Exhibit 10.40


 





EXCHANGE AND SALE AGREEMENT


 


THIS EXCHANGE AND SALE
AGREEMENT (this “Agreement”) is made and entered into as of _____________ ____, 2015 by and between Turning
Point Brands, Inc., a Delaware corporation (the “Company”), and Standard NA Holdings I LLC, a Delaware limited
liability company (the “Noteholder”).


 


RECITALS


 


WHEREAS, the Company
intends to effect an initial public offering (the “IPO”) of its voting common stock, par value $0.01 per share
(the “Common Stock”), pursuant to a registration statement on Form S-1 filed with the U.S. Securities and Exchange
Commission (the “S-1”);


 


WHEREAS, the Company
issued to Standard General Master Fund L.P. (“SG Master Fund”) the Company PIK Toggle Note, dated as of January
13, 2014, in the aggregate principal amount of $45,000,000 (the “Note”);


 


WHEREAS, pursuant to
that certain Assignment and Assumption Agreement, dated September 18, 2015, by and among SG Master Fund, the Noteholder and the
Company, SG Master Fund assigned all of its rights and obligations in its capacity as payee under the Note to the Noteholder; and


 


WHEREAS, the Noteholder
has agreed to (i) exchange 50% of the sum of the principal amount of the Note, plus all accrued interest on such principal amount
to, but excluding, the Closing Date (the “Exchanged Amount”), for Common Stock and (ii) sell to the Company
the remaining principal amount of the Note and accrued interest on such principal amount to, but excluding, the Closing Date (the
“Sold Amount”), in each case as provided herein.


 


NOW, THEREFORE, in
consideration of the premises and the representations, warranties, covenants and agreements herein contained and intending to be
legally bound hereby, the Company and the Noteholder hereby agree as follows:


 


ARTICLE I

EXCHANGE AND SALE OF NOTE


 


Section 1.1           
Exchange and Sale of the Note.


 


(a)               
Subject to the terms and conditions set forth in this Agreement, the Noteholder hereby agrees to exchange (the “Exchange”)
at the Closing (as defined below) the Exchanged Amount for a number (rounded to the nearest whole share) of shares of Common Stock
(the “Exchange Shares”) equal to the quotient obtained by dividing (x) the sum of the Exchanged Amount by (y)
the initial public offering price per share (less any underwriting fees and commissions) of Common Stock in the IPO.


 


(b)              
Subject to the terms and conditions set forth in this Agreement, the Noteholder hereby agrees to sell (the “Sale”)
at the Closing the Sold Amount for a payment in an amount equal to the Sold Amount.


 






    	 



    	 



    

(c)               
Upon the Exchange and the Sale, the Exchanged Amount and the Sold Amount, respectively, shall be deemed satisfied in full
and the Noteholder shall waive all rights to receive any future payments in respect thereof from and after the Closing.


 


ARTICLE II

CLOSING DATE; DELIVERY


 


Section 2.1           
Closing. The closing (the “Closing”) of the Exchange and Sale shall take place at the offices
of Milbank, Tweed, Hadley & McCloy LLP, 28 Liberty Street, New York, New York 10005, contemporaneously with the closing of
the IPO, but following receipt by the Company of the net proceeds therefrom (the day on which the Closing occurs is referred to
herein as the “Closing Date”).


 


Section 2.2           
Delivery for the Exchange and Sale. At the Closing:


 


(a)               
The Noteholder shall surrender the Note duly endorsed to the Company (and accompanied by appropriate endorsement and transfer
documents) for cancellation; and the Note shall be cancelled by the Company;


 


(b)              
The Company shall make a payment to the Noteholder in the amount of the Sold Amount, by wire transfer of immediately available
funds to an account designated by the Noteholder prior to the Closing; and


 


(c)               
The Company shall deliver the Exchange Shares issuable to each Noteholder by book entry deposit to an account established
for such purpose.


 


Section 2.3           
Consummation of Closing. All acts, deliveries and confirmations comprising the Closing, regardless of chronological
sequence, shall be deemed to occur contemporaneously and simultaneously upon the occurrence of the last act, delivery or confirmation
of the Closing and none of such acts, deliveries or confirmations shall be effective unless and until the last of same shall have
occurred.


