Attached files
| file | filename |
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| 10-K - DRINKS AMERICAS HOLDINGS, LTD | v192737_10k.htm |
| EX-32.1 - DRINKS AMERICAS HOLDINGS, LTD | v192737_ex32-1.htm |
| EX-31.1 - DRINKS AMERICAS HOLDINGS, LTD | v192737_ex31-1.htm |
| EX-32.2 - DRINKS AMERICAS HOLDINGS, LTD | v192737_ex32-2.htm |
| EX-31.2 - DRINKS AMERICAS HOLDINGS, LTD | v192737_ex31-2.htm |
EXHIBIT 14.1
Drinks
Americas Holdings, Ltd.
Code
of Business Conduct and Ethics
This Code
of Business Conduct and Ethics sets forth legal and ethical standards of conduct
for personnel of Drinks Americas Holdings, Ltd., and its subsidiaries
(collectively, the “Company”). This Code applies generally to all the Company’s
directors, officers, and employees and is
addressed to them directly.
We are
committed to adhering to applicable legal requirements and maintaining the
highest standards of conduct and integrity. This Code is intended to promote
those goals in conjunction with the Company’s Corporate Communications,
Disclosure and Insider Trading/Reporting Policy which is distributed to all our
directors, officers and employees with this Code.
Because a
written code cannot answer all questions raised in the context of business
relationships, you (namely any employee, officer or director of the Company must
take responsibility for recognizing and responding appropriately to specific
situations as they arise. If you have any question about the requirements of
this Code or the appropriateness of a relationship or action, you should consult
with your supervisor or in the case of a director or officer, the Chief
Executive Officer or the Chair or any other disinterested member of the Governance
Committee charged with administering this Code.
Please
also note that the restrictions on conflicts of interest and the receipt of
improper benefits also apply to your family members, dependents and affiliated
persons. You are responsible for any conflicts that may arise for you due to
their conduct and for the consequences to you of any improper benefits that they
may receive. You should report suspected violations of this Code promptly as
outlined under the heading “Reporting and Compliance Procedures”
below.
Compliance
with Laws and Regulations. All employees, officers and directors must
comply with, and must endeavor to ensure the Company complies with, all laws and
regulations applicable to the Company wherever it does business, as well as the
listing standards of any exchange on which the Company’s securities are traded.
You are expected to use good judgment and common sense in seeking to comply and
to ask for advice when you are uncertain about what is required.
Conflicts
of Interest.
Personal interests and relationships must not harm the Company’s
interests. Any actual or apparent conflict of interest between personal
interests and those of the Company must be handled honestly and ethically in
accordance with the following procedures.
Any conflict of interest is prohibited
unless it has gone through the process of disclosure, consultation and approval
set forth below.
Full
disclosure is the essential first step to remaining in full compliance with
this policy. You must
disclose any actual or reasonably apparent conflict of interest, including any
existing or proposed transaction or relationship that reasonably could be
expected to give rise to a conflict of interest. An employee must disclose such
matters to his/her supervisor (or, if that person is involved in the matter, to
the Chief Operating Officer), who is responsible for consulting with the Chief
Executive Officer or Chair of the Governance Committee, as appropriate. Officers and directors
must disclose such matters to the Chief Executive Officer and to the Chair or
any other disinterested member of the Governance Committee charged with reviewing conflicts of
interest.
The Board of Directors has adopted rules
for what activities constitute conflicts of interest and potential conflicts of
interests, as well as procedures for determining whether a relationship or
transaction constitutes a conflict of interest, which it will review and, if
appropriate, update from time to time. The current version of these rules and
procedures are attached as Appendices A and B to this Code .
Following disclosure, any employee,
officer or director must avoid or terminate any activity that involves an actual
or reasonably apparent conflict of interest unless it is determined at the
appropriate level that the activity is not a conflict of interest or is
otherwise not harmful to the Company or improper. Any such determination shall
be made by the Chief Executive Officer in the case of an employee, and by the
disinterested members of the Governance
Committee in the case of an
officer or director.
No director, director nominee, officer,
or greater than 5% shareholder may enter into any transaction or relationship
that is disc losable by the Company pursuant to SEC Reg. S-B, Item 404 without
the prior approval of the Chair
of the Governance Committee. Nor may any director, officer or
employee directly or indirectly approve, or represent the Company or the other
party in arranging, the terms of any transaction between the Company and a party
with which he/she has any relationship of a type that is disc losable by the
Company pursuant to SEC Reg. S-B, Item 404. All transactions between the Company
and a party with which a director, officer or employee has such a relationship
shall be on an arm’s-length basis. Details about this prohibition may be
obtained from the Chief Operating Officer
Confidentiality.
