Exhibit 10.1

 

Execution Version

 

FOUNDER SUPPORT AGREEMENT

 

This Founder Support Agreement, dated February 3, 2021 (this “Agreement”), is among Bespoke Sponsor Capital LP, a Cayman Islands limited partnership (“Sponsor”), Bespoke Capital Acquisition Corp., a Toronto Stock Exchange listed special purpose acquisition corporation incorporated under the Laws of the Province of British Columbia (“Parent”) and Vintage Wine Estates, Inc., a California corporation (the “Company”).  Sponsor, Parent and the Company are collectively referred to herein as the “Parties” and each, a “Party.”  Capitalized terms used but not defined in this Agreement have the meanings given in the Transaction Agreement, dated the date hereof, among Parent, the Company, VWE Acquisition Sub Inc., a Delaware corporation and a wholly owned Subsidiary of Parent (“Merger Sub”), Sponsor (solely for the purpose of Sections 1.2(a)(ii) and 2.7 and Article VIII thereof) and the other parties thereto (the “Transaction Agreement” and such parties, the “TA Parties”).

 

Recitals

 

A.                                    Concurrently with the execution and delivery of this Agreement, the TA Parties entered into the Transaction Agreement, which provides, among other things, that, on the terms and subject to the conditions thereof, Merger Sub will merge with and into the Company (the “Merger”), with the Company surviving the Merger as a wholly owned Subsidiary of Parent.

 

B.                                    As of the date hereof, Sponsor is the owner of 9,000,000 Class B shares of Parent (all such shares and any shares of Parent’s capital stock of which ownership of record or the power to vote is hereafter acquired by Sponsor prior to the termination of this Agreement, the “Founder’s Shares”).

 

C.                                    To induce the Company to enter into the Transaction Agreement, Parent and Sponsor are executing and delivering this Agreement.

 

NOW, THEREFORE, the Parties agree as follows:

 

1.                                      Agreement To Vote and To Consent.  Sponsor will vote all of its Founder’s Shares at any meeting and in any action by written consent of the shareholders of Parent:

 

(a)                                 in favor of (i) the Parent Resolutions and (ii) any other matter reasonably necessary to the consummation of the Transactions that is considered and voted on or consented to by the shareholders of the Company; and

 

(b)                                 against any action, agreement or transaction (other than the Transaction Agreement, the Merger or the other Transactions) or proposal that would result in or reasonably be expected to result in (i) a breach of any covenant, agreement, representation or warranty of Sponsor or Parent under the Transaction Agreement, Ancillary Agreements or this Agreement or (ii) the failure or delay of the consummation of the Merger or the other Transactions.

 











 

2.                                      Founder’s Shares.

 

(a)                                 Sponsor will not:

 

(i)                                     sell, assign, transfer (including by operation of law), pledge, encumber or otherwise dispose of (including through any hedging or similar arrangement) any of the Founder’s Shares or any right or interest therein or otherwise agree to do any of the foregoing (unless the transferee (A) agrees to be bound by this Agreement and (B) is a director, officer, founder or holder of 5% or more of the outstanding Founder’s Shares);

 

(ii)                                  deposit any of the Founder’s Shares into a voting trust, enter into a voting agreement or arrangement or grant any proxy or power of attorney related to the Founder’s Shares that is inconsistent with this Agreement; or

 

(iii)                               take any action, directly or indirectly, that would have the effect of preventing or impeding Sponsor from performing its obligations hereunder.

 

(b)                                 Parent will not register on its books or records, execute any agreement related to, or otherwise recognize, any transaction effected or action taken in violation of Section 2(a) and will treat such transaction or action as null and void.

 

(c)                                  If there are any changes in Parent or the Founder’s Shares by way of equity split, dividend, combination or reclassification, or through merger, consolidation, reorganization, recapitalization or business combination (other than the Merger), or by any other means, equitable adjustment will be made to the provisions of this Agreement as may be required so that the rights, privileges, duties and obligations hereunder will continue with respect to Sponsor and its Founder’s Shares as so changed.

 

3.                                      Representations and Warranties.  Other than as set forth in the Public Disclosure Record, Sponsor and, with respect to Sections 3(a), 3(b) and 3(c), Parent, represents and warrants for and on behalf of itself to the Company as follows:

 

(a)                                 Such Party has the requisite power, authority and legal capacity and has taken all required actions (including under Law or its organizational documents), in each case, necessary to execute, deliver and perform its obligations under this Agreement.  This Agreement has been duly executed and delivered by such Party and, assuming this Agreement constitutes the legal, valid and binding agreement of the other Parties, constitutes the legal, valid and binding agreement of such Party enforceable against such Party in accordance with its terms, subject to the Bankruptcy and Equity Exception.