 


Section 2.4           
No Transfer of Note Prior to the Closing. The Noteholder agrees that during the term of this Agreement, the Noteholder
shall not sell, assign, pledge, transfer or otherwise dispose of, nor permit the sale, assignment pledge, transfer or other disposition
(each, a “Transfer”) of, any beneficial ownership interest in the Note other than to exchange and sell the Note
pursuant to this Agreement; provided, however, that the Noteholder may Transfer the Note to any of its affiliates that agrees in
writing prior to such Transfer to be bound by the obligations of the Noteholder under this Agreement.


 






    	 



    	 



    

ARTICLE III

REPRESENTATIONS AND WARRANTIES


 


Section 3.1           
Representations and Warranties of Each Party. Each of the Company and the Noteholder hereby represents and warrants
to the other party that:


 


(i)                
such party has all necessary power and authority to execute and deliver this Agreement and to perform its obligations hereunder
and to consummate the transaction contemplated hereby;


 


(ii)              
this Agreement has been duly and validly executed and delivered by such party and constitutes a legal, valid and binding
obligation of such party enforceable against such party in accordance with its terms;


 


(iii)            
the execution, delivery and performance by such party of this Agreement and the consummation by such party of the transactions
contemplated hereby do not and will not (A) conflict with or violate any United States or non-United States statute, law, ordinance,
regulation, rule, code, executive order, injunction, judgment, decree or other order applicable to such party, (B) other than the
prior written consent of the board of directors of the Company to the transactions contemplated hereby, require any consent, approval
or authorization of, declaration, filing or registration with, or notice to, any person or entity, (C) result in the creation of
any encumbrance on the Note or (D) conflict with or result in a breach of or constitute a default under any provision of any party’s
governing documents; and


 


(iv)            
as of the date hereof, no material action, suit or legal, administrative or arbitral proceeding or investigation by or against
such party is pending, or to the knowledge of such party threatened in writing, which would affect the legality, validity or enforceability
of this Agreement or the consummation of the transactions contemplated hereby.


 


Section 3.2           
Representations and Warranties of the Noteholder. The Noteholder hereby represents and warrants to the Company that
it:


 


(i)                
owns exclusively, beneficially and of record and has good, valid and marketable title to such Note free and clear of any
security interest, lien, claim, pledge, proxy, option, right of first refusal, agreement, voting restriction, limitation on disposition,
charge, adverse claim of ownership or use or other encumbrance of any kind and has the full right, power and authority to take
the actions contemplated by this Agreement with respect to such Note;


 


(ii)              
understands that shares of the Common Stock it will receive in the Exchange have not been registered under the Securities
Act of 1933, as amended (the “Securities Act”) and are being or will be issued by the Company in a transaction
exempt from the registration requirements of the Securities Act;


 


(iii)            
understands that shares of the Common Stock it will receive in the Exchange may not be offered or resold except pursuant
to an effective registration statement under the Securities Act or pursuant to an applicable exemption from registration under
the Securities Act;


 






    	 



    	 



    

(iv)            
understands that it is Qualified Institutional Buyer as defined in Rule 144A under the Securities Act (a “QIB”);
it or its representative has had access to the same kind of information concerning the Company that is required by Schedule A
of the Securities Act, to the extent that the Company possesses such information;  has such knowledge and experience in financial
and business matters that it is capable of utilizing the information that is available to it concerning the Company to evaluate
the risks of investment in the Company including the risk that it could lose its entire investment in the Company; and consummating
the Exchange and Sale for its own sole benefit and account for investment and not with a view to, or for resale in connection with,
a public offering or distribution thereof; and


 


(v)              
understands that the shares of Common Stock will bear the restrictive legend set forth on Exhibit A to this Agreement.


 


ARTICLE IV

CONDITIONS PRECEDENT TO NOTEHOLDER’S OBLIGATION


 


The obligation of the
Noteholder to effect the Exchange and Sale is subject to the following conditions (any or all of which may be waived by the Noteholder
in its sole discretion):


 


Section 4.1           
Representations and Warranties. Each of the representations and warranties of the Company set forth in this Agreement
shall be true and correct on the Closing Date.


 


Section 4.2           
Performance; No Default. The Company shall have performed and complied in all material respects with all agreements
and conditions contained in this Agreement required to be performed or complied with by it prior to or at the Closing.


 


Section 4.3           
No Injunction. No preliminary or permanent injunction or other order issued by any federal or state court of competent
jurisdiction preventing the closing of the IPO or the Exchange or the Sale shall be in effect.


