SECURITIES PURCHASE AGREEMENT
Exhibit
10.1
THIS SECURITIES PURCHASE AGREEMENT,
dated as of the date of acceptance set forth below, is entered into
by and between Youngevity International, Inc., a Delaware
corporation, with headquarters located at 0000 Xxxxxxx Xxxx, Xxxxx
Xxxxx, Xxxxxxxxxx 00000 (the “Company”), and the
undersigned (the “Buyer”).
W I T N E S S E T H:
WHEREAS, the Company and the Buyer are
executing and delivering this Agreement in accordance with and in
reliance upon the exemption from securities registration afforded,
inter alia, by Regulation 506 under
Regulation D (“Regulation D”) as promulgated by the
United States Securities and Exchange Commission (the
“SEC”) under the Securities Act of 1933, as amended
(the “1933 Act”), and/or Section 4(a)(2) of the 1933
Act; and
WHEREAS, the Buyer wishes to purchase,
and the Company wishes to sell, upon the terms and conditions
stated in this Agreement, purchase 250,000 shares of common stock,
par value $.001 per share (the “Common Stock”) of the
Company (the “Shares”, together with a warrant to
purchase 250,000 shares of Common Stock in the form of Exhibit A hereto (the
“Warrant”).
NOW THEREFORE, in consideration of the
premises and the mutual covenants contained herein and other good
and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties agree as follows:
The
Buyer represents and warrants to, and covenants and agrees with,
the Company as follows:
a. The
Buyer is purchasing the Shares and Warrant for its own account for
investment only and not with a view towards the public sale or
distribution thereof and not with a view to or for sale in
connection with any distribution thereof;
b. The
Buyer is (i) an “accredited investor” as that term is
defined in Rule 501 of the General Rules and Regulations under the
1933 Act by reason of Rule 501(a)(3), and (ii) experienced in
making investments of the kind described in this Agreement and the
related documents, (iii) able, by reason of the business and
financial experience of its officers (if an entity) and
professional advisors (who are not affiliated with or compensated
in any way by the Company or any of its affiliates or selling
agents), to protect its own interests in connection with the
transactions described in this Agreement, and the related
documents, and (iv) able to afford the entire loss of its
investment in the Shares and Warrant;
c. All
subsequent offers and sales of the Shares and Warrant (and any
shares of Common stock issuable thereunder) by the Buyer shall be
made pursuant to registration under the 1933 Act or pursuant to an
exemption from registration;
d. The
Buyer understands that the Shares and Warrant are being offered and
sold to it in reliance on specific exemptions from the registration
requirements of United States federal and state securities laws and
that the Company is relying upon the truth and accuracy of, and the
Buyer’s compliance with, the representations, warranties,
agreements, acknowledgements and understandings of the Buyer set
forth herein in order to determine the availability of such
exemptions and the eligibility of the Buyer to acquire the Shares
and Warrant;
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e. The
Buyer and its advisors, if any, have been furnished with all
materials relating to the business, finances and operations of the
Company and materials relating to the offer and sale of the Shares
and Warrant which have been requested by the Buyer. The Buyer and
its advisors, if any, have been afforded the opportunity to ask
questions of the Company and have received complete and
satisfactory answers to any such inquiries. Without limiting the
generality of the foregoing, the Buyer has also had the opportunity
to obtain and to review the Company’s Annual Report on Form
10-K for the fiscal year ended December 31, 2017, Quarterly Reports
on Form 10-Q for the quarters ended March 31, 2018, June 30, 2018
and September 30, 2018, and Current Reports on Form 8-K filed with
the SEC on April 2, 2018, May 14, 2018, June 26, 2018, July 17,
2018, July 25, 2018, July 31, 2018, August 14, 2018, August 21,
2018, September 7, 2018, September 13, 2018, September 21, 2018,
September 21, 2018, October 4, 2018, October 5, 2018, October 29,
2018, October 31, 2018, November 13, 2018, November 29, 2018,
December 6, 2018, December 19, 2018, January 7, 2019, January 11,
2019, January 11, 2019, January 11, 2019 and January 18, 2019 (the
“SEC Documents”).
f. The
Buyer understands that its investment in the Shares and Warrant
involves a high degree of risk;
g. The
Buyer understands that no United States federal or state agency or
any other government or governmental agency has passed on or made
any recommendation or endorsement of the Shares or
Warrant;
h. This
Agreement has been duly and validly authorized, executed and
delivered on behalf of the Buyer and is a valid and binding
agreement of the Buyer enforceable in accordance with its terms,
subject as to enforceability to general principles of equity and to
bankruptcy, insolvency, moratorium and other similar laws affecting
the enforcement of creditors’ rights generally.
