ADVISORY AGREEMENT
Exhibit
10.2
This Advisory Agreement (this “Agreement”) is made as of
this 22nd
day of October 2018 (the “Effective Date”), by and
between Ascendant Alternative Strategies, LLC (the
“Advisor”) and Youngevity
International, Inc. (the “Company”). Each of the
Advisor and the Company may be individually referred to in this
Agreement as a “Party” and collectively
as the “Parties”.
R E C I
T A L S:
WHEREAS, the Company has requested the Advisor’s assistance
with respect to the restructuring of certain of the Company’s
existing secured convertible promissory notes (“Secured Notes”; and such
transaction, the “Transaction”). The holder
of the Secured Notes may be referred to herein as the
“Secured
Noteholder”.
NOW, THEREFORE, the Parties hereto agree as follows:
1. Advisor’s Services and Role;
Description of Transaction. In connection with this
engagement, Ascendant will provide the Company with financial
advice and assistance in connection with the Transaction and other
financial and transactional matters as mutually agreed upon by the
Parties from time to time. The Transaction will involve the
exchange of the secured note issued to Xxxx Xxxxxx in the principal
amount of $4,000,000 for 747,664 shares of the Corporation’s
common stock and a warrant to purchase 631,579 shares of common stock, each such
issuance will be subject to shareholder approval in
accordance with applicable Nasdaq rules.
2. Non-Circumvention. The Company
hereby irrevocably agrees not to circumvent, avoid, bypass, or
obviate, directly or indirectly, the intent of this Agreement
through any transaction, transfer, acquisition, agreement,
assignment or otherwise. Any violation of this provision shall be
deemed an attempt to circumvent this provision, and the Parties
shall be liable for damages in favor of the circumvented
party.
3. Advisory Fees;
Expenses.
(a)
In consideration of
Advisor’s services, the Company shall pay to Advisor the
following compensation at the closing of the Transaction
(collectively, the “Transaction Fee”), which
shall be subject to shareholder approval in accordance with
applicable Nasdaq rules: (i) 30,000 shares of the Company’s
common stock (the “Advisor Shares”),
provided, that the Advisor Shares shall be subject to a six-month
lockup; (ii) four year warrants to purchase 80,000 shares of the
Company’s common stock at an exercise price of $5.35 per
share and a “net issuance” or “cashless”
exercise feature (the “$5.35 Warrants”); and
(iii) four year warrants to purchase 70,000 shares of the
Company’s common stock at an exercise price of $4.75 per
share and a “net issuance” or “cashless”
exercise feature (the “$4.75 Warrants”; and
together with the $5.35 Warrants collectively referred to herein as
the “Advisor
Warrants”). The Company shall promptly prepare and
file or cause to be prepared and filed all the necessary
notifications and documentation required to be filed with respect
to the Transaction including, without limitation, all such notices
and/or documents to be filed with regulatory organizations,
including without limitation the Securities and Exchange
Commission, and will seek all necessary shareholder approvals so
that the Transaction and any equity issuances described in this
Agreement are made in compliance with law including, without
limitation, all securities industry and exchange regulations. In
the unlikely event the Company is unable to obtain shareholder
approval for the issuance of the Advisor Shares and Advisor
Warrants or otherwise at its election, it may pay Advisor the cash
value of the Advisor Shares (which shall be valued at $240,000) and
of the Advisor Warrants.
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4. Advisor Representations.
Advisor is a broker-dealer duly registered pursuant to the
provisions of the Securities Exchange Act of 1934, as amended (the
“1934
Act”), is a member in good standing of the Financial
Industry Regulatory Authority, Inc., and is duly registered or
licensed as a broker-dealer under the applicable Blue Sky Laws,
except in such states in which the Advisor is exempt from
registration or licensing or such registration or licensing is not
otherwise required. Advisor has all requisite power and authority
to execute, deliver and perform its obligations under this
Agreement between the Company and the Advisor, and this Agreement
will be duly authorized and validly executed and delivered by the
Advisor and constitutes a legal, valid and binding agreement of the
Advisor enforceable against the Advisor in accordance with its
terms.
5. Independent Contractor. Advisor
is an independent contractor and shall have no right or authority
to contract for or, to incur any legal obligation on behalf of, the
Company.
6. Termination. Except as set
forth below, the term of Advisor’s engagement will begin on
the date hereof (the “Term”) and end on the
earlier six (6) months from the date hereof or 10 days after
receipt by either Party hereto of written notice of termination
from the other Party (the “Notice of Termination”).
Notwithstanding any such expiration or termination, Sections 2, 3,
7, 8, 12 and 13 shall survive and remain in full force and effect
and be binding on the Parties hereto, in accordance with their
terms.
