8.01


    
      

    

                                                                                            Exhibit
      10.2

     

     

     

     

    

      AMENDED
        AND RESTATED ESCROW AGREEMENT

      


      THIS
        AMENDED AND RESTATED ESCROW AGREEMENT (the
        “Agreement”),
        is
        entered into and effective as of December 29, 2006 by and among New World
        Brands, Inc., a Delaware corporation (the “Company”),
        P&S Spirit, LLC, a Nevada limited liability company (the “Purchaser”)
        and
        Kramer Levin Naftalis & Frankel LLP, with an address at 1177 Avenue of the
        Americas, New York, NY 10036 (the “Escrow
        Agent”).
        Capitalized terms used but not defined herein shall have the meanings set
        forth
        in the Subscription Agreement (as defined below).

      


      RECITALS

       

      The
        Company is a party to that certain Amended and Restated Stock Subscription
        Agreement of even date herewith (the “Subscription
        Agreement”),
        a
        copy of which is attached hereto as Annex
        A,
        pursuant to which the Company has agreed to issue and sell to the Purchaser,
        and
        the Purchaser has agreed to purchase (i) 11.160454 shares (the “Tranche
        A Shares”)
        of
        Series A Convertible Preferred Stock, par value $0.01 per share (the
“Series
        A Preferred Stock”)
        on the
        date hereof, (ii) upon the satisfaction of certain conditions set forth in
        the
        Subscription Agreement, an additional 3.720151 shares of Series A Preferred
        Stock (the “Tranche
        B-1 Shares”)
        convertible into shares (the “Tranche
        B-1 Common Shares”)
        of
        common stock, par value $0.01 per share, of the Company (the “Common
        Stock”),
        at
        the
        Tranche B-1 Closing, and (iii) upon the satisfaction of certain conditions
        set
        forth in the Subscription Agreement, an additional 3.720151 shares of Series
        A
        Preferred Stock (the “Tranche
        B-2 Shares”,
        convertible into shares of Common Stock, (the “Tranche
        B-2 Common Shares”),
        and,
        together with the Tranche B-1 Shares and, to the extent issued hereunder,
        the
        Tranche B-1 Common Shares and/or the Tranche B-2 Common Shares, the
“Escrow
        Shares”)
        at the
        Tranche B-2 Closing. The Tranche B-1 Closing and Tranche B-2 Closing are
        each
        referred to herein as a “Closing”.

       

      In
        connection with the execution and delivery of the Stock Subscription Agreement
        dated as of December 29, 2009, which agreement is being amended and restated
        in
        its entirety by the Subscription Agreement referenced in the preceding Recital,
        the parties entered into an Escrow Agreement dated December 29, 2006 (the
        “Original
        Escrow Agreement”).
        In
        connection with the execution and delivery of the Subscription Agreement
        and the
        consummation of the transactions contemplated thereby, the parties now desire
        to
        amend and restate the Original Escrow Agreement in its entirety, as provided
        herein.

       

      The
        Company and the Purchaser desire that the Escrow Agent hold the Escrow Shares
        as
        required by the Subscription Agreement in escrow until each Closing has
        occurred, or the Escrow Agent has received notice that a Closing will not
        occur,
        and the Escrow Agent has received a copy of the signed written instructions
        from
        the Company and the Purchaser (the “Release
        Notice”).

       

      NOW,
        THEREFORE, in consideration of the covenants and mutual promises contained
        herein and other good and valuable consideration, the receipt and legal
        sufficiency of which are hereby acknowledged and intending to be legally
        bound
        hereby, the parties agree as follows:

       


      
        
           

        

        
          1

          
            

          

        

        
           

        

      


       

      ARTICLE
        1

      TERMS
        OF
        THE ESCROW

       

      1.1. Designation
        of Escrow Agent.
        The
        Escrow Agent is hereby appointed escrow agent to hold and dispose of the
        Escrow
        Shares provided for herein, in accordance with the terms and conditions set
        forth in this Agreement, and the Escrow Agent accepts such designation and
        agrees to hold and dispose of such Escrow Shares in accordance with the
        provisions of this Agreement. Contemporaneously with the execution of this
        Agreement, the Company has deposited with
        the
        Escrow Agent a stock certificate representing the Tranche B-1 Shares and
        a stock
        certificate representing the Tranche B-2 Shares, together with an undated,
        signed assignment in blank for each certificate deposited. The Escrow Agent
        hereby acknowledges receipt of the Escrow Shares.

