REGISTRATION RIGHTS AGREEMENT
Exhibit 10.3
This
Registration Rights Agreement (this “Agreement”) is made and
entered into as of
August
__, 2018, between Youngevity International, Inc., a Delaware
corporation (the “Company”) and each holder of the
Company's Series C Preferred Stock listed on Schedule A hereto
(collectively, the “Investors”).
This
Agreement is made pursuant to the Share Purchase Agreement, dated
as of the date hereof, between the Company and the Investors (the
“Purchase
Agreement”).
WHEREAS, the
Company has issued shares of Series C Preferred Stock to the
Investors and agreed, under certain conditions, to issue Incentive
Warrants to the Investors; and
WHEREAS, in
connection with the consummation of the transactions contemplated
by the Purchase Agreement, the parties desire to enter into this
Agreement in order to grant certain registration rights to the
Holders as set forth below.
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 each of the Holders agree as follows:
1. Definitions.
Capitalized terms used and not otherwise defined herein that are
defined in the Purchase Agreement shall have the meanings given
such terms in the Purchase Agreement. As used in this Agreement,
the following terms shall have the following meanings:
“415 Cutback Shares” has
the meaning set forth in Section 2(a).
“Advice” has the meaning
set forth in Section 6(c).
“Affiliate” means, with
respect to any person, any other person which directly or
indirectly controls, is controlled by, or is under common control
with, such person.
“Agreement” has the
meaning set forth in the Preamble.
“Commission” means the
Securities and Exchange Commission.
“Common Stock” means the
common stock of the Company, par value $0.001 per share, and any
securities into which such common stock may hereinafter be
reclassified.
“Company” has the meaning
set forth in the Preamble.
“Conversion Shares” shall
mean collectively the shares of Common Stock of the Company or
other Securities issuable upon conversion of the Series C Preferred
Stock.
“Effective Date” means
each date that the Registration Statement filed pursuant to Section
2(a) and any post-effective amendment thereto is declared effective
by the Commission.
“Exchange Act” means the
Securities Exchange Act of 1934, as amended, and the rules and
regulations promulgated thereunder.
“Holder” or
“Holders” means the holder
or holders, as the case may be, from time to time of Registrable
Securities.
“Indemnified Party” has
the meaning set forth in Section 5(c).
“Indemnifying Party” has
the meaning set forth in Section 5(c).
“Initial Registration
Statement” means the initial Registration Statement
filed pursuant to this Agreement.
“Losses” has the meaning
set forth in Section 5(a).
“Prospectus” means the
prospectus included in a Registration Statement (including, without
limitation, a prospectus that includes any information previously
omitted from a prospectus filed as part of an effective
registration statement in reliance upon Rule 430A promulgated under
the Securities Act), as amended or supplemented by any prospectus
supplement, with respect to the terms of the offering of any
portion of the Registrable Securities covered by a Registration
Statement, and all other amendments and supplements to the
Prospectus, including post-effective amendments, and all material
incorporated by reference or deemed to be incorporated by reference
in such Prospectus.
“Registrable Shares” means
(i) the Conversion Shares; (ii) the Warrant Shares; and (iii) any
other securities issued or issuable with respect to or in exchange
for the Conversion Shares, Warrants or Warrant Shares, whether by
merger, charter amendment or otherwise; provided, that, a security
shall not be a Registrable Share (A) upon sale pursuant to a
Registration Statement or Rule 144, or (B) while such security is
eligible for sale without restriction by the Holders pursuant to
Rule 144, assuming, for purposes of such determination with respect
to each Holder, the full conversion or exercise by such Holder of
all convertible securities held by such Holder (disregarding for
this purpose any and all limitations of any kind on conversion or
exercise of any convertible securities owned by such
Holder).
“Registration Statement”
means any one or more registration statements of the Company filed
under the Securities Act that covers the resale of any of the
Registrable Securities pursuant to the provisions of this Agreement
(including, without limitation, the Initial Registration Statement,
the New Registration Statement and any Remainder Registration
Statements), including (in each case) the amendments and
supplements to such Registration Statements, including pre- and
post-effective amendments thereto, all exhibits and all material
incorporated by reference or deemed to be incorporated by reference
in such Registration Statements.
“Remainder Registration
Statement” has the meaning set forth in Section
2(a).
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“Rule 144” means Rule 144
promulgated by the Commission pursuant to the Securities Act, as
such Rule may be amended from time to time, or any similar rule or
regulation hereafter adopted by the Commission having substantially
the same effect as such Rule.
“Rule 415” means Rule 415
promulgated by the Commission pursuant to the Securities Act, as
such Rule may be amended or interpreted from time to time, or any
similar rule or regulation hereafter adopted by the Commission
having substantially the same purpose and effect as such
Rule.
“Rule 424” means Rule 424
promulgated by the Commission pursuant to the Securities Act, as
such Rule may be amended or interpreted from time to time, or any
similar rule or regulation hereafter adopted by the Commission
having substantially the same purpose and effect as such
Rule.
“Selling Shareholder
Questionnaire” has the meaning set forth in Section
2(c).
“SEC Guidance” means (i)
any publicly-available written or oral guidance, comments,
requirements or requests of the Staff and (ii) the Securities
Act.
