Midtown Partners & Co., LLC
Midtown
Partners & Co., LLC
0000
Xxxx
Xxxxxxxxx Xxxxxx
Xxxxx,
XX
00000
Phone:
000.000.0000 ♦ Fax:
000.000.0000
This
agreement (the “Agreement”), made as of this 14th
day of
December, 2007, by and between Drinks
Americas Holdings, Ltd., a
Delaware corporation, (the “Company”), with its principal place of business at
000 Xxxxxxx Xxxx, Xxxxx 000, Xxxxxx, XX 00000 and MIDTOWN PARTNERS &
CO., LLC, (the “Placement Agent”, “Midtown” or “Midtown Partners”), a
Florida limited liability company, with its principal place of business at
0000
Xxxx Xxxxxxxxx Xxxxxx, Xxxxx, XX 00000, confirms the understanding and agreement
between the Company and the Placement Agent as follows:
SECTION
I
The
Company hereby engages the Placement Agent as the Company’s exclusive placement
agent in connection with a proposed private placement in the United States
(the
“Offering”) of up to five million dollars (US$5,000,000) of the Company’s
securities (the “Financing”). The Offering will be made to solely “accredited
investors” (the “Accredited Investors”), as such term is defined in Rule 501(a)
of Regulation D (“Regulation D”) promulgated under the United States Securities
Act of 1933, as amended (the “Securities Act”), pursuant to an exemption from
registration under applicable federal and state securities laws available
under
Rule 506 of Regulation D and in accordance with the terms of this Agreement.
The
Accredited Investors may include but is not limited to Enable Growth Partners
LP, Xxxxxx Diversified Strategy Master Fund LLC, Enable Opportunity Partners
LP,
Lyrical Opportunity partners II Ltd, and Lyrical Opportunity Partners II
LP. The
terms and conditions of the Financing shall be similar to those terms and
provisions as attached in Exhibit A hereto subject to a final term Sheet
to be
set
forth at a later date to be approved by the Company.
The
Placement Agent hereby accepts such engagement upon the terms and conditions
set
forth in this Agreement. This Agreement shall not give rise to any commitment
or
obligation by the Placement Agent to purchase any of the Financing or, except
as
set forth herein, to find purchasers for the Financing.
The
Placement Agent shall provide the following services (the
“Services”):
(a) Advise
the Company with regard to the size of the Offering and the structure and
terms
of the Financing in light of the current market environment;
(b) Assist
the Company in identifying and evaluating prospective qualified Accredited
Investors;
(c) Approach
such investors on a “best efforts basis” regarding an investment in the Company;
and
(d) Work
with
the Company to develop a negotiating strategy and assist with the negotiations
with such potential investors.
In
connection with the Placement Agent providing the Services, the Company agrees
to keep the Placement Agent up to date and apprised of all material business,
market and legal developments related to the Company and its operations and
management. The Placement Agent shall devote such time and effort, as it
deems
commercially reasonable under the circumstances in rendering the Services.
The
Placement Agent shall not provide any work that is in the ordinary purview
of a
certified public accountant. The Placement Agent cannot guarantee results
on
behalf of the Company, but shall pursue all avenues that it deems reasonable
through its network of contacts.
SECTION
II
The
Placement Agent, its affiliates and any person acting on its or their behalf
hereby represent, warrant and agree as follows (the “Placement Agent
Parties”):
(a)
The
Financing offered and sold by the Placement Agent have been and will be offered
and sold in compliance with all federal and state securities laws and
regulations governing the registration and conduct of broker-dealers, and
each
Placement Agent Party making an offer or sale of Financing was or will be,
at
the time of any such offer or sale, registered as a broker-dealer pursuant
to
Section 15(b) of the United States Securities Exchange Act of 1934, as amended
(the “Exchange Act”), and under the laws of each applicable state of the United
States (unless exempted from the respective state’s broker-dealer registration
requirements), and in good standing with the Financial Industry Regulatory
Authority.
(b) The
Financing offered and sold by the Placement Agent have been and will be offered
and sold only to Accredited Investors in accordance with Rule 506 of Regulation
D and applicable state securities laws; provided, however, the Company shall
make all necessary filings under Rule 503 of Regulation D and such similar
notice filings under applicable state securities laws. The Placement Agent
Parties represent and warrant that they have reasonable grounds to believe
and
do believe that each person to whom a sale, offer or solicitation of an offer
to
purchase Financing was or will be made was and is an Accredited Investor.
