SECURITIES PURCHASE AGREEMENT
Exhibit
10.39
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
250,000 shares of common stock, par value $.001 per share (the
“Common Stock”), and the Company wishes to sell, upon
the terms and conditions stated in this Agreement, 250,000 shares
of Common Stock (the “Shares”).
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.
2. In
consideration of the Buyer’s investment of One Million Three
Hundred Seventy Five Thousand Dollars ($1,375,000) in the Company,
the Company hereby agrees to issue the Shares to the
Buyer.
3. BUYER
REPRESENTATIONS, WARRANTIES, ETC.; ACCESS TO INFORMATION;
INDEPENDENT INVESTIGATION.
The
Buyer represents and warrants to, and covenants and agrees with,
the Company as follows:
a. The
Buyer is purchasing the Shares 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;
c. All
subsequent offers and sales of the Shares 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 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;
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
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, and Current Reports on Form 8-K filed with the SEC on January
7, 2019, January 11, 2019, January 11, 2019, January 11, 2019,
January 18, 2019, February 12, 2019, February 15, 2019, April 16,
2019 and May 23, 2019 (the
“SEC Documents”).
f. The Buyer
understands that its investment in the Shares 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;
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.
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. 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..
c. Securities
Purchase Agreement. This Agreement and the transactions
contemplated hereby have been duly and validly authorized by the
Company. This Agreement has been duly executed and delivered by the
Company and, when executed and delivered by the Company, is, a
valid and binding agreement of the Company 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.
d. Non-contravention.
The execution and delivery of this Agreement by the Company, the
issuance of the Shares, 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.
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 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, other than SEC Documents that were amended,
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. The Buyer acknowledges and agrees that the 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] [HAVE] 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) the Shares
have not 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 to be sold
or transferred may be sold or transferred pursuant to an exemption
from such registration;.
c. Filings.
The Company undertakes and agrees to make all necessary filings in
connection with the sale of the Shares 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: Xxxxxx 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 Buyer or one of its officers thereunto
duly authorized as of the date set forth below.
For
250,000 shares of Common Stock at $5.50 per share
By:
Xxxxxx
Xxxxxxxx
Fax No:
________________
An
Individual
__________________
social
security number
Buyer
Address;
0000
Xxxxxxxxx Xxxxxx
XxXxxx,
XX 00000
This
Agreement has been accepted as of the date set forth
below.
By:
/s/ Xxxxx
Xxxxxxx
Xxxxx
Xxxxxxx
Title:
President
Dated:
June 16, 2019