You must maintain the
confidentiality of confidential and personal information entrusted to you by the
Company, its customers or other companies, including our suppliers. Any use or
public disclosure of any such information is prohibited except as authorized in
the conduct of Company business or otherwise legally mandated. You should also
take appropriate precautions to ensure that such confidential information is not
communicated within the Company except to personnel who have a need to know such
information to perform their responsibilities for the
Company.
Gifts,
Gratuities and Business Entertainment. All employees, officers and directors
must conduct their affairs in such a manner as to avoid adversely affecting
their judgment or the Company’s reputation. No one shall accept any gift or
other benefit that reasonably appears to be given in exchange, or as a reward,
for any accommodation in connection with soliciting, negotiating or maintaining
a business relationship for the Company.
The following may usually be accepted
without violating this rule:
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Modest, conventional business
entertainment.
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Modest gifts offered on account of
a family or personal relationship or as a token of appreciation upon a
holiday or commonly recognized personal event, such as a wedding or
promotion.
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Items that would be paid for by
the Company as a reasonable business expense if not paid for by another
party.
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Benefits available to the general
public on the same terms.
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However, the actual circumstances may
raise concerns, so one must be vigilant. Any exceptions to this rule must be
pre-approved by the Chief Operating Officer and documented.
The Chief Executive Officer or the Chair
of the Governance
Committee shall have the
authority to require that any gift be returned or entertainment be declined if
determined not to be in the best interests of the Company.
Bribery. Bribery is a criminal act. No Company
personnel may offer or give any form of bribe or kickback to any government
official or other person in order to secure preferential treatment in connection
with Company business. Modest, conventional business entertainment or
promotional materials complying with Company guidelines that are not intended to
secure preferential treatment are generally acceptable; however, no meal,
entertainment or gift exceeding $50 in value may be provided to any government
official or any employee of a governmental agency without the approval of the
Chief Operating Officer, or, in the case of any officer or director, the
Chair
of the Governance Committee.
Bona fide inducements in the form of
business terms must be reasonably related to the value to be received by the
Company, competitively justified, authorized in accordance with Company
guidelines and properly documented. They may be provided only to the party with
which the Company has the business relationship and not directly or indirectly
to any individual officer, employee or other agent of such
party.
Foreign
Corrupt Practices Act. All
officers, directors, employees, agents and stockholders acting on behalf of the
Company must comply with the anti-bribery, accounting and recordkeeping
provisions of the Foreign Corrupt Practices Act (the “FCPA”). The FCPA prohibits
the Company and anyone acting on its behalf from directly or indirectly making,
offering to make, promising to make or approving a payment of money or anything
else of value to a foreign official or a foreign political party with the
intention of somehow influencing that official to assist the Company in
obtaining or retaining business. The civil and criminal penalties that the FCPA
imposes on individual and corporate violators are severe. When in doubt as to
whether a contemplated payment or gift may violate the FCPA, consult with the
Chief Operating Officer before taking any action.
Fair
Dealing. Each employee,
officer and director should endeavor to deal honestly, ethically and fairly with
the Company’s suppliers, customers, competitors and employees. Your statements
about the Company’s products and services should not be untrue or misleading.
You should not take unfair advantage of anyone through manipulation,
concealment, abuse of privileged information, misrepresentation of material
facts or any other unfair practice.
Protection
of Company Assets and Opportunities. All personnel should seek to protect the
Company’s assets. You may not take personal advantage of opportunities that are
discovered through your position with the Company. All transactions on behalf of
the Company and all uses of Company funds, facilities or other assets must be
solely for business purposes of the Company, pursuant to due authorization, and
properly documented.
Accuracy
of Books, Records and Reports. All Company books, records and accounts
shall be maintained in accordance with all applicable regulations and standards
and accurately reflect the true nature of the transactions they record. You are
responsible for the accuracy of your records and reports. No undisclosed or
unrecorded account or fund shall be established for any
purpose.
