Amendment to Merger Agreement
Amendment to the Agreement and Plan of Merger made this 14th day of
April, 1998 by the undersigned parties hereto.
Reference is hereby made to that certain Agreement and Plan of Merger
dated as of April 1, 1998 (the "Merger Agreement") among NUTRITION
HEADQUARTERS, INC., a Delaware corporation, ▇▇▇ NUTRITION, INC., a Delaware
corporation, NUTRO LABORATORIES, INC., a New Jersey corporation, ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ TRUST F/B/O ▇▇▇▇ ▇▇▇▇▇ U/A 1/21/91 and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
TRUST F/B/O E. ▇▇▇▇▇▇ ▇▇▇▇▇▇ U/A 1/21/91, and NBTY, INC., a Delaware
corporation ("NBTY"), and NUTRITION HEADQUARTERS (DE), INC., a Delaware
corporation and a wholly owned subsidiary of NBTY.
Each of the undersigned hereby agrees that the definition of the term
"Working Capital of the Companies" provided in Section 1.01 of the Merger
Agreement shall be amended and restated in its entirety as set forth below:
"Working Capital of the Companies" means the balance of the
combined current assets of the Companies less the balance of the
combined current liabilities of the Companies, in each case, as of
the specified date and computed in accordance with the Company
Accounting Policies; provided, however, that such assets shall be
increased and such liabilities shall be decreased, as the case may
be, by the aggregate amount of the Transaction Expenses paid, or to
be paid, by the Companies.
Except as specifically provided above, each of the undersign hereby
ratifies and confirms all of the terms and provisions of the Merger Agreement
and confirms that such agreement shall continue to be in full force and effect
as amended and modified hereby. This Amendment to the Merger Agreement shall be
governed by, and construed in accordance with, the laws of the State of New
York applicable to contracts executed and to be wholly performed in that State.
[The next page is the Signature Page]
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement as of the date first written above.
NUTRITION HEADQUARTERS, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Chairman, President and Chief
Executive Officer
▇▇▇ NUTRITION, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Chairman, President and Chief
Executive Officer
NUTRO LABORATORIES, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Chairman, President and Chief
Executive Officer
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ TRUST
F/B/O ▇▇▇▇ ▇▇▇▇▇ U/A 1/21/91
By: /s/ ▇▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇
Title: Trustee of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Trust F/B/O ▇▇▇▇ ▇▇▇▇▇ U/A
1/21/91 (the "RS Trust"). The
Trustee is signing this
document solely in her fiduciary
capacity, and recourse against
the RS Trust shall be limited
solely to the assets of the RS
Trust, and no recourse shall be
had against the Trustee thereof.
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ TRUST
F/B/O E. ▇▇▇▇▇▇ ▇▇▇▇▇▇ U/A 1/21/91
By: /s/ E. ▇▇▇▇▇▇ ▇▇▇▇▇▇
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Name: E. ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Trustee, of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Trust F/B/O E. ▇▇▇▇▇▇ ▇▇▇▇▇▇
U/A/ 1/21/91 (the "ESL Trust").
The Trustee is signing this
document solely in his fiduciary
capacity, and recourse against
the ESL Trust shall be limited
solely to the assets of the ESL
Trust, and no recourse shall be
had against the Trustee thereof.
NBTY, INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: President
NUTRITION HEADQUARTERS (DE), INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: President