f8kex10iii_nxt.htm


    Exhibit 10.3

     

    


    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, requests, instructions and other communications to be given or
delivered or permitted under or by reason of the provisions of this Agreement or
in connection with the transactions contemplated hereby shall be in writing and
shall be deemed to be delivered and received by the intended recipient as
follows: (i) if personally delivered, on the business day of such delivery (as
evidenced by the receipt of the personal delivery service), (ii) if mailed
certified or registered mail return receipt requested, two (2) business days
after being mailed, (iii) if delivered by overnight courier (with all charges
having been prepaid), on the business day of such delivery (as evidenced by the
receipt of the overnight courier service of recognized standing), or (iv) if
delivered by facsimile transmission, on the business day of such delivery if
sent by 6:00 p.m. in the time zone of the recipient, or if sent after that time,
on the next succeeding business day (as evidenced by the printed confirmation of
delivery generated by the sending party’s telecopier machine). If any notice,
demand, consent, request, instruction or other communication cannot be delivered
because of a changed address of which no notice was given (in accordance with
this Section 4), or the refusal to accept same, the notice, demand, consent,
request, instruction or other communication shall be deemed received on the
second business day the notice is sent (as evidenced by a sworn affidavit of the
sender). All such notices, demands, consents, requests, instructions and other
communications will be sent to the following addresses or facsimile numbers as
applicable.

     

    If to the
Company:

    


    
      
        
           


        

        
           


          
            

          

        

        
           


        

      

    

    


    


    NXT
Nutritionals Holdings, Inc.

    718
Richfield Avenue

    Kenilworth,
New Jersey 07033

    


    with a
copy (which does not constitute a notice) to:

    


    Anslow
& Jaclin, LLP

    195 Route
9 South, Suite 204

    Manalapan,
NJ 07726

    Attn:
Kristina Trauger, Esq.

                   
Fax: (732) 577-1188

    


    If to a
Management Shareholder, to the address set forth on Schedule A attached
hereto.

     

    or to
such other address as any party may specify by notice given to the other party
in accordance with this Section 6.

     

    7.     Entire
Agreement. This
Agreement contains the entire understanding and agreement of the parties
relating to the subject matter hereof and supersedes all prior and/or
contemporaneous understandings and agreements of any kind and nature (whether
written or oral) among the parties with respect to such subject
matter.

     

    8.     Governing
Law. This
Agreement shall be governed by and construed in accordance with the laws of the
State of Delaware applicable to agreements made and to be performed in that
state, without regard to any of its principles of conflicts of laws or other
laws which would result in the application of the laws of another jurisdiction.
This Agreement shall be construed and interpreted without regard to any
presumption against the party causing this Agreement to be drafted.

     

    9.     Waiver of
Jury Trial. EACH
OF THE PARTIES HERETO HEREBY UNCONDITIONALLY AND IRREVOCABLY WAIVES THE RIGHT TO
A TRIAL BY JURY IN ANY ACTION, SUIT OR PROCEEDING ARISING OUT OF OR RELATING TO
THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. EACH OF THE PARTIES
UNCONDITIONALLY AND IRREVOCABLY CONSENTS TO THE EXCLUSIVE JURISDICTION OF THE
COURTS OF THE STATE OF NEW YORK LOCATED IN NEW YORK COUNTY AND THE FEDERAL
DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK WITH RESPECT TO ANY SUIT,
ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY, AND EACH OF THE PARTIES HEREBY UNCONDITIONALLY
AND IRREVOCABLY WAIVES ANY OBJECTION TO VENUE IN NEW YORK COUNTY OR SUCH
DISTRICT, AND AGREES THAT SERVICE OF ANY SUMMONS, COMPLAINT, NOTICE OR OTHER
PROCESS RELATING TO SUCH SUIT, ACTION OR OTHER PROCEEDING MAY BE EFFECTED IN THE
MANNER PROVIDED IN SECTION 4.

