Exhibit 10.6
INTEREST PURCHASE AGREEMENT
THIS INTEREST PURCHASE AGREEMENT (the "Agreement") is dated as
of December 9, 2002 by and between Drinks Americas Inc., a Delaware corporation
(the "Purchaser"), with its principal executive offices located at 000 Xxxxxxx
Xxxx, Xxxxxx, Xxxxxxxxxxx 00000, and Xxxx Xxxxxx, an individual residing at 0000
Xxxxx Xxxxx Xxxx, Xxxxx Xxxxxx 00000 (the "Seller").
RECITALS
1. Seller is the sole member of Old Whiskey River Distilling
Company, LLC, a Hawaii limited liability company ("Old Whiskey") and Y Sake,
LLC, a Hawaii limited liability company ("Y Sake" and, together with Old
Whiskey, the "Companies").
2. Old Whiskey maintains a license with Xxxxxx Xxxxxx
(including trademark and trade names) for the distribution of a certain
alcoholic product known as Old Whiskey River ("Old Whiskey River").
3. Y Sake maintains a license with Xxx Xxxxxxxxx for the
distribution of a certain alcoholic product known as Y Sake ("Y Sake Liquor",
and together with Old Whiskey River (the "Products")).
4. Seller desires to sell and assign to Purchaser, and
Purchaser desires to purchase from Seller, on the terms and subject to the
conditions set forth in this Agreement, twenty-five percent (25%) of the
interest presently held by the Seller in Old Whiskey and 25% of the interest
presently held by the Seller in Y Sake. Upon such sale and assignment, pursuant
to an Assignment of Limited Liability Company Interest with respect to each of
the Companies, in the form of Exhibit A (the "Assignments"), Purchaser will hold
twenty-five percent (25%) of the units of each of the Companies and Seller will
hold seventy-five percent (75%) of the units of each of the Companies.
5. On the date hereof, simultaneously with the sale and
transfer provided herein, Seller and Purchaser will enter into an Amended and
Restated Limited Liability Company Agreement with respect to each of the
Companies (the "Amended LLC Agreements"), which will amend and restate the
operating agreements of each of the Companies in their entirety to reflect,
inter alia, the consummation of the transactions contemplated hereby.
NOW, THEREFORE, in consideration of the premises and the
mutual agreements contained herein and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto hereby agree as follows:
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DEFINITIONS
For purposes of this Agreement, the following terms shall have
the meanings specified or referred to in this Article I.
"Agreement" means this Interest Purchase Agreement.
"Alive Spirits" shall mean Alive Spirits, LLC, an Oregon
limited liability company.
"Assignments" has the meaning specified in the recitals to
this Agreement.
"Closing" shall have the meaning set forth in Section 3.1.
"Closing Date" shall mean the date on which the Closing occurs
in accordance with Section 3.1.
"Code" means the Internal Revenue Code of 1986, as amended.
"Companies" shall have the meaning specified in the recitals
to this Agreement.
"Consulting Agreement" means the agreement by and between
Purchaser, Maxmillian and Seller setting forth Seller's obligation to provide
certain services to Purchaser and Maxmillian, including without limitation the
opportunity to participate in and distribute certain future brands of beverages.
"Contracts" means all purchase orders, sales orders, agency
agreements, sales representation agreements, licensing agreements, warranty
agreements, service agreements, and other commitments, arrangements, agreements
and contracts, written or oral, with respect to, or affecting, the business of
each of the Companies, including, but not limited to, Distribution Rights
Agreements.
"Debt" means indebtedness for borrowed money, including, but
not limited to, notes payable and bank loans and lines of credit, as well as
obligations for the conditional purchase of property and obligations in respect
of capitalized leases.
"Distribution Agreements" shall have the meaning set forth in
Section 4.1(h).
"Employment Agreements" means those certain Employment
Agreements between the Purchaser and each of Xxxxx Xxxxxxxx, Xxxxxxx Xxxxxx and
Xxxxxxx Xxxxxxx.
"Encumbrance" means any security interest, pledge, mortgage,
lien (including environmental and tax liens), charge, encumbrance, adverse
claim, preferential arrangement, or restriction of any kind, including, without
limitation, any restriction on the use, voting, transfer, receipt of income or
other exercise of any attributes of ownership.
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"Invoice" means the instrument by which Seller will sell and
Parliament shall purchase certain inventory from Alive Spirits.
"Material Contracts" shall have the meaning set forth in
Section 5.1(h).
"Maxmillian" shall mean Maxmillian Partners, LLC a Delaware
limited liability company.
"Maxmillian Documents" has the meaning set forth in Sections
3.1 (f).
"Old Whiskey" shall have the meaning set forth in the recitals
of this Agreement.
"Old Whiskey River" shall have the meaning set forth in the
recitals to this Agreement.
"Operating Agreements" has the meaning specified in the
recitals to this Agreement.
"Parliament" means Parliament Import Company.
"Party" means Seller and Purchaser, referred to individually,
and "Parties" means Seller and Purchaser, referred to collectively.
"Products" shall have the meaning set forth in the recitals to
this Agreement.
"Purchase Price" shall have the meaning set forth in Section
2.2.
"Purchased Interests" shall have the meaning set forth in
Section 2.1.
