Exhibit 10-3
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AMENDED AND RESTATED STOCKHOLDERS AGREEMENT
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THIS AMENDED AND RESTATED STOCKHOLDERS AGREEMENT (this "Agreement") is made
and entered into as of January 31, 1995, by and among Nutraceutical
International Corporation (f/k/a Nutraceutical Corporation), a Delaware
corporation (the "Company"), ▇▇▇▇▇▇ Financial, Inc., a Delaware corporation
("▇▇▇▇▇▇"), ▇▇▇▇▇▇▇ National Life Insurance Company, a Michigan insurance
corporation ("JNL"), and each of the Persons listed on Schedule I attached
hereto (the "▇▇▇▇ Group") (▇▇▇▇▇▇, JNL and the ▇▇▇▇ Group are collectively
referred to herein as the "Stockholders," and each as a "Stockholder"). This
Agreement amends, restates and supersedes that certain Stockholders Agreement
dated as of October 28, 1993, by and among the Company, ▇▇▇▇▇▇ and the ▇▇▇▇
Group. Unless otherwise indicated herein, capitalized terms used herein are
defined in paragraph 10 hereof.
The Company, as of the date hereof, is authorized by its Certificate of
Incorporation to issue capital stock consisting of 13,000 shares of its Class A
Common Stock, par value $.01 per share (the "Class A Common"), 13,000 shares of
its Class A Non-Voting Common Stock, par value $.01 per share (the "Class A Non-
Voting Common"), 200,000 shares of its Class P Common Stock, par value $.01 per
share (the "Class P Common"), 2,000,000 shares of its Common Stock, par value
$.01 per share ("Common"), and 620,000 shares of its Non-Voting Common Stock,
par value $.01 per share ("Non-Voting Common"). The Class A Common, the Class A
Non-Voting Common, the Class P Common, the Non-Voting Common and the Common are
collectively referred to herein as "Common Stock."
The Company's wholly-owned subsidiary, Nutraceutical Corporation (f/k/a
Nutraceutical Newco, Inc.), a Delaware corporation ("Nutraceutical"), its
Subsidiaries, the Company and JNL are parties to a Revolving Credit and Term
Loan Agreement dated January 31, 1995 (the "Credit Agreement") whereby, subject
to the terms and conditions set forth therein, JNL has agreed to make certain
revolving credit and term loans and other financial accommodations to
Nutraceutical and its Subsidiaries. The execution and delivery of this Agreement
by the Company is a condition to JNL's obligation to consummate the transactions
contemplated by the Credit Agreement.
The parties hereto desire to enter into this Agreement to establish the
composition of the Company's Board of Directors (the "Board"), restrict the
sale, assignment, transfer, encumbrance or other disposition of the Common Stock
and to provide for certain rights and obligations in respect thereto as
hereinafter provided.
NOW, THEREFORE, the parties to this Agreement hereby agree as follows:
1. Voting Agreement.
(a) From and after the date of this Agreement and until the provisions of
this paragraph 1 cease to be effective, as in effect on the date hereof, each
holder of Stockholder Shares shall vote all of his Stockholder Shares (provided
that such Stockholder Shares then have voting rights) and shall take all other
necessary or desirable actions within his control (whether in his capacity as a
stockholder or officer of the Company or otherwise, and including, without
limitation, attendance at meetings in person or by proxy for purposes of
obtaining a quorum and execution of written consents in lieu of meetings), and
the Company shall take all necessary and desirable actions within its control
(including, without limitation, calling special board and stockholder meetings),
so that:
(i) the authorized number of directors on the Board shall be
established by the holders of a majority of the ▇▇▇▇ Shares held by the
▇▇▇▇ Group and its Affiliates (the "▇▇▇▇ Holders");
(ii) the ▇▇▇▇ Holders shall have the right in any election for
directors to the Board to select all representatives to the Board;
(iii) the removal from the Board (with or without cause) or any
representative designated hereunder by the ▇▇▇▇ Holders shall be at the
▇▇▇▇ Holder's written request, but only upon such written request and under
no other circumstances; and
(iv) in the event that any representative designated hereunder by the
▇▇▇▇ Holders for any reason ceases to serve as a member of the Board during
his term of office, the resulting vacancy on the Board shall be filled by a
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representative designated by the ▇▇▇▇ Holders, as provided hereunder.
(b) The provisions of this paragraph 1 shall terminate automatically
and be of no further force and effect upon the first to occur of (i) a Qualified
Public Offering or (ii) an Approved Sale.
