Item
3.03. Material Modification to Rights of Security Holders.
Effective
May 24, 2021, NewAge, Inc. (the “Company”) reincorporated to the State of Delaware from the State of Washington (the
“Reincorporation”) under a plan of conversion, dated May 14, 2021 (the “Plan of Conversion”).
Under
the Plan of Conversion, the Reincorporation was effected by the Company filing (i) articles of conversion (the “Washington
Articles of Conversion”) with the Secretary of State of the State of Washington, (ii) a certificate of conversion (the “Delaware
Certificate of Conversion”) with the Secretary of State of the State of Delaware and (iii) a certificate of incorporation
(the “Delaware Certificate of Incorporation”) with the Secretary of State of the State of Delaware. Pursuant to the
Plan of Conversion, the Company also adopted new bylaws (the “Delaware Bylaws”).
As
a result of the Reincorporation:
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the
affairs of the Company ceased to be governed by the Washington Business Corporation Act, the Company’s existing Articles
of Incorporation and the Company’s existing Bylaws, and the affairs of the Company became subject to the General Corporation
Law of the State of Delaware, the Delaware Certificate of Incorporation and the Delaware Bylaws;
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the
Company as a Delaware corporation is deemed to be the same entity as the Company was as a Washington corporation for all purposes
under the laws of Delaware, with the Company’s existence as a Delaware corporation deemed to have commenced when it
was initially formed in Washington;
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each
outstanding share of common stock of the Company as a Washington corporation automatically converted into an outstanding share
of common stock of the Company as a Delaware corporation;
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each
outstanding option, warrant, or other convertible right to acquire shares of common stock of the Company as a Washington corporation
converted into an equivalent option, warrant, or other convertible right to acquire, upon the same terms and conditions (including
the vesting schedule and exercise or conversion price per share applicable to each such option, warrant or other convertible
right), the same number of shares of common stock of the Company as a Delaware corporation; and
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each
director and officer of the Company as a Washington corporation continues to hold his or her respective position with the
Company as a Delaware corporation.
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Certain
rights of the Company’s stockholders were also changed as a result of the Reincorporation by reason of differences between
the Washington Revised Statutes, the Company’s Articles of Incorporation and Bylaws as a Washington corporation and the
Delaware General Corporation Law and the Company’s Delaware Certificate of Incorporation and Delaware Bylaws as a Delaware
corporation. Some of these differences are summarized in the Company’s Proxy Statement on Schedule 14A filed with the SEC
on March 25, 2021 under the section entitled “PROPOSAL NO. 4 – APPROVAL OF THE REINCORPORATION OF THE COMPANY FROM
THE STATE OF WASHINGTON TO THE STATE OF DELAWARE – Comparison of the Company’s Shareholders’ Rights Before and
After the Reincorporation,” which summary is incorporated in its entirety herein by reference.
The
Reincorporation does not affect the trading of the Company’s shares of common stock on the Nasdaq in any respect. The Company,
as a Delaware corporation, will continue to file periodic reports and other documents as and when required by the rules and regulations
of the SEC.
Stockholders
who are holding their shares of commons stock of the Company in electronic form at brokerage firms do not have to take any action
as a result of the Reincorporation.
Stockholders
holding paper certificates representing outstanding shares of common stock of the Company also do not need to take any action
as a result of the Reincorporation because each stock certificate continues to represent the same number of shares of common stock
of the Company as a Delaware corporation.
The
Reincorporation did not affect any of the Company’s material contracts with any third parties, and the Company’s rights
and obligations under such material contractual arrangements continue to be rights and obligations of the Company after the Reincorporation.
The Reincorporation did not result in any change in headquarters, business, jobs, management, location of any of the offices or
facilities, number of employees, assets, liabilities or net worth (other than as a result of the costs incident to the Reincorporation)
of the Company.
The
foregoing description of the Reincorporation, the Plan of Conversion, the Washington Articles of Conversion, the Delaware Certificate
of Conversion, the Delaware Certificate of Incorporation and the Delaware Bylaws does not purport to be complete and is qualified
in its entirety by reference to the full text of the Plan of Conversion, the Washington Articles of Conversion, the Delaware Certificate
of Conversion, the Delaware Certificate of Incorporation and the Delaware Bylaws, copies of which are filed herewith as Exhibits
2.1, 3.1, 3.2, 3.3 and 3.4, respectively, and incorporated herein by reference.