"Sake Liquor" has the meaning set forth in the recitals to
this Agreement.
"Sub-License and Distributor Agreements" has the meaning set
forth in Section 4.1(m).
"Tax" or "Taxes" means any federal, state, local or foreign
income, gross receipts, license, payroll employment, excise, severance, stamp,
occupation, premium, windfall, profits, environmental (including taxes under
Code Section 59A), customs duties, capital stock, franchise, profits,
withholding, social security (or similar), unemployment, disability, real
property, personal property, sales, use, transfer, registration, value added,
alternative or add-on minimum, estimated or other tax of any kind whatsoever,
including any interest, penalty or addition thereto, whether disputed or not.
"Termination Agreements" shall have the meaning set forth in
Section 3.1(d).
"Trademark License Agreements" has the meaning set forth in
Section 4.1(h).
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"Y Sake" shall have the meaning set forth in the recitals to
this Agreement.
"Yamaguchi Documents" has the meaning set forth in Section
4.1(o).
SALE AND PURCHASE OF INTERESTS
a. Agreement to Sell and Purchase. At the Closing, Seller agrees, on the
terms and subject to the conditions hereinafter set forth, and in reliance upon
the covenants, agreements, representations and warranties of Purchaser
hereinafter set forth, to sell, transfer and deliver or cause to be sold,
transferred and delivered to Purchaser, free and clear of all Encumbrances, and
Purchaser agrees to purchase from Seller on the terms, subject to the
conditions, and in reliance upon the covenants, agreements, representations and
warranties of Seller hereinafter set forth, twenty-five (25%) of the Seller's
interest in each of the Companies (the "Purchased Interests").
b. Purchase Price. Purchaser agrees to pay to Seller as the purchase price
(the "Purchase Price") for the Purchased Interests an aggregate of Four Hundred
Seventy Five Thousand Dollars (US$475,000). The Purchase Price shall be
allocated in the following manner: (i) US$356,250 shall be the Purchase Price
for the portion of the Purchased Interests representing units in Old Whiskey;
and (ii) US$118,750 shall be the Purchase Price for the portion of the Purchased
Interest representing units in Y Sake.
c. Assumption of Liabilities. The Purchaser shall not assume any
liabilities of the Seller nor of either Company.
d. Transfer Taxes and Recording Fees. Seller shall be responsible
for the timely payment of, and to such extent shall indemnify and hold harmless
Purchaser against, all sales (including, without limitation, bulk sales), use,
value added, documentary, stamp, gross receipts, registration, transfer,
conveyance, excise, recording, license, stock transfer stamps and other similar
Taxes arising out of or in connection with or attributable to the transactions
effective pursuant to this Agreement.
CLOSING
e. Closing. The closing of the sale and purchase of the Purchased
Interests (the "Closing") shall, subject to the fulfillment or waiver of the
conditions specified in Article IV hereof, take place at the offices of Xxxxxx,
Xxxxxx-Xxxxxxx, Colt & Mosle LLP, 000 Xxxx Xxxx Xxxxxx, Xxxxxxxx, Xxxxxxxxxxx
00000, on December 9, 2002 (such date of the Closing being hereinafter called
the "Closing Date"), or at such other date and place as shall be mutually
agreeable to Seller and Purchaser. At the Closing, and upon the terms and
subject to the conditions set forth in this Agreement, the Parties shall deliver
each of the certificates, and documents to be delivered pursuant to this
Agreement, and shall take the following actions, which deliveries and actions
shall be deemed to have occurred simultaneously (except as otherwise provided)
and to constitute the Closing hereunder:
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Seller and Purchaser shall execute and deliver the Assignments pursuant to
which Seller shall assign and deliver the Purchased Interests to the Purchaser;
Purchaser shall execute and deliver to Seller: (i) a promissory note in
the principal amount of US$225,000 in the form attached hereto as Exhibit
3.1(b); and (ii) US$250,000 by way of check;
The Companies and Purchaser shall execute and deliver the Distribution
Rights Agreements and Trademark License Agreements;
Seller shall cause each of the Companies to execute and deliver a
termination agreement with Alive Spirits by which Alive Spirits agrees to
terminate any and all rights and privileges, whether written or oral, it has
regarding the distribution of the Products (the "Termination Agreements");
Seller and Purchaser shall execute and deliver the Operating Agreements
and the Consulting and Exclusive Referral Agreement;
Seller shall executive and deliver the Limited Liability Company
Agreement of Maxmillian and a Subscription Agreement by which it shall acquire
an interest in Maxmillian (collectively, the "Maxmillian Documents");
Seller shall deliver the Invoice and Parliament shall remit payment
pursuant to such Invoice.
Purchaser and each of Alive Spirits and Parliament shall execute and
deliver Sublicense and Distributor Agreements.
Seller shall execute, where required and deliver to Purchaser the Xxxxxx
Documents and the Yamaguchi Documents.
The Closing shall not be deemed to have occurred until each of the
deliveries and actions described in this Section 3.1 shall have occurred and any
other conditions set forth in Article IV shall have been satisfied or waived by
the Party entitled to the benefit thereof.
