ASSET PURCHASE AGREEMENT
ASSET PURCHASE AGREEMENT dated as of October ___, 2005, by and between
DRINKS AMERICAS HOLDINGS, LTD, a Delaware corporation ("Buyer"), and
RHEINGOLD BREWING COMPANY, INC., a Delaware corporation ("Seller").
WHEREAS, Seller has been engaged in the business of manufacturing,
marketing, distributing and selling beer products under the trademark
"Rheingold" pursuant to the terms of the Rheingold License (as hereinafter
defined); and
WHEREAS, Buyer is engaged through subsidiaries in the production,
marketing, advertising, distribution and sale of both spirits and non-alcoholic
beverages, and Buyer will be engaged in the business of manufacturing,
marketing, distributing and selling beer products; and
WHEREAS, Buyer desires to acquire from Seller, and Seller is willing to
sell to Buyer, substantially all of Seller's assets, including, without
limitation, all rights presently held by Seller to use the trademark associated
with the Intellectual Property (as hereinafter defined) in the production,
marketing, advertising, distribution and sale of beer products.
NOW, THEREFORE, the parties hereto, in consideration of the premises
hereof and other good and valuable consideration, hereby agree as follows:
I. DEFINITIONS
1.1. Definitions. The following terms used herein shall have the meanings
given to such terms below.
"Acquired Assets" means, all assets of Seller, real and personal, tangible
and intangible, including, without limitation, goodwill and those assets listed
in Section 2.1 hereof.
"Assignment" means the assignment by Seller to Buyer of the licensee's
interest in the Rheingold License.
"Assumed Contracts" means all of the executory leases, contracts and
licenses listed on Schedule A attached hereto.
"Assumed Obligations" means (i) the obligations of Seller under the
Assumed Contracts requiring performance on or after the Closing Date; and (ii)
all obligations of Seller referred to in Schedule B hereof; provided, however,
that the Assumed Obligations shall not include (x) any liabilities not
specifically listed in said Schedule B, (y) any obligations of Seller to any of
its employees, or (z) any taxes (including sales or transfer taxes) now or
hereafter owed by Seller, or any affiliate or person related to Seller,
regardless whether or not attributable to the Acquired Assets or the Business.
"Assumption" means the instrument pursuant to which Buyer shall assume the
Assumed Obligations.
"Xxxx of Sale" means the xxxx of sale executed by Seller, transferring
title to all the Acquired Assets to Buyer.
"Business" means Seller's business of manufacturing and selling beer
products.
"Buyer" means Drinks Americas Holdings, Ltd., a Delaware corporation.
"Closing" means the Closing referred to in Section 5.1 hereof.
"Closing Date" means the date and time of the Closing.
"Common Stock" means shares of the Common Stock, par value $.001 per
shares, of Buyer.
"Fixed Assets" means all Seller's fixed assets used in connection with the
Business, including the machinery, equipment, spare parts and accessories,
tools, dies, furniture, fixtures, office furnishings and other equipment.
"FMV" means fair market value of the Common Stock, determined as provided
in Section 3.2 hereof.
"Intellectual Property" means all Seller's trade names, trade name rights,
trademarks, trademark rights, logos, trade dress, licenses, patents, patent
applications, patent rights, inventions (whether or not patentable), trade
secrets, customer lists, copyrights (including registrations and applications
therefor), technology, computer software source codes, know-how, processes,
specifications, data and lab test results, formulas, projects in development,
service marks, computer software, computer software modifications, enhancements
and computer software derivative works, other intellectual property rights and
other proprietary information, including all rights to, and intellectual
property regarding, the "Xxxx Xxxxxxxxx" promotional program.
"Inventory" means all inventory of Seller held for resale in connection
with, or used to operate, the Business, including finished goods, raw materials,
work-in-process, packaging, supplies and personal property and any prepaid
deposits relating thereto on hand on the Closing Date, wherever located.
"Lien" means a lien, encumbrance, claim, security interest, mortgage,
pledge, restriction, charge, instrument, license, encroachment, option, rights
of recovery, judgment, order or decree of any court or foreign or domestic
governmental entity, interest, product, tax (foreign, federal, state or local),
in each case of any kind or nature, whether secured or unsecured, xxxxxx or
inchoate, filed or unfiled, scheduled or unscheduled, noticed or unnoticed,
recorded or unrecorded, contingent or noncontingent, material or nonmaterial,
known or unknown and including all claims based on any theory that Buyer is a
successor, transferee or continuation of Seller or the Business.