Prior
to the sale and delivery of a Company security to any such investor, the
Placement Agent Parties will obtain an executed subscription agreement and
an
executed investors’ rights agreement in the form agreed upon by the Company and
the Placement Agent (the “Subscription Documents”).
(c) In
connection with the offers and sales of the Financing, the Placement Agent
Parties have not and will not
(1)
Offer
or
sell, or solicit any offer to buy, any Financing by any form of “general
solicitation” or “general advertising”, as such terms are used in Regulation D,
or in any manner involving a public offering within the meaning of Section
4(2)
of the Securities Act;
(2)
Use
any
written material other than the term sheet, that will be approved by the
Company
at a later date, and the Placement Agent, a copy of which is attached hereto
as
Exhibit
A,
and the
Subscription Documents, and shall only rely upon and communicate information
that is publicly available regarding the Company to any potential investors
(without limiting the foregoing, none of the Placement Agent Parties is
authorized to make any representation or warranty to any offeree concerning
the
Company or an investment in the Financing); or
(3)
Take
any
action that would constitute a violation of Regulation M under the Exchange
Act.
(d) The
Placement Agent shall cause each affiliate or each party acting on its or
their
behalf with whom they enter into contractual arrangements relating to the
offer
and sale of any Financing to agree, for the benefit of the Company, to the
same
provisions contained in this Agreement.
SECTION
III
The
Company hereby represents, warrants and agrees as follows:
(a) This
Agreement has been authorized, executed and delivered by the Company and,
when
executed by the Placement Agent will constitute the valid and binding agreement
of the Company enforceable against the Company in accordance with its terms,
except as enforcement thereof may be limited by bankruptcy, insolvency or
reorganization, moratorium or other similar laws relating to or affecting
creditors’ rights generally or by general equitable principles.
(b)
The
offer
and sale of the Financing, the Series A Preferred Stock issued as part of
the
Financing (the “Shares”) and the warrants (defined in Section VII hereof the
“Warrants”) shall be exempt from registration under the Securities Act, and will
comply, in all material respects with the requirements of Rule 506 of Regulation
D promulgated under the Securities Act and any applicable state securities
laws.
No documents prepared by the Company in connection with the Offering, or
any
amendment or supplement thereto, contain any untrue statement of a material
fact
or omit to state any material fact required to be stated therein or necessary
to
make the statements therein, in light of the circumstances under which they
were
made, not misleading.
(c)
The
financial statements, audited and unaudited (including the notes thereto),
included in the Company’s latest annual information form and subsequent
quarterly reports (the “Financial Statements”), present fairly the financial
position of the Company as of the dates indicated and the results of operations
and cash flows of the Company for the periods specified. Such Financial
Statements have been prepared in conformity with generally accepted accounting
principles applied on a consistent basis throughout the periods involved
except
as otherwise stated therein.
(d)
No
federal, state or foreign governmental agency has issued any order preventing
or
suspending the Offering.
(e)
The
Company is a Delaware corporation organized, existing and with active status
under the laws of Delaware, with corporate power and authority under such
laws
to own, lease and operate its properties and conduct its business as now
conducted. The Company has all power, authority, authorization and approvals
as
may be required to enter into this Agreement and each of the Subscription
Documents, and to carry out the provisions and conditions hereof and thereof,
and to issue and sell the Financing, the Shares, and Warrants.
(f)
Except
as
set forth in the documents executed in connection with the Financing (the
“TD”),
the Financing, the Shares, the Warrants, and common shares issuable upon
exercise of the Shares , have all been authorized for issuance and sale pursuant
to the Subscription Documents, and when issued and delivered by the Company
against payment therefore in accordance with the terms of the Subscription
Documents, will be validly issued and fully paid and
non-assessable.
(g) Except
as
set forth in the TD and with the exception of any approvals required by the
Securities and Exchange Commission related to the Offering, no further approval
or authorization of any shareholder of the Company, its Board of Directors
or
other person or group is required for the issuance and sale of the Financing,
the Shares, the Warrants or the Warrant Shares.
(h)
Since
the
public filing of the Company’s September 14, 2007 FORM 10-QSB there has not been
any (A) material adverse change in the business, properties, assets, rights,
operations, condition (financial or otherwise) or prospects of the Company,
(B)
transaction that is material to the Company, except transactions in the ordinary
course of business, (C) obligation that is material to the Company, direct
or
contingent, incurred by the Company, except obligations incurred in the ordinary
course of business, (D) change that is material to the Company or in the
common
shares or outstanding indebtedness of the Company, or (E) dividend or
distribution of any kind declared, paid, or made in respect of the common
shares.