CONDITIONS TO CLOSING
f. Conditions to Purchaser's Obligations. The obligations of Purchaser to
complete the purchase of the Purchased Interests is subject to the fulfillment,
to its satisfaction, at or prior to the Closing, of the following conditions:
Representations and Warranties. The representations and warranties made by
the Seller in this Agreement and in any certificate or other document delivered
under or pursuant to this Agreement shall be correct when made and at the time
of the Closing.
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Performance of Agreements. Seller shall have performed all obligations and
agreements, including but not limited to the execution and delivery and/or the
causing of the execution and delivery of the Operating Agreements, the
Assignments, the Distributor Rights Agreements, the Trademark License
Agreements, the Consulting and Exclusive Referral Agreement, the Maxmillian
Documents, the Employment Agreements and complied with all covenants and
conditions contained in this Agreement to be performed and complied with by
Seller at or prior to the time of the Closing.
Absence of Litigation. No action, suit or proceeding arising out of or
related to this Agreement, or the transactions contemplated hereby, shall be
pending or threatened before or by any court, administrative agency or body or
governmental authority seeking damages in respect of, or other equitable
remedies, including, to enjoin the consummation of the transactions contemplated
by this Agreement.
Consents and Approvals. Seller shall have obtained all consents, approvals
and authorizations, given all notices, disclosures or declarations and made all
registrations and filings, under any law, statute, rule, regulation, judgment,
order, injunction, contract, agreement or other instrument to which it is a
party, or by which the Purchased Interests are subject, in each case which is
required to permit the consummation of the transactions contemplated hereby
without material impairment of Purchaser's ability to own the Purchased
Interests or distribute or cause for the distribution of the Products.
Adverse Change. There shall have been no adverse change in the business or
financial condition or prospects of the Companies since September, 2002.
Other Matters. Purchaser shall have received such other documents, and
evidence as Purchaser may reasonably request in order to establish the power and
authority of Seller and the Companies to consummate the transactions
contemplated by this Agreement and compliance with the conditions of Closing set
forth herein.
Distributor Rights Agreements. The Seller shall have caused each of the
Companies to enter into a Distributor Rights Agreement with Purchaser,
substantially similar to those annexed hereto as Exhibit 4.1(g), such that
Purchaser will be granted the rights to market and distribute each of the
Products as set forth in said agreements (said agreements being the "Distributor
Rights Agreements").
Trademark License Agreements. The Seller shall have caused each of the
Companies to enter into a Trademark License Agreement with Purchaser,
substantially similar to those annexed hereto as Exhibit 4.1(h), such that
Purchaser will be granted rights to the use of certain trademarks as set forth
in said agreements (said agreements being the "Trademark License Agreements").
Consulting and Exclusive Referral Agreement. The Seller shall have
executed and delivered to Purchaser and Maxmillian the Consulting and Exclusive
Referral Agreement in a form substantially similar to that annexed hereto as
Exhibit 14(i).
Termination Agreements. Seller shall have caused each of the Companies to
execute and deliver a Termination Agreement in a form substantially similar to
that annexed hereto as Exhibit 4.1(j).
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Maxmillian Documents. Seller shall have executed and delivered the
Maxmillian Documents.
Sub-License and Distributor Agreement. The Seller shall have caused Alive
Spirits to execute and deliver Sub-License, Distribution and Supplier Agreements
with regard to each of the Companies, each in a form substantially similar to
that annexed hereto as Exhibit 4.1(l)(i) and Parliament shall have executed and
delivered Sub-License and Distributor Agreements with regard to each of the
Companies, each in a form substantially similar to that annexed hereto as
Exhibit 4.1(l)(ii) (said Agreements being the "Sublicense and Distributor
Agreements").
Xxxxxx Documents. The Seller shall have caused Xxxxxx Xxxxxx ("Xxxxxx") to
have delivered to Old Whiskey and Purchaser documentation evidencing (i) an
extension of Xxxxxx'x license to Old Whiskey and (ii) Xxxxxx'x consent to the
Distributor rights Agreement and the Trademark License Agreement from Old
Whiskey and the Sub-License and Distributor Agreement from Purchaser, which
documentation shall be annexed hereto as Exhibit 4.1(m)(i) and (ii), the "Xxxxxx
Documents").
Yamaguchi Documents. The Seller shall have delivered to Y Sake and
Purchaser Seller's sublicense of the license from Xxx Xxxxxxxxx ("Yamaguchi") in
favor of Y Sake; and Seller shall have caused notice of such sublicense and
those pursuant to the Distributor Rights Agreement and the Trademark License
Agreement from Y Sake, the Sub-License, Distribution and Supplier Agreement from
Purchaser to Alive Spirits, which sublicense and notice shall be in forms
substantially similar to those annexed hereto as Exhibit 4.1(n) (all of the
documents described in this Section 4.1(n) being the "Yamaguchi Documents").
g. Conditions to Seller's Obligations. The obligation of Seller to
complete the sale of the Purchased Interests is subject to the fulfillment, to
the satisfaction of Seller, at or prior to the Closing, of the following
conditions:
Representations and Warranties. The representations and warranties made by
Purchaser in this Agreement and in any certificate or other document delivered
under or pursuant to this Agreement shall be correct when made and at the time
of the Closing.
