AMENDMENT TO THE AMENDED AND RESTATED VOTING AGREEMENT DATED FEBRUARY 24, 2014

Exhibit 10.36

AMENDMENT TO THE AMENDED AND RESTATED VOTING AGREEMENT DATED FEBRUARY 24, 2014

Amending agreement made on December 15, 2014 (the “Agreement”) to the amended and restated voting agreement dated February 24, 2014 (the “Amended and Restated Voting Agreement”) entered into by and among Highland Consumer Fund I Limited Partnership (“Highland I”), Highland Consumer Fund I-B Limited Partnership (“Highland 1-B”), Highland Consumer Entrepreneurs Fund I Limited Partnership (“Highland Entrepreneurs” and, collectively with Highland I and Highland I-B, “Highland”), Whil Concept Inc. (“WilsonCo”), Xxxxx Xxxxx (“X. Xxxxx”), Rainy Day Investments Ltd. (“Rainy Day”), Capital GVR Inc. (“Capital GVR”), Xxxxxx San Xxxx (“J. San Xxxx”), Xxxxxx X. Xxxxxxxx, XX Marital Deduction Trust uad 8/11/2011 (“X. Xxxxxxxx Trust”), 9222-2116 Québec Inc. (“X. Xxxxxxx Holding”) and Mogey Inc. (“Mogey” and, collectively with Highland, WilsonCo, X. Xxxxx, Rainy Day, Capital GVR, J. San Xxxx, X. Xxxxxxxx Trust and X. Xxxxxxx Holding, the “Shareholders”) and DAVIDsTEA Inc. (the “Company”).

WHEREAS the Company and the Shareholders entered into the Amended and Restated Voting Agreement to provide the Shareholders with among other rights, rights with respect to the designation and the election of certain members of the board of directors of the Company and to set forth their agreements and understandings with respect to how the share capital of the Company held by them will be voted on, or tendered in connection with, an acquisition of the Company.

WHEREAS the Company wishes to increase the size of the board of directors from eight (8) directors to ten (10) directors.

WHEREAS on December 15, 2014, the articles of the Company were amended and restated in order to create a fourth series of Preferred Shares designated as Series A-2 Preferred Shares.

WHEREAS, pursuant to Section 6.9 of the Amended and Restated Voting Agreement, the Amended and Restated Voting Agreement may be amended by a written instrument executed by (a) the Company; (b) the holders of a majority of the Common Shares and the Junior Preferred Shares (acting together as a single class and on an as­ converted basis); and (c) the holders of a majority of the Common Shares issued or issuable upon conversion of Series A Preferred Shares and Series A-1 Preferred Shares held by the Investors (acting together as a single class) (the holders referred to in (b) and (c) above herein collectively referred to as the “Majority Holders”).

WHEREAS the Company and the Majority Holders wish to amend the terms of the Amended and Restated Voting Agreement to reflect the revised size of the board of directors to ten (10) directors and the creation of the Series A-2 Preferred Shares;

WHEREAS this Agreement has been executed by the Company and the Majority Holders.

In consideration of the foregoing and the mutual agreements contained in this Agreement, the receipt and adequacy of which are acknowledged, the parties agree as follows:

Section 1 Defined Terms.

Capitalized terms used in this Agreement and not otherwise defined herein shall have the meanings given to them in the Amended and Restated Voting Agreement.

Section 2 Amendment.

1) The reference to “each holder of the Company’s Series A-1 Preferred Shares (the “Series A-1 Preferred Shares”)” in the title of the Amended and Restated Voting Agreement is deleted and replaced by “each holder of the Company’s Series A-1 Preferred Shares (the “Series A-1 Preferred Shares”) and the Company’s Series A-2 Preferred Shares (the “Series A-2 Preferred Shares”).”

2) The definition of “Preferred Shares” in the title of the Amended and Restated Voting Agreement is deleted and replaced as follows:

“The Series A Preferred Shares, the Series A-1 Preferred Shares, the Series A-2 Preferred Shares and the Junior Preferred Shares are collectively defined as the “Preferred Shares.”

3) Section 1.1 of the Amended and Restated Voting Agreement is deleted and replaced as follows:

“Each Shareholder agrees to vote, or cause to be voted, all Shares (as defined below) owned by such Shareholder, or over which such Shareholder has voting control, from time to time and at all times, in whatever manner as shall be necessary to ensure that the size of the Board shall be set and remain at ten (10) directors.  For purposes of this Agreement, the term “Shares” shall mean and include any securities of the Company the holders of which are entitled to vote for members of the Board, including without limitation, all Common Shares, Junior Preferred Shares, Series A Preferred Shares, Series A-1 Preferred Shares and Series A-2 Preferred Shares, by whatever name called, now owned or subsequently acquired by a Shareholder, however acquired, whether through share splits, share dividends, reclassifications, recapitalizations, similar events or otherwise.”

