ARTICLES
OF AMENDMENT
OF
NEW AGE
BEVERAGES CORPORATION
Pursuant to RCW
23B.06.020, the undersigned corporation adopts the following
Articles of Amendment to its Articles of Incorporation, as
amended:
FIRST:
The name of the Corporation is New Age Beverages Corporation (the
“Company”)
SECOND:
Article IV of the Articles of Incorporation, as amended, of the
Company is amended to add the following section G creating a class
of Series C Convertible Preferred Stock, the text of which is
attached hereto as Exhibit A.
THIRD:
The foregoing amendment was duly adopted by the Board of Directors
of the Company on September 20, 2018, in accordance with the
provisions of RCW 23B.06.020. Shareholder approval was not
required.
Dated
September 21, 2018
|
NEW AGE
BEVERAGES CORPORATION
By:
/s/ Brent
Willis
Brent
Willis
Chief
Executive Officer
|
Exhibit A
Section G - Series C Convertible Preferred Stock
1.
Designation, Amount and
Par Value
. There shall be created a series of preferred
stock that shall be designated as Series C Convertible
Preferred Stock (the “
Preferred Stock
”) and the
number of shares so designated shall be up to 7,000 (which shall
not be subject to increase without the written consent of holders
of a majority in interest of the Preferred Stock then outstanding
(each, a “
Holder
” and collectively,
the “
Holders
”)).
2.
Dividends
. Holders
shall be entitled to receive, and the Corporation shall pay,
dividends on shares of Preferred Stock equal (on an as-if-converted
basis) to and in the same form as dividends actually paid on shares
of the common stock of the Corporation par value $0.001 per share
(the “
Common
Stock
”) when, as and if such dividends are paid on
shares of the Common Stock. No other dividends shall be paid on
shares of Preferred Stock.
3.
Voting Rights. On any matter presented to the stockholders of the
Corporation for their action or consideration at any meeting of
stockholders of the Corporation (or by written consent of
stockholders in lieu of meeting), each Holder of outstanding shares
of Preferred Stock shall be entitled to cast the number of votes
equal to the number of whole shares of Common Stock into which the
shares of Preferred Stock held by such Holder are convertible as of
the record date for determining stockholders entitled to vote on
such matter. Except as provided by law or by the other provisions
of the Corporation’s Articles of Incorporation, as amended,
Holders of Preferred Stock shall vote together with the holders of
Common Stock as a single class.
4.
Liquidation. Upon any liquidation, dissolution or winding-up of the
Corporation, whether voluntary or involuntary (a
“
Liquidation
”),
the Holders shall be entitled to receive out of the assets, whether
capital or surplus, of the Corporation the same amount that a
holder of Common Stock would receive if the Preferred Stock were
fully converted to Common Stock which amounts shall be paid
pari passu
with all
holders of Common Stock. The Corporation shall mail written notice
of any such Liquidation, not less than 45 days prior to the payment
date stated therein, to each Holder.
5.
Conversion.
a)
Mandatory
Conversion
. On the Charter Amendment Date (as defined
below), each outstanding share of Preferred Stock shall
automatically be converted into 1,000 shares of Common Stock of the
Corporation. “Charter Amendment Date” means the date on
which an amendment to the Corporation’s Articles of
Incorporation, as amended, to increase the Corporation’s
authorized shares of Common Stock to 100,000,000 shares has been
filed with the Secretary of State of the State of Washington.
Except for the conversion of the Preferred Stock on the Charter
Amendment date, the Holders shall have no optional conversion
right.
c)
Mechanics of
Conversion
ii)
Obligation
Absolute
. The Corporation’s obligation to issue and
deliver the shares of Common Stock upon conversion of Preferred
Stock (the “Conversion Shares”) in accordance with the
terms hereof are absolute and unconditional, irrespective of any
action or inaction by a Holder to enforce the same, any waiver or
consent with respect to any provision hereof, the recovery of any
judgment against any Person or any action to enforce the same, or
any setoff, counterclaim, recoupment, limitation or termination, or
any breach or alleged breach by such Holder or any other Person of
any obligation to the Corporation or any violation or alleged
violation of law by such Holder or any other person, and
irrespective of any other circumstance which might otherwise limit
such obligation of the Corporation to such Holder in connection
with the issuance of such Conversion Shares;
provided
,
however
, that such delivery
shall not operate as a waiver by the Corporation of any such action
that the Corporation may have against such Holder.
iii)
Fractional Shares
.
