UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM
CURRENT REPORT
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Item 1.01 Entry into a Material Definitive Agreement.
On February 11, 2021, NewAge, Inc. (the “Company”) entered into Sales Agreement (the “Sales Agreement”) with A.G.P./Alliance Global Partners (“A.G.P.”), under which the Company may offer and sell from time to timeshares of the Company’s Common Stock (the “Placement Shares”), through A.G.P. A.G.P. will act as sales agent and will use commercially reasonable efforts to sell on the Company’s behalf all of the Placement Shares requested to be sold by the Company, consistent with its normal trading and sales practices, on mutually agreed terms between A.G.P. and the Company.
The Company has no obligation to sell any of the Placement Shares under the Sales Agreement. The Sales agreement may be terminated by the Company upon five business days’ notice to A.G.P. and at any time by A.G.P. or by the mutual agreement of the parties. If not earlier terminated, the Sales Agreement will remain in effect until all of the Placement Shares are sold. The Company intends to use the net proceeds from this offering for general corporate purposes, including working capital. Under the Sales Agreement, the Company will pay A.G.P. a commission equal to 3% of the gross proceeds from the gross sales price of the Placement Shares. In addition, the Company has agreed to pay certain expenses incurred by A.G.P. in connection with the offering.
The offering is being made under the Company’s registration statement on Form S-3 (File No. 333-230755), which was declared effective by the Securities and Exchange Commission (the “SEC”) on April 5, 2019 under the Securities Act of 1933, as amended (the “Securities Act”), and the prospectus dated April 5, 2019, included in such registration statement, as supplemented by a final prospectus supplement, dated February 12, 2021, filed with the SEC pursuant to Rule 424(b) under the Securities Act.
The Sales Agreement contains customary representations, warranties and covenants of the Company, customary conditions to closing, indemnification obligations of the Company and A.G.P (including for liabilities under the Securities Act and termination and other provisions customary for transactions of this nature).
The representations, warranties and covenants of the Company contained in the Sales Agreement were made solely for purposes of such agreement and as of specific dates, are solely for the benefit of the parties to such agreement and may be subject to limitations agreed upon by the contracting parties. Investors are not third-party beneficiaries under the Sales Agreement and should not rely on the representations, warranties and covenants or any descriptions thereof as characterizations of the actual state of facts or conditions of the Company.
The foregoing summary of the Sales Agreement is qualified in its entirety by reference to the full text of the Sales Agreement, a copy of which is filed as Exhibit 1.1 to this Current Report on Form 8-K and incorporated herein by reference. A copy of the opinion of Faegre Drinker Biddle & Reath LLP relating to the legality of the issuance and sale of the shares of common stock in the Offering is filed as Exhibit 5.1 hereto and is incorporated herein and into the Registration Statement by reference.
Item 1.02 Termination of a Material Definitive Agreement.
On February 9, 2021, the Company notified Roth Capital Partners, LLC (“Roth”) of its election to terminate the Amended and Restated At the Market Offering Agreement (the “Roth ATM Agreement”), dated May 8, 2020, between the Company and Roth. Under the notice, the Roth ATM Agreement will terminate effective on February 16, 2021.
Under the Roth ATM Agreement, the Company was entitled to offer and sell from time to time up to an aggregate of $100 million in shares of the Company’s common stock through Roth. Roth acted as sales agent and was required to use commercially reasonable efforts to sell on the Company’s behalf all of the shares requested to be sold by the Company, consistent with its normal trading and sales practices, on mutually agreed terms between the Roth and the Company.
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
| NewAge, Inc. | ||
| Date: February 12, 2021 | By: | /s/ Brent D. Willis |
| Brent D. Willis | ||
Chief Executive Officer | ||