Performance of Agreements. Purchaser shall have performed all obligations
and agreements, including but not limited to the execution and delivery of the
Operating Agreements, the Assignments, the Distributor Rights Agreements and the
Consultin and Exclusive Referral Agreement, and complied with all covenants and
conditions applicable to it contained in this Agreement to be performed and
complied with by Purchaser at or prior to the time of the Closing.
Absence of Litigation. No action, suit or proceeding arising out of or
related to this Agreement, or the transactions contemplated hereby, shall be
pending or threatened before or by any court, administrative agency or body or
governmental authority seeking damages in respect of, or other equitable
remedies, including, to enjoin the consummation of the transactions contemplated
by this Agreement.
Consents and Approvals. Purchaser shall have obtained all consents,
approvals and authorizations, given all notices and made all registrations and
filings, under any law, statute, rule, regulation, judgment, order, injunction,
contract, agreement or other instrument to which it is a party, which is
required to permit the consummation of the transactions contemplated hereby
without material contravention, violation or breach by Purchaser of any of the
terms thereof.
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Other Matters. Seller shall have received such other documents and
evidence as Seller may reasonably request in order to establish the power and
authority of Purchaser to consummate the transactions contemplated by this
Agreement and compliance with the conditions of Closing set forth herein.
Consulting and Exclusive Referral Agreement. The Consulting Agreement
shall have been executed and delivered by Purchaser in a form substantially
similar to that annexed hereto as Exhibit 4.1(f).
Invoice. The Invoice shall have been delivered by Seller to Parliament in
a form substantially similar to that annexed hereto as Exhibit 4.1(g).
Employment Agreements. Purchaser shall have entered into each of the
Employment Agreements such that Purchaser employs, effective January 1, 2003,
three current employees of Alive Spirits; provided, that Seller shall be
obligated to pay, for the initial one year term of the Employment Agreements,
one half of the aggregate compensation of Xxxxx Xxxxxxxx and Xxxxxxx Xxxxxx.
Seller's payment obligation may, for the initial six (6) months of the term of
the Note, be satisfied pursuant to reductions in the amount owed on the Note.
REPRESENTATIONS AND WARRANTIES
h. Representations and Warranties of Seller. Seller hereby represents and
warrants with respect to itself and the Companies, where applicable, to the
Purchaser, as of the date hereof and as of the Closing Date, the following:
Organization.
Old Whiskey is a limited liability company duly organized, validly
existing and in good standing under the laws of Hawaii, duly authorized to carry
on the business presently conducted by it. Old Whiskey is not required to be
qualified to do business in any other jurisdictions, except where the failure to
so qualify would not have a material adverse effect. A copy of Old Whiskey's
certificate of formation, which is attached hereto as Schedule 5.1(a), is
correct and complete and reflect all amendments made thereto at any time prior
to the date of this Agreement. Said certificate shall not be amended prior to
the Closing.
Y Sake is a limited liability company duly organized, validly
existing and in good standing under the laws of Hawaii, duly authorized to carry
on the business presently conducted by it. Y Sake is not required to be
qualified to do business in any other jurisdictions, except where the failure to
so qualify would not have a material adverse effect. A copy of Y Sake's
certificate of formation, which is attached hereto as Schedule 5.1(b), is
correct and complete and reflect all amendments made thereto at any time prior
to the date of this Agreement. Said certificate shall not be amended prior to
Closing.
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Capital. The Seller is the sole member of each of Old Whiskey and Y
Sake and holds 100% of the percentage interest if each of Old Whiskey and Y
Sake. Other than the units held by the Seller, there exist no other outstanding
securities of Y Sake, and there are no outstanding options, subscriptions,
warrants, agreements, conversion rights, preemptive rights, or other rights
which may permit or require any person or entity, now or in the future to
subscribe for, purchase or otherwise acquire any of the units of Y Sake, any
unissued units or any other securities of Y Sake. Other than the units held by
the Seller and as contemplated in the Xxxxxx Documents and this Agreement, there
are no other outstanding securities of Old Whiskey, and there are no outstanding
options, subscriptions, warrants, agreements, conversion rights, preemptive
rights, or other rights which may permit or require any person or entity, now or
in the future to subscribe for, purchase or otherwise acquire any of the units
of Old Whiskey, any unissued units or any other securities of Old Whiskey.
Authority and Enforceability. The Seller has the full right, power,
legal capacity and authority to sell, convey, assign, vote and transfer or merge
the units, free and clear of any Encumbrance and to execute, deliver and perform
his respective obligations hereunder. This Agreement has been duly executed and
delivered by Seller and constitutes a valid and legally binding obligation of
Seller, enforceable in accordance with its terms. Neither the execution and
delivery of this Agreement nor the consummation of the transactions contemplated
hereby, violates any statute, ordinance, regulation, order, judgment or decree
of any court or governmental agency binding upon Seller or the Companies or to
which any of his or their assets are subject, or materially conflicts with or
will result in any breach of any of the terms of or constitute a material
default under or result in the termination of or the creation of any Encumbrance
pursuant to the terms of any contract or agreement to which Seller or either of
the Companies is a party or by which it or they or any of its or their assets is
bound. Neither the execution and delivery by Seller of this Agreement nor the
consummation by Seller of any of the transactions contemplated hereby, requires
the consent, approval, order or authorization of, or registration with, or the
giving of notice to, any person or entity or public body or authority.