"Net Working Capital" means current assets minus current liabilities of
Seller, determined in accordance with generally accepted accounting principles,
consistently applied.
"Pabst" means Pabst Brewing Co., successor in interest to Xxxxx under
the Rheingold License.
"Purchase Price" means the Purchase Price referred to in Section 3.1
hereof.
"Receivables" means all accounts receivable and notes receivable relating
to the Business and outstanding at the Closing Date.
"Rheingold License" means the License Agreement dated August 22, 1997, as
amended, by and between Xxxxx, as licensor, and Seller, as licensee, including
(i) "Addendum No, 1" to License Agreement," dated August 27, 1997; (ii)
"Amendment No. 1" to License Agreement dated January 13, 1998, and (iii) any
other addendums, amendments, supplements or other agreement modifying the terms
and conditions of the Rheingold License.
"SEC" means the United States Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended.
"Seller" means Rheingold Brewing Company, Inc., a Delaware corporation.
"Xxxxx" means The Xxxxx Brewery Company, an Arizona corporation.
"Tax Code" means the Internal Revenue Code of 1986, as amended, and the
rules and regulations promulgated thereunder.
II. PURCHASE AND SALE
2.1. Acquired Assets. Upon the terms and subject to the conditions set
forth in this Agreement, at the Closing Seller shall sell, assign, transfer,
convey and deliver to Buyer free and clear of all Liens, and Buyer shall
purchase, acquire and take assignment and delivery of, all right, title and
interest of Seller in and to the Acquired Assets, including the following:
(a) all Fixed Assets;
(b) all Intellectual Property;
(c) subject to Section 2.2 hereof, all inventory;
(d) subject to Section 2.2 hereof, all Receivables;
(e) all of Seller's contract rights with respect to the Acquired
Assets and the Assumed Obligations;
(f) all computer software documentation, computer software source
codes, computer software modifications and enhancements, computer software
derivative works, all books and records, correspondence, customer lists,
price lists, supplier lists, sales information, computer software and
programs, if any (subject to the rights of third party licensors), and all
advertising, packaging and promotional materials and files relating to the
Acquired Assets or the Business;
(g) all goodwill, other intangible property and causes of action
relating to the Acquired Assets or the Business;
(h) all licenses, certificates, permits and telephone numbers
relating to the Business, to the extent the same are transferable;
(i) the Assumed Contracts;
(j) all current assets, including deposits, prepaid expenses and
accounts receivable;
(k) all books and records relating to the Business and the Acquired
Assets; and
(l) the right to use the name "Rheingold Brewing Co., Inc.," as the
name of Buyer (or one of its operating subsidiaries) following the Closing
as contemplated in Section 7.4 hereof.
2.2. Assumed Obligations. At the Closing, Buyer shall enter into the
Assumption, pursuant to which Buyer shall assume the Assumed Obligations.
2.3. Condition and Quality of Tangible and Intangible Personal Property.
Buyer acknowledges that it has fully and sufficiently inspected all items of
tangible and intangible personal property which are the subject of this
Agreement and agrees and acknowledges that, except for representations and
warranties included herein, a11 such property will be sold by Seller and
accepted by Buyer "AS IS, WHERE IS" with no representations or warranties of any
nature, express or implied, on the part of Seller regarding the condition,
quality or physical characteristics of such assets, including all warranties of
merchantability and of fitness for any specific purpose.
III. PURCHASE PRICE
3.1. Amount. The Purchase Price shall be the sum of (i) $1,050,000,
payable in shares of Common Stock, (ii) $100,000 payable in cash, and (ii) the
assumption by Buyer of the Assumed Obligations.
3.2. Payment of Purchase Price. The Purchase Price shall be paid by Buyer
to Seller in two installments: (i) the first comprising shares of Common Stock
having a FMV of $650,000 and assumption of the Assumed Liabilities, and (ii) the
second comprising shares of Common Stock having a FMV of $400,000 and cash in
the amount of $100,000, the first such installment to be delivered at the
Closing and, subject to the provisions of Section 7.7 hereof, the second such
installment to be delivered at the first anniversary thereof. For the purposes
hereof, the FMV of the Common Stock shall be determined as follows:
(a) The FMV of shares of Common Stock to be delivered at the Closing
shall be the average of the daily closing prices of such shares for each
of the trading days during the period beginning on the day which is 60
calendar days prior to the Closing and ending on the trading day preceding
the Closing; and
(b) The FMV of shares of Common Stock at the first anniversary of
the Closing shall be the average of the daily closing prices of such
shares for each of the trading days during the period beginning on the day
which is 60 calendar days prior to such anniversary, and ending on the
trading day preceding such anniversary; provided, however, that Buyer
shall have the right to elect to pay such second installment of the
Purchase Price entirely in cash on said anniversary.
