FIRST AMENDMENT TO OPERATING AND PROFIT-SHARING AGREEMENT
Exhibit 10.34
FIRST AMENDMENT TO OPERATING AND PROFIT-SHARING
AGREEMENT
THIS FIRST AMENDMENT TO OPERATING AND
PROFIT-SHARING AGREEMENT (hereinafter referred to as " First
Amendment to OPSA") is dated as of this 15th day of January, 2019 (hereinafter
referred to as the "Effective Date"). The parties to this First
Amendment to OPSA are CLR ROASTERS, LLC, a Florida Limited
Liability Company ("CLR"), a wholly owned subsidiary of Youngevity
International, Inc, a Delaware corporation with principal offices
located at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
("American Partner") and ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ EXPORT Y
COMPAPAÑIA LIMITADA, ("H&H") a Nicaraguan business entity
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ("▇▇▇▇▇▇▇▇▇") a United States citizen
living in Nicaragua and ▇▇▇▇▇▇▇ DEL ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ("▇▇▇▇▇▇")
a United States citizen living in Nicaragua ("Nicaragua Partners").
The USA Partner and the Nicaraguan Partner are sometimes referred
to herein collectively as the "Parties".
BACKGROUND FACTS
WHEREAS, the Parties entered into that
certain Operating and Profit-Sharing Agreement (hereinafter
referred to as "OPSA") dated 7-24-2014, and
WHEREAS, the Parties have agreed, in
each case subject to the terms and conditions set forth in this
First Amendment to OPSA, to amend the OPSA,
TERMS AND CONDITIONS
NOW, THEREFORE, in consideration of the
sum of Ten and No/100 Dollars ($10.00) paid to CLR and the mutual
covenants contained herein, and other good and valuable
consideration, the receipt and adequacy of which are hereby
acknowledged by both Parties, the Parties agree as follows (with
capitalized terms not defined in this First Amendment to OPSA
havíng the same meaning as set forth in such
OPSA):
l.
Recitals: The above Background
Facts are true and correct and are hereby incorporated by this
reference as if set forth in its entirety.
2.
Acknowledgment and
Representations: The Parties hereby acknowledge, agree and
confirm that except for this First Amendment the Employment
Agreement has not been modified in any respect.
3.
Stock Distribution: Paragraph
11. of the OPSA shall be amended by adding the following language,
as a separate paragraph, at the end thereof: "Working Capital Imbalance will be exchanged for
Nasdaq Listed YGYI Stock: The parties agree that as of
September 2018 there is a working capital imbalance of
approximately $948,863.00, which must be verified, and an imbalance
on construction of dormitories of approximately $450,000.00
(providing this amount is still reflected on the books and verified
against Free Trade Payments) and outstanding payables of
$909,236.55, which has already been verified on CLR Books, for a
total imbalance favoring the Nicaragua Partners of $2,308,099.55."
: "Purchase of Café Cachita
Brand: CLR would like to purchase from
H&H their espresso brand Café Cachita for an amount of
l,000,000 shares of YGYI which Youngevity shall issue to H&H or
any party that H&H authorizes that the shares be issued to.
H&H, ▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ jointly and severally certify that
they own the brand Café Cachita and have full right and
authority to sell same to CLR. Moreover there are no claims, of any
nature, against the owners thereof and should a claim arise, of any
nature, far acts or omissions occurring prior to the execution of
this First Amendment to OPSA, H&H, ▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ jointly
and severally shall defend and hold harmless CLR for any said acts
or omissions."
4.
Additional Contract for Sale and
Purchase of Green Coffee: The OPSA shall be amended by
adding a Section 10.A. ADDIITONAL
CONTRACT FOR SALE AND PURCHASE OF GREEN COFFEE and which
shall provide as follows: "10.A.1. The Parties have obtained a
contract for the sale and purchase of green coffee in the amount of
approx. $250 million dollars. The parties have established a budget
whereby this contract will produce approximately $50 million in
annual revenue producing a pretax profit of approximately $3.8
million beginning in 2019. The parties agree that this profit
contribution requires a new mill (hereinafter referred to as the
CLR ▇▇▇▇▇ Mill), pursuant to the CLR ▇▇▇▇▇ Mill Agreement, of even
date, and the currently operating mill, known as La Pita, to
deliver this profit participation. The profit contribution for
green coffee sales and processing, from La Pita, the New Mill as
well as any other milling operations which may be leased or
acquired in the future will be split 75%/25% in favor of the
American Partner. Profits will only be disbursed after the
accumulation of $3 million in operating profits which puts $3
million of additional cash from forward operations on the balance
sheet. Based on the paragraph above that $3 million of additional
cash will ultimately be split 75/25 in favor of the USA Partners if
disbursed. Once the $3 million is accumulated profits in future
years will be disbursed 25% to the Nicaragua Partners in either
Stock or Cash at the choice of the American Partner.''
5.
Hedging Account: The OPSA shall
be amended by adding a Paragraph 10.A.2. and which shall provide as
follows: "The parties acknowledge that the Green Coffee Business
requires a hedging account as part of the day to day services of
the green coffee business. The American Partner has contributed
$3.1 million dollar s toward the hedging account and additional
funds will be required up to a total of $5 million dollars. The
Parties agree that this hedging account will be owned by the
American Partner, but managed by the Nicaraguan Partners with
oversight coming from the American Partner. At the time of transfer
or assignment of the hedging account to the American Partner ,
there shall be a full reconciliation and accounting made by the
Nicaraguan Partner to the American Partner and there shall be the
amount of $5,000,000.00 in either cash, positions or a combination
of the two. If the amount is less than $5,000,000.00 then and in
that event the American Partner shall have a right to offset said
shortfall form monies owed to the Nicaraguan Partner from any of
its other business ventures. Should for any reason the transfer or
assignment of the hedging account not be able to be completed, then
and in that event the Parties shall execute an agreement embodying
the intention of the Parties as set forth herein and shall be bound
by same until said time when the transfer assignment can be fully
accomplished. "
6.
Ratification: The Parties
represent and warrant to one another as follows: (i) that the
execution and delivery of this First Amendment to OPSA has been
fully authorized by all necessary corporate, company or partnership
action, as the case may be, or in the case of ▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇
that she has the legal capacity to be bound by same; (ii) that the
person(s) signing this First Amendment to OPSA has the requisite
authority to do so and the authority and power to bind the
corporation, company or partnership, as the case may be, on whose
behalf they have signed, or in the case of ▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇
that she has read and fully understands the terms hereof and is
executing same with the full intent to be bound by same; and (iii)
that this First Amendment to OPSA is valid, binding and legally
enforceable in accordance with its terms.
7.
Conflict: In the event of any
conflict between the terms of the First Amendment to OPSA and the
OPSA, it is expressly agreed that the terms of this OPSA shall
control. Except as modified, amended or supplemented by the
provisions of the First Amendment to OPSA, all terms obligations
and conditions of the Employment Agreement are hereby ratified and
shall remain in full force and effect.
IN WITNESS WHEREOF, the Parties have
caused this First Amendment to be executed as of the day and year
first above written.
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▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ EXPORT Y COMPAPAÑIA LIMITADA
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CLR ROASTERS. LLC
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Company
Representative’s Signature
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1-15-19
Company
Representative’s Printed Name
Pres/CFO
Managing
Dir