Blueprint





 







EXHIBIT 10.5

 



INTELLECTUAL PROPERTY SECURITY AGREEMENT

 


THIS INTELLECTUAL PROPERTY SECURITY
AGREEMENT (this “Agreement”), dated as of June 20,
2018, by New Age Beverages Corporation and New Age Health Sciences, Inc.
(collectively, the “Grantors”), in favor of Dominion
Capital LLC, as secured lender (the “Secured Lender”).

 



WHEREAS:

 


A.           Reference
is made to that certain Security Agreement, dated as of June 20,
2018 (the “Security
Agreement”), entered into
by and among the Grantors, the other Debtors (as defined in the
Security Agreement) party thereto, and the Secured Lender, which
secures certain now existing and future arising obligations owing
to the Secured Lender (as defined in the Security Agreement) under
the Transaction Documents (as defined in the Purchase Agreement (as
defined below)), as provided in the Security
Agreement;

 


B.           Pursuant
to the Security Agreement and that certain Securities Purchase
Agreement (the “Purchase
Agreement”), entered into
between the Grantors and Secured Lender, the Grantors are required
to execute and deliver to the Secured Lender this
Agreement;

 


C.           Pursuant
to the terms of the Security Agreement, the Grantors have granted
to the Secured Lender (as defined in the Security Agreement), a
security interest in substantially all the assets of the Grantors,
including all right, title and interest of the Grantors in, the IP
Collateral (as defined below); and

 


D.           Capitalized
terms used and not otherwise defined herein that are defined in the
Security Agreement or the Purchase Agreement shall have the
meanings given such terms in the Security Agreement or the Purchase
Agreement.

 


NOW, THEREFORE, in consideration of the
mutual agreements set forth herein and for good and valuable
consideration, the receipt and sufficiency of which is hereby
acknowledged, the Grantors hereby grant to the Secured Lender (as
defined in the Security Agreement), to secure the Obligations (as
defined in the Security Agreement), a continuing security interest
in all of the Grantors’ right, title and interest in, to and
under the following, whether presently existing or hereafter
created or acquired:

 

1. Each
United States and foreign trademark and trademark application,
including, without limitation, each United States federally
registered trademark and trademark application referred to
in Schedule 1
annexed hereto, together with any
reissues, continuations or extensions thereof and all goodwill
associated therewith;

 


2. Each trademark license, including, without
limitation, each trademark license listed on schedule 1
annexed hereto, together with all
goodwill associated therewith;

 


3. All products and proceeds of the foregoing items 1
through 2, including, without limitation, any claim by the grantors
against third parties for past, present or future infringement,
misappropriation, dilution, violation or other impairment of any
trademark, including, without limitation, any trademark referred to
in Schedule 1
annexed hereto, any trademark issued
pursuant to a trademark application referred to in
Schedule
1 and any trademark licensed under any
trademark license listed on Schedule 1
annexed hereto (items 1 through 3
being herein collectively referred to as the
“Trademark
Collateral”);

 


 




 

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4. Each
United States and foreign patent and patent application, including,
without limitation, each United States federally registered patent
and patent application referred to in Schedule 2
annexed hereto, together with any
reissues, continuations or extensions thereof and all goodwill
associated therewith;

 


5. Each patent license, including, without
limitation, each patent license listed on Schedule 2
annexed hereto, together with all
goodwill associated therewith;

 


6. All products and proceeds of the foregoing items 4
through 5, including, without limitation, any claim by the grantors
against third parties for past, present or future infringement,
misappropriation, dilution, violation or other impairment of any
patent, including, without limitation, any patent referred to
in Schedule 2
annexed hereto, any trademark issued
pursuant to a patent application referred to in Schedule 2
and any patent licensed under any
patent license listed on Schedule 2
annexed hereto (items 4 through 6
being herein collectively referred to as the
“Patent
Collateral”);

 


7. If applicable, each United States and foreign
copyright and copyright application, including, without limitation,
each United States federally registered copyright and copyright
application referred to in Schedule 3
annexed hereto, together with any
reissues, continuations or extensions thereof and all goodwill
associated therewith;

 


8. If applicable, each copyright license, including,
without limitation, each copyright license listed on
Schedule
3 annexed hereto, together with
all goodwill associated therewith;

 


9. All products and proceeds of the foregoing items 7
through 8, including, without limitation, any claim by the grantors
against third parties for past, present or future infringement,
misappropriation, dilution, violation or other impairment of any
copyright, including, without limitation, any copyright referred to
in Schedule 3
annexed hereto, any copyright issued
pursuant to a copyright application referred to in
Schedule
3 and any copyright licensed under any
copyright license listed on Schedule 3
annexed hereto (items 7 through 9
being herein collectively referred to as the
“Copyright
Collateral”; items 1
through 9 being herein (i.e., the Trademark Collateral, the Patent
Collateral, and the Copyright Collateral) collectively referred to
as the “IP
Collateral”).

