governmental or quasi-governmental authority
including, without limitation, any administrative, executive, judicial, legislative, regulatory or taxing authority of any nature
of any jurisdiction (including, without limitation, any governmental agency, branch, department, official or entity and any court
or other tribunal).


 


“Hazardous
Materials” means: (a) any material, substance, chemical, waste, product, derivative, compound, mixture, solid, liquid,
mineral or gas, in each case, whether naturally occurring or manmade, that is hazardous, acutely hazardous, toxic, or words of
similar import or regulatory effect under Environmental Laws; and (b) any petroleum or petroleum-derived products, radon, radioactive
materials or wastes, asbestos in any form, lead or lead-containing materials, urea formaldehyde foam insulation and polychlorinated
biphenyls.


 


“Indebtedness”
means (a) the principal of and premium, if any, and interest in respect of any indebtedness for money borrowed or any obligations
evidenced by notes or other instruments, (b) capital lease obligations, (c) obligations issued or assumed as the deferred purchase
price of property or services and (d) obligations in respect of surety bonds, letters of credit or other similar instruments.


 


“Intellectual
Property” means and includes all (a) patents and applications therefor and all reissues, divisions, re-examinations,
renewals, extensions, provisionals, substitutions, continuations and continuations-in-part thereof, and equivalent or similar
rights anywhere in the world in inventions and discoveries including, without limitation, invention disclosures, (b) trade secrets
and other proprietary information which derives independent economic value from not being generally known to the public, (c) logos,
marks (including brand names, product names, logos, and slogans), (d) all works of authorship, copyrights, copyrights registrations
and applications therefor, software, software code (in any form including source code and executable or object code), and (e)
all uniform resource locators, e-mail and other internet addresses and domain names and applications and registrations therefor.


 




    	35 



    	 



    

 





 


“Intellectual
Property Rights” means all worldwide rights in, arising from or associated with Intellectual Property, whether protected,
created, or arising under the laws of any Governmental Authority.


 


“IRS”
means the Internal Revenue Service.


 


“Legal
Requirement” means any federal, state, local, municipal, foreign, international, multinational or other statute, law,
Order, constitution, rule, regulation, ordinance, principle of common law, treaty or other requirement of any Governmental Authority.


 


“Liability”
means all liabilities of any kind whatsoever whether known or unknown, asserted or unasserted, absolute or contingent, accrued
or unaccrued, liquidated or unliquidated, due or to become due, and whether or not reflected or required by GAAP to be reflected
on a balance sheet including, without limitation, any direct or indirect Guarantee of any Liability of any other Person.


 


“Losses”
means any claims, Liabilities, obligations, damages, losses, costs, expenses, penalties, fines and judgments (at equity or at
law, including statutory and common) and damages whenever arising or incurred (including interest, court costs, reasonable fees
of attorneys, accountants and other experts), but excluding punitive or exemplary damages (except as may be awarded in connection
with a third party claim).


 


“Order”
means any award, decision, injunction, judgment, order, decree, ruling, subpoena or verdict entered, issued, made or rendered
by any court, administrative agency or other Governmental Authority or by any referee, arbitrator or mediator.


 


“Organizational
Documents” means any certificate or articles of incorporation, formation or organization, by-laws, limited liability
company operating agreement, certificate of limited partnership, business certificate of partners, partnership agreement, declaration
of trust or other similar documents.


 


“Outside
Date” means May 31, 2017.


 