No fractional shares or scrip representing fractional shares shall
be issued upon the conversion of the Preferred Stock. As to any
fraction of a share which the Holder would otherwise be entitled to
upon such conversion, the Corporation shall at its election, either
pay a cash adjustment in respect of such final fraction or round up
to the next whole share.
iv)
Transfer Taxes and
Expenses
. The issuance of Conversion Shares on conversion of
this Preferred Stock shall be made without charge to any Holder for
any documentary stamp or similar taxes that may be payable in
respect of the issue or delivery of such Conversion Shares,
provided that the Corporation shall not be required to pay any tax
that may be payable in respect of any transfer involved in the
issuance and delivery of any such Conversion Shares upon conversion
in a name other than that of the Holders of such shares of
Preferred Stock and the Corporation shall not be required to issue
or deliver such Conversion Shares unless or until the person or
persons requesting the issuance thereof shall have paid to the
Corporation the amount of such tax or shall have established to the
satisfaction of the Corporation that such tax has been
paid.
6.
Miscellaneous
.
a)
Notices
. Any and
all notices or other communications or deliveries to be provided by
the Holders hereunder, shall be in writing and delivered
personally, by facsimile or email, or sent by a nationally
recognized overnight courier service, addressed to the Corporation,
at its principal offices Attention: Chief Financial Officer. Any
and all notices or other communications or deliveries to be
provided by the Corporation hereunder shall be in writing and
delivered personally, by facsimile or email, or sent by a
nationally recognized overnight courier service addressed to each
Holder at the facsimile number, email address or address of such
Holder appearing on the books of the Corporation. Any notice or
other communication or deliveries hereunder shall be deemed given
and effective on the earliest of (i) the date of transmission,
if such notice or communication is delivered via facsimile at the
facsimile number or via email at the email address set forth in
this Section prior to 5:30 p.m. (New York City time) on
any date, (ii) the next Trading Day after the date of
transmission, if such notice or communication is delivered via
facsimile at the facsimile number or via email at the email address
set forth in this Section on a day that is not a Trading Day
or later than 5:30 p.m. (New York City time) on any Trading
Day, (iii) the second Trading Day following the date of
mailing, if sent by U.S. nationally recognized overnight courier
service, or (iv) upon actual receipt by the party to whom such
notice is required to be given.
b)
Governing Law
. All
questions concerning the construction, validity, enforcement and
interpretation of this Certificate of Designation shall be governed
by and construed and enforced in accordance with the internal laws
of the State of Washington, without regard to the principles of
conflict of laws thereof. Each party agrees that all legal
proceedings concerning the interpretation, enforcement and defense
of the transactions contemplated hereby (whether brought against a
party hereto or its respective Affiliates, directors, officers,
shareholders, employees or agents) shall be commenced in the courts
of the State of Washington (the “
Courts
”). The Corporation
and each Holder hereby irrevocably submits to the exclusive
jurisdiction of the Courts for the adjudication of any dispute
hereunder or in connection herewith or with any transaction
contemplated hereby or discussed herein, and hereby irrevocably
waives, and agrees not to assert in any suit, action or proceeding,
any claim that it is not personally subject to the jurisdiction of
such Courts, or such Courts are improper or inconvenient venue for
such proceeding. The Corporation and each Holder hereby irrevocably
waives personal service of process and consents to process being
served in any such suit, action or proceeding by mailing a copy
thereof via registered or certified mail or overnight delivery
(with evidence of delivery) to such party at the address in effect
for notices to it under this Certificate of Designation and agrees
that such service shall constitute good and sufficient service of
process and notice thereof. Nothing contained herein shall be
deemed to limit in any way any right to serve process in any other
manner permitted by applicable law. The Corporation and each Holder
hereby irrevocably waives, to the fullest extent permitted by
applicable law, any and all right to trial by jury in any legal
proceeding arising out of or relating to this Certificate of
Designation or the transactions contemplated hereby. If any party
shall commence an action or proceeding to enforce any provisions of
this Certificate of Designation, then the prevailing party in such
action or proceeding shall be reimbursed by the other party for its
attorneys’ fees and other costs and expenses incurred in the
investigation, preparation and prosecution of such action or
proceeding.
