YOUNGEVITY INTERNATIONAL, INC.
Exhibit
10.1
CONFIDENTIAL
SUBSCRIPTION AGREEMENT
THE
SECURITIES BEING OFFERED BY YOUNGEVITY INTERNATIONAL, INC.
HEREUNDER HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933
(THE “1933 ACT”) OR APPLICABLE STATE BLUE SKY OR
SECURITIES LAWS AND ARE OFFERED UNDER AN EXEMPTION FROM THE
REGISTRATION PROVISIONS OF SUCH LAWS. THESE SECURITIES CANNOT BE
SOLD, TRANSFERRED, ASSIGNED, OR OTHERWISE DISPOSED OF EXCEPT IN
COMPLIANCE WITH THE RESTRICTIONS ON TRANSFER CONTAINED IN THIS
SUBSCRIPTION AGREEMENT AND APPLICABLE FEDERAL AND STATE SECURITIES
LAWS.
ALL
INVESTORS WILL BE REQUIRED TO REPRESENT IN WRITING TO THE COMPANY
THAT THEY ARE AN ACCREDITED INVESTOR AS THAT TERM IS DEFINED IN
SECTION 2(a) (15) OF THE 1933 ACT AND IN RULE 501(a) OF REGULATION
D UNDER THE 1933 ACT. SUBSCRIPTIONS WILL BE ACCEPTED ONLY FROM
PERSONS DEEMED ELIGIBLE UNDER THE CRITERIA SET FORTH IN THIS
DOCUMENT. THIS DOCUMENT CONSTITUTES AN OFFER ONLY TO THE PERSON TO
WHOM IT IS DELIVERED BY THE COMPANY OR ITS PLACEMENT AGENT. THE
COMPANY RESERVES THE RIGHT TO REJECT ANY SUBSCRIPTION FOR ANY
REASON OR FOR NO REASON, WHETHER OR NOT FUNDS HAVE BEEN RECEIVED BY
THE COMPANY.
THIS
CONFIDENTIAL SUBSCRIPTION AGREEMENT HAS BEEN PREPARED FOR
DISTRIBUTION TO A LIMITED NUMBER OF PERSONS (EACH AN
“INVESTOR”) WHO ARE ACCREDITED INVESTORS AS DEFINED IN
REGULATION D UNDER THE 1933 ACT TO ASSIST THEM IN EVALUATING A
PROPOSED INVESTMENT IN THE SECURITIES. THE COMPANY HAS NOT
AUTHORIZED USE OF THE INFORMATION CONTAINED IN THIS CONFIDENTIAL
SUBSCRIPTION AGREEMENT FOR ANY OTHER PURPOSE. BY ACCEPTING THIS
SUBSCRIPTION AGREEMENT, YOU ARE ACKNOWLEDGING THE CONFIDENTIAL AND
PROPRIETARY NATURE OF THIS INFORMATION, AND YOU AGREE TO MAINTAIN
CONFIDENTIALITY OF SUCH INFORMATION. YOU MAY NOT COPY OR REPRODUCE
THIS SUBSCRIPTION AGREEMENT, IN WHOLE OR IN PART. NOR MAY YOU
DISCLOSE THE CONTENTS OF THIS SUBSCRIPTION AGREEMENT TO ANY PERSON
OTHER THAN YOUR LEGAL, ACCOUNTING, AND FINANCIAL ADVISORS WHO MAY
ASSIST YOU. EACH ADVISOR WHO BECOMES AWARE OF THE INFORMATION
CONTAINED IN THIS SUBSCRIPTION AGREEMENT SHALL BE SUBJECT TO THE
SAME RESTRICTIONS ON USE OF THE INFORMATION CONTAINED
HEREIN.
THE
SECURITIES OFFERED BY THE COMPANY INVOLVE A VERY HIGH DEGREE OF
RISK AND SHOULD BE PURCHASED ONLY BY PERSONS WHO CAN AFFORD THE
LOSS OF THEIR ENTIRE INVESTMENT.
THIS
OFFERING HAS NOT BEEN REVIEWED BY, AND THESE SECURITIES HAVE NOT
BEEN RECOMMENDED BY, ANY FEDERAL OR STATE SECURITIES COMMISSION OR
REGULATORY AUTHORITY. FURTHERMORE, THE FOREGOING AUTHORITIES HAVE
NOT CONFIRMED THE ACCURACY OR DETERMINED THE ADEQUACY OF THIS
DOCUMENT. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL
OFFENSE.