       

      1.2. Automatic
        Conversion of Series A Preferred Stock.
        In the
        event, prior to the Tranche B-1 Closing or the Tranche B-2 Closing, the Company
        files a certificate of amendment to its certificate of incorporation and
        as a
        result thereof, the Series A Preferred Stock is automatically converted into
        shares of Common Stock of the Company (the “Conversion
        Event”):
        (a)
        the Company, if the Conversion Event occurs before the Tranche B-1 Closing,
        shall cause to be delivered to the Escrow Agent stock certificates representing
        the Tranche B-1 Common Shares and the Tranche B-2 Common Shares, and the
        Escrow
        Agent shall, upon receipt thereof, return to the Company the stock certificates
        representing the Tranche B-1 Shares and the Tranche B-2 Shares, which
        certificates will be cancelled by the Company upon receipt; and (b) the Company,
        if the Conversion Event occurs before the Tranche B-2 Closing, shall cause
        to be
        delivered to the Escrow Agent a stock certificate representing the Tranche
        B-2
        Common Shares, and the Escrow Agent shall, upon receipt thereof, return to
        the
        Company the stock certificate representing the Tranche B-2 Shares, which
        certificate will be cancelled by the Company upon receipt. 

       

      1.3. Disbursement
        Procedures.

       

      (a) Tranche
        B-1 Closing.
        In the
        event of the Tranche B-1 Closing Condition and the other conditions required
        to
        consummate the purchase and sale of the Tranche B-1 Shares at the Tranche
        B-1
        Closing have been satisfied and upon receipt by the Company of the Tranche
        B-1
        Purchase Price, the Company shall deliver to the Escrow Agent (with a copy
        to
        the Purchaser), a written notice (a “Release
        Notice”),
        instructing the Escrow Agent to release the certificate representing the
        Tranche
        B-1 Shares, or the Tranche B-1 Common Shares, if applicable, to the
        Purchaser.

       

      (b) Tranche
        B-2 Closing.
        In the
        event of the Tranche B-2 Closing Condition and the other conditions required
        to
        consummate the purchase and sale of the Tranche B-2 Shares at the Tranche
        B-2
        Closing have been satisfied and upon receipt by the Company of the Tranche
        B-2
        Purchase Price, the Company shall deliver to the Escrow Agent (with a copy
        to
        the Purchaser), a Release Notice instructing the Escrow Agent to release
        the
        certificate representing the Tranche B-2 Shares, or the Tranche B-2 Common
        Shares, if applicable, to the Purchaser; provided
        that in
        the event the Tranche B-1 Closing Condition was not achieved but the Tranche
        B-2
        Closing Condition and the other conditions required to consummate the purchase
        and sale of the Tranche B-2 Shares at the Tranche B-2 Closing have been
        satisfied and upon receipt by the

       

       

      
        
           

        

        
          2

          
            

          

        

        
           

        

      

       

       

      Company
        of the Aggregate Tranche B Purchase Price, the Company shall deliver to the
        Escrow Agent (with a copy to the Purchaser), a Release Notice instructing
        the
        Escrow Agent to release the certificates representing the Tranche B-1 Shares
        and
        the Tranche B-2 Shares, or the Aggregate Tranche B Common Shares, if applicable,
        to the Purchaser.

       

      (c) Termination
        Date.
        If the
        Tranche B-1 Closing and/or the Tranche B-2 Closing have not occurred, or
        if the
        purchase option pursuant to Section 1(e) of the Subscription Agreement has
        not
        been exercised, at the time(s) and manner required by the Subscription
        Agreement, except to the extent (and for the period of time) delayed by a
        breach
        thereof by the Company, the Escrow Agent shall return to the Company for
        cancellation any and all Escrow Shares then held by the Escrow Agent.
Upon
        distribution of all the Escrow Shares pursuant to this Section
        1.3,
        this
        Agreement and the escrow created hereunder shall terminate.