“Permitted
Encumbrances” means any (a) Encumbrances for Taxes not yet delinquent and Encumbrances for Taxes that the taxpayer is
contesting in good faith through appropriate proceedings and, in each case, for which adequate reserves have been established
pursuant to GAAP, (b) statutory Encumbrances, including Encumbrances of landlords, carriers, warehousemen, mechanics, laborers,
materialmen, consignees of inventory, arising in the ordinary course of business by operation of Law with respect to a Liability
that is not yet due or delinquent, (c) purchase money Encumbrances and Encumbrances securing rental payments under capital lease
obligations, (d) zoning, building codes and other land use regulations imposed by any Governmental Authority which are not violated
by the current use or occupancy of any leased real property or the operation of the Business thereon, (e) such rights, if any,
of any utility company to construct and/or maintain lines, pipes, wires, cables, poles, conduits and distribution boxes and equipment
in, over, under, and/or upon any portion of the leased real property which rights do not or would not materially impair the use
or occupancy of any leased real property in the operation of the Business conducted thereon, (f) defects or imperfections of title,
easements, rights-of-way, covenants, conditions, restrictions and other similar matters of record, all of which do not materially
impair the use or occupancy of the leased real property or other assets in the operation of the Business by Seller, (g) Encumbrances
resulting from any actions of the Buyer or any of its Affiliates, (h) other Encumbrances arising in the ordinary course of business
and not incurred in connection with the borrowing of money, and (i) Encumbrances granted to any lender at the Closing in connection
with any financing by the Buyer of the transactions contemplated hereby.


 




    	36 



    	 



    

 





 


“Person”
means any individual, corporation, general or limited partnership, limited liability company, joint venture, estate, trust, association,
organization, labor union, Governmental Authority or other entity.


 


“Proceeding”
means any action, claim, arbitration, mediation, audit, hearing, investigation, litigation or suit (whether civil, criminal, administrative,
investigative or informal) commenced, brought, conducted or heard by or before, or otherwise involving, any court or other Governmental
Authority or referee, trustee, arbitrator or mediator.


 


“Sarbanes-Oxley
Act” means Sarbanes-Oxley Act of 2002, as amended, and all rules and regulations promulgated thereunder.


 


“SEC
Filings” means all reports and filings made by Buyer under the Securities Act and the Exchange Act.


 


“Securities
Act” means Securities Act of 1933, as amended, and all rules and regulations promulgated thereunder.


 


“Seller’s
IP” means all Intellectual Property Rights owned by Seller as of the Effective Date.


 


“Seller’s
Knowledge” means the actual knowledge of Randy Looper, without any duty of investigation or inquiry.


 


“Seller’s
Licensed IP” means all Intellectual Property Rights licensed to Seller.


 


“Tangible
Personal Property” means all machinery, equipment, tools, furniture, fixtures, computer hardware, supplies, materials,
servers, routers, desktop computers, laptop computers, fixed and mobile computer storage devices, mobile phones, personal digital
assistants, network equipment, telephone systems, back-up systems, non-fixed media and all other computer and electronic equipment
of any kind and other items of tangible personal property of every kind owned, leased or licensed by Seller (wherever located
and whether or not carried on the books of Seller) to the extent used in, related to, or necessary for, the operation of the Business
as conducted immediately prior to the Closing, together with all express and implied warranties by the manufacturers, sellers,
lessors and licensors of such items or components thereof and all maintenance records and other documents relating thereto.


 


“Tax”
or “Taxes” means any and all taxes, fees, levies, duties, tariffs and governmental impositions or charges of
any kind in the nature of, or similar to, taxes, payable to any federal, state, provincial, local or foreign taxing authority
including, without limitation (a) income, franchise, profits, gross receipts, ad valorem, net worth, value added, sales, use,
service, real or personal property, special assessments, capital stock, license, payroll, withholding, employment, social security,
workers’ compensation, unemployment compensation, utility, severance, production, excise, stamp, occupation, premiums, windfall
profits, transfer and gains taxes and (b) interest, penalties, additional taxes and additions to taxes imposed with respect thereto.


 


“Tax
Returns” means any return, report or information statement with respect to Taxes (including, but not limited to, statements,
schedules and appendices and other materials attached thereto) filed or required to be filed with the IRS or any other Governmental
Authority including, without limitation, consolidated, combined and unitary tax returns.


 


“Transaction
Documents” means this Agreement, the Bill of Sale, the Assignment and Assumption Agreement and all other contracts,
instruments and certificates contemplated hereunder to be delivered by any party hereto at or prior to the Closing.


 


[Remainder
of Page Intentionally Left Blank]


 




    	37 



    	 



    

 





 


IN
WITNESS WHEREOF, the Parties have executed this Asset Purchase Agreement as of the date first written above.