 


ARTICLE V

CONDITIONS PRECEDENT TO THE COMPANY’S OBLIGATION


 


The obligation of the
Company to effect the Exchange and Sale is subject to the following conditions (any or all of which may be waived by the Company
in its sole discretion):


 


Section 5.1           
Representations and Warranties.Each of the representations and warranties of the Noteholder set forth in this
Agreement shall be true and correct in all material respects on the Closing Date.


 


Section 5.2           
Performance; No Default. The Noteholder shall have performed and complied in all material respects with all agreements
and conditions contained in this Agreement required to be performed or complied with by the Noteholder prior to or at the Closing.


 






    	 



    	 



    

Section 5.3           
No Injunction. No preliminary or permanent injunction or other order issued by any federal or state court of competent
jurisdiction preventing the closing of the IPO or the Exchange or the Sale shall be in effect.


 


ARTICLE VI

CERTAIN COVENANTS AND AGREEMENTS OF THE PARTIES


 


Section 6.1           
Further Actions. Each party shall, at the written request of the other party, at any time and from time to time following
the Closing, execute and deliver to the other party all such further instruments and take all such further action as may be reasonably
necessary or appropriate in order to confirm or carry out its obligations under this Agreement.


 


Section 6.2           
Best Efforts. Each party shall use its respective best efforts (subject to standards of commercial reasonableness)
to consummate the transactions contemplated to be performed by it under this Agreement.


 


ARTICLE VII

TERMINATION


 


Section 7.1           
Termination. In the event the S-1 is withdrawn by the Company for any reason before the closing of the IPO, this
Agreement shall automatically terminate and become null and void without any further action by the parties.


 


ARTICLE VIII

MISCELLANEOUS


 


Section 8.1           
Survival of Representations. The representations, warranties and agreements in this Agreement shall terminate on
the Closing Date or upon the termination of this Agreement.


 


Section 8.2           
Entire Agreement; Assignment. This Agreement constitutes the entire agreement among the parties with respect to the
subject matter hereof and supersede all prior agreements and undertakings, both written and oral, among the parties, or any of
them, with respect to the subject matter hereof. This Agreement shall not be assigned (whether pursuant to a merger, by operation
of law or otherwise) except as permitted herein.


 


Section 8.3           
Severability. If any term or other provision of this Agreement is invalid, illegal or incapable of being enforced
by any rule of law, or public policy, all other conditions and provisions of this Agreement shall nevertheless remain in full force
and effect so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner materially
adverse to any party. Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced,
the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as
closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally
contemplated to the fullest extent possible.


 






    	 



    	 



    

Section 8.4           
Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of New
York, without giving effect to the State of New York’s conflict of law principles to the extent such principles are not mandatorily
applicable by statute and would require or permit the application of the laws of another jurisdiction. Each of the parties hereby
irrevocably and unconditionally submits, for such party and its property, to the exclusive jurisdiction of any New York State court
or Federal court of the United States sitting in New York City, and any appellate court from any thereof, in any action or proceeding
arising out of or relating to this Agreement and each of the parties hereto hereby irrevocably and unconditionally agrees that
all claims or causes of action (whether in contract, tort or otherwise) in respect of any such action or proceeding may be heard
and determined in such New York State court or, to the extent permitted by law, in such Federal court.


 


Section 8.5           
Waiver of Jury Trial. Each of the parties hereto hereby waives to the fullest extent permitted by applicable law
any right it may have to a trial by jury with respect to any litigation directly or indirectly arising out of, under or in connection
with this Agreement or the transactions contemplated hereby. Each of the parties hereto (a) certifies that no representative, agent
or attorney of any other party has represented, expressly or otherwise, that such other party would not, in the event of litigation,
seek to enforce that foregoing waiver and (b) acknowledges that it and the other hereto have been induced to enter into this Agreement
and the transactions contemplated hereby, as applicable, by, among other things, the mutual waivers and certifications in this
Section 8.5.


 


Section 8.6           
Headings. The descriptive headings contained in this Agreement are included for convenience of reference only and
shall not affect in any way the meaning or interpretation of this Agreement.


 


Section 8.7           
Counterparts. This Agreement may be executed and delivered (including by facsimile or portable document format (pdf)
transmission) in one or more counterparts, and by the different parties hereto in separate counterparts, each of which when executed
shall be deemed to be an original but all of which taken together shall constitute one and the same agreement.