“Securities Act” means the
Securities Act of 1933, as amended, and the rules and regulations
promulgated thereunder.
“Series C Preferred Stock”
means the Series C Preferred Stock being sold in the
offering.
“Staff” means the staff of
the Commission.
“Trading Day” means (i) a
day on which the Common Stock is listed or quoted and traded on any
Trading Market; or (ii) if the Common Stock is not quoted on any
Trading Market, a day on which the Common Stock is quoted in the
over-the-counter market as reported in the “pink
sheets” by OTC Markets Group(or any similar organization or
agency succeeding to its functions of reporting prices);
provided, that in the event
that the Common Stock is not listed or quoted as set forth in (i)
and (ii) hereof, then Trading Day shall mean a Business
Day.
“Trading Market” means
whichever of the NYSE, the NYSE MKT, the NASDAQ Global Select
Market, the NASDAQ Global Market, the NASDAQ Capital Market, the
OTC Bulletin Board on which the Common Stock is listed or quoted
for trading on the date in question.
“Warrant Shares” shall
mean collectively the shares of Common Stock of the Company or
other Securities issuable upon exercise of the Incentive Warrants
issuable to Holder under the Purchase Agreement.
“Warrants” shall mean
collectively the Incentive Warrants issuable to Holder under the
Purchase Agreement.
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2. Required
Registration
(a) Within
one hundred and twenty (120) days of the Closing, the Company shall
prepare and file with the Commission a Registration Statement
covering the resale of all of the Registrable Securities for an
offering to be made on a continuous basis pursuant to Rule 415 or,
if Rule 415 is not available for offers and sales of the
Registrable Securities, by such other means of distribution of
Registrable Securities as the Holders may reasonably specify (the
“Initial
Registration Statement”). The Initial Registration
Statement shall be on Form S-1 (or such other form available to
register for resale the Registrable Securities as a secondary
offering). Notwithstanding the registration obligations set forth
in this Section 2,
in the event the Commission informs the Company that all of the
Registrable Securities cannot, as a result of the application of
Rule 415 or otherwise, be registered for resale as a secondary
offering on a single registration statement, the Company agrees to
promptly (i) inform each of the Holders thereof and use its
commercially reasonable efforts to file amendments to the Initial
Registration Statement as required by the Commission and/or (ii)
withdraw the Initial Registration Statement and file a new
registration statement (a “New Registration
Statement”), in either case covering the maximum
number of Registrable Securities Company’s counsel deems to
be permitted to be registered by the Commission, on Form S-1 or
such other form available to register for resale the Registrable
Securities as a secondary offering. Notwithstanding any other
provision of this Agreement, if any SEC Guidance sets forth a
limitation of the number of Registrable Securities permitted to be
registered on a particular Registration Statement as a secondary
offering (and notwithstanding that the Company used commercially
reasonable efforts to advocate with the Commission for the
registration of all or a greater number of Registrable Securities),
or in the event the Staff seeks to characterize any offering
pursuant to a Registration Statement filed pursuant to this
Agreement as constituting an offering of securities by or on behalf
of the Company or takes other action such that Rule 415 is not
available to the Company to register the resale of such Registrable
Securities and as a result the Staff or the SEC does not permit
such Registration Statement to become effective and used for
resales in a manner that permits the continuous resale at the
market by the Holders participating therein (or as otherwise may be
acceptable to each Holder) without being named therein as an
“underwriter,” unless otherwise directed in writing by
a Holder as to its Registrable Securities, the number of
Registrable Securities to be registered on such Registration
Statement will be reduced on a pro
rata basis based on
the total number of unregistered Registrable Securities held by
such Holders (such reduced Registrable Securities, the “415
Cutback Shares”). In the event the Company amends the Initial
Registration Statement or files a New Registration Statement, as
the case may be, under clauses (i) or (ii) above, the Company will
use its commercially reasonable efforts to file with the
Commission, as promptly as allowed by Commission or SEC Guidance
provided to the Company or to registrants of securities in general,
one or more registration statements on Form S-1 or such other form
available to register for resale those Registrable Securities that
were not registered for resale on the Initial Registration
Statement, as amended, or the New Registration Statement, including
the 415 Cutback Shares (the “Remainder Registration
Statements”). No Holder shall be named as an
“underwriter” in any Registration Statement without
such Holder’s prior written consent.
(b) The
Company shall use its commercially reasonable efforts to cause each
Registration Statement or any post-effective amendment thereto to
be declared effective by the Commission as soon as practicable
(including, with respect to the Initial Registration Statement or
the New Registration Statement, as applicable, filing with the
Commission a request for acceleration of effectiveness in
accordance with Rule 461 promulgated under the Securities Act
within five Business Days after the date that the Company is
notified (orally or in writing, whichever is earlier) by the
Commission that such Registration Statement will not be
“reviewed,” or not be subject to further review and the
effectiveness of such Registration Statement may be accelerated),
shall use its commercially reasonable efforts to keep each
Registration Statement continuously effective under the Securities
Act until the earlier of (i) such time as all of the Registrable
Securities covered by such Registration Statement have been
publicly sold by the Holders or (ii) the date that is one year
following the date hereof (the “Effectiveness
Period”).