2. Restrictions on Transfer of Stockholder Shares.
(a) Transfer of Stockholder Shares. The holders of Stockholder Shares
(other than the ▇▇▇▇ Group) shall not sell, transfer, assign, pledge or
otherwise dispose of (a "Transfer") any interest in any Stockholder Shares,
except Transfers pursuant to this paragraph 2 or paragraphs 3 or 5 below.
(b) Participation Rights. At least 30 days prior to any Transfer of
any class of Common Stock by the ▇▇▇▇ Group (other than a Transfer among members
of the ▇▇▇▇ Group or their Affiliates or to an employee of the Company or its
Subsidiaries), the ▇▇▇▇ Group will deliver a written notice (the "Sale Notice")
to the Company and the other Stockholders (the "Other Stockholders"), specifying
in reasonable detail the identity of the prospective transferee(s) and the terms
and conditions of the Transfer. The Other Stockholders may elect to participate
in the contemplated Transfer by the ▇▇▇▇ Group by delivering written notice to
the ▇▇▇▇ Group within 30 days after delivery of the Sale Notice. If any Other
Stockholders have elected to participate in such Transfer, the ▇▇▇▇ Group and
such Other Stockholders will be entitled to sell in the contemplated Transfer a
number of Stockholder Shares of the same class proposed to be sold by the ▇▇▇▇
Group (the "Offered Class") equal to the product of (i) the quotient determined
by dividing the percentage of Stockholder Shares of the Offered Class owned by
such person by the aggregate percentage of Stockholder Shares of the Offered
Class owned by the ▇▇▇▇ Group, the Other Stockholders and any other stockholders
of the Company participating in such sale multiplied by (ii) the number of
Stockholder Shares of the Offered Class to be sold in the contemplated Transfer.
The sale by all Stockholders electing to participate in such sale will be on the
same terms and at sale prices equal to (i) in the case of Class A Common or
Class A Non-Voting Common, the same price per share as paid to the ▇▇▇▇ Group
for the Class P Common held by the ▇▇▇▇ Group and (ii) in the case
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of Non-Voting Common, the same price per share as paid to the ▇▇▇▇ Group for the
Common held by the ▇▇▇▇ Group. Solely for the purposes of this paragraph 2(b),
Class A Common and Class A Non-Voting Common will be deemed to be in the same
class as the Class P Common and the Non-Voting Common will be deemed to be in
the same class as the Common. In addition, solely for purposes of this paragraph
2(b), in the case of any Transfer involving all or any portion of the ▇▇▇▇
Group's Class P Common, a portion of JNL's Common and Non-Voting Common equal to
the quotient determined by dividing the number of shares of Class P Common to be
Transferred by the ▇▇▇▇ Group by the number of shares of Common Stock held by
the ▇▇▇▇ Group immediately prior to such Transfer shall be deemed to be in the
same class as the Class P Common, provided that the price per share to be paid
to the holder of any such JNL Common or Non-Voting Common shall be reduced by
the amount of any preference (i.e., any Unreturned Original Cost and Unpaid
Yield (as each such term is defined in the Company's Certificate of
Incorporation)) then available to a holder of Class P Common set forth in the
Company's Certificate of Incorporation as in effect immediately prior to such
Transfer.
For example (by way of illustration only), if the Sale Notice contemplated
a sale of 100 Stockholder Shares by the ▇▇▇▇ Group, and if the ▇▇▇▇ Group
at such time owns 30% of all Stockholder Shares and if one Other
Stockholder elects to participate and owns 20% of all Stockholder Shares,
the ▇▇▇▇ Group would be entitled to sell 60 shares (30% / 50% x 100 shares)
and the Other Stockholder would be entitled to sell 40 shares (20% / 50% x
100 shares).
The ▇▇▇▇ Group shall use best efforts to obtain the agreement of the prospective
transferee(s) to the participation of the Other Stockholders in any contemplated
Transfer and to the inclusion (in the case of ▇▇▇▇▇▇) of the Warrants in the
contemplated Transfer, and no Stockholder shall transfer any of its Stockholder
Shares to the prospective transferee(s) if the prospective transferee(s)
declines to allow the participation of the Other Stockholders or the inclusion
of the Warrants. If any portion of the Warrants are included in any Transfer of
Stockholder Shares under this sub paragraph 2(b), the purchase price for such
Warrants shall be equal to the full purchase price determined hereunder for the
Stockholder
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Shares covered by the portion of the Warrant to be transferred, reduced by the
aggregate exercise price for such shares.
