Exhibit 10.4 Form


    
      

    

                                                                                            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
      Kamrat
      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 foregoing cases which would be inconsistent
      in any manner with the provisions of this Agreement. 

     

    


    
      
        
           

        

        
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    4. Removal.
      Notwithstanding anything to the contrary contained in the Company’s certificate
      of incorporation or by-laws (as the same may each be amended and/or restated
      from time to time), on all matters relating to the removal of directors of
      the
      Company, 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,
      to
      ensure that no director of the Company may be removed from the Board except
      (a)
      for cause, (b) with respect to the removal of any Qualmax Nominee designated
      pursuant to Section
      2(a)
      hereof,
      upon the prior vote or written consent of Qualmax, (c) with respect to the
      removal of any P&S
      Nominee
      designated pursuant to Section
      2(b)
      hereof,
      upon the prior vote or written consent of P&S, or (d) with respect to the
      removal of the Joint Nominee designated pursuant to Section
      2(c)
      hereof,
      upon the prior vote or written consent of Qualmax and P&S.

     

    Any
      vacancy created by the operation of this Section
      4
      shall be
      filled in accordance with Section
      5
      hereof.

     

    5. Vacancies.
      Notwithstanding anything to the contrary contained in the Company’s certificate
      of incorporation or by-laws (as the same may each be amended and/or restated
      from time to time), in the event that a vacancy is created on the Board at
      any
      time by the death, disability, retirement, resignation or removal of a director,
      the individual to fill such vacancy shall be nominated by the group entitled
      to
      fill such directorship in accordance with the provisions of Section
      2
      hereof.
      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 called for the purpose of
      filling such vacancy, or in any written consent executed in lieu of such a
      meeting of the Voting Stockholders, and shall take all other necessary or
      desirable actions, to ensure the election to the Board of the individual
      designated to fill such vacancy pursuant to this Section
      5.

     

    6. Board
      Observer.
      During
      the term hereof a designee of P&S, appointed by P&S in writing and
      identified by written notice to the Company, shall have the right to attend
      and
      observe, but not to vote at, all annual and special meetings of the
      Board.

     

    7. Representations
      and Warranties.
      Each
      Voting Stockholder represents and warrants to the other parties hereto,
      severally and not jointly, as to itself only, that:

     

    (a) such
      party has full power and capacity to execute, deliver and perform this
      Agreement, and this Agreement has been duly and validly authorized, executed
      and
      delivered by such party and constitutes a legal and binding obligation of such
      party, enforceable against such party in accordance with its terms;


     

    (b) such
      party has not, prior to the date of this Agreement, executed or delivered any
      proxy or entered into any voting agreement or similar arrangement relating
      to
      its or his Voting Stock (except for any such agreements among the parties
      hereto); and

     

    (c) the
      execution, delivery and performance by such party of this Agreement and the
      consummation by such party of the transactions contemplated hereunder will
      not,
      with or without the giving of notice or lapse of time, (i) violate any provision
      of law, statute, rule or regulation to which such party is subject, (ii) violate
      any order, judgement or decree applicable to

     

    


    
      
        
           

        

        
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    such
      party, or (iii) conflict with, or result in a breach or default under, any
      material term or condition of any material agreement or other material
      instrument to which such party is a party or by which such party is
      bound. 

     

    8. Stock
      Certificates. If
      so
      requested by the Company, the Voting Stockholders agree that each certificate
      representing shares of Voting Stock owned by the Voting Stockholders shall
      bear
      the following legend on the face or reverse side thereof:

     

    “THE
      SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO VOTING RESTRICTIONS
      PURSUANT TO A CERTAIN AMENDED AND RESTATED VOTING AGREEMENT BY AND AMONG NEW
      WORLD BRANDS, INC. (THE “COMPANY”), QUALMAX, INC., AND CERTAIN STOCKHOLDERS OF
      THE COMPANY, A COPY OF WHICH IS ON FILE AT THE PRINCIPAL EXECUTIVE OFFICES
      OF
      THE COMPANY AND MAY BE OBTAINED UPON WRITTEN REQUEST TO THE COMPANY.”

     

    9. Specific
      Performance. 
      Each
      party acknowledges and agrees that in the event of any breach of this Agreement,
      the non-breaching party or parties may be irreparably harmed and may not be
      made
      whole by monetary damages. The parties hereby agree that, in addition to and
      without prejudice to any other remedy to which they may be entitled at law
      or in
      equity, they shall be entitled to compel specific performance of this Agreement
      and injunctive and other equitable relief, and the parties hereto further agree
      to waive any requirement for the securing or posting of any bond in connection
      with the obtaining of any such injunctive or other equitable
      relief.

     

    10. Amendment. This
      Agreement may only be amended or modified with the written consent of each
      of
      the Voting Stockholders. 

