SHAREHOLDER AGREEMENT dated as of April 30, 2000, among
KONINKLIJKE NUMICO N.V. ("Parent"), a company incorporated under the
laws of the Netherlands, NUTRICIA INVESTMENT CORP., a Florida
corporation and an indirect wholly owned subsidiary of Parent ("Merger
Sub"), REXALL SUNDOWN, INC., a Florida corporation (the "Company"), and
the persons listed on Exhibit A hereto (each a "Seller" and/or
"Shareholder").
WHEREAS, Parent, Merger Sub and the Company propose to enter into an
Agreement and Plan of Merger dated as of the date hereof (as the same may be
amended or supplemented, the "Merger Agreement") providing for (i) the making of
a cash tender offer (as such offer may be amended from time to time as permitted
under the Merger Agreement, the "Offer") by Merger Sub for all the outstanding
shares of common stock, par value $.01 per share, of the Company ("Company
Common Stock"') and (ii) the merger of Merger Sub with and into the Company (the
"Merger");
WHEREAS, each Seller and Shareholder is the record or beneficial owner
of the number of shares of Company Common Stock set forth opposite such Seller's
and Shareholder's name on Exhibit A hereto; such shares of Company Common Stock,
as such shares may be adjusted by stock dividend, stock split, recapitalization,
combination or exchange of shares, merger, consolidation, reorganization or
other change or transaction of or by the Company, together with shares of
Company Common Stock that may be acquired after the date hereof by such Seller
or Shareholder, including shares of Company Common Stock issuable upon the
exercise of options or warrants to purchase Company Common Stock (as the same
may be adjusted as aforesaid), being collectively referred to herein as the
"Shares";
WHEREAS, the Sellers and Shareholders hold in the aggregate 32,269,053
Shares which represent 50.44% of the votes of all outstanding shares of the
Company's Common Stock; and
WHEREAS, as a condition to their willingness to enter into the Merger
Agreement, Parent and Merger Sub have requested that the Sellers and
Shareholders enter into this Agreement.
NOW, THEREFORE, to induce Parent and Merger Sub to enter into, and in
consideration of their entering into, the Merger Agreement, and in consideration
of the promises and the representations, warranties and agreements contained
herein, the parties agree as follows:
1. Grant of Stock Option/Agreement to Tender.
(a) The Sellers and the Shareholders, severally and not
jointly, hereby grant to Merger Sub pursuant to the terms hereof, an irrevocable
option (the "Option") to purchase the number of Shares specified in Exhibit A in
the third column and any additional Shares acquired by such Seller or
Shareholder in any capacity (whether by exercise of options, warrants or rights,
the conversion or exchange of convertible or exchangeable securities or by means
of a purchase, dividend, distribution or otherwise) at a purchase price of
$24.00 Share (the "Purchase Price"); provided, however, that in the event that
the consideration per share of Company Common Stock payable pursuant to the
Offer, the Merger or any alternative transaction between the Company and Parent
shall be increased above the Purchase Price, such increased consideration (a
"Higher Purchase Price"), then with respect to Shares purchased pursuant to the
Option from the Exempt Sellers (as
defined in Section 4(e) hereof) , the Purchase Price shall be increased to such
Higher Purchase Price; and provided, further, that in the event that Merger Sub
exercises this Option and subsequently, the Company consummates a transaction
constituting an Acquisition Proposal (as defined in the Merger Agreement)
involving a consideration per share which exceeds the Purchase Price (a "Third
Party Higher Purchase Price") and the Parent or Merger Sub sells or disposes
such Shares within one year after the termination of the Merger Agreement, the
Parent shall promptly pay to the Exempt Sellers and amount equal to the product
of the number of shares purchased from such Exempt Sellers pursuant to the
Option multiplied by the amount by which the Third Party Higher Purchase Price
exceeds the Purchase Price. For purposes of this Section 1(a), non-cash
consideration shall be valued at its fair market value pursuant to Section
4(f)(iii)
(b) Option Exercise Period. The Option may be exercised by
Merger Sub, in whole or in part, at any time or from time to time and as to
each, any or all Sellers and Shareholders as determined by Merger Sub, during
the period commencing on the earlier of (i) 5:00 p.m. on the second Business Day
after the Offer commences, or (ii) 5:00 p.m. on May 10, 2000, and ending on the
date which is the 30th Business Day following the termination of this Agreement;
provided, however, that the Option may not be exercised by Merger Sub following
the termination of the Merger Agreement pursuant to Section 7.1(a); by the
Company pursuant to Sections 7.1(b), 7.1(f) or 7.1(g) of the Merger Agreement;
or a termination of the Merger Agreement by Parent or Merger Sub pursuant to
Section 7.1(b) provided that the Company would also have been entitled to
terminate the Merger Agreement pursuant to Section 7.1(b)
(c) In the event Merger Sub wishes to exercise the Option
for all or some of the Shares, Merger Sub shall send a written notice (the
"Exercise Notice") to the Sellers and Shareholders specifying the total number
of Shares it wishes to purchase pursuant to such exercise and the place, the
date (not less than one nor more than 20 Business Days from the date of the
Exercise Notice) and the time for the closing of such purchase, provided that
such date and time may be earlier than one day after the Exercise Notice if
reasonably practicable. Each closing of a purchase of Shares pursuant to this
Section 1(b) (a "Closing") shall take place at the place, on the date and at the
time designated by Merger Sub in its Exercise Notice. Parent or Merger Sub shall
not be under any obligation to deliver any Exercise Notice and may allow the
Option to terminate without purchasing any Shares hereunder.
(d) At a Closing, (i) the Sellers or Shareholders shall
deliver to Merger Sub (in accordance with Merger Sub's instructions) a
certificate or certificates (the "Certificates") representing all of the Shares
specified in the Exercise Notice, duly endorsed or accompanied by stock powers
duly executed in blank, with all necessary stock transfer stamps affixed, and
(ii) Merger Sub shall deliver to each Seller or Shareholder by wire transfer in
immediately available funds to an account designated by such Seller or
Shareholder, in an amount equal to (A) the number of such Shares being purchased
at such Closing from such person multiplied by (B) the Purchase Price.