The closing price for each day referred to in subsection (a) or (b) above shall
be the reported closing price of the Common Stock as reported on the OTC
Bulletin Board ("OTCBB") of the National Association of Securities Dealers, Inc.
or, in case no such closing price is reported on such day, the average of the
closing bid and asked prices regular way for such day reported on the OTCBB or,
on such principal national securities exchange on which the shares of the Common
Stock shall be listed or admitted to trading, or if they are not listed or
admitted to trading on any national securities exchange, but are traded in the
over-the-counter market, the closing sale price of the shares of Common Stock
or, in case no sale is publicly reported, the average of the representative
closing bid and asked quotations for the shares of Common Stock on the National
Association of Securities Dealers Automated Quotation ("NASDAQ") system or any
comparable system, of if the Common Stock is not listed on the NASDAQ system or
a comparable system, the closing sale price of the shares of Common Stock or, in
case no sale is publicly reported, the average of the closing bid and asked
prices as furnished by the National Quotation Bureau, incorporated, or if such
organization is no longer in business, by such other source or sources as the
Board of Directors ("Board") of the Company may reasonably select for that
purpose.
IV. ASSUMPTION OF CONTRACTS AND LIABILITIES
4.1. Assumption. At the Closing, Buyer shall assume and agree to pay,
perform, fulfill and discharge, and shall indemnify and hold Seller harmless
from and against, (i) the Assumed Obligations, and (ii) the portions of the
Purchase Price described in Section 3,2 hereof
4.2. No Other Liabilities. It is expressly agreed and understood that,
except as provided in Sections 4.1 and 4.2 hereof, Buyer is not assuming any
liability or obligation of Seller of any kind or nature whatsoever, whether
accrued or unaccrued, contingent or noncontingent, material or nonmaterial, or
known or unknown as of the Closing Date, including, without limitation, any
liability or obligation (i) for taxes (including sales or transfer taxes) now or
hereafter owed by Seller, or any affiliate or person related to Seller, or
attributable to the Acquired Assets or the Business, and relating to any period,
or any portion of any period, ending on or prior to the Closing Date or to the
sale of the Acquired Assets to Buyer; (ii) under any contract or agreement other
than the Assumed Contracts; (iii) accruing under the Assumed Contracts prior to
the Closing Date; (iv) relating to or arising out of any product manufactured or
sold, or service rendered, by Seller prior to the Closing Date; (v) relating to
or arising out of the relationship between Seller and any employee or
independent contractor, including workers compensation claims; (vi) for monies
due to any third party; or (vii) relating to or arising out of the conduct or
operation of the Business prior to the Closing Date. The transfer of the
Acquired Assets pursuant to this Agreement shall be free and clear of all Liens.
V. CLOSING
5.1. Closing. The closing of the sale and purchase of the Acquired Assets
(the "Closing") shall be held at the offices of Xxxxxxxx Xxxxxxxx, Esq., 000
Xxxxx Xxxxxx, Xxxxx 000, Xxx Xxxx, Xxx Xxxx 00000, and shall occur on or before
(i) October 21, 2005, or (ii) such later date on which the parties hereto may
agree, provided that all of the other conditions precedent set forth in Article
VIII hereof have been satisfied or waived by the applicable party, and further
provided that this Agreement has not been terminated pursuant hereto.
5.2. Transactions at Closing. At or before the Closing, each of the
following shall occur:
(a) Seller shall deliver the Assignment;
(b) Seller shall duly execute and deliver to Buyer the Xxxx of Sale
and such other certificates of title and other instruments of assignment
or transfer with respect to the Acquired Assets, all in such form as is
reasonably acceptable to Buyer's counsel, as Buyer may reasonably request
and as may be necessary to vest in Buyer all of Seller's right, title and
interest in and to the Acquired Assets free and clear of all Liens;
(c) Buyer shall deliver to Seller the shares of Common Stock
representing the first installment of the Purchase Price as provided in
Section 3.2 hereof;
(d) Buyer and Seller shall allocate all expenses under real estate
and equipment leases, to the extent such leases constitute Assumed
Contracts, such that Seller shall be responsible for all rental thereunder
through the date of closing, and Buyer shall be responsible for all rental
thereunder thereafter. Buyer or Seller, as the case may be, shall make an
appropriate payment to the other such party at the Closing to implement
such allocation; and
(e) Buyer and Seller shall duly execute or deliver such certificates
and documents (including officer's and secretary's certificates and
certificates of good standing) and third party consents as may be required
to effectuate the transactions contemplated by this Agreement or as may be
reasonably requested by Buyer or Seller, as the case may be.
