exhib-3.htm


    
      

      

    

    EXHIBIT
      10.3

     

    VOTING
      AGREEMENT

    


    


    THIS
      VOTING AGREEMENT is made and entered into as of this 11th day of January, 2008,
      by and among Sapphire Developments Limited, a Belize corporation ("Sapphire"),
      Atlantic Wine Agencies, Inc., a Florida corporation (“Atlantic”) and Fairhurst
      Properties S.A., a B.V.I. corporation ("Fairhurst"). Sapphire and Fairhurst
      shall sometimes be referred to herein as the “Parties” and together
      collectively, the “Parties”).  

     

    RECITALS

     

    A.           
      Concurrently with the execution of this Agreement, the Parties are entering
      into
      a Debt Restructuring Agreement (the “Debt Restructuring Agreement”)
      providing for the restructuring of certain debt owed by Atlantic Wine Agencies,
      Inc. (“Company”) to
      Sapphire and in connection with that agreement the Parties agree to vote their
      respective shares together with respect to Company’s members of its board of
      directors (“Board”) and
      the size of such Board.

     

     B.           
      The parties also desire to enter into this Agreement to set forth their
      agreements and understandings with respect to how shares of the Company’s
      capital stock held by them will be voted on with respect an acquisition or
      merger to which the Company is a party.

     

    NOW,
      THEREFORE, the parties agree as follows:

     

    1.           
      Voting
      Provisions Regarding Board of Directors and Corporate
      Transaction.

    


    1.1           
      Size
      of the Board.  Each Stockholder agrees to vote, or cause to be
      voted, all Shares (as defined below) owned by such Stockholder, or over which
      such Stockholder 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 three (3) directors and may be increased only with the
      written consent of at least 50% of the shares of Common Stock outstanding
      including those shares held by the Parties.  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 shares of Common Stock by whatever name
      called, now owned or subsequently acquired by a Stockholder, however acquired,
      whether through stock splits, stock dividends, reclassifications,
      recapitalizations, similar events or otherwise.

    


    1.2           
      Board
      Composition.  Each Stockholder agrees to vote, or cause to be
      voted, all Shares owned by such Stockholder, or over which such Stockholder
      has
      voting control, from time to time and at all times, in whatever manner as shall
      be necessary to ensure that at each annual or special meeting of Parties at
      which an election of directors is held or pursuant to any written consent of
      the
      Parties, the following persons shall be elected to the Board:

    


    (a)           
      The Company’s Chief Executive Officer and Chairman, who shall be Adam
      Mauerberger (the “CEO
      Director”), provided that if for any reason the CEO Director shall cease
      to serve as the Chief Executive Officer of the Company, each of the Parties
      shall promptly vote their respective Shares (i) to remove the former Chief
      Executive Officer from the Board if such person has not resigned as a member
      of
      the Board and (ii) to elect such person’s replacement as Chief Executive Officer
      of the Company as the new CEO Director; and

     

    (b)           
      If desired by each of Sapphire and Fairhurst, two individuals not otherwise
      Affiliates (defined below) of the Company or the Parties who are mutually
      acceptable to Sapphire and Fairhurst.

     

    To
      the
      extent that any of clauses (a) through (b) above shall not be applicable, any
      member of the Board who would otherwise have been designated in accordance
      with
      the terms thereof shall instead be voted upon by all the Parties of the Company
      entitled to vote thereon in accordance with, and pursuant to, the Company’s
      Certificate of Incorporation.

     

    For
      purposes of this Agreement, an individual, firm, corporation, partnership,
      association, limited liability company, trust or any other entity (collectively,
      a “Person”) shall be
      deemed an “Affiliate” of
      another Person who, directly or indirectly, controls, is controlled by, or
      is
      under common control with such Person, including, without limitation, any
      partner, officer, director, or member of such Person and any venture capital
      fund now or hereafter existing which is controlled by or under common control
      with one or more general partners (or members thereof) or shares the same
      management company  (or members thereof) with such
      Person.

     

    1.3           
      Failure
      to
      Designate a Board Member.  In the absence of any designation
      from the Persons or groups with the right to designate a director as specified
      above, the director previously designated by them and then serving shall be
      reelected if still eligible to serve as provided herein.