(e) [Intentionally Omitted]
(f) The Closing shall be subject to the satisfaction of each
of the following conditions:
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(i) no temporary restraining order, preliminary or permanent
injunction or other order issued by a court or other Governmental Entity (as
defined in the Merger Agreement) of competent jurisdiction shall be in effect
and have the effect of making the Option illegal or otherwise prohibiting
consummation of the Option;
(ii) any waiting period applicable to the consummation of the
purchase and sale of the Shares pursuant to the exercise of the Option under the
▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of 1976, as amended, and the rules
and regulations promulgated thereunder (the "HSR Act") shall have expired or
been terminated; and
(iii) all actions by or in respect of, and any filing with,
any governmental body, agency, official, or authority required to permit the
consummation of the purchase and sale of the Shares pursuant to the exercise of
the Option shall have been obtained or made and shall be in full force and
effect.
(g) Each of the Sellers shall tender validly (or cause the
record owner of such Shares to tender validly), pursuant to and in accordance
with the Offer, all of the respective Shares indicated on Exhibit A to be
tendered by such person not later than the close of business on the third
Business Day after the Offer commences, and each of the Shareholders hereby
agrees to tender validly (or cause the record owner of such shares to tender
validly), thereafter pursuant to and in accordance with the Offer not later than
the close of business on the third Business Day after the Offer commences, any
of such Shareholder's Shares not tendered by a Seller. Each Seller and
Shareholder agrees not to withdraw such Seller's and Shareholder's Shares
without the written consent of Parent. Each Seller or Shareholder shall deliver
to the depositary (the "Depositary") designated in the Offer (i) a letter of
transmittal with respect to such Shares tendered by it complying with the terms
of the Offer together with instructions directing the Depositary to make payment
for such Shares directly to the Shareholder, or to or for the benefit of one or
more Sellers or Shareholders as designated by such Seller or Shareholder in such
letter (but if such Shares are not accepted for payment or are withdrawn, are to
be returned pursuant to the Offer, and are not subject to Section 1(i) of the
Agreement to return such Shares to such Seller or Shareholder whereupon they
shall continue to be held by such Seller or Shareholder subject to the terms and
conditions of this Agreement), (ii) the Certificates and (iii) all other
documents or instruments required to be delivered pursuant to the terms of the
Offer (the "Offer Documents"). No tender pursuant to this Section l(g) will
excuse any of the obligations of the Sellers or Shareholders hereunder.
Notwithstanding the provisions of this Section 1(g), in the event any Shares are
withdrawn from the Offer for any reason or are not purchased pursuant to the
Offer, such Shares shall remain subject to the terms of this Agreement. Each
Seller and Shareholder hereby agrees to permit Parent and Merger Sub to publish
and disclose in the Offer Documents and, if approval of the shareholders of the
Company is required under applicable law, in the Proxy Statement, including all
documents and schedules filed with the Securities Exchange Commission ("SEC"),
its identity and ownership of Company Common Stock and the nature of its
commitments, arrangements and understandings under this Agreement.
(h) To the extent that any Shares listed on Exhibit A have
been pledged by a Seller or Shareholder as security for such Seller's or
Shareholder's obligations under any credit or loan agreement (a "Third Party
Loan Agreement") or to the extent that a certificate or certificates
representing such Seller's or Shareholder's Shares indicated on Exhibit A are
not currently in the possession of such Seller or Shareholder, such Seller or
Shareholder agrees to (i) promptly execute
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and deliver all instruments and take all other actions that may be necessary to
comply with the provisions of this Section 1; (ii) take all actions that may be
necessary to ensure that such Seller or Shareholder does not default under the
terms of any Third Party Loan Agreement; and (iii) immediately notify Parent and
Merger Sub of any notice of default or claim by the lender under any Third Party
Loan Agreement.
(i) In the event any Closing occurs on the date of the
termination of the Offer, the Depositary shall delivery to Merger Sub the
certificates representing the Shares subject to the exercise of the Option and
Merger Sub shall make appropriate payment in accordance with the letter of
transmittal delivered by the Seller or Shareholder.
(j) The Company agrees to register immediately on the
Company's stock records the transfer to Merger Sub of the Shares sold by any
Seller or Shareholder upon the completion of the Offer or at the Closing.
2. Representations and Warranties of the Sellers and Shareholders. Each
Seller and Shareholder hereby, severally and not jointly, represents and
warrants to Parent and Merger Sub as follows as to such Seller or Shareholder:
(a) Authority. Such Seller or Shareholder has all requisite
power and authority to execute, and deliver and perform this Agreement and to
consummate the transactions contemplated hereby. The execution, delivery and
performance of this Agreement and the consummation of the transactions
contemplated hereby have been duly and validly authorized by the Seller or
Shareholder. This Agreement has been duly and validly executed and delivered by
the Seller or Shareholder and, assuming due authorization, execution and
delivery by Parent and Merger Sub, constitutes a valid and binding obligation of
the Seller or Shareholder enforceable against the Seller or Shareholder in
accordance with its terms (except insofar as enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting creditors' rights generally, or by principles governing the
availability of equitable remedies). Except for the expiration or termination of
the waiting period under the HSR Act, and informational filings with the SEC,
neither the execution, delivery or performance of this Agreement by the Seller
or Shareholder nor the consummation by the Seller or Shareholder of the
transactions contemplated hereby will require any filing with, or permit,
authorization, consent or approval of, any United States Federal, state or local
government or any court, tribunal, administrative agency or commission or other
domestic governmental or regulatory authority or agency (a "Governmental
Entity").
(b) Conflicting Instruments; No Transfer. Except as provided
in the written agreements set forth on Schedule 2 hereto, neither the execution,
delivery or performance of this Agreement by the Seller or Shareholder nor the
consummation by the Seller or Shareholder of the transactions contemplated
hereby will result in a violation or breach of, or constitute (with or without
due notice or lapse of time or both) a default under, be in conflict with, or
give rise to any right of termination, amendment, cancellation or acceleration
under, or result in the creation of any pledge, claim, lien, charge, encumbrance
or security interest of any kind or nature whatsoever (a "Lien") upon any of the
properties or assets of the Seller or Shareholder under, any of the terms,
conditions or provisions of any contract, agreement, commitment, understanding
or other instrument, or any judgment, injunction, order, decree, law, regulation
or arrangement to which the Shareholder is a party or by which the Seller or
Shareholder or any of the Seller's or Shareholder's properties or
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assets, including the Seller's or Shareholder's Shares, may be bound, except for
any breach, violation, conflict, default, conflict or Lien which, individually
or in the aggregate, would not prevent, impair, affect or delay the Seller's or
Shareholder's ability to sell, or to deliver his, her or its proxy for, the
Shares according to the terms of this Agreement and to approve the Merger
Agreement and the transactions contemplated thereby.
