INTELLECTUAL PROPERTY SECURITY AGREEMENT
EXHIBIT
10.3
THIS
INTELLECTUAL PROPERTY SECURITY AGREEMENT (the “Agreement”) made as of
this 10th day of August, 2018 by NEW AGE BEVERAGES
CORPORATION, a corporation organized under the laws of the State of
Washington, and NEW AGE HEALTH SCIENCES, INC., a corporation formed
under the laws of the State of Nevada (collectively,
“Grantors” and each a
“Grantor”), in favor of
SIENA LENDING GROUP LLC, as lender (together with its successors
and assigns, the “Lender”).
W I T N E S S E T H
WHEREAS, Grantors,
NABC, INC., a corporation organized under the laws of the State of
Colorado (“NABC”), and NABC
PROPERTIES, LLC, a limited liability company formed under the laws
of the State of Colorado (“NABC Properties”,
Grantors, NABC and each Person joined to the Loan Agreement as a
borrower from time to time, collectively, the “Borrowers”, and each a
“Borrower”), have entered
into that certain Loan and Security Agreement dated as of the date
hereof with Lender (as amended, restated, supplemented, or replaced
from time to time, the “Loan Agreement”),
providing for the extensions of credit to be made to Borrowers by
Lender;
WHEREAS, as
security for the Obligations under the Loan Agreement, each Grantor
has granted to Lender, a security interest in substantially all of
the assets of such Grantor including all right, title and interest
of such Grantor in, to and under all now owned and hereafter
acquired trademarks, copyrights and patents, together with the
goodwill of the business symbolized by such Grantor’s
trademarks, copyrights and patents and all products and proceeds
thereof, to secure the payment of all amounts owing by Borrowers
under the Loan Agreement;
NOW,
THEREFORE, in consideration of the premises set forth herein and
for other good and valuable consideration, receipt and sufficiency
of which are hereby acknowledged, each Grantor agrees as
follows:
1. Incorporation of Loan
Agreement. The Loan Agreement and the terms and provisions
thereof are hereby incorporated in their entirety by this
reference. All terms capitalized but not otherwise defined herein
shall have the same meanings ascribed to them in the Loan
Agreement.
2. Grant and Reaffirmation of Grant of
Security Interests. To secure the payment and performance of
the Obligations under the Loan Agreement, each Grantor hereby
grants to Lender, and hereby reaffirms its prior grant pursuant to
the Loan Agreement of a continuing security interest in such
Grantor’s entire right, title and interest in and to the
following whether now owned or existing or hereafter created,
acquired or arising:
(i) each trademark,
trademark application, copyright, copyright application, patent and
patent application listed on Schedule 1 annexed hereto (such
trademarks and trademark applications, the “Trademarks”, such
copyrights and copyright applications, the “Copyrights” and such
patents and patent applications, the “Patents”), together with
any reissues, continuations or extensions thereof, and all of the
goodwill of the business connected with the use of, and symbolized
by, each Trademark; and
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(ii) all
products and proceeds of the foregoing, including without
limitation, any claim by such Grantor against third parties for
past, present or future (a) infringement or dilution of any
Trademark, Copyright or Patent, or (b) injury to the goodwill
associated with any Trademark.
3. Covenants. Except as otherwise
permitted under the Loan Agreement, each Grantor agrees not to
sell, license, grant any option, assign or further encumber its
rights and interest in the Trademarks, Copyrights or Patents
without prior written consent of Lender.
4. Representations and Warranties.
Each Grantor hereby represents and warrants that the Trademarks,
Copyrights and Patents listed on Schedule 1 attached hereto
constitute all trademarks, trademark applications, copyrights,
copyright applications, patents and patent applications owned or
registered to such Grantor as of the date of this
Agreement.
5. Counterparts. This Agreement
may be executed in any number of counterparts, all of which shall
constitute one and the same instrument, and any party hereto may
execute this Agreement by signing and delivering one or more
counterparts. Delivery by facsimile or electronic transmission
shall bind the parties hereto.
6. Governing Law. This Agreement
and the transactions contemplated hereby, and all disputes between
the parties under or relating to this Agreement or the facts or
circumstances leading to its execution, whether in contract, tort
or otherwise shall be governed by and construed in accordance with
the laws of the State of New York.
7. Termination. This Agreement and
the Liens and security interests granted hereunder shall
automatically terminate upon a termination of the Loan Agreement
pursuant to and in accordance with the terms thereof.
[Signatures
to appear on following page]
2
IN
WITNESS WHEREOF, each Grantor has duly executed this Agreement as
of the date first written above.