Internal
Controls; Disclosure Controls and Procedures. It is the responsibility of the Chief
Executive Officer, the Chief Financial Officer, and the other executive and
financial officers to ensure that the Company maintains (i) adequate controls
over its assets and financial reporting and (ii) adequate controls and
procedures to provide full, fair, accurate, timely and understandable disclosure
in reports and documents filed with, or submitted to, regulatory authorities and
in other public communications. You should promptly bring to the attention of
the Chair or other member of the Audit Committee any information you may have
(i) concerning deficiencies in the design or operation of internal controls that
could adversely affect the Company’s ability to record, process, summarize and
report financial data, (ii) concerning any fraud affecting the Company, or (c)
that otherwise affects the disclosures made by the Company in its regulatory
filings and other public communications.
Waivers
of this Code of Business Conduct and Ethics. While some of the policies contained in
this Code must be strictly adhered to and no exceptions can be allowed, in other
cases exceptions may be possible. Any employee who believes that an exception to
any of these policies is appropriate in his or her case should first contact his
or her immediate supervisor. If the supervisor agrees that an exception is
appropriate, the approval of the Chief Executive Officer must be obtained after
consultation with the Company’s legal counsel. Any officer or director who seeks
an exception to any of these policies should contact the Chief Executive Officer
or the Chair or another disinterested member of Governance
Committee charged with
administering this Code. Any waiver of this Code for an officer or director may
be made only by the disinterested members of the Board of Directors and shall be
publicly disclosed as required by applicable law or
otherwise.
Reporting
and Compliance Procedures. Every employee, officer and director has
the responsibility to ask questions, seek guidance, report suspected violations
and express concerns regarding compliance with this Code or any of the Company’s
other Policies. Anyone who believes that any other employee, officer or director
has engaged or is engaging in conduct that violates applicable law or this Code
should promptly report such information to the Chief Executive Officer or the
Chair of the Governance
Committee. You may report
such conduct anonymously; however, there may be circumstances when the Company
is obligated to divulge your identity.
The Company will not discipline,
discriminate against or retaliate against any person who reports such conduct in
good faith or who cooperates in any investigation or inquiry regarding such
conduct.
The Chief Operating Officer of the
Company shall maintain written records of all reports of material violations of
this Code and the resolution thereof and of all waivers granted under this Code.
The Governance
Committee shall monitor and
periodically evaluate compliance with this Code and its application to the
Company’s business. The Board of Directors may amend this Code on the
recommendation of the Committee or on its own motion.
Accountability
for Violations of the Code. Failure to comply with the standards
required by this Code or any of the Company’s other Policies will result in
disciplinary action that may include, without limitation, reprimands, warnings,
probation or suspension without pay, demotions, reductions in salary, discharge
or removal, and restitution. Certain violations may be referred to public
authorities for investigation or prosecution. Moreover, any supervisor who
directs or approves of any conduct in violation of this Code or any Policy, or
who has knowledge of such conduct and does not promptly report it, also will be
subject to disciplinary action, up to and including
discharge.
APPENDIX
A
Conflicts of Interest
Rules
1. Improper Conflicts of
Interest
The Board of Directors has adopted the
following rules to aid in determining whether a relationship or transaction
constitutes a conflict of interest. The Board has determined that the following
involve an improper conflict of interest under the Company’s Code of Business
Conduct and Ethics. This list is not exhaustive and is subject to review and
revision by the Board from time to time.
Employees and Officers. An employee or
officer must not:
(a) perform services as an employee,
officer, director, advisor, consultant (directly or through an entity) or in any
other capacity for a significant customer, significant supplier or direct
competitor of the Company, other than at the request, or with the prior
approval, of the Company;
(b) have a financial interest in a
significant supplier or significant customer of the Company, other than an
investment representing less than one percent (1%) of the voting power of a
publicly-held company or less than five percent (5%) of the voting power of a
privately-held company; or
(c) have a financial interest in a
direct competitor of the Company, other than an investment representing less
than one percent (1%) of the voting power of a publicly-held
company.
Non-Employee Directors. A non-employee
director must not:
(a) perform services as an employee,
officer, director, advisor, consultant (directly or through an entity) or in any
other capacity for a direct competitor of the Company;
(b) have, or permit any close relative
to have, a financial interest in a direct competitor of the Company, other than
an investment representing less than one percent (1%) of the outstanding shares
of a publicly-held company;
(c) use his or her position with the
Company to influence any decision of the Company relating to a contract or
transaction with a supplier or customer of the Company if the director or a
close relative of the director:
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performs services as an employee,
officer, director, advisor, consultant (directly or through an entity) or
in any other capacity for such supplier or customer;
or
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has a financial interest in such
supplier or customer, other than an investment representing less than one
percent (1%) of the outstanding shares of a publicly-held company;
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(d) induce or otherwise assist or
participate, directly or indirectly, in a close relative’s involvement with or
investment in a significant supplier, significant customer or direct competitor
of the Company in a manner that would be prohibited for the employee or officer
under any of the prohibited activities listed above.
