AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JUNE 28,
2017
REGISTRATION NO. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
YOUNGEVITY INTERNATIONAL, INC.
(Exact name of registrant as specified in its charter)
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Delaware
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90-0890517
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(State or other jurisdiction
of incorporation or organization)
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(I.R.S. Employer
Identification Number)
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2400 Boswell Road
Chula Vista, California 91419
(619) 934-3980
(Address, including ZIP code, and telephone number,
including
area code, of registrant's principal executive office)
YOUNGEVITY INTERNATIONAL, INC.
AMENDED AND RESTATED 2012 STOCK OPTION PLAN
(Full title of the Plan)
STEPHAN WALLACH
Chief Executive
Officer
2400 Boswell Road
Chula Vista, California 91419
(619) 934-3980
(Name, address and telephone number of agent of
services)
WITH COPIES TO:
Leslie Marlow, Esq.
Gracin & Marlow, LLP
The Chrysler Building
405 Lexington Avenue, 26
th
Floor
New York, New York 10174
(212) 907-6457
(Name, address and telephone number)
Indicate
by check mark whether the Registrant is a large accelerated filer,
an accelerated filer, a non-accelerated filer, a smaller reporting
company, or an emerging growth company. See the
definitions of “large accelerated filer,”
“accelerated filer”, “smaller reporting
company” and “emerging growth company” in Rule
12b-2 of the Exchange Act of 1934.
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Large
accelerated filer
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☐
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Accelerated
filer
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☐
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Non-accelerated
filer
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☐
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Smaller
reporting company
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☒
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(Do not
check if a smaller reporting company)
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Emerging
growth company
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☒
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If an
emerging growth company, indicate by check mark if the registrant
has elected not to use the extended transition period for complying
with any new or revised financial accounting standards provided
pursuant to Section 7(a)(2)(B) of the Securities Act.
☐
CALCULATION OF REGISTRATION FEE
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TITLE OF
SECURITIES BEING REGISTERED
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AMOUNT TO BE
REGISTERED
(1)(2)
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PROPOSED MAXIMUM
OFFERING PRICE PER
SHARE(3)
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PROPOSED
AGGREGATE
OFFERING PRICE(3)
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AMOUNT OF
REGISTRATION
FEE(4)
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Common Stock, par
value $0.001 per share, under the Amended and Restated 2012 Stock
Option Plan
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2,000,000
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$
6.34
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$
12,680,000
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$
1,469.61
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————————
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(1)
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The
securities to be registered include options and rights to acquire
the common stock of the Registrant.
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(2)
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Pursuant
to Rule 416(a) under the Securities Act of 1933, as amended (the
“Securities Act”), this registration statement also
covers any additional securities that may be offered or issued in
connection with any stock split, stock dividend or similar
transaction.
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(3)
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Estimated
in accordance with Rule 457(c) under the Securities Act solely for
purposes of calculating the registration fee. The price for the
shares of Common Stock is based upon the average of the $6.50
(high) and $6.17 (low) price of the Registrant’s stock as
reported on the NASDAQ Stock Market on June 23, 2017, which date is
within five business days prior to filing this Registration
Statement.
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(4)
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Calculated
under Section 6(b) of the Securities Act as .00011590 of the
aggregate offering price.
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EXPLANATORY NOTE
Youngevity International, Inc. (the “Company” or the
“Registrant”) filed with the Securities and Exchange
Commission (the “SEC”) its Registration Statement on
Form S-8 (Registration No. 333-189748) on July 1, 2013 (the
“2013 Registration Statement”) pursuant to and in
accordance with the requirements of General Instruction E to Form
S-8 for the purpose of registering under the Securities Act of
1933, as amended (the “Securities Act”),
2,000,000
(1)
shares of
c
ommon stock, par value $0.001 per share
(the “Common Stock”) to be offered and
sold under the Registrant’s 2012 Stock Option
Plan. Pursuant to General Instruction E to Form S-8, the
contents of the 2012 Registration Statement are incorporated into
this Registration Statement by reference.
This Registration Statement on Form S-8 has been prepared and filed
pursuant to and in accordance with the requirements of General
Instruction E to Form S-8 for the purpose of registering under the
Securities Act an additional 2,000,000
(1)
shares of Common Stock to be offered and sold under the Amended and
Restated 2012 Stock Option Plan (the
“Plan”). These shares represented
2,000,000
(1)
shares of Common Stock that were added to the Plan as of February
23, 2017 by vote of the Registrant’s stockholders and, in
accordance with the terms of the Plan, are to be assigned to and
made available for grant under the Plan.