(c) Permitted Transfers. The restrictions contained in this Section 2
shall not apply to (i) any Transfer of Stockholder Shares by any Stockholder
among its Affiliates, (ii) a Public Sale, (iii) an Approved Sale, (iv) any
Transfer by JNL (A) to any Person who acquires all or substantially all of the
assets of JNL or (B) to any Person who acquires from JNL a portion of the loans
granted under the Credit Agreement, pro rata based on the principal amount of
such loans acquired, (v) any Transfer by ▇▇▇▇▇▇ to any Person who acquires all
or substantially all of the assets of ▇▇▇▇▇▇, (vi) a Transfer pursuant to
paragraph 2(d) below, (vii) a Transfer of Stockholder Shares by any Stockholder
pursuant to the laws of descent and distribution or among such Stockholder's
Family Group, (viii) a Transfer pursuant to paragraph 2(b) above, (ix) a
Transfer pursuant to paragraph 2(e) below or (x) a Transfer pursuant to
paragraph 2(f) below; provided that, the restrictions contained in this
Agreement will continue to be applicable to the Stockholder Shares after any
Transfer pursuant to clauses (i), (iv), (v), (vi), (vii), (viii), (ix) and (x)
above and the transferees of such Stockholder Shares shall agree in writing to
be bound by the provisions of this Agreement. Upon the Transfer of Stockholder
Shares pursuant to this paragraph 2(c), the transferor will deliver a written
notice to the Company, which notice will disclose in reasonable detail the
identity of such transferee.
(d) Right of First Refusal. Except in the case of a Transfer
permitted by paragraph 2(c)(i), (ii), (iii), (iv), (viii) or (ix), at least 30
days prior to making any Transfer of shares of any class of Common Stock, each
holder of JNL Shares shall deliver a written notice (the "JNL Offer Notice") to
the Company and the ▇▇▇▇ Group. The JNL Offer Notice shall disclose in
reasonable detail the proposed number of shares and the class of Common Stock to
be transferred, the identity of the transferee and the proposed terms and
conditions of the Transfer. First, the Company may elect to purchase all (but
not less than all) of the shares of such class or classes of Common Stock
specified in the JNL Offer Notice at the price and on the terms specified
therein by delivering written notice of such election to such holder of JNL
Shares and the ▇▇▇▇ Group as soon as practical but in any event within ten days
after the delivery of the JNL Offer Notice. If the Company has not elected to
purchase all of the shares of Common Stock within such
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ten-day period, each member of the ▇▇▇▇ Group may elect to purchase all
(but not less than all) of his or its Pro Rata Share (as defined below) of such
shares of Common Stock specified in the JNL Offer Notice at the price and on the
terms specified therein by delivering written notice of such election to such
holders of the JNL Shares as soon as practical but in any event within 20 days
after delivery of the JNL Offer Notice. Any shares of Common Stock not elected
to be purchased by the end of such 20-day period shall be reoffered for the ten-
day period prior to the expiration of the 30-day period after the delivery of
the JNL Offer Notice (the "Election Period") by such holders of the JNL Shares
on a pro rata basis to the other members of the ▇▇▇▇ Group who have elected to
purchase their Pro Rata Share. If the Company or any member of the ▇▇▇▇ Group
has elected to purchase shares of Common Stock from such holders of the JNL
Shares, the transfer of such shares shall be consummated as soon as practical
after the delivery of the election notices, but in any event within 30 days
after the expiration of the Election Period. In the event that the Company and
the members of the ▇▇▇▇ Group have not elected to purchase all of the shares of
Common Stock being offered, such holders of the JNL Shares may, within 60 days
after the expiration of the Election Period, transfer all such shares of Common
Stock identified in the JNL Offer Notice to the party or parties identified in
the JNL Offer Notice at a price no less than the price per share specified in
the JNL Offer Notice and on other terms no more favorable to the transferees
than offered to the Company and the members of the ▇▇▇▇ Group in the JNL Offer
Notice. The purchase price specified in any JNL Offer Notice shall be payable
solely in cash or Marketable Securities at the closing of the transaction. Each
Stockholder's "Pro Rata Share" shall be based upon such Stockholder's
proportionate ownership of all shares of such class of Common Stock on a fully-
diluted basis.