VI. REPRESENTATIONS AND WARRANTIES
6.1. Representations of Seller. Seller represents and warrants to Buyer as
follows:
(a) Organization. Seller as of the closing date will be a
corporation duly organized, validly existing and in good standing under
the laws of the State of Delaware, has all requisite power and authority
to own and hold the Acquired Assets owned or held by it, to conduct the
Business as currently conducted by Seller, and is duly licensed or
qualified to do business in each jurisdiction in which the operation of
the Business makes such licensing or qualification necessary;
(b) Authority. (i) Subject to obtaining the approval of
stockholders, as required by Section 7.1 hereof, Seller shall have all
requisite corporate power and authority to execute and deliver this
Agreement and to consummate the transactions contemplated hereby; (ii)
Seller shall have obtained any necessary approvals for the execution and
delivery of this Agreement and the consummation of the transaction
contemplated hereby; and (iii) this Agreement shall have been duly
executed and delivered by Seller and (assuming due authorization,
execution and delivery by Buyer) shall constitute Seller's legal, valid
and binding obligation, enforceable against it in accordance with its
terms;
(c) Non-Contravention. Neither the execution and delivery of this
Agreement by Seller nor the consummation by Seller of the transactions
contemplated hereby shall constitute a violation of or be in conflict
with, constitute or create a default under, or result in the creation or
imposition of any Liens upon any property of Seller pursuant to (i) its
certificate of incorporation or By-laws; (ii) any agreement or commitment
to which Seller is a party or by which Seller or any of its properties are
bound, or to which Seller is subject; or (iii) any law or statute or any
judgment, decree, order, regulation or rule of any court or governmental
or regulatory authority relating to Seller;
(d) Compliance with Laws. Seller has conducted and continues to
conduct the Business so as to comply in all material respects with all
laws and statutes and rules, regulations, judgments, orders or decrees of
any court or governmental or regulatory authority applicable to Seller or
any of its properties or assets, including the Acquired Assets and the
Business, and Seller is not in violation of any such laws, statutes,
rules, regulations, judgments, orders or decrees;
(e) Litigation. Except as set forth on Schedule 6.1(e) hereto, there
are no actions, suits, proceedings or investigations pending or
threatened, relating to or affecting the Business or the Acquired Assets,
or which question the validity of this Agreement or challenge any of the
transactions contemplated hereby or the use of the Acquired Assets or the
conduct of the Business after the Closing by Buyer;
(f) Acquired Assets. Seller owns, and has the unrestricted right to
transfer and assign to Buyer at the Closing, all right, title and interest
in and to the Acquired Assets free and clear of all Liens;
(g) Assumed Contracts. Each of the Assumed Contracts is in full
force and effect as of the date hereof. Seller has performed all
obligations required to be performed by it and is not in default
thereunder, and no event has occurred which, with the lapse of time and/or
giving of notice, would constitute a default by Seller thereunder;
(h) Confidentiality. Seller has taken all commercially reasonable
steps necessary to preserve the confidential nature of a11 material
confidential information (including any proprietary information) with
respect to the Business, Acquired Assets and Assumed Contracts;
(i) Brokers. No broker, finder or investment banker is entitled to
any brokerage, finder's or other fee or commission in connection with the
transactions contemplated by this Agreement based upon arrangements made
by or on behalf of Seller;
(j) Fixed Assets. Schedule 6.1(j) hereto sets forth a true and
complete list and description of the Fixed Assets, which include all of
the manufacturing assets used in the operation of the Business;
(k) Intellectual Property. The Acquired Assets include, and Schedule
6.1 (k) hereto sets forth a true and complete list of, all Intellectual
Property heretofore or currently used or required to be used in connection
with the Business, including, without limitation, all rights to, and
intellectual property regarding, the "Xxxx Xxxxxxxxx" promotional program,
To the best of Seller's knowledge, except as otherwise indicated on said
Schedule, (i) all such Intellectual Property is owned by Seller and is not
subject to any Lien, (ii) no product manufactured or sold, and no
manufacturing process or Intellectual Property used by Seller in
connection with the Business infringes or has infringed upon any
intellectual property of others, and (iii) Seller has not received any
notification or claim of infringement by Seller of any intellectual
property from any person and is not aware of a basis for any such claim;
(1) Pabst Consent. Pabst has, pursuant to its contract rights to