(1)
Reflects a 1-for-20
reverse stock split that was effected on June 7, 2017.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The information specified in Item 1 and Item 2 of Part I of this
Registration Statement on Form S-8 is omitted from this filing in
accordance with the provisions of Rule 428 under the Securities
Act, and the introductory note to Part I of Form S-8. The documents
containing the information specified in Part I will be delivered to
the participants in the Plan as required by Rule 428. Such
documents and the documents incorporated by reference in this
Registration Statement pursuant to Item 3 of Part II of this
Registration Statement, taken together, constitute a prospectus
that meets the requirements of Section 10(a) of the Securities
Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The Securities and Exchange Commission (the “SEC”)
allows us to “incorporate by reference” the information
we file with it which means that we can disclose important
information to you by referring you to those documents instead of
having to repeat the information in this prospectus. The
information incorporated by reference is considered to be part of
this prospectus, and later information that we file with the SEC
will automatically update and supersede this information. We
incorporate by reference the documents listed below and any future
filings made with the SEC under Sections 13(a), 13(c), 14 or
15(d) of the Exchange Act between the date of this prospectus and
the termination of the offering:
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Our
Annual Report on Form 10-K for the year ended December 31, 2016
(File No. 000-54900) filed with the SEC on March 30,
2017;
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●
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Our
Quarterly Report on Form 10-Q for the quarter ended March 31, 2017
(File No. 000-54900) filed with the SEC on May 12,
2017;
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●
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Our
Current Report on Form 8-A12b (File No. 000-54900) filed with the
SEC on June 15, 2017;
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●
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Our
Current Reports on Form 8-K (File No. 000-54900) filed with the SEC
on May 2, 2017, May 12, 2017, June 5, 2017, and June 7,
2017;
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●
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Our
Definitive Information Statement on Schedule 14C (File No.
000-54900) filed with the SEC on March 21, 2017; and
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●
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The
description of our Common Stock set forth in our registration
statement on Form 10, filed with the SEC on February 12, 2013,
as amended April 1, 2013, April 23, 2013 and May 31, 2013 (File No.
000-54900).
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All reports and other documents subsequently filed by the Company
pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange
Act shall be deemed to be incorporated by reference in this
Registration Statement and to be a part of this Registration
Statement from the respective date of filing of each of those
reports or documents until the filing of a post-effective amendment
to this Registration Statement which indicates either that all
securities offered by this Registration Statement have been sold or
which deregisters all of the securities under this Registration
Statement then remaining unsold.
The Registrant is not,
however, incorporating by reference any documents or portions
thereof, whether specifically listed above or filed in the future,
that are not deemed “filed” with the SEC, including any
information furnished pursuant to Items 2.02 or 7.01 of Form 8-K or
related exhibits furnished pursuant to Item 9.01 of Form 8-K.
Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or
superseded for purposes of this Registration Statement to the
extent that a statement contained in any subsequently filed
document that also is deemed to be incorporated by reference herein
modifies or supersedes such statement.
Any statement contained in this Registration Statement or in a
document incorporated or deemed to be incorporated by reference in
this Registration Statement shall be deemed to be modified or
superseded for purposes of this Registration Statement to the
extent that a statement contained in this Registration Statement or
in any other subsequently filed document which also is or is deemed
to be incorporated by reference in this Registration Statement
modifies or supersedes that statement. Any statement so modified or
superseded shall not be deemed, except as so modified or
superseded, to constitute a part of this Registration
Statement.
ITEM 4. DESCRIPTION OF SECURITIES
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section
145 of the General Corporation Law of the State of Delaware (the
“DGCL”) gives the Registrant power to indemnify each of
its directors and officers against expenses and liabilities in
connection with any proceedings involving him by reason of his
being or having been a director or officer if (a) he acted in good
faith and in a manner he reasonably believed to be in, or not
opposed to, the best interests of the Registrant and (b) with
respect to any criminal proceeding, he had no reasonable cause to
believe his conduct was unlawful. However, in a proceeding by or in
the right of the Registrant, there shall be no indemnification in
respect of any liabilities or expenses if the officer or director
shall have been adjudged liable to the Registrant unless the court
in such proceeding determines he is entitled to indemnification for
such liabilities and/or expenses. Furthermore, no indemnification
shall be made to or on behalf of a director or officer if a
judgment or other final adjudication adverse to such director or
officer establishes that his acts or omissions (i) were in breach
of his duty of loyalty to the Registrant and its stockholders, (ii)
were not in good faith or involved a knowing violation of law or
(iii) resulted in receipt by the director or officer of an improper
personal benefit. The DGCL defines an act or omission in breach of
a person's duty of loyalty as an act or omission which that person
knows or believes to be contrary to the best interests of the
Registrant or its stockholders in connection with a matter in which
he has a material conflict of interest. If a director or officer is
successful in a proceeding, the statute mandates that the
Registrant indemnify him against expenses.
The
Registrant's Bylaws provide indemnification to the maximum extent
permitted by the DGCL. The DGCL allows for the
elimination of the personal liability of the directors
and officers to the Registrant or its shareholders for monetary
damages for breaches of such director's or officer's duty of care
or other duties as a director or officer; except liabilities for
any breach of duty based upon an act or omission (a) in breach of
such person's duty of loyalty to the corporation or its
shareholders, (b) not in good faith or involving a knowing
violation of law, or (c) resulting in receipt by such person of an
improper personal benefit. This limitation on liability could have
the effect of limiting directors' and officers' liability for
violations of the federal securities laws. In addition, the DGCL
allows for broad indemnification rights to directors and officers
so long as the director or officer acted in a manner believed in
good faith to be in or not opposed to the best interest of the
Registrant and with respect to criminal proceedings if the director
had no reasonable cause to believe his or her conduct was unlawful.
