As filed with the Securities and Exchange Commission on September
18, 2017
UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF
1933
YOUNGEVITY INTERNATIONAL, INC.
(Exact Name of Registrant as Specified in Its Charter)
Delaware
(State or Other Jurisdiction of
Incorporation or Organization)
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90-0890517
(I.R.S. Employer
Identification Number)
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2400 Boswell Road
Chula Vista, California 91914
(619) 934-3980
(Address, Including Zip Code, and Telephone Number, Including Area
Code, of Registrant’s Principal Executive
Offices)
Stephan Wallach
Chief Executive Officer
Youngevity International, Inc.
2400 Boswell Road
Chula Vista, California 91914
(619) 934-3980
(Name, Address, Including Zip Code, and Telephone Number, Including
Area Code of Agent for Service)
With copies to:
Leslie Marlow, Esq.
Hank
Gracin, Esq.
Patrick
Egan, Esq.
Gracin & Marlow, LLP
The Chrysler Building
405 Lexington Avenue, 26th Floor
New York, New York 10174
(212) 907-6457
Approximate
date of commencement of proposed sale to the public:
From time to time after the effective date of
this registration statement.
If the
only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check
the following box. ☐
If any
of the securities being registered on this form are to be offered
on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in
connection with dividend or interest reinvestment plans, check the
following box.
☒
If this
form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the
following box and list the Securities Act registration statement
number of the earlier effective registration statement for the same
offering. ☐
If this
form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the
Securities Act registration statement number of the earlier
effective registration statement for the same offering.
☐
If this
Form is a registration statement pursuant to General Instruction
I.D. or a post-effective amendment thereto that shall become
effective upon filing with the Commission pursuant to Rule 462(e)
under the Securities Act, check the following box.
☐
If this
Form is a post-effective amendment to a registration statement
filed pursuant to General Instruction I.D. filed to register
additional securities or additional classes of securities pursuant
to Rule 413(b) under the Securities Act, check the following box.
☐
Indicate
by check mark whether the registrant is a large accelerated filer,
an accelerated filer, a non-accelerated filer, or a smaller
reporting company. See the definitions of “large accelerated
filer,” “accelerated filer” and “smaller
reporting company” in Rule 12b-2 of the Exchange
Act.
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Large
accelerated filer
☐
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Accelerated
filer
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Non-accelerated
filer
☐
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Smaller
reporting company
☒
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Emerging
Growth Company
☒
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If an
emerging growth company, indicate by checkmark if the registrant
has not elected 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.
☐
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CALCULATION OF REGISTRATION FEE
Title
of Each Class of
Securities
to be Registered
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Amount
to be
Registered
(1)
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Proposed
Maximum
Offering
Price
per
Security
(2)
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Proposed
Maximum Aggregate Offering
Price
(2)
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Amount
of
Registration
Fee
(3)
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Common stock, par
value $0.001 per share issuable upon exercise of
Warrants
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2,590,442
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$
5.50
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$
14,234,479
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$
1,650
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Common stock, par
value $0.001 per share issuable upon conversion of 8% Convertible
Promissory Notes
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1,577,033
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$
5.50
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$
8,665,796
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$
1,004
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Total
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4,167,475
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$
5.50
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$
22,900,275
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$
2,654
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(1)
There
is also being registered hereunder an indeterminate number of
additional shares of common stock as shall be issuable pursuant to
Rule 416 under the Securities Act of 1933, as amended (the
“Securities Act”), to prevent dilution resulting from
stock splits, stock dividends or similar transactions.
(2)
Estimated
solely for the purpose of calculating the registration fee in
accordance with Rule 457(c) of the Securities Act based upon a
$5.50 per share average of high and low prices of the
registrant’s common stock on the NASDAQ Capital Market on
September 15, 2017.
(3)
A fee
of $2,654 is being paid with the filing of this registration
statement. Calculated by multiplying the estimated aggregate
offering price of securities to be registered by
0.00011590.
The registrant hereby amends this registration statement on such
date or dates as may be necessary to delay its effective date until
the registrant shall file a further amendment which specifically
states that this registration statement shall thereafter become
effective in accordance with Section 8(a) of the Securities Act, or
until the registration statement shall become effective on such
date as the Securities and Exchange Commission, acting pursuant to
said Section 8(a), may determine.
The information contained in this prospectus is not complete and
may be changed. These securities may not be sold until the
registration statement filed with the Securities and Exchange
Commission is effective. This prospectus is not an offer to sell
these securities and it is not soliciting an offer to buy these
securities in any state where the offer or sale is not
permitted.
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PROSPECTUS
SUBJECT TO COMPLETION, DATED SEPTEMBER 18, 2017
4,167,475
shares of common stock
This
prospectus relates to the resale by the investors listed in the
section titled “Selling Stockholders”, which we refer
to as the “Selling Stockholders” of up to an aggregate
of 4,167,475 shares of our common stock, par value $0.001 per share
(the “Shares”) of which: (i) 1,149,712 are shares of
common stock, issuable upon exercise of Series D Warrants (the
“2017 $5.56 Warrants”) with an exercise price of $5.56
per share of common stock that were issued to investors and the
placement agent and its designee in a private placement that was
conducted in July and August 2017 (the “2017 Private
Placement”); (ii) 247,916 are shares of common stock,
issuable upon exercise of Series A Warrants (the “2015 $9.00
Warrants”) with an exercise price of $9.00 per share of
common stock that, were issued to investors and the placement agent
and its designee in a private placement that was conducted in
October and November 2015 (the “2015 Private
Placement”); (iii) 102,678 are shares of common stock,
issuable upon exercise of Series A Warrants (the “2015 $7.00
Warrants”) with an exercise price of $7.00 per share of
common stock that were issued to the placement agent and its
designee in the 2015 Private Placement; (iv) 1,022,279 are shares
of common stock, issuable upon exercise of Series A Warrants (the
“2014 $4.60 Warrants”) with an exercise price of $4.60
per share of common stock that were issued to investors and the
placement agent and its designee in a private placement that was
conducted in July and August 2014 (the “2014 Private
Placement”); (v) 67,857 are shares of common stock, issuable
upon exercise of Series A Warrants (the “2014 $7.00
Warrants”) with an exercise price of $7.00 per share of
common stock that were issued to the placement agent and its
designee in the 2014 Private Placement; and (vi) 1,577,033 are
shares of common stock, issuable upon conversion of 8% Convertible
Promissory Notes (the “2017 Notes”) with a conversion
price of $4.60 per share of common stock that were issued in the
2017 Private Placement. The Shares were acquired by the Selling
Stockholders in connection with separate private placement
transactions completed prior to the filing of the registration
statement of which this prospectus forms a part.
We will
not receive any proceeds from the sale or other disposition of the
Shares of common stock covered by this prospectus. However,
we will receive net proceeds of any warrants exercised (unless the
warrants are exercised on a cashless basis). We are registering the
Shares as required by the Registration Rights Agreements that we
entered into with certain of the Selling Stockholders (the
“Registration Rights Agreements”) and the placement
agent agreement that we entered into with the placement
agent.
The
Selling Stockholders may offer and sell or otherwise dispose of the
Shares described in this prospectus from time to time through
public or private transactions at prevailing market prices, at
prices related to such prevailing market prices, at varying prices
determined at the time of sale, at negotiated prices, or at fixed
prices. See “Plan of Distribution” for more
information.
Our
common stock is traded on the NASDAQ Capital Market under the
symbol “YGYI.” On September 15, 2017, the last reported
sale price for the common stock was $4.85 per share. We urge
prospective purchasers of our common stock to obtain current
information about the market prices of our common stock. The prices
at which the Selling Stockholders may sell the Shares in this
offering will be determined by the prevailing market price for the
shares of common stock or in negotiated transactions.
Our
executive offices are located at 2400 Boswell Road, Chula Vista,
California 91914. Our telephone number is (619)
934-3980.
INVESTING IN OUR COMMON STOCK INVOLVES RISKS. SEE THE “RISK
FACTORS” ON PAGE 6 OF THIS PROSPECTUS AND ANY SIMILAR SECTION
CONTAINED IN THE DOCUMENTS INCORPORATED BY REFERENCE INTO THIS
PROSPECTUS CONCERNING FACTORS YOU SHOULD CONSIDER BEFORE INVESTING
IN OUR COMMON STOCK.
Neither the Securities and Exchange Commission nor any state
securities commission has approved or disapproved of these
securities or passed upon the accuracy or adequacy of the
prospectus. Any representation to the contrary is a criminal
offense.
The date of this prospectus is September 18,
2017.
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The registration statement containing this prospectus, including
the exhibits to the registration statement, provides additional
information about us and the common stock offered under this
prospectus. The registration statement, including the exhibits and
the documents incorporated herein by reference, can be read on the
Securities and Exchange Commission website or at the Securities and
Exchange Commission offices mentioned under the heading
“Where You Can Find More Information.”
This
prospectus is not an offer or solicitation in respect to these
securities in any jurisdiction in which such offer or solicitation
would be unlawful. This prospectus is part of a registration
statement that we filed with the Securities and Exchange Commission
(the “SEC”). The registration statement that contains
this prospectus (including the exhibits to the registration
statement) contains additional information about our company and
the securities offered under this prospectus. That registration
statement can be read at the SEC website or at the SEC’s
offices listed under the heading “Where You Can Find More
Information.” We have not authorized anyone else to provide
you with different information or additional information. You
should not assume that the information in this prospectus, or any
supplement or amendment to this prospectus, is accurate at any date
other than the date indicated on the cover page of such documents.
Unless otherwise stated or the context otherwise requires,
references in this prospectus to “Youngevity, the
“Company,” “we,” “our,” or
“us” refer to Youngevity International, Inc., a
Delaware corporation and its consolidated
subsidiaries.
Our Business
We are
a leading omni-direct lifestyle company offering a hybrid of the
direct selling business model that also offers e-commerce and the
power of social selling. Assembling a virtual Main Street of
products and services under one corporate entity, Youngevity offers
products from the six top selling retail categories:
health/nutrition, home/family, food/beverage (including coffee),
spa/beauty, apparel/jewelry, as well as innovative
services.
We
operate in two segments: the direct selling segment where products
are offered through a global distribution network of preferred
customers and distributors and the commercial coffee segment where
products are sold directly to businesses. During the six months
ended June 30, 2017, we derived approximately 86% of our revenue
from direct selling and approximately 14% of our revenue from our
commercial coffee sale and during the year ended December 31, 2016,
we derived approximately 89% of our revenue from our direct sales
and approximately 11% of our revenue from our commercial coffee
sales, respectively.
Direct Selling Segment
- In the direct selling segment we
sell health and wellness, beauty product and skin care, scrap
booking and story booking items, packaged food products and other
service based products on a global basis and offer a wide range of
products through an international direct selling network. Our
direct sales are made through our network, which is a web-based
global network of customers and distributors. Our multiple
independent sales force markets a variety of products to an array
of customers, through friend-to-friend marketing and social
networking. We consider our company to be an e-commerce company
whereby personal interaction is provided to customers by our
independent sales network. Initially, our focus was solely on the
sale of products in the health, beauty and home care market through
our marketing network; however, we have since expanded our selling
efforts to include a variety of other products in other markets.