(c) The Shares. Except as provided in the written agreements
set forth on Schedule 2 hereto, the Seller's or Shareholder's Shares indicated
on Exhibit A are owned of record or beneficially (both as to voting and
dispositive power) by such person and at all times during the term hereof will
be, held of record or beneficially (both as to voting and dispositive power) by
such person and such person has good and marketable title to such Shares and
will deliver such Shares, free and clear of any Liens, proxies, voting trusts or
agreements, understandings or arrangements, except for any such Liens or proxies
arising hereunder. Any and all proxies, voting trusts or similar agreements,
understandings or arrangements between or among parties hereto other than Parent
or Merger Sub are hereby terminated. The Sellers or Shareholders own of record
or beneficially no shares of Company Common Stock other than such Shares.
(d) Brokers. Other than set forth in the Merger Agreement,
no broker, investment banker, financial advisor or other persons is or will be
entitled to any broker's finder's, financial advisor's or other similar fee or
commission in connection with the transactions contemplated by this Agreement.
(e) Merger Agreement. The Seller or Shareholder understands
and acknowledges that Parent is entering into, and causing Merger Sub to enter
into, the Merger Agreement in reliance upon the Seller's or Shareholder's
execution and delivery of this Agreement.
(f) The Seller or Shareholder is not in default under any
Third Party Loan Agreement.
(g) The Seller or Shareholder is not a party to any
contract, agreement, commitment, understanding or other instrument with respect
to any of the Shares other than those agreements listed on Schedules 2 and 4
hereto.
3. Representations and Warranties of Parent and Merger Sub. Parent and
Merger Sub hereby jointly and severally represent and warrant to the Sellers and
Shareholders as follows:
(a) Authority. Parent and Merger Sub have the requisite
corporate power and authority to execute and deliver this Agreement and to
consummate the transactions contemplated hereby. The execution, delivery and
performance of this Agreement by Parent and Merger Sub and the consummation of
the transactions contemplated hereby have been duly and validly authorized by
all necessary corporate action on the part of Parent and Merger Sub. This
Agreement has been duly and validly executed and delivered by Parent and Merger
Sub and constitutes a legal, valid and binding obligation of Parent and Merger
Sub enforceable in accordance with its terms (except insofar as enforceability
may be limited by applicable bankruptcy, insolvency, reorganization, moratorium
or similar laws affecting creditors' rights generally, or by principles
governing the availability of equitable remedies).
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(b) Securities Act. The Shares will be acquired in
compliance with, and Merger Sub will not offer to sell or otherwise dispose of
any Shares so acquired by it in violation of the registration requirements of,
the Securities Act of 1933, as amended.
(c) Financing. Parent will have the funds necessary to
consummate the Offer and the Merger pursuant to the terms contemplated by the
Merger Agreement and will provide such funds to Merger Sub at or prior to the
consummation of the Offer and the Merger, as applicable.
4. Covenants of the Sellers and Shareholders. Each Seller and
Shareholder, severally and not jointly, agrees as follows:
(a) Until the Option is no longer exercisable, the Seller or
Shareholder shall not, except as contemplated by the terms of this Agreement,
(i) offer to sell, sell, transfer, pledge, hypothecate, grant a security
interest in, encumber, assign or otherwise dispose of, or enter into any
contract, option or other arrangement (including any profit sharing arrangement)
or understanding with respect to the sale, transfer, pledge, hypothecation,
grant of a security interest in, encumbrance, assignment or other disposition
of, the Shares (including any options or warrants to purchase Company Common
Stock) to any person other than Merger Sub or Merger Sub's designee, except the
agreements as set forth on Schedule 4 hereto, (ii) enter into any voting
arrangement, whether by proxy, voting agreement, voting trust, power-of-attorney
or otherwise, with respect to the Shares or (iii) take any other action that
would in any way restrict, limit or interfere with the performance of his, her
or its obligations hereunder or the transactions contemplated hereby.
(b) Until the Merger is consummated or the Merger Agreement
is terminated, the Seller or Shareholder shall not, nor shall the Seller or
Shareholder permit any investment banker, financial advisor, attorney,
accountant or other representative or agent of the Seller or Shareholder to,
directly or indirectly (i) solicit, initiate or encourage (including by way of
furnishing nonpublic information), or take any other action designed or
reasonably likely to facilitate, any inquiries or the making of any proposal
which constitutes any Acquisition Proposal (as defined in the Merger Agreement)
or (ii) participate in any discussions or negotiations regarding any Acquisition
Proposal. Without limiting the foregoing, it is understood that any violation of
the restrictions set forth in the preceding sentence by an investment banker,
financial advisor, attorney, accountant or other representative or agent of the
Seller or Shareholder shall be deemed to be a violation of this Section 4(b) by
the Seller or Shareholder. Actions taken by a Seller in his or her capacity as
an officer or director of the Company will not be a violation of this Agreement,
provided such actions are permitted by the Merger Agreement.
(c) Each Seller and Shareholder agrees to notify promptly
and to provide all details to Parent if such Seller or Shareholder, or to such
Seller's or Shareholder's knowledge, the Company shall be approached or
solicited directly or indirectly by any person with respect to an Acquisition
Proposal, to the extent the Company has not provided such details to the Parent.
(d) At any meeting of shareholders of the Company called to
vote upon the Merger and the Merger Agreement or at any adjournment thereof or
in any other circumstances upon which a vote, consent or other approval
(including by written consent) with respect to the Merger and the Merger
Agreement is sought, each Seller and Shareholder shall, including by initiating
a solicitation of written consents if requested by Parent, vote (or cause to be
voted) such Sellers and
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Shareholder's Shares in favor of the Merger, the adoption by the Company of the
Merger Agreement and the approval of the other transactions contemplated by the
Merger Agreement. At any meeting of shareholders of the Company or at any
adjournment thereof or in any other circumstances upon which the Seller's and
Shareholder's vote, consent or other approval is sought, such Seller and
Shareholder shall vote (or cause to be voted) such Seller's and Shareholder's
Shares against (i) any merger agreement or merger (other than the Merger
Agreement and the Merger), consolidation, combination, sale of substantial
assets, reorganization, recapitalization, dissolution, liquidation or winding up
of or by the Company or any other Acquisition Proposal (collectively,
"Alternative Transactions") or (ii) any amendment of the Company's Articles of
Incorporation or By-laws or other proposal or transaction involving the Company
or any of its subsidiaries, which amendment or other proposal or transaction
would in any manner impede, frustrate, prevent or nullify the Merger, the Merger
Agreement or any of the other transactions contemplated by the Merger Agreement
(collectively, "Frustrating Transactions").