4) The reference to “Series A Preferred Shares or Series A-1 Preferred Shares” in Section 1.2(a) of the Amended and Restated Voting Agreement is deleted and replaced by “Series A Preferred Shares, Series A-1 Preferred Shares or Series A-2 Preferred Shares.”

5) Section 1.2(d) of the Amended and Restated Voting Agreement is deleted and replaced as follows:

“Three (3) independent directors (collectively, the “Independent Directors” and each, an “Independent Director”).  The Independent Directors shall be proposed by Rainy Day and approved by Highland.  In this regard, Rainy Day shall provide suggested names

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of candidates to act as Independent Directors.  Thereafter, Highland shall indicate which names proposed by Rainy Day may be approached by Rainy Day and Highland.  Rainy Day and Highland will then determine, from the names proposed by Rainy Day and accepted by Highland, who among them are both ready and interested to serve and invest as contemplated above, at which point Highland and Rainy Day shall each interview these individuals.  Highland will then communicate which of such individuals, if any, whom it has interviewed are acceptable to it, and Rainy Day shall select an individual from the names approved by Highland to be an Independent Director, or, if none of the names interviewed by Highland is acceptable to Rainy Day, Rainy Day shall then provide other potential candidates to Highland, who will be subject to the above process.  Once determined in accordance with the foregoing, an Independent Director may only be removed by agreement of Highland and Rainy Day in accordance with Section 1.4(c).  One of the Independent Directors, as agreed upon by Rainy Day and Highland, shall act as Chair of the Board as long as he or she remains involved with the Company and maintains an investment in the Company, either directly or indirectly through a holding company controlled by him or her, equal to at least $500,000 or such other higher amount agreed upon by Rainy Day and Highland.  In accordance with the foregoing provisions, it is hereby acknowledged that Xxxxx XxXxxxxxx and Xxx Xxxxxx have been approved by both Highland and Rainy Day to act as the two other Independent Directors.”

6) The reference to “the Series A Preferred Shares and the Series A-1 Preferred Shares” in Sections 2.2 and 2.4 of the Amended and Restated Voting Agreement is deleted and replaced by “the Series A Preferred Shares, the Series A-1 Preferred Shares and the Series A-2 Preferred Shares.”

7) The reference to “Series A Preferred Shares and Series A-1 Preferred Shares” in Section 6.9 of the Amended and Restated Voting Agreement is deleted and replaced by “Series A Preferred Shares, Series A-1 Preferred Shares and Series A-2 Preferred Shares.”

8) All other provisions of the Amended and Restated Voting Agreement remain in full force and effect, unamended.

Section 3 Governing Law.

This Agreement shall be governed by and interpreted and enforced in accordance with the laws of the Province of Québec and the federal laws of Canada applicable therein.

Section 4 Counterparts.

This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original, and all of which taken together shall be deemed to constitute one and the same instrument.  Delivery of an executed counterpart of a signature page to this Agreement by telecopy or electronic delivery shall be effective as delivery of a manually executed counterpart of this Agreement.

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Section 5 Language.

The parties hereto have expressly agreed that this Agreement, as well as all documents which relate to it, be drafted in English.  Les parties aux preséntes ont expressement requis que cette entente ainsi que tous les documents s’y rattachant soient rédigés en anglais.

[Signature page follows]

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IN WITNESS WHEREOF, the undersigned have duly executed this Agreement as of the date first above written.

DAVIDsTEA INC.
By:	/s/ Authorized Person
	Authorized Signatory
WHIL CONCEPTS INC.			RAINY DAY INVESTMENTS LTD.
By:			By:	/s/ Authorized Person
	Authorized Signatory			Authorized Signatory
HIGHLAND CONSUMER FUND I LIMITED PARTNERSHIP, represented by its general partner, HIGHLAND CONSUMER GP LIMITED PARTNERSHIP, itself represented by its general partner, HIGHLAND CONSUMER GP GP LLC			HIGHLAND CONSUMER FUND I-B LIMITED PARTNERSHIP, represented by its general partner, HIGHLAND CONSUMER GP LIMITED PARTNERSHIP, itself represented by its general partner, HIGHLAND CONSUMER GP GP LLC
By:	/s/ Authorized Person		By:	/s/ Authorized Person
	Authorized Signatory			Authorized Signatory
HIGHLAND CONSUMER ENTREPRENEURS FUND I LIMITED PARTNERSHIP, represented by its general partner, HIGHLAND CONSUMER GP LIMITED PARTNERSHIP, itself represented by its general partner, HIGHLAND CONSUMER GP GP LLC
By:	/s/ Authorized Person		/s/ Xxxxx Xxxxx
	Authorized Signatory		Xxxxx Xxxxx