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(c) Each
Holder agrees to furnish to the Company a completed Selling
Shareholder Questionnaire in the form attached to this Agreement as
Annex A or in a
form mutually agreeable between the Parties. At least five Trading
Days prior to the first anticipated filing date of a Registration
Statement for any registration under this Agreement, the Company
will notify each Holder of the information the Company requires
from that Holder other than the information contained in the
Selling Shareholder Questionnaire, if any, which shall be completed
and delivered to the Company promptly upon request and, in any
event, within three Trading Days prior to the applicable
anticipated filing date. Each Holder further agrees that it shall
not be entitled to be named as a Selling Shareholder in the
Registration Statement or use the Prospectus for offers and resales
of Registrable Securities at any time, unless such Holder has
returned to the Company a completed and signed Selling Shareholder
Questionnaire and a response to any requests for further
information as described in the previous sentence. If a Holder of
Registrable Securities returns a Selling Shareholder Questionnaire
or a request for further information, in either case, after its
respective deadline, the Company shall use its commercially
reasonable efforts at the expense of the Holder who failed to
return the Selling Shareholder Questionnaire or to respond for
further information to take such actions as are required to name
such Holder as a selling security holder in the Registration
Statement or any pre-effective or post-effective amendment thereto
and to include (to the extent not theretofore included) in the
Registration Statement the Registrable Securities identified in
such late Selling Shareholder Questionnaire or request for further
information. Each Holder acknowledges and agrees that the
information in the Selling Shareholder Questionnaire or request for
further information as described in this Section 2(c) will be used
by the Company in the preparation of the Registration Statement and
hereby consents to the inclusion of such information in the
Registration Statement.
(d) Notwithstanding
anything to the contrary herein, at any time after any Registration
Statement has been declared effective by the Commission, the
Company may delay the disclosure of material non-public information
concerning the Company if the disclosure of such information at the
time is not, in the good faith judgment of the Company, in the best
interests of the Company (a “Grace Period”);
provided,
however, the
Company shall promptly (i) notify the Holders in writing (including
via facsimile or other electronic transmission) of the existence of
material non-public information giving rise to a Grace Period
(provided that the Company shall not disclose the content of such
material non-public information to the Holders) or the need to file
a supplement or post-effective amendment, as applicable, and the
date on which such Grace Period will begin, and (ii) notify the
Holders in writing (including via facsimile or other electronic
transmission) of the date on which the Grace Period ends;
provided,
further, that no
single Grace Period shall exceed 30 consecutive days, and during
any 365 day period, the aggregate of all Grace Periods shall not
exceed an aggregate of 60 days (each Grace Period complying with
this provision being an “Allowable Grace Period”).
For purposes of determining the length of a Grace Period, the Grace
Period shall be deemed to begin on and include the date the Holders
receive the notice referred to in clause (i) above and shall end on
and include the later of the date the Holders receive the notice
referred to in clause (ii) above and the date referred to in such
notice; provided,
however, that no
Grace Period shall be longer than an Allowable Grace
Period.
3. Registration
Procedures. In connection with the Company’s
registration obligations hereunder, the Company shall:
(a) (i)
Prepare and file with the Commission such amendments, including
post-effective amendments, to a Registration Statement and the
Prospectus used in connection therewith as may be necessary to keep
a Registration Statement continuously effective as to the
applicable Registrable Securities for the Effectiveness Period and
prepare and file with the Commission such additional Registration
Statements in order to register for resale under the Securities Act
all of the Registrable Securities (except during an Allowable Grace
Period); (ii) cause the related Prospectus to be amended or
supplemented by any required Prospectus supplement (subject to the
terms of this Agreement), and, as so supplemented or amended, to be
filed pursuant to Rule 424 (except during an Allowable Grace
Period); (iii) respond as promptly as reasonably possible to any
comments received from the Commission with respect to a
Registration Statement or any amendment thereto; and (iv) comply in
all material respects with the provisions of the Securities Act and
the Exchange Act with respect to the disposition of all Registrable
Securities covered by a Registration Statement during the
applicable period in accordance (subject to the terms of this
Agreement) with the intended methods of disposition by the Holders
thereof set forth in such Registration Statement as so amended or
in such Prospectus as so supplemented; provided, however, that each Holder shall
be responsible for the delivery of the Prospectus to the Persons to
whom such Holder sells any of the Registrable Securities (including
in accordance with Rule 172 under the Securities Act), and each
Holder agrees to dispose of Registrable Securities in compliance
with the plan of distribution described in the Registration
Statement and otherwise in compliance with applicable federal and
state securities laws.