The Registrant believes that the protection provided by these
provisions will help the Registrant attract and retain qualified
individuals to service as officers and directors. These provisions
would provide indemnification for liabilities arising under the
federal securities laws to the extent that such indemnification is
found to be enforceable under, and to be in accordance with,
applicable law and generally will limit the remedies available to a
shareholder who is dissatisfied with a Board decision protected by
these provisions, and such shareholder's only remedy may be to
bring a suit to prevent the Board's action.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS
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Exhibit No.
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Description of Document
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3.1
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Certificate of Incorporation Dated July 15, 2011(1)
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3.2
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Bylaws(1)
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4.1
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Amended
and Restated 2012 Stock Option Plan (2)
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4.2
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Form of
Notice of Award of Restricted Stock Units (3)
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4.3
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Form of
Restricted Stock Unit Award Agreement (3)
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5.1
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Opinion
of Gracin & Marlow, LLP regarding Legality of Shares
(3)
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23.1
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Consent
of
Mayer Hoffman McCann P.C.
Independent Registered Public Accounting Firm (3)
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23.2
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Consent
of Gracin & Marlow, LLP (contained in Exhibit 5.1)
(3)
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24.1
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Power
of Attorney (included as part of the signature page to this
Registration Statement and incorporated herein by reference)
(3)
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————————
(1) Incorporated by reference to the Registrant’s Form 10-12G
(File No. 000-54900) filed with the Securities
and Exchange Commission on February 12, 2013.
(2)
Previously filed as Exhibit B to the Registrant’s
Definitive Information Statement on Schedule 14C (File No.
000-54900) filed with the Securities and Exchange Commission on
March 21, 2017.
(3) Filed herewith.
ITEM 9. UNDERTAKINGS
The undersigned Registrant hereby undertakes:
1. To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration
statement:
i. To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933, as amended;
ii. To reflect in the prospectus any facts or events arising after
the effective date of this registration statement (or the most
recent post-effective amendment thereof) which, individually or in
the aggregate, represent a fundamental change in the information
set forth in this Registration Statement;
iii. To include any material information with respect to the plan
of distribution not previously disclosed in this registration
statement or any material change to such information in the
registration statement; provided, however, that paragraphs
(a)(1)(i) and (a)(1)(ii) do not apply if the information required
to be included in a post-effective amendment by those paragraphs is
contained in periodic reports filed by the Registrant pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act of 1934
that are incorporated by reference in this Registration
Statement.
2. That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at
that time shall be deemed to be the initial bona fide offering
thereof.
3. To remove from registration by means of a post-effective
amendment any of the securities being registered that remain unsold
at the termination of the offering.
4. That, for purposes of determining any liability under the
Securities Act of 1933, each filing of the Registrant's annual
report pursuant to section 13(a) or section 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to section 15(d) of
the Securities Exchange Act of 1934) that is incorporated by
reference in the registration statement shall be deemed to be a new
registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to
be the initial bona fide offering thereof.
5. Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the Registrant, the Registrant has been
advised that in the opinion of the SEC such indemnification is
against public policy as expressed in the Securities Act and is,
therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by
the Registrant of expenses incurred or paid by a director, officer
or controlling person of the Registrant in the successful defense
of any action, suit or proceeding) is asserted by such director,
officer or controlling person in connection with the securities
being registered, the Registrant will, unless in the opinion of its
counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in
the Securities Act and will be governed by the final adjudication
of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that
it meets all of the requirements for filing on Form S-8 and has
duly caused this registration statement to be signed on its behalf
by the undersigned, thereunto duly authorized, in Chula Vista,
California, on the 28
th
day of June 2017.
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YOUNGEVITY
INTERNATIONAL, INC.
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By:
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/s/
Stephan
Wallach
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Name
:
Stephan Wallach
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Title:
Chief
Executive Officer
(Principal Executive Officer)
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POWER OF ATTORNEY AND SIGNATURES
Each of the undersigned, whose signature appears below, hereby
constitutes and appoints Stephan Wallach as his or her true and
lawful attorney-in-fact and agent, with full power of substitution
and resubstitution for him or her and in his or her name, place and
stead, in any and all capacities, to sign any or all amendments to
this Registration Statement, whether pre-effective or
post-effective, and to file the same with all exhibits thereto and
other documents in connection therewith, with the Securities and
Exchange Commission, granting unto said attorney-in-fact and agent,
or his substitute, full power and authority to do and perform each
and every act and thing necessary or appropriate to be done with
respect to this Registration Statement or any amendments hereto in
the premises, as fully to all intents and purposes as he or she
might or could do in person, hereby ratifying and confirming all
that said attorney-in-fact and agent, or his substitute may
lawfully do or cause to be done by virtue thereof.
Pursuant to the requirements of the Securities Act of 1933, as
amended, this registration statement has been signed by the
following persons in the capacities and on the dates
indicated.