Undisclosed or Contingent Liabilities. Other than liabilities to
Seller, the Companies have no undisclosed, contingent or absolute liabilities.
The Seller shall indemnify Purchaser with regard to any liabilities of the
Companies as of the date hereof, whether identified or contingent.
Absence of Certain Changes or Events. Except as set forth in
Schedule 5.1(f) attached hereto, neither the Seller nor either of the Companies,
has:
caused the business of either of the Companies to be operated other
than in the usual, regular and ordinary manner, consistent with past practice;
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incurred any obligation or liability (fixed or contingent) not
otherwise disclosed on the Schedules hereto;
discharged or satisfied any Encumbrance or paid any obligation or
liability (fixed or contingent), except current liabilities included in the
Balance Sheets and current liabilities incurred since the date of the Balance
Sheets, all of which have been incurred and paid consistent with past practice
in the ordinary course of business;
mortgaged, pledged or subjected to any Encumbrance any portion or
all of the Purchased Interests or the Companies' assets;
sold assigned, transferred or leased any portion or all of the
Purchased Interests, except for fair consideration and in the ordinary course of
business;
cancelled or compromised any Debt or claim owing to it;
waived or released any rights of any material value relating to the
Purchased Interests or the Companies' assets;
transferred or granted any rights under any concessions, leases,
licenses, agreements, patents, inventions, trademarks, trade names, copyrights,
or otherwise with respect to know-how;
entered into any transaction other than in the ordinary course of
business;
suffered a casualty loss or damage (including without limitation,
any caused by fire, accident or other casualty or labor disturbance, civil
commotion, riot, act of God or the public enemy), whether or not such loss or
damage shall have been insured against, in excess of Fifty Thousand Dollars
($50,000) in the aggregate;
made or entered into any Contract to make any capital expenditures
in excess of Fifty Thousand Dollars ($50,000) in the aggregate;
made any material amendment to, or terminated before the stated
termination date, any Contract to which it is a party other than in the ordinary
course of business;
made any change in its accounting practices, principles, methods or
procedures;
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suffered or experienced any other event or condition of any
character which materially and adversely affects the Purchased Interests, or the
operations, prospects or condition (financial or otherwise) of either of the
Companies; or
agreed to do any of the foregoing.
Title to the Purchased Interests and to Assets.
Seller is the sole and exclusive owner of, and has good, valid and
marketable title to, the Purchased Interests, free and clear of any Encumbrances
whatsoever. Each of the Companies is the sole and exclusive owner of, and has
good, valid and marketable title to its assets free and clear of any
Encumbrances whatsoever.
Except as set forth in Schedule 5.1(f), no portion of the Purchased
Interests or the Companies' assets is subject to (A) any contract of sale; (B)
restriction on transfer; or (C) the right of anyone.
At Closing, Seller will transfer good, valid and marketable title in
and to the Purchased Interests to Purchaser, free and clear of any Encumbrances,
and the aggregate of the Purchased Interests shall constitute twenty-five
percent (25%) of the units of each of the Companies.
Material Contracts. Schedule 5.1(g) attached hereto contains a
complete and correct list of all of the contracts to which: (A) Seller is a
party or is subject affecting either of the Companies or the Purchased
Interests; (B) either of the Companies is a party or is subject; or (C) any
portion of the Purchased Interests or the Companies' assets are subject
(collectively, the "Material Contracts").
Litigation.
There are no actions, suits or legal, administrative, arbitration or
other proceedings or governmental actions pending or, to the knowledge of
Seller, threatened against Seller with respect to the Purchased Interests or
against the Companies.
There is no judgment, order or decree of any court or any other
governmental body pertaining to the Companies or the Purchased Interests.
Compliance. The Companies each have all material licenses, permits,
approvals and other authorizations as are necessary in order to conduct their
respective business, and Seller has received no notice to the contrary. Except
as set forth in Schedule 5.1(j), the Companies each have complied and comply in
all material respects with all applicable federal, foreign, state and local
laws, statutes, rules, regulations, judgments, orders, writs, injunctions and
decrees of any governmental authority, court or administrative authority having
jurisdiction over each of them or their assets.
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Debt Instruments. Neither the execution and delivery of this
Agreement by Seller nor the consummation of the transactions contemplated by
this Agreement will result in the creation of (or the obligation to create) any
Encumbrance upon any of the Purchased Interests or the Companies' assets under
any indenture, mortgage, chattel mortgage, deed of trust, conditional sales
contract, bank loan, credit agreement, lease or guarantee or other agreement or
instrument to which Seller or either of the Companies is a party or by which
Seller or either of the Companies or any of their properties may be bound or
affected.