 

(b)                                 The execution, delivery and performance by such Party of this Agreement and the consummation by such Party of the transactions contemplated hereby do not and will not (i) conflict with or violate any Law or other Order applicable to Sponsor, (ii) require any consent, approval or authorization of, declaration, filing or registration with, or notice to, any Person, (iii) result in the creation of any Lien on the Founder’s Shares (other than pursuant to this Agreement), or (iv) conflict with or result in a breach of or constitute a default under any provision of such Party’s certificate of incorporation, bylaws or comparable governing documents or equityholder agreements.

 

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(c)                                  There are no Actions pending or, to the knowledge of such Party, threatened against such Party that seek to enjoin, or would reasonably be expected to have the effect of preventing, making illegal, or otherwise interfering with, such Party’s execution, delivery or performance of this Agreement or any of the transactions contemplated hereby.

 

(d)                                 Sponsor is the sole record and beneficial owner and has good and valid title to the Founder’s Shares, in each case, free and clear of any Lien (other than Permitted Liens and Liens pursuant to this Agreement) or transfer restrictions under applicable securities Laws or Parent’s certificate of incorporation or bylaws).  Sponsor (A) has the sole power to vote and full right, power and authority to sell, transfer and deliver the Founder’s Shares and (B) Sponsor does not own, directly or indirectly, any other shares of Parent and (ii) none of the Founder’s Shares are subject to any proxy, voting trust or other agreement or arrangement with respect to voting of the Founder’s Shares.

 

4.                                      Termination; Effect of Termination.

 

(a)                                 This Agreement will terminate automatically and without further action of the Parties upon the earlier to occur of (i) the termination of the Transaction Agreement in accordance with its terms and (ii) the Effective Time.

 

(b)                                 Upon termination of this Agreement, no party will have any further obligations or liabilities under this Agreement, except that (i) such termination will not relieve any Party from liability for any Deliberate and material breach of this Agreement prior to termination and (y) this Section 4(b) and Section 5 (as applicable to Section 4(b)) will survive any such termination.

 

5.                                      Miscellaneous.

 

(a)                                 Costs and Expenses.  Except as expressly provided herein, whether or not the Merger is consummated, all costs and expenses incurred in connection with this Agreement will be paid by the Party incurring such expense.

 

(b)                                 Modification or Amendment.  The Parties may modify or amend this Agreement by written agreement of Parent, the Company and Sponsor.  The failure of any Party to assert any of its rights under this Agreement or otherwise will not constitute a modification, amendment, or waiver of those rights.

 

(c)                                  Waiver.  The terms and provisions of this Agreement may be waived only by a written document executed by the Party or Parties granting such waiver.  Each such waiver will be effective only in the specific instance and for the purpose for which it was given, and will not constitute a continuing waiver.  No failure or delay by a Party to exercise any right, power or remedy under this Agreement, and no course of dealing among the Parties, will operate as a waiver of any such right, power or remedy of such Party.  All remedies hereunder are cumulative, and the election of any remedy by a Party will not constitute a waiver of the right of such Party to pursue other available remedies.

 

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(d)                                 Counterparts; Effectiveness.  This Agreement may be executed in any number of counterparts (including by pdf or other readable electronic format), each such counterpart being deemed to be an original instrument, with the same effect as if the signature thereto and hereto were upon the same instrument, and will become effective when one or more counterparts have been signed by each of the Parties and delivered (including by email or DocuSign) to the other Parties, and all such counterparts will together constitute one and the same agreement.

 

(e)                                  Governing Law; Venue; Waiver of Jury Trial.

 

(i)                                     This Agreement will be construed and enforced in accordance with the Laws of the State of Delaware, without regard to the conflict of laws principles that would result in the application of any Law other than the Law of the State of Delaware.