The
Company represents and warrants to the Buyer that:
a. Reporting
Company Status. The Company is a corporation duly organized,
validly existing and in good standing under the laws of the State
of Delaware, and has the requisite corporate power to own its
properties and to carry on its business as now being conducted. The
Company is duly qualified as a foreign corporation to do business
and is in good standing in each jurisdiction where the nature of
the business conducted or property owned by it makes such
qualification necessary other than those jurisdictions in which the
failure to so qualify would not have a material and adverse effect
on the business, operations, properties, prospects or condition
(financial or otherwise) of the Company. The Company has registered
its Common Stock pursuant to Section 12 of the Securities Exchange
Act of 1934, as amended (the “Exchange Act”), and the
Common Stock is listed and traded on the Nasdaq Capital
Market.
b. Authorized
Shares. The Shares have been duly authorized are duly and
validly issued, fully paid and non-assessable and will not subject
the holder thereof to personal liability by reason of being such
holder. The Company has authorized and reserved for issuance, free
from preemptive rights, shares of its Common Stock equal to the
number of shares issuable upon exercise of the Warrant (the
“Reserved Shares”).
c. Securities
Purchase Agreement. This Agreement, the Warrant and the
transactions contemplated hereby have been duly and validly
authorized by the Company. This Agreement and the Warrant have been
duly executed and delivered by the Company and, when executed and
delivered by the Company, will each be, a valid and binding
agreement of the Company enforceable in accordance with their
terms, subject as to enforceability to general principles of equity
and to bankruptcy, insolvency, moratorium, and other similar laws
affecting the enforcement of creditors’ rights
generally.
d. Non-contravention.
The execution and delivery of this Agreement by the Company, the
issuance of the Shares and Warrant, and the consummation by the
Company of the other transactions contemplated by this Agreement do
not and will not conflict with or result in a breach by the Company
of any of the terms or provisions of, or constitute a default under
(i) the articles of incorporation or by-laws of the Company, (ii)
any indenture, mortgage, deed of trust, or other material agreement
or instrument to which the Company is a party or by which it or any
of its properties or assets are bound, (iii) to its knowledge, any
existing applicable law, rule, or regulation or any applicable
decree, judgment, or (iv) to its knowledge, order of any court,
United States federal or state regulatory body, administrative
agency, or other governmental body having jurisdiction over the
Company or any of its properties or assets, except such conflict,
breach or default which would not have a material adverse effect on
the transactions contemplated herein. The Company is not in
violation of any material laws, governmental orders, rules,
regulations or ordinances to which its property, real, personal,
mixed, tangible or intangible, or its businesses related to such
properties, are subject.
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e. Approvals.
No authorization, approval or consent of any court, governmental
body, regulatory agency, self-regulatory organization, or stock
exchange or market is required to be obtained by the Company for
the issuance and sale of the Shares and Warrant to the Buyer as
contemplated by this Agreement, except such authorizations,
approvals and consents that have been obtained.
f. SEC
Documents, Financial Statements. The Company has filed on a
timely basis all reports, schedules, forms, statements and other
documents required to be filed by it with the SEC pursuant to the
reporting requirements of the Exchange Act, including material
filed pursuant to Section 13(a) or 15(d). The Company has not
provided to the Buyer any information which, according to
applicable law, rule or regulation, should have been disclosed
publicly by the Company but which has not been so disclosed, other
than with respect to the transactions contemplated by this
Agreement.
As of
their respective dates, the SEC Documents complied in all material
respects with the requirements of the Act or the Exchange Act as
the case may be and the rules and regulations of the SEC
promulgated thereunder and other federal, state and local laws,
rules and regulations applicable to such SEC Documents, and none of
the SEC Documents contained any untrue statement of a material fact
or omitted to state a material fact required to be stated therein
or necessary in order to make the statements therein, in light of
the circumstances under which they were made, not misleading. The
financial statements of the Company included in the SEC Documents
comply as to form in all material respects with applicable
accounting requirements and the published rules and regulations of
the SEC or other applicable rules and regulations with respect
thereto. Such financial statements have been prepared in accordance
with generally accepted accounting principles applied on a
consistent basis during the periods involved (except (i) as may be
otherwise indicated in such financial statements or the notes
thereto or (ii) in the case of unaudited interim statements, to the
extent they may not include footnotes or may be condensed or
summary statements) and fairly present in all material respects the
financial position of the Company as of the dates thereof and the
results of operations and cash flows for the periods then ended
(subject, in the case of unaudited statements, to normal year-end
audit adjustments).