7. Indemnification. The Company
agrees to indemnify and hold harmless Advisor and its affiliates,
agents, subagents, and advisors, and their respective directors,
officers, employees, agents and controlling persons (each such
person is hereinafter referred to as an “Indemnified Party”), from
and against any and all losses, claims, damages, liabilities and
expenses whatsoever, joint or several, to which any such
Indemnified Party may become subject under any applicable federal
or state law of the United States of America or otherwise, caused
by, relating to or arising out of any engagement hereunder. The
Company will reimburse each Indemnified Party for any expenses
(including reasonable counsel fees and expenses) as they are
incurred by such Indemnified Party in connection with the
investigation of, preparation for or defense of any pending or
threatened claim or any action or proceeding arising therefrom,
whether or not resulting in liability; provided, however, that at
the time of such reimbursement the Indemnified Party shall have
entered into an agreement with the Company whereby the Indemnified
Party agrees to repay all such reimbursed amounts if it is
determined in a final judgment by a court of competent jurisdiction
that the Indemnified Party is not entitled to indemnity from the
Company. Notwithstanding the foregoing, the Company shall not be
liable to any Indemnified Party under the foregoing indemnification
provision to the extent that any loss, claim, damage, liability or
expense results directly from any such Indemnified Party’s
willful misconduct or gross negligence. If for any reason (other
than a final non-appealable judgment finding any Indemnified Party
liable for losses, claims, damages, liabilities or expenses for its
gross negligence or willful misconduct) the foregoing indemnity is
unavailable to an Indemnified Party or insufficient to hold an
Indemnified Party harmless, then the Company shall contribute to
the amount paid or payable by an Indemnified Party as a result of
such loss, claim, damage, liability or expense in such proportion
as is appropriate to reflect not only the relative benefits
received by the Company on the one hand and Advisor on the other,
but also the relative fault by the Company and the Indemnified
Party, as well as any relevant equitable considerations, subject to
the limitation that in no event shall the total contribution of all
Indemnified Parties to all such losses, claims, damages,
liabilities or expenses exceed the amount of fees actually received
and retained by Advisor hereunder.
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8. Limitation of Advisor’s
Liability to the Company. Advisor and the Company further
agree that neither Advisor nor any of its affiliates or any of its
their respective officers, directors, controlling persons (within
the meaning of Section 15 of the Act or Section 20 of the
Securities Exchange Act of 1934), employees, consultants or agents
shall have any liability to the Company, its security holders or
creditors, or any person asserting claims on behalf of or in the
right of the Company (whether direct or indirect, in contract,
tort, for an act of negligence or otherwise) for any losses, fees,
damages, liabilities, costs, expenses or equitable relief arising
out of or relating to this Agreement or the services rendered
hereunder, except for losses, fees, damages, liabilities, costs or
expenses that arise out of or are based on any breach of any
representation of Advisor contained herein or any action of or
failure to act by Advisor or any of its affiliates or any of their
respective officers, directors, controlling persons (within the
meaning of Section 15 of the Act or Section 20 of the Securities
Exchange Act of 1934) and that are finally determined (by a court
of competent jurisdiction and after exhausting all appeals) to have
resulted from the gross negligence, bad faith, or willful
misconduct of such parties.
9. Non-Exclusive Services; Representation
of Secured Noteholder. The Company recognizes that Advisor
is in the business of advising and consulting with other
businesses, some of which businesses may be in competition with the
Company. The Company acknowledges and agrees that Advisor may
advise and consult with other businesses, including those which may
be in competition with the Company, and shall not be required to
devote its full time and resources to performing services on behalf
of the Company under this Agreement. Advisor shall only be required
to expend such time and resources as are reasonably appropriate to
advise and assist the Company as provided for herein. In addition,
the Advisor intends to represent and advice the Secured Noteholder
in connection with the Secured Noteholder’s sale of its
shares of the Company’s common stock and the Company hereby
acknowledges and consents to such representation.
10. Entire Agreement. This
Agreement contains the entire agreement between Advisor and the
Company with respect to the subject matter hereof, and may not be
modified or amended except in a writing signed by each of the
Parties hereto.
11. Counterparts. This Agreement
may be executed in counterparts, each of which shall be deemed an
original agreement, but all of which together shall constitute one
and the same instrument. Execution and delivery of this Agreement
by facsimile transmission (including the delivery of documents in
Adobe PDF format) shall constitute execution and delivery of this
Agreement for all purposes, with the same force and effect as
execution and delivery of an original manually signed copy
hereof.
12. Applicable Law; Jurisdiction.
This Agreement shall be construed, interpreted and enforced in
accordance with the laws of the State of New York as if such
Agreement was entered into and concluded within such State and the
Parties hereto agree that any and all controversy respecting this
Agreement shall be subject to the jurisdiction of a state or
federal court located within the State of New York. This Agreement
shall become legally binding with original or facsimile signatures
and may be executed in the counterparts (each of which shall be
deemed an original, and both of which shall constitute one and the
same instrument).
13. Securities Laws Matters. The
Company shall be responsible for any and all compliance with the
securities laws applicable to it, including, without limitation,
Regulation D and the Securities Act of 1933 (the
“Act”),
and Rule 506 promulgated thereunder and, unless otherwise expressly
agreed in writing by Ascendant, all state securities (“blue
sky”) laws.
14. Signing Authority. Each of the
individuals signing below warrants that such individual has the
authority to sign for and on behalf of the respective
parties.
[SIGNATURE
PAGE FOLLOWS]
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IN WITNESS WHEREOF, this Agreement has been executed as of the day
and year first above written.
COMPANY:
By:
/s/ Xxxxx
Xxxxxxx
Name:
Xxxxx Xxxxxxx
Title:
CEO
ADVISOR:
ASCENDANT
ALTERNATIVE STRATEGIES, LLC
By:
/s/ Xxxx X.
Xxxxxxx
Name:
Xxxx X. Xxxxxxx
Title:
CEO
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