(e) Regulatory First Offer Right. At least 30 days prior to making any
Transfer that is or may be required by either ▇▇▇▇▇▇ or JNL to comply with any
federal or state law or any rule or regulation of any governmental or public
body or authority, ▇▇▇▇▇▇ or JNL (as the case may be) shall deliver a written
notice (the "Offer Notice") to the Company and the ▇▇▇▇ Group. The Offer Notice
shall disclose in reasonable detail the proposed number of ▇▇▇▇▇▇ Shares or JNL
Shares (as the case may be) to be transferred and the proposed sale price, terms
and conditions of the Transfer. First, the Company may elect to purchase all
(but not less than
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all) of the ▇▇▇▇▇▇ Shares or the JNL Shares (as the case may be) specified in
the Offer Notice at the price and on the terms specified therein by delivering
written notice (the "Company Notice") of such election to ▇▇▇▇▇▇ or JNL (as the
case may be) and the ▇▇▇▇ Group as soon as practical but in any event within ten
days after the delivery of the Offer Notice. If the Company has not elected to
purchase all of the ▇▇▇▇▇▇ Shares or the JNL Shares (as the case may be) within
such ten-day period, the ▇▇▇▇ Group may elect to purchase all (but not less than
all) of the ▇▇▇▇▇▇ Shares or the JNL Shares (as the case may be) specified in
the Offer Notice at the price and on the terms specified therein by delivering
written notice (the "▇▇▇▇ Notice") of such election to ▇▇▇▇▇▇ or JNL (as the
case may be) as soon as practical but in any event within 20 days after delivery
of the Offer Notice. If the Company or the ▇▇▇▇ Group have elected to purchase
▇▇▇▇▇▇ Shares or JNL Shares (as the case may be) from ▇▇▇▇▇▇ or JNL (as the case
may be), the transfer of such shares shall be consummated as soon as practical
after the delivery of the Company Notice or ▇▇▇▇ Notice, but in any event within
30 days after the delivery of either such notice. To the extent that neither the
Company nor the ▇▇▇▇ Group have elected to purchase all of the ▇▇▇▇▇▇ Shares or
the JNL Shares (as the case may be) being offered, ▇▇▇▇▇▇ or JNL (as the case
may be) may, within 60 days after a delivery of the Offer Notice, transfer such
▇▇▇▇▇▇ Shares or JNL Shares (as the case may be) to one or more third parties at
a price no less than the price per share specified in the Offer Notice and on
other terms no more favorable to the transferees than offered to the Company and
the ▇▇▇▇ Group in the Offer Notice. The purchase price specified in any Company
Notice or ▇▇▇▇ Notice shall be payable solely in cash at the closing of the
transaction or, if mutually agreed upon by the parties, in installments over
time.
(f) ▇▇▇▇▇▇ First Offer Right. On or after October 28, 1999, at least
20 days prior to making any Transfer of any ▇▇▇▇▇▇ Shares, ▇▇▇▇▇▇ shall deliver
a written notice (the "▇▇▇▇▇▇ Offer Notice") to the Company, the ▇▇▇▇ Group and
the holders of the JNL Shares. The ▇▇▇▇▇▇ Offer Notice shall disclose in
reasonable detail the proposed number of ▇▇▇▇▇▇ Shares to be transferred and the
proposed sale price, terms and conditions of the Transfer. First, the Company
may elect to purchase all (but not less than all) of the ▇▇▇▇▇▇ Shares specified
in the ▇▇▇▇▇▇ Offer Notice at the price and on the terms specified therein by
delivering written notice (the "Company Purchase Notice") of such election to
▇▇▇▇▇▇,
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the ▇▇▇▇ Group and the holders of the JNL Shares as soon as practical but in any
event within five days after the delivery of the ▇▇▇▇▇▇ Offer Notice. If the
Company has not elected to purchase all of the ▇▇▇▇▇▇ Shares pursuant to the
▇▇▇▇▇▇ Offer Notice within such five-day period, the Company may deliver a
written notice (the "Company Election") to ▇▇▇▇▇▇, each member of the ▇▇▇▇ Group
and each holder of JNL Shares within five days after delivery of the ▇▇▇▇▇▇
Offer Notice disclosing the proposed purchase price (the "Floor Price"), terms
and conditions on which the Company is willing to purchase all of the ▇▇▇▇▇▇
Shares. If the Company and ▇▇▇▇▇▇ have not agreed to consummate the purchase and
sale of the ▇▇▇▇▇▇ Shares offered pursuant to this paragraph 2(f) (either
pursuant to the ▇▇▇▇▇▇ Offer Notice or the Company Election), each member of the
▇▇▇▇ Group and each holder of JNL Shares may elect to purchase all (but not less
than all) of its Pro Rata Purchase Amount (as defined below) of the ▇▇▇▇▇▇
Shares specified in the ▇▇▇▇▇▇ Offer Notice at the price and on the terms
specified therein by delivering written notice (the "▇▇▇▇▇▇ Purchase Notice") of