     

    11. Subsequent
      Transferees.
      Except
      in the case of (a) a pro rata distribution of all of the Voting Stock held
      by
      Qualmax to the stockholders of Qualmax, whether by way of a downstream merger
      of
      Qualmax into New World or otherwise (a “Distribution”),
      which
      shall be governed by Section
      21
      hereof,
      and (b) sales of Voting Stock into the public marketplace (subject to the terms
      of that certain Lock-Up Agreement dated of even date herewith, as the same
      may
      be amended from time to time (the “Lock-Up
      Agreement”),
      each
      Voting Stockholder agrees that it shall cause each transferee of its Voting
      Stock of the Company to become a party hereto and to agree in writing to be
      bound by and to comply with all of the terms and provisions of this Agreement
      prior to any transfer of such Voting Stock. Notwithstanding anything contained
      in this Agreement to the contrary, nothing herein shall preclude the Voting
      Stockholders from selling their Voting Stock pursuant to Rule 144 or an
      effective registration statement.

     

    12. No
      Limitation on Other Voting Rights.
      Notwithstanding any provision of this Agreement or the Lock-Up Agreement to
      the
      contrary, nothing in this Agreement shall limit or restrict the Voting
      Stockholders from acting in their sole discretion on any matter other than
      those
      referred to in this Agreement.

     

    


    
      
        
           

        

        
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    13. Notice. 
      Unless
      otherwise specifically provided herein, all notices or other communications
      under this Agreement shall be effective only if in writing and delivered by
      hand, delivered by telecopier, or mailed by overnight courier
      service:

     

    (a) if
      to the
      Company or Qualmax, addressed to its principal executive offices at 340 West
      Fifth Avenue, Eugene, Oregon 97401, Attn: General Counsel, with a copy to Kramer
      Levin Naftalis & Frankel LLP, 1177 Avenue of the Americas, New York, New
      York 10036, Attn: Scott S. Rosenblum; and

     

    (b) if
      to
      P&S, TBTE or Oregon Spirit, addressed to 2019 SW 20th
      Street,
      Suite 108, Fort Lauderdale, Florida 33315, Attn: Selvin Passen, M.D., with
      a
      copy to Adelberg Rudow, Dorf & Hendler, LLC, 7
      Saint
      Paul Street, Suite 600, Baltimore,
      MD 21202, Attn: David
      B.
      Rudow, Esquire.

     

    Any
      notice or other communication shall be deemed to be given: (i) if delivered
      by
      hand, on the date of such delivery; (ii) if delivered by telecopier, when
      receipt is mechanically acknowledged; and if mailed by overnight courier, on
      the
      first business day following the date of such mailing. 

     

    14. Entire
      Agreement.
      This
      Agreement contains the entire agreement among the parties hereto with respect
      to
      the subject matter contained herein and supersedes all prior oral and written
      agreements and undertakings among the parties with respect to such subject
      matter.

     

    15. Governing
      Law; Jurisdiction. This
      Agreement shall be governed by and construed in accordance with the internal
      laws of the State of Delaware, without regard to the principles of the conflict
      of laws thereof. Each party hereto consents and submits to the jurisdiction
      of
      any state or federal court sitting in Wilmington, Delaware in connection with
      any dispute arising out of or relating to this Agreement. Each party hereto
      waives any objection to the laying of venue in such courts and any claim that
      any such action has been brought in an inconvenient forum. To the extent
      permitted by law, any judgment in respect of a dispute arising out of or
      relating to this Agreement may be enforced in any other jurisdiction within
      or
      outside the United States by suit on the judgment, a certified copy of such
      judgment being conclusive evidence of the fact and amount of such judgment.
      Each
      party hereto agrees that personal service of process may be effected by any
      means permitted by law. 

     

    16. Successors
      and Assigns; Binding Effect.
      All of
      the terms and provisions of this Agreement shall be binding upon, shall inure
      to
      the benefit of, and shall be enforceable by the respective successors, assigns,
      heirs and legal representatives of the parties hereto. 

     

    17. Inspection.
      A copy
      of this Agreement shall be filed with the Secretary of the Company and shall
      be
      kept with the records of the Company. For so long as this Agreement shall be
      in
      effect, this Agreement shall be made available for inspection by any Voting
      Stockholder at the principal executive offices of the Company.

     

    18. Headings.
      The
      headings in this Agreement are for convenience of reference only and shall
      not
      limit or otherwise affect the meaning or interpretation of this
      Agreement.

     

    


    
      
        
           

        

        
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    19. Severability. If
      any
      provision of this Agreement shall be invalid, illegal or unenforceable in any
      jurisdiction, the validity, legality and enforceability of the remaining
      provisions, or of such provision in any other jurisdiction, shall not in any
      way
      be affected or impaired thereby.

     

    20. Facsimile;
      Counterparts.
      This
      Agreement may be executed by facsimile and in two or more counterparts, each
      of
      which shall be deemed an original and all of which taken together shall
      constitute one and the same instrument.

