AGREEMENT
Exhibit
10.1
AGREEMENT
THIS
AGREEMENT (the “Agreement”), dated as of June 24, 2010, is entered into by and
among Drinks Americas Holdings, Ltd., a Delaware corporation (the “Company”),
and the persons identified as “Holders” on the signature pages hereto (the
“Holders”).
WHEREAS,
pursuant to a Securities Purchase Agreement, dated December 18, 2007, between
the Company and the Holders signatories thereto (the “Purchase Agreement”)
Company issued 11,000 shares of Series A Convertible Preferred Stock (the
“Series A Preferred Stock”); and
WHEREAS,
the Company has filed a Certificate of Designation of Preferences, Rights and
Limitations of Series A convertible Preferred Stock with the Secretary of State
of the State of Delaware (the “Certificate of
Designations”).
NOW
THEREFORE, for good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, each Holder hereby agrees as follows:
1. Amendment
of the Certificate of Designations”. The Holders consent to the filing the
Amended and Restated Certificate of Designation of Preferences, Rights
and Limitations of Series A Convertible Preferred Stock attached
hereto as Exhibit “A” with the Secretary of State of Delaware and agrees that
the Certificate of Designations shall be of no further force or
effect.
2. Issuance
of Common Stock. Within five days of the date hereof, the Company shall issue
the Holders an aggregate of 12,000,000 shares (“Shares”) of its
Common Stock in such specific number of shares set forth on the
signature page hereto attached hereto (the “Common Stock”).
3. Purchase
Agreement. The Holders hereby agree that (i) Section 4.12 of the
Purchase Agreement (Participation in Future Financing); (ii) Section 4.13
(Subsequent Equity Salesand (iii) Section 4.17 (Capital Change) shall be null
and void and of no further force or effect.
4. Representations
and Warranties. The Company hereby makes to the Holders the following
representations and warranties:
(a) Organization
and Qualification. The Company is an entity duly incorporated or
otherwise organized, validly existing and in good standing under the laws of the
jurisdiction of its incorporation or organization (as applicable), with the
requisite power and authority to own and use its properties and assets and to
carry on its business as currently conducted. The Company is not in
violation or default of any of the provisions of its certificate of
incorporation, bylaws or other organizational or charter documents.
(b) Authorization;
Enforcement. The Company has the requisite corporate power and
authority to enter into and to consummate the transactions contemplated by this
Agreement and otherwise to carry out its obligations hereunder and
thereunder. The execution and delivery of this Agreement by the
Company and the consummation by it of the transactions contemplated hereby have
been duly authorized by all necessary action on the part of the Company and no
further action is required by the Company, its board of directors or its
stockholders in connection therewith. This Agreement has been duly
executed by the Company and, when delivered in accordance with the terms hereof
will constitute the valid and binding obligation of the Company enforceable
against the Company in accordance with its terms except (i) as limited by
general equitable principles and applicable bankruptcy, insolvency,
reorganization, moratorium and other laws of general application affecting
enforcement of creditors’ rights generally, (ii) as limited by laws relating to
the availability of specific performance, injunctive relief or other equitable
remedies and (iii) insofar as indemnification and contribution provisions may be
limited by applicable law.
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(c) No
Conflicts. The execution, delivery and performance of this Agreement
by the Company and the consummation by the Company of the transactions
contemplated hereby do not and will not: (i) conflict with or violate any
provision of the Company’s certificate of incorporation, bylaws or other
organizational or charter documents, or (ii) conflict with, or constitute a
default (or an event that with notice or lapse of time or both would become a
default) under, result in the creation of any Lien upon any of the properties or
assets of the Company or give to others any rights of termination, amendment,
acceleration or cancellation (with or without notice, lapse of time or both) of,
any material agreement, credit facility, debt or other material instrument
(evidencing a Company debt or otherwise) or other material understanding to
which the Company is a party or by which any property or asset of the Company is
bound or affected, or (iii) conflict with or result in a violation of any law,
rule, regulation, order, judgment, injunction, decree or other restriction of
any court or governmental authority to which the Company is subject (including
federal and state securities laws and regulations), or by which any property or
asset of the Company is bound or affected; except in the case of each of clauses
(ii) and (iii), such as could not have or reasonably be expected to result in a
Material Adverse Effect.