such election to ▇▇▇▇▇▇ as soon as practical but in any event within 15 days
after delivery of the ▇▇▇▇▇▇ Offer Notice. Any ▇▇▇▇▇▇ Shares not elected to be
purchased by the end of such 15-day period shall be reoffered for the 5-day
period prior to the expiration of the 20-day period after the delivery of the
▇▇▇▇▇▇ Offer Notice (the "Purchase Election Period") by ▇▇▇▇▇▇ on a pro rata
basis to the other members of the ▇▇▇▇ Group or the other holders of JNL Shares
who have elected to purchase their Pro Rata Purchase Amount. If the Company, any
member of the ▇▇▇▇ Group or any holder of JNL Shares has elected to purchase
▇▇▇▇▇▇ Shares, the transfer of such shares shall be consummated as soon as
practical after the delivery of the Company Purchase Notice, the Company
Election or the ▇▇▇▇▇▇ Purchase Notice, but in any event within 30 days after
the expiration of the Purchase Election Period. To the extent that neither the
Company, the ▇▇▇▇ Group nor the holders of JNL Shares have elected to purchase
all of the ▇▇▇▇▇▇ Shares being offered, ▇▇▇▇▇▇ may, within 120 days after a
delivery of the ▇▇▇▇▇▇ Offer Notice, transfer all or any portion of such ▇▇▇▇▇▇
Shares to one or more third parties at a price no less than the Floor Price per
share specified in the Company Election and on other terms no more favorable to
the transferees than offered to ▇▇▇▇▇▇ in the Company Election; provided, that
▇▇▇▇▇▇ may not transfer ▇▇▇▇▇▇ Shares to more than five transferees pursuant to
this Section 2(f). The purchase price specified in any Company Purchase Notice,
▇▇▇▇▇▇ Purchase Notice or Company Election
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shall be payable solely in cash at the closing of the transaction or, if
mutually agreed upon by the parties, in installments over time. The Company, the
▇▇▇▇ Group, the holders of JNL Shares and their respective Affiliates agree to
maintain the confidentiality of the information contained in the ▇▇▇▇▇▇ Offer
Notice and the Company Election, except where required by law or legal process
and except for information which becomes a matter of public knowledge other than
as a result of disclosure by the Company, the ▇▇▇▇ Group, the holders of JNL
Shares or their respective Affiliates. Each member of the ▇▇▇▇ Group's or each
holder of JNL Shares' "Pro Rata Purchase Amount" shall be based upon each such
Stockholder's proportionate ownership of all shares of Common Stock held by all
such Stockholders.
(g) Termination of Restrictions. The restrictions set forth in this
paragraph 2 shall continue with respect to each Stockholder Share until the
earlier of (i) the date on which such Stockholder Share has been transferred in
a Public Sale, (ii) the consummation of an Approved Sale (as defined in
paragraph 3 below) or (iii) the consummation of a Qualified Public Offering (as
defined in paragraph 10 below).
3. Sale of the Company.
(a) If 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) to any Independent Third Party or group of Independent Third Parties
(collectively an "Approved Sale"), each holder of Stockholder Shares will
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 Stockholder
Shares 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 Stockholder Shares will agree to sell all of his Stockholder Shares and
rights to acquire Stockholder Shares on the terms and conditions approved by the
Board and the holders of a majority of the Stockholder Shares then outstanding.
Each holder of Stockholder Shares will take all necessary or desirable actions
in connection with the consummation of the Approved Sale as
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requested by the Company. If the Approved Sale will result in the distribution
of equity securities to the holders of Stockholder Shares, upon the request of a
holder of Stockholder Shares, the Company shall offer such holder non-voting
equity securities in lieu of voting securities.
(b) The obligations of the holders of Common Stock with respect to an
Approved Sale 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; (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; (iv) the maximum indemnification liability pursuant to the Approved Sale
shall not exceed the total purchase price of the Common Stock and each holder of
Stockholder Shares shall not be subject to any such indemnification liability in
excess of such holder's proportionate share of the net proceeds from such sale;
and (v) no selling stockholder shall be obligated to make general
representations or warranties regarding the business and affairs of the Company.