XXXXXX X. XXXXXXXX, XX MARITAL DEDUCTION TRUST UAD 8/1/2011, represented by Xxx Xxxxxxxx, as Trustee of the Trust			CAPITAL GVR INC.
By:	/s/ Xxxxxx X. Xxxxxxxx		By:	/s/ Authorized Person
	Xxxxxx X.Xxxxxxxx			Authorized Signatory
9222-2116 QÉBEC INC.
By:	/s/ Authorized Person
	Authorized Signatory

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COUNTERPART TO AGREEMENTS

THIS INSTRUMENT forms part of the Amended and Restated Voting Agreement dated as of February 24, 2014, as amended (the “Amended and Restated Voting Agreement”), the Amended and Restated Right of First Refusal and Co-Sale Agreement dated as of February 24, 2014, as amended (the “Amended and Restated Right of First Refusal Agreement”) and the Amended and Restated Investors’ Rights Agreement dated as of February 24, 2014, as amended (the “Amended and Restated Investors’ Rights Agreement” and together with the Amended and Restated Voting Agreement and the Amended and Restated Right of First Refusal Agreement, the “Agreements”), by and among DAVIDsTEA Inc. (the “Corporation”) and its shareholders, as such Agreements may be further amended or further amended and restated from time to time.  Unless otherwise defined herein, all capitalized terms shall have the meanings ascribed to them in the Agreements.

The undersigned hereby acknowledges having received a copy of the Agreements, having read the Agreements in their entirety and having been given the opportunity to consult with independent legal counsel.  In connection with the issuance of 20,309 Series A-2 Preferred Shares of the Corporation (the “Issued Securities”) to the undersigned and in connection with all awards of stock options to the undersigned, the undersigned hereby agrees to be joined as (i) a Director Investor Preferred Holder to the Amended and Restated Voting Agreement, (ii) a Key Holder to the Amended and Restated Right of First Refusal and Co-Sale Agreement and (iii) a Director Investor to the Amended and Restated Investors’ Rights Agreement as if he was an original party thereto and acknowledges and agrees that he, the Issued Securities and any other securities of the Corporation owned by him shall be subject to, and bound by the terms and conditions of, the Agreements.

[signature page follows]

Dated: November 28, 2014.

/s/ Xxx Xxxxxx

Xxx Xxxxxx

ACCEPTED AND AGREED:

DAVIDsTEA INC.

By:

Authorized Signatory

Dated: December 15, 2014.
		Xxx Xxxxxx
ACCEPTED AND AGREED:
DAVIDsTEA INC.
By:	/s/ Authorized Person
	Authorized Signatory

Dated: December 15, 2014.
		/s/ Xxxxx XxXxxxxxx
		XXXXX XXXXXXXXX
ACCEPTED AND AGREED:
DAVIDsTEA INC.
By:	/s/ Authorized Person
	Authorized Signatory

WHIL CONCEPTS INC.			RAINY DAY INVESTMENTS LTD.
By:			By:	/s/ Xxxxxxxx Xxxxx
	Authorized Signatory			Authorized Signatory
HIGHLAND CONSUMER FUND I LIMITED PARTNERSHIP, represented by its general partner, HIGHLAND CONSUMER GP LIMITED PARTNERSHIP, itself represented by its general partner, HIGHLAND CONSUEMR GP GP LLC			HIGHLAND CONSUMER FUND I-B LIMITED PARTNERSHIP, represented by its general partner, HIGHLAND CONSUMER GP LIMITED PARTNERSHIP, itself represented by its general partner, HIGHLAND CONSUMER GP GP LLC
By:	/s/ Authorized Person		By:	/s/ Authorized Person
	Authorized Signatory			Authorized Signatory
HIGHLAND CONSUMER ENTREPRENEURS FUND I LIMITED PARTNERSHIP, represented by its general partner, HIGHLAND CONSUMER GP LIMITED PARTNERSHIP, itself represented by its general partner, HIGHLAND CONSUMER GP GP LLC
By:	/s/ Authorized Person		/s/ Xxxxx Xxxxx
	Authorized Signatory		Xxxxx Xxxxx
XXXXXX X. XXXXXXXX, XX MARITAL DEDUCTION TRUST UAD 8/1/2011, represented by Xxx Xxxxxxxx, as Trustee of the Trust			CAPITAL GVR INC.
By:	/s/ Xxx Xxxxxxxx		By:	/s/ Authorized Person
	Xxx Xxxxxxxx			Authorized Signatory
9222-2116 QUÉBEC INC.
By:
	Authorized Signatory