BEVERAGE ACQUISITION CORPORATION INSIDER WARRANT PURCHASE AGREEMENT
BEVERAGE
ACQUISITION CORPORATION
THIS
INSIDER WARRANT PURCHASE AGREEMENT (the “Agreement”) is made as of _______, 2006
between Beverage Acquisition Corporation, a Delaware corporation (the
“Company”), on the one hand, and Xxxxxxx X. Xxxxxx, Xxxxxx X. Xxxxx, Xxxxxx X.
Xxxxxx, Xx., Xxxxxxx X. Xxxxxxxxx, Xxxx X. Xxxxxx, Xxxxxx X. Xxxxxx or their
designees, on the other hand (collectively, the “Purchasers” or individually, a
“Purchaser”). Except as otherwise indicated herein, capitalized terms used
herein are defined in Section 10 hereof.
WHEREAS,
the Purchasers are officers and/or directors of the Company; and
WHEREAS,
in furtherance of the Company’s plan to obtain funding through an initial public
offering (the “Offering”) of its units (the “Units”), each Unit consisting of
one share of common stock (“Common Stock”), par value $0.0001 per share of the
Company (the “Unit Common Stock”) and one warrant to purchase one share of
common stock (the “Unit Warrants” or a “Unit Warrant”) and to demonstrate the
commitment of the initial stockholders of the Company to this plan, the
Purchasers desire to make an investment in the Company by purchasing 1,041,667
warrants (the “Insider Warrants” or a “Insider Warrant” ) on the terms and
conditions described herein; and
WHEREAS,
the consummation of this Agreement is a condition to the closing of the Offering
as described in the Underwriting Agreement to be entered into by and between
the
Company and Xxxxxx Xxxxxx & Co. Inc. (the “Representative”), which the form
of Underwriting Agreement is filed as an exhibit to the Company’s registration
statement on Form S-1 (File No. 333-_______) as the same has been and may
be amended from time to time hereafter (the “Registration Statement”) and filed
with the Securities and Exchange Commission (the “Commission”).
NOW
THEREFORE, the parties to this Agreement hereby agree as follows:
Section 1.
Authorization, Purchase and Sale; Terms of the Insider
Warrants.
A.
Authorization of the Insider Warrants.
The
Company has authorized, and hereby ratifies such authorization by execution
hereof, the issuance and sale to the Purchasers of an aggregate of 1,041,667
Insider Warrants. Each Insider Warrant shall upon exercise and payment of the
exercise price specified therein entitle the holder to purchase one share of
the
Company’s Common Stock.
B.
Purchase and Sale of the Insider Warrants.
The
Company shall sell to the Purchasers, and subject to the terms and conditions
set forth herein, the Purchasers shall severally purchase from the Company,
prior to the effectiveness of the Registration Statement, an aggregate of
1,041,667 Insider Warrants. Each Purchaser shall purchase that number of the
Insider Warrants as is set forth opposite his name in the table contained in
Exhibit
A
hereto.
The purchase price of each Insider Warrant shall be $1.20 per warrant (the
“Purchase Price”), which shall be paid in immediately available funds through
wire transfers to the trust account (the “Trust Account”) to be established
pursuant to that certain Investment Management Trust Agreement by and between
the Company and Continental Stock Transfer & Trust Company
(“Continental”). The Purchase Price shall be wired to the Trust Account by the
Purchasers so as to be on deposit in the Trust Account not less than 24 hours
prior to the effectiveness of the Registration Statement. Amounts so received
in
the Trust Account shall be credited against the respective purchase obligations
of the Purchasers as described on Exhibit
A
hereto.
C.
Terms of the Insider Warrants.