a. Restrictive
Legend. The Buyer acknowledges and agrees that the Shares
and Warrant and the Reserved Shares shall bear a restrictive legend
in substantially the following form (and a stop-transfer order may
be placed against transfer thereof) in the absence of an effective
registration statement governing their sale:
[THESE
SHARES][THIS WARRANT] [HAVE][HAS] NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES
ACT”), OR THE SECURITIES LAWS OF ANY STATE AND MAY NOT BE
SOLD OR OFFERED FOR SALE, IN THE ABSENCE OF AN EFFECTIVE
REGISTRATION STATEMENT OR AN OPINION OF COUNSEL OR OTHER EVIDENCE
ACCEPTABLE TO THE CORPORATION THAT SUCH REGISTRATION IS NOT
REQUIRED.]
b. Transfer
Restrictions. The Buyer acknowledges that (1) neither the
Shares, the Warrant nor the Reserved Shares have been registered
under the provisions of the 1933 Act and may not be transferred
unless (A) subsequently registered thereunder, or (B) the Buyer
shall have delivered to the Company an opinion of counsel,
reasonably satisfactory in form, scope and substance to the
Company, to the effect that the Shares, the Warrant or Reserved
Shares to be sold or transferred may be sold or transferred
pursuant to an exemption from such registration; and (2) any sale
of any Reserved Shares made in reliance on Rule 144 promulgated
under the 1933 Act may be made only in accordance with the terms of
said Rule and further, if said Rule is not applicable, any resale
of the Reserved Shares 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 used in the 1933 Act, may require
compliance with some other exemption under the 1933 Act or the
rules and regulations of the SEC thereunder.
c. Filings.
The Company undertakes and agrees to make all necessary filings in
connection with the sale of the Shares and Warrant to the Buyer
under any United States laws and regulations, or by any domestic
securities exchange or trading market, and to provide a copy
thereof to the Buyer promptly after such filing.
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6. GOVERNING LAW:
MISCELLANEOUS. This Agreement
shall be governed by and interpreted in accordance with the laws of
the State of Florida. A facsimile transmission of this signed
Agreement shall be legal and binding on all parties hereto. This
Agreement may be signed in one or more counterparts, each of which
shall be deemed an original. The headings of this Agreement are for
convenience of reference and shall not form part of, or affect the
interpretation of, this Agreement. 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 or the
validity or enforceability of this Agreement in any other
jurisdiction. This Agreement may be amended only by an instrument
in writing signed by the party to be charged with enforcement. This
Agreement supersedes all prior agreements and understandings among
the parties hereto with respect to the subject matter
hereof.
7. NOTICES. Any notice required or permitted hereunder shall
be given in writing (unless otherwise specified herein) and shall
be deemed effectively given, (i) on the date delivered, (a) by
personal delivery, or (b) if advance copy is given by fax, (ii)
seven business days after deposit in the United States Postal
Service by regular or certified mail, or (iii) three business days
mailing by international express courier, with postage and fees
prepaid, addressed to each of the other parties thereunto entitled
at the following addresses, or at such other addresses as a party
may designate by ten days advance written notice to each of the
other parties hereto.
COMPANY:
Youngevity International, Inc.
0000
Xxxxxxx Xxxx
Xxxxx
Xxxxx, Xxxxxxxxxx 00000
with a
copy
to:
Gracin & Xxxxxx, LLP
000
Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx
Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx
Xxxxxx, Esq.
Facsimile: (000)
000-0000
BUYER: At
the address set forth on the signature page of this
Agreement.
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IN WITNESS WHEREOF, this Agreement has
been duly executed by the Buyer or one of its officers thereunto
duly authorized as of the date set forth below.
For
250,000 shares of Common Stock at $7.00 per share
together with the
Warrant referenced above
By:
/s/Xxxxxx
Xxxxxxxx
An
Individual
This
Agreement has been accepted as of the date set forth
below.
By:
/s/ Xxxxx
Xxxxxxx
Name:
Xxxxx Xxxxxxx
Title:
President
Dated:
February 7, 2019
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