       

      1.4. General
        Terms and Standards Regarding the Escrow Agent.    Notwithstanding
        any terms of this Agreement to the contrary, each term of this Agreement,
        including without limitation each of the stated duties and responsibilities
        of
        the Escrow Agent set forth herein, shall be subject to the following terms
        and
        conditions: 

       

      (a) The
        duties, responsibilities and obligations of the Escrow Agent shall be limited
        to
        those expressly set forth in this Agreement (and the duty to exercise reasonable
        care in the physical safekeeping of the Escrow Shares held in escrow hereunder),
        and no implied duties, responsibilities or obligations shall be read into
        this
        Agreement against the Escrow Agent. 

       

      (b) The
        Escrow Agent shall not be subject to, bound by, charged with notice of or
        be
        required to comply with or interpret any agreement or document (including
        without limitation the Subscription Agreement) between or among the interested
        parties (whether or not reference to any such other agreement or documents
        is
        expressed herein) other than this Agreement. 

       

      (c) The
        Escrow Agent shall in no instance be under any duty to give the Escrow Shares
        held by it hereunder any greater degree of care than it gives its own similar
        property. 

       

      (d) The
        Escrow Agent may rely upon, and shall be protected in acting or refraining
        from
        acting upon, any written notice, instruction, statement, request, waiver,
        order,
        judgment, certification, consent, receipt or other paper or document furnished
        to it (not only as to genuineness, but also as to its due execution and
        validity, the genuineness of signatures appearing thereon and as to the truth
        and accuracy of any information therein contained), which it in good faith
        believes to be genuine and signed or presented by the proper
        person.

       

      (e) Neither
        the Escrow Agent nor any of its partners, managers, directors, officers or
        employees, or any of its or their respective affiliates, shall be liable
        to
        anyone for any error of judgment, or for any act done or step taken or omitted
        to be taken by it or any of its directors, officers or employees, or for
        any
        mistake of fact or law, or for anything which it, or any of its directors,
        officers or employees, may do or refrain from doing in connection with or
        in
the
        administration of this Agreement, unless and except to the extent the same
        constitutes gross negligence or willful misconduct on the part of the Escrow
        Agent. 

       

       

      
        
           

        

        
          3

          
            

          

        

        
           

        

      

       

       

      (f) The
        Escrow Agent shall not be deemed to have notice of any fact, claim or demand
        with respect hereto unless actually known by an officer charged with
        responsibility for administering this Agreement or unless in writing received
        by
        the Escrow Agent and making specific reference to this Agreement. 

       

      (g) No
        provision of this Agreement shall require the Escrow Agent to expend or risk
        its
        own funds, or to take any legal or other action hereunder which might in
        its
        judgment involve it in, or require it to incur in connection with the
        performance of its duties hereunder, any expense or any financial liability
        unless it shall be furnished with indemnification acceptable to it.


       

      (h) Nothing
        in this Agreement shall obligate the Escrow Agent to qualify to do business
        or
        act in any jurisdiction in which it is not presently qualified to do business,
        or be deemed to impose upon the Escrow Agent the duties of a trustee. The
        duties
        of the Escrow Agent under this Agreement are strictly ministerial in
        nature.

       

      (i) In
        no
        event shall the Escrow Agent have any liability for any failure or inability
        of
        any of the interested parties to perform or observe his or its duties under
        the
        Agreement, or by reason of a breach of this Agreement by either of the
        interested parties. In no event shall the Escrow Agent be obligated to take
        any
        action against any of the interested parties to compel performance
        hereunder.

       

      (j) The
        Escrow Agent shall in no instance be obligated to commence, prosecute or
        defend
        any legal proceedings in connection herewith. The Escrow Agent shall be
        authorized and entitled, however, in any instance to commence, prosecute
        or
        defend any legal proceedings in connection herewith, including without
        limitation any proceeding it may deem necessary to resolve any matter or
        dispute, to obtain a necessary declaration of rights, or to appoint a successor
        upon resignation. 

       

      (k) Whenever
        the terms hereof call for any notice or other action on a day which is not
        a
        business day, such action may be taken, or such notice given, as the case
        may
        be, on the next succeeding business day. As used herein, “business day” shall
        mean any day other than a Saturday or Sunday, or any other day on which the
        Escrow Agent is closed for business.