 


This
security interest is granted in conjunction with the security
interests granted to the Secured Lender, pursuant to the Security
Agreement and the other Transaction Documents (as defined in the
Purchase Agreement). The Grantors hereby acknowledge and affirm
that the rights and remedies of the Secured Lender with respect to
the security interest in the IP Collateral made and granted hereby
are more fully set forth in the Transaction Documents (as defined
in the Purchase Agreement), the terms and provisions of which are
incorporated by reference herein as if fully set forth herein.
Capitalized terms used but not defined herein have the respective
meanings ascribed thereto in the Transaction Documents (as defined
in the Purchase Agreement).

 


 




 

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Grantors shall give
Secured Lender prior written notice of no less than five (5)
Business Days before filing any additional application for
registration of any trademark and prompt notice in writing of any
additional trademark registrations, patent registration, or
copyright registrations granted therefor after the date hereof.
Without limiting Grantors’ obligations under this paragraph,
Grantors hereby authorize Secured Lender unilaterally to modify
this Agreement by amending Schedules 1, 2, or 3 to include any
future United States registered trademarks, patents, copyrights or
applications therefor of Grantors. Notwithstanding the foregoing,
no failure to so modify this Agreement or amend Schedules 1, 2, or
3 shall in any way affect, invalidate or detract from Secured
Lender’s continuing security interest in all Collateral,
whether or not listed on Schedule 1, 2, or 3.

 


Grantors hereby
agree that, anything herein to the contrary notwithstanding, such
Grantors shall assume full and complete responsibility for the
prosecution, defense, enforcement or any other necessary or
desirable actions in connection with their trademarks subject to
the security interest hereunder.

 


This
Agreement may be executed in any number of counterparts and by
different parties in separate counterparts, each of which when so
executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement. Signature
pages may be detached from multiple separate counterparts and
attached to a single counterpart.

 


This
Agreement is a Transaction Document (as defined in the Purchase
Agreement).

 


This
Agreement shall be construed and enforced in accordance with, and
all questions concerning the construction, validity, interpretation
and performance of this Agreement and all disputes arising
hereunder shall be governed by, the laws of the State of New York,
without giving effect to any choice of law or conflict of law
provision or rule (whether of the State of New York or any other
jurisdictions) that would cause the application of the laws of any
jurisdictions other than the State of New York. The parties hereto
(a) agree that any legal action or proceeding with respect to this
Agreement or any other agreement, document, or other instrument
executed in connection herewith or therewith, shall be brought in
any state or federal court located within the City of New York, New
York, (b) irrevocably waive any objections which either may now or
hereafter have to the venue of any suit, action or proceeding
arising out of or relating to this Agreement, or any other
agreement, document, or other instrument executed in connection
herewith, brought in the aforementioned courts and (c) further
irrevocably waive any claim that any such suit, action, or
proceeding brought in any such court has been brought in an
inconvenient forum.

 



[Remainder of Page Intentionally Left Blank; Signature Page
Follows]

 




 

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The
Grantors have caused this Intellectual Property Security Agreement
to be duly executed by its duly authorized officer thereunto as of
the date first set forth above.

 



NEW AGE HEALTH SCIENCES, INC.

 




By: /s/Brent
Willis


Name:
Brent Willis


Title:
Chief Executive Officer

 



NEW AGE BEVERAGES CORPORATION

 



By:            

/s/

CharlesEnce









Name:
Charles Ence


Title:
Chief Financial Officer

 


 

 



Acknowledged:

 


DOMINION CAPITAL
LLC,

 



as Secured Lender


 



By:            


/s/ Mikhail Gurevich





 



Name: Mikhail Gurevich

 



Title: Managing Member

 


 




 

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