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Signature
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Title
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Date
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/s/
Stephan Wallach
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Chief
Executive Officer (Principal Executive Officer) and
Director
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June
28, 2017
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Stephan
Wallach
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/s/
Dave Briskie
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President
and Chief Financial Officer (Principal Financial and Accounting
Officer)
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June
28,
2017
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Dave
Briskie
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/s/
Michelle Wallach
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Director
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June
28,
2017
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Michelle
Wallach
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/s/
Richard Renton
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Director
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June
28,
2017
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Richard
Renton
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/s/
William Thompson
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Director
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June
28,
2017
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William
Thompson
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/s/ Kevin
Allodi
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Director
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June
28,
2017
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Kevin Allodi
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/s/ Paul Sallwasser
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Director
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June
28,
2017
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Paul
Sallwasser
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EXHIBIT INDEX
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Exhibit No.
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Description of Document
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3.1
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Certificate of Incorporation Dated July 15, 2011(1)
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3.2
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Bylaws(1)
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4.1
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Amended
and Restated 2012 Stock Option Plan (2)
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4.2
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Form of
Notice of Award of Restricted Stock Units (3)
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4.3
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Form of
Restricted Stock Unit Award Agreement (3)
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5.1
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Opinion
of Gracin & Marlow, LLP regarding Legality of Shares
(3)
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23.1
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Consent
of
Mayer Hoffman McCann P.C.
Independent Registered Public Accounting Firm (3)
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23.2
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Consent
of Gracin & Marlow, LLP (contained in Exhibit 5.1)
(3)
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24.1
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Power
of Attorney (included as part of the signature page to this
Registration Statement and incorporated herein by reference)
(3)
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————————
(1) Incorporated by reference to the Registrant’s Form 10-12G
(File No. 000-54900) filed with the Securities
and Exchange Commission on February 12,
2013.
(2)
Previously filed as Exhibit B to the Registrant’s
Definitive Information Statement on Schedule 14C (File No.
000-54900) filed with the Securities and Exchange Commission on
March 21, 2017.
(3) Filed herewith.
Exhibit 4.2
YOUNGEVITY INTERNATIONAL, INC.
NOTICE OF AWARD OF RESTRICTED STOCK UNITS
AMENDED AND RESTATED 2012 STOCK OPTION PLAN
Youngevity
International, Inc. a Delaware corporation (the “
Company
”), awards to the
undersigned (the “
Participant
”) the following
restricted stock units to acquire shares (the “
Shares
”) of the common stock of
the Company, par value $0.001 per share (the “
Common Stock
”), pursuant to the
Company’s Amended and Restated 2012 Stock Option Plan (the
“
Plan
”):
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Participant:
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[
]
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Total
Number of Restricted Stock Units
(each
Restricted Stock Unit
represents the right to receive one share of Common Stock on the
applicable vesting date):
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[
]
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Award
Date:
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[
]
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Vesting
Commencement Date:
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[
]
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Vesting
Schedule:
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[
]
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Final
Exercise Date:
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[
]
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These
Restricted Stock Units are awarded under and governed by the terms
and conditions of the Plan and the Restricted Stock Unit Award
Agreement, both of which are incorporated herein by reference. By
signing below, the Participant accepts these Restricted Stock
Units, acknowledges receipt of a copy of the Plan and the
Restricted Stock Unit Award Agreement, and agrees to the terms
thereof.
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[NAME
OF PARTICIPANT]
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YOUNGEVITY
INTERNATIONAL, INC.:
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________________________________
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(Signature)
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By:
____________________________________
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Name:
__________________________________
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Address:______________________________
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Title:
___________________________________
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_____________________________________
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Date:
___________________________________
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Exhibit 4.3
YOUNGEVITY INTERNATIONAL, INC.
RESTRICTED STOCK UNIT AWARD AGREEMENT
Awarded under the Amended and Restated 2012 Stock Option
Plan
YOUNGEVITY
INTERNATIONAL, INC., a Delaware corporation (the
“
Company
”), has
awarded to you the Restricted Stock Units (“
RSUs
”) specified in the Notice of
Award of Restricted Stock Units above (the “
Notice
”), which is incorporated
into this Restricted Stock Unit Award Agreement (the
“
Agreement
”) and
deemed to be a part hereof. The RSUs have been awarded to you under
Section 6(g) of the Company’s Amended and Restated 2012
Stock Option Plan (the “
Plan
”), on the terms and
conditions specified in the Notice and this Agreement. Capitalized
terms that are not otherwise defined herein or in the Notice shall
have the meanings given to such terms in the Plan.
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1.
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RESTRICTED STOCK
UNIT AWARD
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The
Compensation Committee of the Board of Directors of the Company
(the “
Committee
”) has awarded to you on
the Award Date an Award of RSUs as designated herein subject to the
terms, conditions, and restrictions set forth in this Agreement and
the Plan. Each RSU shall represent the conditional right to
receive, upon settlement of the RSU, one share of common stock, par
value $0.001 per share (the “
Common Stock
”) (subject to any tax
withholding as described in Section 3). RSUs include the right
to receive dividend equivalents as specified in Section 4
(“
Dividend
Equivalents
”). The purpose of such Award is to
motivate and retain you as an employee of the Company or a
subsidiary of the Company, to encourage you to continue to give
your best efforts for the Company’s future success, and to
increase your proprietary interest in the Company. Except as may be
required by law, you are not required to make any payment (other
than payments for taxes pursuant to Section 3 hereof) or
provide any consideration other than the rendering of future
services to the Company or a subsidiary of the
Company.