(c) In the event JNL holds at least a majority of the JNL Shares which
JNL originally acquired pursuant to the Credit Agreement, and in the event of an
Approved Sale of the Company in which either (i) the consideration to be
distributed to the JNL Shares will be less than 80% in Cash Equivalents
(provided that, if any non Cash Equivalents consideration will become Cash
Equivalents (either contractually or otherwise, e.g., upon the undertaking of a
third party to register securities) within a 180-day period after the
consummation of such Approved Sale, for purposes of this clause (i), such non
Cash Equivalents consideration shall be deemed to be Cash Equivalents
consideration), or (ii) the consideration to be distributed to the JNL Shares
includes any consideration which is
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not Cash Equivalents and the receipt and retention of any such non Cash
Equivalents consideration for holders of JNL Shares shall not be permitted by
the laws and regulations of the jurisdictions to which such holders are subject,
without reference to any "basket" provisions of such laws such as New York
Insurance Law Section 1405(a)(8) or will result in a violation of any statute,
law, rule or regulation, or any judgment, order or decree of any governmental
authority or governmental or nongovernmental regulatory body applicable to said
holders or their assets, then the holders of a majority of the JNL Shares will
have the option to elect to receive in lieu of the consideration otherwise to be
distributed an amount in cash with respect to an Approved Sale determined in
accordance with this paragraph 3(c). The holders of the majority of JNL Shares
shall elect the foregoing option, if at all, by giving notice of such election
(the "Sale Election Notice") to the Company within 15 days after the Company
gives notice to the holders of the JNL Shares setting forth the consideration to
be received by the holders of the JNL Shares upon consummation of an Approved
Sale. Upon such election by the holders of the JNL Shares, the Company and the
holders of the JNL Shares shall mutually agree on the fair market value of the
non Cash Equivalents to be received with respect to an Approved Sale, or, if
they fail to mutually agree, an Independent Investment Banking Firm will be
engaged within 30 days of the Sale Election Notice to determine the fair market
value of the non Cash Equivalents to be received by the holders of the JNL
Shares. Within ten days of the notice by the Company of the determination of the
fair market value of the non Cash Equivalents, the holders of the JNL Shares
shall either elect by notice to the Company to accept the Cash Payment (defined
below) or to accept the consideration otherwise to be distributed to the holders
of the JNL Shares. If Section 3(c)(ii) applies, then the Cash Payment shall be
in cash equal to the fair market value, as determined above, of the respective
non Cash Equivalents. If Section 3(c)(i) applies, and Section 3(c)(ii) does not
apply, then the Cash Payment shall be in the form of: (y) non Cash Equivalents
as otherwise provided for up to 20% of the total consideration to be distributed
upon an Approved Sale with respect to JNL Shares and (z) cash for the remainder
on a pro rata basis for the fair market value, as determined above, with respect
to JNL Shares. In the event the holders of a majority of the JNL Shares either
elect to accept the Cash Payment or accept the consideration otherwise to be
distributed upon an Approved Sale in lieu of the foregoing Cash Payment, the
Company and the holders of the JNL Shares shall each,
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respectively, pay one half of all fees and expenses of such Independent
Investment Banking Firm. Any decision of the Independent Investment Banking
Firm shall be final and binding on the parties to this Agreement and may be
specifically enforced by legal proceedings. The holders of the JNL Shares
hereby acknowledge and agree that the terms of Section 3(a) apply to any
Approved Sale of the Company.
(d) 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 and Exchange Commission may be
available with respect to such negotiation or transaction (including a merger,
consolidation or other reorganization), the holders of Stockholder Shares will,
at the request of the Company, appoint a purchaser representative (as such term
is defined in Rule 501 of the Securities Act) reasonably acceptable to the
Company. If any holder of Stockholder Shares appoints a purchaser
representative designated by the Company, the Company will pay the fees of such
purchaser representative, but if any holder of Stockholder Shares 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.
(e) Except as set forth in paragraph (c) above, holders of Stockholder
Shares will bear their pro-rata share (based upon the number of shares sold) of
the reasonable out-of-pocket costs of any sale of Stockholder Shares 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 holders of Stockholder Shares on their own
behalf will not be considered costs of the transaction hereunder.
(f) The provisions of this paragraph 3 will terminate upon completion
of the Public Offering of the Common Stock.
