Item
1.01 Entry into a Material Definitive Agreement.
Securities
Purchase Agreement
On
February 16, 2021, NewAge, Inc.(the “Company”) entered into a Securities Purchase Agreement (the “SPA”)
between the Company
and certain Purchasers named therein pursuant to which the Company agreed to sell to the Purchasers, in a private placement (the
“Private Placement”) pursuant to Section 4(a)(2) and Regulation D under the Securities Act of 1933, as amended (the
“Act”), (a) 14,636,482 shares of Common Stock (the “Shares”) and (b)
warrants (the “Warrants”)
to purchase 7,318,241 shares of Common Stock. At Closing, the Company will receive gross proceeds of $57,960,469. The Company
has agreed to provide customary indemnification to the Purchasers and their affiliates. The Private Placement is expected to close
on or about February 18, 2021, subject to customary conditions.
Roth
Capital Partners (the “Placement Agent”) acted as the exclusive placement agent in connection with the Private Placement
under the terms of an Engagement Agreement, dated February 15, 2021, between the Company and the Placement Agent under which the
Placement Agent will receive 7% of the gross proceeds of the Private Placement.
Registration
Rights Agreement
On
February 16, 2021, the Company entered into a Registration Rights Agreement between the
Company and certain Purchasers named therein pursuant
to which, among other things, the Company agreed to file a registration statement under the Act registering the resale of the
Shares and the shares of Common Stock underlying the Warrants no later than 30 days after closing.
Warrants
At
closing, under the SPA, the Company will issue the Warrants. The Warrants entitle the Purchasers to acquire an aggregate of 7,318,241
shares of Common Stock. The Warrants have an initial exercise price of $5.00 per share, subject to adjustment in certain circumstances.
The Warrants are exercisable until the third anniversary of the effectiveness of the registration statement to be filed under
the Registration Rights Agreement. Exercise of the Warrants is subject to a beneficial ownership limitation of 4.99% (or 9.99%
at the option of the Purchasers).
The
summary of the Warrant, SPA, and Registration Rights Agreement in this Current Report on Form 8-K is qualified by reference to
the full text of the Form of Warrant, SPA, and Registration Rights Agreement, which are included as Exhibits 4.1, 10.1, and 10.2,
respectively, to this Current Report on Form 8-K and incorporated herein by reference.
The
SPA has been attached as an exhibit to this report to provide investors and security holders with information regarding its terms.
It is not intended to provide any other information about the Company or its subsidiaries and affiliates. The representations,
warranties and covenants in the SPA were made only for purposes of such agreements and as of specific dates, are solely for the
benefit of the parties to the SPA, may be subject to limitations agreed upon by the parties, including being qualified by confidential
disclosures made for the purposes of allocating contractual risk between the parties to the SPA instead of establishing these
matters as facts, and may be subject to standards of materiality applicable to the parties that differ from those applicable to
investors. Investors should not rely on the representations, warranties or covenants or any description thereof as characterizations
of the actual state of facts or condition of the Company or its subsidiaries or affiliates. Moreover, information concerning the
subject matter of the representations, warranties and covenants may change after the date of the SPA, which subsequent information
may or may not be fully reflected in public disclosures by the Company or its subsidiaries or affiliates.