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(b) Notify
the Holders of Registrable Securities to be sold (which notice
shall, pursuant to clauses (i) through (iii) hereof, be accompanied
by an instruction to suspend the use of the Prospectus until the
requisite changes have been made) as promptly as reasonably
possible (and, in the case of (i)(A) below, not less than one
Trading Day prior to such filing) and (if requested by any such
Person) confirm such notice in writing (including via facsimile or
other electronic transmission) no later than one Trading Day
following the day (i) of the receipt by the Company of any
notification with respect to the suspension of the qualification or
exemption from qualification of any of the Registrable Securities
for sale in any jurisdiction, or the initiation or threatening of
any Proceeding for such purpose; and (ii) of the occurrence of any
event or passage of time that makes the financial statements
included in a Registration Statement ineligible for inclusion
therein or any statement made in a Registration Statement or
Prospectus or any document incorporated or deemed to be
incorporated therein by reference untrue in any material respect or
that requires any revisions to a Registration Statement, Prospectus
or other documents so that, in the case of a Registration Statement
or the Prospectus, as the case may be, it will not contain any
untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they
were made, not misleading; and (iii) of the occurrence or existence
of any pending corporate development with respect to the Company
that the Company believes may be material and that, in the
determination of the Company, makes it not in the best interest of
the Company to allow continued availability of a Registration
Statement or Prospectus, provided that any and all of such
information shall be kept confidential by each Holder until such
information otherwise becomes public, unless disclosure by a Holder
is required by law; provided, further, that notwithstanding
each Holder’s agreement to keep such information
confidential, each such Holder makes no acknowledgement that any
such information is material, non-public information.
(c) Use
its commercially reasonable efforts to avoid the issuance of, or,
if issued, obtain the withdrawal of (i) any order stopping or
suspending the effectiveness of a Registration Statement, or (ii)
any suspension of the qualification (or exemption from
qualification) of any of the Registrable Securities for sale in any
jurisdiction, at the earliest practicable moment.
(d) The
Company may require each selling Holder to furnish to the Company a
certified statement as to (i) the number of shares of Common Stock
beneficially owned by such Holder and any Affiliate thereof; (ii)
any Financial Industry Regulatory Authority, Inc.
(“FINRA”) affiliations; (iii) any natural persons who
have the power to vote or dispose of the common stock; and (iv) any
other information as may be requested by the Commission, FINRA or
any state securities commission.
(e) Subject
to the terms of this Agreement, the Company hereby consents to the
use of such Prospectus and each amendment or supplement thereto by
each of the selling Holders in connection with the offering and
sale of the Registrable Securities covered by such Prospectus and
any amendment or supplement thereto, except after the giving of any
notice pursuant to Section 3(b).
(f) Prior
to any resale of Registrable Securities by a Holder, use its
commercially reasonable efforts to register or qualify or cooperate
with the selling Holders in connection with the registration or
qualification (or exemption from the Registration or qualification)
of such Registrable Securities for the resale by the Holder under
the securities or Blue Sky laws of such jurisdictions within the
United States as any Holder reasonably requests in writing, to keep
each registration or qualification (or exemption therefrom)
effective during the Effectiveness Period and to do any and all
other acts or things reasonably necessary to enable the disposition
in such jurisdictions of the Registrable Securities covered by each
Registration Statement; provided, that the Company shall not be
required to qualify generally to do business in any jurisdiction
where it is not then so qualified, would subject the Company to any
material tax in any such jurisdiction where it is not then so
subject or file a general consent to service of process in any such
jurisdiction.
(h) If
requested by a Holder, cooperate with such Holder to facilitate the
timely preparation and delivery of certificates representing
Registrable Securities to be delivered to a transferee pursuant to
a Registration Statement, which certificates shall be free, to the
extent permitted by the Purchase Agreement and applicable state and
Federal laws, of all restrictive legends, and to enable such
Registrable Securities to be in such denominations and registered
in such names as any such Holder may request.
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(i) If
the Company notifies the Holders to suspend the use of any
Prospectus until requisite changes to such Prospectus has been
made, then the Holders shall suspend use of such Prospectus. The
Company will use its commercially reasonable efforts to ensure that
the use of the Prospectus may be resumed as promptly as is
practicable. The Company shall be entitled to exercise its right
under this Section 3(i) to suspend the availability of a
Registration Statement and Prospectus, for a period not to exceed
90 calendar days (which need not be consecutive days) in any
12-month period.
(j) Comply
in all material respects with all applicable rules and regulations
of the Commission.
4.
Registration
Expenses. All fees and expenses incident to the performance
of or compliance with this Agreement by the Company shall be borne
by the Company whether or not any Registrable Securities are sold
pursuant to a Registration Statement. The fees and expenses
referred to in the foregoing sentence shall include, without
limitation: (i) all registration and filing fees (including,
without limitation, fees and expenses of the Company’s
counsel and auditors) (A) with respect to filings made with the
Commission, (B) with respect to filings required to be made with
any Trading Market on which the Common Stock is then listed for
trading, (C) in compliance with applicable state securities or Blue
Sky laws reasonably agreed to by the Company in writing (including,
without limitation, fees and disbursements of counsel for the
Company in connection with Blue Sky qualifications or exemptions of
the Registrable Securities) and (D) if not previously paid by the
Company in connection with an Issuer filing, with respect to any
filing that may be required to be made by any broker through which
a Holder intends to make sales of Registrable Securities with the
FINRA pursuant to FINRA Rule 5110, so long as the broker is
receiving no more than a customary brokerage commission in
connection with such sale, (ii) printing expenses (including,
without limitation, expenses of printing certificates for
Registrable Securities), (iii) messenger, telephone and delivery
expenses, (iv) fees and disbursements of counsel for the Company,
(v) Securities Act liability insurance, if the Company so desires
such insurance, and (vi) fees and expenses of all other Persons
retained by the Company in connection with the consummation of the
transactions contemplated by this Agreement. In addition, the
Company shall be responsible for all of its internal expenses
incurred in connection with the consummation of the transactions
contemplated by this Agreement (including, without limitation, all
salaries and expenses of its officers and employees performing
legal or accounting duties), the expense of any annual audit and
the fees and expenses incurred in connection with the listing of
the Registrable Securities on any securities exchange as required
hereunder. In no event shall the Company be responsible for any
underwriting, broker or similar commissions of any Holder or,
except to the extent provided for in the Transaction Documents, any
legal fees or other costs of the Holders.
