WARRANT PURCHASE AGREEMENT
Exhibit
4.39
THIS WARRANT PURCHASE AGREEMENT, dated
as of the date of acceptance set forth below (this
“Agreement”), 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 Xxxx Xxxxxx, having an address at 0000
Xxxxx Xxxxx Xxxx, Xxx. 000, Xxxxxxx Xxxxx, Xxxxxxx 00000
(“Xxxxxx”).
W I T N E S S E T H:
WHEREAS, Xxxxxx has agreed to enter into
a Credit Agreement with CLR Roasters, LLC and the Silas Family
Plantation Group S.A. (the “Credit Agreement”) to
provide up to $5 million in secured credit loans
thereunder;
WHEREAS, in order to induce Xxxxxx to
enter into the Credit Agreement the Company desires to issue to
Xxxxxx a warrant to purchase 250,000 shares of its common stock,
par value $.001 per share, in the form attached hereto as
Exhibit A (the
“Warrant”) and a second warrant to purchase 250,000
shares of its common stock, par value $.001 per share, in the form
attached hereto as Exhibit
B (the “Second Warrant”; and together with the
Warrants, the “Warrants”);
WHEREAS, the Company and Xxxxxx 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.
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.
In
consideration of Xxxxxx’x entry into the Credit Agreement,
the Company hereby agrees to issue the Warrants to
Xxxxxx.
2. BUYER
REPRESENTATIONS, WARRANTIES, ETC.; ACCESS TO INFORMATION;
INDEPENDENT INVESTIGATION.
Xxxxxx
represents and warrants to, and covenants and agrees with, the
Company as follows:
x. Xxxxxx
is acquiring the Warrant and any underlying common stock issued in
connection therewith 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;
x. Xxxxxx
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)(5), 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;
c. All
subsequent offers and sales of the Warrants or the common stock
underlying the Warrants by Xxxxxx shall be made pursuant to
registration under the 1933 Act or pursuant to an exemption from
registration;
x. Xxxxxx
understands that the Warrants are being offered and sold to him 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
Xxxxxx’x compliance with, the representations, warranties,
agreements, acknowledgements and understandings of Xxxxxx set forth
herein in order to determine the availability of such exemptions
and the eligibility of Xxxxxx to acquire the Warrants;
x. Xxxxxx
and his advisors, if any, have read the Company’s filings
with the Securities and Exchange Commission and 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 Warrants which have been requested by Xxxxxx. Xxxxxx
and his 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;
x. Xxxxxx
understands that an investment in the Warrants and the common stock
underlying the Warrants involves a high degree of
risk;
x. Xxxxxx
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 Warrants; and
h. This
Agreement has been duly and validly authorized, executed and
delivered on behalf of Xxxxxx and is a valid and binding agreement
of Xxxxxx 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
3. COMPANY
REPRESENTATIONS, ETC.
The
Company represents and warrants to Xxxxxx 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 Stock
Market.
b. Authorized
Shares. 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 and exercise of the
Warrants (the “Warrant Shares”). The Warrant Shares
have been duly authorized, and when issued, will be 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. The Warrants, this Agreement and the
transactions contemplated hereby have been duly and validly
authorized by the Company, the Warrants and this 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.
d. Non-contravention.
The execution and delivery of this Agreement by the Company, the
issuance of the Warrants, 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 Warrants to Xxxxxx as contemplated by
this Agreement, except such authorizations, approvals and consents
that have been obtained.
f. SEC
Documents, Financial Statements. The Company has filed 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 Xxxxxx
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.
4. CERTAIN
COVENANTS AND ACKNOWLEDGMENTS.
a. Restrictive
Legend. Xxxxxx acknowledges and agrees that the Warrants and
the Warrant Shares shall bear a restrictive legend in substantially
the following form (and a stop-transfer order may be placed against
transfer thereof):
[THIS
WARRANT][THESE SHARES] [HAS][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. Xxxxxx acknowledges that (1) neither the
Warrants nor the Warrant Shares have been registered under the
provisions of the 1933 Act and may not be transferred unless (A)
subsequently registered thereunder, or (B) Xxxxxx 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 securities to be sold or transferred may be sold or
transferred pursuant to an exemption from such registration; and
(2) any sale of any such securities 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 securities 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 issuance of the Warrants to Xxxxxx under any
United States laws and regulations, or by any domestic securities
exchange or trading market, and to provide a copy thereof to Xxxxxx
promptly after such filing.
5. 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.
6. 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.
7. COUNTERPARTS.
This Agreement may be executed in two or more counterparts, each of
which shall constitute an original, but all of which, taken
together, shall constitute one and the same instrument. Conveyance
of an electronic copy of the signed document will constitute
execution and delivery.
[Signature Page Follows]
IN WITNESS WHEREOF, the parties have
executed this Agreement intending to be bound.
By:
/s/ Xxxx
Xxxxxxx
Name: Xxxxx
Xxxxxxx
Title:
President and Chief Financial Officer
/s/ Xxxx Xxxxxx
Xxxx
Xxxxxx
