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Exhibit
10.4
AMENDED AND RESTATED VOTING
AGREEMENT
This Amended and Restated Voting Agreement, dated
as of December 29, 2006 (this " Agreement "), is by and
among New World Brands, Inc., a Delaware corporation (the "
Company "), Qualmax, Inc., a Delaware corporation ("
Qualmax "), P&S Spirit, LLC, a Nevada limited liability
company ("P&S"), Selvin and Sylvia Passen, TBTE (" TBTE
"), Oregon Spirit, LLC, a Nevada limited liability company ("
Oregon Spirit "), and, solely for purposes of Section
21 hereof, 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 the Kamrat Family and
Qualmax together the " Qualmax Holders "). Each of Qualmax,
P&S, TBTE and Oregon Spirit are herein referred to as a "
Voting Stockholder ," and together as the " Voting
Stockholders ." Capitalized terms used herein and not otherwise
defined shall have the respective meanings assigned to them in the
Subscription Agreement (as defined below).
RECITALS
In connection with the purchase by Qualmax of 100
shares of Series A Preferred Stock, par value $0.01 per share, of
the Company (" Series A Preferred Stock "), pursuant to the
Asset Purchase Agreement, dated as of June 22, 2006, as amended by
Amendment No. 1 to Asset Purchase Agreement, dated as of August 28,
2006 by and between the Company and Qualmax, the parties entered
into a Voting Agreement dated as of September 15, 2006 (the "
Original Agreement "), whereby the parties agreed to, among
other things, nominate (or cause or facilitate the nomination) for
election as directors certain persons designated by each of Qualmax
and Selvin Passen.
In connection with the purchase by P&S of
shares of the Company’s Series A Preferred Stock pursuant to
the terms of a Stock Subscription Agreement of even date herewith
(the " Subscription Agreement "), P&S
intends to purchase shares
of Series A Preferred Stock and/or Common Stock, in separate
tranches. Capitalized terms used in this Agreement that are not
defined shall have the meanings assigned to such terms in the
Subscription Agreement, which definitions are hereby incorporated
by reference.
In connection with consummation of the
transactions contemplated by the Subscription Agreement, the
parties desire to amend and restate the Original Agreement in its
entirety to nominate (or cause or facilitate the nomination) for
election as directors certain persons designated by each of Qualmax
and P&S.
The parties hereto deem it in their best
interests and in the best interests of the Company to establish the
composition of the Company’s board of directors (the "
Board ") and certain other arrangements as hereinafter
provided.
NOW, THEREFORE, in consideration of the premises
and of the mutual covenants and agreements hereinafter set forth,
the parties hereto hereby agree as follows:
1. Board of
Directors . The parties hereto confirm that it is their
intention that the business and affairs of the Company shall be
managed by the Board. The authorized number of directors on the
Board shall hereby be fixed at five (5). Effective upon the receipt
of the requisite approval by the stockholders of the Company of an
Amended and Restated Certificate of Incorporation of the Company
which, among other things, establishes a staggered board of
directors (the " Revised Charter "), and the filing by the
Company of the Revised Charter with the Secretary of State of the
State of Delaware (the " Filing "), the directors shall be
divided into three classes, as nearly equal in number as possible,
with the term of office of the first class (" Class I ") to
expire at the 2007 annual meeting of stockholders, the term of
office of the second class (" Class II ") to expire at the
2008 annual meeting of stockholders, and the term of office of the
third class (" Class III ") to expire at the 2009 annual
meeting of stockholders. At each annual meeting of stockholders
following such initial classification and election, directors
elected to succeed those directors whose terms expire shall be
elected for a three-year term of office and until the election and
qualification of their respective successors in office. Subject to
the terms and provisions set forth herein, each Voting Stockholder
shall vote or cause to be voted all shares of Voting Stock of the
Company owned, beneficially or of record, by such party at any
meeting of the Voting Stockholders of the Company at which
directors are to be elected to the Board, or in any written consent
executed in lieu of such a meeting of the Voting Stockholders, and
shall take all other necessary or desirable action, in order to
ensure that the Board is constituted as set forth in this
Agreement. As used herein, the term " Voting Stock " shall
mean Common Stock, Preferred Stock, and any other capital stock of
the Company which carries voting rights, and shall include any
shares of Voting Stock now owned or subsequently acquired by a
Voting Stockholder, however acquired, including, without
limitation, stock splits and stock dividends.