Our direct selling segment offers more than 5,000 products to
support a healthy lifestyle including:
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Nutritional
supplements
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Gourmet
coffee
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Weight
management
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Skincare
and cosmetics
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Health
and wellness
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Packaged
foods
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Lifestyle
products (spa, bath, home and garden)
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Pet
care
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Digital
products including scrap and memory books
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Telecare
health services
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Apparel
and fashion accessories
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Business
lending
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Since
2010 we have expanded our operations through a series of
acquisitions of the assets of other direct selling companies
including their product lines and sales forces. We have also
substantially expanded our distributor base by merging the
companies that we have acquired under our web-based independent
distributor network, as well as providing our distributors with
additional new products to add to their product
offerings.
Set forth below is information regarding each of our acquisitions
since 2012.
Business
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Date of
Acquisition
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Products Categories
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Sorvana
International, Inc.
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July 1,
2017
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Nutritional
Supplements and Skin Care Products
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Ricolife,
LLC
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March
1, 2017
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Teas
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Bellavita Group,
LLC
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March
1, 2017
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Health
and Beauty Products
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Legacy
for Life, LLC
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September
1, 2016
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i26
supplement
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Nature’s
Pearl Corporation
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September
1, 2016
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Nutritional
Supplements and Skin Care Products
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Renew
Interest, LLC (SOZO Global, Inc.)
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July
29, 2016
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Nutritional
Supplements and Skin Care Products
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South
Hill Designs Inc.
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January
20, 2016
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Jewelry
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PAWS
Group, LLC
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July 1,
2015
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Pet
treats
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Mialisia & Co.,
LLC
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June 1,
2015
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Jewelry
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JD
Premium LLC
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March
4, 2015
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Dietary
Supplement Company
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Sta-Natural,
LLC
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February
23, 2015
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Vitamins Minerals
and Supplements for families and their pets
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Restart
Your Life, LLC
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October
1, 2014
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Dietary
Supplements
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Beyond
Organics, LLC
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May 1,
2014
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Organic
Food and Beverages
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Good
Herbs, Inc.
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April
28, 2014
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Herbal
Supplements
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Biometics
International, Inc.
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November
19, 2013
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Liquid
Supplements
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GoFoods
Global, LLC
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October
1, 2013
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Packaged
Foods
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Heritage Markers,
LLC
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August
14, 2013
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Digital
Products
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Livinity,
Inc.
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July
10, 2012
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Nutritional
Products
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GLIE,
LLC (DBA True2Life)
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March
20, 2012
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Nutritional
Supplements
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Coffee Segment
- We engage in the commercial sale of one of
our products, our coffee through our subsidiary CLR Roasters, LLC
(“CLR”) and its subsidiary. We own a traditional coffee
roasting business that produces coffee under its own Café La
Rica brand, Josie’s Java House Brand and Javalution brands.
CLR produces a variety of private labels through major national
sales outlets and to major customers including cruise lines and
office coffee service operators, as well as through our distributor
network. Our coffee segment CLR was established in 2001 and is a
wholly-owned subsidiary. CLR produces and markets a unique line of
coffees with health benefits under the JavaFit® brand which is
sold directly to consumers. In April 2017, CLR reached an agreement
with Major League Baseball’s Miami Marlins to feature
CLR’s Café La Rica Gourmet Espresso coffee as the
“Official Cafecito of the Miami Marlins” at Marlins
Park in Miami, Florida.
Our
coffee roasting facility is 50,000 square foot and is SQF Level 2
certified, which is a stringent food safety process that verifies
the coffee bean processing plant and distribution facility is in
compliance with Certified HACCP (Hazard Analysis, Critical Control
Points) food safety plans.
In
March 2014, we expanded our coffee segment and started our new
green coffee business with CLR’s acquisition of Siles
Plantation Family Group, which is a wholly-owned subsidiary of CLR
located in Matagalpa, Nicaragua. Siles Plantation Family Group
includes “La Pita,” a dry-processing facility on
approximately 26 acres of land and “El Paraiso,” a
coffee plantation consisting of approximately 500 acres of land and
thousands of coffee plants which produces 100 percent Arabica
coffee beans that are shade grown, Organic, Rainforest Alliance
Certified™ and Fair Trade Certified™.
The
plantation and dry-processing facility allows CLR to control the
coffee production process from field to cup. The dry-processing
plant allows CLR to produce and sell green coffee to major coffee
suppliers in the United States and around the world. CLR has
engaged a husband and wife team to operate the Siles Plantation
Family Group by way of an operating agreement. The agreement
provides for the sharing of profits and losses generated by the
Siles Plantation Family Group after certain conditions are met. CLR
has made substantial improvements to the land and facilities since
2014.
Our Corporate History
Youngevity
International, Inc., formerly AL International, Inc., founded in
1996, operates through the following domestic wholly-owned
subsidiaries: AL Global Corporation, which operates our direct
selling networks, CLR Roasters, LLC (“CLR”), our
commercial coffee business, 2400 Boswell LLC, MK Collaborative LLC,
and Youngevity Global LLC. Our foreign wholly-owned subsidiaries
include Youngevity Australia Pty. Ltd., Youngevity NZ, Ltd., Siles
Plantation Family Group S.A. located in Nicaragua, Youngevity
Mexico S.A. de CV, Youngevity Israel, Ltd., Youngevity Russia LLC,
Youngevity Colombia S.A.S., Youngevity International Singapore Pte.
Ltd., Mialisia Canada, Inc., Legacy for Life Limited (Hong Kong),
and the BellaVita Group LLC; Taiwan, Hong Kong, Singapore,
Indonesia, Malaysia and Japan.
The
Company also operates subsidiary branches of Youngevity Global LLC
in the Republic of the Philippines and the Taiwan Province of the
People’s Republic of China.
On July
11, 2011, AL Global Corporation, a privately held California
corporation (“AL Global”), merged with and into a
wholly-owned subsidiary of Javalution Coffee Company, a publicly
traded Florida corporation (“Javalution”). After the
merger, Javalution reincorporated in Delaware and changed its name
to AL International, Inc. In connection with this merger, CLR,
which had been a wholly-owned subsidiary of Javalution prior to the
merger, continued to be a wholly-owned subsidiary of the Company.
CLR operates a traditional coffee roasting business, and through
the merger we were provided access to additional distributors, as
well as added the JavaFit® product line to our network of
direct marketers.
Effective
July 23, 2013, we changed our name from AL International, Inc. to
Youngevity International, Inc.
On
February 23, 2017, our Board of Directors and holders of in excess
of a majority of our voting stock approved an amendment to our
Certificate of Incorporation to effectuate: (i) a reverse stock
split (the “Reverse Split”) of the issued and
outstanding shares of common stock at a ratio to be determined in
the discretion of our board of directors within a range of one
share of common stock for every fifteen (15) to twenty-five (25)
shares of common stock; (ii) a decrease in the number of shares of
(a) common stock authorized from 600,000,000 to 50,000,000 and (b)
preferred stock authorized from 100,000,000 to 5,000,000 (the
“Decrease”); concurrently with the Reverse Split; and
an amendment to our 2012 Stock Option Plan (the “Plan”)
to increase the number of shares of common stock available for
grant and to expand the types of awards available for grant (the
“Plan Amendments ”).
On June
5, 2017, we filed a certificate to amend our Articles of
Incorporation to effect a reverse split on a one-for-twenty basis
(the “Reverse Split”), whereby, every twenty shares of
our common stock, par value $0.001 per share, were exchanged for
one share of our of common stock. The Reverse Split became
effective on June 7, 2017. The common stock began trading on a
reverse split basis at the market opening on June 8,
2017.
Emerging Growth Company
We are
an emerging growth company under the Jumpstart Our Business
Startups Act (the “JOBS Act”), which was enacted in
April 2012. We shall continue to be deemed an emerging growth
company until the earliest of:
(a) the
last day of the fiscal year in which we have total annual gross
revenues of $1 billion or more;
(b) the
last day of the fiscal year of the issuer following the fifth
anniversary of the date of the first sale of common equity
securities of the issuer pursuant to an effective registration
statement;
(c) the
date on which we have issued more than $1 billion in
non-convertible debt, during the previous 3-year period, issued;
and
(d) the
date on which we are deemed to be a large accelerated
filer.
As an
emerging growth company we will be subject to reduced public
company reporting requirements and are exempt from Section 404(b)
of Sarbanes Oxley. Section 404(a) requires issuers to publish
information in their annual reports concerning the scope and
adequacy of the internal control structure and procedures for
financial reporting. This statement shall also assess the
effectiveness of such internal controls and procedures. Section
404(b) requires that the registered accounting firm shall, in the
same report, attest to and report on the assessment on the
effectiveness of the internal control structure and procedures for
financial reporting.
As an
emerging growth company we are also exempt from Section 14A (a) and
(b) of the Securities Exchange Act of 1934 which require the
shareholder approval, on an advisory basis, of executive
compensation and golden parachutes.
We have
elected to use the extended transition period for complying with
new or revised accounting standards under Section 102(b)(2) of the
Jobs Act, that allows us to delay the adoption of new or revised
accounting standards that have different effective dates for public
and private companies until those standards apply to private
companies. As a result of this election, our financial statements
may not be comparable to companies that comply with public company
effective dates.
Our Corporate Headquarters
Our
corporate headquarters are located at 2400 Boswell Road, Chula
Vista, California 91914. This is also the location of our
operations and distribution center. The facility consists of a
59,000 square foot Class A single use building that is comprised
40% of office space and the balance is used for
distribution.
Available Information
Our
common stock is traded on the NASDAQ Capital Market, under the
symbol “YGYI.”
Additional
information about our company is contained at our website,
http://www.youngevity.com. Information contained on our website is
not incorporated by reference into, and does not form any part of
this Prospectus. We have included our website address as a factual
reference and do not intend it to be an active link to our website.
Our Annual Reports on Form 10-K, Quarterly Reports on Form 10-Q and
Current Reports on Form 8-K and amendments to those reports filed
or furnished pursuant to Section 13(a) or 15(d) of the Exchange Act
are available free of charge through the investor relations page of
our internet website as soon as reasonably practicable after those
reports are electronically filed with, or furnished to, the SEC.
The following Corporate Governance documents are also posted on our
website: Code of Business Conduct and Ethics and the Charters for
the Audit Committee and Compensation Committee. Our phone number is
(619) 934-3980 and our facsimile number is (619)
934-5009.
Issuer
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Youngevity
International, Inc.