A “close
relative” of a person
includes a spouse, parent, sibling, child, mother- or father-in-law, son- or
daughter-in-law or brother- or sister-in-law, and any other relative living in
the same home with the person. A “significant customer” is a customer that has
made during the Company’s last full fiscal year, or proposes to make during the
Company’s current fiscal year, payments to the Company for property or services
in excess of 5% of (i) the Company’s consolidated gross revenues for its last
full fiscal year or (ii) the customer’s consolidated gross revenues for its last
full fiscal year. A “significant supplier” is a supplier to which the Company
has made during the Company’s last full fiscal year, or proposes to make during
the Company’s current fiscal year, payments for property or services in excess
of 5% of (i) the Company’s consolidated gross revenues for its last full fiscal
year or (ii) the customer’s consolidated gross revenues for its last full fiscal
year.
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2.Potential Conflicts of Interest
Requiring Disclosure
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The Board of Directors has determined
that the following involve potential conflicts of interest that must be
disclosed under the Company’s Code of Business Conduct and Ethics and then
addressed in any manner determined in accordance with the procedures there
under:
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An employee, officer or director
has a close relative who serves as an officer or director of a significant
supplier, significant customer or direct competitor of the Company and
such service would have been prohibited if the employee, officer or
director were serving in that role under Section 1 of these
rules.
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Any other material financial
interest of an employee, officer or director in connection with any
business relationship with the Company or any similar interest of a close
relative of any of them that is known to the related employee, officer or
director.
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APPENDIX
B
Procedures for Determining Conflicts of
Interest and Waivers
In determining whether a conflict of
interest exists and whether to waive a Code of Business Conduct and Ethics
provision in a particular circumstance, the appropriate officer or the
Governance
Committee, as the case may
be, should also consider:
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the
person involved in the potential conflict (For example, whether the person
is an officer or a director of the Company and, if a director of the
Company, whether the person is an independent director. The more
peripheral the person’s relationship to the Company is, the less likely
that person is to influence the Company’s day-to-day operations and
therefore the less likely the circumstance is to be disadvantageous to the
Company);
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the
nature of the relationship or situation creating the potential conflict of
interest (For
example, does the issue arise because the person serves as an officer
of the Company and a director of a
contracting party with the Company? Is the person a director of the Company and an
officer of a contracting party with the Company? Is the person a director of the
Company and a director of a contracting party with the Company? Or is the director or
officer of the Company related to a person that is a director or officer of the
contracting party with the Company? The more peripheral the relationship of the person to
either of the companies involved, the less likely that person is able to influence either
company’s day-to-day decisions and therefore the less likely the relationship or
activity is to be disadvantageous to the
Company);
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the
nature of the company with which the director or officer is affiliated
(For example, is the
company a competitor of the Company or a collaborator or a supplier or
customer, and how significant a competitor, collaborator supplier or
customer is the company?);
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the nature of
any proposed transaction,
including:
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the size of the
transaction,
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whether the Company has engaged in
this type of transaction before, either with this party or
others,
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other connections with the other
party,
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leverage of the other
party,
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whether there were unusual terms
associated with the transaction,
and
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whether the terms offered are
those that the Board believes would be offered or could be
obtained absent the
relationship;
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the level of involvement of the
officer or director involving questions in any proposed transaction,
including whether the waiver candidate will receive any compensation or
other benefit tied to the
transaction;
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whether the individual usurped a
corporate opportunity;
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whether the proposed transaction
or relationship would cause a director to lose his status as an
independent director; and
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how any related disclosure would
appear in, for example, The Wall Street Journal or other public
forum.
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After reviewing these considerations and
any others it considers appropriate, the appropriate officer or the Governance
Committee, as the case may
be, should then consider whether the relationship or activity (i) will adversely
affect the Company, (ii) was undertaken by the individual in good faith, (iii)
constitutes a breach of loyalty to the Company and its stockholders, (iv)
constitutes a violation of law, and (v) confers an improper personal benefit on
the individual. The appropriate officer or the Governance
Committee, as the case may
be, should then be in a position to determine if a conflict of interest exists
and, if so, whether to waive the conflict if the relationship or activity is in
the best interests of the Company or not opposed to those
interests.