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5. Indemnification.
(a) Indemnification
by the Company. The Company shall, notwithstanding any
termination of this Agreement, indemnify and hold harmless each
Holder, the officers, directors, members, partners, agents and
employees (and any other Persons with a functionally equivalent
role of a Person holding such titles, notwithstanding a lack of
such title or any other title) of each of them, each Person who
controls any such Holder (within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act) and the officers,
directors, members, shareholders, partners, agents and employees
(and any other Persons with a functionally equivalent role of a
Person holding such titles, notwithstanding a lack of such title or
any other title) of each such controlling Person, to the fullest
extent permitted by applicable law, from and against any and all
losses, claims, damages, liabilities, costs (including, without
limitation, reasonable attorneys’ fees) and expenses
(collectively, “Losses”), as incurred,
arising out of or relating to (1) any untrue or alleged untrue
statement of a material fact contained in a Registration Statement,
any Prospectus or any form of prospectus or in any amendment or
supplement thereto or in any preliminary prospectus, or arising out
of or relating to any omission or alleged omission of a material
fact required to be stated therein or necessary to make the
statements therein (in the case of any Prospectus or supplement
thereto, in light of the circumstances under which they were made)
not misleading or (2) any violation or alleged violation by the
Company of the Securities Act, the Exchange Act or any state
securities law, or any rule or regulation thereunder, in connection
with the performance of its obligations under this Agreement,
except to the extent, but only to the extent, that (i) such untrue
statements or omissions are in reliance upon, and in conformity
with, information regarding such Holder furnished in writing to the
Company by such Holder expressly for use therein, or to the extent
that such information relates to such Holder or such Holder’s
proposed method of distribution of Registrable Securities and was
reviewed and expressly approved in writing by such Holder expressly
for use in a Registration Statement, such Prospectus or in any
amendment or supplement thereto (it being understood that the
Holder has approved Annex
A hereto for this purpose) or (ii) in the case of an
occurrence of an event of the type specified in Section
3(b)(i)-(iii), the use by such Holder of an outdated or defective
Prospectus after the Company has notified such Holder in writing
that the Prospectus is outdated or defective and prior to the
receipt by such Holder of the Advice contemplated in Section 6(c).
The Company shall notify the Holders promptly of the institution,
threat or assertion of any Proceeding arising from or in connection
with the transactions contemplated by this Agreement of which the
Company is aware.
(b) Indemnification
by Holders. Each Holder shall, severally and not jointly,
indemnify and hold harmless the Company, its directors, officers,
agents and employees, each Person who controls the Company (within
the meaning of Section 15 of the Securities Act and Section 20 of
the Exchange Act), and the directors, officers, agents or employees
of such controlling Persons, to the fullest extent permitted by
applicable law, from and against all Losses, as incurred, to the
extent arising out of or based solely upon: (x) such Holder’s
failure to comply with the prospectus delivery requirements of the
Securities Act or (y) any untrue or alleged untrue statement of a
material fact contained in any Registration Statement, any
Prospectus, or in any amendment or supplement thereto or in any
preliminary prospectus, or arising out of or relating to any
omission or alleged omission of a material fact required to be
stated therein or necessary to make the statements therein not
misleading (i) to the extent, but only to the extent, that such
untrue statement or omission is contained in any information so
furnished in writing by such Holder to the Company specifically for
inclusion in such Registration Statement or such Prospectus or (ii)
to the extent that such information relates to such Holder’s
proposed method of distribution of Registrable Securities and was
reviewed and expressly approved in writing by such Holder expressly
for use in a Registration Statement (it being understood that the
Holder has approved Annex
A hereto for this purpose), such Prospectus or in any
amendment or supplement thereto or (iii) in the case of an
occurrence of an event of the type specified in Section
3(b)(i)-(iii), the use by such Holder of an outdated or defective
Prospectus after the Company has notified such Holder in writing
that the Prospectus is outdated or defective and prior to the
receipt by such Holder of the Advice contemplated in Section 6(c).
In no event shall the liability of any selling Holder hereunder be
greater in amount than the dollar amount of the net proceeds
received by such Holder upon the sale of the Registrable Securities
giving rise to such indemnification obligation.
(c) Conduct
of Indemnification Proceedings. If any Proceeding shall be
brought or asserted against any Person entitled to indemnity
hereunder (an “Indemnified Party”), such
Indemnified Party shall promptly notify the Person from whom
indemnity is sought (the “Indemnifying Party”) in
writing, and the Indemnifying Party shall have the right to assume
the defense thereof, including the employment of counsel reasonably
satisfactory to the Indemnified Party and the payment of all fees
and expenses incurred in connection with defense thereof; provided,
that the failure of any Indemnified Party to give such notice shall
not relieve the Indemnifying Party of its obligations or
liabilities pursuant to this Agreement, except (and only) to the
extent that it shall be finally determined by a court of competent
jurisdiction (which determination is not subject to appeal or
further review) that such failure shall have prejudiced the
Indemnifying Party.