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2.
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RESTRICTIONS,
FORFEITURES, AND SETTLEMENT
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Except
as otherwise provided in this Section 2, RSUs shall be subject
to the restrictions and conditions set forth herein during the
period beginning on the date of grant (the “
Award Period
”) and ending on the
Vesting Date (such period being referred to as the
“
Restricted
Period
”). Vesting of the RSUs is conditioned upon you
remaining continuously employed by the Company or a subsidiary of
the Company following the Award Date until the relevant vesting
date, subject to the provisions of this Section 2. Assuming
satisfaction of such employment conditions, the RSUs will become
vested and nonforfeitable as follows (unless such vesting terms are
amended by the Committee or the Board): (i) ten percent (10%) on
the three- year anniversary of the Award Date; (ii) an additional
fifteen percent (15%) on the four-year anniversary of the Award
Date; (iii) an additional fifty percent (50%) on the five-year
anniversary of the Award Date; and (iv) the final twenty five
percent (25%) on the six- year anniversary of the Award Date. In
the event you attain Retirement age while still an employee of the
Company or a subsidiary, all unvested RSUs held by you at least one
year from the Award Date will become vested and non-forfeitable,
and thereafter, so long as you remain an employee of the Company or
a subsidiary after attaining Retirement age, all other RSUs will
become 100% vested one year from the Award Date.
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(a)
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Nontransferability.
During the Restricted Period and any
further period prior to settlement of your RSUs, you may not sell,
transfer, pledge or assign any of the RSUs or your rights relating
thereto.
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(b)
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Time of Settlement.
RSUs shall be settled promptly upon
expiration of the Restricted Period without forfeiture of the RSUs
(i.e., upon vesting) by delivery of one share of Common Stock for
each RSU being settled; provided, however, that settlement of an
RSU shall be subject to the Plan, including if applicable the
six-month delay rule in the Plan pursuant to Section 409A of the
Code). (
Note: This rule may apply
to any portion of the RSUs that vests after the time you become
Retirement eligible under the Plan, and could apply in other cases
as well
). Settlement of RSUs or cash amounts that directly
or indirectly result from Dividend Equivalents on RSUs or
adjustments to RSUs shall occur at the time of settlement of, and
subject to the restrictions and conditions that apply to, the
awarded RSU. Until shares are delivered to you in settlement of
RSUs, you shall have none of the rights of a stockholder of the
Company with respect to the shares issuable in settlement of the
RSUs, including the right to vote the shares and receive actual
dividends and other distributions on the underlying shares of
Common Stock. Shares of stock issuable in settlement of RSUs shall
be delivered to you upon settlement in certificated form or in such
other manner as the Company may reasonably determine.
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(c)
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Retirement and Death.
In the event of your Retirement (as
that term is defined in the Plan or your death while employed by
the Company prior to the end of the Restricted Period, your RSUs
shall become fully vested. In the event of your death prior to the
delivery of shares in settlement of RSUs (not previously
forfeited), shares in settlement of your RSUs shall be delivered to
your estate, upon presentation to the Committee of letters
testamentary or other documentation satisfactory to the Committee,
and your estate shall succeed to any other rights provided
hereunder in the event of your death.
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(d)
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Termination not for Cause/Termination Following Change in
Control.
U
pon termination of
your employment or service with the Company and its Subsidiaries
such that you are no longer either an employee or consultant to the
Company (i) by the Company or its Subsidiaries without Cause
(including, in case of a Nonemployee Director, the failure to be
elected as a Nonemployee Director); or (ii) by you for
“
Good
Reason
”
as defined
below) or the Company without Cause during the two year
period following a Change in Control (as defined in the Plan), the
Restricted Period and all remaining restrictions shall expire and
the RSUs shall be deemed fully vested; provided that you have been
continuously employed by the Company for at least two years and you
sign a general release and, where deemed applicable by the Company,
a non-compete and/or a non-solicitation agreement. For purposes of
this Agreement “Good Reason” shall have the definition
set forth in your employment agreement with the Company and if
there is no definition in your employment agreement with the
Company then “good reason” shall mean the occurrence of
any of the following events without your consent: (A) a material
reduction in your base salary; (B) a material breach by the Company
of the terms of your employment agreement with the Company; (C) a
material reduction in your duties, authority and responsibilities
relative to your duties, authority, and responsibilities in effect
immediately prior to such reduction; or (D) the relocation of your
principal place of employment, without your consent, in a manner
that lengthens your one-way commute distance by twenty fine (25) or
more miles from your then-current principal place of employment
immediately prior to such relocation.
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(e)
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Disability.