(e) If Parent shall for any reason have increased the price
per Share payable in the Offer over the Purchase Price (and Parent accepts
Shares for payment pursuant to the Offer), then, immediately following Parent's
payment for the Shares pursuant to the Offer, each Seller or Shareholder shall
pay to Parent on demand an amount in cash equal to the product of (x) the number
of such Seller's or Shareholder's Shares and Shares subject to options
identified on Exhibit A hereto and (y) the excess of (A) the per share cash
consideration received by the Seller or Shareholder as a result of the Offer, as
amended, over (B) the Purchase Price. This Section 4(e) shall not apply to
Christian ▇▇▇▇, ▇▇▇▇▇▇▇▇ Palin, ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ (the "Exempt
Sellers").
(f) (i) In the event that the Merger Agreement shall have
been terminated and Merger Sub would be entitled to purchase each Seller's or
Shareholder's Shares pursuant to Section 1(b), Merger Sub may elect, by notice
given in the manner set forth in Section 1(c), in lieu of purchasing such
Seller's or Shareholder's Shares, to receive from such Seller or Shareholder,
and each Seller and Shareholder hereby agrees to pay to Merger Sub on demand, an
amount equal to eighty percent (80%) of all profit (determined in accordance
with Section 4(f)(ii)) of such Seller or Shareholder from the consummation of:
(a) any Acquisition Proposal (as defined in the Merger Agreement) with a person
that makes an Acquisition Proposal during the period commencing on the date
hereof and terminating on the termination of the Merger Agreement (a "Prior
Person") that is consummated within one year of such termination; or (b) any
Acquisition Proposal that is consummated pursuant to a definitive agreement
entered into within 6 months after the termination of the Merger Agreement with
a person other than a Prior Person. This Section 4(f)(i) shall not apply to the
Exempt Sellers.
(ii) For the purposes of this Section 4(f), the profit
of any Seller or Shareholder from any Acquisition Proposal shall equal (A) the
aggregate consideration received by such Seller or Shareholder pursuant to such
Acquisition Proposal as to all Shares and Shares subject to options identified
on Exhibit A hereto, valuing any non-cash consideration at its fair market value
on the date of such consummation, plus (B) the value of all Shares and Shares
subject to options of such Seller or Shareholder disposed of after the
termination of the Merger Agreement and prior to the date of such consummation
(which shall be the aggregate consideration received by such Seller or
Shareholder in connection with the disposition of such Shares and Shares subject
to options (valuing any non-cash consideration at its fair market value on the
date of disposition), less (C) the
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product of (x) the number of Shares and the Shares subject to options identified
on Exhibit A hereto as to each Seller or Shareholder and (y) the Purchase Price.
(iii) For the purposes of this Section 4(f), the fair
market value of any non-cash consideration consisting of:
(A) securities listed on a national securities
exchange or traded on the NASDAQ National
Market shall be equal to the average closing
price per share of such security as reported
on such exchange or NASDAQ National Market
for the five trading days before and the
five trading days after the date of
determination; and
(B) consideration which is other than securities
of the form specified in clause (A) of this
Section 4(f)(iii) shall be determined by
Parent in good faith after consulting with a
nationally recognized independent investment
banking firm.
(iv) Any payment of profit under this Section 4(f)
shall be paid by wire transfer of same day funds to an account designated by
Parent on (i) the first Business Day after Seller's or Shareholder's receipt of
any cash consideration, and (ii) the third Business Day after the delivery of
notice by Parent to Seller or Shareholder of the value of any non-cash
consideration identified pursuant to Section 4(f)(iii). If all or a portion of
the consideration received for the Shares by the Seller or Shareholder is in the
form of non-cash consideration, the Seller or Shareholder shall pay to Parent
the profit on such portion by either, at Parent's election, (A) transferring to
Parent the Parent's pro rata share of such non-cash consideration or (B) selling
such non-cash consideration (which sale shall be effected as soon as practicable
and the allocable portion of the proceeds of which shall be paid to Parent
immediately following the settlement of such sale).
(v) Notwithstanding anything to the contrary
contained herein, this Section 4(f) shall not be construed to require any Seller
or Shareholder to make a payment to Merger Sub of an amount which would result
in such Seller or Shareholder retaining in respect of (x) each Share set forth
on Exhibit A and disposed of other than to Parent or Merger Sub less than the
sum of (i) $24.00 plus (ii) 20% of all consideration received in respect of such
Share in excess of $24.00 and (y) each Share subject to Option set forth in
Exhibit A and disposed of other than to Parent or Merger Sub less than the sum
of (i) $24.00 minus the exercise price of the option to which such Share is
subject (the "Difference") plus (ii) 20% of all consideration received in
respect of such Share subject to option in excess of the Difference, in each
case such consideration received other than cash to be valued at fair market
value in a manner described in this Section 4(f).
(g) Prior to the close of business on the third Business Day
after the Offer commences, each Seller and Shareholder with any Shares or
options to acquire Shares which are subject to the written agreements identified
on Schedule 2 hereto shall supply written evidence reasonably satisfactory to
Merger Sub that the parties to such agreements have made suitable arrangements
for the tender, sale and purchase of the Shares pursuant to the Offer and in
accordance with this Agreement.
5. Additional Agreements Sellers and Shareholders.
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(a) Each Seller listed on Exhibit A with an asterisk next to
his, her or its name (each, a "Designated Seller") owns validly issued and
outstanding options to acquire a number of shares of Company Common Stock as set
forth opposite his name on Exhibit A attached hereto. Each Designated Seller
hereby agrees with Parent that, if so requested by Parent at any time and from
time to time when Parent reasonably believes the number of outstanding Shares
owned of record by the Sellers and Shareholders in the aggregate is less than a
majority of the total issued and outstanding shares of Company Common Stock on a
fully diluted basis, each such Designated Seller will immediately upon receipt
of such notice exercise such number of options as are sufficient, after giving
effect to the exercises, to ensure that the number of outstanding Shares owned
of record by the Sellers and Shareholders in the aggregate continue at all times
to represent a majority of the total issued and outstanding shares of Company
Common Stock on a fully diluted basis. At the request of a Designated Seller,
the Parent will loan to such Designated Seller the exercise price of such
options. Such loans shall be on terms and conditions acceptable to the Parent,
which shall include but not be limited to a note, a loan agreement and a pledge
of the shares being purchased upon such exercise to secure all amounts due in
connection with such loan upon reasonable commercial terms for a comparable loan
transaction. Any shares of Company Common Stock received by the Designated
Seller upon any such exercise shall automatically at such time become "Shares"
for all purposes hereunder. The Company agrees to take immediately all actions
required (i) to issue to the Designated Seller the certificates representing the
Shares issuable upon exercise of the options, and (ii) following the exercise of
the options, to allow the Designated Seller to complete the Closing in
accordance with this Agreement.