SECTION
IV
The
parties agree that the close of the Offering (the “Closing”) shall be subject to
the satisfaction of the following conditions, unless expressly waived in
writing
by the parties:
(a) The
Offering shall not be subject to any regulatory or judicial proceeding
questioning or reviewing its effectiveness for the purpose of offering the
Financing for sale and issuance.
(b)
The
Company shall have paid, or made arrangements satisfactory to the Agent for
the
payment of, all such expenses as required by Section VII below.
(c) The
Placement Agent and the Company shall have finalized and agreed to the form
of
the warrant agreement referred to in Section VII below.
SECTION
V
(a) The
term
of this Agreement shall commence on the date first written above and shall
expire the earlier of the closing of the offering or one (1) year after the
date
the Company (1) provides the Placement Agent with requested due diligence
materials and (2) the Company and the Placement Agent mutually agree that
information documents (including, but not limited to: a business plan; executive
summary; three-year historical income statement, statement of cash flows,
and
balance sheet; five-year projected financial statements; use of proceeds
statement; investor presentation; valuation analysis), to be provided and
approved by the Company, are ready for presentation to the Placement Agent’s
network of potential financing sources, unless terminated in accordance with
the
provisions set forth below, or extended by the mutual written consent of
the
parties hereto (the “Term”). This Agreement may be terminated only:
(1) By
the
Placement Agent for any reason at any time upon thirty (30) days’ prior written
notice; or
(2) By
the
Placement Agent upon default in the payment of any amounts due to the Placement
Agent pursuant to this Agreement, if such default continues for more than
fifteen (15) days following receipt by the Company from the Placement Agent
of
written notice of such default and demand for payment.
(a)
In
the event of termination, the Placement Agent shall be immediately paid in
full
on all items of compensation and expenses (including any amounts deferred)
payable to the Placement Agent pursuant hereto, as of the date of
termination.
(b)
The
Placement Agent Fee or Financing Fee shall become due and payable to PLACEMENT
AGENT upon the date that the Company receives the proceeds of the Financing
from
the party providing the Financing. A Placement Agent Fee shall also be payable
with respect to any subsequent Offering or any Qualified Financing (as defined
in Section VI hereof) accepted and received by Company within twelve (12)
months
after the termination or expiration of this Agreement, by any party or source
of
funding introduced or facilitated by PLACEMENT AGENT to Company; or
(3) By
mutual
agreement of the parties.
SECTION
VI
At
any
time during the twelve (12) months following the termination of this Agreement,
the Placement Agent shall be entitled to the compensation and fees as set
forth
in Section VII of this Agreement for any Qualified Financing (as defined
below)
received by the Company. “Qualified Financing” shall mean an investment from a
person after the termination of this Agreement that directly results from
the
Placement Agent’s performance of the Services hereunder during the Term of this
Agreement (for the avoidance of doubt this shall mean any solicitation of
a
potential investor or an introduction of a potential investor to the Company
by
the Placement Agent related to the Offering during the Term of this Agreement).
The Placement Agent agrees to provide to the Company within ten (10) days
after
the termination of this Agreement (the “Delivery Deadline”) a list of all
persons solicited on behalf of the Company or introduced to the Company by
the
Placement Agent related to the Offering (the “Solicitation List”) to assist the
parties in making a later determination as to whether a Qualified Financing
has
occurred. If the Solicitation List is not provided to the Company prior to
the
expiration of the Delivery Deadline, the Company’s obligation to pay any
commissions or fees related to a Qualified Financing pursuant to this Section
VII shall immediately terminate. For purposes of this Agreement, receipt
of
Qualified Financing shall be deemed to be received by the Company on the
date
that a definitive agreement regarding the Qualified Financing is executed
by the
Company and the party providing such financing. The compensation or fees
shall
become payable to the Placement Agent upon the date that the Company receives
the proceeds of the Qualified Financing.
The
provisions set forth in this Section VI shall survive any termination of
this
Agreement.
