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

June 29, 2020

Date of Report (Date of earliest event reported)

Opes Acquisition Corporation

(Exact Name of Registrant as Specified in its Charter)

Registrant’s telephone number, including area code: (305) 573-3900

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:

Securities registered pursuant to Section 12(b) of the Act:

Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (17 CFR §230.405) or Rule 12b-2 of the Securities Exchange Act of 1934 (17 CFR §240.12b-2).

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. ☐

IMPORTANT NOTICES

Opes Acquisition Corp., a Delaware corporation (“OPES” or “Purchaser”), and BurgerFi International LLC, a Delaware limited liability company (“BurgerFi”) and their respective directors, executive officers, members, managers, employees and other persons may be deemed to be participants in the solicitation of proxies from the holders of Purchaser’s common stock in respect of the proposed transaction described herein. Information about OPES’s directors and executive officers and their ownership of OPES’s common stock is set forth in OPES’s Prospectus, dated March 13, 2018, Annual Report on Form 10-K, dated March 30, 2020 and the proxy statement on Definitive Schedule 14A dated June 5, 2020, filed with the Securities and Exchange Commission (the “SEC”), as modified or supplemented by any Form 4 filed with the SEC since the date of such filings as modified or supplemented by any Form 3 or Form 4 filed with the SEC since the date of such filing. Other information regarding the interests of the participants in the proxy solicitation will be included in the proxy statement pertaining to the proposed transaction when it becomes available. These documents can be obtained free of charge from the sources indicated above.

In connection with the transaction described herein, Purchaser will file relevant materials with the SEC, including a proxy statement on Schedule 14A. Promptly after filing its definitive proxy statement with the SEC, Purchaser will mail the definitive proxy statement and a proxy card to each stockholder entitled to vote at the special meeting relating to the transaction, and other proposals. INVESTORS AND SECURITY HOLDERS OF PURCHASER ARE URGED TO READ THESE MATERIALS (INCLUDING ANY AMENDMENTS OR SUPPLEMENTS THERETO) AND ANY OTHER RELEVANT DOCUMENTS IN CONNECTION WITH THE TRANSACTION THAT PURCHASER WILL FILE WITH THE SEC WHEN THEY BECOME AVAILABLE BECAUSE THEY WILL CONTAIN IMPORTANT INFORMATION ABOUT OPES, BURGERFI AND THE TRANSACTION. The definitive proxy statement, the preliminary proxy statement and other relevant materials in connection with the transaction (when they become available), and any other documents filed by Purchaser with the SEC, may be obtained free of charge at the SEC’s website (www.sec.gov) or by writing to OPES at: 4218 NE 2nd Avenue, Miami, FL 33137

This Current Report on Form 8-K contains certain “forward-looking statements” within the meaning of the Securities Act of 1933 and the Securities Exchange Act of 1934, both as amended by the Private Securities Litigation Reform Act of 1995. Statements that are not historical facts, including statements about the execution of definitive agreements relating to the Business Combination by and among OPES and BurgerFi and the transactions contemplated thereby, and the parties’ perspectives and expectations, are forward-looking statements. Such statements include, but are not limited to, statements regarding the proposed transaction. The words “expect,” “believe,” “estimate,” “intend,” “plan,” and similar expressions indicate forward-looking statements. These forward-looking statements are not guarantees of future performance and are subject to various risks and uncertainties, assumptions (including assumptions about general economic, market, industry and operational factors), known or unknown, which could cause the actual results to vary materially from those indicated or anticipated.

Such risks and uncertainties include, but are not limited to: (i) risks related to the timing of the completion of the Business Combination, (ii) the ability to satisfy the various conditions to the closing of the Business Combination set forth in the Membership Interest Purchase Agreement, (iii) the occurrence of any event, change or other circumstances that could give rise to the termination of the Membership Interest Purchase Agreement, (iv) the risk that there may be a material adverse effect on the business, properties, assets, liabilities, results of operations or condition (financial or otherwise), of BurgerFi or its subsidiaries or franchisees, taken as a whole; (v) risks related to disruption of management time from ongoing business operations due to the proposed Business Combination; (vi) the risk that any announcements relating to the proposed Business Combination could have adverse effects on the market price of OPES’s common stock; and (vii) other risks and uncertainties and other factors identified in OPES’s prior and future filings with the SEC, available at www.sec.gov.

A further list and description of risks and uncertainties can be found in the proxy statement on Schedule 14A that will be filed with the SEC by Purchaser in connection with the proposed transaction, and other documents that the parties may file or furnish with the SEC, which you are encouraged to read.