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An
Indemnified Party shall have the right to employ separate counsel
in any such Proceeding and to participate in the defense thereof,
but the fees and expenses of such counsel shall be at the expense
of such Indemnified Party or Parties unless: (1) the Indemnifying
Party has agreed in writing to pay such fees and expenses; (2) the
Indemnifying Party shall have failed promptly to assume the defense
of such Proceeding and to employ counsel reasonably satisfactory to
such Indemnified Party in any such Proceeding; or (3) the named
parties to any such Proceeding (including any impleaded parties)
include both such Indemnified Party and the Indemnifying Party, and
counsel to the Indemnified Party shall reasonably believe that a
material conflict of interest is likely to exist if the same
counsel were to represent such Indemnified Party and the
Indemnifying Party (in which case, if such Indemnified Party
notifies the Indemnifying Party in writing that it elects to employ
separate counsel at the expense of the Indemnifying Party, the
Indemnifying Party shall not have the right to assume the defense
thereof and the reasonable fees and expenses of no more than one
separate counsel shall be at the expense of the Indemnifying
Party). The Indemnifying Party shall not be liable for any
settlement of any such Proceeding affected without its written
consent, which consent shall not be unreasonably withheld or
delayed. No Indemnifying Party shall, without the prior written
consent of the Indemnified Party, effect any settlement of any
pending Proceeding in respect of which any Indemnified Party is a
party, unless such settlement includes an unconditional release of
such Indemnified Party from all liability on claims that are the
subject matter of such Proceeding.
Subject
to the terms of this Agreement, all reasonable fees and expenses of
the Indemnified Party (including reasonable fees and expenses to
the extent incurred in connection with investigating or preparing
to defend such Proceeding in a manner not inconsistent with this
Section) shall be paid to the Indemnified Party, as incurred,
within 20 Trading Days of written notice thereof to the
Indemnifying Party; provided, that the Indemnified Party shall
promptly reimburse the Indemnifying Party for that portion of such
fees and expenses previously disbursed and that are applicable to
such actions for which such Indemnified Party is judicially
determined to be not entitled to indemnification
hereunder.
(d) Contribution.
If the indemnification under Section 5(a) or 5(b) is unavailable to
an Indemnified Party or insufficient to hold an Indemnified Party
harmless for any Losses, then each Indemnifying Party shall
contribute to the amount paid or payable by such Indemnified Party,
in such proportion as is appropriate to reflect the relative fault
of the Indemnifying Party and Indemnified Party in connection with
the actions, statements or omissions that resulted in such Losses
as well as any other relevant equitable considerations. The
relative fault of such Indemnifying Party and Indemnified Party
shall be determined by reference to, among other things, whether
any action in question, including any untrue or alleged untrue
statement of a material fact or omission or alleged omission of a
material fact, has been taken or made by, or relates to information
supplied by, such Indemnifying Party or Indemnified Party, and the
parties’ relative intent, knowledge, access to information
and opportunity to correct or prevent such action, statement or
omission. The amount paid or payable by a party as a result of any
Losses shall be deemed to include, subject to the limitations set
forth in this Agreement, any reasonable attorneys’ or other
reasonable fees or expenses incurred by such party in connection
with any Proceeding to the extent such party would have been
indemnified for such fees or expenses if the indemnification
provided for in this Section was available to such party in
accordance with its terms.
The
parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 5(d) were determined by
pro rata allocation or by
any other method of allocation that does not take into account the
equitable considerations referred to in the immediately preceding
paragraph. Notwithstanding the provisions of this Section 5(d), no
Holder shall be required to contribute, in the aggregate, any
amount in excess of the amount by which the net proceeds actually
received by such Holder from the sale of the Registrable Securities
subject to the Proceeding exceeds the amount of any damages that
such Holder has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged
omission.
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The
indemnity and contribution agreements contained in this Section are
in addition to any liability that the Indemnifying Parties may have
to the Indemnified Parties.
6.
Miscellaneous.
(a) Remedies.
Subject to the limitations set forth in this Agreement, in the
event of a breach by the Company or by a Holder of any of their
respective obligations under this Agreement, each Holder or the
Company, as the case may be, in addition to being entitled to
exercise all rights granted by law and under this Agreement,
including recovery of damages, shall be entitled to specific
performance of its rights under this Agreement. The Company and
each Holder agree that monetary damages would not provide adequate
compensation for any losses incurred by reason of a breach by it of
any of the provisions of this Agreement and hereby further agrees
that, in the event of any action for specific performance in
respect of such breach, it shall not assert or shall waive the
defense that a remedy at law would be adequate.
(b) Compliance.
Each Holder covenants and agrees that it will comply with the
prospectus delivery requirements of the Securities Act as
applicable to it in connection with sales of Registrable Securities
pursuant to a Registration Statement.