negotiate for and consummate the purchase of Seller or an interest therein
as provided in Section 11 of the Rheingold License (the "Pabst Rights"),
been given adequate, timely, and proper notice of the instant transaction,
and has allowed the time frame within which to exercise its Pabst Rights
to lapse, therefore permitting the instant transaction to proceed; and
(m) Securities Law Matters. Seller has determined that, except as
shown on schedule 6.1(m) hereto, (i) each of its stockholders (the
"Stockholders") meets the definition of an "accredited investor" contained
in Section 5.03 of Regulation D promulgated by the SEC under the
Securities Act, (ii) each of such Stockholders has acknowledged that the
shares of Common Stock to be received upon. the dissolution of Seller will
be "restricted securities" as defined in Rule 144 as promulgated by the
SEC which may be sold only as provided in said Rule unless Buyer is
satisfied that another exemption from the Securities Act is available, and
(iii) Seller has provided its Stockholders with materials and information
concerning Buyer and the transactions proposed to be carried out pursuant
hereto, copies of which have been provided to Buyer, which materials and
information do not contain any untrue statement of a material fact or omit
to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were mad, not
misleading.
6.2. Representations of Buyer. Buyer represents and warrants to Seller as
follows:
(a) Binding Effect. This Agreement has been duly executed and
delivered by Buyer and (assuming due execution and delivery by Seller)
constitutes the legal, valid and binding obligation of Buyer and,
enforceable against Buyer in accordance with its terms;
(b) Authorized Shares. Buyer has sufficient authorized but unissued
shares of Common Stock available to deliver to Seller and to enable Seller
to pay the Purchase Price for the Acquired Assets in accordance with the
terms of this Agreement;
(c) Non-Contravention. Neither the execution and delivery of this
Agreement by Buyer nor the consummation by Buyer of the transactions
contemplated hereby shall constitute a violation of, or be in conflict
with, constitute or create a default under, or result in the creation or
imposition of any Liens upon any property of Buyer pursuant to (i) any
agreement or commitment to which Buyer is a party or by which Buyer or any
of its properties are bound, or to which Buyer is subject; or (ii) any law
or statute or any judgment, decree, order, regulation or rule of any court
or governmental or regulatory authority relating to Buyer;
(d) Governmental Consents. There are no consents, approvals or
authorizations of, or registrations, qualifications or filings with,
governmental or regulatory agencies or authorities necessary in connection
with the execution and delivery of this Agreement by Buyer or for the
consummation by Buyer of the transactions contemplated hereby;
(e) Litigation. There are no actions, suits, proceedings or
investigations pending or threatened against either Buyer which question
the validity of this Agreement or challenge any of the transactions
contemplated hereby; and
(f) Brokers. No broker, finder or investment banker is entitled to
any brokerage, finder's or other fee or commission in connection with the
transactions contemplated by this Agreement based upon arrangements made
by or on behalf of Buyer.
(g) Compliance with Laws. Buyer has conducted and continues to
conduct its business so as to comply in all material respects with all
laws and statutes and rules, regulations, judgments, orders or decrees of
any court or governmental or regulatory authority applicable to Buyer or
any of its properties or assets, and Buyer is not in violation of any such
laws, statutes, rules, regulations, judgments, orders or decrees.
VII. COVENANTS
7.1. Stockholder Approval. Seller shall obtain the approval of its
Stockholders to the entering into of this Agreement and performance of a11 the
obligations of Seller contemplated hereby, and shall present to Buyer evidence
thereof, not later than five business days following the execution hereof.
7.2. Conduct of Business Prior to Closing. Prior to the Closing, Seller
shall continue to operate the Business only in the ordinary and usual course and
consistent with Seller's past practices. Without limiting the generality of the
foregoing, Seller shall use all commercially reasonable efforts and diligence
(i) to preserve the business operations of Seller and the Business intact, (ii)
to keep available the services of its current personnel, (iii) to preserve in
full force and effect and to perform the contracts, agreements, instruments,
leases, and licenses of Seller, and the arrangements and understandings of
Seller, (iv) to preserve the goodwill of Seller's suppliers, customers,
community and others having relations with Seller, (v) to continue in full force
and effect a11 binders and policies of insurance of Seller and (vi) to continue
its advertising and promotional activities, if any, and pricing and purchasing
policies, in accordance with past practices.