Should one or more of these risks or uncertainties materialize, or should underlying assumptions prove incorrect, actual results may vary materially from those indicated or anticipated by such forward-looking statements. Accordingly, you are cautioned not to place undue reliance on these forward-looking statements. Forward-looking statements relate only to the date they were made, and OPES and BurgerFi, and their respective subsidiaries, if any, undertake no obligation to update forward-looking statements to reflect events or circumstances after the date they were made except as required by law or applicable regulation.

Item 1.01. Entry Into a Material Definitive Agreement

On June 29, 2020, Opes Acquisition Corp. (“OPES” or “Purchaser”) entered into a membership interest purchase agreement (the “Agreement”), with BurgerFi International, LLC, a Delaware limited liability company (“BurgerFi” or the “Company”), members of the Company (the “Members”), and BurgerFi Holdings, LLC, a Delaware limited liability company (the “Members’ Representative”). Terms used herein as defined terms and not otherwise defined herein shall have the meanings ascribed to them in the Agreement.

Acquisition of BurgerFi; Acquisition Consideration

Upon the closing of the transactions contemplated in the Agreement (the “Closing”), OPES will purchase 100% of the membership interests of BurgerFi from the Members resulting in BurgerFi becoming a wholly owned subsidiary of OPES (the “Business Combination”).

The closing consideration for the Business Combination (the “Acquisition Consideration”) shall be payable as follows (subject to reduction for indemnification claims and potential changes due to a working capital adjustment as described below):

(i) a cash payment in the aggregate amount of $30,000,000 payable to the Members;

(ii) $20,000,000 payable either in cash or in shares of Purchaser Common Stock valued at $10.60 per share (the “Stock Portion”), in the sole and absolute discretion of the OPES Board of Directors; and

(iii) the issuance in the aggregate of 4,716,981 shares of Purchaser Common Stock to the Members (the “Closing Payment Shares”)

Of the Closing Payment Shares, 943,396 shares (the “Escrow Shares”) shall be deposited into an escrow account with Continental Stock Transfer and Trust, to satisfy any potential indemnification claims brought pursuant to the Agreement.

The closing consideration payable to the stockholders of BurgerFi is also subject to adjustment based on BurgerFi’s working capital as of the closing date as contemplated in the Agreement.

Earnout Share Consideration; Earnout Tranches

The Members will be entitled to receive additional Acquisition Consideration in the form of shares of Purchaser Common Stock (“Earnout Share Consideration”) on a pro-rata basis based on their ownership percentages in the Company, subject to Purchaser achieving certain share price targets post-Closing as follows (each an “Earnout Tranche”):

The Earnout Share Consideration payable with respect to each Earnout Tranche, when issued, shall be subject to a lockup for a period of six months from the date such Earnout Tranche is earned (provided that the Members shall be permitted to undertake block trades during each such lockup period). The Members shall only be entitled to receive the Earnout Share Consideration from one Earnout Tranche in any twelve month period and if the Members qualify to receive two or more Earnout Tranches in any such twelve-month period, the Members’ Representative can elect which such Earnout Tranche the Members will receive. No more than one Earnout Tranche shall be payable in any twelve-month period.

Lock-Up on Closing Payment Shares

The Closing Payment Shares shall be subject to a lock-up agreement until six months after the Closing Date, or earlier if, subsequent to the Closing Date, Purchaser consummates a liquidation, merger, stock exchange or other similar transaction which results in all of Purchaser’s stockholders having the right to exchange their shares of common stock for cash, securities or other property. If the Stock Portion of the Acquisition Consideration is paid in shares of Purchaser Common Stock, in lieu of cash, such shares will not be subject to a lock-up.

Post-Closing Board of Directors

Immediately following the Closing, the Post-Closing Board of directors of Purchaser will consist of no more than five directors, consisting of Ophir Sternberg, as Executive Chairman, AJ Acker and three independent directors to be selected by Mr. Sternberg, in his reasonable discretion and approved by Members’ Representative, such approval not to be unreasonably withheld..