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Securities offered
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This
prospectus covers the sale of up to 4,167,475 shares of common
stock, of which (i) 1,149,712 are shares of common stock, issuable
upon exercise of the 2017 $5.56 Warrants; (ii) 247,916 are shares
of common stock, issuable upon exercise of the 2015 $9.00 Warrants;
(iii) 102,678 are shares of common stock, issuable upon exercise of
the 2015 $7.00 Warrants; (iv) 1,022,279 are shares of common stock,
issuable upon exercise of the 2014 $4.60 Warrants; (v) 67,857 are
shares of common stock, issuable upon exercise of the 2014 $7.00
Warrants; and (vi) 1,577,033 are shares of common stock, issuable
upon conversion of the 2017 Notes with a conversion price of
$4.60.
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Common stock as of August 31, 2017 (1)
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19,678,166
shares
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Use of Proceeds
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We will
not receive proceeds from the sale or other disposition of the
shares of common stock covered by this prospectus. However,
we will receive net proceeds of any warrants exercised (unless the
warrants are exercised on a cashless basis). See “Use of
Proceeds.”
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Risk Factors
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You
should carefully read and consider the information set forth under
“Risk Factors,” together with all of the other
information set forth in this prospectus, before deciding to invest
in shares of our common stock.
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Nasdaq symbol
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Our
common stock is traded on the Nasdaq Capital Market under the
symbol “YGYI.”
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(1)
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The
number of shares of our common stock outstanding is based on the
number of shares of our common stock outstanding as of August 31,
2017. This number excludes (i) 678,568 shares of common stock that
are issuable upon conversion of the notes issued in the 2014
Private Placement (the “2014 Notes”) with an exercise
price of $7.00 per share; (ii) 428,571 shares of common stock that
are issuable upon conversion of the notes issued in the 2015
Private Placement (the “2015 Notes”) with an exercise
price of $7.00 per share; (iii) 1,577,033 shares of common stock
that are issuable upon conversion of the 2017 Private Placement
(the “2017 Notes”) with a conversion price of $4.60 per
share; (iv) 1,149,712 are shares of common stock that are issuable
upon exercise of the 2017 $5.56 Warrants; (v) 247,916 are shares of
common stock that are issuable upon exercise of the 2015 $9.00
Warrants; (vi) 102,678 are shares of common stock that are issuable
upon exercise of the $7.00 2015 Warrants; (vii) 1,022,279 are
shares of common stock that are, issuable upon exercise of the 2014
$4.60 Warrants; (viii) 67,857 are shares of common stock that are
issuable upon exercise of the 2014 $7.00 Warrants; (ix) 82,124 are
shares of common stock that are issuable upon exercise of other
current outstanding warrants at an average exercise price of $6.00;
(x) 1,696,858 shares of common stock that are issuable upon
exercise of outstanding options, with a weighted average exercise
price of $4.63; and (xi) 500,000 shares of common stock that are
issuable upon being vested of restricted stock units which were
issued under our 2012 Equity Incentive Plan.
|
An investment in our common stock involves a high degree of
risk.
You should consider
carefully the risks discussed under the section captioned
“Risk Factors” contained in our most recent annual
report on Form 10-K/A and in our quarterly reports on Form 10-Q/A
for the quarter ended March 31, 2017 and Form 10-Q for the quarter
ended June 30, 2017 as updated by our subsequent filings under the
Securities Exchange Act of 1934, as amended (the “Exchange
Act”), each of which is incorporated by reference in this
prospectus in its entirety, together with other information in this
prospectus, and the information and documents incorporated by
reference in this prospectus, and any free writing prospectus that
we have authorized for use in connection with this offering before
you make a decision to invest in our common stock. If any of these
events actually occur, our business, operating results, prospects
or financial condition could be materially and adversely affected.
This could cause the trading price of our common stock to decline
and you may lose all or part of your
investment.
SPECIAL NOTE REGARDING FORWARD-LOOKING
S
TATEMENTS
Some of
the statements contained or incorporated by reference in this
prospectus may include forward-looking statements that reflect our
current views with respect to our ongoing and planned clinical
trials, business strategy, business plan, financial performance and
other future events. These statements include forward-looking
statements both with respect to us, specifically, and the
biotechnology sector, in general. We make these statements pursuant
to the safe harbor provisions of the Private Securities Litigation
Reform Act of 1995. Statements that include the words
“expect,” “intend,” “plan,”
“believe,” “project,”
“estimate,” “may,” “should,”
“anticipate,” “will” and similar statements
of a future or forward-looking nature identify forward-looking
statements for purposes of the federal securities laws or
otherwise.
All
forward-looking statements involve inherent risks and
uncertainties, and there are or will be important factors that
could cause actual results to differ materially from those
indicated in these statements. We believe that these factors
include, but are not limited to, those factors set forth under the
caption “Risk Factors,” “Business,” and
“Management’s Discussion and Analysis of Financial
Condition and Results of Operations,” in our most recent
Annual Report on Form 10-K/A and our Quarterly Reports on Form
10-Q/A for the quarter ended March 31, 2017 and Form 10-Q for the
quarter ended June 30, 2017, all of which you should review
carefully. Please consider our forward-looking statements in light
of those risks as you read this prospectus supplement and the
accompanying prospectus. We undertake no obligation to publicly
update or review any forward-looking statement, whether as a result
of new information, future developments or otherwise.
If one
or more of these or other risks or uncertainties materializes, or
if our underlying assumptions prove to be incorrect, actual results
may vary materially from what we anticipate. All subsequent written
and oral forward-looking statements attributable to us or
individuals acting on our behalf are expressly qualified in their
entirety by this Note. Before purchasing any shares of common
stock, you should consider carefully all of the factors set forth
or referred to in this prospectus that could cause actual results
to differ.
All of
the Shares covered by this prospectus are being sold by the Selling
Stockholders. See “Selling Stockholders.” We will not
receive any proceeds from these sales of the Shares. A portion of
the Shares covered by this prospectus are issuable upon exercise of
warrants to purchase our common stock. Upon any exercise of the
warrants for cash, the Selling Stockholders would pay us the
exercise price of the warrant. Cash received from exercise of any
warrants will be used for general corporate purposes. Additionally,
the warrants may be exercised on a cashless basis. If the warrants
are exercised on a cashless basis, we would not receive any cash
payment from such Selling Stockholder upon any exercise of the
warrants.
We have
never paid cash dividends on our common stock. Moreover, we do not
anticipate paying cash dividends on our common stock for the
foreseeable future. We intend to use all available cash and liquid
assets in the operation and growth of our business. Any future
determination about the payment of dividends will be made at the
discretion of our board of directors and will depend upon our
earnings, if any, capital requirements, operating and financial
conditions and on such other factors as our board of directors
deems relevant.
This
prospectus covers the offer and disposition by the Selling
Stockholders identified below, or their transferee(s), of a total
of up to 4,167,475 Shares. All of the Shares being offered under
this prospectus were acquired by the Selling Stockholders in
connection with private financings.
The
securities upon which the Shares may be issued have been sold to
the Selling Stockholders in private financings pursuant to an
exemption from registration provided by Rule 506 of Regulation D
under the Securities Act. In connection with the private
financings, we entered into registration rights agreements with
certain of the Selling Stockholders pursuant to which we agreed to
file a registration statement to register the Shares. The Selling
Stockholders made to us certain representations, warranties,
covenants, and conditions customary for private placement
investments to accredited investors.
The
table below presents information regarding the Selling Stockholders
and the Shares that they may sell or otherwise dispose of from time
to time under this prospectus. The table is based on information
supplied to us by the Selling Stockholders and reflects holdings as
of August 31, 2017. Percentages of beneficial ownership are based
upon 19,678,166 shares of common stock outstanding as of August 31,
2017. Beneficial ownership is determined under Section 13(d) of the
Exchange Act, and generally includes voting or investment power
with respect to securities and including any securities that grant
the Selling Stockholders the right to acquire common stock within
60 days of August 31, 2017.
We do
not know when or in what amounts the Selling Stockholders may sell
or otherwise dispose of the Shares covered hereby. We currently
have no agreements, arrangements or understandings with the Selling
Stockholders regarding the sale of any of the Shares by it other
than the registration rights agreements described below. The
Selling Stockholders might not sell any or all of the Shares
covered by this prospectus or may sell or dispose of some or all of
the Shares other than pursuant to this prospectus. Because the
Selling Stockholders may not sell or otherwise dispose of some or
all of the Shares covered by this prospectus and because there are
currently no agreements, arrangements or understandings with
respect to the sale or other disposition of any of the Shares, we
cannot estimate the number of the Shares that will be held by the
Selling Stockholder after completion of the offering. See
“Plan of Distribution.”
Neither
the Selling Stockholders nor any of their affiliates has held any
position or office or had any other material relationship with us
in the past three years except as described in the table below and
except for Paul Sallwasser who was appointed as a member of our
Board of Directors on June 1, 2017. Of the shares being offered
under this prospectus 490,516 shares of common stock are issuable
upon exercise of warrants that were issued to TriPoint Global
Equities, LLC, as compensation as the placement agent in our 2014
Private Placement, 2015 Private Placement and 2017 Private
Placement and its designee.
The
Shares being offered under this prospectus may be offered for sale
from time to time during the period the registration statement of
which this prospectus is a part remains effective, by or for the
accounts of the Selling Stockholders named below.
The
Selling Stockholders, or their partners, pledgees, donees,
transferees or other successors that receive the Shares and their
corresponding registration in accordance with the registration
rights agreement to which the Selling Stockholders are party, may
sell up to all of the Shares shown in the table below under the
heading “Total Shares Being Sold in the Offering Covered by
this Prospectus” pursuant to this Prospectus in one or more
transactions from time to time as described below under “Plan
of Distribution.” However, the Selling Stockholders are not
obligated to sell any of the Shares offered by this
prospectus.
Information
about the Selling Stockholder may change from time to time. Any
changed information with respect to which we are given notice will
be included in prospectus supplements.
|
Number of
Shares
Beneficially
Owned Before
the Sale of all
the Shares Covered by this Prospectus
|
Percentage of
Beneficial
Ownership
Before
the Sale of all
Shares Covered by this Prospectus
|
Total Shares
Being Sold in the
Offering Covered by this Prospectus
|
Shares
Beneficially
Owned After
the Sale of all
Shares Covered by this Prospectus
|
Percentage of
Beneficial
Ownership
After
the Sale of all
Shares Covered by this Prospectus
|
Joseph A. Arleo
& Phyllis Rubin
|
82,352
|
(1)
|
*
|
8,152
|
74,200
|
*
|
Raymond
Bennett
|
318,913
|
(2)
|
1.6
%
|
48,913
|
270,000
|
1.4
%
|
Douglas
Briskie
|
25,086
|
(3)
|
*
|
9,782
|
15,304
|
*
|
Madia Briskie &
Daniel Briskie
|
10,640
|
(4)
|
*
|
4,891
|
5,749
|
*
|
Lorraine
Catalano
|
32,609
|
(5)
|
*
|
32,609
|
-
|
*
|
Alexandra
Connolly
|
7,790
|
(6)
|
*
|
6,522
|
1,268
|
*
|
Dana
Connolly
|
12,652
|
(7)
|
*
|
8,152
|
4,500
|
*
|
Robert
Connolly
|
43,852
|
(8)
|
*
|
8,152
|
35,700
|
*
|
Raul
Cordero
|
38,209
|
(9)
|
*
|
32,609
|
5,600
|
*
|
Anthony Dali &
Sharon Feinblatt-Dali
|
25,505
|
(10)
|
*
|
16,305
|
9,200
|
*
|
Joseph Dopico
III
|
68,890
|
(11)
|
*
|
27,717
|
41,173
|
*
|
Scott
Fisher
|
96,522
|
(12)
|
*
|
81,522
|
15,000
|
*
|
Denis
Fortin
|
84,627
|
(13)
|
*
|
48,913
|
35,714
|
*
|
Brian
Frank
|
404,715
|
(14)
|
1.8
%
|
337,764
|
66,951
|
*
|
Steven M.