7.3. Access. From the date hereof until the Closing, upon reasonable
notice, Seller shall, and shall cause its officers, directors, employees, agents
and counsel to (i) afford the officers, employees, and authorized agents,
accountants, counsel and financing sources and representatives of Buyer
reasonable access, during normal business hours, to the offices, properties,
other facilities, books and records of Seller and to those officers, directors,
employees, agents, accountants and counsel of Seller who have knowledge relating
to the Business, and (ii) furnish to the officers, employees and authorized
agents, accountants, counsel, financing sources and representatives of Buyer
such additional financial and operating data and other information regarding the
Business and the Acquired Assets as Buyer from time to time may reasonably
request.
7.4. Use of Corporate Name. Seller agrees that, promptly following the
Closing, it shall file a change of name certificate with the Secretary of State
of Delaware, changing the corporate name of Seller to one not containing the
word "Rheingold," and consents to Buyer, should Buyer so elect in its sole
discretion, to establish a subsidiary to be called "Rheingold Brewing Company,
Inc." or a variation thereof. Seller hereby appoints Buyer or its designee as
Seller's attorney-in-fact, and ratifies and approves all of Buyer's acts as such
attorney-in-fact, to file the aforesaid change-of-name certificate on behalf of
Seller. This is a power coupled with an interest and as such is irrevocable
until the change of name contemplated herein has been satisfied.
7.5. Retention of Records. In order to facilitate the resolution of any
claims made by or against or incurred by Buyer, for a period of three years
after Closing, Seller shall (i) retain the books and records of Seller which are
not transferred to Buyer pursuant to this Agreement relating to periods prior to
the Closing in a manner reasonably consistent with the prior practices of
Seller, and (ii) upon reasonable notice, afford the officers, employees and
authorized agents and representatives of Buyer reasonable access (including the
right to make, at Buyer's expense, photocopies), during normal business hours,
to such books and records.
7.6. Collection of Receivables. In the event any payment for an account
receivable is delivered to Seller or any affiliate of Seller after Closing,
Seller shall, or shall cause its affiliate to, deliver such payment to Buyer
promptly and in any event within ten days of receipt thereof.
7.7. Post-Closing Audit. In the event that, within six months of the
Closing, Buyer conducts a post-Closing accounting review and, as a result
thereof, determines that the Company's Net Working Capital was less than the
amount thereof required by Section 8.1(d) hereof, Buyer shall be entitled to
deduct the aggregate of (i) any shortfall in Net Working Capital between the
actual (as determined by such accounting review) and required amount thereof,
from required FMV of the second installment of the Purchase Price; provided,
however, that in the event that a dispute arises between Buyer and Seller as to
any amount or amounts determined in such accounting review, Buyer and Seller
shall each designate an accountant to resolve such dispute and such accountants
shall endeavor to agree on the amounts in question, failing which such
accountants shall agree on a third accountant, which is unaffiliated with either
Buyer or any of Seller, who shall determine the amount or amounts in question.
7.8. Covenants regarding Allocation of Purchase Price. Prior to the
Closing, the parties shall agree on an allocation of the Purchase Price among
the acquired assets in a manner which complies with the requirements of the Tax
Code. The parties agree that (i) the respective federal, state, local and
foreign tax returns to be filed by each of them shall reflect such allocation,
(ii) they shall cooperate in the preparation of such forms, and (iii) neither of
them shall take any position contrary to such allocation in any tax return, in
any refund claim, in any litigation, or otherwise, unless otherwise required to
do so under applicable law.