Stockholder Approval

Prior to the consummation of the Business Combination, the holders of a majority of Purchaser’s common stock attending a stockholder’s meeting (at which there is a quorum) must approve the Business Combination (the “Stockholder Approval”). In connection with obtaining the Stockholder Approval, OPES must call a special meeting of its stockholders and must prepare and file with the SEC a Proxy Statement on Schedule 14A, which will be mailed to all stockholders entitled to vote at the meeting. The Proxy Statement will set forth proposals, including but not limited to: (a) approval of the Agreement and the Business Combination, (b) approval of the change of the name of Purchaser with effect from the Closing to “BurgerFi International, Inc.,” (c) adoption and approval of the Amended and Restated Certificate of Incorporation and the Amended and Restated By-laws of Purchaser with effect from the Closing, (d) election of five members to Purchaser’s Board of Directors with effect from and after the Effective Time, (e) adoption of an Equity Incentive Plan, and (f) approval to obtain any and all other approvals necessary or advisable to effect the consummation of the Business Combination (the “Purchaser Proposals”).

Representations and Warranties

BurgerFi and the Members make certain representations and warranties (with certain exceptions set forth in the disclosure schedules to the Agreement) relating to, the following: (a) corporate existence and power; (b) authorization, execution, delivery and enforceability of the Agreement and other transaction documents; (c) governmental authorization (d) non-contravention; (e) capitalization; (f) certificate of formation; operating agreement; (g) corporate records; (h) subsidiaries; (i) consents; (j) financial statements; (k) books and records; (l) absence of certain changes; (m) properties, title to the Company’s assets; (n) litigation; (o) contracts, (p) insurance, (q) licenses and permits; (r) compliance with laws; (s) intellectual property; (t) customers, suppliers and franchisees; (u) accounts receivable and payable loans; (v) employees; (w) employment matters, employee benefits and compensation; (z) real property; (aa) tax matters; (bb) environmental laws; and (cc) certain business practices. 

OPES makes certain representations and warranties relating to, among other things: (a) corporate existence and power; (b) authorization, execution, delivery and enforceability of the Agreement and other transaction documents; (c) governmental authorization (d) non-contravention; (e) capitalization; (f) trust fund; (g) listing; (h) reporting company; (i) undisclosed liabilities; (j) interested party transactions; (k) board approval; (l) SEC documents and financial statements; (m) absence of certain changes; (n) certain business practices; (o) money laundering laws; (p) business activities; (q) purpose; (r) purchaser contracts; (s) vote required; (t) investment company; (u) minute books; and (v) application of takeover provisions..

Covenants of the Company

The Agreement contains certain customary covenants of BurgerFi prior to the Closing, including, among other things, the following:

Covenants of OPES

The Agreement contains the following covenants of OPES prior to the Closing:

Actions Prior to Closing

In addition, the parties agreed to take the following actions, among others, before the completion of the Business Combination:

Conditions to Closing

General Conditions

The obligation of OPES and BurgerFi to consummate the Acquisition is conditioned on, among other things, (a) no court, arbitrator or other authority shall have issued any judgment, injunction, decree or order, or have pending before it a proceeding for the issuance of any thereof, and there shall not be any provision of any applicable law restraining or prohibiting the consummation of the Closing, the ownership by Purchaser of the membership interests of the Members, or the effective operation of the Business by the Company after the Closing Date; (b) no action brought by a third-party non-affiliate to enjoin or otherwise restrict the consummation of the Closing; (c) the requisite majority of Purchaser’s stockholders shall have approved the Business Combination; (d) the Closing Payment Shares and additional shares to be issued as part of the consideration shall have been approved for listing on Nasdaq; (e) after giving effect to any Purchaser Stock Redemptions, Purchaser shall have net tangible assets of at least $5,000,001 upon consummation of the Business Combination; (f) the Purchaser Stock Redemptions shall have been completed in accordance with the terms hereof and the proxy statement; (g) the D&O Policy shall be in force and full effect; and (h) there shall have been no event, change or occurrence which individually or together with any other event, change or occurrence, could reasonably be expected to have a Material Adverse Effect on either Purchaser or the Company, regardless of whether it involved a known risk.

BurgerFi’s Conditions to Closing

The obligations of the Company and the Members to consummate the Closing is subject to the satisfaction, or the waiver at Members’ Representative’s discretion, of all of the following further conditions.

