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
buyers
identified on the signature pages hereto (including each successors
and assigns, the “Buyer”
or in the aggregate, the “Buyers”).
W I T N E S S E T H:
WHEREAS, the Company and the Buyers 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 Buyers wish to purchase,
and the Company wishes to sell, upon the terms and conditions
stated in this Agreement, 18% senior secured notes in the aggregate
principal amount of $5,000,000, in the form attached as
Exhibit A hereto
(the “Notes”)
;
WHEREAS, the Notes are collateralized by
certain physical coffee and related receivables of the
Company’s subsidiary, CLR Roasters, LLC, a Florida limited
liability company (“CLR”);
WHEREAS, in order to induce Buyers to
purchase the Notes the Company has agreed to issue to Buyers fifty
thousand (50,000) shares of its common stock, $.001 par value per
share (the “Common Stock”) for each one million dollars
($1,000,000) of Notes purchased.
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:
1. AGREEMENT
TO PURCHASE; PURCHASE PRICE. On the date of
execution of this Agreement (the “Initial Closing
Date”), and upon the terms and subject to the conditions set
forth herein, substantially
concurrent with the execution and delivery of this Agreement by the
applicable parties hereto, the Buyers will purchase for such amount
set forth opposite each such Buyer’s name in column (3) of
the Initial Closing Date Schedule of Buyers, severally and not
jointly, an aggregate of One Million Dollars ($1,000,000) in
Principal Amount of Notes. On each subsequent Closing Date, (a
“Subsequent Closing Date, and together with the Initial
Closing date, the “Closing Date”) and upon the terms
and subject to the conditions set forth herein substantially
concurrent with the execution and delivery of this Agreement by the
applicable parties hereto, the Buyers will purchase for such amount
set forth opposite each such Buyer’s name in column (3) of
the Subsequent Closing Date Schedule of Buyers, severally and not
jointly, an aggregate of up to Four Million Dollars ($4,000,000) in
Principal Amount of Notes.
2. In
consideration for each Buyer’s execution and delivery of this
Agreement the Company shall issue to each such Buyer fifty thousand
(50,000) shares of its Common Stock for each One Million Dollars
($1,000,000) of Notes purchased.
3. BUYER
REPRESENTATIONS, WARRANTIES, ETC.; ACCESS TO INFORMATION;
INDEPENDENT INVESTIGATION.
Each
Buyer represents and warrants to, and covenants and agrees with,
the Company as follows:
a. The
Buyer is purchasing the Note and the shares of Common Stock 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 Note and the Shares;
c. All
subsequent offers and sales of the Note and the shares of Common
Stock 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 Note and the shares of Common Stock 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 Note and the shares of Common
Stock;
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 Note
and the shares of Common Stock 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, 2018,
Quarterly Reports on Form 10-Q for the quarters ended March 31,
2019, June 30, 2019 and September 30, 2019, and Current Reports on
Form 8-K filed with the SEC on January 7, 2019, January 11, 2019,
January 11, 2019, January 11, 2019, February 12, 2019, February 15,
2019, April 16, 2019, May, 23, 2019, June 27, 2019, August 5, 2019,
August 14, 2019, September 24, 2019, October 1, 2019, October 21,
2019, November 18, 2019, December 19, 2019, December 20, 2019,
January 6, 2020, and February 13, 2020 (the “SEC
Documents”).
f. The
Buyer understands that its investment in the Note and the shares of
Common Stock 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 of Common
Stock;
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.
i. The
Buyer is not purchasing the Note or the shares of Common
Stock as a
result of any advertisement, article, notice or other communication
regarding the Note or the shares of Common Stock
published
in any newspaper, magazine or similar media or broadcast over
television or radio or presented at any seminar or any other
general solicitation or general advertisement.
4. COMPANY
REPRESENTATIONS, ETC.
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. CLR
is a limited liability company duly organized, validly existing and
in good standing under the laws of the State of Florida, 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 Notes have been duly authorized and the shares
of Common Stock being sold 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.
c. Transaction
Documents. This Agreement, the Notes, the Security
Agreement, dated even date herewith (the “Security
Agreement”) the transactions contemplated hereby have been
duly and validly authorized by the Company and CLR. This Agreement,
the Note and the Security Agreement 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. The Security
Agreement has been duly executed and delivered by CLR and, when
executed and delivered by CLR, will be a valid and binding
agreement of CLR 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
execution and delivery of the Security Agreement by the Company and
CLR, the issuance of the Note and the shares of Common Stock being
sold, and the consummation by the Company and CLR of the other
transactions contemplated by this Agreement, including the granting
of a senior security interest in the collateral pursuant to the
Security Agreement, do not and will not conflict with or result in
a breach by the Company or CLR of any of the terms or provisions
of, or constitute a default under (i) the articles of incorporation
or by-laws of the Company or the certificate of formation or
operating agreement of CLR, (ii) any indenture, mortgage, deed of
trust, or other material agreement or instrument to which the
Company or CLR 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, CLR
or any of their properties or assets, except such conflict, breach
or default which would not have a material adverse effect on the
transactions contemplated herein. Neither the Company not CLR is 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.
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 or CLR
for the issuance and sale of the Note and the shares of Common
Stock being sold to the Buyers as contemplated by this Agreement,
and grant of the senior security interest under the Security
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).
5. CERTAIN
COVENANTS AND ACKNOWLEDGMENTS.
a. Restrictive
Legend. Each Buyer acknowledges and agrees that the Note and
the shares of Common Stock being sold 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 NOTE] [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 of Common Stock being sold nor the Note 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 of Common Stock being sold
or the Note to be sold or transferred may be sold or transferred
pursuant to an exemption from such registration; and (2) any sale
of any shares of Common Stock being sold 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 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 Note and the shares of Common Stock
being sold 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.
6. GOVERNING
LAW: MISCELLANEOUS. This Agreement shall be governed by and
interpreted in accordance with the laws of the State of Delaware. 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: Xxxx
Xxxxxx, Esq.
Facsimile: (000)
000-0000
BUYER: At
the address set forth on the signature page of this
Agreement.
8. SUCCESSORS
AND ASSIGNS. This Agreement shall be binding upon and inure
to the benefit of the parties hereto and their respective
successors and permitted assigns.
IN WITNESS WHEREOF, this Agreement has
been duly executed by the parties set forth below as of the date
set forth below.
By:
______________________________
Name:
Xxxxx Xxxxxxx
Title:
President
Dated:
____________________, 2020
[BUYER SIGNATURE PAGES TO YOUNGEVITY INTERNATIONAL, INC. SECURITIES
PURCHASE AGREEMENT]
IN WITNESS WHEREOF, the undersigned have caused this Securities
Purchase Agreement to be duly executed by their respective
authorized signatories as of the date first indicated
above.
Name of
Buyer:
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Signature of Authorized
Signatory of Buyer:
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Name of Authorized
Signatory:
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Title of Authorized
Signatory:
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Email Address of
Authorized Signatory:
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Facsimile Number of
Authorized Signator:
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Address for Notice to Buyer:
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Closing Principal
Amount:
$___________
EIN Number: _______________________
SCHEDULE OF PURCHASERS
INITIAL CLOSING DATE
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(1)
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(2)
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(3)
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(4)
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Buyer
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Principal Amount Notes
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Shares of Common Stock
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Closing Date
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Xxx
Xxxxxxxx
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$1,000,000
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50,000
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3/20/20
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SCHEDULE OF PURCHASERS
SUBSEQUENT CLOSING DATE
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(1)
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(2)
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(3)
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(4)
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Buyer
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Principal Amount Notes
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Shares of Common Stock
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Closing Date
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