In the event you become Disabled (as that term
is defined in your employment agreement with the Company or if
there is no definition in your employment agreement with the
Company then the definition shall be the definition of Disability
in the Plan), for the period during which you continue to be deemed
to be employed by the Company or a subsidiary (i.e., the period
during which you receive Disability benefits), you will not be
deemed to have terminated employment for purposes of the RSUs. Upon
the termination of your receipt of Disability benefits,
(i) you will not be deemed to have terminated employment if
you return to employment status, and (ii) if you do not return to
employment status, you will be deemed to have terminated employment
at the date of cessation of payments to you under all disability
pay plans of the Company and its subsidiaries, with such
termination treated for purposes of the RSUs as a Retirement or
death.
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(f)
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Other Termination of Employment.
In the event of your
voluntary termination, or termination by the Company for Cause (as
defined in the Plan or your employment agreement with the Company)
or misconduct or other conduct deemed by the Company to be
detrimental to the interests of the Company, you shall forfeit all
unvested RSUs on the date of termination.
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(i)
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You
may, at any time prior to the expiration of the Restricted Period,
waive all rights with respect to all or some of the RSUs by
delivering to the Company a written notice of such
waiver.
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(ii)
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Termination
of employment includes any event if immediately thereafter you are
no longer an employee of the Company or any subsidiary of the
Company, subject to Section 2(h) hereof. References in this
Section 2 to employment by the Company include employment by a
subsidiary of the Company. Termination of employment means an event
after which you are no longer employed by the Company or any
subsidiary of the Company. Such an event could include the
disposition of a subsidiary or business unit by the Company or a
subsidiary.
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(iv)
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Upon
any termination of your employment, any RSUs as to which the
Restricted Period has not expired at or before such termination
shall be forfeited. Other provisions of this Agreement
notwithstanding, in no event will an RSU that has been forfeited
thereafter vest or be settled.
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(h)
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The
following events shall not be deemed a termination of
employment:
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(i)
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A
transfer of you from the Company to a subsidiary, or vice versa, or
from one subsidiary to another;
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(ii)
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A leave
of absence, duly authorized in writing by the Company, for military
service or sickness or for any other purpose approved by the
Company if the period of such leave does not exceed ninety
(90) days; and
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(iii)
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A leave
of absence in excess of ninety (90) days, duly authorized in
writing, by the Company, provided your right to reemployment is
guaranteed either by a statute or by contract.
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However,
failure of you to return to active service with the Company or a
subsidiary at the end of an approved leave of absence shall be
deemed a termination of employment. During a leave of absence as
defined in (ii) or (iii), although you will be considered to
have been continuously employed by the Company or a subsidiary and
not to have had a termination of employment under this
Section 2, the Committee may specify that such leave period
shall not be counted in determining the period of employment for
purposes of the vesting of the RSUs. In such case, the vesting
dates for unvested RSUs shall be extended by the length of any such
leave of absence.
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At such
time as the Company is required to withhold taxes with respect to
the RSUs, or at an earlier date as determined by the Company, you
shall make remittance to the Company of an amount sufficient to
cover such taxes or make such other arrangement regarding payments
of such taxes as are satisfactory to the Committee. The Company and
its subsidiaries shall, to the extent permitted by law, have the
right to deduct such amount from any payment of any kind otherwise
due to you, including by means of mandatory withholding of shares
deliverable in settlement of your RSUs to satisfy the mandatory tax
withholding requirements. When the Dividend Equivalents you receive
under Section 4, if any, become payable to you, they will be
compensation (wages) for tax purposes and will be included on your
W-2 form. The Company will be required to withhold applicable taxes
on such Dividend Equivalents. The Company may deduct such taxes
either from the gross Dividend Equivalents payable on such RSUs or
from any other cash payments to be made to or on account of you or
may require you to make prompt remittance to the Company of such
tax amounts. Any cash payment to you under Section 4 of the
Agreement will be included in your W-2 form as compensation and
subject to applicable tax withholding.
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4.
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DIVIDEND
EQUIVALENTS AND ADJUSTMENTS
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(a)
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Dividend
Equivalents shall be paid or credited on RSUs (other than RSUs
that, at the relevant record date, previously have been settled or
forfeited) as follows, except that the Committee may specify an
alternative treatment from that specified in (i), (ii), or
(iii) below for any dividend or distribution:
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(i)
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Cash Dividends
. If the Company declares and pays a dividend
or distribution on Common Stock in the form of cash, then you will
be credited with a cash amount as of the payment date for such
dividend or distribution equal to the number of RSUs credited to
you as of the record date for such dividend or distribution
multiplied by the amount of cash actually paid as a dividend or
distribution on each outstanding share of Common Stock at such
payment date. Any amounts credited under this Section 4(a)(i)
shall be subject to the restrictions and conditions that apply to
the RSU with respect to which the amounts are credited and will be
payable when the underlying RSU becomes payable. If the underlying
RSU does not vest or is forfeited, any amounts credited under this
Section 4(a)(i) with respect to the underlying RSU will also
fail to vest and be forfeited.