(b) Each Seller and Shareholder listed on Exhibit A with a
"NC" next to his, her or its name (each a "Key Shareholder") covenants that he,
she or it shall not, for a period of five (5) years from and after the date of
consummation of the Merger, except on behalf of the Company, directly or
indirectly, within the United States of America and those countries in which the
Company maintains, owns facilities or conducts multi-level marketing activities
which the parties hereto acknowledge to be the geographic area in which the
Company conducts business, (i) provide or perform services which are in
competition with the Company's Business, either on his, her or its own behalf or
on behalf of any other person, whether as an employee, officer, director,
shareholder, partner, proprietor, agent, consultant, independent contractor,
lender or otherwise or (ii) have a financial interest in or be in any way
connected with or affiliated with any person which is in competition with the
Company's Business. Nothing contained herein shall preclude a Key Shareholder
from having a passive investment in less than one percent (1 %) of the
outstanding capital stock of any publicly traded company. Each Key Shareholder
acknowledges that he, she or it is a shareholder of the Company and has been (or
in the case of any Key Shareholder which is an entity, the parties controlling
such entity have been) in a position of responsibility with the Company. The Key
Shareholders hereby acknowledge and agree that (i) the covenants in this Section
5(b) are a material inducement to Parent to enter into the Merger Agreement;
(ii) the Company's Business is of a limited and unusual nature and the scope of
the Company's Business is sufficiently broad so that these restrictions shall
apply throughout the United States and any other country in which the Company
maintains, owns facilities, or conducts multi-level marketing activities; and
(iii) the territory is reasonable under the circumstances.
(c) For the purposes of Section 5(b), "Company's Business"
means the development, manufacture, or retail or wholesale distribution of
vitamin and mineral supplements,
-9-
other nutritional supplements and consumer health products, including vitamins
in both multivitamin and single-entity formulas, minerals, herbals, weight
management products, homeopathic remedies, sports nutrition products and
personal care products, as conducted by the Company in the United States and any
other country in which the Company maintains, owns or facilities, or conducts
multi-level marketing activities, on and after the date of Merger.
(d) Not later than 5 Business Days after the Offer
commences, each Shareholder or Seller whose shares are not held of record will
either (i) cause the record holder to be bound by the terms of this Agreement or
(ii) shall become the record holder of such shares. The Company agrees to take
immediately all such actions as may be required to register on its stock
transfer records any transfers of Shares by a Seller or Shareholder in
accordance with this Section 5(d).
6. Grant of Irrevocable Proxy; Appointment of Proxy.
(a) Each Seller and Shareholder hereby irrevocably grants
to, and appoints, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇ and ▇▇▇▇▇▇▇ van der Ven and any
other individual who shall hereafter be designated by Parent, and each of them
(a "Proxy Holder"), such Seller's or Shareholder's proxy and attorney-in-fact
(with full power of substitution), for and in the name, place and stead of such
Seller or Shareholder, to vote such Seller's and Shareholder's Shares, or grant
a consent or approval in respect of such Shares, at any meeting of shareholders
of the Company or at any adjournment thereof or in any other circumstances upon
which their vote, consent or other approval is sought, in favor of the Merger,
the adoption by the Company of the Merger Agreement and the approval of the
other transactions contemplated by the Merger Agreement and against any
Alternative Transaction or Frustrating Transaction. Unless this Agreement is
properly terminated, the Company agrees to recognize and give effect immediately
to any vote, consent or approval exercised or expressed by a Proxy Holder.
(b) Each Seller and Shareholder represents that any proxies
heretofore given in respect of such Seller's or Shareholder's Shares are not
irrevocable, and that any such proxies are hereby revoked.
(c) Each Seller and Shareholder hereby affirms that the
irrevocable proxy set forth in this Section 6 is given in connection with the
execution of the Merger Agreement, and that such irrevocable proxy is given to
secure the performance of the duties of such Shareholder under this Agreement.
Such Shareholder hereby further affirms that the irrevocable proxy is coupled
with an interest and may under no circumstances be revoked, subject to Section
9. Such Seller or Shareholder hereby ratifies and confirms all that such
irrevocable proxy may lawfully do or cause to be done by virtue hereof. Such
irrevocable proxy is executed and intended to be irrevocable in accordance with
the provisions of Section 607.0722 of the Florida Business Corporation Act. Such
irrevocable proxy shall be valid until the later to occur of (i) eleven (11)
months from the date hereof or (ii) the termination of this Agreement pursuant
to Section 9.
7. Further Assurances. Each Seller or Shareholder will, from time to
time prior to the Closing and without further consideration, execute and
deliver, or cause to be executed and delivered, such additional or further
transfers, assignments, endorsements, consents and other instruments as Parent
or Merger Sub may request for the purpose of effectively carrying out the
transactions contemplated by this Agreement and to vest the power to vote such
Shareholder's Shares
-10-
as contemplated by Section 6. Parent and Merger Sub jointly and severally agree
to use commercially reasonable efforts to take, or cause to be taken, all
actions necessary to comply promptly with all legal requirements that may be
imposed with respect to the transactions contemplated by this Agreement
(including legal requirements of the HSR Act).
8. Assignment. Neither this Agreement nor any of the rights, interests
or obligations hereunder shall be assigned by any of the parties without the
prior written consent of the other parties, except that Merger Sub may assign,
in its sole discretion, any or all of its rights, interests and obligations
hereunder to Parent or to any direct or indirect wholly owned subsidiary of
Parent. Subject to the preceding sentence, this Agreement will be binding upon,
inure to the benefit of and be enforceable by the parties and their respective
successors and assigns. Each Seller and Shareholder agrees that this Agreement
and the obligations of such Seller or Shareholder hereunder shall attach to such
Seller's or Shareholder's Shares and shall be binding upon any person or entity
to which legal or beneficial ownership of such Shares shall pass, whether by
operation of law or otherwise, including without limitation such Seller's or
Shareholder's heirs, guardians, administrators or successors.