The
Insider Warrants shall carry rights and terms identical to those possessed
by
the Unit Warrants described in the Registration Statement, subject to the
following exceptions: the Insider Warrants (i) will not be
transferable or salable by the Purchasers until such time as the Company has
completed a Business Combination, (ii) will be non-redeemable so long as
the Purchasers hold such warrants following their issuance by the Company to
such Purchasers, (iii) may be exercised on a cashless basis, and
(iv) together with the shares of Common Stock underlying the Insider
Warrants, are and will be entitled to registration rights under the registration
rights agreement (the “Registration Rights Agreement”) to be signed
contemporaneously herewith between the Purchasers, the Initial Stockholders
(as
such term is defined in the Registration Statement) and the Company. The
transfer restriction set forth in (i) above shall not apply to
(a) transfers resulting from the death of any of the Purchasers,
(b) transfers by operation of law, (c) any transfer for estate
planning purposes to persons immediately related to the transferor by blood,
marriage or adoption, or (d) any trust solely for the benefit of such
transferor and/or the persons described in the preceding clause; provided,
however, that with respect to each of the transfers described in clauses (a),
(b), (c) and (d) of this sentence, that prior to such transfer, each
permitted transferee or the trustee or legal guardian for each permitted
transferee (hereinafter collectively, “Permitted Transferees” or a “Permitted
Transferee”) agrees in writing to be bound by the terms of this Agreement.
Should any of the Purchasers transfer or sell Insider Warrants to persons other
than Permitted Transferees after the Company has completed a Business
Combination, then such Insider Warrants shall on the date of such transfer
immediately become redeemable under the same terms as the Unit Warrants. Except
as specifically provided in this Agreement, the terms of the Insider Warrants
shall in all other respects be as set forth in the Warrant Agreement relating
to
the Unit Warrants by and between the Company and Continental. In the event
of
any conflict between this Agreement and the Warrant Agreement, the terms and
provisions of which are incorporated herein by reference, this Agreement shall
control.
Section 2.
The
Closing.
The
closing of the purchase and sale of the Insider Warrants to the Purchasers
(the
“Closing”) shall take place at the offices of Xxxxxx Xxxxxx & Co., Inc.
prior to the effectiveness of the Registration Statement. At the Closing, the
Company shall deliver warrant certificates evidencing the Insider Warrants
to be
purchased by the Purchasers hereunder, registered in each Purchaser’s name, upon
the payment of the aggregate purchase price therefor, by wire transfer of
immediately available funds to the Trust Account.
Section 3.
Representations and Warranties of the Company.
As a
material inducement to the Purchasers to enter into this Agreement and purchase
the Insider Warrants, the Company hereby represents and warrants
that:
A.
Organization and Corporate Power.
The
Company is a corporation duly organized, validly existing and in good standing
under the laws of the State of Delaware and is qualified to do business in
every
jurisdiction in which the failure to so qualify would reasonably be expected
to
have a material adverse effect on the financial condition, operating results
or
assets of the Company. The Company possesses all requisite corporate power
and
authority necessary to carry out the transactions contemplated by this
Agreement.
B.
Authorization; No Breach.
(i)
The
execution, delivery and performance of this Agreement to which the Company
is a
party will have been duly authorized by the Company as of the Closing upon
the
approval hereof by the Company and its Board of Directors. This Agreement
constitutes a valid and binding obligation of the Company, enforceable in
accordance with its terms upon its execution.
(ii)
The
execution and delivery by the Company of this Agreement, the sale and issuance
of the Insider Warrants hereunder, the issuance of the Common Stock upon
exercise of the Insider Warrants (except, with respect thereto, any filings
required under Federal or state securities laws or issuance of one or more
legal
opinions in form and content reasonably satisfactory to the Company pertaining
to the availability of one or more exemptions with respect to the issuance
of
the Insider Warrants under applicable securities laws) and the fulfillment
of
and compliance with the respective terms hereof and thereof by the Company,
do
not and will not as of the Closing (i) conflict with or result in
a
breach
of the terms, conditions or provisions of, (ii) constitute a default under,
(iii) result in the creation of any lien, security interest, charge or
encumbrance upon the Company’s capital stock or assets pursuant to,
(iv) result in a violation of, or (v) require any authorization,
consent, approval, exemption or other action by or notice or declaration to,
or
filing with, any court or administrative or governmental body or agency pursuant
to the Certificate of Incorporation of the Company or the bylaws of the Company,
or any material law, statute, rule or regulation to which the Company is
subject, or any agreement, order, judgment or decree to which the Company is
subject, except for any filings required after the date hereof under Federal
or
state securities laws.
C.
Title to Securities.