(d) Certain
Fees. No brokerage or finder’s fees or commissions are or will be
payable by the Company to any broker, financial advisor or consultant, finder,
placement agent, investment banker, bank with respect to the transactions
contemplated by this Agreement.
(e) Issuance
of Conversion Shares and the Common Stock. The Company acknowledges
and agrees that immediately upon conversion of the Preferred Stock,
the Conversion Shares, provided that the law firm of Xxxxxxxxx Xxxxx LLP, or any
other firm designated by or acceptable to the Holder, provides a legal opinion
regarding the removal of any restrictive legend (the “WS Opinion”) shall be
issued free of legend without any restrictions on resale pursuant to Section
4(1) under the Securities Act and, if required by the Company’s transfer agent,
the Company shall promptly provide a legal opinion to remove such legends upon
conversion of the Preferred Stock. The Shares when issued in
accordance with this Agreement will be duly and validly issued, fully paid and
nonassessable, free and clear of all Liens imposed by the
Company. The Company agrees to pay Xxxxxxxxx Xxxxx LLP $1,500 in
connection with the preparation of the Xxxxxxxxx Xxxxx Opinion.
(f)Capitalization. The capitalization of the Company is as set forth
on Schedule 4(g), as of the date hereof.
5. Holders’
Representations and Warranties and Covenants. Each Holder for itself
and for no other Holders, hereby represents, warrants and covenants to the
Company as follows:
(a) No
Registration. Such Holder understands that the Shares have not been, and will
not be, registered under the Securities Act of 1933, as amended (the “Securities
Act”), by reason of a specific exemption from the registration provisions of the
Securities Act, the availability of which depends upon, among other things, the
bona fide nature of the accuracy of such Holder’s representations as expressed
herein or otherwise made pursuant hereto.
(b) Own
Account. Such Holder is acquiring the Securities for its own account,
not as a nominee or agent, and not with the view to, or for resale in connection
with, any distribution thereof, and such Holder has no present intention of
selling, granting any participation in, or otherwise distributing the same in
violation of the Securities Act and does not have any contract, undertaking,
agreement or arrangement with any person or entity to sell, transfer or grant
participation to such person or entity or to any third person or entity with
respect to such Shares in violation of the Securities Act.
(c) Investment
Experience. Such Holder has knowledge, sophistication and experience in
evaluating and investing in private placement transactions of securities in
companies similar to the Company and acknowledges that such Holder can protect
its own interests. Such Holder has such knowledge and experience in financial
and business matters so that such Holder is capable of evaluating the merits and
risks of its investment in the Company.
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(d) Access
to Information. Such Holder and its advisors, if any, have been
furnished with or have been given access to all materials relating to the
business, finances and operations of the Company (other than materials that
would constitute material non-public information) and any reasonably requested
materials requested by the Holder. Such Holder and its advisors, if
any, have been afforded the opportunity to ask questions of the Company and its
management and have received complete and satisfactory answers to any such
inquiries.
(e) Accredited
Investor. Such Holder is an “accredited investor’ within the meaning
of Regulation D, Rule 501, promulgated by the Commission under the Securities
Act and shall submit to the Company such further assurances of such status as
may be reasonably requested by the Company.
(f) Authorization.
(i) Such
Holder has all requisite power and authority to execute and deliver this
Agreement, and to carry out and perform its obligations under the terms
hereof. All action on the part of the Holder necessary for the
authorization, execution, delivery and performance of this Agreement, and the
performance of all of the Holder’s obligations herein, has been
taken.
(ii) This
Agreement, when executed and delivered by Such Holder, will constitute valid and
legally binding obligations of the Holder, enforceable in accordance with its
terms except: (i) as limited by applicable bankruptcy, insolvency,
reorganization, moratorium and other laws of general application affecting
enforcement of creditors’ rights generally, and (ii) as limited by laws relating
to the availability of specific performance, injunctive relief or other
equitable remedies or by general principles of equity.