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SUBSCRIPTION
This
Subscription Agreement is offered (the “Offering”) for
the purpose of you considering the purchase of the Securities
(being a 6% convertible promissory notes and shares of Youngevity
International, Inc. common stock) described in the Youngevity
International, Inc. (the “Company’)- Principal Terms
(the "Term Sheet") to which this Subscription Agreement is
attached. All terms not defined herein are defined in the Term
Sheet. If after reviewing this Subscription Agreement and other
relevant documents with your legal, financial, tax, and investment
advisers as you deem appropriate you elect to subscribe to the
Offering, please complete and execute the following
documents:
1. This
Subscription on Page 6.
2. The
Accredited Investor Chart on Page 7.
And deliver the entire
subscription amount by wire transfer or check payable to
"Wilmington Trust", trustee for Youngevity International, Inc. with
reference to “2019 Youngevity Note Offering",
to:
Wilmington Trust,
Inc.
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Credit
to: “Youngevity VI
Escrow"
ABA Routing Number:
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Account Number:
133785-000
By
executing this Subscription Agreement and returning it to the
Company, you further agree that your investment is being made
entirely on the terms and conditions stated herein and in the
documents attached hereto. You understand that this Subscription
Agreement is not binding until Company accepts it in writing. The
Company in its sole discretion may accept or decline your
subscription.
FURTHER
AGREEMENTS
In
connection with the subscription contemplated by this Subscription
Agreement, the parties agree as follows:
1. You
understand that this Subscription Agreement is a part of an
offering to raise proceeds of a minimum of $100,000 and a maximum
of $10,000,000 by the offer and sale of secured 6% convertible
promissory notes and common stock (the “Securities”),
including the Securities you may purchase pursuant to this
Subscription Agreement.
2. In
addition to the other representations and warranties contained
herein, you understand that an investment in the Securities is one
of significant risk, and there can be no assurance that the
Securities will ever be valuable. You acknowledge that you may lose
your entire investment in the Securities. You hereby represent that
an investment in the Securities is a suitable investment for you,
taking into consideration the restrictions on transferability and
the other considerations affecting the Securities and the Company
as described herein and in the documents included with this
subscription agreement, and in the investigation that you have
made.
3. You
are acquiring the Securities for your own account and not on behalf
of any other person or entity. You are acquiring the Securities for
investment purposes and not for resale or
distribution.
4. You
are not aware of the payment of any commission or other
remuneration to any person in connection with the execution of this
transaction or the purchase of the Securities, except for the fees
to be paid to, and the shares of common stock to be issued to, our
Placement Agent, Corinthian Partners, LLC.
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5. You
have reviewed the Company’s filings with the Securities and
Exchange Commission which contains disclosure of the material risks
of an investment in our Securities, as well as our existing and
proposed business, assets, management, financial condition,
capitalization and share ownership, and plan of operations. We
believe that the information set forth in such filings is accurate
and complete in all material respects. We have given you the
opportunity to ask questions of and to receive answers from us
about the terms and conditions of this Offering, and we have also
given you the opportunity to obtain any additional information
regarding the Company which we possess or can acquire without
unreasonable effort or expense.
6. You
acknowledge and understand, however, that we have not authorized
any person to make any statements on our behalf that would in any
way contradict any of the information that we have provided to you
in writing, including the information set forth in this
Subscription Agreement. You further represent to the Company that
you have not relied upon any such representations regarding the
Company, its business or financial condition, or this transaction
in making any decision to acquire the Securities. If you become
aware of conflicting information, you will discuss this with us.
You will not be acquiring the Securities with a view toward
distribution.
7. Your
present financial condition is such that it is unlikely that it
would be necessary for you to dispose of the Securities in the
foreseeable future. You further understand and agree
that:
a. The
Securities have not been registered under the 1933 Act or any state
or foreign securities laws, and consequently are and will continue
to be restricted securities within the meaning of Rule 144
promulgated under the 1933 Act and applicable state
statutes.
b. You
cannot resell the Securities unless they are registered under the
1933 Act and any applicable state securities laws or unless an
exemption from the registration requirements is
available.
c. As a
result, you must bear the economic risks of the investment in the
Securities for an indefinite period of time.
d. The
Company is the only person that may register the Securities under
the 1933 Act and state securities statutes, and we have not made
any representations to you regarding any possible future
registration of the Securities or compliance with some exemption
under the 1933 Act.
e. You will
not sell or attempt to sell the Securities without registration
under the 1933 Act and any applicable state securities laws, unless
exemptions from such registration requirements are available and
the undersigned has satisfied the Company that an exemption is
available for such sale.
f. The
Company has the right to issue instructions to its transfer agent
to bar the transfer of any of the certificates representing the
Securities except in accordance with the 1933 Act.
g. You
consent to the placement of an appropriate restrictive legend or
legends on any certificates evidencing the Securities and any
certificates issued in replacement or exchange
therefor.