Gambardella & Patricia Gambardella
|
63,605
|
(15)
|
*
|
32,609
|
30,996
|
*
|
Carl
Grover
|
4,097,432
|
(16)
|
9.9
%
|
2,839,871
|
1,257,561
|
5.2
%
|
Francis X.
Kiernan
|
24,456
|
(17)
|
*
|
24,456
|
-
|
*
|
R. David
Kupiec
|
59,295
|
(18)
|
*
|
24,456
|
34,839
|
*
|
Matthew
Light
|
77,609
|
(19)
|
*
|
32,609
|
45,000
|
*
|
Lita
Mitchell
|
46,233
|
(20)
|
*
|
40,761
|
5,472
|
*
|
Robert
Mitchell
|
150,283
|
(21)
|
*
|
114,130
|
36,153
|
*
|
Thomas
Myers
|
224,175
|
(22)
|
*
|
70,258
|
153,917
|
*
|
Northwest
Enterprises, Ltd.
|
95,165
|
(23)
|
*
|
48,913
|
46,252
|
*
|
Danny
Pesce
|
8,999
|
(24)
|
*
|
8,152
|
847
|
*
|
John P.
Pinto
|
41,670
|
(25)
|
*
|
32,609
|
9,061
|
*
|
Robert
Pulizzotto
|
47,500
|
(26)
|
*
|
22,500
|
25,000
|
*
|
Barbara
Reynolds
|
67,665
|
(27)
|
*
|
16,305
|
51,360
|
*
|
Paul
Sallwasser
|
108,934
|
(28)
|
*
|
35,091
|
73,843
|
*
|
TriPoint Global
Equities, LLC.
|
170,408
|
(29)
|
*
|
152,752
|
17,656
|
*
|
*
less
than 1%
(1)
|
Inc
ludes
(i) 2,717 shares of common stock issuable upon exercise of a 2017
$5.56 Warrant; (ii) 5,435 shares of common stock issuable upon
conversion of a 2017 Note in the principal amount of $25,000; (iii)
30,000 shares of common stock held by Joseph A. Arleo; (iv) 30,000
shares of common stock held by Phyllis Rubin; and (v) 14,200 shares
of common stock held in joint ownership.
|
(2)
|
Includes
(i) 16,304 shares of common stock issuable upon exercise of a 2017
$5.56 Warrant; (ii) 32,609 shares of common stock issuable upon
conversion of a 2017 Note in the principal amount of $150,000; and
(iii) 270,000 shares of common stock.
|
(3)
|
Includes
(i) 9,782 shares of common stock issuable upon exercise of a 2014
$4.60 Warrant; (ii) 7,142 shares of common issuable upon conversion
of a note in the principal amount of $50,000 acquired in the 2014
Private Placement; and (iii) 8,162 shares of common stock held.
Douglas Briskie is the brother of David Briskie, our President and
Chief Financial Officer.
|
(4)
|
Includes
(i) 4,891 shares of common stock issuable upon exercise of a 2014
$4.60 Warrant; (ii) 3,571 shares of common issuable upon conversion
of a note in the principal amount of $25,000 acquired in the 2014
Private Placement; (iii) 500 shares of common stock held by Daniel
Briskie; and (iv) 1,678 shares of common stock held jointly. Maida
Briskie and Daniel Briskie are the parents of David Briskie, our
President and Chief Financial Officer.
|
(5)
|
Includes
(i) 10,870 shares of common stock issuable upon exercise of a 2017
$5.56 Warrant; (ii) 21,739 shares of common stock issuable upon
conversion of a 2017 Note in the principal amount of
$100,000.
|
(6)
|
Inc
ludes
(i) 2,174 shares of common stock issuable upon exercise of a 2017
$5.56 Warrant; (ii) 4,348 shares of common stock issuable upon
conversion of a 2017 Note in the principal amount of $20,000; and
(iii) 1,268 shares of common stock.
|
(7)
|
Includes
(i) 2,717 shares of common stock issuable upon exercise of a 2017
$5.56 Warrant; (ii) 5,435 shares of common stock issuable upon
conversion of a 2017 Note in the principal amount of $25,000; and
(iii) 4,500 shares of common stock.
|
(8)
|
Includes
(i) 2,717 shares of common stock issuable upon exercise of a 2017
$5.56 Warrant; (ii) 5,435 shares of common stock issuable upon
conversion of a 2017 Note in the principal amount of $25,000; and
(iii) 35,700 shares of common stock.
|
(9)
|
Includes
(i) 10,870 shares of common stock issuable upon exercise of a 2017
$5.56 Warrant; (ii) 21,739 shares of common stock issuable upon
conversion of a 2017 Note in the principal amount of $100,000; and
(iii) 5,600 shares of common stock.
|
(10)
|
Includes
(i) 5,435 shares of common stock issuable upon exercise of a 2017
$5.56 Warrant; (ii) 10,870 shares of common stock issuable upon
conversion of a 2017 Note in the principal amount of $50,000; and
(iii) 5,000 shares of common stock held by Anthony Dali; and (iv)
4,200 shares of common stock held jointly.
|
(11)
|
Includes
(i) 9,239 shares of common stock issuable upon exercise of a 2017
$5.56 Warrant; (ii) 18,478 shares of common stock issuable upon
conversion of a 2017 Note in the principal amount of $85,000; and
(iii) 41,173 shares of common stock.
|
(12)
|
Includes
(i) 27,174 shares of common stock issuable upon exercise of a 2017
$5.56 Warrant; (ii) 54,348 shares of common stock issuable upon
conversion of a 2017 Note in the principal amount of $250,000; and
(iii) 15,000 shares of common stock.
|
(13)
|
Includes
(i) Warrants to initially purchase 48,913 shares of common stock
issuable upon exercise of a 2014 $4.60 Warrant; and (ii) 35,714
shares of common issuable upon conversion of a note in the
principal amount of $250,000 acquired in the 2014 Private
Placement.
|
(14)
|
Includes
(i) Warrants to initially purchase 44,107 shares of common stock
issuable upon exercise of a 2014 $7.00 Warrant; (ii) 60,407 shares
of common stock issuable upon exercise of a 2014 $4.60 Warrant;
(iii) 35,458 shares of common stock issuable upon exercise of a
2015 $9.00 Warrant; (iv) 75,982 shares of common stock issuable
upon exercise of a 2015 $7.00 Warrant; and (v) 121,810 shares of
common stock issuable upon exercise of a 2017 $5.56 Warrant; (vi)
32,812 shares of common stock issued to Mr. Frank for his fee
related to the January 2015 Private Placement; (vii) 15,422 shares
of common stock to be issued to Mr. Frank for his fee related to
the 2017 Private Placement; and (viii) 18,717 shares of common
stock. Mr. Frank is an employee of TriPoint Global Equities, LLC, a
registered broker dealer and as such is an affiliate of a broker
dealer.
|
(15)
|
Includes
(i) 10,870 shares of common stock issuable upon exercise of a 2017
$5.56 Warrant; (ii) 21,739 shares of common stock issuable upon
conversion of a 2017 Note in the principal amount of $100,000; and
(iii) 30,996 shares of common stock held jointly.
|
(16)
|
Includes
(i) Warrants to initially purchase 782,608 shares of common stock
issuable upon exercise of a 2014 $4.60 Warrant; (ii) 200,000 shares
of common stock issuable upon exercise of a 2015 $9.00 Warrant; and
(iii) 735,030 shares of common stock issuable upon exercise of a
2017 $5.56 Warrant. Also includes 1,122,233 shares of common
stock issuable upon conversion of a 2017 Note in the principal
amount of $5,162,273. Mr. Grover also owns 571,428 shares of common
stock issuable upon conversion of a note in the principal amount of
$4,000,000 that Mr. Grover acquired in the 2014 Private Placement
and 428,571 shares of common stock issuable upon conversion of a
note in the principal amount of $3,000,000 that he acquired in the
2015 Private Placement and 257,562 shares of common stock. Mr.
Grover has a contractual agreement with us that limits his exercise
of warrants and conversion of notes such that his beneficial
ownership of our equity securities to no more than 9.99% of the
voting power of the Company at any one time and therefore his
beneficial ownership does not include the shares of common stock
issuable upon conversion of notes or exercise or warrants owned by
Mr. Grover if such conversion or exercise would cause his
beneficial ownership to exceed 9.99% of our outstanding shares of
common stock.
|
(17)
|
Includes
(i) 8,152 shares of common stock issuable upon exercise of a 2017
$5.56 Warrant; and (ii) 16,304 shares of common stock issuable upon
conversion of a 2017 Note in the principal amount of
$75,000.
|
(18)
|
Includes
(i) 8,152 shares of common stock issuable upon exercise of a 2017
$5.56 Warrant; (ii) 16,304 shares of common stock issuable upon
conversion of a 2017 Note in the principal amount of $75,000; and
(iii) 34,839 shares of common stock.
|
(19)
|
Includes
(i) 10,870 shares of common stock issuable upon exercise of a 2017
$5.56 Warrant; (ii) 21,739 shares of common stock issuable upon
conversion of a 2017 Note in the principal amount of $100,000; and
(iii) 45,000 shares of common stock.
|
(20)
|
Includes
(i) 13,587 shares of common stock issuable upon exercise of a 2017
$5.56 Warrant; (ii) 27,174 shares of common stock issuable upon
conversion of a 2017 Note in the principal amount of $125,000; and
(iii) 5,472 shares of common stock.
|
(21)
|
Includes
(i) 38,043 shares of common stock issuable upon exercise of a 2017
$5.56 Warrant; (ii) 76,087 shares of common stock issuable upon
conversion of a 2017 Note in the principal amount of $350,000; and
(iii) 36,153 shares of common stock.