(c) Discontinued
Disposition. By its acquisition of Registrable Securities,
each Holder agrees that, upon receipt of a notice from the Company
of the occurrence of any event of the kind described in Section
3(b)(i)-(iii), such Holder will forthwith discontinue disposition
of such Registrable Securities under a Registration Statement until
it is advised in writing (the “Advice”) by the Company
that the use of the applicable Prospectus (as it may have been
supplemented or amended) may be resumed. The Company will use its
commercially reasonable efforts to ensure that the use of the
Prospectus may be resumed as promptly as is
practicable.
(d) Amendments
and Waivers. The provisions of this Agreement, including the
provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to departures from the
provisions hereof may not be given, unless the same shall be in
writing and signed by the Company and the Holders of a majority of
the then outstanding Registrable Securities. If a Registration
Statement does not register all of the Registrable Securities
pursuant to a waiver or amendment done in compliance with the
previous sentence, then the number of Registrable Securities to be
registered for each Holder shall be reduced pro rata among all Holders and each
Holder shall have the right to designate which of its Registrable
Securities shall be omitted from such Registration Statement.
Notwithstanding the foregoing, a waiver or consent to depart from
the provisions hereof with respect to a matter that relates
exclusively to the rights of some Holders and that does not
directly or indirectly affect the rights of other Holders may be
given by Holders of all of the Registrable Securities to which such
waiver or consent relates; provided, however, that in the event the
Company shall deliver written notice to a Holder with respect to a
requested waiver or amendment, such Holder shall be deemed to have
consented and agreed to such amendment or waiver if such Holder
does not provide written notice to the Company indicating such
Holder’s non-consent within ten calendar days of delivery by
the Company of such written notice; provided, further, that the provisions of
this sentence may not be amended, modified, or supplemented except
in accordance with the provisions of the first sentence of this
Section 6(d).
(e) Notices.
Any and all notices or other communications or deliveries required
or permitted to be provided hereunder shall be delivered as set
forth in the Purchase Agreement.
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(f) Successors
and Assigns. This Agreement shall inure to the benefit of
and be binding upon the successors and permitted assigns of each of
the parties and shall inure to the benefit of each Holder. Nothing
in this Agreement, express or implied, is intended to confer upon
any party other than the parties hereto or their respective
successors and assigns any rights, remedies, obligations, or
liabilities under or by reason of this Agreement, except as
expressly provided in this Agreement. The Company may not assign
its rights (except by merger or in connection with another entity
acquiring all or substantially all of the Company’s assets)
or obligations hereunder without the prior written consent of all
the Holders of the then outstanding Registrable Securities. Each
Holder may assign its respective rights with respect to any or all
of its Registrable Securities, hereunder in the manner and to the
Persons as permitted under the Purchase Agreement; provided in each case that (i) the
Holder agrees in writing with the transferee or assignee to assign
such rights and related obligations under this Agreement, and for
the transferee or assignee to assume such obligations, and a copy
of such agreement is furnished to the Company within a reasonable
time after such assignment, (ii) the Company is, within a
reasonable time after such transfer or assignment, furnished with
written notice of the name and address of such transferee or
assignee and the securities with respect to which such registration
rights are being transferred or assigned, (iii) at or before the
time the Company received the written notice contemplated by clause
(ii) of this sentence, the transferee or assignee agrees in writing
with the Company to be bound by all of the provisions contained
herein and (iv) the transferee is an “accredited
investor,” as that term is defined in Rule 501 of Regulation
D and completes any required documentation requested by the Company
to confirm the foregoing.
(g) No
Inconsistent Agreements. Except as set forth in the Purchase
Agreement, neither the Company nor any of its subsidiaries has
previously entered into any agreement granting any registration
rights with respect to any of its securities to any Person that
have not been satisfied in full.
(h) Execution
and Counterparts. This Agreement may be executed in two or
more counterparts, all of which when taken together 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, it being understood that both parties need not
sign the same counterpart. In the event that any signature is
delivered by facsimile transmission or other electronic
transmission of a “.pdf” format data file, such
signature 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 “.pdf”
signature page were an original thereof.
(i) Governing
Law. All questions concerning the construction, validity,
enforcement and interpretation of this Agreement shall be
determined in accordance with the provisions of the Purchase
Agreement.
(j) Cumulative
Remedies. The remedies provided herein are cumulative and
not exclusive of any other remedies provided by law.
(k) Severability.
If any term, provision, covenant or restriction of this Agreement
is held by a court of competent jurisdiction to be invalid,
illegal, void or unenforceable, the remainder of the terms,
provisions, covenants and restrictions set forth herein shall
remain in full force and effect and shall in no way be affected,
impaired or invalidated, and the parties hereto shall use their
commercially reasonable efforts to find and employ an alternative
means to achieve the same or substantially the same result as that
contemplated by such term, provision, covenant or restriction. It
is hereby stipulated and declared to be the intention of the
parties that they would have executed the remaining terms,
provisions, covenants and restrictions without including any of
such that may be hereafter declared invalid, illegal, void or
unenforceable.
(l) Headings.
The headings in this Agreement are for convenience only, do not
constitute a part of the Agreement and shall not be deemed to limit
or affect any of the provisions hereof.