4. Limited Preemptive Rights.
-------------------------
(a) Except for the issuance or sale of securities (i) to officers,
employees, directors or consultants (excluding ▇▇▇▇ Capital, Inc., its employees
and its Affiliates) of the Company or
-12-
its Subsidiaries, so long as such securities have a purchase price or exercise
price equal to or greater than the Fair Market Value of the Common Stock or the
underlying Common Stock on the date of issuance or grant of such security, (ii)
pursuant to an underwritten Public Offering, (iii) as consideration (in whole or
in part) for an acquisition consummated after the date of this Agreement, (iv)
which were previously held by management of the Company or any Subsidiary of the
Company and were reacquired by the Company pursuant to a put or call arrangement
with such managers and are then being reissued and offered to (A) other managers
of the Company or any Subsidiary of the Company (excluding ▇▇▇▇ Capital, Inc.,
its employees and its Affiliates) or (B) each of the Company's then existing
stockholders, on a pro rata basis, at or above the lesser of the cost of such
repurchase or the fair market value of such security at the date of such
reissuance, or (v) upon the exercise or conversion of any options, warrants or
securities outstanding on the date hereof or issued after the date hereof in
compliance with the provisions of this paragraph 4, if the Company authorizes
the issuance or sale of any of its securities (other than as a dividend on the
outstanding Common Stock) to any Person, the Company shall first offer to sell
to each holder of Stockholder Shares (other than the holders of the Warrants,
prior to the exercise thereof) a portion of such stock or securities equal to
the quotient determined by dividing (x) the number of shares of Common Stock
held by such holder of Stockholder Shares (other than the holders of the
Warrants, prior to the exercise thereof) by (y) the total number of shares of
outstanding Common Stock on a fully diluted basis, assuming exercise or
conversion of all options, warrants and convertible securities (prior to giving
effect to any anti-dilution adjustment with respect to any such options,
warrants or convertible securities). Each holder of Stockholder Shares shall be
entitled to purchase such stock or securities at the most favorable price and on
the most favorable terms as such stock or securities are to be offered to such
Person. The purchase price for all stock and securities offered to each holder
of Stockholder Shares shall be payable in cash by wire transfer of immediately
available funds.
(b) In order to exercise its purchase rights hereunder, each holder
of Stockholder Shares must within 15 days after receipt of written notice from
the Company describing in reasonable detail the stock or securities being
offered, the purchase price thereof, the payment terms and such holder's
percentage allotment deliver a
-13-
written notice to the Company describing its election hereunder. Upon the
election of any holder of Stockholder Shares, the Company shall offer such
holder non-voting stock or securities in lieu of voting stock or securities.
(c) Upon the expiration of the offering periods described above, the
Company shall be entitled to sell such stock or securities which the holder of
Stockholder Shares has not elected to purchase during the 90 days following such
expiration on terms and conditions no more favorable to the purchasers thereof
than those offered to holders of Stockholder Shares. Any stock or securities
offered or sold by the Company to any Person after such 90-day period must be
reoffered to each holder of Stockholder Shares pursuant to the terms of this
paragraph.
(d) The rights under this paragraph 4 will terminate upon completion
of a Qualified Public Offering (as defined below) of the Common Stock.
5. Public Offering. In the event that the Board and the holders of a
majority of the shares of Common Stock then outstanding and having a right to
vote approve an initial public offering and sale of Common Stock (a "Public
Offering") pursuant to an effective registration statement under the Securities
Act, the holders of Stockholder Shares 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 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 Stockholder Shares 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 economic values reflected by the rights and
preferences set forth in the Company's Certificate of Incorporation as in effect
immediately prior to such Public Offering and at the request of a holder of
Stockholder Shares, the Company shall offer such holder non-voting securities in
lieu of voting securities; provided further, that nothing herein shall be deemed
to compel a
-14-
holder of Stockholders Shares to convert or exchange the class of securities it
holds or has a right to hold immediately prior to the Public Offering into a
class of securities the mere ownership of which would cause such holder to be in
violation of any law, rule or regulation to which it is subject.
6. Legend. (a) Each certificate evidencing Stockholder Shares and
each certificate issued in exchange for or upon the Transfer of any Stockholder
Shares (if such shares remain Stockholder Shares as defined herein after such
Transfer) shall be stamped or otherwise imprinted with a legend in substantially
the following form:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO CERTAIN
TRANSFER RESTRICTIONS PURSUANT TO AN AMENDED AND RESTATED STOCKHOLDERS
AGREEMENT DATED AS OF JANUARY 31, 1995, AMONG THE ISSUER OF SUCH
SECURITIES (THE "COMPANY") AND CERTAIN OF THE COMPANY'S STOCKHOLDERS.
A COPY OF SUCH STOCKHOLDERS AGREEMENT WILL BE FURNISHED WITHOUT CHARGE
BY THE COMPANY TO THE HOLDER HEREOF UPON WRITTEN REQUEST."
(b) The Company shall imprint such legend on certificates evidencing
Stockholder Shares outstanding prior to the date hereof. The legend set forth
above shall be removed from the certificates evidencing any shares which cease
to be Stockholder Shares in accordance with paragraph 9 hereof.
7. Additional Restrictions on Transfer.
-----------------------------------
(a) The certificates representing the ▇▇▇▇▇▇ Shares and the JNL Shares
will bear the following legend:
"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.
