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EX-99.1 - PRESS RELEASE DATED DECEMBER 3, 2018 - NewAge, Inc. | nbev_ex991.htm |
EX-2.1 - PLAN OF MERGER BY AND AMONG NEW AGE BEVERAGES CORPORATION, NEW AGE HEALTH HOLDIN - NewAge, Inc. | nbev_ex21.htm |
UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
_____________________
FORM 8-K
_____________________
CURRENT
REPORT
Pursuant
to Section 13 or 15(d) of the Securities Exchange Act of
1934
Date of
Report (Date of earliest event reported): December 2,
2018
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New Age Beverages Corporation
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(Exact
name of registrant as specified in its charter)
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Washington
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(State
or other jurisdiction of incorporation)
001-38014
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27-2432263
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(Commission
File Number)
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(IRS
Employer Identification No.)
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1700
E. 68th Avenue, Denver, CO 80229
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(Address of principal executive offices) (Zip Code)
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(303)
289-8655
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(Registrant’s
telephone number, including area code)
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(Former
name or former address, if changed since last report)
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Check
the appropriate box below if the Form 8-K filing is intended to
simultaneously satisfy the filing obligation of the registrant
under any of the following provisions:
☐ Written
communications pursuant to Rule 425 under the Securities Act (17
CFR 230.425)
☐ Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
☐ Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17
CFR 240.14d-2(b))
☐ Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17
CFR 240.13e-4(c))
Indicate by check mark whether the registrant is an emerging growth
company as defined in Rule 405 of the Securities Act of 1933
(§230.405 of this chapter) or Rule 12b-2 of the Securities
Exchange Act of 1934 (§240.12b-2 of this
chapter).
Emerging Growth
Company ☒
If an emerging growth company, indicate by check mark if the
registrant has elected not to use the extended transition period
for complying with any new or revised financial accounting
standards provided pursuant to Section 13(a) of the Exchange
Act. ☒
Item 1.01 Entry into a Material Definitive Agreement
On December 2, 2018, New Age Beverages Corporation, a Washington
corporation (the “Company”) entered into a Plan of
Merger (the “Merger Agreement”) with Morinda Holdings,
Inc., a Utah corporation (“Morinda”) and New Age Health
Holdings, Inc., a newly formed Utah corporation and wholly owned
subsidiary of the Company (“Merger Sub”). Pursuant to
the Merger Agreement, immediately upon the effective time of the
merger (the “Effective Time”), Merger Sub will merge
with and into Morinda, Merger Sub will cease to exist and Morinda
will survive the merger and become a wholly-owned subsidiary of the
Company. This transaction is referred to herein as the
“Merger.”
Pursuant to the Merger Agreement, the Company has agreed to pay the
following consideration to Morinda’s equity holders and
phantom stockholder, subject to certain adjustments described in
the Merger Agreement: (i) $75 million in cash;; and (ii) $10
million in shares of the Company’s common stock, based on the
weighted average price of the common stock for the forty (40) days
prior to the closing of the Merger, (iii) shares of Series D
Preferred Stock (the “Preferred Stock”) providing for
the potential payment of up to $15 million contingent upon Morinda
achieving certain post-closing milestones, as further discussed
herein.
The holders of the Preferred Stock shall be entitled to receive a
dividend of up to an aggregate of Fifteen Million Dollars
($15,000,000) (the “Milestone Dividend”) if the
Adjusted EBITDA (as defined in the Preferred Stock’s
governing certificate of designation) of the Surviving Corporation
(as defined in the Merger Agreement) is at least Twenty Million
Dollars ($20,000,000) for the year ended December 31, 2019. The
Milestone Dividend is payable on April 15, 2020 (the
“Dividend Payment Date”). If the Adjusted EBITDA of the
Surviving Corporation is less than Twenty Million Dollars
($20,000,000), the Milestone Dividend shall be adjusted based on
applying a five times multiple to the difference between the
Adjusted EBITDA of $20 million and actual Adjusted EBITDA for the
year ended December 31, 2019 and adjusted accordingly to the $15
million Milestone Dividend. Additionally, the Company is required
to pay an annual dividend to the holders of Preferred Stock equal
to an aggregate of 1.5% of the Milestone Dividend amount, payable
on a pro rata basis. The Company may pay the Milestone Dividend and
/or the annual dividend in cash or in kind, provided that if the
Company chooses to pay in kind, the shares of Common Stock issued
as payment therefore must be registered under the Securities Act of
1933, as amended. The Preferred Stock shall terminate on the
Dividend Payment Date.