Upon
issuance in accordance with, and payment pursuant to, the terms hereof, the
Insider Warrants to be purchased hereunder and, upon exercise of the Insider
Warrants, payment of the exercise price set forth therein and conformance with
the other provisions relating to the exercise thereto, the Common Stock issuable
upon exercise of such Insider Warrants will be duly and validly issued, fully
paid, nonassessable, and the Purchasers will have or receive good title to
such
securities, free and clear of all liens, claims and encumbrances of any kind,
other than (a) transfer restrictions hereunder and under the other
agreements contemplated hereby, (b) transfer restrictions under federal and
state securities laws and (c) liens, claims or encumbrances imposed due to
the actions of the Purchaser.
D.
Governmental Consents.
No
permit, consent, approval or authorization of, or declaration to or filing
with,
any governmental authority is required in connection with the execution,
delivery and performance by the Company of this Agreement or the consummation
by
the Company of any other transactions contemplated hereby.
E.
Disclosure.
(a) The Company has provided each Purchaser with a copy of the Registration
Statement and each Amendment to the Company’s Registration Statement, or
informed each Purchaser of the filing thereof and instructed or requested the
Purchasers to review the Registration Statement and each such Amendment on
the
Commission’s website . The Company will provide the Purchasers with a copy of
any and all amendments to the Registration Statement filed by the Company with
the Commission prior to the Closing. (b) To the best of the Company’s
knowledge as of the date hereof, neither this Agreement nor the Registration
Statement, taken as a whole, contains any untrue statement of a material fact
or
omits to state a material fact necessary to make the statements herein or
therein not misleading in light of the circumstances in which such statements
were made.
Section 4.
Representations, Warranties and Covenants of Purchasers.
As a
material inducement to the Company to enter into this Agreement and issue and
sell the Insider Warrants to the Purchasers, the Purchasers hereby severally
represent, warrant and covenant to the Company (which representations,
warranties and covenants shall survive the Closing) that:
A.
Capacity and State Law Compliance.
Each
Purchaser is an individual over the age of 21 years with the legal capacity
to
execute and perform the obligations imposed on each of the Purchasers hereunder.
Each Purchaser has engaged in the transactions contemplated by this Agreement
within a state in which the offer and sale of the Insider Warrants is permitted
under applicable securities laws. The Purchaser understands and acknowledges
that the purchase of Common Stock on exercise of the Insider Warrants may
require the registration of such Common Stock under Federal and/or state
securities laws or the availability of an exemption from such registration
requirements.
B.
Authorization; No Breach.
(i)
This
Agreement constitutes a valid and binding obligation of each Purchaser,
enforceable in accordance with its terms.
(ii)
The
execution and delivery by Purchasers of this Agreement and the fulfillment
of
and compliance with the respective terms hereof by Purchasers do not and shall
not as of the
Closing
conflict with or result in a breach of the terms, conditions or provisions
of
any other agreement, instrument, order, judgment or decree to which Purchaser
is
subject.
C.
Investment Representations.
(i)
Each
of the Purchasers is acquiring the Insider Warrants and, upon exercise thereof,
the Common Stock issuable upon such exercise (collectively, the “Securities”)
for his own account, for investment only and not with a view towards, or for
resale in connection with, any public sale or distribution thereof.
(ii)
Each
Purchaser is an “accredited investor” as defined in Rule 501(a)(3) of Regulation
D.
(iii)
Each Purchaser understands that the Securities are being offered and sold to
him
in reliance on specific exemptions from the registration requirements of United
States federal and state securities laws and that the Company is relying in
part
upon the truth and accuracy of, and Purchaser’s compliance with, the
representations, warranties and agreements of Purchaser set forth herein in
order to determine the availability of such exemptions and the eligibility
of
Purchaser to acquire such securities.
(iv)
Each
Purchaser initiated discussions with the Company relating to the purchase and
sale of the Securities contemplated by this Agreement on an unsolicited basis
prior to the date of this Agreement. The Purchasers did not initiate such
discussions, nor did Purchasers decide to enter into this Agreement, as a result
of any general solicitation or general advertising within the meaning of Rule
502(c) under the Securities Act of 1933, as amended (the “Securities Act”),
including the filing of the Registration Statement.