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8. You represent to us that no part
of the funds used by you for this investment was directly or
indirectly derived from, or related to, any activity that may
contravene federal, state, or international laws and regulations,
including anti-money laundering laws and regulations. Your purchase
of the Securities shall not cause the Company or its affiliates to
violate any applicable anti-money laundering laws and regulations
including the Uniting and Strengthening America by Providing
Appropriate Tools Required to Intercept and Obstruct Terrorism Act
of 2001 (USA Patriot Act) and regulations of the U.S. Department of
the Treasury’s Office of Foreign Assets Control (OFAC). You
further represent that you and your affiliates are not acting
directly or indirectly for or on behalf of any person, group,
entity, or nation named by any Executive Order of the U.S. as a
terrorist, Specially Designated National and Blocked Person (SDN)
or other banned or blocked person, entity, nation, or transaction
pursuant to any law, order, rule, or regulation that is enforced or
administered by OFAC. You further represent that you and your
affiliates also are not engaged in this transaction, directly or
indirectly on behalf of, or instigating or facilitating this
transaction, directly or indirectly on behalf of any
SDN.
9. You
have consulted with your legal, financial, accounting, tax, and
investment advisers regarding your personal circumstances and the
advisability of your proposed purchase of the Securities to the
extent that you have determined such consultation to be
appropriate.
10. You
acknowledge that you have completed the “accredited
investor” chart set forth following your signature and you
represent and warrant to us that you are an “accredited
investor” as indicated.
11. We
may amend or modify this Subscription Agreement only in writing
signed by both you and the Company. No evidence shall be admissible
in any court concerning any alleged oral amendment
hereof.
This
Subscription Agreement fully integrates all of our prior agreements
and understandings concerning your purchase of the
Securities.
12.
This Subscription Agreement binds and inures to the benefit of our
respective representatives, successors, and permitted
assigns.
13.
Each of us hereto agrees for ourselves and our successors and
permitted assigns to execute any and all further instruments
necessary for the fulfillment of the terms of this Subscription
Agreement.
14. You
acknowledge that the Company is relying on the accuracy of the
representations and warranties you are making in this Subscription
Agreement, and you agree to indemnify the Company, and to hold us
harmless from and against any and all liability that may result to
us (including court costs and attorney fees) as a result of any of
your representations or warranties being materially inaccurate,
incomplete, or misleading.
15.
Dispute Resolution.
a. Mediation
Followed by Binding Arbitration. The parties agree to resolve
“Disputes” (as defined below) by submitting the Dispute
to mediation in the State of Florida, and if the Dispute is not
resolved through mediation, then it shall be submitted for final
and binding arbitration under the Judicial Arbiter Group, Inc.
(▇▇▇.▇▇▇▇▇▇.▇▇▇),
the site of which arbitration shall be Chula Vista, California Any
party to this Subscription Agreement may commence mediation by
providing to the other parties a written request for mediation,
setting forth the subject of the Dispute and the relief requested.
The parties will cooperate with one another in selecting a mediator
and in scheduling the mediation proceedings promptly, not later
than 20 days after such request for mediation. The parties covenant
that they will participate in the mediation in good faith, and that
they will share equally in its costs. All offers, promises,
conduct, and statements, whether oral or written, made in the
course of the mediation by any of the parties, their agents,
employees, experts, and attorneys, and by the mediator, are
confidential, privileged, and inadmissible for any purpose,
including impeachment, in any arbitration or other proceeding
involving the parties, provided that evidence that is otherwise
admissible or discoverable shall not be rendered inadmissible or
non- discoverable as a result of its use in the mediation. Any
party may initiate arbitration with respect to the Disputes
submitted to mediation by filing a written demand for arbitration
at any time following the initial mediation session or 45 days
after the date of filing the written request for mediation,
whichever occurs first. The mediation may continue after the
commencement of arbitration if the parties so desire. Unless
otherwise agreed by the parties, any arbitration initiated under
this Clause shall be conducted by a single arbitrator. Unless
otherwise agreed by the parties, the mediator shall be disqualified
from serving as arbitrator in the case. The provisions of this
Clause may be enforced by any court of competent jurisdiction, and
the party seeking enforcement shall be entitled to an award of all
costs, fees, and expenses, including attorney fees, to be paid by
the party against whom enforcement is ordered.
b. Definition
of “Dispute.” For the purposes of the preceding
paragraph, the term “Dispute” means all claims,
disputes, or other controversies arising out of, or relating to,
this Subscription Agreement (and all exhibit attached hereto), the
purchase of the Securities, and any other claims, disputes, or
controversies arising out of or relating to the management or
operations of the Company or the purchase of the Securities as
described herein.