VIII. CONDITIONS OF CLOSING
8.1. Conditions to Buyer's Obligations. The obligation of Buyer to
consummate the Closing shall be subject to the satisfaction at or prior to the
Closing of each of the following conditions (to the extent noncompliance is not
waived in writing by Buyer in Buyer's sole and absolute discretion), unless the
failure of any such condition to 'be satisfied shall be the fault of Buyer:
(a) Representations. The representations and warranties made by
Seller in or pursuant to this Agreement shall be true and correct in all
material respects at and as of the Closing Date with the same effect as
though such representations and warranties had been made or given at and
as of the Closing Date;
(b) Compliance with Agreement. Seller shall have performed and
complied in all material respects with all of its covenants and other
obligations under this Agreement to be performed or complied with on or
prior to the Closing Date;
(c) Compliance with the Law. No litigation shall be pending which
purports to restrain or prevent the transactions contemplated by this
Agreement, and Seller and Buyer shall have complied with all applicable
requirements of statutes and governmental orders, regulations and rules
relating to the transactions contemplated by this Agreement and the
Closing hereunder;
(d) Net Working Capital. The Net Working Capital of Seller at the
Closing Date shall not be less than ($9,000) ; and
(e)Stockholder Information. Seller shall have advised Buyer of the
residences and numbers of shares of capital stock of Seller owned by each
Stockholder to enable Buyer to prepare and file a Form D relating to the
issuance of Common Stock contemplated hereby and to make such filings as
may he required pursuant to the blue sky laws of the jurisdictions in
which such Stockholders reside.
8.2. Conditions to Seller's Obligations. The obligation of Seller to
consummate the Closing shall be subject to the satisfaction at or prior to the
Closing of each of the following conditions (to the extent noncompliance is not
waived in writing by Seller in Seller's sole and absolute discretion), unless
the failure of any such condition to be satisfied shall be the fault of Seller:
(a) Representations. The representations and warranties made by
Buyer in or pursuant to this Agreement shall be true in all material
respects at and as of the Closing Date with the same effect as though made
or given at and as of the Closing Date;
(b) Compliance with Agreement. Buyer shall have performed mid
complied in all material respects with a11 of its covenants and other
obligations under this Agreement to be performed or complied with at or
prior to the Closing Date; and
(c) Compliance with the Law. No litigation shall be pending which
purports to restrain or prevent the transactions contemplated by this
Agreement, and Seller and Buyer shall have complied with all applicable
requirements of statutes and governmental orders, regulations and rules
relating to the transactions contemplated by this Agreement and the
Closing hereunder.
IX. TERMINATION
9.1. Termination. This Agreement may be terminated and the transactions
contemplated hereby may be abandoned at any time prior to the Closing Date:
(a) by mutual written consent of Buyer and Seller;
(b) by either Buyer or Seller if, without fault of the party seeking
termination, the Closing shall not have occurred on or before December 31,
2005;
(c) by either Buyer or Seller if, without fault of the party seeking
termination, any court of competent jurisdiction in the United States or
any other United States governmental authority shall have issued an order,
decree or ruling, or taken any other action restraining, enjoining or
otherwise prohibiting the transactions contemplated hereby, and such
order, decree, ruling or other action shall not have been reversed by a
final and nonappealable order; or
(d) by either Buyer or Seller, if the other party hereto shall have
materially breached the representations and warranties set forth in
Article VI hereof or otherwise failed to perform any of its material
covenants and agreements in this Agreement.
9.2. Effect of Termination. In the event of the termination of this
Agreement pursuant to Section 8.1 hereof, (i) this Agreement shall forthwith
become null and void and have no further force and effect, and (ii) neither of
the parties hereto nor any of their respective directors, officers,
stockholders, members, affiliates, representatives or advisors shall have any
further obligation or liability under the provisions hereof.
X. MISCELLANEOUS
10.1. Risk of Loss. Seller shall be responsible for any casualty loss to
the Acquired Assets prior to the Closing. In the event of any such loss, Seller
shall give written notice thereof to Buyer within one business day and, to the
extent insurance proceeds are available to remedy such loss, Seller shall
proceed to remedy such loss. If the loss is not remedied within 60 days after
the occurrence thereof, regardless of the reason therefor, Buyer shall have the
right to terminate this Agreement by giving written notice to Seller within five
business days after the expiration of such 60-day period. If such notice is not
given by Buyer within such five business day period, the Closing shall take
place as provided herein, and the Purchase Price shall be appropriately adjusted
to reflect such loss.
10.2. Expenses. All expenses of the preparation, execution and
consummation of this Agreement and of the transactions contemplated
hereby including the fees and disbursements of attorneys,
accountants, and outside advisors, shall be borne by the party
incurring such expenses. Any taxes in the nature of a sales, use
and/or transfer tax imposed or payable in connection with the sale
or transfer of the Acquired Assets shall be paid by Seller.
10.3. Non-Agency. Nothing in this Agreement shall be construed to
constitute either party the agent of the other or to constitute the
parties as members of a joint venture of partners, nor shall any
similar relationship be deemed to exist between them.
