EXHIBIT 10-12
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STOCK OPTION AGREEMENT
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STOCK OPTION AGREEMENT dated as of November 15, 1994 between
Nutraceutical International Corporation, a Delaware corporation (the "Company"),
and ▇▇▇▇▇ ▇. ▇▇▇▇▇ ("Executive").
The Company and Executive desire to enter into an agreement pursuant
to which the Company will grant Executive options to acquire 9,000 shares of the
Company's Common Stock, par value $.0l per share (the "Common Stock"), which
options will be subject to time vesting (the "Option").
The parties hereto agree as follows:
OPTION PROVISIONS
1. Stock Options.
(a) Option Grant. The Company hereby grants to Executive the Option to
purchase 9,000 shares of Common Stock ("Option Shares"), at a price per share
of $26.00 (the "Option Price"). The Option Price and the number of Option Shares
will be equitably adjusted for any stock split, stock dividend or
reclassification or recapitalization of the Common Stock which occurs subsequent
to the date of this Agreement. The Option will expire (the "Expiration Date") on
the earlier of tenth anniversary of the date of this Agreement or the date of
the termination of Executive's employment with the Company or a subsidiary for
any reason other than death or Disability (the "Termination Date"), provided
that Executive will have until the tenth anniversary of the date of this
Agreement to exercise the Option with respect to Option Shares as to which the
option has vested pursuant to paragraph l(b), The Option is not intended to be
an "incentive stock option" within the meaning of Section 422A of the Internal
Revenue Code of 1986, as amended (the "Code").
(b) Exercisability. On each date set forth below the Option will have
vested and become exercisable with respect to the percentage of Option Shares
set forth opposite such date if Executive is employed by the Company or a
Subsidiary on such date:
% of Option
Date Shares Vested to Date
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November 15, 1994 20%
November 15, 1995 40%
November 15, 1996 60%
November 15, 1997 80%
November 15, 1998 100%
; provided that upon the occurrence of the Acceleration Event (as defined
below), all of the option Shares will vest and become exercisable. For this
purpose, the "Acceleration Event" will be the first to occur of (i) a merger,
consolidation or reorganization of the Company or a sale of the Company's stock,
if after giving effect to such merger, consolidation, reorganization or stock
sale, the holders of the Company's voting securities (on a fully-diluted basis)
immediately prior to the merger, consolidation, reorganization or sale, own less
than a majority of the ordinary voting power (on a fully-diluted basis) to elect
the board of directors of the surviving corporation, or (ii) a sale of all or
substantially all of the Company's assets to another person or entity or a
complete liquidation of the Company.
(c) Procedure for Exercise. At any time after the Option has become
exercisable with respect to any Option Shares and prior to the Expiration Date
(except as provided for in paragraph l(a) above), Executive may exercise all or
a portion of the Option with respect to Option Shares vested pursuant to
paragraph l(b) above by delivering written notice of exercise to the Company,
together with (i) a written acknowledgment that Executive has read and has been
afforded an opportunity to ask questions of management of the Company regarding
all financial and other information provided to Executive regarding the Company
and (ii) payment in full by delivery of a cashier's, personal or certified check
or wire transfer of immediately available funds in the amount of the Option
Price. Within 60 days after exercise, Executive will pay to the Company the
amount of any additional federal and state income taxes required to be withheld
by reason of the exercise of the Option, As a condition to any exercise of the
Option, Executive will permit the Company to deliver to him all financial and
other information regarding the Company and its Subsidiaries which it believes
necessary to enable Executive to make an informed investment decision.
(d) Securities Laws Restrictions. Executive represents that when
Executive exercises the option he will be purchasing Option Shares for
Executive's own account and not on behalf of others, Executive understands and
acknowledges that federal and state securities laws govern and restrict
Executive's right to offer, sell or otherwise dispose of any Option Shares
unless Executive's offer, sale or other disposition thereof is registered under
the Securities Act of 1933, as amended (the "1933 Act") and state securities
laws or, in the opinion of the Company's counsel, such offer, sale or other
disposition, is exempt from registration thereunder, Executive agrees that he
will not offer, sell or otherwise dispose of any Option Shares in any manner
which would: (i) require the Company to file any registration statement (or
similar filing under state law) with the Securities and Exchange Commission or
to amend or supplement any such filing or (ii) violate or cause the Company to
violate the 1933 Act, the rules and regulations promulgated thereunder or any
other state or federal law. Executive further understands that the certificates
for any Option Shares Executive purchases will bear the legend set forth in
paragraph 4 hereof or such other legends as the Company deems necessary or
desirable in connection with the 1933 Act or other rules, regulations or laws.