9. Termination. This Agreement, and all rights and obligations of the
parties hereunder, shall terminate upon the earliest of (a) the date upon which
the Merger Agreement is terminated pursuant to Article VII thereof and (b) the
effective time of the Merger. Notwithstanding the foregoing, Sections 1(a), 1(b)
(to the extent set forth therein), 1(c)- (f) and 1(h) - (j), 2, 3(a) - (b),
4(a), 4(c) (for as long as the Option is exercisable), 4 (e), 4(f) (to the
extent set forth therein), 7, 8, 9, 10 (for as long as the Option is
exercisable) and 11-18 shall survive any termination of this Agreement.
10. Stop Transfer. The Company agrees with, and covenants to, Parent
and Merger Sub that the Company shall not register the transfer of any
certificate representing any Shareholder's Shares unless such transfer is made
in accordance with the terms of this Agreement. The Company and each Shareholder
and Seller agree that upon Parent's request all stock certificates representing
Shares subject to this Agreement shall be immediately and conspicuously marked
with a legend to reflect the restrictions set forth in this Agreement.
11. General Provisions.
(a) Expenses. Except as expressly set forth herein, all
costs and expenses incurred in connection with this Agreement and the
transactions contemplated hereby shall be paid by the party incurring such
expenses.
(b) Amendments. This Agreement may not be amended, modified
or supplemented except by an instrument in writing signed by each of the parties
hereto.
(c) Notice. All notices and other communications hereunder
shall be in writing and shall be deemed duly given (a) on the date of delivery
if delivered personally; (b) on the first Business Day following the date of
dispatch if delivered by a nationally recognized next-day courier service; or
(c) if sent by facsimile transmission, with a copy mailed on the same day in the
manner provided in (a) or (b) above, when transmitted and receipt is confirmed
by telephone. All notices
-11-
and other communications hereunder shall be delivered as set forth below, or
pursuant to such other instructions as may be designated in writing by the party
to receive such notice.
(i) if to Parent or Merger Sub to
Koninklijke Numico N.V.
▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Facsimile: 011-31-79-353-9671
Attention: Julitte van der Ven, General
Counsel
with a copy to:
▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Vedder, Price, ▇▇▇▇▇▇▇ & Kammholz
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
and
(ii) if to a Seller or Shareholder, to the
address set forth under the name of such
Seller or Shareholder on Exhibit A hereto
with a copy to:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇
▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.A.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile: 305-670-6769
and
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Rexall Sundown, Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇.▇.
▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
(iii) if to the Company, to,
Rexall Sundown, Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇
-▇▇-
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Vice President
and General Counsel
with a copy to:
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, P.A.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇
(d) All representations, warranties, covenants, agreements
and conditions of this Agreement applicable to the Sellers and Shareholders are
several and not joint.
(e) Interpretation. When a reference is made in this
Agreement to a Section, such reference shall be to a Section of this Agreement
unless otherwise indicated. The headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement. Wherever the words "include", "includes" or
"including" are used in this Agreement, they shall be deemed to be followed by
the words "without limitation".
(f) Counterparts. This Agreement may be executed in two or
more counterparts, all of which shall be considered one and the same agreement
and shall become effective when two or more counterparts have been signed by
each of the parties and delivered to the other parties, it being understood that
all parties need not sign the same counterpart.
(g) Entire Agreement; No Third-Party Beneficiaries. This
Agreement and the Merger Agreement (including the documents and instruments
referred to herein and therein) (i) constitute the entire agreement and
supersede all prior agreements and understandings, both written and oral, among
the parties with respect to the subject matter hereof and (ii) are not intended
to confer upon any person other than the parties hereto any rights or remedies
hereunder.
(h) Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware without regard to
the laws that might be applicable under the conflicts of laws principles
thereof; provided, however, that the matters affecting the validity of the
corporate action taken by the Company relating to the transfer of the Shares and
all of the provisions of this Agreement relating to the voting of the Shares
shall be governed by and construed in accordance with the laws of the State of
Florida.
(i) Waiver of Appraisal Rights. To the extent applicable,
each Seller and Shareholder hereby waives any rights of appraisal or rights to
dissent from the Merger that such Seller or Shareholder may have on the terms
set forth in the Merger Agreement.
(j) Publicity. Except as otherwise required by law (including
Rule 14d-9 promulgated under the Securities Exchange Act of 1934), court process
or the rules of the NASDAQ
-13-
National Market (with respect to the Company), a national or foreign securities
exchange or as contemplated or provided in the Merger Agreement, for so long as
this Agreement is in effect, none of the Company, each of Sellers and
Shareholders or Parent shall, nor shall Parent or the Company permit any of its
subsidiaries to, issue or cause the publication of any press release or other
public announcement with respect to the transactions contemplated by this
Agreement or the Merger Agreement without the consent of the other parties.
12. Shareholder Capacity. No person executing this Agreement who is or
becomes during the term hereof a director or officer of the Company makes any
agreement or understanding herein in his or her capacity as such director or
officer. Each Seller and Shareholder signs solely in his or her capacity as the
record and beneficial owner of, or the trustee of a trust whose beneficiaries
are the beneficial owners of, such Seller's and Shareholder's Shares and nothing
herein shall limit or affect any actions taken by a Seller or Shareholder in its
capacity as an officer or director of the Company to the extent specifically
permitted by the Merger Agreement.
13. Jurisdiction; Consent to Service of Process.
(a) Each of the parties to this Agreement hereby irrevocably
and unconditionally submits, for himself, herself or itself and its property, to
the jurisdiction and venue of any Delaware State court, or any Federal court of
the United States of American sitting in the District of Delaware and any
appellate court from any such court, in any suit, action or proceeding arising
out of or relating to this Agreement, and each of the parties hereto hereby
irrevocably and unconditionally agrees that all clams in respect of any such
suit, action or proceeding may be heard and determined in such Delaware State
court, or, to the extent permitted by law, by removal or otherwise, in such
Federal court. It shall be a condition precedent to each party's right to bring
any such suit, action or proceeding that such suit, action or proceeding, in the
first instance, be brought in such Delaware State court or, to the extent
permitted by law, by removal or otherwise, in such Federal court. If such
Delaware State court, or such Federal court refuses to accept jurisdiction with
respect thereto, such suit, action or proceeding may be brought in any other
court with jurisdiction. No party to this Agreement may move to (i) transfer any
such suit, action or proceeding from such Delaware State court (other than to
remove to such Federal court), or from such Federal court sitting in any such
suit, action or proceeding brought in such Delaware State court, or any Federal
court with a suit, action or proceeding in another jurisdiction or district or
(iii) dismiss any such suit, action or proceeding brought in such Delaware State
court, or any Federal court sitting in the District of Delaware for the purpose
of bringing the same in another jurisdiction. Each party agrees that a final
judgment in any such suit, action or proceeding shall be conclusive and may be
enforced in any other jurisdiction by suit on the judgment or in any other
manner provided by law. Each party irrevocably consents to service of process by
registered or certified mail.