(a) OPES performing in all material respects all of its obligations under the Agreement required to be performed by it at or prior to the Closing Date;

(b) The representations and warranties of OPES in the Agreement, shall be true and correct in all material respects at and as of the Closing Date, as if made at and as of such date except where the failure of such representations and warranties to be so true and correct, has not had, and would not have, a Material Adverse Effect;

(c) The Company shall have received a certificate signed by an authorized officer of Purchaser stating that the closing conditions have been satisfied;

(d) Purchaser shall have delivered to the Company (i) certified copies of the resolutions duly adopted by Purchaser’s Board of Directors authorizing the execution, delivery and performance of the Agreement; and (ii) written resignations, in forms satisfactory to the Company, dated as of the Closing Date and effective as of the Closing, executed by (X) all officers of Purchaser and (Y) all persons serving as directors of Purchaser immediately prior to the Closing who are not selected as directors post-closing;

(e) Purchaser shall have cash in the Trust Account at Closing, in addition to the cash portion of the Acquisition Consideration being paid to Members at Closing, in the amount of at least $15,000,000, inclusive of the balance of the funds in the Trust Account after Purchaser Stock Redemptions and repayment of the Promissory Notes;

(f) Purchaser shall have executed and delivered to the Company a copy of each Additional Agreement (as described in more detail below) to which it is a party;

(g) The Post-Closing Board of Directors shall have been appointed effective as of the Closing; and

(h) Mr. Sternberg shall have executed and delivered to Purchaser the Standstill Letter.

Purchaser’s Conditions to Closing

The obligation of Purchaser to consummate the Closing is subject to the satisfaction, or the waiver at Purchaser’s sole and absolute discretion, of all the following further conditions:

(a) BurgerFi performing in all material respects all of its obligations under the Agreement required to be performed by it at or prior to the Closing Date;

(b) The representations and warranties of BurgerFi in the Agreement, shall be true and correct in all material respects at and as of the Closing Date, as if made at and as of such date except where the failure of such representations and warranties to be so true and correct, has not had, and would not have, a Material Adverse Effect;

(c) The Company, the Members and the Members’ Representative, as applicable, shall have executed and delivered to Purchaser a copy of each Additional Agreement to which it is a party;

(d) The Members shall have executed and delivered to Purchaser the Standstill Letter;

(e) Counsel to the Company shall have delivered an opinion in form and substance satisfactory to Purchaser’s counsel;

(f) There shall have been no event, change or occurrence which individually or together with any other event, change or occurrence, could reasonably be expected to have a Material Adverse Effect, regardless of whether it involved a known risk;

(g) Mr. Rosatti shall have executed and delivered to Purchaser an Assignment Agreement for all of the JR Trust Entities;

(h) Purchaser shall have received copies of all required third party consents, if any, in form and substance reasonably satisfactory to Purchaser, and no such third-party consents shall have been revoked;

(i) Purchaser shall have received copies of all Governmental Approvals, if any, in form and substance reasonably satisfactory to Purchaser, and no such Governmental Approval shall have been revoked;

(j) Purchaser shall have received Schedules updated as of the Closing Date, which shall not be materially different than the Schedules provided as of the date hereof; and

(k) Company shall have provided to Purchaser estoppel certificates from the top ten (10)_franchisees for the Company’s December 31, 2018 and 2019 fiscal years

Indemnification

From and after the Closing, the Company and the Members, severally but not jointly or jointly and severally, agree to indemnify and hold harmless Purchaser against, among other things, and in respect of specified actual out-of- pocket losses, damages, liabilities, costs or expenses, including reasonable attorneys’ fees (“Losses”), incurred or sustained by Purchaser as a result of: (a) any breach or inaccuracy in any of the representations or warranties of the Company or the Members contained in the Agreement; or (b) any breach or non-fulfillment of any covenant, agreement or obligation to be performed by the Company or the Members contained in the Agreement or to be performed prior to or at the Closing. The total payments made by the Company and the Members to Purchaser with respect to Losses shall not exceed the Escrow Shares in the Escrow Fund. Any liability incurred by the Members pursuant to the terms of this indemnification shall be paid by the return for cancellation of the Escrow Shares in accordance with the terms of the Escrow Agreement. The Escrow Shares shall serve as Purchaser’s sole and exclusive remedy for the Company and the Members’ obligation to indemnify Purchaser under Agreement. The Company and the Members shall not be liable to Purchaser for indemnification until the aggregate amount of all Losses exceeds 0.40% of the Consideration (the “Deductible”), in which event the Members shall only be required to pay or be liable for Losses in excess of the Deductible.

Except for representations and warranties on corporate existence and power, authorization, governmental authorization, capitalization, Certificate of Formation and Operating Agreement, Properties, Title to the Company’s Assets, Employment Matters, Employee Benefits and Compensation, Tax Matters and Finder’s Fees, which shall survive until sixty (60) days after the expiration of the statute of limitations with respect thereto, the representations and warranties of the Company and the Members shall survive until eighteen months (the “Survival Period”) following the Closing.