SECTION
VII
In
consideration for the performance of the Services hereunder, the Company
hereby
agrees to pay to the Placement Agent such fees (“The “Placement Agent Fee” or
the “Financing Fee”) as outlined below:
(a) If
the
Placement Agent receives subscriptions for Financing as a part of the Offering
(the “Placement Agent Investors”), the Company shall:
1)
Pay to
the Placement Agent in US dollars via wire from the third party agent’s escrow
at closing an amount equal to six percent (6%) of the principal amount of
the
Financing purchased by the Placement Agent Investors in consideration for
new
cash investments (the “Financing Fee”) and pay to the Placement Agent six
percent (6%) on the execution of any Warrants purchased by the
Investors.
2)
On
each closing date of a Financing on which aggregate consideration is paid
or
becomes payable to the Company for its Equity Securities, the Company shall
issue to the Placement Agent or its permitted assigns warrants (the “Warrants”)
to purchase such number of shares of the common stock of the Company equal
to
ten percent (10%) of the aggregate number of shares of common stock of the
Company issued and issuable by the Company under and in connection with the
Financings, but for this purpose Financing will only include new cash
investments, by the investors and not shares issued as part of a FNP or in
consideration of waivers or other matters. This is expected to result in
the
issuance of Warrants to acquire 640,000 shares of Common Stock at Closing,
but
may increase should other new cash investments come into the Company that
exceed
Three Million Two Hundred Thousand Dollars (US$3,200,000).. The Warrants
shall
have a five (5) year term and be in substantially on the Form attached hereto
as
Exhibit A. The Warrants shall not be callable or redeemable. The Warrants
shall
be registered to the extent provided in and not prohibited by the Registration
Rights Agreement which is part of the TD. The Warrants shall be transferable
within MIDTOWN PARTNERS, at the Placement Agent’s discretion.
3)
An
escrow with Signature Bank, as the third party agent, approved by the parties
hereto may be used for each closing to which the Placement Agent shall be
a
party. All consideration due the Placement Agent shall be paid to the Placement
Agent directly there from. The escrow agent fee for Signature Bank shall
be
$3500.
4)
Cause
its affiliates to, pay to the Placement Agent all compensation described
in this
Section VIII with respect to all Securities sold to a purchaser or purchasers
who participated in the Financing at any time prior to the expiration of
thirty
six (36) months after the expiration of this Agreement (the “Tail Period”) if
(i) such purchaser or purchasers were identified to the Company by the Placement
Agent during the Term authorized, (ii) the Placement Agent advised the Company
with respect to such purchaser or purchasers during the Term authorized or
(iii)
the Company or the Placement Agent had discussions with such purchaser or
purchasers during the Term authorized.
5)
The
Company agrees to pay one percent (1%) of the principal amount of the Financing
purchased by the Placement Agent Investors (the “Non-accountable Fee”) which
will be used to pay Placement Agent expenses including fees such as
entertainment expenses, travel, etc. The Company also agrees to pay for the
legal and due diligence fees outlined in the attached term sheet and such
fees
shall not exceed $25,000.
(b) It
is
acknowledged and agreed that the Company shall bear all costs and expenses
incident to the issuance, offer, sale and delivery of the Financing. These
costs
and expenses will include but are not limited to state “Blue Sky” fees, legal
fees, printing costs, travel costs, mailing, couriers, personal background
checks, and other expenses incidental to the advancement and completion of
the
Offering. Full payment of Placement Agent’s expenses shall be made in same day
funds at the Closing or, if the Offering is terminated for any reason, within
ten (10) days of receipt by the Company of a written request from the Placement
Agent for reimbursement of expenses, including documentation therefore
satisfactory to the Company.
(c)
Subject
to the other requirements set forth in this Agreement, the Placement Agent
may
introduce investors to the Offering directly or through other NASD member
broker-dealers. If the Placement Agent utilizes any intermediaries, the
Placement Agent shall be the Company’s point of contact, not the intermediary,
and the Placement Agent, not the Company, shall be responsible for any
compensation arrangement with the intermediary. The Company’s sole compensation
arrangement, responsibility and obligation are with the Placement Agent.
The
Placement Agent will disclose the identity and compensation arrangements
with
all of its intermediaries in order to allow the Company to adequately disclose
such arrangements, where necessary.