|
(22)
|
Includes
(i) Warrants to initially purchase 19,565 shares of common stock
issuable upon exercise of a 2014 $4.60 Warrant; (ii) 17,984 shares
of common stock issuable upon exercise of a 2017 $5.56 Warrant;
(iii) 32,709 shares of common stock issuable upon conversion of a
2017 Note in the principal amount of $150,460; (iv) 14,285 shares
of common stock issuable upon conversion of a note in the principal
amount of $100,000 acquired by Mr. Myers in the 2014 Private
Placement; and (v) 139,632 shares of common stock.
|
(23)
|
Includes
(i) Warrants to initially purchase 48,913 shares of common stock
issuable upon exercise of a 2014 $4.60 Warrant; (ii) 35,714 shares
of common stock issuable upon conversion of a note in the principal
amount of $250,000 acquired in the 2014 Private Placement; and
(iii) 10,538 shares of common stock. Keith Halls is the
principal of Northwest Enterprises, Ltd.
|
(24)
|
Includes
(i) 2,717 shares of common stock issuable upon exercise of a 2017
$5.56 Warrant; (ii) 5,435 shares of common stock issuable upon
conversion of a 2017 Note in the principal amount of $25,000; and
(iii) 847 shares of common stock.
|
(25)
|
Includes
(i) 10,870 shares of common stock issuable upon exercise of a 2017
$5.56 Warrant; and (ii) 21,739 shares of common stock issuable upon
conversion of a 2017 Note in the principal amount of $100,000; and
(iii) 9,061 shares of common stock.
|
(26)
|
Includes
(i) 7,500 shares of common stock issuable upon exercise of a 2017
$5.56 Warrant; (ii) 15,000 shares of common stock issuable upon
conversion of a 2017 Note in the principal amount of $69,000; and
(iii) 25,000 shares of common stock.
|
(27)
|
Includes
(i) 5,435 shares of common stock issuable upon exercise of a 2017
$5.56 Warrant; (ii) 10,870 shares of common stock issuable upon
conversion of a 2017 Note in the principal amount of $50,000; and
(iii) 51,360 shares of common stock.
|
(28)
|
Includes
(i) Warrants to initially purchase 14,673 shares of common stock
issuable upon exercise of a 2014 $4.60 Warrant; (ii) 11,154 shares
of common stock issuable upon exercise of a 2017 $5.56 Warrant;
(iii) 10,714 shares of common stock issuable upon conversion of a
2014 Note in the principal amount of $75,000; (iv) 9,264 shares of
common stock issuable upon conversion of a 2017 Note in the
principal amount of $42,615; (v) 58,129 shares of common stock; and
(vi) 5,000 shares of common stock issuable upon the exercise of
options. Mr. Sallwasser is a member of the Board of
Directors.
|
(29)
|
Includes
(i) Warrants to initially purchase 23,750 shares of common stock
issuable upon exercise of a 2014 $7.00 Warrant; (ii) 32,527 shares
of common stock issuable upon exercise of a 2014 $4.60 Warrant;
(iii) 12,458 shares of common stock issuable upon exercise of a
2015 $9.00 Warrant; (iv) 26,696 shares of common stock issuable
upon exercise of a 2015 $7.00 Warrant; and (v) 57,321 shares of
common stock issuable upon exercise of a 2017 $5.56 Warrant; (vi)
10,398 shares of common stock; and (vii) 7,258 shares of common
stock to be issued to TriPoint Global Equities, LLC, for their fee
related to the 2017 Private Placement. TriPoint Global Equities,
LLC is a registered broker-dealer. Mark Elenowitz, Chief Executive
Officer and Michael Boswell, President and Chief Operating Officer
of TriPoint Global equities, LLC have control over the voting and
dispositions of the shares of common stock underlying the warrants.
TriPoint Global Equities, LLC served as the placement agent in our
2014 Private Placement, 2015 Private Placement and 2017 Private
Placement.
|
We are
registering the shares of common stock underlying convertible notes
and warrants previously issued and issuable to the Selling
Stockholders to permit the resale of these underlying shares of
common stock by the Selling Stockholder from time to time after the
date of this prospectus. We will not receive any of the proceeds
from the sale by the Selling Stockholders of the Shares. We will
bear all fees and expenses incident to our obligation to register
the shares of common stock.
The
Selling Stockholders, or his, its or their pledges, donees,
transferees, or any of its successors in interest selling shares
received from the Selling Stockholders as a gift, partnership
distribution or other non-sale related transfer after the date of
this prospectus, may sell all or a portion of the Shares
beneficially owned by them and offered hereby from time to time
directly or through one or more underwriters, broker-dealers or
agents. If the shares of common stock are sold through underwriters
or broker-dealers, the Selling Stockholders will be responsible for
underwriting discounts or commissions or agent's commissions. The
Shares may be sold in one or more transactions at fixed prices, at
prevailing market prices at the time of the sale, at varying prices
determined at the time of sale, or at negotiated prices. The
Selling Stockholders will act independently of us in making
decisions with respect to the timing, manner and size of each sale.
These sales may be affected in transactions, which may involve
crosses or block transactions:
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on any
national securities exchange or quotation service on which the
securities may be listed or quoted at the time of
sale;
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in the
over-the-counter market;
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in
transactions otherwise than on these exchanges or systems or in the
over-the-counter market;
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through
the writing of options, whether such options are listed on an
options exchange or otherwise;
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ordinary
brokerage transactions and transactions in which the broker-dealer
solicits purchasers;
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block
trades in which the broker-dealer will attempt to sell the shares
as agent but may position and resell a portion of the block as
principal to facilitate the transaction;
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purchases
by a broker-dealer as principal and resale by the broker-dealer for
its account;
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an
exchange distribution in accordance with the rules of the
applicable exchange;
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privately
negotiated transactions;
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short
sales;
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through
the distribution of the common stock by any Selling Stockholders to
its partners, members or stockholders;
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through
one or more underwritten offerings on a firm commitment or best
efforts basis;
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sales
pursuant to Rule 144;
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broker-dealers
may agree with the Selling Stockholders to sell a specified number
of such shares at a stipulated price per share;
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a
combination of any such methods of sale; and
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any
other method permitted pursuant to applicable law.
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The
Selling Stockholders may also transfer the Shares by gift. The
Selling Stockholders may engage brokers and dealers, and any
brokers or dealers may arrange for other brokers or dealers to
participate in effecting sales of the Shares. These brokers,
dealers or underwriters may act as principals, or as an agent of a
Selling Stockholders. Broker-dealers may agree with the Selling
Stockholders to sell a specified number of the Shares at a
stipulated price per security. If the broker-dealer is unable to
sell the Shares acting as agent for the Selling Stockholders, it
may purchase as principal any unsold Shares at the stipulated
price. Broker-dealers who acquire Shares as principals may
thereafter resell the Shares from time to time in transactions in
any stock exchange or automated interdealer quotation system on
which the Shares are then listed, at prices and on terms then
prevailing at the time of sale, at prices related to the
then-current market price or in negotiated transactions.
Broker-dealers may use block transactions and sales to and through
broker-dealers, including transactions of the nature described
above.
The
Selling Stockholders may also sell the Shares in accordance with
Rule 144 under the Securities Act, rather than pursuant to this
prospectus, regardless of whether the Shares are covered by this
prospectus.
If the
Selling Stockholders effects such transactions by selling Shares to
or through underwriters, broker-dealers or agents, such
underwriters, broker-dealers or agents may receive commissions in
the form of discounts, concessions or commissions from the Selling
Stockholders or commissions from purchasers of the shares of common
stock for whom they may act as agent or to whom they may sell as
principal (which discounts, concessions or commissions as to
particular underwriters, broker-dealers or agents may be in excess
of those customary in the types of transactions involved). In
connection with sales of the Shares or otherwise, the Selling
Stockholders may enter into hedging transactions with
broker-dealers, which may in turn engage in short sales of the
Shares in the course of hedging in positions they assume. The
Selling Stockholders may also sell Shares short and deliver Shares
covered by this prospectus to close out short positions and to
return borrowed shares in connection with such short sales. The
Selling Stockholders may also loan or pledge Shares to
broker-dealers that in turn may sell such shares.
The
Selling Stockholders may pledge or grant a security interest in
some or all of the Shares owned by it and, if it defaults in the
performance of its secured obligations, the pledgees or secured
parties may offer and sell the Shares from time to time pursuant to
this prospectus or any amendment to this prospectus under Rule
424(b) or other applicable provision of the Securities Act
amending, if necessary, the list of Selling Stockholders to include
the pledgee, transferee or other successors in interest as Selling
Stockholders under this prospectus. The Selling Stockholders also
may transfer and donate the Shares in other circumstances in which
case the transferees, donees, pledgees or other successors in
interest will be the selling beneficial owners for purposes of this
prospectus.
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In
addition, the Selling Stockholders may, from time to time, sell the
Shares short, and, in those instances, this prospectus may be
delivered in connection with the short sales and the Shares offered
under this prospectus may be used to cover short
sales.
The
Selling Stockholders and any broker-dealer participating in the
distribution of the Shares may be deemed to be
“underwriters” within the meaning of the Securities
Act, and any commission paid, or any discounts or concessions
allowed to, any such broker-dealer may be deemed to be underwriting
commissions or discounts under the Securities Act. At the time a
particular offering of the Shares is made, a prospectus supplement,
if required, will be distributed which will set forth the aggregate
amount of Shares being offered and the terms of the offering,
including the name or names of any broker-dealers or agents, any
discounts, commissions and other terms constituting compensation
from the Selling Stockholders and any discounts, commissions or
concessions allowed or reallowed or paid to broker-dealers. The
Selling Stockholders may indemnify any broker-dealer that
participates in transactions involving the sale of the Shares
against certain liabilities, including liabilities arising under
the Securities Act.
Under
the securities laws of some states, the Shares may be sold in such
states only through registered or licensed brokers or dealers. In
addition, in some states the Shares may not be sold unless such
shares have been registered or qualified for sale in such state or
an exemption from registration or qualification is available and is
complied with.
There
can be no assurance that the Selling Stockholders will sell any or
all of the Shares registered pursuant to the registration
statement, of which this prospectus forms a part.
The
Selling Stockholders and any other person participating in such
distribution will be subject to applicable provisions of the
Exchange Act and the rules and regulations thereunder, including,
without limitation, Regulation M of the Exchange Act, which may
limit the timing of purchases and sales of any of the shares of
common stock by the Selling Stockholders and any other
participating person. Regulation M may also restrict the ability of
any person engaged in the distribution of the Shares to engage in
market-making activities with respect to the shares of common
stock. All of the foregoing may affect the marketability of the
Shares and the ability of any person or entity to engage in
market-making activities with respect to the Shares.
The
Shares offered hereby were originally issued to the Selling
Stockholders pursuant to an exemption from the registration
requirements of the Securities Act. We agreed to register the
Shares under the Securities Act. We will pay all expenses of the
registration of the Shares estimated to be $37,000 in total,
including, without limitation, SEC filing fees.