 


	 	BUYER:	 
	 	 	 
	 	NEW
    AGE BEVERAGES CORPORATION	 
	 	 	       	 
	 	By:	 	 
	 	Name:	Brent
    Willis	 
	 	Title:	Chief
    Executive Officer	 


  


	 	SELLER:	 
	 	 	 
	 	PREMIER
    MICRONUTRIENT CORPORATION	 
	 	 	 	 
	 	By:	 	 
	 	Name:	                  	 
	 	Title:	 	 


 





	 	PMC HOLDINGS, INC.	 
	 	 	 	 
	 	By:	 	 
	 	Name:	        	 
	 	Title:	 	 


 




    	38 



    	 



    

 





 


EXHIBIT
A


 


Seller’s
IP


 




    	39 



    	 



    

 


EXHIBIT
B


 


BILL
OF SALE


 


May
23, 2017


 


KNOW
ALL PERSONS BY THESE PRESENTS, that PMC Holdings, Inc., a Delaware corporation and Premier Micronutrient Corporation, a Delaware
corporation (collectively, the “Sellers”), have entered into that certain Asset Purchase Agreement, dated as
of May 18, 2017 (the “Purchase Agreement”), by and between Seller and New Age Beverages Corporation,
a Washington corporation (“Buyer”), providing for, inter alia, Seller’s sale to Buyer of all right,
title and interest in and to the Purchased Assets. Unless otherwise defined herein, all capitalized terms used herein shall have
the meanings ascribed to them in the Purchase Agreement.


 


1.
Transfer of Assets. Subject to the terms and conditions set forth in the Purchase Agreement, for good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, Seller hereby sells, conveys, assigns, transfers and delivers to
Buyer, its successors and assigns, forever, all right, title and interest in and to the Purchased Assets.


 


2.
Further Actions. At any time, and from time to time, after the date hereof, Seller shall execute and deliver or cause to
be executed and delivered to Buyer such other instruments and take such other action, all as Buyer may reasonably request, in
order to carry out the intent and purpose of this Bill of Sale.


 


3.
Representations and Warranties; Conflict with Purchase Agreement. This Bill of Sale is subject to the representations,
warranties and covenants set forth in the Purchase Agreement. In the event of any conflict between the provisions hereof and the
provisions of the Purchase Agreement, the provisions of the Purchase Agreement shall govern.


 


4.
Amendments and Waivers. This Bill of Sale may be amended, modified, superseded, cancelled, renewed or extended, and the
terms and conditions hereof may be waived, only by a written instrument signed by Buyer and Seller or, in the case of a waiver,
by the party waiving compliance.


 


5.
Governing Law. THIS BILL OF SALE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF COLORADO,
WITHOUT GIVING EFFECT TO CONFLICT OF LAWS PRINCIPLES.


 


[Signature
Page Follows]


 




    	 i



    	 



    

 





IN
WITNESS WHEREOF, Sellers have executed this Bill of Sale effective as of the date first set forth above.


 


PMC
HOLDINGS, INC.


 


	By:	 	 
	Name:
    	 	 
	Title:
    	 	 


 


PREMIER
MICRONUTRIENT CORPORATION


 


	By:	 	 
	Name:
    	 	 
	Title:
    	 	 


 




    	 ii



    	 



    

 


EXHIBIT
C


 


ASSIGNMENT
AND ASSUMPTION AGREEMENT


 


THIS
ASSIGNMENT AND ASSUMPTION AGREEMENT (this “Agreement”) is made effective as of the 23rd day of May, 2017, by
and between PMC Holdings, Inc., a Delaware corporation and Premier Micronutrient Corporation, a Delaware corporation (collectively,
the “Seller” or “Assignor”), and New Age Beverages Corporation, a Washington corporation
(the “Assignee” or “Buyer”), pursuant to that certain Asset Purchase Agreement, dated as
of May 18, 2017, by and between Buyer and Seller (the “Purchase Agreement”). All capitalized
terms not defined herein shall have the meanings assigned to them in the Purchase Agreement.


 


1.
Assignment. Subject to the terms and conditions of the Purchase Agreement, Assignor does hereby assign, grant, transfer
and set over unto the Assignee all of Assignor’s rights, benefits, privileges, causes of action and remedies under all of
the Assumed Contracts, as well as all of the Purchased Assets, together with such other rights, causes of action and remedies
as may arise by operation of law, in law or equity, in connection with any of such Assigned Contracts and Purchased Assets.