     

    1.4           
      Removal
      of
      Board Members.  Each Party also agrees to vote, or cause to be
      voted, all Shares owned by such Party, or over which such Party has voting
      control, from time to time and at all times, in whatever manner as shall be
      necessary to ensure that:

     

    (a)           
      no director elected pursuant to this Agreement may be removed from office other
      than for cause unless such removal is directed or approved by the affirmative
      vote of the Person, or of the holders of at least 50% of the shares of
      outstanding Common Stock; and

     

    (b)           
      any vacancies created by the resignation, removal or death of a director elected
      pursuant to Sections
      1.2 or 1.3 shall be filled pursuant to the provisions of this Section
      1.

     

    All
      Parties agree to execute any written consents required to perform the
      obligations of this Agreement, and the Company agrees at the request of any
      party entitled to designate directors to call a special meeting of Parties
      for
      the purpose of electing directors.

     

    1.5           
      No
      Liability for Election of Recommended Directors.  No
      Stockholder, nor any Affiliate of any Stockholder, shall have any liability
      as a
      result of designating a person for election as a director for any act or
      omission by such designated person in his or her capacity as a director of
      the
      Company, nor shall any Stockholder have any liability as a result of voting
      for
      any such designee in accordance with the provisions of this
      Agreement.

     

    1.6           
      Change of
      Control. In the event that the Board recommends a Change of Control (as
      defined below) transaction, then each Party hereby agrees:

     

    (a)           
      if such transaction requires stockholder approval, with respect to all Shares
      that such Party owns or over which such Party otherwise exercises voting power,
      to vote (in person, by proxy or by action by written consent, as applicable)
      all
      Shares in favor of, and adopt, such Change of Control of the Company (together
      with any related amendment to the Certificate of Incorporation required in
      order
      to implement such Change of Control of the Company) and to vote in opposition
      to
      any and all other proposals that could reasonably be expected to delay or impair
      the ability of the Company to consummate such Change of Control of the
      Company;

     

    (b)           
      to execute and deliver all related documentation and take such other action
      in
      support of the Change of Control of the Company as shall reasonably be requested
      by the Company or the Selling Investors in order to carry out the terms and
      provision of this Section 1.6,
      including without limitation executing and delivering instruments of conveyance
      and transfer, and any Debt Restructuring Agreement, merger agreement, indemnity
      agreement, escrow agreement, consent, waiver, governmental filing, share
      certificates duly endorsed for transfer (free and clear of impermissible liens,
      claims and encumbrances) and any similar or related documents;

     

    (c)           
      not to deposit, and to cause their Affiliates not to deposit, except as provided
      in this Agreement, any Shares of the Company owned by such party or Affiliate
      in
      a voting trust or subject any Shares to any arrangement or agreement with
      respect to the voting of such Shares, unless specifically requested to do so
      by
      the acquiror in connection with the Change of Control of the
      Company;

     

    (d)           
      to refrain from exercising any dissenters’ rights or rights of appraisal under
      applicable law at any time with respect to such Change of Control of the
      Company; and

     

    (e)           
      if the consideration to be paid in exchange for the Shares pursuant to this
      Section 1.6
      includes any securities and due receipt thereof by any Stockholder would require
      under applicable law (x) the registration or qualification of such securities
      or
      of any person as a broker or dealer or agent with respect to such securities
      or
      (y) the provision to any Party of any information other than such information
      as
      a prudent issuer would generally furnish in an offering made solely to
“accredited investors” as defined in Regulation D promulgated under the
      Securities Act of 1933, as amended, the Company may cause to be paid to any
      such
      Party in lieu thereof, against surrender of the Shares which would have
      otherwise been sold by such Party, an amount in cash equal to the fair value
      (as
      determined in good faith by the Company) of the securities which such Party
      would otherwise receive as of the date of the issuance of such securities in
      exchange for the Shares.

     

    For
      purposes of this Agreement, “Change in Control” shall mean:

     

    (i)
      The
      acquisition by any individual, entity or group (within the meaning of Section
      13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934, as amended (the
      “Exchange Act”)) (a
“Person”),
      other than the current
      principal stockholders of the Company, of beneficial ownership (within the
      meaning of Rule 13d-3 promulgated under the Exchange Act) of fifty percent
      (50%)
      or more of the then outstanding shares of the Company’s Common Stock (the “Outstanding Company’s
      Shares”);
      or

     