Under the Merger Agreement, immediately following closing of the
Merger, Morinda is required to have an aggregate minimum working
capital balance equal to at least Twenty-Five Million Dollars
($25,000,000).
The Merger Agreement contains representations, warranties and
covenants of the parties customary for transactions of this type.
Morinda has also agreed to customary covenants governing the
conduct of its business prior to the closing of the Merger,
including an obligation to conduct its business in the ordinary
course consistent with past practice through the Effective Time, as
well as covenants relating to stockholder approvals and equity
acknowledgments. Morinda has agreed not to solicit,
initiate or participate in discussions with third parties regarding
other proposals to acquire Morinda and it has agreed to certain
restrictions on its ability to respond to such proposals. The
Merger Agreement also contains customary termination provisions for
the Company and Morinda. Either the Company or Morinda
may terminate the Merger Agreement if the closing does not take
place on or before the later of (i) February 28, 2019 and (ii) the
date the parties have received approval of the Merger under the
requirements of the Hart-Scott-Rodino Antitrust Improvements Act of
1976, as amended.
The Merger Agreement has been approved by the board of directors of
the Company. Morinda has agreed to, within twenty (20) days of the
date of the Merger Agreement, solicit and obtain the consent of its
stockholders sufficient in number to adopt the Merger Agreement and
to approve the Merger in order to enable the closing of the Merger
to occur as promptly as practicable.
This summary of the principal terms of the Merger Agreement and the
copy of the Merger Agreement filed as an exhibit to this Form 8-K
are intended to provide information regarding the terms of the
Merger Agreement and are not intended to modify or supplement any
factual disclosures about the Company in its public reports filed
with the Securities and Exchange Commission. In particular, the
Merger Agreement and the related summary are not intended to be,
and should not be relied upon as, disclosures regarding any facts
and circumstances relating to the Company. The foregoing
description of the Merger and the Merger Agreement does not purport
to be complete and is qualified in its entirety by reference to the
full text of the Merger Agreement, a copy of which is attached
hereto as Exhibit 2.1 and is incorporated into this report by
reference.
Forward Looking Statements
This document contains forward-looking statements concerning the
proposed acquisition, the expected timetable for completing the
transaction, future financial and operating results and any other
statements regarding events or developments that the parties
believe or anticipate will or may occur in the future. Risks
and uncertainties may cause actual results and benefits of the
proposed acquisition to differ materially from management
expectations. Potential risks and uncertainties include,
among others: general economic conditions and conditions
affecting the industries in which Company and Morinda operate and
the parties’ ability to satisfy the closing conditions of the
Merger Agreement and consummate the transaction Additional
information regarding the factors that may cause actual results to
differ materially from these forward-looking statements is
available in the Company’s filings with the Securities and
Exchange Commission, including the Company’s Annual Report on
Forms 10-K and 10-K/A for the year ended December 31, 2017 and
Quarterly Report on Form 10-Q for the quarterly period ended
September 30, 2018. These forward-looking statements speak only as
of the date of this communication and neither Parent nor the
Company assumes any obligation to update or revise any
forward-looking statement, whether as a result of new information,
future events and developments or otherwise, except as required by
law.
Item
9.01 Financial Statements and Exhibits.
The following exhibit is furnished as part of this Current Report
on Form 8-K:
Exhibit
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Description
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Plan of
Merger by and among New Age Beverages Corporation, New Age Health
Holdings, Inc. and Morinda Holdings, Inc. dated December 2,
2018.
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Press
Release dated December 3, 2018
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SIGNATURE
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.
Date:
December 3, 2018
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NEW AGE BEVERAGES CORPORATION
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By:
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/s/ Gregory A. Gould
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Gregory
A. Gould
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Chief
Financial Officer
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