Page 9 of 11 – SEC Filing
| CUSIP No. 65540B105 | Page 9 of 14 Pages |
(d) No person other than the Reporting Persons is known to have the right to receive or the
power to direct the receipt of dividends from or the proceeds from the sale of shares of the Common Stock.
(e) Not applicable.
| Item 6. | Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer |
The
following description of certain agreements and other documents does not purport to be complete and is qualified in its entirety by reference to the terms and conditions of such agreements and other documents, copies of which are filed as
Exhibits 4 and 5 to this Schedule 13D and are incorporated by reference in their entirety into this Item 6.
The Purchase Agreement
The Purchase Agreement provides for the issuance and sale by the Issuer to the Fund of 8,873,240 shares of Common Stock (the
Shares). The base purchase price for the Shares is $3.55 per share, or an aggregate of $31,500,002, which will be paid at the closing of the transactions contemplated by the Purchase Agreement.
The Purchase Agreement contains customary representations, warranties, covenants and agreements. The consummation of the transactions contemplated by the
Purchase Agreement is subject to the satisfaction of certain conditions, including certain consents and the waiver of certain rights pursuant to (i) a securities purchase agreement between the Issuer and a stockholder of the Issuer,
Catterton-Noodles, LLC (Catterton), (ii) a stockholders agreement among the Issuer and certain stockholders of the Issuer, including Catterton and Argentia Private Investments, Inc. (Argentia), and
(iii) a registration rights agreement among the Issuer and certain stockholders of the Issuer, including Catterton and Argentia. Certain consents and waivers were received on March 13, 2017. The Purchase Agreement provides that the Issuer
is obligated to indemnify the Fund and its affiliates under certain circumstances based upon (i) breaches by the Issuer of its representations, warranties, covenants or agreements in the Purchase Agreement, (ii) any untrue or alleged
untrue statements of a material fact contained in any registration statement filed pursuant to certain registration rights granted by the Issuer to the Fund in the Purchase Agreement, and (iii) certain third-party claims brought in connection
with the transactions contemplated under the Purchase Agreement or any transaction financed by the proceeds of the sale of the Shares.
Under the terms of
the Purchase Agreement, the Fund is entitled, subject to maintaining a minimum threshold of ownership in the Common Stock, to designate one nominee to the Board of Directors of the Issuer. The Reporting Persons expect that, in connection with the
closing of the transactions contemplated by the Purchase Agreement, the Fund will designate Mr. Lynch as its nominee to the Board of Directors of the Issuer.
In addition, the Issuer has agreed to file a Form S-3 or similar short-form registration statement to register the resale of the Shares within sixty
(60) days after the closing of the transactions contemplated by the Purchase Agreement. The Purchase Agreement also extended the term of the standstill provision contained in the Side Letter, as defined and further described below.