    (ii)
      Consummation after the date of this Agreement of a reorganization, merger or
      consolidation or sale or other disposition of all or substantially all of the
      assets of the Company or the acquisition of assets of another corporation (a
      “Business Combination”), in each case, unless, following such Business
      Combination, (A) all or substantially all of the individuals and entities who
      were the beneficial owners, respectively, of the outstanding Company’s Shares
      immediately prior to such Business Combination beneficially own, directly or
      indirectly, more than fifty percent (50%) of the then Outstanding Company’s
      Shares of the corporation resulting from such Business Combination in
      substantially the same proportions as their ownership, immediately prior to
      such
      Business Combination, of the outstanding Company’s Shares, (B) no Person
      (excluding any employee benefit plan (or related trust) of the Company or such
      corporation resulting from such Business Combination) beneficially owns,
      directly or indirectly, fifty percent (50%) or more of, respectively, the then
      outstanding Company’s Shares resulting from such Business Combination or the
      combined voting power of the then outstanding voting securities of such
      corporation except to the extent that such Person had an ownership position
      in
      excess of such fifty percent (50%) of the outstanding Company’s Shares prior to
      the Business Combination or (C) at least a majority of the members of the board
      of the entity resulting from such Business Combination were members of the
      incumbent Board or Persons who replaced such Incumbent Board without causing
      a
      Change in Control pursuant to Section (b) above at the time of the execution
      of
      the initial agreement, or of the action of the Incumbent Board, providing for
      such Business Combination; or

     

    (iii)           
      Approval by the security holders of the Company of a complete liquidation or
      dissolution of the Company.

     

    3.           
      Remedies.

     

    3.1           
      Covenants
      of
      the Company.  The Company agrees to use its best efforts,
      within the requirements of applicable law, to ensure that the rights granted
      under this Agreement are effective and that the parties enjoy the benefits
      of
      this Agreement.  Such actions include, without limitation, the use of
      the Company’s best efforts to cause the nomination and election of the directors
      as provided in this Agreement.

     

    3.2           
      Irrevocable
      Proxy.  Each party to this Agreement hereby constitutes and
      appoints Adam Mauerberger with full power of substitution, as the proxies of
      the
      Parties with respect to the matters set forth herein, including without
      limitation, election of persons as members of the Board in accordance with
      this
      Agreement and votes regarding any Change of Control of the Company, and hereby
      authorizes each of them to represent and to vote, if and only if the party
      (i)
      fails to vote or (ii) attempts to vote (whether by proxy, in person or by
      written consent), in a manner which is inconsistent with the terms of this
      Agreement. The proxy granted pursuant to the immediately preceding sentence
      is
      given in consideration of the agreements and covenants of the Company and the
      parties in connection with the transactions contemplated by this Agreement
      and,
      as such, is coupled with an interest and shall be irrevocable unless and until
      this Agreement terminates or expires pursuant to Section 5
      hereof.  Each party hereto hereby revokes any and all previous proxies
      with respect to the Shares and shall not hereafter, unless and until this
      Agreement terminates or expires pursuant to Section 5 hereof, purport to grant
      any other proxy or power of attorney with respect to any of the Shares, deposit
      any of the Shares into a voting trust or enter into any agreement (other than
      this Agreement), arrangement or understanding with any person, directly or
      indirectly, to vote, grant any proxy or give instructions with respect to the
      voting of any of the Shares, in each case, with respect to any of the matters
      set forth herein.

     

    3.3           
      Specific
      Enforcement.  Each party acknowledges and agrees that each
      party hereto will be irreparably damaged in the event any of the provisions
      of
      this Agreement are not performed by the parties in accordance with their
      specific terms or are otherwise breached.  Accordingly, it is agreed
      that each of the Company and the Parties shall be entitled to an injunction
      to
      prevent breaches of this Agreement, and to specific enforcement of this
      Agreement and its terms and provisions in any action instituted in any court
      of
      the United States or any state having subject matter jurisdiction.

     

    3.4           
      Remedies
      Cumulative.  All remedies, either under this Agreement or by
      law or otherwise afforded to any party, shall be cumulative and not
      alternative.

     

    4.           
      Term.  This
      Agreement shall be effective as of the date hereof and shall continue in effect
      until and shall terminate upon the earliest to occur of (a) six-months
      anniversary of the date of this Agreement; (b) the consummation of a Change
      of
      Control event; and (c) termination of this Agreement in accordance with Section 5.7
      below.  