 


Section 8.8           
Waiver; Remedies. No delay on the part of the Noteholder or the Company in exercising any right, power or privilege
under this Agreement shall operate as a wavier thereof, nor shall any waiver on the part of the Noteholder or the Company of any
right, power or privilege under this Agreement operate as a waiver of any other right, power or privilege of such party under this
Agreement, nor shall any single or partial exercise of any right, power or privilege under this Agreement preclude any other or
further exercise thereof or the exercise of any other right, power or privilege under this Agreement.


 


Section 8.9           
Specific Performance. The parties hereto agree that irreparable damage would occur if any provision of this Agreement
were not performed in accordance with the terms hereof and that the parties shall be entitled to an injunction or injunctions to
prevent breaches of this agreement or to enforce specifically the performance of the terms and provisions hereof in addition to
any other remedy to which they are entitled at law or in equity.


 






    	 



    	 



    

Section 8.10       
Amendment. This Agreement may be modified or amended only by written agreement of each of the parties to this Agreement.


 


Section 8.11       
Parties in Interest. This Agreement shall be binding upon and inure solely to the benefit of each party hereto, and
nothing in this Agreement, express or implied, is intended to or shall confer upon any other person any right, benefit or remedy
of any nature whatsoever under or by reason of this Agreement.


 


Section 8.12       
Notice. All notices, requests, claims, demands and other communications hereunder shall be in writing and shall be
given (and shall be deemed to have been duly given upon receipt) by delivery in person, by facsimile or email or by registered
or certified mail (postage prepaid, return receipt requested, provided that the facsimile or email is promptly confirmed by telephone
or email confirmation thereof) to the respective parties at the following addresses (or at such other address for a party as shall
be specified in a notice given in accordance with this Section 8.12):


 


if to the Company:


 


Turning Point Brands, Inc. 


5201 Interchange Way 


Louisville, Kentucky 40229 


Attention: James Dobbins, Senior
Vice President, General Counsel and Secretary 


Email: JDobbins@Natcinc.net


 


with a copy to:


 


Milbank, Tweed, Hadley & McCloy
LLP 


28 Liberty Street 


New York, New York 10005 


Attention: David E. Zeltner, Esq. 


Email: DZeltner@milbank.com


 


if to the Noteholder:


 


Standard
NA Holdings I LLC 


767 Fifth
Avenue, 12th Floor 


New York,
NY 10153 


Attention:
Joseph Mause, CFO 


Email: JMause@standgen.com


 






    	 



    	 



    

IN WITNESS WHEREOF,
the parties hereto, intending to be legally bound, have caused this Agreement to be executed by their respective duly authorized
officers, as of the date first above written.


 





	 	TURNING POINT BRANDS, INC.
	 	 	 
	 	By:	 
	 	Name:	 
	 	Title:	 
	 	 	 
	 	STANDARD NA HOLDINGS I LLC
	 	 	 
	 	By:	 
	 	Name:	 
	 	Title:	 






 


 


 


 


[Signature Page to
Exchange and Sale Agreement for PIK Notes to Equity] 


 






    	 



    	 



    

EXHIBIT A


 


THIS SECURITY HAS NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND MAY NOT BE OFFERED, SOLD,
PLEDGED OR OTHERWISE TRANSFERRED EXCEPT IN ACCORDANCE WITH THE FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL
INTEREST HEREIN, THE ACQUIRER:


 


a.                  
AGREES FOR THE BENEFIT OF TURNING POINT BRANDS, INC.,
(THE “COMPANY”) THAT IT WILL NOT OFFER, SELL, PLEDGE OR OTHERWISE TRANSFER THIS SECURITY OR ANY BENEFICIAL INTEREST
HEREIN EXCEPT:


 


i.                   
TO THE COMPANY OR ANY SUBSIDIARY THEREOF, OR


 


ii.                 
PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BECOME EFFECTIVE UNDER THE SECURITIES ACT, OR


 


iii.               
PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT.


 


PRIOR TO THE REGISTRATION
OF ANY TRANSFER, THE COMPANY AND THE TRANSFER AGENT FOR THE COMPANY’S COMMON STOCK RESERVE THE RIGHT TO REQUIRE THE DELIVERY
OF SUCH LEGAL OPINIONS, CERTIFICATIONS OR OTHER EVIDENCE AS MAY REASONABLY BE REQUIRED IN ORDER TO DETERMINE THAT THE PROPOSED
TRANSFER IS BEING MADE IN COMPLIANCE WITH THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS. NO REPRESENTATION IS MADE AS
TO THE AVAILABILITY OF ANY EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.