     

    21. Distribution. 

     

    (a) Notwithstanding
      anything to the contrary set forth herein, in the event of a Distribution:
      (i)
      each of the Kamrat Family members agrees that he, she or it shall become a
      party
      hereto as a Voting Stockholder and shall be bound by and shall comply with
      all
      of the terms and provisions of this Agreement, and shall, from and after the
      date of such Distribution, cause each transferee of his, her or its Voting
      Stock
      of the Company to become a party hereto and to agree in writing to be bound
      by
      and to comply with all of the terms and provisions of this Agreement prior
      to
      any transfer of such Voting Stock; and (ii) the right of Qualmax hereunder
      to
      designate the Qualmax Nominess shall be vested in, and based on, the unanimous
      agreement of D. Kamrat and N. Kamrat. For purposes of clarification, the
      distributees in a Distribution other than the Kamrat Family members shall not
      be
      required to become a party to this Agreement and shall not be bound by the
      terms
      and provisions of this Agreement. 

     

    (b) In
      furtherance of the foregoing, the Kamrat Family members represents and warrants
      to the other parties hereto that they currently collectively hold sixty-two
      percent (62%) of the outstanding common stock, par value $.001 per share, of
      Qualmax (“Qualmax
      Common Stock”).
      Each
      of the Kamrat Family members agrees that, prior to a Distribution, he, she
      or it
      shall not transfer any shares of its Qualmax Common Stock unless the transferee
      thereof shall agree in writing to become a party hereto subject to the same
      restrictions and obligations as the Kamrat Family members and to be bound by
      and
      to comply with this Section
      21
      prior to
      any transfer of such Qualmax Common Stock. 

     

    22. Termination. 

     

    (a) In
      the
      event that (i) the Tranche B-1 Closing Condition is satisfied and P&S fails
      to purchase the Tranche B-1 Shares at the Tranche B-1 Closing or (ii) the
      Tranche B-2 Closing Condition is satisfied and P&S fails to purchase the
      Tranche B-2 Shares, or the Aggregate Tranche B Shares, as applicable, at the
      Tranche B-2 Closing, the terms of this Agreement shall terminate and be of
      no
      further force and effect unless, not less than fifteen (15) days after receipt
      of written notice of failure to purchase from the Company, P&S has purchased
      the applicable Tranche B-1 or Tranche B-2 Shares. The Company’s rights under
      this Section 22(a) upon a failure by P&S to purchase as required by the
      Subscription Agreement are in addition to any other rights or remedies available
      to the Company, at law or at equity, all of which rights and remedies may be
      exercised cumulatively.

     

    


    
      
        
           

        

        
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    (b) In
      any
      event, the terms and provisions of this Agreement shall terminate and be of
      no
      further force and effect immediately following the election of directors at
      the
      2009 annual meeting of stockholders of the Company.

     

    (c) Notwithstanding
      the provisions of Sections
      22(a)
      and
(b),
      upon
      termination of this Agreement Section
      21
      hereof,
      which shall survive, and the parties hereto agree that the terms and provisions
      of this Agreement will be further amended and restated to reinstate the terms
      and provisions of the Original Agreement (subject to the survival of
Section
      21
      hereof,
      which provisions shall be deemed to replace and supersede the correlative
      provision in the Original Agreement), and such amendment and restated shall
      be
      deemed to occur automatically and without any further action, consent or
      approval on the party of any party hereto. 

     

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    IN
      WITNESS WHEREOF, the parties hereto have caused this Amended and Restated Voting
      Agreement to be duly executed on the date first above written.

    


    COMPANY:

    


    NEW
      WORLD
      BRANDS, INC.


    


    By:_____________________________ 

    Name: M.
      David Kamrat

    Title: CEO

    


    VOTING
      STOCKHOLDERS: 

    


    QUALMAX,
      INC.

     

    By:_____________________________ 

    Name: M.
      David Kamrat

    Title: CEO

    


    P&S
      SPIRIT, LLC


    


    By:____________________________ 

    Name: Selvin
      Passen, M.D.

    Title: Manager

    


    SELVIN
      & SYLVIA PASSEN, TBTE

    


    By:____________________________

    Selvin
      Passen, M.D.

    


    By:____________________________

    Sylvia
      Passen

    


    OREGON
      SPIRIT, LLC


    


    By:___________________________ 

    Name: Selvin
      Passen, M.D.

    Title: Manager

     

    
 

    
      
        
           

        

        
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    Solely
      for purposes of Section
      21
      hereof:


    


    __________________________

    M.
      DAVID
      KAMRAT

    


    


    __________________________

    NOAH
      KAMRAT

    


    


    __________________________

    JANE
      KAMRAT

    


    


    __________________________

    TRACY
      HABECKER

    
 

     

     

     

     

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