     

    5.           
      Miscellaneous.

     

    5.1           
      Transfers.  Each
      transferee or assignee of any Shares subject to this Agreement shall continue
      to
      be subject to the terms hereof, and, as a condition precedent to the Company’s
      recognizing such transfer, each transferee or assignee shall agree in writing
      to
      be subject to each of the terms of this Agreement by executing and delivering
      an
      Adoption Agreement substantially in the form attached hereto as Exhibit
      A.  Upon the execution and delivery of an Adoption Agreement by
      any transferee, such transferee shall be deemed to be a party hereto as if
      such
      transferee were the transferor and such transferee’s signature appeared on the
      signature pages of this Agreement and shall be deemed to be a
      Party.  The Company shall not permit the transfer of the Shares
      subject to this Agreement on its books or issue a new certificate representing
      any such Shares unless and until such transferee shall have complied with the
      terms of this Section
      5.1

     

    5.2           
      Successors
      and Assigns.  The terms and conditions of this Agreement shall
      inure to the benefit of and be binding upon the respective successors and
      assigns of the parties.  Nothing in this Agreement, express or
      implied, is intended to confer upon any party other than the parties hereto
      or
      their respective successors and assigns any rights, remedies, obligations,
      or
      liabilities under or by reason of this Agreement, except as expressly provided
      in this Agreement.  

     

    5.3           
      Governing
      Law.  This Agreement and any controversy arising out of or
      relating to this Agreement shall be governed by and construed in accordance
      with
      the laws of the State of New York, without regard to conflict of law principles
      that would result in the application of any law other than the law of the State
      of New York.

     

    5.4           
      Counterparts;
      Facsimile.  This Agreement may be executed and delivered by
      facsimile signature and in two or more counterparts, each of which shall be
      deemed an original, but all of which together shall constitute one and the
      same
      instrument.

     

    5.5           
      Titles
      and Subtitles.  The titles and subtitles used in this Agreement
      are used for convenience only and are not to be considered in construing or
      interpreting this Agreement.

     

    5.6           
      Notices.  All
      notices and other communications given or made pursuant to this Agreement shall
      be in writing and shall be deemed effectively given upon the earlier of actual
      receipt or:  (a) personal delivery to the party to be notified, (b)
      when sent, if sent by  electronic mail or facsimile during normal
      business hours of the recipient, and if not sent during normal business hours,
      then on the recipient’s next business day, (c) five (5) days after having been
      sent by registered or certified mail, return receipt requested, postage prepaid,
      or (d) one (1) business day after the business day of deposit with a nationally
      recognized overnight courier, freight prepaid, specifying next business day
      delivery, with written verification of receipt. If notice is given to the
      Company or Fairhurst, a copy shall be sent to William S. Rosenstadt, Esq.,
      Sanders Ortoli Vaughn-Flam & Rosenstadt LLP, 501 Madison Avenue, 14th
      Floor,
      New York, NY 10022, Fax: (212) 935-0900 and if notice is given to Sapphire,
      a
      copy shall be given to Peter Spring, Esq. [address], Fax: 011 64 9 307 8831.
      

     

    5.7           
      Consent
      Required to Amend, Terminate or Waive.  This Agreement may be
      amended or terminated and the observance of any term hereof may be waived
      (either generally or in a particular instance and either retroactively or
      prospectively) only
      by a written instrument executed by
      the Company and the Parties.

     

    5.8           
      Delays
      or Omissions.  No
      delay or omission to exercise any right, power or remedy accruing to any party
      under this Agreement, upon any breach or default of any other party under this
      Agreement, shall impair any such right, power or remedy of such non-breaching
      or
      non-defaulting party nor shall it be construed to be a waiver of any such breach
      or default, or an acquiescence therein, or of or in any similar breach or
      default thereafter occurring; nor shall any waiver of any single breach or
      default be deemed a waiver of any other breach or default previously or
      thereafter occurring.  Any waiver, permit, consent or approval of any
      kind or character on the part of any party of any breach or default under this
      Agreement, or any waiver on the part of any party of any provisions or
      conditions of this Agreement, must be in writing and shall be effective only
      to
      the extent specifically set forth in such writing.  All remedies,
      either under this Agreement or by law or otherwise afforded to any party, shall
      be cumulative and not alternative.  

     

    5.9           
      Severability.  The
      invalidity or
      unenforceability of any provision hereof shall in no way affect the validity
      or
      enforceability of any other provision.

     

    5.9           
      Entire
      Agreement.  This
      Agreement (including
      the Exhibits hereto), the Debt Restructuring Agreement and related documents
      constitute the full and entire understanding and agreement between the parties
      with respect to the subject matter hereof, and any other written or oral
      agreement relating to the subject matter hereof existing between the parties
      is
      expressly canceled.

     

    5.10           
      Stock
      Splits, Stock Dividends, etc.  In
      the event of any issuance
      of Shares of the Company’s voting securities hereafter to any of the Parties
      (including, without limitation, in connection with any stock split, stock
      dividend, recapitalization, reorganization, or the like), such Shares shall
      become subject to this Agreement.