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NEW AGE BEVERAGES
CORPORATION
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By:
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Name:
Xxxxx
Xxxxxx
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Title:
Chief
Executive Officer
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NEW AGE HEALTH SCIENCES,
INC
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By:
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Name:
Xxxxx
Xxxxxx
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Title:
Chief
Executive Officer
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Agreed
and Accepted
As of
the Date First Written Above
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SIENA LENDING GROUP
LLC
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By:
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Name: Xxxxx
Xxxxxxx
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Title:
Authorized
Signatory
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By:
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Name:
Xxxxxx
Xxxxxxxx
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Title:
Authorized
Signatory
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3
SCHEDULE 1
Trademarks
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Owner
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Trademark Title
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Application No.
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Date of Application
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Reg. No.
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Date of Registration
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New Age
Beverages Corporation
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Búcha
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86694956
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7/16/2015
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5025217
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8/23/2016
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New Age
Beverages Corporation
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Aspen
Pure®
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85025636
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4/28/2010
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3845505
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9/7/2010
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76438612
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8/7/2002
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2958731
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5/31/2005
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New Age
Beverages Corporation
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XingEnergy®
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77312629
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10/24/2007
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4218006
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10/2/2012
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New Age
Beverages Corporation
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XingTea®
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77050595
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11/25/2006
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3289696
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9/11/2007
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New Age
Beverages Corporation
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Coco-Libre
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85243126
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2/5/2011
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4094652
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01/31/2012
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New Age
Beverages Corporation
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PediaAde
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87599349
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9/7/2017
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Pending
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Pending
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New Age
Beverages Corporation
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BÚCHA
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85087186
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07/18/2010
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3999942
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07/19/2011
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New Age
Beverages Corporation
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‘NHANCED
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87846811
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03/23/2018
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Pending
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Pending
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New Age
Beverages Corporation
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LIBERATE
YOUR THIRST
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86609758
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04/24/2015
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4863045
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12/01/2015
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New Age
Beverages Corporation
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XING
JUICE
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85665801
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06/29/2012
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4297827
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03/05/2013
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New Age
Beverages Corporation
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XING
(Stylized)
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76636564
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04/20/2005
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3078333
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04/11/2006
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New Age
Beverages Corporation
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XING
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76636563
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04/20/2005
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3078332
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04/11/2006
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4
SCHEDULE 1 CONT’D
Copyrights
None
SCHEDULE 1 CONT’D
Patents and Patent Applications
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Owner
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Patent Title
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Application No.
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Date of Application
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Reg. No.
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Date of Registration
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New Age
Health Sciences, Inc.
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Multiple
Antioxidants Micronutrients
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10/229,271
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8/28/02
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6,849,613
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2/1/05
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New Age
Health Sciences, Inc.
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Formulations
Comprising Multiple Dietary and Endogenously Made Antioxidants and
B-Vitamins
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11/357,246
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2/11/06
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7,399,755
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7/15/08
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New Age
Health Sciences, Inc.
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Use Of
Multiple Antioxidants Micronutrients as Systemic Biological
Radioprotective Agents Against Potential Ionizing Radiation
Risks
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10/229,274
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8/28/02
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7,449,
451
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11/11/08
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New Age
Health Sciences, Inc.
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Micronutrient
Formulations For Treatment of Diabetes Mellitus
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11/943,176
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11/20/07
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7,605,145
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10/20/09
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New Age
Health Sciences, Inc.
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Micronutrient
Formulations for Pulmonary and Heart Health
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12/157,077
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6/6/08
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7,628,984
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12/8/09
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New Age
Health Sciences, Inc.
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Micronutrient
Formulations for Hearing Health
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12/080,189
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4/1/08
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7,635,469
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12/22/09
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New Age
Health Sciences, Inc.
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Multiple
Antioxidant Optimal Health/Veteran’s Ultimate Complete
Formulation
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11/671,317
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2/5/07
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8,221,799
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7/17/12
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New Age
Health Sciences, Inc.
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Multiple
Antioxidant Micronutrients
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11/032,831
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1/11/05
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8,592,392
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11/26/13
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New Age
Health Sciences, Inc.
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Micronutrient
Formulations for Radiation Applications
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12/284,841
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9/25/08
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9,655,966
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5/23/17
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New Age
Health Sciences, Inc.
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Antioxidants
Micronutrients in Electronic Cigarettes
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14/756,311
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8/25/15
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TBA
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TBD
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New Age
Health Sciences, Inc.
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Composition
of Micronutrients and Phytochemicals
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62/553,2601
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9/1/17
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N/A
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N/A
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New Age
Health Sciences, Inc.
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Compositions
of Nutrients and Phytochemicals for Preoperative Functional
Beverages in Enhanced Recovery After Surgery (ERAS)
Protocols
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62/685,4981
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6/15/18
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N/A
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N/A
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1 These patents are
currently owned by the inventor, Xxxxxx X. Xxxxx, Xx. Xxxxx has
agreed to assign these patents over to New Age Beverages
Corporation as soon as the terms of their agreement are
satisfied.
5