c)
Waiver
. Any waiver
by the Corporation or a Holder of a breach of any provision of this
Certificate of Designation shall not operate as or be construed to
be a waiver of any other breach of such provision or of any breach
of any other provision of this Certificate of Designation or a
waiver by any other Holders. The failure of the Corporation or a
Holder to insist upon strict adherence to any term of this
Certificate of Designation on one or more occasions shall not be
considered a waiver or deprive that party (or any other Holder) of
the right thereafter to insist upon strict adherence to that term
or any other term of this Certificate of Designation on any other
occasion. Any waiver by the Corporation or a Holder must be in
writing.
d)
Severability
. If
any provision of this Certificate of Designation is invalid,
illegal or unenforceable, the balance of this Certificate of
Designation shall remain in effect, and if any provision is
inapplicable to any Person or circumstance, it shall nevertheless
remain applicable to all other Persons and circumstances. If it
shall be found that any interest or other amount deemed interest
due hereunder violates the applicable law governing usury, the
applicable rate of interest due hereunder shall automatically be
lowered to equal the maximum rate of interest permitted under
applicable law.
e)
Headings
. The
headings contained herein are for convenience only, do not
constitute a part of this Certificate of Designation and shall not
be deemed to limit or affect any of the provisions
hereof.
f)
Status of Converted or
Redeemed Preferred Stock
. If any shares of Preferred Stock
shall be converted, redeemed or reacquired by the Corporation, such
shares shall resume the status of authorized but unissued shares of
preferred stock and shall no longer be designated as Series C
Convertible Preferred Stock.
EXCHANGE AGREEMENT
THIS
EXCHANGE AGREEMENT (the “Agreement”), dated as of
September 20, 2018,
is
made by and between New Age Beverages Corporation, a Washington
corporation (“Company”), and the holder of shares of
common stock, $.001 par value per share of the Company (the
“Common Stock”), signatory hereto (each a
“Holder”).
WHEREAS, the Holder
is willing to exchange such number of shares of Common Stock as set
forth on
Schedule A
(the “Exchange Securities”);
WHEREAS, the
Company has authorized a new series of convertible preferred stock
of the Company designated as Series C Convertible Preferred Stock,
$0.001 par value, the terms of which are set forth in the
Certificate of Designation of Preferences, Rights and Limitations
of Series C Convertible Preferred Stock (the “Certificate of
Designations”) in the form attached hereto as
Exhibit A
(together with any
convertible preferred shares issued in replacement thereof in
accordance with the terms thereof, the “Preferred
Stock”), which Preferred Stock shall be convertible into the
Company’s Common Stock, in accordance with the terms of the
Certificate of Designations;
WHEREAS, subject to
the terms and conditions set forth in this Agreement and pursuant
to Section 3(a)(9) of the Securities Act of 1933, as amended (the
“Securities Act”), the Company desires to exchange with
the Holder, and the Holder desires to exchange with the Company,
the Exchange Securities for shares of the Company’s Preferred
Stock.
NOW,
THEREFORE, IN CONSIDERATION of the mutual covenants contained in
this Agreement, and for other good and valuable consideration the
receipt and adequacy of which are hereby acknowledged, the Company
and Holder agree as follows:
1.
Terms of the
Exchange
. The Company and Holder agree that the Holder will
exchange the Exchange Securities and will relinquish any and all
other rights he may have under the Exchange Securities in exchange
for such number of shares of Preferred Stock (the “Preferred
Shares”, and such Preferred Shares as converted into Common
Stock, the “Conversion Shares”, and together with the
Common Shares and the Preferred Shares, the
“Securities”) as set forth on
Schedule A
, annexed
hereto.
2.
Closing
. Upon
satisfaction of the conditions set forth herein, a closing shall
occur at the principal offices of the Company, or such other
location as the parties shall mutually agree. At closing, Holder
shall deliver the Exchange Securities to the Company pursuant to
this Agreement and the Company shall deliver to such Holder a
certificate evidencing the Preferred Shares, in the name(s) and
amount(s) as indicated on
Schedule A
annexed hereto. Upon
closing the Exchange Securities shall be cancelled and Holder will
have no remaining rights, powers, privileges, remedies or interests
under the Exchange Securities.
3.
Further Assurances.
Each party
shall do and perform, or cause to be done and performed, all such
further acts and things, and shall execute and deliver all such
other agreements, certificates, instruments and documents, as any
other party may reasonably request in order to carry out the intent
and accomplish the purposes of this Agreement and the consummation
of the transactions contemplated hereby.
4.
Representations and
Warranties of the Holder
. The Holder represents and warrants
as of the date hereof and as of the closing to the Company as
follows:
a.