     

    5.11           
      Manner
      of Voting.  The
      voting of Shares
      pursuant to this Agreement may be effected in person, by proxy, by written
      consent or in any other manner permitted by applicable law.

     

    5.12           
      Further
      Assurances.  At
      any time or from time to time after the date hereof, the parties agree to
      cooperate with each other, and at the request of any other party, to execute
      and
      deliver any further instruments or documents and to take all such further action
      as the other party may reasonably request in order to evidence or effectuate
      the
      consummation of the transactions contemplated hereby and to otherwise carry
      out
      the intent of the parties hereunder.

     

    5.13           
      Aggregation
      of Stock.  All
      Shares held or acquired by a Party and/or its Affiliates shall be aggregated
      together for the purpose of determining the availability of any rights under
      this Agreement, and such Affiliated persons may apportion such rights as among
      themselves in any manner they deem appropriate.  

     

     [Signature
      Page
      Follows]


    
      
        
        

        
        

      

      
        
        

        
          

        

      

      
        
        

      

    


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

    


    


    


    Sapphire
      Developments Limited

     

    By:
/s/
      Peter
      Spring

    Peter
      Spring

    Vice-President

     

    Fairhurst
      Properties S.A.

     

    By:
/s/
      Adam
      Mauerberger

    Adam
      Mauerberger

    President

    


    Atlantic
      Wine Agencies,
      Inc.

                                                                                                                     

                                                                                                                   
      By: /s/ Adam
      Maueberger

    Adam
      Mauerberger

                                                                                                                                   
      President

     


    
      
        
           

        

        
        

      

      
        
        

        
          

        

      

      
        
        

      

    


    EXHIBIT
      A

     

    ADOPTION
      AGREEMENT

     

    This
      Adoption Agreement (“Adoption
      Agreement”) is executed on
      ___________________, 20__, by the undersigned (the “Holder”)
      pursuant to the terms of that certain
      Voting Agreement dated as of January
11, 2008
(the
“Agreement”),
      by and among the Company and certain
      of its Parties, as such Agreement may be amended or amended and restated
      hereafter.  Capitalized terms used but not defined in this Adoption
      Agreement shall have the respective meanings ascribed to such terms in the
      Agreement.  By the execution of this Adoption Agreement, the Holder
      agrees as follows.

     

    1.1           
      Acknowledgment.  Holder
      acknowledges that
      Holder is acquiring certain shares of the capital stock of the Company (the
      “Stock”)[
      or options, warrants or other rights
      to purchase such Stock (the “Options”)],
      for one of the following reasons
      (Check the correct box):

     

    
      	
               

            	
               ̈

            	
              as
                a transferee of Shares from a
                party in such party’s capacity as an “Investor” bound by the Agreement,
                and after such transfer, Holder shall be considered an “Investor” and a
                “Stockholder” for all purposes of the
                Agreement.

            


    

     

    
      	
               

            	
               ̈

            	
              as
                a transferee of Shares from a
                party in such party’s capacity as a “Key Holder” bound by the Agreement,
                and after such transfer, Holder shall be considered a “Key Holder” and a
                “Stockholder” for all purposes of the
                Agreement.

            


    

     

    
      	
               

            	
               ̈

            	
              as
                a new Investor in accordance
                with Section
                6.1(a)of the
                Agreement, in which case Holder will be an “Investor” and a “Stockholder”
                for all purposes of the
                Agreement.

            


    

     

    
      	
               

            	
               ̈

            	
              in
                accordance with Section
                6.1(b)of the
                Agreement, as a new party who is not a new Investor, in which case
                Holder
                will be a “Stockholder” for all purposes of the
                Agreement.

            


    

     

    1.2           
      Agreement.  Holder
      hereby (a) agrees
      that the Stock [Options], and any other shares of capital stock or securities
      required by the Agreement to be bound thereby, shall be bound by and subject
      to
      the terms of the Agreement and (b) adopts the Agreement with the same force
      and
      effect as if Holder were originally a party thereto.

     

    1.3           
      Notice.  Any
      notice required or
      permitted by the Agreement shall be given to Holder at the address or facsimile
      number listed below Holder’s signature hereto.

     

     

    HOLDER:  ___________________            
      ACCEPTED AND
      AGREED:

    
 

    By: ________________________             
      ATLANTIC WINE AGENCIES,
      INC.

     

    Name
      and Title of
      Signatory

    


    Address:
      ___________________             
By:
      _________________________

    


                                                               
      Title:
      ________________________    

    Facsimile
      Number:
      ____________