(b) Each party to this Agreement hereby irrevocably and
unconditionally waives, to the fullest extent it may legally and effectively do
so, any objection which it may now or hereafter have to the laying of venue of
any suit, action or proceeding arising out of or relating to this Agreement in
any Delaware State court, or any Federal court sitting in the District of
Delaware. Each party hereby irrevocably waives, to the fullest extent permitted
by law, the defense of an inconvenient forum to the maintenance of such suit,
action or proceeding in any such court and further waives the right to object,
with respect to such suit, action or proceeding, that such court does not have
jurisdiction over such party.
-14-
14. Performance by Merger Sub. Parent covenants and agrees for the
benefit of the Sellers and Shareholders that it shall cause Merger Sub to
perform in full each obligation of Merger Sub set forth
in this Agreement.
15. Enforcement. The parties agree that irreparable damage would occur
in the event that any of the provisions of this Agreement were not performed in
accordance with its specific terms or were otherwise breached. It is accordingly
agreed that the parties shall be entitled to an injunction or injunctions to
prevent breaches of this Agreement and to enforce specifically the terms and
provisions of this Agreement in any court of the United States located in the
State of Delaware or any Delaware State court, this being in addition to any
other remedy to which they are entitled at law or in equity. In addition, each
of the parties hereto waives any right to trial by jury with respect to any
claim or proceeding related to or arising out of this Agreement or any of the
transactions contemplated hereby.
16. Remedies Cumulative. All rights, powers and remedies provided under
this Agreement or otherwise available in respect hereof at law or in equity
shall be cumulative and not alternative, and the exercise of any thereof by any
party shall not preclude the simultaneous or later exercise of any other such
right, power or remedy by such party.
17. Severability. If any term or other provision of this Agreement is
invalid, illegal or incapable of being enforced by any rule of law, or public
policy, all other conditions and provisions of this Agreement shall nevertheless
remain in full force and effect so long as the economic or legal substance of
the transactions contemplated hereby is not affected in any manner materially
adverse to any party. Upon such determination that any term or other provision
is invalid, illegal or incapable of being enforced, the parties hereto shall
negotiate in good faith to modify this Agreement so as to effect the original
intent of the parties as closely as possible in a mutually acceptable manner in
order that the transactions contemplated hereby may be consummated as originally
contemplated to the fullest extent possible.
18. Survival. All representations and warranties contained herein shall
survive for one (1) year after the termination hereof.
19. Approval by the Board of Directors of the Company. Notwithstanding
anything in this Agreement, all the rights and obligations of the parties set
forth in this Agreement are subject to the approval of this Agreement by the
Board of Directors of the Company. Such approval shall include the approval of
this Agreement for purposes of Sections 607.0901 and 607.0902 of the Florida
Business Corporation Act.
20. Charitable Gifts. Notwithstanding any other provision of this
Agreement, ▇▇▇▇ ▇▇▇▇▇▇▇▇ is permitted at any time to transfer record ownership
of an aggregate of up to 300,000 outstanding Shares to non-profit institutions
designated by ▇▇▇▇ ▇▇▇▇▇▇▇▇ provided that, immediately prior to such transfer,
▇▇▇▇ ▇▇▇▇▇▇▇▇ exercises sufficient options on shares of Company Common Stock to
become the record owner of such additional outstanding Shares so as to maintain
the voting interest in the Company's outstanding Common Stock currently held by
▇▇▇▇ ▇▇▇▇▇▇▇▇ (the "Newly Issued Shares"). ▇▇▇▇ ▇▇▇▇▇▇▇▇ and the Company shall
provide such information and documents as may be reasonably requested by Merger
Sub regarding the transfer of the Shares, the exercise of the
-15-
options, and the issuance and absence of Liens against the Newly Issued Shares.
All such Newly Issued Shares shall be subject to this Agreement in all respects.
If ▇▇▇▇ ▇▇▇▇▇▇▇▇ needs to borrow the funds necessary to exercise the options and
pledge additional shares to secure such loan, (the "Option Loan"), such pledge
will not violate the terms of the Agreement so long as simultaneously with such
pledge the Shares pledged are immediately tendered in accordance with the Offer.
The Option Loan shall be deemed a Third Party Loan.
[SIGNATURE PAGE TO FOLLOW]
-16-
IN WITNESS WHEREOF, each of Parent and Merger Sub has caused this
Agreement to be signed by its officer thereunto duly authorized and each such
Shareholder has signed this Agreement, all
as of the dated first written above.
KONINKLIJKE NUMICO N.V.
By: /s/ Julitte van der Ven
-------------------------------
Name: Julitte van der Ven
-----------------------------
Title: Attorney-in-fact
----------------------------
NUTRICIA INVESTMENT CORP.
By: /s/ Julitte van der Ven
-------------------------------
Name: Julitte van der Ven
-----------------------------
Title: President
----------------------------
ENTITY SHAREHOLDERS:
CDD PARTNERS, LTD.