(v)
Each
Purchaser has been furnished with all materials relating to the business,
finances and operations of the Company and materials relating to the offer
and
sale of the Securities which have been requested by Purchaser. Each Purchaser
has been afforded the opportunity to ask questions of the other executive
officers and directors of the Company. Each Purchaser understands that his
investment in the Securities involves a high degree of risk. Each Purchaser
has
sought such accounting, legal and tax advice as he has considered necessary
to
make an informed investment decision with respect to his acquisition of the
Securities. Each Purchaser has received and reviewed a copy of the Registration
Statement, including without limitation, the language therein under the caption
“Risk Factors,” and signed the Registration Statement signature page in his
capacity as an officer or director (or both) of the Company, as the case may
be.
(vi)
Each
Purchaser understands that no United States federal or state agency or any
other
government or governmental agency has passed on or made any recommendation
or
endorsement of the Securities or the fairness or suitability of the investment
in the Securities nor have such authorities passed upon or endorsed the merits
of the offering of the Securities.
(vii)
Each Purchaser understands that: (a) the Securities have not been and are
not being registered under the Securities Act or any state securities laws,
and
may not be offered for sale, sold, assigned or transferred unless
(A) subsequently registered thereunder or (B) sold in reliance on an
exemption therefrom; and (b) except as specifically set forth in the
Registration Rights Agreement, neither the Company nor any other person is
under
any obligation to register such securities under the Securities Act or any
state
securities laws or to comply with the terms and conditions of any exemption
thereunder. In this regard, each Purchaser represents that he is familiar with
Rule 144 adopted pursuant to the Securities Act, and understands the resale
limitations imposed thereby and by the Securities Act. Each Purchaser is able
to
bear the economic risk of its investment in the Securities for an indefinite
period of time.
(viii)
Each Purchaser is an investor in securities of companies in the development
stage and acknowledges that he is able to fend for himself, has knowledge and
experience in financial and business matters, knows of the high degree of risk
associated with investments
generally and particularly investments in the securities of companies in the
development stage such as the Company, is capable of evaluating the merits
and
risks of an investment in the Securities and is able to bear the economic risk
of an investment in the Securities in the amount contemplated hereunder. Each
Purchaser has adequate means of providing for his current financial needs and
contingencies and will have no current or anticipated future needs for liquidity
which would be jeopardized by the investment in the Securities. Each Purchaser
can afford a complete loss of his investment in the Securities.
(ix)
Without in any way limiting the representations set forth above, the Purchasers
agree not to make any disposition of all or any portion of the Securities unless
and until:
(1)
There
is then in effect a registration statement under the Securities Act covering
such proposed disposition and such disposition is made in accordance with such
registration statement; or
(2)(i)
The Purchaser shall have notified the Company of the proposed disposition and
shall have furnished the Company with a detailed statement of the circumstances
surrounding the proposed disposition, and (ii) if reasonably requested by
the Company, the Purchaser shall have furnished the Company with an opinion
of
counsel, reasonably satisfactory to the Company, that such disposition will
not
require registration of such Securities under the Securities Act.
Notwithstanding the foregoing, each Purchaser also understands and acknowledges
that the transfer or exercise of the Insider Warrants is subject to the specific
conditions to such transfer or exercise as outlined herein, as to which each
Purchaser specifically assents by his execution hereof.
F.
No
Group.
By
virtue of the Purchasers purchasing the Insider Warrants under this Agreement,
such participation shall not be construed so as to make any of the Purchasers
part of, or a participant in, a “group” as defined in Rule 13d-5 of the Exchange
Act with respect to any securities of the Company.
G.
Rescission Right Waiver and Indemnification.
(i)
Each
of the Purchasers understands and acknowledges that an exemption from the
registration requirements of the Securities Act requires that there be no
general solicitation of purchasers of the Insider Warrants. In this regard,
if
the Offering were deemed to be a general solicitation with respect to the
Insider Warrants, the offer and sale of such Insider Warrants may not be exempt
from registration and, if not, the Purchasers may have a right to rescind their
purchases of the Insider Warrants. In order to facilitate the completion of
the
Offering and in order to protect the Company, its stockholders and the Trust
Account from claims that may adversely affect the Company or the interests
of
its stockholders, each of the Purchasers hereby agrees to waive, to the maximum
extent permitted by applicable law, any claims, right to xxx or rights in law
or
arbitration, as the case may be, to seek rescission of his purchase of the
Insider Warrants. Each of the Purchasers acknowledges and agrees that this
waiver is being made in order to induce the Company to sell the Insider Warrants
to the Purchasers. Each Purchaser agrees that the foregoing waiver of rescission
rights shall apply to any and all known or unknown actions, causes of action,
suits, claims, or proceedings (collectively, “Claims”) and related losses,
costs, penalties, fees, liabilities and damages, whether compensatory,
consequential or exemplary, and expenses in connection therewith (collectively,
“Losses and Expenses”) including reasonable attorneys’ and expert witness fees
and disbursements and all other expenses reasonably incurred in investigating,
preparing or defending against any Claims, whether pending or threatened, in
connection with any present or future actual or asserted right to rescind the
purchase of the Insider Warrants hereunder or relating to the purchase of the
Insider Warrants and the transactions contemplated hereby.