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(ii)
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Non-Share Dividends
. If the Company declares and pays a
dividend or distribution on Common Stock in the form of property
other than shares, then a number of additional RSUs shall be
credited to you as of the payment date for such dividend or
distribution equal to the number of RSUs credited to you as of the
record date for such dividend or distribution multiplied by the
Fair Market Value of such property actually paid as a dividend or
distribution on each outstanding share of Common Stock at such
payment date, divided by the Fair Market Value of a share at such
payment date. Any RSUs credited to you under this
Section 4(a)(ii) shall be subject to the restrictions and
conditions that apply to the RSU with respect to which the RSUs are
credited and will be payable when the underlying RSU becomes
payable. If the underlying RSU does not vest or is forfeited, any
RSUs credited under this Section 4(a)(ii) with respect to the
underlying RSU will also fail to vest and be forfeited. You will be
eligible to receive Dividend Equivalents on any RSUs credited to
you under this Section 4(a)(ii).
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(iii)
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Common Stock Dividends and Splits
. If the Company declares
and pays a dividend or distribution on Common Stock in the form of
additional shares, or there occurs a forward split of Common Stock,
then a number of additional RSUs shall be credited to you as of the
payment date for such dividend or distribution or forward split
equal to the number of RSUs credited to you as of the record date
for such dividend or distribution or split multiplied by the number
of additional shares actually paid as a dividend or distribution or
issued in such split in respect of each outstanding share of Common
Stock. Any RSUs credited to you under this Section 4(a)(iii)
shall be subject to the restrictions and conditions that apply to
the RSU with respect to which the RSUs are credited and will be
payable when the underlying RSU becomes payable. If the underlying
RSU does not vest or is forfeited, any RSUs credited under this
Section 4(a)(iii) with respect to the underlying RSU will also
fail to vest and be forfeited. You will be eligible to receive
Dividend Equivalents on any RSUs credited to you under this
Section 4(a)(iii).
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(b)
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The
number of your RSUs and other related terms shall be appropriately
adjusted, in order to prevent dilution or enlargement of your
rights with respect to RSUs, to reflect any changes in the
outstanding shares of Common Stock resulting from any event
referred to in Section 3(c) of the Plan, taking into account
any RSUs credited to you in connection with such event under
Section 4(a).
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5.
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EFFECT ON OTHER
BENEFITS
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In no
event shall the value, at any time, of the RSUs or any other
payment under this Agreement be included as compensation or
earnings for purposes of any other compensation, retirement, or
benefit plan offered to employees of the Company unless otherwise
specifically provided for in such plan.
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6.
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RIGHT TO CONTINUED
EMPLOYMENT
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Nothing
in the Plan or this Agreement shall confer on you any right to
continue in the employ of the Company or any subsidiary or any
specific position or level of employment with the Company or any
subsidiary or affect in any way the right of the Company or any
subsidiary to terminate your employment without prior notice at any
time for any reason or no reason.
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7.
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ADMINISTRATION;
UNFUNDED OBLIGATIONS
|
The
Committee shall have full authority and discretion, subject only to
the express terms of the Plan, to decide all matters relating to
the administration and interpretation of the Plan and this
Agreement, and all such Committee determinations shall be final,
conclusive, and binding upon the Company, you, and all interested
parties. Any provision for distribution in settlement of your RSUs
and other obligations hereunder (including cash amounts set aside
under Section 4(a)(i)) shall be by means of bookkeeping
entries on the books of the Company and shall not create in you or
any beneficiary any right to, or claim against any, specific assets
of the Company, nor result in the creation of any trust or escrow
account for you or any beneficiary. You and any of your
beneficiaries entitled to any settlement or distribution hereunder
shall be a general creditor of the Company.
This
Agreement shall be subject to the terms of the Plan, as amended
from time to time, except that the Award which is the subject of
this Agreement may not be materially adversely affected by any
amendment or termination of the Plan approved after the Award Date
without your written consent.
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9.
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SEVERABILITY AND
VALIDITY
|
The
various provisions of this Agreement are severable, and any
determination of invalidity or unenforceability of any one
provision shall have no effect on the remaining
provisions.
Except to the extent preempted by any applicable
federal law, this Agreement shall be construed and administered in
accordance with the laws of the State of Delaware, without
reference to its principles of conflicts of law.
The
parties shall resolve all disputes, controversies and differences
which may arise between the parties, out of or in relation to or in
connection with this Agreement or the breach, termination,
enforcement, interpretation or validity thereof, including the
determination of the scope or applicability of this Agreement to
arbitrate, after discussion in good faith attempting to reach an
amicable solution.
Such discussion will begin
immediately after one party has delivered to the other party a
request for discussion. If the dispute, controversy, or claim
cannot be resolved within 30 days following the date on which the
request for discussion is delivered, then it will be finally
settled by arbitration
held in Chula
Vista, California in accordance with the latest Rules of the
American Arbitration Association. Such arbitration shall be
conducted by one arbitrator appointed as follows: each party will
appoint one arbitrator and the appointed arbitrators shall appoint
the deciding arbitrator. The decision of the tribunal shall
be final and may not be appealed. The arbitral tribunal may,
in its discretion award fees and costs as part of its award.
Judgment on the arbitral award may be entered by any court of
competent jurisdiction, including any court that has jurisdiction
over either of the party or any of their
assets.