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(e) Non-Transferability of Option. The option is personal to
Executive and is not transferable by Executive except to a Permitted Transferee
(as defined in paragraph 3 below). Only Executive or a Permitted Transferee is
entitled to exercise the Option, except pursuant to paragraphs 2 and 3 below.
(f) Effect of Transfers in Violation of Agreement. The Company will
not be required (i) to transfer on its books any Option Shares which have been
sold or transferred in violation of any of the provisions set forth in this
Agreement, or (ii) to treat as owner of such shares, to accord the right to vote
as such owner or to pay dividends to any transferee to whom such shares have
been transferred in violation of this Agreement.
(g) Section 83(b) Election. Within 30 days after an Executive has
exercised an Option, Executive will make an effective election with the Internal
Revenue Service under Section 83(b) of the Code relative to the Common Stock
received by Executive pursuant to the exercise of said option.
2. Repurchase Option.
(a) Definitions. The following terms are defined as follows:
"Cause" means (i) the willful failure by Executive to perform duties
reasonably requested or reasonably prescribed by the Board of Directors of the
Company (the "Board"), (ii) the engaging by Executive in conduct which is
materially injurious to the Company or any of its Subsidiaries, (iii) gross
negligence or willful misconduct by Executive in the performance of his duties
which results in, or causes, harm to the Company or any of its Subsidiaries,
(iv) any breach by Executive of any covenant contained in this Agreement, (v)
Executive's conviction of a crime involving fraud or misrepresentation or a
felony.
"Disability" means the inability (as determined by the Board in its
sole discretion) of such Executive, as a result of incapacity due to physical or
mental illness, to perform his duties with the Company for more than six months
in aggregate during any twelve-month period.
"Executive Stock" for purposes hereof, means the Option Shares
exercisable pursuant to the option and any shares of Common Stock issued
pursuant thereto.
"Fair Market Value" of each share of Executive Stock means the market
value agreed upon by Executive and the Board; provided that the Fair Market
Value of Option Shares which have not been exercised will be reduced by the
exercise price of such options, If Executive and the Board are unable to agree
upon the market value, then the Executive and the Company will share the cost,
on an equal basis, of a mutually acceptable business appraiser whose
determination will be binding.
"Investors" means the persons listed on Schedule A hereto.
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"Original Value" of each share of Executive Stock will be equal to
$26.00 for each share of Common Stock (as proportionally adjusted for all stock
splits, stock dividends and other recapitalizations affecting the Common Stock,
subsequent to the date hereof); provided that the Original Value of option
shares which have not been exercised will be equal to zero.
"Subsidiary" means any corporation of which shares of stock having a
majority of the general voting power in electing the board of directors are, at
the time as of which any determination is being made, owned by the Company
either directly or through its Subsidiaries.
(b) Repurchase Option. In the event that Executive is no longer
employed by the Company or any of its Subsidiaries for any reason (the date of
such termination being referred to herein as the "Termination Date"), the
Executive Stock, whether held by Executive or one or more Permitted Transferees
(as defined in paragraph 3 below), will be subject to repurchase by the Company
and the Investors pursuant to the terms and conditions set forth in this
paragraph 2 (the "Repurchase Option").
(c) Termination Other than for Cause or Voluntary Termination. If
Executive is no longer employed by the Company or any of its Subsidiaries as a
result of Executive's voluntary termination, Executive's termination without
Cause, or Executive's death or Disability, then on or after the Termination
Date, the Company may elect to purchase all or any portion of the Executive
Stock at a price per share equal to the Fair Market Value thereof (i) as
determined on the Termination Date, if the Repurchase Notice (as defined in
subparagraph (e) below) has been delivered within three months of the
Termination Date, or (ii) as determined on a date determined by the Board within
30 days prior to the delivery of the Repurchase Notice, if the Repurchase Notice
is delivered after the third month following the Termination Date.