SECTION
VIII
The
Company agrees to indemnify the Placement Agent and hold it harmless against
any
losses, claims, damages or liabilities incurred by the Placement Agent, in
connection with, or relating in any manner, directly or indirectly, to the
Placement Agent rendering the Services in accordance with the Agreement,
unless
it is determined by a court of competent jurisdiction that such losses, claims,
damages or liabilities arose out of the Placement Agent’s breach of this
Agreement, sole negligence, gross negligence, willful misconduct, dishonesty,
fraud or violation of any applicable law. Additionally, the Company agrees
to
reimburse the Placement Agent immediately for any and all expenses, including,
without limitation, attorney fees, incurred by the Placement Agent in connection
with investigating, preparing to defend or defending, or otherwise being
involved in, any lawsuits, claims or other proceedings arising out of or
in
connection with or relating in any manner, directly or indirectly, to the
rendering of any Services by the Placement Agent in accordance with the
Agreement (as defendant, nonparty, or in any other capacity other than as
a
plaintiff, including, without limitation, as a party in an interpleader action);
provided, however, that in the event a determination is made by a court of
competent jurisdiction that the losses, claims, damages or liability arose
primarily out of the Placement Agent’s breach of this Agreement, sole
negligence, gross negligence, willful misconduct, dishonesty, fraud or any
violation of any applicable law, the Placement Agent will remit to the Company
any amounts for which it had been reimbursed under this paragraph. The Company
further agrees that the indemnification and reimbursement commitments set
forth
in this paragraph shall extend to any controlling person, strategic alliance,
partner, member, shareholder, director, officer, employee, agent or
subcontractor of the Placement Agent and their heirs, legal representatives,
successors and assigns. The provisions set forth in this Section VIII shall
survive any termination of this Agreement.
The
Placement Agent agrees to indemnify the Company and hold it harmless against
any losses, claims, damages or liabilities incurred by the Company, in
connection with, or relating in any manner, directly or indirectly, to the
Placement Agent’s gross negligence, willful misconduct, fraud or violation of
any applicable law in connection with its rendering the Services under the
Agreement. The Placement Agent further agrees that the
indemnification set forth in this paragraph shall extend to any controlling
person, strategic alliance, partner, member, shareholder, director, officer,
employee, agent or subcontractor of the Company and their heirs, legal
representatives, successors and assigns. The provisions set forth in this
Section VIII shall survive any termination of this Agreement.
SECTION
IX
All
notices, demands or other communications given hereunder shall be in writing
and
shall be deemed to have been duly given when delivered in person or transmitted
by facsimile transmission or the fifth calendar day after being mailed by
registered or certified mail, return receipt requested, postage prepaid,
to the
addresses herein above first mentioned or to such other address as any party
hereto shall designate to the other for such purpose herein set
forth.
SECTION
X
Governing
Law.
The
subject matter of this Agreement shall be governed by and construed in
accordance with the laws of the State of Florida (without reference to its
choice of law principles), and to the exclusion of the law of any other forum,
without regard to the jurisdiction in which any action or special proceeding
may
be instituted. EACH PARTY HERETO AGREES TO SUBMIT TO THE PERSONAL JURISDICTION
AND VENUE OF THE STATE AND/OR FEDERAL COURTS LOCATED IN HILLSBOROUGH
COUNTY,
FLORIDA FOR RESOLUTION OF ALL DISPUTES ARISING OUT OF, IN CONNECTION WITH,
OR BY
REASON OF THE INTERPRETATION, CONSTRUCTION, AND ENFORCEMENT OF THIS AGREEMENT,
AND HEREBY WAIVES THE CLAIM OR DEFENSE THEREIN THAT SUCH COURTS CONSTITUTE
AN
INCONVENIENT FORUM. AS A MATERIAL INDUCEMENT FOR THIS AGREEMENT, EACH PARTY
SPECIFICALLY WAIVES THE RIGHT TO TRIAL BY JURY OF ANY ISSUES SO TRIABLE.
If it
becomes necessary for any party to institute legal action to enforce the
terms
and conditions of this Agreement, the prevailing party may be awarded reasonable
attorneys fees, expenses and costs.
Confidentiality.
