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Exhibit 10.3
AMENDED AND RESTATED LOCK-UP
AGREEMENT
This AMENDED AND RESTATED LOCK-UP AGREEMENT (this
" Agreement "), is entered into and effective as of December
29, 2006, by and among New World Brands, Inc., a Delaware
corporation (the " Company "), Qualmax, Inc., a Delaware
corporation (" Qualmax "), M. David Kamrat, an individual ("
D. Kamrat "), Jane Kamrat, an individual (" J. Kamrat
"), Noah Kamrat, an individual (" N. Kamrat "), Tracy
Habecker, an individual (" T. Habecker " and together with
D. Kamrat, J. Kamrat and N. Kamrat the " Kamrat Family ",
and together with the Kamrat Family and Qualmax, the " Qualmax
Holders "), Dr. Selvin Passen, an individual (" Dr.
Passen "), Oregon Spirit, LLC, a Nevada limited liability
company (" Oregon Spirit "), P&S Spirit, LLC, a Nevada
limited liability company (" P&S " and together with Dr.
Passen and Oregon Spirit, the " P&S Holders
").
RECITALS
In connection with the execution and delivery of
a Subscription Agreement as amended and restated effective December
29, 2006 by and between the Company, P&S, and D. Kamrat and N.
Kamrat (the " Subscription Agreement "), the parties hereto
entered into a Lock-Up Agreement dated as of December 29, 2006 (the
" Original Lock-Up Agreement "). In connection with the
amendment and restatement of the Subscription Agreement, the
parties now desire to amend and restate the Original Lock-Up
Agreement in its entirety, as provided herein.
As of the date hereof, the Qualmax Holders own,
or have the right to purchase or acquire, shares of common stock,
par $0.01 per share (the " Common Stock ") of the Company
and/or shares of Series A Convertible Preferred Stock, par value
$0.01 per share (the " Series A Stock ") of the Company, in
the amounts set forth opposite each Qualmax Holder’s name on
Schedule A hereto (such shares, the " Qualmax Shares
").
As of the date hereof, the P&S Holders own,
or have the right to purchase or acquire, shares of Common Stock
and/or shares of Series A Stock, in the amounts set forth opposite
each P&S Holders’ name on Schedule B hereto (such
shares, the " P&S Shares ").
The Company and P&S are parties to an Amended
and Restated Stock Subscription Agreement of even date herewith
(the "Restated Subscription Agreement "), pursuant to which
the Company has agreed to sell to P&S, and P&S has agreed
to purchase from the Company, up to a total of 18.600756 shares of
Series A Stock, which shares of Series A Stock are convertible into
a total of 55,555,556 shares of Common Stock, as well as warrants
to purchase additional shares of Series A Stock (or Common
Stock).
As a condition to the execution and delivery of
the New Subscription Agreement and the consummation of the
transactions contemplated thereby at the Tranche A Closing (as
defined therein), the parties hereto desire to enter into this
Agreement to amend and restated the Original Lock-Up Agreement in
its entirety and to set forth certain agreements and arrangements
among them with respect to the disposition of the Qualmax Shares
and the P&S Shares from and after the date hereof.
1
NOW, THEREFORE, for good and valuable
consideration, including the mutual promises and agreements herein
made, the receipt and sufficiency of which is hereby acknowledged,
and intending to be legally bound hereby, the parties hereto agree
as follows:1. Definitions .
Capitalized terms used in this Agreement that are not otherwise
defined shall have the meanings assigned to such terms in this
Section 1 . Capitalized terms used in this Agreement that are not
otherwise defined shall have the meanings assigned to such terms in
the Restated Subscription Agreement, which definitions are hereby
incorporated by reference.
" Affiliate " means, with respect to a
specified Person, any other Person which controls, is controlled by
or is under common control with such specified Person. For purposes
of the definition of Affiliate, the term "control" (including the
terms "controls", "controlled by" and "under common control with")
means the possession, direct or indirect, of the power to direct or
cause the direction of the management and policies of a Person,
whether through the ownership of voting securities, by contract or
otherwise, and for the avoidance of doubt, shall include an
executive officer, member, manager or director of a
Person.
" Company Shares " means the Qualmax
Shares and the P&S Shares owned on the date hereof, and
includes any shares of capital stock of the Company acquired,
directly or indirectly, by any Restricted Stockholder from and
after the date hereof, whether in a private transaction (with the
Company or any other Person), upon the exercise of any Derivative
Securities or pursuant to any block sale; provided that
Company Shares shall not include: (1) 9,750,000 shares of Common
Stock owned by Selvin and Sylvia Passen, TBTE; (2) the 500,000
shares of the Company’s common stock recently acquired, or in
the process of being acquired, by Dr. Selvin Passen or his
affiliates, from William Kedersha and from Costas Ataliotis; or (3)
any shares of Common Stock acquired by any Qualmax Holder and/or
P&S Holder in any open market purchase.
" Derivative Securities " means options or
warrants to purchase Company Shares, or any securities convertible
into, exchangeable for or that represent the right to receive
Company Shares, owned on the date hereof, and includes any options
or warrants to purchase Company Shares, or any securities
convertible into, exchangeable for or that represent the right to
receive Company Shares acquired, directly or indirectly, by any
Restricted Stockholder from and after the date hereof, whether in a
private transaction (with the Company or any other Person) or
pursuant to any block sale.
" Family Member " means, with respect to
any Restricted Stockholder who is a natural person, all the lineal
descendants and ascendants in direct line of such Restricted
Stockholder and the siblings of such Restricted Stockholder and
their lineal descendants and a husband or wife or widower or widow
of any of the above Persons and for the purposes aforesaid a step
child or adopted child or illegitimate child of any Person shall be
deemed to be a lineal descendant.
2
" Family Trusts " means, with respect to
any Restricted Stockholder who is a natural person who holds
Company Shares and/or Derivative Securities, trusts under which no
substantial beneficial interest in any of the Company Shares and/or
Derivative Securities held by such trust is vested in any Person
other than such Restricted Stockholder and/or Family Members of
such Restricted Stockholder. For purposes of this definition, a
Person shall be considered "beneficially interested" in Company
Shares and/or Derivative Securities if such share or any income
related thereto is transferred or paid or applied or appointed to
or for the benefit of such Person, or any voting or other rights
attaching thereto are exercisable by or as directed by such Person
pursuant to the terms of such trust or as the result of an exercise
of a power or discretion conferred by such terms on any Person or
Persons.
" Permitted Transferee " means: (a) in the
case of any Qualmax Holder, any other Qualmax Holder; (b) in the
case of any P&S Holder, any other P&S Holder; and (c) in
the case of any Restricted Stockholder, a Family Trust, but solely
for financial planning purposes.
" Person " means any individual,
corporation, limited liability company, partnership, joint venture,
association, trust, unincorporated organization, governmental body
or authority or an
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