(ii)
Each
Purchaser agrees not to seek recourse against the Trust Account for any reason
whatsoever in connection with his purchase of the Insider Warrants or any Claim
that may arise now or in the future.
(iii)
Each of the Purchasers agree to severally indemnify and hold harmless the
Company, the Representative and the Trust Account against any and all Losses
and
Expenses whatsoever to which the Company, the Representative and the Trust
Account may become subject as a result of the purchase of the Insider Warrants
by the Purchasers or a Purchaser, including but not limited to any Claim by
any
Purchaser of the Insider Warrants, but only to the extent necessary to ensure
that such Losses and Expenses do not reduce the amount in the Trust Account.
To
the extent that the foregoing several indemnification by the Purchasers may
be
unenforceable for any reason, each of the Purchasers agree to make the maximum
contribution permissible by applicable law to the payment and satisfaction
of
any Losses and Expenses relating to Claims that may or will otherwise reduce
the
amount in the Trust Account. Any Losses and Expenses indemnified hereunder
by
the Purchasers will be paid based on the number of Insider Warrants purchased
by
such Purchaser relative to the total number of Insider Warrants purchased by
all
Purchasers hereunder, except to the extent that such Claims are brought by
any
of the Purchasers, in which case the foregoing indemnity obligation shall only
be that of the Purchaser making the Claim, it being the understanding and
agreement of the Purchasers that each of them shall be held harmless by the
other as to any Claims, Losses and Expenses.
(iv)
The
Purchasers acknowledge and agree that the stockholders of the Company, including
those who purchase the Units in the Offering, are and shall be third-party
beneficiaries of the foregoing provisions of Section 5G of this
Agreement.
(v)
Each
Purchaser agrees that to the extent any waiver of rights under this
Section 5G is ineffective as a matter of law, each Purchaser has offered
such waiver for the benefit of the Company as an equitable right that shall
survive any statutory disqualification or bar that applies to a legal right.
Each Purchaser acknowledges the receipt and sufficiency of consideration
received from the Company hereunder in this regard.
Section 6.
Conditions of the Purchasers’ Obligations at the Closing.
The
obligation of the Purchasers to purchase and pay for the Insider Warrants is
subject to the fulfillment, at or before the Closing, of each of the following
conditions:
A.
Representations and Warranties.
The
representations and warranties of the Company contained in Section 3,
except for those stated to be made as of the date hereof, shall be true and
correct in all material respects at and as of the Closing as though then made,
except to the extent of changes caused by the transactions expressly
contemplated herein or in the prospectus contained in the Registration
Statement.
B.
Performance.
The
Company shall have performed and complied with all agreements, obligations
and
conditions contained in this Agreement that are required to be performed or
complied with by it on or before the Closing.
C.
Registration Statement.
The
Registration Statement shall have been declared effective by the Commission
and
the closing of the Offering shall take place within four business days of such
effective date or, if the Registration Statement is declared effective before
2:00 p.m. on a business day, the closing of the Offering shall take place within
three business days of such effective date.
Section 7.
Conditions of the Company’s Obligations at the Closing.
The
obligations of the Company to the Purchasers under this Agreement are subject
to
the fulfillment on or before the Closing of each of the following
conditions:
A.
Representations and Warranties. The representations and warranties of Purchasers
contained in Section 4 shall be true at and as of the Closing as though
then made.
B.
Performance. The Purchasers shall have performed and complied with all
agreements, obligations and conditions contained in this Agreement that are
required to be performed or complied with by them on or before the
Closing.
C.