 

(ii)                                  All actions arising out of or relating to this Agreement will be heard and determined in the Court of Chancery of the State of Delaware (or, only if the Court of Chancery of the State of Delaware declines to accept jurisdiction over a particular matter, any federal court within the State of Delaware).  The Parties (A) submit to the exclusive jurisdiction of the Court of Chancery of the State of Delaware (or, only if the Court of Chancery of the State of Delaware declines to accept jurisdiction over a particular matter, any federal court within the State of Delaware) for the purpose of any action arising out of or relating to this Agreement or the Merger or any other transaction contemplated by this Agreement and (B) irrevocably waive, and agree not to assert by way of motion, defense or otherwise, in any such action, any claim that they are not subject personally to the jurisdiction of the above-named courts, that the property is exempt or immune from attachment or execution, that any such action is brought in an inconvenient forum, that the venue of such action is improper or that this Agreement or any transaction contemplated by this Agreement may not be enforced in or by any of the above-named courts.  Each of the Parties agrees that mailing of process or other papers in connection with any action or proceeding in the manner provided in Section 5(g) or such other manner as may be permitted by Law will be valid and sufficient service of process.

 

(iii)                               EACH PARTY HEREBY IRREVOCABLY WAIVES, AND WILL CAUSE ITS SUBSIDIARIES AND AFFILIATES TO WAIVE, ANY AND ALL RIGHTS TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS.

 

(f)                                   Specific Performance.  The Parties agree that irreparable damage for which monetary damages, even if available, would not be an adequate remedy, would occur in the event that the Parties do not perform their obligations under the provisions of this Agreement (including failing to take such actions as are required of them hereunder to consummate any transaction contemplated by this Agreement) in accordance with its specified terms or otherwise breach such provisions.  The Parties acknowledge and agree (and further agree not to take any contrary position in any litigation concerning this Agreement) that (i) the Parties will be entitled to an injunction or injunctions, specific performance, or other equitable relief, to prevent breaches of this Agreement and to

 

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enforce specifically the terms and provisions hereof without proof of damages or otherwise, and that such relief may be sought in addition to and will not limit, diminish or otherwise impair, any other remedy to which they are entitled under this Agreement, (ii) the provisions set forth herein are not intended to and do not adequately compensate for the harm that would result from a breach of this Agreement and will not be construed to limit, diminish or otherwise impair in any respect any Party’s right to specific enforcement and (iii) the right of specific enforcement is an integral part of the transactions contemplated by this Agreement and without that right, none of Parties would have entered into this Agreement.  The Parties acknowledge and agree that any Party seeking an injunction or injunctions to prevent breaches of this Agreement and to enforce specifically the terms and provisions of this Agreement in accordance with this Section 5(f) will not be required to provide any bond or other security in connection with any such order or injunction.

 

(g)                                  Notices.  All notices and other communications among the Parties will be in writing and will be deemed to have been duly given (i) when delivered in person, (ii) when delivered by FedEx or other nationally recognized overnight delivery service, or (iii) when delivered by email (so long as the sender of any such e-mail has not received an e-mail from the applicable server indicating a delivery failure) and promptly confirmed by delivery in person or by post or overnight courier as aforesaid in each case, according to the instructions set forth below.  Such notices will be deemed given:  at the time of personal delivery, if delivered in person; one Business Day after being sent, if sent by reputable, overnight delivery service and at the time sent (so long as the sender of any such e-mail has not received an e-mail from the applicable server indicating a delivery failure), if sent by email prior to 5:00 p.m. local time of the recipient on a Business Day; or on the next Business Day if sent by email after 5:00 p.m. local time of the recipient on a Business Day or on a non-Business Day.

 

If to Parent or Sponsor:

 

Bespoke Capital Acquisition Corp.
 c/o Bespoke Capital Partners
 115 Park Street, 3rd Floor
 London, W1K 7AP, United Kingdom
 Attention:  Mark Harms
 Email:  mark.harms@bespokecp.com

 

with a copy to:

 

Jones Day
 250 Vesey Street 
 New York, NY 10281
 Attention:  Robert A. Profusek
 E-mail:  raprofusek@jonesday.com

 

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If to the Company:

 

Vintage Wine Estates, Inc. 
 205 Concourse Boulevard
 Santa Rosa, CA 95403
 Attention:  Pat Roney
 E-mail:  pat@vintagewineestates.com

 

with a copy to:

 

Foley & Lardner LLP
 321 North Clark Street, Suite 3000
 Chicago, IL 60654
 Attention:  Patrick Daugherty 
 E-mail:  pdaugherty@foley.com

 

(h)                                 Entire Agreement.  This Agreement (including the all exhibits hereto) and the Transaction Agreement constitute the entire agreement, and supersede all other prior agreements, understandings, representations and warranties both written and oral, among the Parties, with respect to the subject matter hereof.