(d) Termination for Cause. If Executive is no longer employed by the
Company or any of its Subsidiaries as a result of Executive's termination for
any reason other than as set forth in (c) above, then on or after the
Termination Date, the Company may elect to purchase all or any portion of the
Executive Stock at a price per share equal to the lower of its original Value or
the Fair Market Value thereof.
(e) Repurchase Procedures. The Company may elect to exercise the
right to purchase all or any portion of the shares of Executive Stock pursuant
to the Repurchase option by delivering written notice (the "Repurchase Notice")
to the holder or holders of the Executive Stock. The Repurchase Notice will set
forth the number of shares of Executive Stock to be acquired from such
holder(s), the aggregate consideration to be paid for such shares and the time
and place for the closing of the transaction. If any Executive Stock is held by
Permitted Transferees of Executive, the Company shall purchase the shares
elected to be purchased from such holder(s) of Executive Stock, pro rata
according to the number of shares of Executive Stock held by such holder(s) at
the time of delivery of such Repurchase Notice (determined as nearly as
practicable to the nearest share).
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(f) Investor Rights.
(i) If for any reason the Company does not elect to purchase
all of the Executive Stock pursuant to the Repurchase Option prior to the
180th day following the Termination Date, the Investors will be entitled to
exercise the Repurchase Option, in the manner set forth in this paragraph 2
for the Executive Stock the Company has not elected to purchase (the
"Available Shares"). As soon as practicable, but in any event within thirty
(30) days after the Company determines that there will be any Available
Shares, the Company will deliver written notice (the "Option Notice") to
the Investors setting forth the number of Available Shares and the price
for each Available Share.
(ii) Each of the Investors will initially be permitted to
purchase its pro rata share (based upon the number of shares of Common
Stock then held by such Investors) of the Available Shares, Each Investor
may elect to purchase any number of the Available Shares (subject to the
preceding sentences) by delivering written notice to the Company within 30
days after receipt of the Option Notice from the Company (such 30-day
period being referred to herein as the "Investor Election Period").
(iii) As soon as practicable but in any event within five (5)
days after the expiration of the Investor Election Period, the Company
will, if necessary, notify the Investors electing to purchase Available
Shares of any Available Shares which Investors have elected not to purchase
and each of the electing Investors will be entitled to purchase the
remaining Available Shares on the same terms as described above (the
"Second Option Notice"); provided that if in the aggregate such Investors
elect to purchase more than the remaining Available Shares, such remaining
Available Shares purchased by each such Investor will be reduced on a pro
rata basis based upon the number of shares of Common Stock then held by
such Investors, Each Investor may elect to purchase any of the remaining
Available Shares available to such Investor by delivering written notice to
the Company within 10 days after the delivery of the Second Option Notice
(with such 10-day period referred to herein as the "Second Investor
Election Period").
(iv) As soon as practicable but in any event within five (5)
business days after the expiration of the Investor Election Period or the
Second Investor Election Period (if any) the Company will, if necessary,
notify the holder(s) of Executive Stock as to the number of shares of
Executive Stock being purchased from the holder(s) by the Investors (the
"Supplemental Repurchase Notice"). At the time the Company delivers a
Supplemental Repurchase Notice to the holder(s) of Executive Stock, the
Company will also deliver to each electing Investor written notice setting
forth the number of shares of Executive Stock the Company and each Investor
will acquire, the aggregate purchase price to be paid and the time and
place of the closing of the transaction.
(g) Closing. The closing of the transactions contemplated by this
paragraph 2 will take place on the date designated by the Company in the
Repurchase Notice or the Supplemental
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▇▇▇▇▇▇▇▇▇▇ Notice, as the case may be, which date will not be more than 90 days
after the delivery of such notice. The Company and/or the Investors will pay for
the Executive Stock to be purchased pursuant to the Repurchase Option by
delivery of, in the case of each Investor, a check or wire transfer of funds
and, in the case of the Company, (i) a check or wire transfer of funds, (ii) a
subordinate note or notes payable in up to, three equal annual installments
beginning on the first anniversary of the closing of such purchase and bearing
interest (payable quarterly) at a rate per annum equal to the Base Rate (as
defined in the Company's credit agreement) or (iii) both (i) and (ii), in the
aggregate amount of the purchase price for such shares; provided that the
Company shall use reasonable efforts to make all such repurchases with a check
or wire transfer of funds. Any notes issued by the Company pursuant this
paragraph 2(g) shall be subject to any restrictive covenants to which the
Company is subject at the time of such purchase. The Company and/or the
Investors, as the case may be, will receive customary representations and
warranties from each seller regarding the sale of the Executive Stock, including
but not limited to the representation that such seller has good and marketable
title to the Executive Stock to be transferred free and clear of all liens,
claims and other encumbrances.