       

      (l) In
        the
        event of any ambiguity or uncertainty under this Agreement, or in any notice,
        instruction, or other communication received by the Escrow Agent hereunder,
        the
        Escrow Agent may, in its reasonable discretion, refrain from taking action,
        and
        may retain the Escrow Shares, until and unless it receives written instruction
        signed by all interested parties, or a decision by a court of competent
        jurisdiction which eliminates such uncertainty or ambiguity.

       

      (m) If
        at any
        time the Escrow Agent is served with any judicial or administrative order,
        judgment, decree, writ or other form of judicial administrative process which
        in
        any way relates to or affects the Escrow Shares (including but not limited
        to
        orders of attachment or garnishment or other forms of levies or injunctions
        or
        stays relating to the Escrow Shares), the Escrow Agent is authorized to comply
        therewith in any manner as it or its legal counsel
        reasonably deems appropriate; and if the Escrow Agent complies with any such
        judicial or administrative order, judgment, decree, writ or other form of
        judicial or administrative

       

       

       

      
        
           

        

        
          4

          
            

          

        

        
           

        

      

       

      process,
        the Escrow Agent shall not be liable to any of the parties hereto or to any
        other person or entity notwithstanding that though such order, judgment,
        decree,
        writ or process may be subsequently modified, annulled, set aside, vacated,
        found to have been without proper jurisdiction, or otherwise determined to
        have
        been without legal force or effect.

       

      (n) The
        Escrow Agent shall have no liability for the actions or omissions of the
        Escrow
        Agent or any transfer agent, book-entry depository, nominee, correspondent,
        subagent or subcustodian, except to the extent that such action or omission
        of
        any transfer agent, book-entry depository, nominee, correspondent, subagent
        or
        subcustodian was caused by the Escrow Agent’s own gross negligence, bad faith or
        willful misconduct. 

       

      (o) The
        parties understand that the Escrow Shares are not subject to an effective
        registration statement at the time of this Agreement, and that the Escrow
        Agent
        shall not be responsible for fluctuations in the market in connection with
        any
        transfer of the shares

       

      ARTICLE
        2

      MISCELLANEOUS

       

      2.1. Voting
        of Escrow Shares and Other Rights.    All
        voting rights with respect to Escrow Shares, until returned to the Company
        pursuant to this Agreement, shall be exercised by the Escrow Agent solely
        upon
        the instruction of the Purchaser, and the Escrow Agent shall from time to
        time
        execute and deliver proxies, consents or other documents as instructed by
        the
        Company and as necessary to enable the Company to exercise such rights. In
        the
        absence of any instructions from the Company with respect to the voting of
        the
        Escrow Shares, the Escrow Agent shall not vote any of the Escrow
        Shares.

       

      2.2. Successor
        Escrow Agent.
        In the
        event the Escrow Agent becomes unavailable or unwilling to continue in its
        capacity herewith, the Escrow Agent may resign and be discharged from its
        duties
        or obligations hereunder by delivering a resignation to the parties, not
        less
        than 10 days prior to the date when such resignation shall take effect. The
        Company may appoint a successor Escrow Agent with the consent of the Purchaser,
        which shall not be unreasonably withheld, delayed or conditioned. If, within
        such notice period, the Company provides to the Escrow Agent written
        instructions with respect to the appointment of a successor Escrow Agent
        and
        directions for the transfer of any Escrow Shares then held by the Escrow
        Agent
        to such successor, the Escrow Agent shall act in accordance with such
        instructions and promptly transfer such Escrow Shares to such designated
        successor. If no successor is so appointed, the Escrow Agent may apply to
        a
        court of competent jurisdiction for such appointment.

       

      2.3. Waivers.
        No
        waiver or any breach of any covenant or provision herein contained shall
        be
        deemed a waiver of any preceding or succeeding breach thereof, or of any
        other
        covenant or provision herein contained. No extension of time for performance
        of
        any obligation or act shall be deemed an extension of the time for performance
        of any other obligation or act.