Taxes. Except as set forth on Schedule 5.1(k), all Tax returns and
reports of every nature required to be filed by Seller or either of the
Companies, have been filed, and such returns are complete and correct in all
respects; no extensions of time in which to file any such returns and reports
are in effect, and Seller and each of the Companies, as the case may be, have
fully paid all Taxes (whether or not shown on any return for taxes), all
deficiency assessments, penalties and interest of which notice has been received
and all other Taxes and other governmental charges upon Seller and either of the
Companies, or upon the income, property, sales, franchises or operations of any
of them; to the extent that Tax liabilities and other governmental fees and
assessments have accrued but have not become payable, including Tax liabilities
arising under Section 481 of the Code, they have been adequately reflected as
liabilities on the books of the Seller or the respective Company. Seller and
each of the Companies have complied in all respects with all applicable laws,
rules and regulations relating to the payment and withholding of Taxes related
to the business conducted by each of the Companies and have withheld all amounts
required by law to be withheld from the wages and salaries of employees, and is
not liable for any Taxes for failure to comply with such laws, rules and
regulations. No claim has ever been made by an authority in a jurisdiction in
which Seller of the Companies, as the case may be, does not file returns for
Taxes that it is or may be subject to taxation by that jurisdiction. There are
no encumbrances on any of the assets of the Seller or the Companies, as the case
may be, that arose in connection with any failure (or alleged failure) to pay
any Tax. There is no dispute or claim concerning Taxes of the Seller of the
companies that have not been claimed or raised by any authority in writing to
the Seller or the Companies. Neither the Seller nor the Companies are currently
subject to an audit.
Sales of Products. Seller has provided to Purchaser documentation
that describes fully and accurately the manner in which the Products are
distributed and sold, including without limitation (i) the states in which the
products are sold, (ii) the namers and addresses of distillers and distributors
that have registered the Products or are in any material way involved in the
production or distribution of the Products, (iii) all material agreements
governing the production or distribution of the Products and (iv) the licenses,
permits or certificates for the sale of the Products held by Alive Spirits or
any other party.
Disclosure. Neither this Agreement nor any Schedule or Exhibit
hereto nor any other document, certificate or instrument delivered to Purchaser
by or on behalf of Seller or either of the Companies, in connection with the
transactions contemplated by this Agreement contains any untrue statement of a
material fact or omits to state a material fact necessary in order to make the
statements contained herein and therein not misleading.
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i. Representations and Warranties of Purchaser. Purchaser hereby
represents and warrants to Seller, as of the date hereof, and as of the Closing
Date, as follows:
Organization. Purchaser is a corporation, duly organized, validly
existing and in good standing under the laws of the State of Delaware and has
the full corporate power and authority to perform its obligations under this
Agreement.
Authority and Enforceability. This Agreement has been duly
authorized by all necessary corporate action on the part of Purchaser. This
Agreement has been duly executed and delivered by Purchaser and constitutes a
valid and legally binding obligation of Purchaser, enforceable in accordance
with its terms. Neither the execution and delivery of this Agreement nor the
consummation of the transactions contemplated hereby, violates any statute,
ordinance, regulation, order, judgment or decree of any court or governmental
agency binding upon Purchaser or to which any of its assets are subject, or
materially conflicts with or will result in any breach of any of the terms of or
constitute a material default under or result in the termination of or the
creation of any Encumbrance pursuant to the terms of any contract or agreement
to which Purchaser is a party or by which it or any of its assets is bound.
Neither the execution and delivery by Purchaser of this Agreement nor the
consummation by Purchaser of any of the transactions contemplated hereby,
requires the consent, approval, order or authorization of, or registration with,
or the giving of notice to, any person or entity or public body or authority.
Litigation. Purchaser is not engaged in, nor a party to, nor to the
best of its knowledge, threatened with, any suit, action or legal,
administrative, arbitration or other proceeding or governmental investigation,
which, if adversely determined, would materially adversely affect or impede the
consummation of the transactions contemplated hereby.
Disclosure. Neither this Agreement nor any Schedule or Exhibit
hereto nor any other document, certificate or instrument delivered to Seller by
or on behalf of Purchaser, in connection with the transactions contemplated by
this Agreement contains any untrue statement of a material fact or omits to
state a material fact necessary in order to make the statements contained herein
and therein not misleading.
COVENANTS
j. Conduct of Business Prior to Closing. Except as otherwise expressly set
forth herein, during the period from the date of this Agreement to the Closing,
Seller will cause each of the Companies, Alive Spirits and other companies
engaged in the manufacture, distribution and sale of the Products to conduct its
operations according to its usual, regular and ordinary course of business, and
use its best efforts to keep available the services of the officers and
employees of each of the Companies, respectively, and to maintain satisfactory
relationships with parties involved in the conduct of operations of each of the
Companies, Alive Spirits, clients, suppliers and others having business
relations with them. In addition, without limiting the generality of the
foregoing, prior to the Closing Seller will cause each of the Companies to
refrain from taking any action (without the prior written consent of Purchaser)
of the type set forth in Section 5.1(f) of this Agreement.