Corporate Consents. The Company shall have obtained the consent of its Board
of
Directors authorizing the execution, delivery and performance of this Agreement
and the issuance and sale of the Insider Warrants hereunder.
Section 8.
Termination.
This
Agreement may or will be terminated at any time prior to the consummation of
the
Closing if the Offering is not closed within the time periods described in
the
Underwriting Agreement after the Registration Statement is declared
effective.
Section 9.
Survival of Representations and Warranties.
All of
the representations and warranties contained herein shall survive the Closing
for a period of six (6) months except as otherwise specifically provided
herein.
Section 10.
Definitions.
For the
purposes of this Agreement, the following terms have the meanings set
forth:
“Affiliate”
of any particular Person means any other Person controlling, controlled by
or
under common control with such particular Person, where “control” means the
possession, directly or indirectly, of the power to direct the management and
policies of a Person whether through the ownership of voting securities,
contract or otherwise.
“Business
Combination” means a merger, stock exchange, asset acquisition, stock purchase
or similar business combination of the Company with a target business or
businesses that is its initial business combination and which meets the size,
timing and other criteria outlined in the Registration Statement.
“Common
Stock” means the Company’s Common Stock, par value $0.0001 per
share.
“Exchange
Act” means the Securities Exchange Act of 1934, as amended.
“Person”
means any individual, partnership, corporation, limited liability company,
association, joint stock company, trust, joint venture, unincorporated
organization or governmental entity or any department, agency or political
subdivision thereof.
“Securities
Act” means the Securities Act of 1933, as amended.
“Securities
and Exchange Commission” or “Commission” means the United States Securities and
Exchange Commission.
Section 11.
Miscellaneous.
A.
Legends.
(i)
The
certificates evidencing the Insider Warrants will include the legend set forth
below, which the Purchasers have read and understand:
THE
SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT
OF 1933, AS AMENDED, OR ANY STATE SECURITIES LAW, AND MAY NOT BE OFFERED, SOLD,
TRANSFERRED OR OTHERWISE DISPOSED OF UNLESS REGISTERED UNDER THE SECURITIES
ACT
OF 1933, AS AMENDED, AND ANY APPLICABLE STATE SECURITIES LAWS OR AN EXEMPTION
FROM SUCH REGISTRATION IS AVAILABLE. THESE SECURITIES ARE ALSO SUBJECT TO
INVESTMENT REPRESENTATIONS AND RESTRICTIONS ON TRANSFER OR SALE PURSUANT TO
A
PURCHASE AGREEMENT DATED ________, 2006 WHICH RESTRICTS THE TRANSFER THEREOF
AS
PROVIDED IN THE PURCHASE
AGREEMENT, A COPY OF WHICH CAN BE OBTAINED FROM THE COMPANY AT ITS EXECUTIVE
OFFICES.
(ii)
By
accepting the certificates bearing the aforesaid legend, each Purchaser agrees,
prior to any permitted transfer of the Securities represented by the
certificates and subject to the restrictions contained herein, to give written
notice to the Company expressing his desire to effect such transfer and
describing briefly the proposed transfer. Upon receiving such notice, the
Company shall present copies thereof to its counsel and the following provisions
shall apply:
(a)
subject to the transfer restrictions contained elsewhere in this Agreement,
if,
in the reasonable opinion of counsel to the Company, the proposed transfer
of
such Securities may be effected without registration under the Securities Act
and applicable state securities acts, the Company shall promptly thereafter
notify the transferring Purchaser, whereupon the transferring Purchaser shall
be
entitled to transfer such Securities, all in accordance with the terms of the
notice delivered by the transferring Purchaser and upon such further terms
and
conditions as shall be required to ensure compliance with the Securities Act
and
the applicable state securities acts, and, upon surrender of the certificate
evidencing such Securities, in exchange therefor, a new certificate not bearing
a legend of the character set forth above if such counsel reasonably believes
that such legend is no longer required under the Securities Act and the
applicable state securities acts; and
(b)
subject to the transfer restrictions contained elsewhere in this Agreement,
if,
in the reasonable opinion of counsel to the Company, the proposed transfer
of
such Securities may not be effected without registration under the Securities
Act or the applicable state securities acts, a copy of such opinion shall be
promptly delivered to the transferring Purchaser, and such proposed transfer
shall not be made unless such registration is then in effect.