By: CDD Management, Inc. General
Partner
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
-------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇, President
TRIPLE D INVESTMENTS, L.L.C.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇▇, as trustee
of the ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Irrevocable Life Insurance
Trust, a member
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
-------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇, as trustee
of the ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Irrevocable Life Insurance
Trust, a member
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, as
trustee of the ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ Irrevocable Life
Insurance Trust, a member
-17-
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ REVOCABLE TRUST
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Trustee
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ IRREVOCABLE LIFE
INSURANCE TRUST
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Trustee
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
-------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇, Trustee
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Trustee
INDIVIDUAL SHAREHOLDERS:
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
----------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
----------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
----------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, as
Custodian
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
----------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
----------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-18-
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
----------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------------
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
----------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇▇▇▇▇
----------------------------------
▇▇▇▇▇ ▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
----------------------------------
▇▇▇▇▇▇▇▇▇ ▇▇▇▇
/s/ ▇▇▇▇▇▇▇▇ Palin
----------------------------------
▇▇▇▇▇▇▇▇ Palin
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
----------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
-19-
ACKNOWLEDGED AND AGREED
TO AS TO SECTION 10 AS OF THE
DATE FIRST WRITTEN ABOVE
REXALL SUNDOWN, INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-------------------------------
Title: CEO
------------------------------
EXHIBIT A
-------------------------------------------------------------------------------------------------------------
NUMBER OF RECORD AND NUMBER OF SHARES SHARES TO BE
NAME AND ADDRESS OF SELLER BENEFICIAL SHARES UNDERLYING OPTIONS TENDERED*
-------------------------------------------------------------------------------------------------------------
NC ▇▇▇▇ ▇▇▇▇▇▇▇▇* 165,000 897,500 7,703,889
▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
-------------------------------------------------------------------------------------------------------------
NC ▇▇▇▇▇ ▇▇▇▇▇▇▇▇* 240,599 902,000 9,667,658
▇▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
-------------------------------------------------------------------------------------------------------------
NC ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 31,114 0 31,114
CUST
▇▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
-------------------------------------------------------------------------------------------------------------
NC ▇▇▇▇ ▇▇▇▇▇▇▇▇* 89,550 465,000 7,571,609
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
-------------------------------------------------------------------------------------------------------------
NC ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 19,546 0 19,546
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
-------------------------------------------------------------------------------------------------------------
NC ▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ 6,090 0 6,090
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
TTEES OF THE ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
IRREVOCABLE LIFE INSURANCE TRUST
-------------------------------------------------------------------------------------------------------------
NC ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ AS TTEE UNDER 337,750 0 337,750
THE ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ REVOCABLE
TRUST DTD 10/30/9
-------------------------------------------------------------------------------------------------------------
NC TRIPLE D INVESTMENTS, LLC 13,158,042 0 1,316,000
▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
-------------------------------------------------------------------------------------------------------------
NC ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇* 128,425 226,500 4,075,773
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
-------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇* 30,229 692,000 30,229
▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
-------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇▇ PALIN* 6,000 775,334 6,000
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ #▇▇▇
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
-------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------
NUMBER OF RECORD AND NUMBER OF SHARES SHARES TO BE
NAME AND ADDRESS OF SELLER BENEFICIAL SHARES UNDERLYING OPTIONS TENDERED*
-------------------------------------------------------------------------------------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇* 234,254 817,500 234,254
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
-------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ 12,242 0 12,242
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
-------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇* 1,169 330,000 1,169
▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
-------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇* 150,962 662,650 150,962
▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
-------------------------------------------------------------------------------------------------------------
▇▇▇▇▇ ▇▇▇▇▇* 0 370,000 0
▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇
-------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇* 2,500 420,820 2,500
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
-------------------------------------------------------------------------------------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇* 2,268 312,500 2,268
▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
-------------------------------------------------------------------------------------------------------------
NC CDD PARTNERS, LTD. 17,653,313 0 1,100,000
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, #▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
-------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------
TOTAL 32,269,053 6,871,804 32,269,053
-------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------
*REPRESENTS THE NUMBER OF CURRENTLY OUTSTANDING SHARES TO BE TENDERED INTO THE
OFFER BY SUCH SELLER. THIS NUMBER IS SUBJECT TO INCREASE UPON THE EXERCISE OF
ANY OPTIONS AS TO SHARES IN ACCORDANCE WITH THIS AGREEMENT.
----------------------------------------------------------------------------
NUMBER OF RECORD AND
NAME AND ADDRESS OF SHAREHOLDER BENEFICIAL SHARES*
----------------------------------------------------------------------------
NC CDD PARTNERS, LTD. 17,653,313
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, #▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
----------------------------------------------------------------------------
NC TRIPLE D INVESTMENTS, LLC 13,158,042
▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
----------------------------------------------------------------------------
*REPRESENTS THE NUMBER OF CURRENTLY OUTSTANDING SHARES TO BE TENDERED INTO THE
OFFER IN ACCORDANCE WITH THIS AGREEMENT.
SCHEDULE 2
1. Shares owned by CDD Partners, Ltd. are pledged pursuant to the following
agreements:
A. Bank of America, N.A., as successor to
Nationsbank, N.A.
(i) The Amended and Restated Loan Agreement
dated October 27 1999 between Bank of
America, N.A., CDD Partners, Ltd. and ▇▇▇▇
▇▇▇▇▇▇▇▇
(ii) The Amended and Restated Promissory Notes
dated October 27, 1999 from each of CDD
Partners, Ltd. and ▇▇▇▇ ▇▇▇▇▇▇▇▇ to Bank of
America, N.A.
(iii) The Pledge Agreement dated June 18, 1999
between Nationsbank, N.A. and CDD Partners,
Ltd.
B. Colonial Bank
(i) Revolving Credit Agreement dated November
17, 1999 between ▇▇▇▇ ▇▇▇▇▇▇▇▇, CDD
Partners, Ltd. and Colonial Bank
(ii) Revolving Promissory Note dated November
17, 1999 from ▇▇▇▇ ▇▇▇▇▇▇▇▇ to Colonial Bank
(iii) Pledge Agreement dated November 17, 1999
between CDD Partners, Ltd. and Colonial Bank
(iv) Pledge Agreement dated November 17, 1999
between ▇▇▇▇ ▇▇▇▇▇▇▇▇ and Colonial Bank
▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇ Credit Corporation
(i) Loan Agreement dated February 24, 2000
between ▇▇▇▇▇▇▇ ▇▇▇▇▇ Credit Corporation
and CDD Partners, Ltd.
(ii) Demand Promissory Note dated February 24,
2000 from CDD Partners, Ltd.
(iii) Pledge and Security Agreement dated February
24, 2000 between ▇▇▇▇▇▇▇ ▇▇▇▇▇ Credit
Corporation and CDD Partners, Ltd.
2. Certain Shares of Rexall Sundown, Inc. Common Stock are held as security
for margin loans pursuant to customary broker margin account agreements at
▇▇▇▇▇▇▇ ▇▇▇▇▇ and other brokerage firms.
SCHEDULE 4
Securities Loan Agreement between CDD Partners, Ltd. and ▇▇▇▇ ▇▇▇▇▇▇▇▇
dated as of April 30, 2000.
Securities Loan Agreement between CDD Partners, Ltd. and ▇▇▇▇ ▇▇▇▇▇▇▇▇
dated as of April 30, 2000.
Securities Loan Agreement between CDD Partners, Ltd. and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
dated as of April 30, 2000.
Securities Loan Agreement between Triple D Investment, L.L.C. and ▇▇▇▇
▇▇▇▇▇▇▇▇ dated as of April 30, 2000.
Securities Loan Agreement between Triple D Investments, L.L. C. and
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ dated as of April 30, 2000.
Securities Loan Agreement between Triple D Investments, L.L.C. and
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ dated as of April 30, 2000.
All such Securities Loan Agreements to be in the form attached hereto.