16. This
subscription agreement is made under, shall be construed in
accordance with, and shall be governed by the laws of the State of
Florida, without regard to conflicts of laws
principles.
[SIGNATURES ON
FOLLOWING PAGE]
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IN
WITNESS HEREOF, subject to our acceptance, you have completed this
Subscription Agreement and tendered payment in the amount of $
to evidence your commitment to purchase the Securities
(which includes a convertible promissory note in the principal
amount of $ ______________and __________________shares1 of
common stock of the Company on the terms, and with the
representations and warranties set forth herein.
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(Investor)
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Date:
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Investor Signature:
______________________________________
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Tax I.D. No.:
______________________________________
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Print Name:
______________________________________
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Title (if
applicable): ______________________________________
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E-Mail Address:
______________________________________
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Street Address:
_________________________
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______________________________________
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______________________________________
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Telephone No.:
_________________________________
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Exact
Name in which the Securities and instruments representing the
Securities (being the Note and the certificates of common stock to
be issued six months after the issuance of the Note) are to be
issued:
_____________________________________________________________________________
This Subscription
Agreement is hereby accepted as of the ________ day of
________________, 2019.
COMPANY
By:_______________________
Name:
_______________________
Title:
_______________________
______________________________
1 The Investor will
receive Two Thousand (2,000) shares of common stock for every One
Hundred Thousand Dollars invested, pro rata..
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ACCREDITED
INVESTOR CHART
In
order to assure that the Offering is made only to persons for whom
an investment in the Securities is suitable, the Securities will be
sold only to accredited investors. Please indicate by your
initials each of the following categories in which you qualify as
an accredited investor:
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An
employee benefit plan within the meaning of Title of the Employee
Retirement Income Security Act of 1974, if the investment decision
is made by a plan fiduciary, as defined in Section
3(21)
of such
Employee Retirement Income Security Act, which is either a bank,
savings and loan association, insurance company or registered
investment advisor, or if the employee benefit plan has total
assets in excess of $5,000,000 or, if a self-directed plan, with
investment decisions made solely by persons that are otherwise
accredited investors.
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A trust
with total assets in excess of $5,000,000 not formed for the
specific purpose of acquiring the Securities, whose purchase is
directed by a person who has such knowledge and experience in
financial and business matters that he or she is capable of
evaluating the merits and risks of an investment in the
Securities.
A bank
as defined in Section 3(a)(2) of the Act, or a savings and loan
association or other institution as defined in Section 3(a)(5)(A)
of the Act, whether acting in its individual or fiduciary
capacity.
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A
private business development company as defined in Section
202(a)(22) of the Investment Advisors Act of 1940.
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A
broker or dealer registered pursuant to Section 15 of the
Securities Exchange Act of 1934.
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An
organization described in Section 501(c)(3) of the Internal Revenue
Code, or a corporation, Massachusetts or similar business trust, or
a partnership (in each case not formed for the specific purpose of
acquiring the Securities) with total assets in excess of
$5,000,000.
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An
insurance company as defined in Section 2(13) of the
Act.
An
investment company registered under the Investment Company Act of
1940 or a business development company as defined in Section
2(a)(48) of the Investment Company Act of 1940.
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A
natural person whose net worth,
individually
or jointly with spouse, exceeds $1,000,000 at this time
(excluding the value of that person’s primary residence and
excluding any debt up to (and not exceeding) the value of the
residence, but adding back any debt incurred within
60 days of this subscription unless incurred in
connection with the purchase of the primary
residence).
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A Small
Business Investment Company licensed by the U.S. Small Business
Administration under Section 301(c) or (d) of the Small Business
Investment Act of 1958.
A plan
established and maintained by a state, its political subdivisions,
or any agency or instrumentality of a state or its political
subdivisions, for the benefit of its employees, if such plan has
total assets in excess of
$5,000,000.
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A
natural person who had an individual income in excess of $200,000
in each of the two most recent calendar years or joint income with
spouse in excess of $300,000 in each of those years and has a
reasonable expectation of reaching the same level of income in the
current calendar year.
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Any
entity in which all the equity owners are accredited investors
(i.e., by virtue of their meeting any of the other tests for an
“accredited investor”). Any director or executive
officer of the Company.
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