Authorization;
Enforcement
. The Holder
has the requisite power and authority to enter into and to
consummate the transactions contemplated by this Agreement and
otherwise to carry out its obligations hereunder and
thereunder. The execution and delivery of this Agreement
by the Holder and the consummation by it of the transactions
contemplated hereby and thereby have been duly authorized by all
necessary action on the part of the Holder and no further action is
required by the Holder. This Agreement has been (or upon
delivery will have been) duly executed by the Holder and, when
delivered in accordance with the terms hereof, will constitute the
valid and binding obligation of the Holder enforceable against the
Holder in accordance with its terms, except: (i) as limited by
general equitable principles and applicable bankruptcy, insolvency,
reorganization, moratorium and other laws of general application
affecting enforcement of creditors’ rights generally, (ii) as
limited by laws relating to the availability of specific
performance, injunctive relief or other equitable remedies and
(iii) insofar as indemnification and contribution provisions may be
limited by applicable law.
b.
Information
Regarding Holder
. Holder is an “accredited
investor”, as such term is defined in Rule 501 of Regulation
D promulgated by the United States Securities and Exchange
Commission (the “Commission”) under the Securities Act,
is experienced in investments and business matters, has made
investments of a speculative nature and has purchased securities of
companies in private placements in the past and, with its
representatives, has such knowledge and experience in financial,
tax and other business matters as to enable
the Holder t
o utilize the information made
available by the Company to evaluate the merits and risks of and to
make an informed investment decision with respect to the proposed
purchase, which represents a speculative investment. Holder has the
authority and is duly and legally qualified to purchase and own the
Securities. Holder is able to bear the risk of such investment for
an indefinite period and to afford a complete loss
thereof.
c.
Legend
.
The Holder understands that the Securities have been issued (or
will be issued in the case of the Conversion Shares) pursuant to an
exemption from registration or qualification under the Securities
Act and applicable state securities laws, and except as set forth
below, the Securities shall bear any legend as required by the
“blue sky” laws of any state and a restrictive legend
in substantially the following form (and a stop-transfer order may
be placed against transfer of such stock
certificates):
[NEITHER THE
ISSUANCE AND SALE OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE
NOR THE SECURITIES INTO WHICH THESE SECURITIES ARE CONVERTIBLE HAVE
BEEN][THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN]
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR
APPLICABLE STATE SECURITIES LAWS. THE SECURITIES MAY NOT BE OFFERED
FOR SALE, SOLD, TRANSFERRED OR ASSIGNED (I) IN THE ABSENCE OF (A)
AN EFFECTIVE REGISTRATION STATEMENT FOR THE SECURITIES UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR (B) AN OPINION OF COUNSEL TO
THE HOLDER (IF REQUESTED BY THE COMPANY), IN A FORM REASONABLY
ACCEPTABLE TO THE COMPANY, THAT REGISTRATION IS NOT REQUIRED UNDER
SAID ACT OR (II) UNLESS SOLD OR ELIGIBLE TO BE SOLD PURSUANT TO
RULE 144 OR RULE 144A UNDER SAID ACT. NOTWITHSTANDING THE
FOREGOING, THE SECURITIES MAY BE PLEDGED IN CONNECTION WITH A BONA
FIDE MARGIN ACCOUNT OR OTHER LOAN OR FINANCING ARRANGEMENT SECURED
BY THE SECURITIES.
d.
Restricted
Securities
. The Holder
understands that: (i) the Securities have not been and are not
being registered under the Securities Act or any state securities
laws, and may not be offered for sale, sold, assigned or
transferred unless (A) subsequently registered thereunder, (B) the
Holder shall have delivered to the Company (if requested by the
Company) an opinion of counsel to the Holder, in a form reasonably
acceptable to the Company, to the effect that such Securities to be
sold, assigned or transferred may be sold, assigned or transferred
pursuant to an exemption from such registration, or (C) the Holder
provides the Company with reasonable assurance that such Securities
can be sold, assigned or transferred pursuant to Rule 144 or Rule
144A promulgated under the Securities Act (or a successor rule
thereto) (collectively, “Rule 144”); (ii) any sale of
the Securities made in reliance on Rule 144 may be made only in
accordance with the terms of Rule 144, and further, if Rule 144 is
not applicable, any resale of the Securities under circumstances in
which the seller (or the Person through whom the sale is made) may
be deemed to be an underwriter (as that term is defined in the
Securities Act) may require compliance with some other exemption
under the Securities Act or the rules and regulations of the SEC
promulgated thereunder; and (iii) neither the Company nor any other
Person is under any obligation to register the Securities under the
Securities Act or any state securities laws or to comply with the
terms and conditions of any exemption
thereunder.