3. Restrictions on Transfer.
(a) Transfer of Executive Stock. Executive will not sell, pledge or
otherwise transfer any interest in any shares of Executive Stock, except
pursuant to (i) the provisions of para graphs 1. 21 6 and 7 hereof, (ii) the
provisions of paragraph 3(b) below, or (iii) pursuant to the Amended and
Restated Registration Agreement, dated as of January 31, 1995, among the Company
and its stockholders.
(b) Certain Permitted Transfers. The restrictions contained in this
paragraph 3 will not apply with respect to transfers of Executive Stock (i)
pursuant to applicable laws of descent and distribution or (ii) among
Executive's Family Group (as defined below), provided that the restrictions
contained in this paragraph 3 will continue to be applicable to the Executive
Stock after any such transfer and the transferees of such Executive Stock shall
agree in writing to be bound by the provisions of this Agreement, "Family Group"
means Executive's spouse and descendants (whether natural or adopted) and any
trust solely for the benefit of Executive and/or Executive's spouse and/or
descendants. Any transferee of Executive Stock pursuant to a transfer in
accordance with the provisions of this subparagraph 3(b) is herein referred to
as a "Permitted Transferee." Upon the transfer of Executive Stock pursuant to
this paragraph 3(b), the transferor will deliver a written notice (the "Transfer
Notice") to the Company, The Transfer Notice will disclose in reasonable detail
the identity of the Permitted Transferee(s).
4. Additional Restrictions on Transfer.
(a) The certificates representing the Executive Stock and Option
Shares will bear the following legend:
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"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED ("THE ACT"),
AND MAY NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE ACT OR AN EXEMPTION FROM REGISTRATION
THEREUNDER, THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE ALSO
SUBJECT TO ADDITIONAL RESTRICTIONS ON TRANSFER, CERTAIN REPURCHASE
OPTIONS AND CERTAIN OTHER AGREEMENTS SET FORTH IN A STOCK OPTION
AGREEMENT BETWEEN THE ISSUER (THE "COMPANY") AND A CERTAIN EMPLOYEE OF
THE COMPANY DATED AS OF NOVEMBER 15, 1994, A COPY OF WHICH MAY BE
OBTAINED BY THE HOLDER HEREOF AT THE COMPANY'S PRINCIPAL PLACE OF
BUSINESS WITHOUT CHARGE."
(b) No holder of Executive Stock may sell, transfer or dispose of any
Executive Stock (except pursuant to an effective registration statement under
the 1933 Act) without first delivering to the Company an opinion of counsel
reasonably acceptable in form and substance to the Company (which counsel shall
be reasonably acceptable to the Company) that registration under the 1933 Act is
not required in connection with such transfer.
5. Definition of Executive Stock. For all purposes of this
Agreement, Executive Stock will continue to be Executive Stock in the hands of
any holder other than Executive (except for the Company, the Investors and
purchasers pursuant to an offering registered under the 1933 Act or purchasers
pursuant to a Rule 144 transaction), and each such other holder of Executive
Stock will succeed to all rights and obligations attributable to Executive as a
holder of Executive Stock hereunder, Executive Stock will also include shares of
the Company's capital stock issued with respect to shares of Executive Stock by
way of a stock split, stock dividend or other recapitalization.
