Attached files
| file | filename |
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| EX-5.1 - OPINION - Youngevity International, Inc. | ex5-1.htm |
| EX-1.1 - AGREEMENT - Youngevity International, Inc. | ex1-1.htm |
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of
the Securities Exchange Act of 1934
Date of
Report (Date of earliest event reported): January 7,
2019
YOUNGEVITY INTERNATIONAL, INC.
(Exact
name of registrant as specified in its charter)
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Delaware
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000-54900
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90-0890517
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(State
or other jurisdiction of incorporation)
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(Commission
File No.)
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(IRS
Employer Identification No.)
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2400 Boswell Road, Chula Vista, CA 91914
(Address
of principal executive offices) (Zip Code)
Registrant’s
telephone number, including area code: (619) 934-3980
N/A
(Former
name or former address, if changed since last report)
Check
the appropriate box below if the Form 8-K filing is intended to
simultaneously satisfy the filing obligation of the registrant
under any of the following provisions:
☐ Written communications pursuant to Rule 425 under
the Securities Act (17 CFR 230.425)
☐ Soliciting material pursuant to Rule 14a-12 under
the Exchange Act (17 CFR 240.14a-12)
☐ Pre-commencement communications pursuant to Rule
14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
☐ Pre-commencement communications pursuant to Rule
13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
Indicate
by check mark whether the registrant is an emerging growth company
as defined in in Rule 405 of the Securities Act of 1933
(§230.405 of this chapter) or Rule 12b-2 of the Securities
Exchange Act of 1934 (§240.12b-2 of this
chapter).
Emerging
growth company
☑
If an
emerging growth company, indicate by checkmark 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 13(a) of the Exchange Act. ☐
Item 1.01. Entry into a Material Definitive
Agreement.
On
January
7, 2019, Youngevity International, Inc. (the
“Company”) entered into an
At the Market Offering Agreement (the “ATM Agreement”)
with The Benchmark Company, LLC (“Benchmark”), as sales
agent, pursuant to which the Company may sell from time to time, at
its option, shares of its common stock, par value $0.001 per share,
through Benchmark, as sales agent (the “Sales Agent”).
Sales of shares of common stock made pursuant to the ATM Agreement,
if any, will be made pursuant to the Company’s effective
shelf registration statement on Form S-3 (File No. 333-225053)
(the “Registration Statement”) filed with the U.S.
Securities and Exchange Commission (“SEC”), the base
prospectus, dated May 29, 2018, filed as part of such Registration
Statement and the prospectus supplement, dated January 7,
2019, as will be filed by the Company with the SEC (the
“Prospectus Supplement”), for the sale of up to
$60,000,000 of shares of the Company’s common stock. Under
the terms of the ATM Agreement, in no event will the Company issue
or sell through the Sales Agent such number or dollar amount of
shares of common stock that would (i) exceed the number or dollar
amount of shares of common stock registered and available on the
Registration Statement, (ii) exceed the number of authorized but
unissued shares of common stock, (iii) exceed the number or dollar
amount of shares of common stock permitted to be sold under Form
S-3 (including General Instruction I.B.6 thereof, if
applicable).
Under the terms of the ATM Agreement, the Company
may sell shares of its common stock through Benchmark by any method
permitted that is deemed an “at the market offering” as
defined in Rule 415 under the Securities Act of 1933, as amended
(the “Securities Act”). Benchmark will use its
commercially reasonable efforts consistent with its normal trading
and sales practices to sell the Company’s common stock from
time to time, based upon the Company’s instructions
(including any price, time or size limits or other customary
parameters or conditions the Company may impose). Actual sales will
depend on a variety of factors to be determined by the Company from
time to time, including (among others) market conditions, the
trading price of the Company’s common stock, capital needs
and determinations by the Company of the appropriate sources of
funding for the Company. The Company is not obligated to make any
sales of common stock under the ATM Agreement and the Company
cannot provide any assurances that it will issue any shares
pursuant to the ATM Agreement. The Company will pay a commission
rate of 3.0% of the gross sales price per share sold and agreed to
reimburse Benchmark for certain specified expenses, including the
fees and disbursements of its legal counsel in an amount not to
exceed $25,000. The Company has also agreed pursuant to the ATM
Agreement to provide Benchmark with customary indemnification and
contribution rights.
This
Current Report on Form 8-K shall not constitute an offer to sell or
the solicitation of an offer to buy any security nor shall there be
any sale of these securities in any state in which such offer,
solicitation or sale would be unlawful prior to registration or
qualification under the securities laws of any such
state.
The
ATM Agreement is filed as Exhibit 1.1 to this Current Report on
Form 8-K. The description of the ATM Agreement does not purport to
be complete and is qualified in its entirety by reference to the
ATM Agreement filed as an exhibit to this Current Report on Form
8-K and is incorporated herein by reference. The opinion of the
Company’s counsel regarding the validity of the shares that
will be issued pursuant to the ATM Agreement and the Prospectus
Supplement is also filed herewith as Exhibit 5.1.
The
representations, warranties and covenants contained in the ATM
Agreement were made solely for the benefit of the parties to the
ATM Agreement. In addition, such representations, warranties and
covenants (i) are intended as a way of allocating the risk between
the parties to the ATM Agreement and not as statements of fact, and
(ii) may apply standards of materiality in a way that is different
from what may be viewed as material by stockholders of, or other
investors in, the Company. Moreover, information concerning the
subject matter of the representations and warranties may change
after the date of the ATM Agreement, which subsequent information
may or may not be fully reflected in public
disclosures.
Item 9.01 Financial Statements and
Exhibits.
(d)
Exhibits.
The
following exhibits are filed with this Current Report on Form
8-K.
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Exhibit
No.
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Description
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At the
Market Offering Agreement, dated January 7, 2019, by and between
Youngevity International, Inc. and The Benchmark Company,
LLC
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Opinion
of Gracin & Marlow, LLP
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Consent
of Gracin & Marlow, LLP (included in Opinion of Gracin &
Marlow, LLP filed as Exhibit 5.1)
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SIGNATURES
Pursuant
to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf
by the undersigned hereunto duly authorized.
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YOUNGEVITY
INTERNATIONAL, INC.
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Date:
January
7, 2019
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By:
/s/ David
Briskie
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Name:
David Briskie
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Title:
President and Chief Financial Officer
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Exhibit
No.
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Description
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At the
Market Offering Agreement, dated January 7,
2019, by and between Youngevity International, Inc. and The
Benchmark Company, LLC
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Opinion
of Gracin & Marlow, LLP
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Consent
of Gracin & Marlow, LLP (included in Opinion of Gracin &
Marlow, LLP filed as Exhibit 5.1)
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