Termination Without Default

The Agreement may be terminated and/or abandoned at any time prior to the closing by:

 Termination Upon Default

The foregoing summary of the Agreement does not purport to be complete and is qualified in its entirety by reference to the actual Agreement, which is filed as Exhibit 2.1 hereto, and which is incorporated by reference in this report. Terms used herein as defined terms and not otherwise defined herein shall have the meanings ascribed to them in the Agreement.

Additional Agreements

In addition to the Agreement, at the Closing, the parties shall enter into the following additional agreements:

Except as described above, no consideration was paid by OPES in connection with the agreements described above.

Item 3.02 Unregistered Sales of Equity Securities

The disclosure set forth above in Item 1.01 of this Current Report on Form 8-K is incorporated by reference herein. The securities of OPES to be issued in connection with the Business Combination will not be registered under the Securities Act in reliance upon the exemption provided in Section 4(a)(2) of the Securities Act.

Item 5.02 Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.

On June 29, 2020, Mr. David M. Brain, the Chief Executive Officer of OPES advised the OPES’s Board of Directors (the “Board”), that he is resigning, effective immediately, from his position as Chief Executive Officer, but would continue as a Class 3 director on the Board. On the same date, Mr. Paul H. Rapisarda, a director of OPES, advised OPES that he is resigning from the Board immediately after his replacement was appointed. The foregoing resignations were not due to any disagreement with the Company or its management on any matter relating to OPES’s operations, policies or practices (financial or otherwise).

On the same date, members of the Board appointed Mr. Ophir Sternberg to serve as Chief Executive Officer of OPES. Mr. Sternberg will continue in his role as Chairman of the Board and as a Class 3 Director. The Board appointed Ms. Allison Greenfield to replace Mr. Rapisarda as a Class 2 director. Ms. Greenfield was also appointed to the audit committee, compensation committee and nominating committee of the Board of Directors.

Ophir Sternberg has served as a member of OPES’s board of directors since October 2019. Mr. Sternberg has over 26 years of experience investing in all segments of the real estate industry, including land acquisitions, luxury residential, hospitality, commercial and retail. He is the Founder of Lionheart Capital, an investment firm, and has served as its Chief Executive Officer since its formation in 2009. From 1993 to 2009, Mr. Sternberg was the Founder and Managing Partner of Oz Holdings, LLC, a private real estate investment and management company. Once a member of an elite Israeli Defense Force unit, Mr. Sternberg studied finance at Sy Syms School of Business at Yeshiva University. We believe Mr. Sternberg is well-qualified to serve on our board of directors due to his business experience and contacts and relationships.

Allison Greenfield has over two decades of experience in real estate development. Ms. Greenfield has been a partner of Lionheart Capital since it was founded in 2009 and has over 25 years of experience in the entitlement, design, construction and management of projects in all segments of the real estate industry, including industrial, retail, hospitality, and ultra-luxury residential condominiums. At Lionheart Capital she has been responsible for the successful acquisition, development and repositioning of real estate assets around the world. Prior to her tenure at Lionheart, Ms. Greenfield ran the development and construction arm of Oz Holdings, LLC as a partner from 2001-2010. Ms. Greenfield studied Architecture at The New School University, Parsons School of Design and holds a B.A. in History from Barnard College/Columbia University.

There was no arrangement or understanding between Ms. Greenfield and any other persons, pursuant to which Ms. Greenfield was selected as a director. There are no family relationships between or among Ms. Greenfield and any executive officers or directors of OPES. There have been no transactions to which OPES was or is to be a party, in which Ms. Greenfield had, or will have a direct or indirect material interest.

Ms. Greenfield will receive 10,000 founders shares.

Item 7.01 Regulation FD Disclosure

Attached as Exhibit 99.1 to this Current Report on Form 8-K and incorporated into this Item 7.01 by reference is a copy of the press release issued June 30, 2020 announcing the proposed transaction.

Attached as Exhibit 99.2 to this Current Report on Form 8-K and incorporated into this Item 7.01 by reference is the investor presentation dated June 30, 2020 that will be used by OPES in making presentations to certain existing and potential stockholders of OPES with respect to the proposed transaction.

Exhibits 99.1 and 99.2 are being furnished pursuant to Item 7.01 and shall not be deemed to be filed for purposes of Section 18 of the Exchange Act or otherwise be subject to the liabilities of that section, nor shall it be deemed to be incorporated by reference in any filing under the Securities Act or the Exchange Act.

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.

Dated: June 30,2020

14