This
Agreement shall be binding upon and inure to the benefit of the
successors, assigns, and heirs of the respective
parties.
By
entering into this agreement, you (i) authorize the Company,
and any agent of the Company administering the Plan or providing
Plan recordkeeping services, to disclose to the Company or any of
its subsidiaries such information and data as the Company or any
such subsidiary shall request in order to facilitate the award of
RSUs and the administration of the Plan; (ii) waive any data
privacy rights you may have with respect to such information; and
(iii) authorize the company to store and transmit such
information in electronic form.
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14.
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ENTIRE AGREEMENT
AND NO ORAL MODIFICATION OR WAIVER
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This
Agreement contains the entire understanding of the parties. This
Agreement shall not be modified or amended except in writing duly
signed by the parties, except that the Company may adopt a
modification or amendment to the Agreement that is not materially
adverse to you in writing signed only by the Company. Any waiver of
any right or failure to perform under this Agreement shall be in
writing signed by the party granting the waiver and shall not be
deemed a waiver of any subsequent failure to perform.
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YOUNGEVITY
INTERNATIONAL, INC.
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By:
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I have
read this Agreement in its entirety. I understand that this Award
has been granted to provide a means for me to acquire and/or expand
an ownership position in Youngevity International, Inc., and it is
expected that, if applicable, I will retain the stock I receive
upon the vesting of this award consistent with the Company’s
share retention guidelines. I acknowledge and agree that sales of
shares will be subject to the Company’s policy regulating
trading by employees. In accepting this Award, I hereby agree that
such broker-dealer as the Company may choose to administer the
Plan, may provide the Company with any and all account
information.
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_____________________________________
(Signature)
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Address:
___________________________________
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Exhibit 5.1
The
Chrysler Building
405
Lexington Avenue, 26
th
Floor
New
York, New York 10174
Telephone:
(212) 907-6457
Facsimile:
(212) 208-4657
June
28,
2017
The
Board of Directors
Youngevity
International, Inc.
2400 Boswell Road
Chula Vista, California 91419
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Re:
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Registration
Statement on Form S-8
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Gentlemen:
We
refer to the Registration Statement on Form S-8 (the
“Registration Statement”) filed on even date by
Youngevity International, Inc., a Delaware corporation (the
“Company”), with the Securities and Exchange Commission
(the “SEC”) with respect to the registration of up to
an aggregate of 2,000,000 shares of the Company’s common
stock, par value $0.001 per share (the “Shares”), to be
issued in connection with the Company’s Amended and Restated
2012 Stock Option Plan (the “Plan”).
For the
purposes of this opinion letter, we have examined the Registration
Statement and the originals, or duplicates or certified or
conformed copies, of such corporate records, agreements, documents
and other instruments, including the Certificate of Incorporation
and Bylaws of the Company and the Plan, and have made such other
investigations as we have deemed relevant and necessary in
connection with the opinions set forth below. As to questions of
fact material to this opinion letter, we have relied, with your
approval, upon oral and written representations and certificates of
officers and other representatives of the Company and certificates
or comparable documents of public officials.
In
making such examination and rendering the opinions set forth below,
we have assumed without verification the genuineness of all
signatures, the authenticity of all documents submitted to us as
originals, that all documents submitted to us as certified copies
are true and correct copies of such originals, the authenticity of
the originals of such documents submitted to us as certified
copies, and the legal capacity of all individuals executing any of
the foregoing documents.
We have
also assumed that any Shares to be offered and sold from time to
time will be duly authorized and issued in accordance with the
Company’s Certificate of Incorporation and Bylaws, the
authorizing resolutions of the Board of Directors of the Company or
a committee thereof and applicable law, and that any certificates
evidencing such Shares will be duly executed and delivered, against
receipt of the consideration approved by the Company, which will be
no less than the par value thereof.
Based
upon the foregoing, and subject to the qualifications, assumptions
and limitations stated herein, we are of the opinion that, when the
Shares sold have been issued, delivered and paid for in the manner
contemplated by and upon the terms and conditions set forth in the
Plan, the Shares will be validly issued, fully paid and
nonassessable.
We are
members of the bar of the State of New York, and do not express any
opinion herein concerning any law other than the Delaware General
Corporation Law and applicable reported judicial decisions. This
opinion letter has been prepared for use in connection with the
Registration Statement. We assume no obligations to advise you of
any change in the foregoing subsequent to the delivery of this
opinion letter.
We
hereby consent to the filing of this opinion letter as Exhibit 5.1
to the Registration Statement. In giving such consent, we do not
thereby admit that we are in the category of persons whose consent
is required under Section 7 of the Securities Act, and the
rules and regulations of the SEC promulgated
thereunder.
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Very
truly yours,
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/s/
Gracin & Marlow, LLP
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Gracin
& Marlow, LLP
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2
Exhibit 23.1
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING
FIRM
We
consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated March 30, 2017, relating
to the consolidated financial statements of
Youngevity International, Inc. and
Subsidiaries,
appearing in the Annual Report on Form 10-K,
for the year ended December 31, 2016.
/s/
Mayer Hoffman McCann P.C.
San
Diego, California
June
28,
2017