6. Miscellaneous.
(a) In
addition, the respective obligations and agreements of the Holders hereunder are
subject to the following conditions being met: (a) the accuracy in all material
respects of the representations and warranties of the Company contained herein
(except for those representations and warranties that are qualified by
materiality or Material Adverse Effect, which shall be true and correct in all
respects) and (b) the performance by the Company of all if its obligations,
covenants and agreements required to be performed hereunder. Except
as expressly set forth above, all of the terms and conditions of the Transaction
Documents shall continue in full force and effect after the execution of this
Agreement and shall not be in any way changed, modified or superseded by the
terms set forth herein. The Company shall, within four Trading Days
of the date hereof, issue a Current Report on Form 8-K disclosing the material
terms of the transactions contemplated hereby, and shall attach this Agreement
and all other related agreements thereto (the “8-K Filing”). From and
after the filing of the 8-K Filing with the Commission, the Holder shall not be
in possession of any material, nonpublic information received from the Company,
any of its Subsidiaries or any of their respective officers, directors,
employees or agents, that is not disclosed in the 8-K Filing. The
Company shall consult with the Holders in issuing any other press releases with
respect to the transactions contemplated hereby.
(b) This
Agreement may be executed in two or more counterparts and by facsimile signature
or otherwise, and each of such counterparts shall be deemed an original and all
of such counterparts together shall constitute one and the same
agreement.
(c) The
Company has elected to provide all Holders with the same terms and form of
agreement for the convenience of the Company and not because it was required or
requested to do so by the Holders. The obligations of each Holder
under this Agreement, and any Transaction Document are several and not joint
with the obligations of any other Holder, and no Holder shall be responsible in
any way for the performance or non-performance of the obligations of any other
Holder under this Agreement or any Transaction Document. Nothing
contained herein or in any Transaction Document, and no action taken by any
Holder pursuant thereto, shall be deemed to constitute the Holders as a
partnership, an association, a joint venture or any other kind of entity, or
create a presumption that the Holders are in any way acting in concert or as a
group with respect to such obligations or the transactions contemplated by this
Agreement or the Transaction Documents. Each Holder shall be entitled
to independently protect and enforce its rights, including without limitation,
the rights arising out of this Agreement or out of the other Transaction
Documents, and it shall not be necessary for any other Holder to be joined as an
additional party in any proceeding for such purpose. Each Holder has
been represented by its own separate legal counsel in their review and
negotiation of this Agreement and the Transaction Documents.
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(d) If
any provision of this Agreement is prohibited by law or otherwise determined to
be invalid or unenforceable by a court of competent jurisdiction, the provision
that would otherwise be prohibited, invalid or unenforceable shall be deemed
amended to apply to the broadest extent that it would be valid and enforceable,
and the invalidity or unenforceability of such provision shall not affect the
validity of the remaining provisions of this Agreement so long as this Agreement
as so modified continues to express, without material change, the original
intentions of the parties as to the subject matter hereof and the prohibited
nature, invalidity or unenforceability of the provision(s) in question does not
substantially impair the respective expectations or reciprocal obligations of
the parties or the practical realization of the benefits that would otherwise be
conferred upon the parties. The parties will endeavor in good faith
negotiations to replace the prohibited, invalid or unenforceable provision(s)
with a valid provision(s), the effect of which comes as close as possible to
that of the prohibited, invalid or unenforceable provision(s).
(e) This
Agreement shall be governed by and interpreted in accordance with laws of the
State of New York, excluding its choice of law rules. The parties
hereto hereby waive the right to a jury trial in any litigation resulting from
or related to this Agreement. The parties hereto consent to exclusive
jurisdiction and venue in the federal courts sitting in the southern district of
New York, unless no federal subject matter jurisdiction exists, in which case
the parties hereto consent to exclusive jurisdiction and venue in the New York
state courts in the borough of Manhattan, New York. Each party waives
all defenses of lack of personal jurisdiction and forum non
conveniens. Process may be served on any party hereto in the manner
authorized by applicable law or court rule.
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IN
WITNESS WHEREOF, this Agreement is executed as of the date first set forth
above.
| DRINKS AMERICAS HOLDINGS, LTD. | |||
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|
By:
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| Name: | |||
| Title: | |||
[signature
page(s) of Holders to follow]
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COUNTERPART
SIGNATURE PAGE OF HOLDER TO
SECURITIES
EXCHANGE AGREEMENT
AMONG
DRINKS AMERICAS HOLDINGS, LTD. AND
THE
HOLDERS THEREUNDER
Name of
Holder: _________________________________
By:___________________________________________
Name:_________________________________________
Title:__________________________________________
Number of
Shares of Common Stock _________________
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