6. Sale of the Company.
(a) If the Company's board of directors (the "Board") and the holders
of a majority of the shares of Common Stock then outstanding approve a sale of
all or substantially all of the Company's assets determined on a consolidated
basis or a sale of all or substantially all of the Company's outstanding capital
stock (whether by merger, recapitalization, consolidation, reorganization,
combination or otherwise; collectively an "Approved Sale"), each holder of
Executive Stock will vote for, consent to and raise no objections against such
Approved Sale. If the Approved Sale is structured as (i) a merger or
consolidation, each holder of Executive Stock will waive any dissenters rights,
appraisal rights or similar rights in connection with such merger or
consolidation or (ii) sale of stock, each holder of Executive Stock will agree
to sell all of his shares of Executive Stock and rights to acquire shares of
Executive Stock on the terms and conditions
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approved by the Board and the holders of a majority of the Executive Stock then
outstanding, Each holder of Executive Stock will take all necessary or desirable
actions in connection with the consummation of the Approved Sale as requested by
the Company.
(b) The obligations of the holders of Common Stock with respect to
the Approved Sale of the Company are subject to the satisfaction of the
following conditions: (i) upon the consummation of the Approved Sale, each
holder of Common Stock will receive the same form of consideration and the same
portion of the aggregate consideration that such holders of Common Stock would
have received if such aggregate consideration had been distributed by the
Company in complete liquidation pursuant to the rights and preferences set forth
in the Company's Certificate of Incorporation as in effect immediately prior to
such Approved Sale; (ii) if any holders of a class of Common Stock are given an
option as to the form and amount of consideration to be received, each holder of
such class of Common Stock will be given the same option; and (iii) each holder
of then currently exercisable rights to acquire shares of a class of Common
Stock will be given an opportunity to exercise such rights prior to the
consummation of the Approved Sale and participate in such sale as holders of
such class of Common Stock.
(c) If the Company or the holders of the Company's securities enter
into any negotiation or transaction for which Rule 506 (or any similar rule then
in effect) promulgated by the Securities Exchange Commission may be available
with respect to such negotiation or transaction (including a merger,
consolidation or other reorganization), the holders of Executive Stock will, at
the request of the Company, appoint a purchaser representative (as such term is
defined in Rule 501) reasonably acceptable to the Company, If any holder of
Executive Stock appoints a purchaser representative designated by the Company,
the Company will pay the fees of such purchaser representative, but if any
holder of Executive Stock declines to appoint the purchaser representative
designated by the Company such holder will appoint another purchaser
representative, and such holder will be responsible for the fees of the
purchaser representative so appointed.
(d) Executive and the other holders of Executive Stock (if any) will
bear their pro-rata share (based upon the number of shares sold) of the costs of
any sale of Executive Stock pursuant to an Approved Sale to the extent such
costs are incurred for the benefit of all holders of Common Stock and are not
otherwise paid by the Company or the acquiring party. Costs incurred by
Executive and the other holders of Executive Stock on their own behalf will not
be considered costs of the transaction hereunder.
(e) The provisions of this paragraph 6 will terminate upon completion
of the initial public offering of the Common Stock.
7. Public Offering. In the event that the Board and the holders of
a majority of the shares of Common Stock then outstanding approve an initial
public offering and sale of Common Stock (a "Public Offering") pursuant to an
effective registration statement under the 1933 Act, the holders of Executive
Stock will take all necessary or desirable actions in connection with the
consummation of the Public Offering. In the event that such Public Offering
is an underwritten
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offering and the managing underwriters advise the Company in writing that in
their opinion the Common Stock structure will adversely affect the marketability
of the offering, each holder of Executive Stock will consent to and vote for a
recapitalization, reorganization and/or exchange of the Common Stock into
securities that the managing underwriters, the Board and holders of a majority
of the shares of Common Stock then outstanding find acceptable and will take all
necessary or desirable actions in connection with the consummation of the
recapitalization, reorganization and/or exchange; provided that the resulting
securities reflect and are consistent with the rights and preferences set forth
in the Company's Certificate of Incorporation as in effect immediately prior to
such Public Offering.
8. Termination of Provisions Relating to Executive Stock. The
provisions of paragraphs 2 and 3 will terminate upon the first to occur of (i)
an Approved Sale, or (ii) a Public Offering.