 

(i)                                     No Third-Party Beneficiaries.  The representations, warranties and covenants set forth herein are solely for the benefit of the Parties, in accordance with and subject to the terms of this Agreement, and this Agreement is not intended to, and does not, confer upon any Person other than the Parties any rights or remedies hereunder.

 

(j)                                    Severability.  The provisions of this Agreement will be deemed severable and the invalidity or unenforceability of any provision will not affect the validity or enforceability of the other provisions hereof.  If any provision of this Agreement, or the application thereof to any Person or any circumstance, is invalid or unenforceable, then (i) a suitable and equitable provision will be substituted therefor in order to carry out, so far as may be valid and enforceable, the intent and purpose of such invalid or unenforceable provision and (ii) the remainder of this Agreement and the application of such provision to other Persons or circumstances will not be affected by such invalidity or unenforceability, nor will such invalidity or unenforceability affect the validity or enforceability of such provision, or the application thereof, in any other jurisdiction.

 

(k)                                 Interpretation; Construction.

 

(i)                                     The headings herein are for convenience of reference only, do not constitute part of this Agreement and will not be deemed to limit or otherwise affect any of the provisions hereof.  Where a reference in this Agreement is made to a Section or Exhibit, such reference will be to a Section of or Exhibit to this Agreement unless otherwise indicated.  Whenever the words “include,” “includes” or “including” are used in this Agreement, they will be deemed to be followed by the words “without limitation.”  All pronouns and all variations thereof will be deemed to refer to the masculine, feminine or neuter, singular or plural, as the identity of the Person may require.  Where a reference

 

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in this Agreement is made to any agreement (including this Agreement), contract, statute or regulation, such references are to, except as context may otherwise require, the agreement, contract, statute or regulation as amended, modified, supplemented, restated or replaced from time to time (in the case of an agreement or contract, to the extent permitted by the terms thereof); and to any section of any statute or regulation including any successor to the section and, in the case of any statute, any rules or regulations promulgated thereunder.  All references to “days” will be to calendar days unless otherwise indicated as a “Business Day.”

 

(ii)                                  The Parties have participated jointly in negotiating and drafting this Agreement.  In the event that an ambiguity or a question of intent or interpretation arises, this Agreement will be construed as if drafted jointly by the Parties, and no presumption or burden of proof will arise favoring or disfavoring any Party by virtue of the authorship of any provision of this Agreement.

 

(l)                                     Assignment.  This Agreement will be binding upon and inure to the benefit of the Parties and their respective successors, legal representatives and permitted assigns.  No Party may assign any of its rights or delegate any of its obligations under this Agreement, by operation of Law or otherwise, without the prior written consent of the other Parties.  Any purported assignment in violation of this Agreement is void.

 

(m)                             Remedies.  This Agreement may only be enforced, and any claim or cause of action based upon, arising out of, or related to this Agreement may only be brought, against the entities that are expressly named as Parties and then only with respect to the representations, warranties, covenants or other obligations or agreements set forth herein with respect to such Party.

 

(n)                                 Further Assurances.  Without further consideration, each Party will execute and deliver or cause to be executed and delivered such additional documents and instruments and take all such further actions as may be reasonably necessary or desirable to effect the transactions contemplated by this Agreement.

 

[Signature Pages Follow]

 

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IN WITNESS WHEREOF, this Agreement has been duly executed and delivered by the Parties or duly authorized officers of the Parties as of the date first written above.

 

	
 
    	
PARENT:
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
BESPOKE CAPITAL   ACQUISITION CORP.
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
By: 
    	
/s/ Mark Harms
    
	
 
    	
Name: Mark Harms
    
	
 
    	
Title:  Chief Executive Officer
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
SPONSOR:
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
BESPOKE SPONSOR CAPITAL   LP
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
By: Bespoke Capital   Partners, LLC
    
	
 
    	
its General Partner
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
By:
    	
/s/ Mark Harms
    
	
 
    	
Name: Mark Harms
    
	
 
    	
Title:  Managing Director
    


 

[Signature Page to Founder Support Agreement]

 











 

	
 
    	
COMPANY:
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
VINTAGE WINE   ESTATES, INC.
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
By: 
    	
/s/ Patrick A. Roney
    
	
 
    	
Name: Patrick A. Roney
    
	
 
    	
Title:  Chief Executive Officer
    


 

[Signature Page to Founder Support Agreement]