       


      
        
           

        

        
          5

          
            

          

        

        
           

        

      


      2.4. Notice.
        All
        notices, requests, demands, and other communications under this Agreement
        shall
        be in writing and shall be deemed to have been duly given on the date of
        service
        if served personally on the party to whom notice is to be given, on the first
        business day following the date of transmittal of services via telecopy to
        the
        party to whom notice is to be given, or on the fifth day after mailing if
        mailed
        to the party to whom notice is to be given, by first class mail, registered
        or
        certified, postage prepaid, or by an internationally recognized courier service,
        and properly addressed as follows (or at such other address for a party as
        shall
        be specified by like notice:

       

      
        	 	
                To
                  the Company:

              	
                New
                  World Brands, Inc.

              


      

      
        	 	 	
                340
                  West 5th
                  Avenue

              


      

      
        	 	 	
                Eugene,
                  OR 97401

              


      

      
        	 	 	
                Attn:
                  Ian T. Richardson

              


      

      
        	 	 	
                Fax:
                  (541) 683-4009

              


      

       

      
        	 	 	
                With
                  a copy to:

              


      

       

      
        	 	 	
                Kramer
                  Levin Naftalis & Frankel LLP

              


      

      
        	 	 	
                1177
                  Avenue of the Americas

              


      

      
        	 	 	
                New
                  York, NY 10036

              


      

      
        	 	 	
                Attn:
                  Scott S. Rosenblum, Esq.

              


      

      
        	 	 	
                Fax:
                  (212) 715-8000

              


      

       

      
        	 	
                To
                  the Purchaser:

              	
                P&S
                  Spirit, LLC

              


      

      
        	 	 	
                2019
                  SW 20th
                  Street, Suite 108

              


      

      
        	 	 	
                Ft.
                  Lauderdale, FL 33315

              


      

      
        	 	 	
                Attn:
                  Dr. Selvin Passen

              


      

      Fax:
        (410) 327-9656 

       

      
        	 	 	
                With
                  a copy to:

              


      

       

      
        	 	 	
                Adelberg,
                  Rudow, Dorf & Hendler, LLC 

              


      

      
        	 	 	
                7
                  Saint Paul Street, Suite 600

              


        	 	 	Baltimore,
                Maryland
                21202  


        	 	 	
                Attn: David
                  B. Rudow, P.A.

                Fax:
                  (410)
                  539-5834 

              


      

              

      
        	 	
                To
                  the Escrow Agent:

              	
                Kramer
                  Levin Naftalis & Frankel LLP

              


      

      
        	 	 	
                1177
                  Avenue of the Americas

              


      

      
        	 	 	
                New
                  York, NY 10036

              


      

      
        	 	 	
                Attn:
                  Scott S. Rosenblum, Esq.

              


      

      
        	 	 	
                Fax:
                  (212) 715-8000

              


      

       


      
        
           

        

        
          6

          
            

          

        

        
           

        

      


      Notwithstanding
        anything herein to the contrary, any party may give any notice, request,
        demand,
        claim or other communication hereunder by personal delivery or telecopy,
        but no
        such notice, request, demand, claim or other communication shall be deemed
        to
        have been duly given unless and until it actually is received by the party
        for
        whom it is intended. Any party may change the address to which notices,
        requests, demands, claims and other communications hereunder are to be delivered
        by giving the other parties notice in the manner herein set forth. Copies
        of any
        notice, request, demand, claim or other communication hereunder by personal
        delivery or telecopy given to the Escrow Agent by either party, shall be
        delivered to the other party as soon thereafter as practicable.

       

      2.5 Successors
        and Assigns.
        This
        Agreement shall be binding upon and shall inure to the benefit of the permitted
        successors and permitted assigns of the parties hereto.

       

      2.6 Entire
        Agreement.
        Except
        for the provisions of the Subscription Agreement referenced herein, this
        Agreement constitutes the entire understanding and agreement of the parties
        with
        respect to the subject matter of this Agreement and supersedes all prior
        agreements or understandings, written or oral, between the parties with respect
        to the subject matter hereof, including, without limitation, the Original
        Agreement.

       

      2.7 Amendments.
        This
        Agreement may be amended only with the written consent of each party
        hereto.