The
Placement Agent may acquire certain non-public information respecting the
business of the Company in connection with the performance of services
hereunder, including information, which is reasonably understood to be
proprietary or confidential in nature (collectively, “Confidential
Information”). The Placement Agent hereby agrees that all Confidential
Information shall be kept strictly confidential by the Placement Agent and
its
affiliates, members, partners, shareholders, managers, directors, officers,
employees, advisors, agents, and controlling persons (collectively,
“Representatives”), except that Confidential Information or portions thereof may
be disclosed to Representatives who need to know such information for the
purpose of enabling the Placement Agent to perform services hereunder (it
being
understood that prior to such disclosure, such Representative will be informed
by the Placement Agent of the confidential nature of such Confidential
Information and shall agree to be bound by this Agreement). The Placement
Agent
shall be responsible for any breach of this provision by any of its
Representatives. For purposes hereof, Confidential Information shall not
include
any information which (i) at the time of disclosure or thereafter is or becomes
generally known by the public (other than as a result of its disclosure by
the
Placement Agent or its Representatives), (ii) was or becomes available to
the
Placement Agent on a non-confidential basis from a person who is not subject
to
a confidentiality agreement concerning that information, or (iii) is required
by
law to be disclosed by the Placement Agent (provided that if such disclosure
is
required by order of a court or administrative agency, the Placement Agent
shall
notify the Company as soon as possible so that the Company may seek a protective
order).
Assignments
and Binding Effect.
This
Agreement shall be binding on and inure to the benefit of the parties hereto
and
their respective successors and permitted assigns. The rights and obligations
of
the parties under this Agreement may not be assigned or delegated without
the
prior written consent of both parties, and any purported assignment without
such
written consent shall be null and void.
Modification
and Waiver.
Only an
instrument in writing executed by the parties hereto may amend this Agreement.
The failure of any party to insist upon strict performance of any of the
provisions of this Agreement shall not be construed as a waiver of any
subsequent default of the same or similar nature, or any other nature.
Construction.
The
captions used in this Agreement are provided for convenience only and shall
not
affect the meaning or interpretation of any provision of this
Agreement.
Facsimile
Signatures.
Facsimile transmission of any signed original document, and re-transmission
of
any signed facsimile transmission, shall be the same as delivery of an original.
At the request of either party, the parties shall confirm facsimile transmitted
signatures by signing an original document. This Agreement may be executed
in
one or more counterparts, each of which shall be deemed an original and all
of
which taken together shall constitute one and the same agreement.
Severability.
If any
provision of this Agreement shall be invalid or unenforceable in any respect
for
any reason, the validity and enforceability of any such provision in any
other
respect, and of the remaining provisions of this Agreement, shall not be
in any
way impaired.
Exclusive.
Midtown
acknowledges and agrees that it is being granted exclusive rights with respect
to the Services to be provided to the Company and the Company is not free
to
engage other parties to provide services similar to those being provided
by
Midtown hereunder without the prior written consent of Midtown.
Non-Circumvention.
The
Company hereby irrevocably agrees not to circumvent, avoid, bypass, or obviate,
directly or indirectly, the intent of this Agreement. The Company agrees
not to
accept any business opportunity from any third party to whom PLACEMENT AGENT
introduces to the Company (or whom the company has a prior relationship with)
without the consent of PLACEMENT AGENT, unless for each business opportunity
accepted by the Company from a third party introduced by PLACEMENT AGENT
or
otherwise, the Company remits a term sheet and then a contract which defines
a
mutually agreeable compensation structure for PLACEMENT AGENT. In addition,
the
Company shall not work with, negotiate with or enter into any equity linked
financing whatsoever with any Investor, Consultant or Placement Agent without
Midtown’s prior written consent. If the Company raises capital through in any
equity offering or sale or equity linked instrument while engaged with Midtown
as the exclusive Placement Agent, the Company shall pay to Midtown all of
its
fees in Section VII, even if the Placement Agent has provided no assistance
whatsoever in raising such capital.
Survivability.
Neither
the termination of this Agreement nor the completion of any services to be
provided by the Placement Agent hereunder, shall affect the provisions of
this
Agreement that shall remain operative and in full force and effect.
Entire
Agreement.
This
Agreement constitutes the entire agreement and understanding of the parties
hereto with respect to the subject matter of this Agreement and supersedes
all
prior understandings and agreements, including an agreement signed by the
parties hereto as of November 28, 2007, whether written or oral, among the
parties with respect to such subject matter.
THE
REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK
If
the
foregoing correctly sets forth the understanding between the Placement Agent
and
the Company, please so indicate in the space provided below for that purpose
within 10 days of the date hereof or this Agreement shall be withdrawn and
become null and void. The undersigned parties hereto have caused this Agreement
to be duly executed by their authorized representatives, pursuant to corporate
board approval and intend to be legally bound.
| DRINKS AMERICAS HOLDING, LTD. | MIDTOWN PARTNERS & CO., LLC |
| By: _____________________________ | By: ____________________________ |
| Xxxx Xxxxxxxx, General Counsel, Director | Xxxxx Xxxxxx, President |
