LOCK-UP
AGREEMENT
THIS
LOCK-UP AGREEMENT (“
Agreement ”) is made and entered into
this 12th day of February, 2009, by and among NXT Nutritionals
Holdings, Inc., a Delaware corporation (the “ Company
”), and the parties listed on Schedule A attached
hereto and made a part hereof (collectively, the “
Management Shareholders ”). Captialized terms used
herein without definition shall have the same meanings assigned to
such term in the share exchange agreement entered into by and among
the Company, NXT Nutritionals, Inc., a Delaware corporation (
“ NXT Nutritionals ”), and the shareholders of
NXT Nutritionals.
RECITALS
WHEREAS , in connection within a share exchange transction
effective as of the date hereof, the Company issued an aggretate of
22,480,000 shares of its common stock, par value $0.001 per share
(the “ Common Stock ”) to the NXT Shareholders,
of which 7,826,000 shares of common stock were issued to the
Management Shareholders, in exchange for 100% of the equity
interest in NXT Nutritionals (the “ Share Exchange
”); and
WHEREAS
, in
order to induce the Company and the Management Shareholders to
enter into the Share Exchange, the Management Shareholders have
agreed not to sell or otherwise dispose of any shares of the Common
Stock that the Management Shareholders presently own on the date
hereof (collectively, the “ Lock-Up Shares
”).
NOW THEREFORE , for consideration received, the sufficiency
and receipt of which is hereby acknowledged, the parties hereto
agree as follows:
1.
Agreement to Retain the Shares .
(a) Except
for one million (1,000,000) shares held in escrow pursuant to Unit
Purchase Agreement dated October 31, 2008 by and among NXT
Nutritionals, Healthy Dairy, LLC, NXT LLC, Healthy Brands, LLC and
the Unitholders of Healthy Dairy, LLC and NXT, LLC, the Management
Shareholders hereby agree not to sell, assign, transfer, or
otherwise dispose of any of the Lock-Up Shares during the period
beginning on and including the date hereof, which is also the date
of the final closing of the Share Exchage, through the date that is
eighteen (18) months following the closing date of the Share
Exchange (the “ Closing Date ”) (the “
Lock-Up Period ”).
(b) The
Management Shareholders agree and consent to the entry of stop
transfer instructions with the Company’s transfer agent for
the Company’s Common Stock against transfers of the Lock-Up
Shares, if any, by a Management Shareholder in contravention of the
restrictions set forth herein. The Management Shareholders
understand that their agreement is irrevocable and shall be binding
upon their heirs, legal representatives, successors and
assigns.
2.
Ownership . During the
Lock-Up Period, the Management Shareholders shall retain all rights
of ownership in the Lock-Up Shares, including, without limitation,
voting rights
and
the right to receive any dividends that may be declared in respect
thereof, except as otherwise provided in the Transaction Documents
whereby any benefits, rights, title or otherwise shall inure to the
Purchasers.
3.
Company
and Transfer Agent . The
Company is hereby authorized and required to disclose the existence
of this Agreement to its transfer agent. The Company and its
transfer agent are hereby authorized and required to decline to
make any transfer of the Common Stock if such transfer would
constitute a violation or breach of this Agreement and/or the
Securities Purchase Agreement.
4.
Representations, Warranties and Covenants of the Company
. The Company represents, warrants and covenants to the
Management Shareholders that this Agreement
(a)
has been authorized by all necessary corporate action on the part
of the Company and has been duly executed by a duly authorized
officer of the Company, and
(b)
constitutes the legal, valid and binding obligation of the
Company. Neither the execution of this Agreement by the
Company nor the consummation of the transactions contemplated
hereby will result in a breach or violation of the terms of any
agreement by which the Company is bound, or of any decree,
judgment, order, law or regulation now in effect of any court or
other governmental body applicable to the Company.
5
.
Additional Documents . The Management
Shareholders and the Company hereby covenant and agree to execute
and deliver any additional documents necessary or desirable, in the
reasonable opinion of the Company’s legal counsel to carry
out the intent of this Agreement.
6.
Notices . All
notices, demands, consents, req
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