5.
Representations and
Warranties of the Company
. The
Company hereby makes the following representations and warranties
to the Holder
:
a.
Authorization;
Enforcement
. The Company has the requisite corporate
power and authority to enter into and to consummate the
transactions contemplated by this Agreement and each of the other
agreements entered into by the parties hereto in connection with
the transactions contemplated by this Agreement (collectively, the
“Exchange Documents”) and otherwise to carry out its
obligations hereunder and thereunder. The execution and
delivery of this Agreement by the Company and the consummation by
it of the transactions contemplated hereby and thereby have been
duly authorized by all necessary action on the part of the Company
and no further action is required by the Company, the Board of
Directors of the Company or the Company’s stockholders in
connection therewith, including, without limitation, the issuance
of the Preferred Shares, and the reservation for issuance and
issuance of Conversion Shares issuable upon conversion of the
Preferred Shares have been duly authorized by the Company's Board
of Directors and no further filing, consent, or authorization is
required by the Company, its Board of Directors or its
stockholders. This Agreement and any Other Agreement (as
defined herein) have been (or upon delivery will have been) duly
executed by the Company and, when delivered in accordance with the
terms hereof, will constitute the valid and binding obligation of
the Company enforceable against the Company in accordance with its
terms, except: (i) as limited by general equitable principles and
applicable bankruptcy, insolvency, reorganization, moratorium and
other laws of general application affecting enforcement of
creditors’ rights generally, (ii) as limited by laws relating
to the availability of specific performance, injunctive relief or
other equitable remedies and (iii) insofar as indemnification and
contribution provisions may be limited by applicable
law.
b.
Organization and
Qualification
. Each of the Company and its subsidiaries (the
“Subsidiaries”) are entities duly organized and validly
existing and in good standing under the laws of the jurisdiction in
which they are formed, and have the requisite power and
authorization to own their properties and to carry on their
business as now being conducted and as presently proposed to be
conducted. Each of the Company and each of its Subsidiaries is duly
qualified as a foreign entity to do business and is in good
standing in every jurisdiction in which its ownership of property
or the nature of the business conducted by it makes such
qualification necessary, except to the extent that the failure to
be so qualified or be in good standing would not have a Material
Adverse Effect. As used in this Agreement, “Material Adverse
Effect” means any material adverse effect on (i) the
business, properties, assets, liabilities, operations (including
results thereof), condition (financial or otherwise) or prospects
of the Company or any Subsidiary, individually or taken as a whole,
(ii) the transactions contemplated hereby or in any of the other
Exchange Documents or (iii) the authority or ability of the Company
to perform any of its obligations under any of the Exchange
Documents.
c.
No Conflict
. The
execution, delivery and performance of the Exchange Documents by
the Company and the consummation by the Company of the transactions
contemplated hereby and thereby (including, without limitation, the
issuance of the Preferred Shares and reservation for issuance and
issuance of the Conversion Shares) will not (i) (i) result in a
violation of the Certificate of Incorporation (as defined below) or
other organizational documents of the Company or any of its
Subsidiaries, any capital stock of the Company or any of its
Subsidiaries or Bylaws (as defined below) of the Company or any of
its Subsidiaries, (ii) conflict with, or constitute a default (or
an event which with notice or lapse of time or both would become a
default) under, or give to others any rights of termination,
amendment, acceleration or cancellation of, any agreement,
indenture or instrument to which the Company or any of its
Subsidiaries is a party, or (iii) result in a violation of any law,
rule, regulation, order, judgment or decree (including foreign,
federal and state securities laws and regulations and the rules and
regulations of the Nasdaq Stock Market (the “Principal
Market”) applicable to the Company or any of its Subsidiaries
or by which any property or asset of the Company or any of its
Subsidiaries is bound or affected except, in the case of clause
(ii) or (iii) above, to the extent such violations that could not
reasonably be expected to have a Material Adverse
Effect.
d.
No Consents
.