       

      2.8 Construction.
        Whenever required by the context of this Agreement, the singular shall include
        the plural and masculine shall include the feminine. This Agreement shall
        not be
        construed as if it had been prepared by one of the parties, but rather as
        if
        both parties had prepared the same. Unless otherwise indicated, all references
        to Articles are to this Agreement.

       

      2.9 Governing
        Law.
        The
        parties hereto expressly agree that this Agreement, and any disputes arising
        hereunder, shall be governed by, interpreted under and construed and enforced
        in
        accordance with the laws of the State of New York, without regard to conflicts
        of law principles that would result in the application of the substantive
        laws
        of another jurisdiction. Any action to enforce, arising out of, or relating
        in
        any way to, any provisions of this Agreement shall only be brought in a state
        or
        Federal court sitting in New York City, Borough of Manhattan.

       

      2.10 Fees
        and Expenses.
        The
        Company and the Purchaser shall equally be responsible for any reasonable
        fees
        and expenses incurred by the Escrow Agent in connection with performing its
        duties pursuant to this Agreement.2.11 Indemnity.
        The
        Company and the Purchaser agree, jointly and severally, to indemnify and
        hold
        harmless the Escrow Agent and its partners,
        employees, agents and representatives, and its and their respective affiliates,
        from and against any and all losses, claims, liabilities, costs or expenses
        (including attorney’s fees) in any way arising from or relating to (i) the
        execution or performance of the Escrow Agent of its duties hereunder other
        than
        any such loss, claim, liability, cost or expense to the extent the same shall
        have been determined by final, unappealable judgment of a court of competent
        jurisdiction to have resulted directly as a result of the gross negligence
        or
        willful misconduct of the Escrow Agent; or (ii)
        the
        Escrow Agent’s following any joint instructions or other directions from both
        Purchaser and the Company, or any notice given pursuant to Section
        1.3,
        any
        other party hereunder, to the extent so permitted hereunder. The parties
        hereto
        acknowledge that the

       

       

      
        
           

        

        
          7

          
            

          

        

        
           

        

      

       

      foregoing
        indemnities shall survive the resignation or removal of the Escrow Agent
        or the
        termination of this Agreement. The parties hereby grant the Escrow Agent
        a lien
        on, right of set-off against and security interest in the Escrow Shares for
        the
        payment of any claim for indemnification, compensation, expenses and amounts
        due
        hereunder, which remedy shall not be exclusive of any other remedy available
        to
        the Escrow Agent, whether at law, in equity or otherwise. 

       

      2.12 Counterparts.
        This
        Agreement may be executed in one or more counterparts, each of which shall
        be
        deemed an original.

       

      2.13 Conflicts.
        The
        parties acknowledge and consent that the Escrow Agent has acted as counsel
        to
        the Company in connection with this
        Agreement, the Subscription Agreement and other matters, and that in the
        event
        of any dispute with respect to this Agreement, the Escrow Agent shall be
        entitled to continue to act as counsel to the Company including, without
        limitation, with respect to any dispute arising under or related to the
        Subscription Agreement or this Agreement or any of the transactions contemplated
        thereby or hereby or under any of the instruments or agreements executed
        or
        delivered in connection therewith or herewith, regardless of any conflicts
        which
        this may present with respect to its acting as the Escrow Agent.

       

      [SIGNATURE
        PAGE FOLLOWS]

       

      


       

       

      
 

       


      
        
           

        

        
          8

          
            

          

        

        
           

          
          

        

      



      [SIGNATURE
        PAGE TO ESCROW AGREEMENT]

       

      IN
        WITNESS WHEREOF, the parties hereto have executed this Agreement effective
        as of
        the date first set forth above.

       

      


       

      NEW
        WORLD BRANDS, INC.

       

      


      By:
        /s/ M. David
        Kamrat                       
     

      Name: M.
        David Kamrat

      Title: CEO

      


      


      KRAMER
        LEVIN NAFTALIS & FRANKEL LLP, solely in its capacity as Escrow
        Agent

       

      


      By:______________________________     

      Name:____________________________     

      Title:_____________________________     

      


      


      P&S
        SPIRIT, LLC

       

      


      By:
        /s/ Selvin Passen,
        M.D.                        
     

      Name: Selvin
        Passen, M.D.

      Title: Manager

      


      


       

       

       

       

       

      9