FIRST AMENDMENT AND JOINDER TO PLEDGE AGREEMENT
FIRST
AMENDMENT AND JOINDER TO
This First Amendment and Joinder (this
“Amendment”) to
that certain Pledge Agreement dated June 18, 2009 entered into by and among St.
▇▇▇▇▇▇ Investments, LLC, an Illinois limited liability company (the “Investor”), Drinks
Americas Holdings LTD., a Delaware corporation (the “Company”), J. ▇▇▇▇▇▇▇
▇▇▇▇▇, an individual and affiliate of the Company, and certain other affiliate
signatories (the “Affiliates”), and ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, an individual and
affiliate of the Company (the “Additional Pledgor”),
is made and entered into by and among the parties this 28th day of August,
2009.
WHEREAS, the Additional
Pledgor is an affiliate of the Company and would personally benefit from a
prepayment by the Investor (the “Prepayment”) of a portion of that certain St.
▇▇▇▇▇▇ 7 Month Secured Purchase Note dated June 18, 2009 (the “Purchase Note”);
and
WHEREAS, in consideration of
such benefit to the Additional Pledgor, and in order to induce the Investor to
make the Prepayment, the Additional Pledgor desires to become a party to the
Pledge Agreement and pledge, according to the terms hereof and of the Pledge
Agreement, one million two hundred sixty three thousand two hundred thirty five
(1,263,235) shares (the “Additional Collateral
Shares”) of the Common Stock of the Company; and
WHEREAS, the Affiliates
likewise desire and believe it is in their best interests that the Investor to
make the Prepayment and that the Additional Pledgor pledge the
shares.
NOW THEREFORE, in
consideration of the Prepayment, and other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the Additional Pledgor
hereby agrees as follows:
Definitions and
Recitals. Capitalized terms used in this Amendment but not
otherwise defined have the respective meanings set forth in the Pledge
Agreement. The recitals set forth above are incorporated in this
Amendment by reference and made contractual in nature.
Joinder. The
Additional Pledgor hereby joins in and agrees to be bound by each and all of the
provisions of the Pledge Agreement as an “Affiliate” thereunder. The
Additional Pledgor further agrees to execute and deliver all other documents and
instruments and take all other actions required under or pursuant to the Pledge
Agreement or as may be reasonably required by the Company or the Investor in
connection herewith.
Delivery of Collateral
Shares. The Additional Pledgor shall, contemporaneous with the
delivery of this Amendment, deliver the Additional Collateral Shares in
accordance with the terms of the Section 1 of the Pledge Agreement and agrees to
fulfill in a timely manner all other covenants, promises and obligations of the
Affiliates in the Pledge Agreement.
Stock
Power. The Additional Pledgor shall complete, sign (with a
signature guaranty) and, contemporaneous with the delivery of this Amendment,
deliver the Stock Power attached hereto as Exhibit A (or a stock power of
equivalent, binding effect) to the Investor.
Representations and
Warranties. The Additional Pledgor hereby represents and
warrants that each representation and warranty contained in the Pledge Agreement
is true and correct with respect to the Additional Pledgor as of the date
hereof, as if such representations and warranties were set forth at length
herein.
Other Terms
Unchanged. The Pledge Agreement, as amended by this Amendment,
remains and continues in full force and effect, constitutes a legal, valid, and
binding obligation of the Company, and is in all respects agreed to, ratified,
and confirmed. Any reference to the Pledge Agreement after the date of this
Amendment is deemed to be a reference to the Pledge Agreement as amended by this
Amendment. If there is a conflict between the terms of this Amendment
and the Pledge Agreement, the terms of this Amendment shall
control.
Headings. The
headings contained in this Amendment are for reference purposes only and do not
affect in any way the meaning or interpretation of this Amendment.
Governing
Law. This Agreement shall be governed and construed under the
laws of the State of Illinois, without regard to conflicts of laws
principles. The Company hereby consents to the jurisdiction of any
competent court within the State of Illinois and consents to service of process
by any means authorized by Illinois law in any action brought under or arising
out of this Amendment.
Counterparts. This
Amendment may be executed in any number of counterparts with the same effect as
if all signing parties had signed the same document. All counterparts
shall be construed together and constitute the same instrument. The
exchange of copies of this Amendment and of signature pages by facsimile
transmission or other electronic transmission (including email) shall constitute
effective execution and delivery of this Amendment as to the parties and may be
used in lieu of the original Amendment for all purposes. Signatures
of the parties transmitted by facsimile transmission or other electronic
transmission (including email) shall be deemed to be their original signatures
for all purposes.
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IN WITNESS WHEREOF, the
Additional Pledgor has caused this Addendum to be executed and delivered to each
of the Company, the Affiliates and the Investor as of the date first written
above.
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By: ________________________________
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Its: ________________________________
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INVESTOR:
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ST.
▇▇▇▇▇▇ INVESTMENTS, LLC
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By: _______________________________
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Its: _______________________________
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THE
NEW PLEDGOR:
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By: _______________________________
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▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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THE
AFFILIATES:
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By: _______________________________
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By: _______________________________
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By: _______________________________
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By: _______________________________
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By: _______________________________
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By: _______________________________
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EXHIBIT
A
STOCK
POWER
For Value Received, ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ does hereby transfer unto St. ▇▇▇▇▇▇ Investments, LLC one million two
hundred sixty three thousand two hundred thirty five (1,263,235) shares of the
common stock, of Drinks Americas Holdings, Ltd., a Delaware corporation,
standing in the name on the books of the corporation and represented by
Certificate No. [ ] and does hereby irrevocably
constitute and appoint St. ▇▇▇▇▇▇ Investments, LLC its attorney-in-fact to
transfer the said stock on the said books of the corporation with full power of
substitution in the premises.
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Dated: _____
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_____________________________
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▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, an individual
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