Once
sold under the registration statement, of which this prospectus
forms a part, the Shares will be freely tradable in the hands of
persons other than our affiliates.
DESCRIPTION OF CAPITAL
S
TOCK
Authorized Capital
Our
authorized capital consists of 50 million shares of common stock,
par value $0.001 per share, and 5 million shares of preferred
stock, par value $0.001 per share. As of August 31, 2017,
19,678,166 shares of common stock were issued and outstanding and
161,135 shares of preferred stock were issued and
outstanding.
Common Stock
We may
issue shares of our common stock from time to time. Holders of
shares of common stock have the right to cast one vote for each
share of common stock in their name on our books, whether
represented in person or by proxy, on all matters submitted to a
vote of holders of common stock, including election of directors.
There is no right to cumulative voting in election of directors.
Except where a greater requirement is provided by statute, by our
certificate of incorporation, or by our bylaws, the presence, in
person or by proxy duly authorized, of the one or more holders of a
majority of the outstanding shares of our common stock constitutes
a quorum for the transaction of business. The vote by the holders
of a majority of outstanding shares is required to effect certain
fundamental corporate changes such as liquidation, merger, or
amendment of our certificate of incorporation. Upon our
liquidation, dissolution or winding up, holders of our common stock
are entitled to share ratably in all assets remaining after payment
of liabilities and the liquidation preferences of any outstanding
shares of preferred stock.
There
are no restrictions in our certificate of incorporation or bylaws
that prevent us from declaring dividends. We have not declared any
dividends, and we do not plan to declare any dividends in the
foreseeable future.
Holders
of shares of our common stock are not entitled to preemptive or
subscription or conversion rights, and no redemption or sinking
fund provisions are applicable to our common stock. All outstanding
shares of common stock are, and the shares of common stock sold in
the offering when issued will be fully paid and
non-assessable.
Preferred Stock
Our
Board of Directors has the authority, without action by our
stockholders, to designate and issue up to 5 million shares of
preferred stock in one or more series or classes and to designate
the rights, preferences and privileges of each series or class,
which may be greater than the rights of our common stock. It is not
possible to state the actual effect of the issuance of any shares
of preferred stock upon the rights of holders of our common stock
until our Board of Directors determines the specific rights of the
holders of the preferred stock. Of the 5 million shares of
preferred stock, 161,135 have been designated as Series A
Convertible Preferred Stock ("Series A Preferred"). However, the
effects might include:
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restricting
dividends on our common stock;
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diluting
the voting power of our common stock;
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impairing
liquidation rights of our common stock; or
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delaying
or preventing a change in control of us without further action by
our stockholders.
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The
Board of Directors’ authority to issue preferred stock
without stockholder approval could make it more difficult for a
third-party to acquire control of our company, and could discourage
such attempt. We have no present plans to issue any shares of
preferred stock.
Series A
The
Company had 161,135 shares of Series A Preferred outstanding as of
August 31, 2017. The holders of the Series A Preferred are entitled
to receive a cumulative dividend at a rate of 8.0% per year,
payable annually either in cash or shares of our common stock at
our election. Shares of common stock paid as accrued dividends are
valued at $10.00 per share. Each share of Series A Preferred is
convertible into two shares of our common stock. The holders of
Series A Preferred are entitled to receive payments upon
liquidation, dissolution or winding up of our company before any
amount is paid to the holders of common stock. The holders of
Series A Preferred shall have no voting rights, except as required
by law.
As of
August 31, 2017, we had issued and outstanding warrants to purchase
2,672,506 shares of common stock at prices ranging from $2.00 to
$10.00. All warrants are currently exercisable and expire at
various dates through November 2022.
Included
in the warrants are (i) warrants to purchase 1,149,712 shares of
our common stock that were issued in the 2017 Private Placement and
have an exercise price of $5.56 per share of common stock and
expire three years after issuance; (ii) warrants to purchase
247,916 shares of ourcommon stock that were issued in the 2015
Private Placement and have an exercise price of $9.00 per share of
common stock and expire five years after issuance; (iii) warrants
to purchase 102,678 shares of our common stock that were issued in
the 2015 Private Placement and have an exercise price of $7.00 per
share of common stock and expire three years after issuance; (iv)
warrants to purchase 67,857 shares of our common stock that were
issued in the 2014 Private Placement and have an exercise price of
$7.00 per share of common stock and expire five years after
issuance; (v) warrants to purchase 1,022,279 shares of our common
stock that were issued in the 2014 Private Placement and have an
exercise price of $4.60 per share of common stock and expire five
years after issuance; and (vi) warrants to purchase 82,124 shares
of our common stock issuable upon exercise and have an average
exercise price of $6.00 per share of common stock and expire in
December 2018. The Warrants contain cashless exercise provisions in
the event a registration statement registering the common stock
underlying the Warrants is not effective at the time of exercise
and customary anti-dilution protection and registration
rights.
As of
August 31, 2017, we had issued and outstanding options to purchase
1,696,858 shares of common stock with a weighted average exercise
price of $4.63. There are currently 979,533 options available for
exercise at various dates through 2027.
Restricted Stock Units
As of
August 31, 2017, we had issued and outstanding restricted stock
units of 500,000 shares of common stock that are issuable upon
being vested which were issued under our 2012 Equity Incentive
Plan.
Convertible Notes
We
issued the 2014 Notes in the aggregate principal amount of
$4,750,000. The 2014 Notes are currently convertible into 678,568
shares of our common stock at a conversion price of $7.00 per
share, and warrants to purchase 929,345 shares of Common Stock at
an exercise price of $4.60 per share. The 2014 Notes bear interest
at a rate of 8% per annum. We have the right to prepay the 2014
Notes at any time after the one year anniversary date of the
issuance of the 2014 Notes at a rate equal to 110% of the then
outstanding principal balance and accrued interest. The 2014 Notes
rank senior to all of our debt other than certain senior debt. CLR,
our wholly-owned subsidiary, has provided collateral to secure the
repayment of the Notes and has pledged its assets (which lien is
junior to CLR’s equipment leases but senior to all of its
other obligations), all subject to the terms and conditions of a
security agreement among us, CLR and the investors. Stephan
Wallach, our Chief Executive Officer, has also personally
guaranteed the repayment of the 2014 Notes, subject to the terms of
a Guaranty executed by him with the investors. In addition, Mr.
Wallach has agreed not to sell, transfer or pledge 1.5 million
shares of the common stock that he owns so long as his personal
guaranty is in effect.
In
November 2015, we completed the 2015 Private Placement and entered
into Note Purchase Agreements with three (3) accredited investors
pursuant to which we sold senior secured convertible notes in the
aggregate principal amount of $7,187,500 (which includes $4,000,000
owed on a prior debt that was applied to the purchase of units in
this offering), that are convertible into 1,026,784 shares of
common stock at a conversion price of $7.00 per share and warrants
exercisable to purchase an aggregate of 479,166 shares of common
stock from us at a price per share of $9.00. The 2015 Notes are due
in October 2018 if the option to convert has not been exercised.
The 2015 Notes bear interest at a rate of eight percent (8%) per
annum. We have the right to prepay the 2014 Notes at any time after
the one year anniversary date of the issuance of the 2015 Notes at
a rate equal to 110% of the then outstanding principal balance and
accrued interest. The 2015 Notes rank senior to all of our debt
other than certain debt owed to Crestmark Bank, the investors in
our prior private placements, a mortgage on property, and any
refinancing’s thereof. We and CLR, have provided collateral
to secure the repayment of the 2015 Notes and have pledged our
assets (which liens are junior to CLR’s equipment leases and
junior to the rights of note holders in our prior financings but
senior to all of their other obligations), all subject to the terms
and conditions of a security agreement among us, CLR and the
investors. Stephan Wallach, our Chief Executive Officer, has also
personally guaranteed the repayment of the 2015 Notes, subject to
the terms of a Guaranty executed by him with the investors. In
addition, Mr. Wallach has agreed not to sell, transfer or pledge
the 1.5 million shares of the common stock that are currently
pledged as collateral to a previous financing so long as his
personal guaranty is in effect. As of the date hereof, notes in the
principal amount of $3,000,000 remain outstanding, that are
convertible into 428,571 shares of common stock.
In
August 2017 we completed the 2017 Private Placement and entered
into Note Purchase Agreements with 26 accredited investors pursuant
to which we sold senior secured convertible notes in the aggregate
principal amount of $7,254,349 initially convertible into 1,577,033
shares of common stock, at $4.60 per share (subject to adjustment);
and (ii) 2017 $5.56 warrants to purchase 1,149,712 shares issuable
upon conversion of the 2017 Note at an exercise price equal to
$5.56. As part of the 2017 Private Placement, three (3) investors
in our 2015 Private Placement (the “Prior Investors”),
converted their 2015 Notes in the aggregate principal amount of
$4,200,349 together with accrued interest thereon into new
convertible notes for an equal principal amount (included in the
notes referred to above), convertible into 913,119 2017 $5.56
warrants to purchase an aggregate of 456,560 shares of common
stock. The new note will carry the same interest rate as the prior
note. The Prior Investors exchanged their 2015 $7.00 warrants to
purchase an aggregate of 279,166 shares of common stock for a new
warrant to purchase an aggregate of 182,065 shares of common stock.
For twelve (12) months following the closing, the investors
in the 2017 Private Placement have the right to participate in any
future equity financings by us up to their pro rata share of the
maximum offering amount in the aggregate.
Registration Rights
In
connection with the 2017 Private Placement, we also entered into
the “Registration Rights Agreement” with the investors
in the 2017 Private Placement. The Registration Rights Agreement
requires that we file a registration statement (the “Initial
Registration Statement”) with the Securities and Exchange
Commission within ninety (90) days of the final closing date of the
2017 Private Placement for the resale by the investors of all of
the shares common stock underlying the senior convertible notes and
warrants and all shares of common stock issuable upon any stock
split, dividend or other distribution, recapitalization or similar
event with respect thereto (the “Registrable
Securities”) and that the Initial Registration Statement be
declared effective by the SEC within 180 days of the final closing
date of the 2017 Private Placement or if the registration statement
is reviewed by the SEC 210 days after the final closing date or the
2017 Private Placement. Upon the occurrence of certain events (each
an “Event”), we will be required to pay to the
investors liquidated damages of 1.0% of their respective aggregate
purchase price upon the date of the Event and then monthly
thereafter until the Event is cured. In no event may the aggregate
amount of liquidated damages payable to each of the investors
exceed in the aggregate 10% of the aggregate purchase price paid by
such investor for the Registrable Securities.
Potential Anti-Takeover Effects
Certain
provisions set forth in our Certificate of Incorporation, as
amended, in our bylaws and in Delaware law, which are summarized
below, may be deemed to have an anti-takeover effect and may delay,
deter or prevent a tender offer or takeover attempt that a
stockholder might consider to be in its best interests, including
attempts that might result in a premium being paid over the market
price for the shares held by stockholders.