(m) Independent
Nature of Holders’ Obligations and Rights. The
obligations of each Holder hereunder are several and not joint with
the obligations of any other Holder hereunder, and no Holder shall
be responsible in any way for the performance of the obligations of
any other Holder hereunder. Nothing contained herein or in any
other agreement or document delivered at any closing, and no action
taken by any Holder pursuant hereto or thereto, shall be deemed to
constitute the Holders as a partnership, an association, a joint
venture or any other kind of entity, or create a presumption that
the Holders are in any way acting in concert with respect to such
obligations or the transactions contemplated by this Agreement.
Each Holder acknowledges that no other Holder has acted as agent
for such Holder in connection with making its investment hereunder
and that no Holder will be acting as agent of such Holder in
connection with monitoring its investment in the Registrable
Securities or enforcing its rights under the Purchase Agreement or
any other agreement entered into in connection with the Purchase
Agreement. Each Holder shall be entitled to protect and enforce its
rights, including without limitation the rights arising out of this
Agreement, and it shall not be necessary for any other Holder to be
joined as an additional party in any proceeding for such
purpose.
********************
[Signature
pages follow]
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IN
WITNESS WHEREOF, the parties have executed this Registration Rights
Agreement as of the date first written above.
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By:
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Name:
Xxxxxxx Xxxxxxx
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Title:
Chief Executive Officer
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INVESTORS:
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ANNEX
A
Purchaser Information Request
The
undersigned beneficial owner of common stock (the
“Registrable
Securities”) of Youngevity International, Inc., a
Delaware corporation (the “Company”), understands
that the Company has filed or intends to file with the Securities
and Exchange Commission (the “Commission”) a
registration statement (the “Registration Statement”)
for the registration and resale under Rule 415 of the Securities
Act of 1933, as amended (the “Securities Act”), of the
Registrable Securities, in accordance with the terms of the
Registration Rights Agreement (the “Registration Rights
Agreement”) to which this document is annexed. A copy
of the Registration Rights Agreement is available from the Company
upon request at the address set forth below. All capitalized terms
not otherwise defined herein shall have the meanings ascribed
thereto in the Registration Rights Agreement.
Certain
legal consequences arise from being named as a selling Shareholder
in the Registration Statement and the related prospectus.
Accordingly, holders and beneficial owners of Registrable
Securities are advised to consult their own securities law counsel
regarding the consequences of being named or not being named as a
selling Shareholder in the Registration Statement and the related
prospectus.
The
undersigned beneficial owner (the “Selling Shareholder”) of
Registrable Securities hereby elects to include the Registrable
Securities owned by it in the Registration Statement.
The
undersigned hereby provides the following information to the
Company and represents and warrants that such information is
accurate:
1.
Name.
(a)
Full Legal Name of
Selling Stockholder:
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(b)
Full Legal Name of
Registered Holder (if not the same as (a) above) through which
Registrable Securities Listed in Item 3 below are
held:
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(c)
Full Legal Name of
Natural Control Person (which means a natural person who directly
or indirectly alone or with others has power to vote or dispose of
the securities covered by the questionnaire):
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2.
Broker-Dealer Status:
(a)
Are you
a broker-dealer?
Yes
☐ No ☐
(b)
If
“yes” to Section 3(a), did you receive your Registrable
Securities as compensation for investment banking services to the
Company?
Yes
☐ No ☐
Note:
If no, the Commission’s staff has indicated that you should
be identified as an underwriter in the Registration
Statement.
(c)
Are you
an affiliate of a broker-dealer?
Yes
☐ No ☐
(d)
If you
are an affiliate of a broker-dealer, do you certify that you bought
the Registrable Securities in the ordinary course of business, and
at the time of the purchase of the Registrable Securities to be
resold, you had no agreements or understandings, directly or
indirectly, with any person to distribute the Registrable
Securities?
Yes
☐ No ☐
Note:
If no, the Commission’s staff has indicated that you should
be identified as an underwriter in the Registration
Statement.
3.
Beneficial Ownership of Securities of the Company Owned by the
Selling Shareholder.
Except as set forth below in this Item 4, the undersigned is not
the beneficial or registered owner of any securities of the Company
other than the securities issuable pursuant to the Purchase
Agreement.
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(a)
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Type
and Amount of other securities beneficially owned by the Selling
Shareholder:
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4.
Relationships with the Company:
Except as set forth below, neither the undersigned nor any of its
affiliates, officers, directors or principal equity holders (owners
of 5% of more of the equity securities of the undersigned) has held
any position or office or has had any other material relationship
with the Company (or its predecessors or affiliates) during the
past three years.
State
any exceptions here:
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The
undersigned agrees to promptly notify the Company of any
inaccuracies or changes in the information provided herein that may
occur subsequent to the date hereof at any time while the
Registration Statement remains effective.
By
signing below, the undersigned consents to the disclosure of the
information contained herein in its answers to Items 1 through 5
and the inclusion of such information in the Registration Statement
and the related prospectus and any amendments or supplements
thereto. The undersigned understands that such information will be
relied upon by the Company in connection with the preparation or
amendment of the Registration Statement and the related
prospectus.
IN
WITNESS WHEREOF the undersigned, by authority duly given, has
caused this Notice and Questionnaire to be executed and delivered
either in person or by its duly authorized agent.
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Dated:
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By:
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Name:
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Title:
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