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k. Access to Information. During the period from the date of this
Agreement to the Closing Date, Seller will cause each of the Companies, or one
or more of its representatives to be available upon reasonable notice to respond
to inquiries from Purchaser concerning the general business affairs of the
Companies and to give Purchaser and its authorized representatives reasonable
access, during normal business hours, to the premises and to all books and
records in its possession in order to permit Purchaser to make reasonable
inspections of its business and affairs.
l. Additional Documents. The Parties agree to execute and deliver to each
other prior to, at and after the Closing such additional instruments and
documents as either may reasonably request for the purposes of carrying out or
confirming the transactions contemplated by this Agreement.
m. Best Efforts. Each Party hereto hereby agrees to use its reasonable
best efforts to (a) obtain any and all third party consents and approvals
required in connection with the performance by it of the transactions
contemplated by this Agreement, (b) comply with all conditions and covenants
related to it as contemplated by this Agreement, and (c) do all such other acts
as are necessary or advisable in order to cause the consummation of the
transactions contemplated hereby.
n. Notification. Prior to the Closing, Seller will notify Purchaser in the
event that (a) there is any material adverse change in the business, operations,
financial condition or prospects of either of the Companies, or (b) any of the
representations or warranties contained in this Agreement shall be breached in a
material respect by any of them.
INDEMNIFICATION
Indemnification by Seller. The Seller hereby agrees to indemnify, defend
and hold harmless the Purchaser and its affiliates from and against, and
agrees to pay or cause to be paid to Purchaser all amounts equal to the
sum of:
Representations and Warranties. Any and all claims, demands, costs,
expenses or other liabilities of any kind that Purchaser or its affiliates may
incur or suffer, which arise or result from or relate to any breach of any of
the Seller's representations or warranties in this Agreement or in any Schedule
or Exhibit hereto, or any other instrument furnished or to be furnished by the
Seller under this Agreement;
Covenants or Agreements. Any and all claims, demands, costs, expenses or
other liabilities of any kind that Purchaser may incur or suffer, which arise or
result from or relate to any breach of any of the Seller's covenants,
obligations or agreements in this Agreement or in any Schedule or Exhibit
hereto, certificate or instrument furnished or to be furnished by the Seller
under this Agreement;
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Taxes. (i) any Taxes incurred by the Purchaser resulting from, arising out
of or relating to Taxes of the Seller or the Companies for the tax periods on or
before the Closing Date and (ii) any Taxes incurred by the Companies resulting
from, arising out of or relating to tax periods on or before the Closing Date to
the extent such Taxes are neither completely paid by Seller nor reflected on the
books of the Companies;
Professional Fees. All reasonable professional fees (including those of
attorneys', accountants and consultants) and other expenses incurred by
Purchaser in connection with any of the aforesaid matters.
o. Indemnification by Purchaser. Purchaser hereby agrees to indemnify,
defend and hold harmless Seller from and against, and agrees to pay or cause to
be paid to Seller all amounts equal to the sum of:
Representations and Warranties. Any and all claims, demands, costs,
expenses or other liabilities of any kind that Seller may incur or suffer, which
arise or result from or relate to any breach of any of the Purchaser's
representations or warranties in this Agreement or in any Schedule or Exhibit
hereto, or any other instrument furnished or to be furnished by the Purchaser
under this Agreement;
Covenants or Agreements. Any and all claims, demands, costs, expenses or
other liabilities of any kind that Seller may incur or suffer, which arise or
result from or relate to any breach of any of the Purchaser's covenants,
obligations or agreements in this Agreement or in any Schedule or Exhibit
hereto, certificate or instrument furnished or to be furnished by the Purchaser
under this Agreement; and
Professional Fees. All reasonable professional fees (including those of
attorneys', accountants and consultants) and other expenses incurred by Seller
in connection with any of the aforesaid matters.
MISCELLANEOUS
p. Survival of Representations and Warranties. The representations,
warranties, covenants and agreements of each of the Parties hereto in this
Agreement or in any certificate or other document delivered hereunder shall
survive the Closing for a period of three (3) years except that the warranties,
representations, covenants, agreements and indemnification obligations contained
in Sections 2.4, 5.1(a), 5.1(b), 5.1(c). 5.1(j), 5.1(l) and Article VII shall
survive the Closing for a period of six months after the applicable statute of
limitations prescribed by law.
q. Expenses. Except as otherwise agreed to among the Parties, whether or
not the transactions contemplated by this Agreement are consummated, each of the
Parties shall pay the fees and expenses of its respective counsel, accountants
and other experts and shall pay all other expenses incurred by it in connection
with the negotiation, preparation, execution and consummation of this Agreement.
r. Brokers. Each Party hereby represents and warrants to the other that it
has not engaged any broker or other person who would be entitled to any
brokerage commission or finder's fee in respect of the execution of this
Agreement or the consummation of the transactions contemplated hereby.
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s. Entire Agreement. This Agreement and the Exhibits and Schedules hereto
and other documents contemplated hereby contain the entire agreement between the
parties hereto with respect to the subject matter hereof. All Exhibits and
Schedules attached hereto and all certificates, documents and other instruments
to be delivered at the Closing contemplated hereunder are hereby expressly made
a part of this Agreement as fully as though set forth herein, and all references
to this Agreement herein or in any of such writings shall be deemed to refer to
and include all of such writings. Any breach of, misrepresentation or default
under any provision of any of such writings shall for all purposes constitute a
breach of, misrepresentation or default under this Agreement.
t. Binding Effect. This Agreement shall inure to the benefit of and be
binding upon the Parties and their respective successors and permitted assigns;
nothing in this Agreement, express or implied, is intended to confer on any
person other than the Parties, or their respective successors or permitted
assigns, any rights, remedies, obligations or liabilities under or by reason of
this Agreement.
u. Amendment or Modification. This Agreement may not be amended, modified
or supplemented by the Parties in any manner, except by an instrument in writing
signed on behalf of each Party by its duly authorized officer or representative.
v. Waiver. Any of the conditions to Closing set forth in this Agreement
may be waived at any time prior to or at the Closing hereunder by the party
entitled to the benefit thereof; provided, however, that no such waiver shall be
effective unless contained in a written instrument signed by the waiving party.