Our Certificate of Incorporation contains a provision that
permits us to issue, without any further vote or action by the
stockholders, up to five million shares of preferred stock in one
or more series and, with respect to each such series, to fix the
number of shares constituting the series and the designation of the
series, the voting powers, if any, of the shares of the series, and
the preferences and relative, participating, optional and other
special rights, if any, and any qualifications, limitations or
restrictions, of the shares of such series.
In
particular our bylaws and Delaware General Corporate Law, as
applicable, among other things:
●
Provide the board
of directors with the ability to alter the bylaws without
stockholder approval; and
●
Provide that
vacancies on the board of directors may be filled by a majority of
directors in the office, although less than a quorum.
While
the foregoing provision of our certificate of incorporation, and
provisions of Delaware law may have an anti-takeover effect, these
provisions are intended to enhance the likelihood of continuity and
stability in the composition of the Board of Directors and in the
policies formulated by the Board of Directors and to discourage
certain types of transactions that may involve an actual or
threatened change of control. In that regard, these provisions are
designed to reduce our vulnerability to an unsolicited acquisition
proposal. The provisions also are intended to discourage certain
tactics that may be used in proxy fights. However, such provisions
could have the effect of discouraging others from making tender
offers for our shares and, as a consequence, they also may inhibit
fluctuations in the market price of our common stock that could
result from actual or rumored takeover attempts. Such provisions
also may have the effect of preventing changes in our
management.
Delaware Takeover Statute
In
general, Section 203 of the Delaware General Corporation Law
prohibits a Delaware corporation that is a public company from
engaging in any “business combination” (as defined
below) with any “interested stockholder” (defined
generally as an entity or person beneficially owning 15% or more of
the outstanding voting stock of the corporation and any entity or
person affiliated with such entity or person) for a period of three
years following the date that such stockholder became an interested
stockholder, unless: (1) prior to such date, the board of directors
of the corporation approved either the business combination or the
transaction that resulted in the stockholder becoming an interested
stockholder; (2) on consummation of the transaction that resulted
in the stockholder becoming an interested stockholder, the
interested stockholder owned at least 85% of the voting stock of
the corporation outstanding at the time the transaction commenced,
excluding for purposes of determining the number of shares
outstanding those shares owned (x) by persons who are directors and
also officers and (y) by employee stock plans in which employee
participants do not have the right to determine confidentially
whether shares held subject to the plan will be tendered in a
tender or exchange offer; or (3) on or subsequent to such date, the
business combination is approved by the board of directors and
authorized at an annual or special meeting of stockholders, and not
by written consent, by the affirmative vote of at least two-thirds
of the outstanding voting stock that is not owned by the interested
stockholder.
Section
203 of the Delaware General Corporation Law defines “business
combination” to include: (1) any merger or consolidation
involving the corporation and the interested stockholder; (2) any
sale, transfer, pledge or other disposition of ten percent or more
of the assets of the corporation involving the interested
stockholder; (3) subject to certain exceptions, any transaction
that results in the issuance or transfer by the corporation of any
stock of the corporation to the interested stockholder; (4) any
transaction involving the corporation that has the effect of
increasing the proportionate share of the stock of any class or
series of the corporation beneficially owned by the interested
stockholder; or (5) the receipt by the interested stockholder of
the benefit of any loans, advances, guarantees, pledges or other
financial benefits provided by or through the
corporation.
Listing of Common Stock
Our
common stock is currently quoted on the NASDAQ National Market
under the trading symbol “YGYI.”
Gracin
& Marlow, LLP, New York, New York, will pass upon certain legal
matters relating to the issuance and sale of the common stock
offered hereby.
The
financial statements of Youngevity International, Inc. as of
December 31, 2016 and 2015 and for each of the two years ended in
the period ended December 31, 2016 incorporated by reference in
this prospectus have been so incorporated in reliance on the
reports of Mayer Hoffman McCann P.C., an independent registered
accounting firm, incorporated herein by reference, given on
authority of said firm as experts in auditing and
accounting.
WHERE YOU CAN FIND MORE
I
NFORMATION
We file
annual, quarterly and special reports, proxy statements and other
information with the SEC. You may read and copy any document we
file at the SEC’s public reference room located at 100 F
Street N.E., Washington, D.C. 20549. Please call the SEC at
1-800-SEC-0330 for further information on the operation of the
public reference room. Our public filings are also available to the
public at the SEC’s web site at
http://www.sec.gov.
This
prospectus is part of a registration statement on Form S-3 that we
have filed with the SEC under the Securities Act. This prospectus
does not contain all of the information in the registration
statement. We have omitted certain parts of the registration
statement, as permitted by the rules and regulations of the SEC.
You may inspect and copy the registration statement, including
exhibits, at the SEC’s public reference room or Internet
site.
INCORPORATION OF CERTAIN DOCUMENTS BY
R
EFERENCE
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 (other than any portions of any such
documents that are not deemed “filed” under the
Exchange Act in accordance with the Exchange Act and applicable SEC
rules) under Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act
including those made after the date of the initial filing of the
registration statement of which this prospectus is a part and prior
to the termination of this offering:
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Our
annual report on Form 10-K for the fiscal year ended December 31,
2016 filed with the SEC on March 30, 2017 and our annual report on
Form 10-K/A (Amendment No. 1) for the year ended December 31, 2016
filed with the SEC on August 14, 2017 (File No.
000-54900);
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Our
quarterly report on Form 10-Q for the quarter ended March 31, 2017
filed with the SEC on May 5, 2017 and our quarterly report on Form
10-Q/A (Amendment No.1) for the quarter ended March 31, 2017 filed
with the SEC on August 14, 2017 and our quarterly report on Form
10-Q for the quarter ended June 30, 2017 filed with the SEC on
August 14, 2017 (File No. 000-54900);
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Our
current reports on Form 8-K filed with the SEC on May 2, 2017, June
5, 2017, June 7, 2017, August 3, 2017, August 14, 2017 and August
21, 2017 (File No. 000-54900); and
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The
description of our common stock set forth in our registration
statement on Form 8-A12B, filed with the SEC on June 15, 2017 (File
No. 000-54900).
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You may
obtain, free of charge, a copy of any of these documents (other
than exhibits to these documents unless the exhibits are
specifically incorporated by reference into these documents or
referred to in this prospectus) by writing or calling us at the
following address and telephone number: Youngevity International,
Inc., 2400 Boswell Road, Chula Vista, California 91914, (619)
934-3980.
DISCLOSURE OF THE SECURITIES AND EXCHANGE COMMISSION POSITION ON
INDEMNIFICATION
FOR SECURITIES ACT
L
IABILITIES
Our
directors and officers are indemnified as provided by the Delaware
General Corporation Law, our certificate of incorporation, as
amended, and our bylaws. Section 145 of the Delaware General
Corporation Law provides that a director or officer is not
individually liable to the corporation or its stockholders or
creditors for any damages as a result of any act or failure to act
in his capacity as a director or officer unless it is proven that:
(1) his act or failure to act constituted a breach of his fiduciary
duties as a director or officer; and (2) his breach of those duties
involved intentional misconduct, fraud or a knowing violation of
law. Our certificate of incorporation provides for indemnification
of our directors and officers to the fullest extent permitted by
Section 145 of the Delaware General Corporation Law.
This
provision is intended to afford directors and officer’s
protection against and to limit their potential liability for
monetary damages resulting from suits alleging a breach of the duty
of care by a director or officer. As a consequence of this
provision, stockholders of our company will be unable to recover
monetary damages against directors or officers for action taken by
them that may constitute negligence or gross negligence in
performance of their duties unless such conduct falls within one of
the foregoing exceptions. The provision, however, does not alter
the applicable standards governing a director’s or
officer’s fiduciary duty and does not eliminate or limit the
right of our company or any stockholder to obtain an injunction or
any other type of non-monetary relief in the event of a breach of
fiduciary duty.
Insofar
as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers or persons controlling us
pursuant to the foregoing provisions, we have been informed that in
the opinion of the SEC this type of indemnification is against
public policy as expressed in the Securities Act and is therefore
unenforceable.
Up
to 4,167,475 Shares of Common Stock
You should rely only on the information contained or incorporated
by reference in this prospectus. Neither we nor the Selling
Stockholders have authorized anyone to provide you with different
information. You should not assume that the information contained
or incorporated by reference in this prospectus is accurate as of
any date other than the date of this prospectus. This prospectus is
not an offer to sell these securities in any state or other
jurisdiction where the offer or sale is not permitted.
PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
Item 14.
|
Other Expenses of Issuance and Distribution.
|
The
following table sets forth the estimated fees and expenses in
connection with the shelf registration of the common stock
registered under this registration statement, other than any
underwriting discounts and commissions. The actual amounts of such
fees and expenses will be determined from time to time. All amounts
shown are estimates except for the SEC registration
fee.
SEC registration
fee
|
$
2,654
|
Accounting fees
and expenses
|
7,000
|
Legal fees and
expenses
|
25,000
|
Transfer agent
fees and expenses
|
1,000
|
Miscellaneous
|
1,346
|
Total
|
$
37,000
|
Item 15.
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Indemnification of Directors and Officers.
|
Section
145 of the Delaware General Corporation Law authorizes a court to
award, or a corporation’s board of directors to grant,
indemnity to directors and officers in terms sufficiently broad to
permit such indemnification under certain circumstances for
liabilities, including reimbursement for expenses incurred, arising
under the Securities Act.
Our
certificate of incorporation, as amended, provides for
indemnification of our directors and executive officers to the
maximum extent permitted by the Delaware General Corporation Law,
and our bylaws provide for indemnification of our directors and
executive officers to the maximum extent permitted by the Delaware
General Corporation Law.
In any
underwriting agreement we enter into in connection with the sale of
common stock being registered hereby, the underwriters will agree
to indemnify, under certain conditions, us, our directors, our
officers and persons who control us, within the meaning of the
Securities Act, against certain liabilities.