(iii)
The
Company may, from time to time, make stop transfer notations in its records
and
deliver stop transfer instructions to its transfer agent to the extent its
counsel considers it necessary to ensure compliance with the Securities Act
and
the applicable state securities acts.
B.
Successors and Assigns. Except as otherwise expressly provided herein, all
covenants and agreements contained in this Agreement by or on behalf of any
of
the parties hereto shall bind and inure to the benefit of the respective
successors and assigns of the parties hereto whether so expressed or not.
Notwithstanding the foregoing or anything to the contrary herein, the parties
may not assign this Agreement.
C.
Severability. Whenever possible, each provision of this Agreement shall be
interpreted in such manner as to be effective and valid under applicable law,
but if any provision of this Agreement is held to be prohibited by or invalid
under applicable law, such provision shall be ineffective only to the extent
of
such prohibition or invalidity, without invalidating the remainder of this
Agreement.
D.
Counterparts. This Agreement may be executed simultaneously in two or more
counterparts, any one of which need not contain the signatures of more than
one
party, but all such counterparts taken together shall constitute one and the
same Agreement.
E.
Descriptive Headings; Interpretation. The descriptive headings of this Agreement
are inserted for convenience only and do not constitute a substantive part
of
this Agreement. The use of the word “including” in this Agreement shall be by
way of example rather than by limitation.
F.
Governing Law. The general corporation law of the State of New York shall govern
all issues and questions concerning the construction, validity, enforcement
and
interpretation of this Agreement, without giving effect to any choice of law
or
conflict of law rules or provisions that would cause the application of the
laws
of any jurisdiction other than the State of New York.
G.
Notices. All notices, demands or other communications to be given or delivered
under or by reason of the provisions of this Agreement shall be in writing
and
shall be deemed to have been given when delivered personally to the recipient,
sent to the recipient by reputable overnight courier service (charges prepaid)
or mailed to the recipient by certified or registered mail, return receipt
requested and postage prepaid. Such notices, demands and other communications
shall be sent:
if
to the
Company, to:
Beverage
Acquisition Corporation
0000
Xxxxxxxxxx Xxxxxx
Xxxxx
Xxxxxxxx, Xxxx 00000
Attn:
Chief Executive Officer
Fax
No.:
with
a
copy (which shall not constitute notice) to:
Xxxxx
Xxxxx Xxxx Xxxxxx Xxxxxxx and Xxxxx, P.C.
000
Xxxxx
Xxxxxx, 00xx Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attn:
Xxxxxxx X. Xxxxxxx, Esq.
Fax
No.:
(000) 000-0000
If
to the
Purchaser: At the address of the respective Purchaser as set forth in the
records of the Company.
or
to
such other address or to the attention of such other person as the recipient
party has specified by prior written notice to the sending party.
H.
No
Strict Construction. The parties hereto have participated jointly in the
negotiation and drafting of this Agreement. In the event an ambiguity or
question of intent or interpretation arises, this Agreement shall be construed
as if drafted jointly by the parties hereto, and no presumption or burden of
proof shall arise favoring or disfavoring any party by virtue of the authorship
of any of the provisions of this Agreement.
IN
WITNESS WHEREOF, the parties hereto have executed this Purchase Agreement on
the
date first written above.
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BEVERAGE
ACQUISITION CORPORATION
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By:
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Name:
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Title:
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THE
PURCHASERS:
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Xxxxxxx
X. Xxxxxx
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Xxxxxx
X. Xxxxx
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Xxxxxx
X. Xxxxxx, Xx.
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Xxxxxxx
X. Xxxxxxxxx
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Xxxx
X. Xxxxxx
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__________________________________________________
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Xxxxxx
X. Xxxxxx
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Exhibit
A
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Name
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Amount
of Warrants
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Xxxxxxx
X. Xxxxxx
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$ | |||||||||
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Xxxxxx
X. Xxxxx
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$ | |||||||||
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Xxxxxx
X. Xxxxxx, Xx.
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$ | |||||||||
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Xxxxxxx
X. Xxxxxxxxx
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$ | |||||||||
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Xxxx
X. Xxxxxx
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$ | |||||||||
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Xxxxxx
X. Xxxxxx
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$ | |||||||||
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Total
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$ |
1,250,000
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