MISCELLANEOUS PROVISIONS
9. Notices. Any notice provided for in this Agreement must be in
writing and must be personally delivered, received by certified mail, return
receipt requested, or sent by guaranteed overnight delivery service, to the
Investors at the addresses indicated in the Company's records and to the other
recipients at the address indicated below:
To the Company:
Nutraceutical International Corporation
Suite 300, Aerospace Center
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attention: CEO
With a copy to:
▇▇▇▇ Capital, Inc.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
To Executive:
▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇-▇▇▇-▇▇▇▇
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or such other address or to the attention of such other person as the recipient
party shall have specified by prior written notice to the sending party, Any
notice under this Agreement will be deemed to have been given when so delivered
or mailed.
10. Severability. Whenever possible, each provision of this
Agreement will be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be invalid,
illegal or unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability will not affect
any other provision or the effectiveness or validity of any provision in any
other jurisdiction, and this Agreement will be reformed, construed and enforced
in such jurisdiction as if such invalid, illegal or unenforceable provision had
never been contained herein.
11. Complete Agreement. This Agreement embodies the complete
agreement and understanding among the parties and supersedes and preempts any
prior understandings, agreements
or representations by or among the parties, written or oral, which may have
related to the subject matter hereof in any way.
12. Counterparts. This Agreement may be executed in separate
counterparts, each of which will be deemed to be an original and all of which
taken together will constitute one and the same agreement.
13. Successors and Assigns. This Agreement is intended to bind and
inure to the benefit of and be enforceable by Executive, the Company, the
Investors and their respective successors and assigns, provided that Executive
may not assign any of his rights or obligations, except as expressly provided by
the terms of this Agreement.
14. Governing Law. The corporate law of the State of Delaware will
govern issues concerning the relative rights of the Company and its
stockholders, All other issues concerning this Agreement shall be governed by
and construed in accordance with the laws of the State of Utah, without giving
effect to any choice of law or conflict of law provision or rule (whether of the
State of Utah or any other jurisdiction) that would cause the application of the
law of any jurisdiction other than the State of Utah.
15. Remedies. The parties hereto agree and acknowledge that money
damages may not be an adequate remedy for any breach of the provisions of this
Agreement and that any party hereto will have the right to injunctive relief, in
addition to all of its other rights and remedies at law or in equity, to enforce
the provisions of this Agreement.
16. Effect of Transfers in Violation of Agreement. The Company will
not be required (a) to transfer on its books any shares of Executive Stock which
have been sold or transferred in violation of any of the provisions set forth in
this Agreement or (b) to treat as owner of such shares, to accord the right to
vote as such owner or to pay dividends to any transferee to whom such shares
have been transferred in violation of this Agreement.
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17. Amendments and Waivers. Any provision of this Agreement may be
amended or waived only with the prior written consent of the Company, the
Investors who hold 70% of the Common Stock held by the Investors and Executive;
provided, however, that in the event that such amendment or waiver would
adversely affect an Investor or group of Investors in a manner different than
any other Investors, then such amendment or waiver will require the consent of
such Investor or a majority of the Common Shares held by such group of Investors
adversely affected.
18. Third Party Beneficiaries. The parties hereto acknowledge and
agree that the Investors are third party beneficiaries of this Agreement. This
Agreement will inure to the benefit of and be enforceable by the Investors and
their respective successors and assigns.
* * * * *
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IN WITNESS WHEREOF, the parties have executed this Agreement on the
day and year first above written.
NUTRACEUTICAL INTERNATIONAL CORPORATION
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇ ▇▇
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Its: Chairman
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇
Agreed and Accepted by:
▇▇▇▇ CAPITAL FUND IV, L.P.
By: ▇▇▇▇ Capital Partners IV, L.P.
Its: General Partner
By: ▇▇▇▇ Capital Investors, Inc.
Its: General Partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇
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Its: Managing Director
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▇▇▇▇ CAPITAL FUND IV-B, L.P.
By: ▇▇▇▇ Capital Partners IV, L.P.
Its: General Partner
By: ▇▇▇▇ Capital Investors, Inc.
Its: General Partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇
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Its: Managing Director
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BCIP ASSOCIATES
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇
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A General Partner
BCIP TRUST ASSOCIATES, L.P.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇
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A General Partner
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Schedule A
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Investors
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▇▇▇▇ Capital Fund IV, ▇.▇.
▇▇▇▇ Capital Fund IV-B, L.P.
BCIP Associates
BCIP Trust Associates, L.P.
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