The failure of any party to enforce at any time any of the provisions of this
Agreement shall in no way be construed to be a waiver of any such provision, nor
in any way to affect the validity of this Agreement or any part thereof or the
right of any party thereafter to enforce each and every such provision. No
waiver of any breach of this Agreement shall be held to be a waiver of any other
or subsequent breach.
w. Assignability. This Agreement shall not be assignable by any party
hereto without the prior written consent of the other parties hereto.
x. Severability. If any provision of this Agreement shall be determined by
a court of competent jurisdiction to be invalid or unenforceable, such
determination shall not affect the remaining provisions of this Agreement, all
of which shall remain in full force and effect.
y. Governing Law. This Agreement shall be governed by, and be construed in
accordance with, the laws of the State of New York, excluding its conflict of
laws rules.
z. Arbitration. Any controversy, claim, or dispute arising out of, or in
connection with, or relating to this Agreement, or the breach or performance
thereof, shall be submitted to arbitration in the City of New York, pursuant to
the rules then obtaining of the American Arbitration Association. Any decision
or award by the arbitrator(s) rendered pursuant to this Agreement shall be
limited to the specific parties involved and the specific issues determined
therein. The decision and award of the arbitrator(s) shall not be given any
collateral estoppel effect with regard to issues of fact or law determined or
necessarily determined thereby.
59
aa. Notices. All notices, requests, demands or other communications under
or with respect to this Agreement shall be in writing and shall be deemed to
have been duly given if delivered personally or sent by certified or registered
mail, return receipt requested, postage prepaid, a nationally recognized courier
service or sent by facsimile transmission to the parties at the respective
addresses set forth below, or at such other address as shall be designated by a
party in a written notice to the other parties:
If to Seller: Xxxxxxx Xxxxxx
0000 Xxxxx Xxxxx Xxxx
Xxxxx, Xxxxxx 00000
Phone: (0000 000-0000
Fax: (000) 000-0000
With a copy to: Xxxxxxx, Xxxxxxx & Xxxxx
The Xxxxxxxx Xxxxxxxx, Xxxxx 000
Xxxxxxx, Xxxx
Xxxxxx 00000
Attention: Xxxx X. Xxxxxxx, Esq.
Phone: (000) 000-0000
Fax: (000) 000-0000
If to Purchaser: Drinks Americas, Inc.
000 Xxxxxxx Xxxx
Xxxxxx, Xxxxxxxxxxx 00000
Attention: J. Xxxxxxx Xxxxx, Chief Executive Officer
Phone: (000) 000-0000
Fax: (000) 000-0000
with a copy to: Xxxxxx Xxxxxx-Xxxxxxx, Colt & Mosle LLP
000 Xxxx Xxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Attention: Xxxx X. Xxxxx
Phone: 000-000-0000
Fax: 000-000-0000
Any party by written notice to the other may change the address to which
notices may be directed.
bb. Counterparts. This Agreement may be executed in any number of
counterparts, and in one or more original or facsimile counterparts, and each
such facsimile counterpart shall, for all purposes, be deemed to be an original,
and all counterparts shall together constitute one and the same instrument,
60
cc. Section and Other Headings. The section and other headings contained
in this Agreement are for reference purposes only and shall not affect in any
way the meaning or interpretation of this Agreement.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement
as of the date and year first above written.
XXXX X. XXXXXX
/s/
---------------------------------------------
Xxxx X. Xxxxxx
DRINKS AMERICAS INC.
By: /s/
-------------------------------
Name: J. Xxxxxxx Xxxxx
Title: Chief Executive Officer
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SCHEDULES AND EXHIBITS TO THE INTEREST PURCHASE AGREEMENT
SCHEDULES
Schedule 5.1(a) Old Whiskey's Certificate of Formation
Schedule 5.1(b) Y Sake's Certificate of Formation
Schedule 5.1(e) Absence of Certain Changes or Events
NONE
Schedule 5.1 (f) Title to the Purchased Interests and to assets
NONE
Schedule 5.1(g) Material Contracts
NONE
Schedule 5.1(i) Compliance
NONE
Schedule 5.1(k) Taxes
NONE
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EXHIBITS
Exhibit A Assignments
Exhibit 3.1(b) Promissory Note
Exhibit 4.1(g) Distributor Rights Agreements
Exhibit 4.1(h) Trademark License Agreement
Exhibit 4.1(i) Consulting and Exclusive Referral
Exhibit 4.1(j) Termination Agreement
Exhibit 4.1 (l)(i) Alive Spirits Sub-License, Distribution and
Supplier Agreement
Exhibit 4.1(1)(ii) Parliament Sub-License and Distributor Agreement
Exhibit 4.1(m) Xxxxxx Documents
Exhibit 4.1(n) Yamaguchi Documents
63