     

    10.     Severability.
The parties agree that if any provision of this Agreement be held

    


    
      
        
           


        

        
           


          
            

          

        

        
           


        

      

    

    


    to be
invalid, illegal or unenforceable in any jurisdiction, that holding shall be
effective only to the extent of such invalidity, illegally or unenforceability
without invalidating or rendering illegal or unenforceable the remaining
provisions hereof, and any such invalidity, illegally or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction. It is the intent of the parties that this Agreement be fully
enforced to the fullest extent permitted by applicable law.

     

    11.     Binding
Effect; Assignment. This Agreement and the
rights and obligations hereunder may not be assigned by any Shareholder hereto
without the prior written consent of the Company. This Agreement shall be
binding upon and shall inure to the benefit of the parties hereto and their
respective successors and permitted assigns.

     

    12.     Headings. The section headings
contained in this Agreement (including, without limitation, section headings and
headings in the exhibits and schedules) are inserted for reference purposes only
and shall not affect in any way the meaning, construction or interpretation of
this Agreement. Any reference to the masculine, feminine, or neuter gender shall
be a reference to such other gender as is appropriate. References to the
singular shall include the plural and vice versa.

     

    13.     Counterparts.
This Agreement may be executed in two or more counterparts, and by the different
parties hereto in separate counterparts, by facsimile or other electronic
transmission, each of which when executed shall be deemed to be an original, and
all of which, when taken together, shall constitute one and the same document.
This Agreement shall become effective when one or more counterparts, taken
together, shall have been executed and delivered by all of the parties
hereto.

     

    [REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK]

     

     

     

    


    
      
        
           


        

        
           


          
            

          

        

        
           


        

      

    

    


    


    IN
WITNESS WHEREOF, the parties have executed this Agreement as of the date first
written above herein.

    


    
      	
               

               

                                    NXT NUTRITIONALS
      HOLDINGS, INC.

               

               

               

              By:   /s/ Francis
      McCarthy        

              Name:  Francis
      McCarthy

              Title:
      Chief Executive Officer

               

               

            
	 
      


    

     

     

     

    
      
         

      

      
         

        
          

        

      

      
         

      

    

     

     

     

     

     

    MANAGEMENT
SHAREHOLDERS

    
 

    
      
        
          	
                  Name

                	
                  Signature

                	
                  Date

                
	
                  Francis
      McCarthy, President, CEO, CFO, Director

                	
                  /s/ Francis McCarthy

                	
                  February
      12, 2009

                
	
                  Joshua
      Rosenbaum, Director

                	
                  /s/ Joshua Rosenbaum

                	
                  February
      12, 2009

                
	
                  Richard
      M. Jordan, Director

                	
                  /s/ Richard M. Jordan

                	
                  February
      12, 2009

                
	
                  Mark
      A. Giresi, Director

                	
                  /s/ Mark A. Giresi

                	
                  February
      12, 2009

                
	
                  Theodore
      Mandes, II, Director

                	
                  /s/ Theodore Mandes, II

                	
                  February
      12, 2009

                


        

      

    

     

     

     

     

    


    
      
        
           


        

        
           


          
            

          

        

        
           


        

      

    

    


    Schedule A


    


    Name                                                                                                                                       Shares

    
      	
              
                Francis
      McCarthy, President, CEO, CFO, Director

              

            	 
      	 
      	
              
                4,136,000

              

            
	
              
                Joshua
      Rosenbaum, Director

              

            	 
      	 
      	
              
                1,910,000

              

            
	
              
                Richard
      M. Jordan, Director

              

            	 
      	 
      	
              
                250,000

              

            
	
              
                Mark
      A. Giresi, Director

              

            	 
      	 
      	
              
                765,000

              

            
	
              
                Theodore
      Mandes, II, Director

              

            	 
      	 
      	
              
                765,000

              

            
	Total 	 	 	
                 7,826,000