AGREEMENT
AGREEMENT
THIS
AGREEMENT (the “Agreement”), dated as
of August 30, 2010, is entered into by and among Drinks Americas Holdings, Ltd.,
a Delaware corporation (the “Company”), and J.
Xxxxxxx Xxxxx (the “Employee”).
WHEREAS,
the Company owes the Employee $640,101 in salary (the “Deferred
Salary”);
WHEREAS,
in payment of 90% of the Deferred Salary or ($576,091) the Company shall issue
to the Employee; 576,091 shares of the Company’s Series C Preferred
Stock.
NOW
THEREFORE, for good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the Company and the Employee agree as
follows:
1. Issuance of Series C
Preferred. In payment of the Deferred Salary, the Company shall
concurrently with the execution of this Agreement issue the Employee 576,091
shares of the Company’s Series C Preferred Stock (the “Preferred
Stock”). The Employee hereby agrees that upon the issuance of the
Preferred Stock, 90% of the Deferred Salary shall be paid in full and no longer
due and owing.
2. Conversion of Series C
Preferred. Notwithstanding anything to the contrary in the
Certificate of Designations of Preferences, Rights and Limitations of Series C
Convertible Preferred Stock (the “Certificate of Designations”), the Employee
may not convert the shares of Preferred Stock into shares of Common Stock until
six months from the date hereof. Without limiting the generality of
the foregoing, Employee acknowledges that the Company currently does not have
enough shares of Common Stock to issue upon conversion of the Preferred Stock.
Employee agrees that until such time as the Company has enough shares of Common
Stock to issue upon conversion of the Series C Preferred, Employee will not be
able to convert the Series C Preferred. The Series C Preferred are convertible
in the manner (and subject to the terms) set forth in the Certificate of
Designations.
3. Employee’s 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 Preferred Stock and shares issuable upon the
conversion of the Preferred Shares (collectively the “Securities”) 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 Employee’s representations
as expressed herein or otherwise made pursuant hereto.
(b) Own
Account. Employee 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 Employee 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
Employee in violation of the Securities Act.
(c) Investment
Experience. Employee has knowledge, sophistication and experience in
evaluating and investing in private placement transactions of securities in
companies similar to the Company and acknowledges that Employee can
protect its own interests. Such Employee has such knowledge and experience in
financial and business matters so that such Employee is capable of evaluating
the merits and risks of its investment in the Company.
(d) Access to
Information. Employee 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 Employee. Employee 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. Employee 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) Employee
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 Employee necessary for the authorization, execution,
delivery and performance of this Agreement, and the performance of all of the
Employee’s obligations herein, has been taken.
(ii) This
Agreement, when executed and delivered by Employee, will constitute valid and
legally binding obligations of the Employee, 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.
(g)
Authorized
Shares. Employee acknowledges that he is aware that the Company does not
have enough authorized shares of its Common
Stock. Employee agrees that he will not convert the Series
C Preferred Stock until the Company has enough authorized shares of its Common
Stock to issue upon conversion of the Series C Preferred Stock.
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4. Miscellaneous.
(a) 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.
(b) 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).
(c) 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.
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By:
/s/ J. Xxxxxxx Xxxxx
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Name:
J. Xxxxxxx Xxxxx
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Title:
Chief Executive Officer
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EMPLOYEE
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/s/
J. Xxxxxxx Xxxxx
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