Neither the Company nor any Subsidiary is required to obtain any
consent from, authorization or order of, or make any filing or
registration with, any court, governmental agency or any regulatory
or self-regulatory agency or any other Person in order for it to
execute, deliver or perform any of its respective obligations under
or contemplated by the Exchange Documents, in each case, in
accordance with the terms hereof or thereof, except as previously
obtained. All consents, authorizations, orders, filings and
registrations which the Company or any Subsidiary is required to
obtain pursuant to the preceding sentence have been obtained or
effected on or prior to the date of this Agreement, and neither the
Company nor any of its Subsidiaries is aware of any facts or
circumstances which might prevent the Company or any of its
Subsidiaries from obtaining or effecting any of the registration,
application or filings contemplated by the Exchange
Documents.
e.
Securities
Law Exemptions
. Assuming the
accuracy of the representations and warranties of the Holder
contained herein, the offer and issuance by the Company of the
Securities is exempt from registration under the Securities Act.
The offer and issuance of the Securities is exempt from
registration under the Securities Act pursuant to the exemption
provided by Section 3(a)(9) thereof. The Company covenants and
represents to the Holder that neither the Company nor any of its
Subsidiaries has received, anticipates receiving, has any agreement
to receive or has been given any promise to receive any
consideration from the Holder or any other Person in connection
with the transactions contemplated by the Exchange
Documents.
f.
Issuance
of Securities
. The issuance of
the Preferred Shares are duly authorized and upon issuance in
accordance with the terms of the Exchange Documents shall be
validly issued, fully paid and non-assessable and free from all
taxes, liens, charges and other encumbrances with respect to the
issue thereof. Upon issuance or conversion in accordance with the
Certificate of Designations, the Conversion Shares, when issued,
will be validly issued, fully paid and nonassessable and free from
all preemptive or similar rights, taxes, liens, charges and other
encumbrances with respect to the issue thereof, with the holders
being entitled to all rights accorded to a holder of Common
Stock.
6.
Miscellaneous.
a.
Successors and Assigns
. This
Agreement shall be binding upon and inure to the benefit of the
parties and their respective successors and assigns.
b.
Governing Law
. This Agreement
shall be governed by and construed under the laws of the State of
Washington without regard to the choice of law principles
thereof.
c.
Severability
.
If any provision of this Agreement shall be invalid or
unenforceable in any jurisdiction, such invalidity or
unenforceability shall not affect the validity or enforceability of
the remainder of this Agreement in that jurisdiction or the
validity or enforceability of any provision of this Agreement in
any other jurisdiction.
d.
Counterparts/Execution
.
This Agreement may be executed in two or more identical
counterparts, all of which shall be considered one and the same
agreement and shall become effective when counterparts have been
signed by each party and delivered to the other party. In the event
that any signature is delivered by facsimile transmission or by an
e-mail which contains an electronic file of an executed signature
page, such signature page shall create a valid and binding
obligation of the party executing (or on whose behalf such
signature is executed) with the same force and effect as if such
facsimile or electronic file signature page (as the case may be)
were an original thereof.
e.
Entire Agreement; Amendments
.
This Agreement constitutes the entire agreement between the parties
with regard to the subject matter hereof and thereof, superseding
all prior agreements or understandings, whether written or oral,
between or among the parties. This Agreement may be amended,
modified, superseded, cancelled, renewed or extended, and the terms
and conditions hereof may be waived, only by a written instrument
signed by all parties, or, in the case of a waiver, by the party
waiving compliance. Except as expressly stated herein, no delay on
the part of any party in exercising any right, power or privilege
hereunder shall operate as a waiver thereof, nor shall any waiver
on the part of any party of any right, power or privilege hereunder
preclude any other or future exercise of any other right, power or
privilege hereunder.
f.
Headings
.
The headings used in this Agreement are used for convenience only
and are not to be considered in construing or interpreting this
Agreement.
(Signature
Pages Follow)
IN
WITNESS WHEREOF, the parties have
caused this Agreement to be duly executed as of the day and year
first above written.
NEW AGE
BEVERAGES CORPORATION
By:
/s/ Charles
Ence
Name:
Charles Ence
Title:
Vice President Finance
HOLDER:
/s/ Brent
Willis
Brent
Willis
/s/ Neil
Fallon
Neil
Fallon
SCHEDULE
A
Name of Holder
|
Number of Shares of Common Stock to be Exchanged
|
Number of Shares of
Preferred Stock to be Issued
|
Brent
Willis
|
1,773,000
|
1,773
|
Neil
Fallon
|
5,127,000
|
5,127
|