2. Nominations of
Directors .
(a) Qualmax shall be
entitled to designate two (2) individuals (the " Qualmax
Nominees ") to serve as directors effective upon the Tranche A
Closing, which Qualmax Nominees shall initially be M. David Kamrat
and Noah Kamrat. Effective upon the Filing, one of the Qualmax
Nominees shall serve as a Class II director and one shall serve as
Class III director. Effective upon the Filing, Noah Kamrat shall be
a Class II director and M. David Kamra t
shall be a Class III director. Duy Tran shall resign
as a director immediately following execution of this
Agreement.
(b) P&S shall be
entitled to designate two (2) individuals (the " P&S
Nominees ") to serve as directors effective upon the Tranche A
Closing, which P&S Nominees shall initially be Jacob
Schorr and a second
P&S Nominee to be designated by P&S. Effective upon the
Filing, one of the P&S Nominees shall serve as a Class
II director and one shall serve as Class III director. Effective
upon the Filing, the second P&S Nominee
shall be a Class II director
and Jacob Schorr shall be a Class III director. Until the second
P&S Nominee is elected the second P&S Nominee’s board
seat shall remain vacant.
(c)
Qualmax and P&S
shall jointly be entitled to designate one (1)
individual (the " Joint Nominee ") to serve as a director
effective upon the Tranche A Closing, which Joint Nominee shall be
designated jointly by Qualmax and P&S. Effective upon the
Filing, the Joint Nominee shall be a Class I director. Until the
Joint Nominee is elected the Joint Nominee’s board seat shall
remain vacant.
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(d) Pursuant to
Section 3 hereof, the Qualmax Nominees, the P&S
Nominees and the Joint Nominee so designated shall be elected by
the Voting Stockholders (provided that such nominees remain willing
to serve) such that the Qualmax Nominees, the P&S
Nominees and one Joint Nominee shall serve on the Board until the
2009 annual meeting of stockholders (and in the Classes specified
herein upon the Filing).
(e) If, prior to an
individual’s election to the Board, any individual designated
to serve as a director shall be unable or unwilling to serve as a
director, the group who designated any such individual to serve as
a director pursuant to the provisions of this Section 2
shall be entitled to designate a replacement in accordance with the
provisions of this Section 2 who shall then be elected a
director.
(f) No Voting
Stockholder, nor any affiliate of any such Voting 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 Voting Stockholder have any liability as a result of
voting for any such designee in accordance with the provisions of
this Agreement.
3. Covenant to
Vote; No Conflicting Agreements .
(a) Each Voting
Stockholder shall take all necessary or desirable action necessary
to call, or to cause the Company and the appropriate officers and
directors of the Company to call, a meeting of the Voting
Stockholders of the Company and to vote or cause to be voted all
shares of Voting Stock of the Company owned, beneficially or of
record, by such party at any such meeting in favor of, or take all
necessary or desirable action by written consent in lieu of any
such meeting, to cause the election and re-election (provided they
remain willing to serve) as members of the Board of those
individuals designated in accordance with Section 2 of this
Agreement. In addition, each Voting Stockholder agrees to vote or
cause to be voted all shares of Voting Stock of the Company owned,
beneficially or of record, by such party upon any other matter
arising under this Agreement submitted to a vote of the Voting
Stockholders of the Company in such a manner as to implement the
terms of, or otherwise effect the intent of, this Agreement. The
voting of Voting Stock pursuant to this Agreement may be effected
in person, by proxy, by written consent, or in any other manner
permitted by the laws of the State of Delaware.
(b) No Voting
Stockholder shall (i) enter into or agree to be bound by any voting
trust, (ii) enter into any stockholder agreement or arrangement of
any kind with any person or entity, or (iii) take any action,
either alone or in concert with any other persons or entities, in
each of the
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