 


2.
Assumption of Liabilities. Subject to the matters set forth herein and in accordance with, and subject to, the provisions
of the Purchase Agreement, Buyer hereby accepts the transfer of the Assumed Contracts and assumes the Assumed Liabilities and
all of Seller’s duties and obligations thereunder and Buyer agrees to pay, perform and discharge, as and when due, all of
the obligations of Seller under the Assumed Liabilities.


 


3.
Excluded Liabilities. Seller shall retain, and shall be responsible for paying, honoring and discharging, as and when due,
all Excluded Liabilities. Nothing set forth herein shall be construed to result in the assumption by Buyer of any Excluded Liabilities.


 


4.
Further Actions. At any time, and from time to time, after the date hereof: (a) Seller shall execute and deliver or cause
to be executed and delivered to Buyer such other instruments and take such other action, all as Buyer may reasonably request,
in order to carry out the intent and purpose of this Agreement; and (b) Buyer shall execute and deliver or cause to be executed
and delivered to Seller such other instruments and take such other action, all as Seller may reasonably request, in order to carry
out the intent and purpose of this Agreement.


 


5.
Representations and Warranties; Conflict with Purchase Agreement. This Agreement is subject to the representations, warranties
and covenants set forth in the Purchase Agreement. In the event of any conflict between the provisions hereof and the provisions
of the Purchase Agreement, the provisions of the Purchase Agreement shall govern.


 


6.
Amendments and Waivers. This Agreement may be amended, modified, superseded, cancelled, renewed or extended, and the terms
and conditions hereof may be waived, only by a written instrument signed by the parties hereto or, in the case of a waiver, by
the party waiving compliance.


 


7.
Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF COLORADO,
WITHOUT GIVING EFFECT TO CONFLICT OF LAWS PRINCIPLES.


 


8.
Counterparts; Facsimile. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original
and all of which, taken together, shall constitute one and the same instrument. Original signatures hereto may be delivered by
facsimile or electronic transmission which shall be sufficient to bind the parties.


 


[remainder
of page intentionally left blank; signatures to follow]


 




    	3 



    	 



    

 





IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the date first written above.


 


BUYER:


 


NEW
AGE BEVERAGES CORPORATION 


 


	By:	 	 
	Name:
    	Brent
    Willis	 
	Title:
    	Chief
    Executive Officer	 


 


SELLER:


 


PMC
HOLDINGS, INC.


 


	By:	 	 
	Name:
    	 	 
	Title:
    	 	 


 


PREMIER
MICRONUTRIENT CORPORATION


 


	By:	 	 
	Name:
    	 	 
	Title:
    	 	 


 




    	 iv



    	 



    


 





EXHIBIT
D


 


FORM
OF SELLER NONCOMPETITION AGREEMENT


 


THIS
NONCOMPETITION AGREEMENT (the “Agreement”) is made and entered into as of May 23, 2017, by ____________________ (the
“Covenantor”) in favor of New Age Beverages Corporation, a Washington corporation (“Buyer”).


 


RECITALS:


 


A.
The Covenantor is an affiliate of PMC Holdings, Inc. and/or Premier Micronutrient Corporation (collectively, the “Sellers”),
and Sellers and Buyer are parties to an Asset Purchase Agreement dated May 18, 2017 herewith (the “Purchase Agreement”),
pursuant to which Buyer purchased certain assets from Sellers (the “Acquisition”). All capitalized terms used but
not defined herein, shall have the same meaning ascribed to them in the Purchase Agreement.


 


B.
The Covenantor has agreed to execute and deliver this Agreement in connection with the Acquisition.


 


NOW,
THEREFORE, the Covenantor agrees as follows:


 


	1.	Covenantor
    covenants, warrants and agrees, for the benefit of buyer, that without first obtaining buyer’s consent, Covenantor shall
    not, from the date of this agreement until the  third anniversary of the date of this agreement (the “covenant
    period”) compete with buyer  in the restricted business anywhere within the united states. As used in this agreement,
     “restricted business” means the business of micronutrient based ready to drink products as  conducted
    by Covenantor prior to the closing.