Exhibit No.
|
|
Title of Document
|
|
|
Certificate
of Incorporation Dated July 15, 2011 (Incorporated by reference to
the Company’s Form 10-12G, File No. 000-54900, filed with the
Securities and Exchange Commission on February 12,
2013)
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|
|
Bylaws
(Incorporated by reference to the Company’s Form 10-12G, File
No. 000-54900, filed with the Securities and Exchange Commission on
February 12, 2013)
|
|
|
Certificate
of Amendment to the Certificate of Incorporation dated June 5, 2017
(Incorporated by reference to the Company’s Form 8-K, File
No. 000-54900, filed with the Securities and Exchange Commission on
June 7, 2017)
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|
|
Specimen
Common Stock certificate (Incorporated by reference to the
Company’s Form 10-12G, File No. 000-54900, filed with the
Securities and Exchange Commission on February 12,
2013)
|
|
|
Form
of Purchase Note Agreement (Incorporated by reference to the
Company’s 8-K, File No. 000-54900, filed with the Securities
and Exchange Commission on August 5, 2014)
|
|
|
Form
of Secured Convertible Notes (Incorporated by reference to the
Company’s 8-K, File No. 000-54900, filed with the Securities
and Exchange Commission on August 5, 2014)
|
|
|
Form
of Series A Warrants (Incorporated by reference to the
Company’s 8-K, File No. 000-54900, filed with the Securities
and Exchange Commission on August 5, 2014)
|
|
|
Form
of Registration Rights Agreement (Incorporated by reference to the
Company’s 8-K, File No. 000-54900, filed with the Securities
and Exchange Commission on August 5, 2014)
|
|
|
Form
of Note Purchase Agreement (Incorporated by reference to the
Company’s 8-K, File No. 000-54900, filed with the Securities
and Exchange Commission on January 7, 2015)
|
|
|
Form
of Secured Note (Incorporated by reference to the Company’s
8-K, File No. 000-54900, filed with the Securities and Exchange
Commission on January 7, 2015)
|
|
|
Form
of Purchase Note Agreement (Incorporated by reference to the
Company’s 8-K, File No. 000-54900, filed with the Securities
and Exchange Commission on October 16, 2015)
|
|
|
Form
of Secured Note (Incorporated by reference to the Company’s
8-K, File No. 000-54900, filed with the Securities and Exchange
Commission on October 16, 2015)
|
|
|
Form
of Warrant (Incorporated by reference to the Company’s 8-K,
File No. 000-54900, filed with the Securities and Exchange
Commission on October 16, 2015)
|
|
|
Form
of Notice of Award of Restricted Stock Units (Incorporated by
reference to the Company’s Form S-8 Registration Statement,
File No. 333-219027 filed with the Securities and Exchange
Commission on June 29, 2017)
|
|
|
Form
of Restricted Stock Unit Award Agreement (Incorporated by reference
to the Company’s Form S-8 Registration Statement, File No.
333-219027 filed with the Securities and Exchange Commission on
June 29, 2017)
|
|
|
Form
of Note Purchase Agreement (Incorporated by reference to the
Company’s Current Report on Form 8-K, File No. 000-54900,
filed with the Securities and Exchange Commission on August 3,
2017)
|
|
|
Form
of Convertible Note (Incorporated by reference to the
Company’s Current Report on Form 8-K, File No. 000-54900,
filed with the Securities and Exchange Commission on August 3,
2017)
|
|
|
Form
of Series D Warrant (Incorporated by reference to the
Company’s Current Report on Form 8-K, File No. 000-54900,
filed with the Securities and Exchange Commission on August 3,
2017)
|
|
|
Form
of Registration Rights Agreement (Incorporated by reference to the
Company’s Current Report on Form 8-K, File No. 000-54900,
filed with the Securities and Exchange Commission on August 3,
2017)
|
|
|
Legal
opinion of Gracin & Marlow, LLP*
|
|
|
Consent
of Independent Registered Public Accounting Firm *
|
|
|
Consent
of Gracin & Marlow, LLP (included in Exhibit 5.1)*
|
24.1
|
|
Powers
of Attorney (included on signature page)*
|
(a) 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;
(ii) To
reflect in the prospectus any facts or events arising after the
effective date of the 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 the registration statement. Notwithstanding the foregoing,
any increase or decrease in volume of securities offered (if the
total dollar value of securities offered would not exceed that
which was registered) and any deviation from the low or high end of
the estimated maximum offering range may be reflected in the form
of prospectus filed with the SEC pursuant to Rule 424(b) if, in the
aggregate, the changes in volume and price represent no more than a
20 percent change in the maximum aggregate offering price set forth
in the “Calculation of Registration Fee” table in the
effective registration statement; and
(iii)
To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement
or any material change to such information in the registration
statement;
provided, however
, that the undertakings set forth in
paragraphs (1)(i), (1)(ii) and (1)(iii) above do not apply if the
information required to be included in a post-effective amendment
by those paragraphs is contained in reports filed with or furnished
to the SEC by the registrant pursuant to Section 13 or Section
15(d) of the Securities Exchange Act of 1934 that are incorporated
by reference in the registration statement or is contained in a
form of prospectus filed pursuant to Rule 424(b) that is a part of
the 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 which remain unsold at the
termination of the offering.
(4)
That, for the purpose of determining liability under the Securities
Act of 1933 to any purchaser:
(i)
Each prospectus filed by the registrant pursuant to Rule 424(b)(3)
shall be deemed to be part of the registration statement as of the
date the filed prospectus was deemed part of and included in the
registration statement; and
(ii)
Each prospectus required to be filed pursuant to Rule 424(b)(2),
(b)(5), or (b)(7) as part of a registration statement in reliance
on Rule 430B relating to an offering made pursuant to Rule
415(a)(1)(i), (vii), or (x) for the purpose of providing the
information required by section 10(a) of the Securities Act of 1933
shall be deemed to be part of and included in the registration
statement as of the earlier of the date such form of prospectus is
first used after effectiveness or the date of the first contract of
sale of securities in the offering described in the prospectus. As
provided in Rule 430B, for liability purposes of the issuer and any
person that is at that date an underwriter, such date shall be
deemed to be a new effective date of the registration statement
relating to the securities in the registration statement to which
that prospectus relates, and the offering of such securities at
that time shall be deemed to be the initial bona fide offering
thereof. Provided, however, that no statement made in a
registration statement or prospectus that is part of the
registration statement or made in a document incorporated or deemed
incorporated by reference into the registration statement or
prospectus that is part of the registration statement will, as to a
purchaser with a time of contract of sale prior to such effective
date, supersede or modify any statement that was made in the
registration statement or prospectus that was part of the
registration statement or made in any such document immediately
prior to such effective date; and
(iii)
Each prospectus filed pursuant to Rule 424(b) as part of a
registration statement relating to an offering, other than
registration statements relying on Rule 430B or other than
prospectuses filed in reliance on Rule 430A, shall be deemed to be
part of and included in the registration statement as of the date
it is first used after effectiveness
; provided, however,
that no statement
made in a registration statement or prospectus that is part of the
registration statement or made in a document incorporated or deemed
incorporated by reference into the registration statement or
prospectus that is part of the registration statement will, as to a
purchaser with a time of contract of sale prior to such first use,
supersede or modify any statement that was made in the registration
statement or prospectus that was part of the registration statement
or made in any such document immediately prior to such date of
first use.
(5)
That, for the purpose of determining liability of the registrant
under the Securities Act of 1933 to any purchaser in the initial
distribution of the securities, the undersigned registrant
undertakes that in a primary offering of securities of the
undersigned registrant pursuant to this registration statement,
regardless of the underwriting method used to sell the securities
to the purchaser, if the securities are offered or sold to such
purchaser by means of any of the following communications, the
undersigned registrant will be a seller to the purchaser and will
be considered to offer or sell such securities to such
purchaser:
(i) Any
preliminary prospectus or prospectus of the undersigned registrant
relating to the offering required to be filed pursuant to Rule
424;
(ii)
Any free writing prospectus relating to the offering prepared by or
on behalf of the undersigned registrant or used or referred to by
the undersigned registrant;
(iii)
The portion of any other free writing prospectus relating to the
offering containing material information about the undersigned
registrant or its securities provided by or on behalf of the
undersigned registrant; and
(iv)
Any other communication that is an offer in the offering made by
the undersigned registrant to the purchaser.
(b) The
undersigned registrant hereby undertakes 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 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.
(c)
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers, and
controlling persons of the registrant pursuant to the foregoing
provisions, or otherwise, the registrant has been advised that in
the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the
Securities Act of 1933 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
of 1933 and will be governed by the final adjudication of such
issue.
The
undersigned registrant hereby undertakes that:
(i) For
purposes of determining any liability under the Securities Act of
1933, the information omitted from the form of prospectus filed as
part of this registration statement in reliance upon Rule 430A
and contained in a form of prospectus filed by the registrant
pursuant to Rule 424(b) (1) or (4) or
497(h) under the Securities Act shall be deemed to be part of
this registration statement as of the time it was declared
effective.
(ii) For
the purpose of determining any liability under the Securities Act
of 1933, each post-effective amendment that contains a form of
prospectus 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.
SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, as amended, the
Registrant certifies that it has reasonable grounds to believe that
it meets all of the requirements for filing on Form S-3 and has
duly caused this registration statement to be signed on its behalf
by the undersigned, thereunto duly authorized, in the City of Chula
Vista, State of California, September 18, 2017.
|
|
YOUNGEVITY
INTERNATIONAL, INC.
|
|
|
|
|
|
|
By:
|
/s/ Stephan
Wallach
|
|
|
|
Chief
Executive Officer
and
Director
|
|
|
|
(Principal
Executive Officer)
|
|
|
By:
|
/s/ David
Briskie
|
|
|
|
President, Chief
Financial Officer and Director
(Principal
Financial and Accounting Officer)
|
POWER OF ATTORNEY
We, the
undersigned hereby severally constitute and appoint each of Stephan
Wallach and David Briskie our true and lawful attorney and agent,
with full power to each to sign for us, and in our names in the
capacities indicated below, any and all amendments to this
registration statement, any subsequent registration statements
pursuant to Rule 462 of the Securities Act of 1933, as amended, and
to file the same, with all exhibits thereto and other documents in
connection therewith, with the Securities and Exchange Commission,
granting unto said attorneys-in-fact and agents, and each of them,
full power and authority to do and perform each and every act and
thing requisite and necessary to be done in and about the premises,
as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, or any of them or their substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
This power of attorney may be executed in
counterparts.
Pursuant
to the requirements of the Securities Act 1933, this report has
been signed by the following persons on behalf of the Registrant
and in the capacities and on the dates indicated.
/s/ Stephan
Wallach
|
|
Chief
Executive Officer
|
|
|
Stephan
Wallach
|
|
and
Director
|
|
September 18,
2017
|
|
|
(Principal
Executive Officer)
|
|
|
|
|
|
|
|
/s/ David
Briskie
|
|
President, Chief
Financial Officer and Director
|
|
|
David
Briskie
|
|
(Principal
Financial and Accounting Officer)
|
|
September 18,
2017
|
|
|
|
|
|
/s/ Michelle
Wallach
|
|
Director
|
|
September 18,
2017
|
Michelle
Wallach
|
|
|
|
|
|
|
|
|
|
/s/ Richard
Renton
|
|
Director
|
|
September 18,
2017
|
Richard
Renton
|
|
|
|
|
|
|
|
|
|
/s/ William
Thompson
|
|
Director
|
|
September 18,
2017
|
William
Thompson
|
|
|
|
|
|
|
|
|
|
/s/ Kevin
Allodi
|
|
Director
|
|
September 18,
2017
|
Kevin
Allodi
|
|
|
|
|
|
|
|
|
|
/s/ Paul
Sallwasser
|
|
Director
|
|
September 18,
2017
|
Paul
Sallwasser
|
|
|
|
|
|
|
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|