10.4. Severability. If any provision of this Agreement shall be determined
to be invalid or unenforceable by any arbitrators, any court of law
or any government agencies, the remaining provisions shall be
severable and enforceable in accordance with their terms so long as
this Agreement without such invalid or unenforceable provision does
not fail of its essential purpose or purposes. The parties shall
negotiate in good faith to replace any such invalid or unenforceable
provision or provisions with suitable provisions which shall
maintain the economic purposes and intentions of this Agreement.
10.5. Notices. Any notice to be given hereunder shall be in writing and
shall be deemed duly given (i) upon mailing a confirmation by first
class mail, postage prepaid, of a facsimile or e-mail transmission,
(ii) when sent by overnight delivery by courier, or (iii) when
mailed by registered or certified mail return receipt requested and
postage prepaid:
(a) if to Seller, addressed to: Rheingold Brewing Company, Inc. 000 Xxxx
00xx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx Xxxxxx
With a copy to:
Xxxxxxx X. Xxxxxxx, Esq.
Xxxxxxxx Xxxxxxxxx P.C.
0 Xxxxx Xxxxxxxxx Xxxxx
Xxx Xxxx, XX 00000
(b) if to Buyer, addressed to: Drinks Americas Holdings, Ltd, 000
Xxxxxxx Xxxx Xxxxxx, Xxxxxxxxxxx 00000
Attention: Mr. Xxxxxxx Xxxxx
with a copy to:
Xxxxxxxx Xxxxxxxx, Esq.
000 Xxxxx Xxxxxx, Xxxxx 000
Xxx Xxxx, Xxx Xxxx 00000
or to such other address as either party hereto shall designate in writing to
the other party.
10.6. Entire Agreement. This Agreement constitutes the entire agreement
between the parties hereto pertaining to the subject matter hereof and
supersedes all prior agreements and understandings of the parties hereto,
whether written or oral, in connection therewith. No modification of any of the
terms and conditions of this Agreement shall be valid unless contained in a
written instrument signed by both parties hereto.
10.7. Waiver. A waiver by either party hereto of any particular default or
breach by the other party shall not affect or prejudice the rights of the
aggrieved party with respect to any other default or breach whether of the same
or different nature.
10.8. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York applicable to agreements made
and to be performed wholly within such State.
10.9. Jurisdiction and Venue. Each of the parties hereto hereby consents
to the exclusive jurisdiction of the state or federal courts located in the
Borough of Manhattan, New York, and agrees that any action concerning a dispute
arising out of or relating to this Agreement shall be brought in any such court
and that process, notice of motion, or other application of the court, or a
judge thereof, or any notice in connection with the proceedings provided for
herein may be served within or without the State of New York as provided herein
for the serving of notices hereunder.
10.10. Captions. The captions heading each Article of this Agreement are
for convenience only and shall have no effect on the interpretation on meaning
of this Agreement.
10.11. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, and it shall not be
necessary in making proof of this Agreement to produce or account for more than
one such counterpart.
10.12. Assigns. This Agreement shall be binding upon and shall inure to
the benefit of each of parties hereto and their respective successors and
permitted assigns. Neither this Agreement, nor the obligations of any party
hereunder, shall be assignable or transferable by any such party without the
prior written consent of the other party hereto; provided., however, Buyer shall
have the right to assign its rights and obligations hereunder to an affiliate of
Buyer without the prior written consent of Seller so long as Buyer remains
liable hereunder as if no assignment had occurred.
10.13.Surviving Provisions. Upon the expiration or termination of this
Agreement, each of Buyer's and Seller's obligations under Section 8 hereof and
such other provisions hereof which by their terms are not clearly intended to
expire upon such expiration or termination or at a specified time thereafter,
shall survive such expiration or termination or lapse of such specified time.
10.14. Specific Performance. The parties hereto agree that irreparable
damage would occur in the event any provision of this Agreement was not
performed in accordance with the terms hereof and that the parties shall be
entitled to specific performance of the terms hereof, in addition to any other
remedy at law or equity without the necessity of demonstration of inadequacy of
monetary damages
IN WITNESS WHEREOF, each of the parties hereto have caused this Agreement
to be duly executed and delivered by its respective duly authorized
representative as of the date and year set forth above.
Buyer:
DRINKS AMERICAS HOLDINGS, LTD.
By: _____________________________________
Seller:
RHEINGOLD BREWING COMPANY, INC,
By: _____________________________________