 


Notwithstanding
anything to the contrary herein, nothing in this agreement shall restrict Covenantor or his affiliates from (i) investing in buyer
or investing in any other publicly-held corporation engaged in the restricted business, if Covenantor’s aggregate investment
does not exceed 5% in value of the issued and outstanding capital stock of such corporation.


 


	2.	The
    Covenantor covenants, warrants and agrees, for the benefit of the buyer, that without first obtaining buyer’s consent,
    the Covenantor shall not during the covenant period, disclose any confidential information to any third party. As used in
    this agreement, the term “confidential information” means any and all confidential or proprietary information
    directly related to the buyer, seller, seller’s business as conducted prior to the closing, the purchased assets or
    the assumed liabilities.
    Notwithstanding the foregoing, any information that: (a)
    prior to the date of this agreement was generally publicly available, or (b) after the date of this agreement, (i) becomes
    publicly available without fault of or action on the part of Covenantor, or (ii) is acquired by the Covenantor from a third
    party, free of any restrictions as to its disclosure, or (iii) is independently
    developed by Covenantor without use of any confidential information, shall not be deemed to be confidential information. Notwithstanding
    anything herein to the contrary, the Covenantor may make disclosures required by
    any legal requirement.


 




    	 



    	 



    

 





	3.	The
    parties acknowledge that the remedy at law for a breach or threatened breach of any of the covenants set forth in this agreement
    may be inadequate. The parties covenant and agree that in the event of a breach of any of the covenants set forth in this
    agreement, in addition to any and all legal and equitable remedies immediately available, buyer may seek to have such covenants
    enforced by a temporary and/or permanent injunction in an action in equity. 
	 	 
	4.	This
    agreement and the rights and obligations hereunder shall not be assignable or transferable by any party without the prior
    written consent of the other party.
    This agreement shall be binding on and shall inure to the benefit of Covenantor and buyer
    and their respective successors and permitted assigns.
	 	 
	5.	This
    agreement shall be construed and enforced in accordance with the laws of the state of Colorado without regard to the conflicts
    of law principles thereof. Any dispute arising out of or relating in any way to this agreement shall be addressed and adjudicated
    in and any judgment shall be enforced by and in the state courts located in the state of Colorado or the federal court located
    in the state of Colorado (collectively “the courts”). Each party hereto irrevocably and unconditionally (a) consents
    to the sole and exclusive jurisdiction and venue of the courts with respect to any action, suit or proceeding arising out
    of or relating in any way to this agreement; (b) waives any defense of lack of personal jurisdiction in connection with any
    action, suit or proceeding arising out of or relating in any way to this agreement that is filed or pending in the courts;
    (c) waives any objection to and will not challenge the venue of any action, suit or proceeding arising out of or relating
    in any way to this agreement or the transactions contemplated hereby in the courts; (d) agrees that each of the courts is
    a convenient and proper forum for any action, suit or proceeding arising out of or relating in any way to this agreement;
    and (e) waives any right to and will not seek to transfer (by filing a motion to transfer, a motion to dismiss or any other
    motion) any action, suit or proceeding in the courts to any other forum or court for any reason.
	 	 
	6.	This
    agreement may be executed in counterparts, each of which shall be deemed an original and all of which together shall constitute
    one instrument. Facsimile or photostatic copies of signatures to this agreement shall be deemed to be originals and may be
    relied on to the same extent as the originals.


 


[Remainder
of Page Intentionally Left Blank]


 




    	 



    	 



    

 


IN
WITNESS WHEREOF, the parties have executed this Noncompetition Agreement as of the date first written above.


 


	 	COVENANTOR:
	 	 	 
	 	 
	 	 	 
	 	 
	 	 	 
	 	BUYER:
	 	 	 
	 	New
    Age Beverages Corporation, a Washington corporation
	 	 	 
	 	By:	 
	 	Name:	                 
	 	Its:	 


 




    	 



    	 



    

 





EXHIBIT
E


 


SELLER’S
BALANCE SHEET