(b) No holder of ▇▇▇▇▇▇ Shares or JNL Shares may sell, transfer or
dispose of any ▇▇▇▇▇▇ Shares or JNL Shares (except
-15-
pursuant to an effective registration statement under the Securities Act)
without first delivering to the Company an opinion of counsel (reasonably
acceptable in form and substance to the Company) that neither registration nor
qualification under the Securities Act and applicable state securities laws is
required in connection with such transfer.
8. Transfer. Prior to Transferring any Stockholder Shares (other
than in a Public Sale or in an Approved Sale) to any person or entity, the
transferring Stockholder shall cause the prospective transferee to execute and
deliver to the Company and the other Stockholders a counterpart of this
Agreement.
9. Covenants.
---------
(a) Information. Prior to the consummation of a Public Offering, the
Company shall deliver to each Qualified Holder of Stockholder Shares:
(i) Monthly Statements. As soon as available and in any event within
30 days (provided that, for the first six monthly financial statements to
be delivered after the date hereof, such financial statements shall not be
required to be delivered until 40 days after the end of such month) after
the end of each month, copies of the consolidated balance sheet of the
Company as of the end of such month, the related consolidated statements of
income, shareholder's equity and cash flows and separate unconsolidated
statements of income for such month and for the portion of the fiscal year
of the Company ended with the last day of such month, all in reasonable
detail and stating in comparative form (A) the consolidated figures as of
the end of and for the corresponding date and period in the previous fiscal
year and (B) the corresponding figures from the consolidated budget of the
Company and its Subsidiaries for such period. Such financial statements
shall be (A) prepared in accordance with generally accepted accounting
principles applied on a consistent basis and (B) certified as complete and
correct by the chief financial or accounting officer or chief executive
officer of the Company.
(ii) Annual Statements. As soon as available and in any event within
90 days after each fiscal year end of the
-16-
Company, copies of the audited consolidated and unaudited consolidating
balance sheets of the Company and its Subsidiaries as of the end of such
fiscal year, and of the related audited consolidated statements of income
(and in the case of such statements of income, the unaudited consolidating
statements), shareholder's equity and cash flows for such fiscal year,
together with notes thereto, all in reasonable detail and stating in
comparative form (A) the audited consolidated and unaudited consolidating
figures as of the end of and for the previous fiscal year and (B) the
corresponding figures from the consolidated budget of the Company and its
Subsidiaries for such fiscal year, (x) in the case of the audited
consolidated financial statements, accompanied by a report thereon of an
independent public accountant of recognized national standing selected by
the Company, which report shall be unqualified as to going concern and
scope of audit and shall state that such consolidated financial statements
present fairly the consolidated financial position of the Company and its
Subsidiaries as of the end of such fiscal year and the consolidated results
of their operations, shareholder's equity and cash flows in conformity with
generally accepted accounting principles applied on a consistent basis and
that such examination has been made in accordance with generally accepted
auditing standards, and (y) in the case of the consolidating financial
statements, certified as complete and correct by the chief financial or
accounting officer or chief executive officer of the Company.
(b) Reservation of Common Stock. The Company will at all times
reserve and keep available, solely for issuance, sale and delivery upon the
exercise of the Warrants, the conversion thereof into voting Common Stock or the
conversion of Non-Voting Common Stock into voting Common Stock, (A) in the case
of any Warrants exercisable for Class A Non-Voting Common, a number of shares of
Class A Non-Voting Common issuable upon the exercise of any such Warrants and a
number of shares of Class A Common equal to the number of shares of Class A
Common issuable upon conversion of such Class A Non-Voting Common, (B) in the
case of any Warrants exercisable for Non-Voting Common, a number of shares of
Non-Voting Common issuable upon the exercise of any such Warrants and a number
of shares of Common equal to the number of shares of Common issuable upon
conversion of such Non-Voting Common, (C) in the case of any Warrants
exercisable for Common, a number of shares of
-17-
Common issuable upon the exercise of any such Warrants, and (D) in the case of
any Non-Voting Common issued, a number of shares of Common issuable upon
conversion of such Non-Voting Common. All shares of Common Stock issuable upon
the exercise of the Warrants or upon the conversion of any Common Stock issuable
upon exercise of any Warrants or otherwise, when such Common Stock is issued or
converted, shall be validly issued and fully paid and non-assessable with no
liability on the part of the holders thereof. The Company shall not at any time
while any Warrants are outstanding allow the par value of its Common Stock to
exceed the then effective exercise price of any of the Warrants.
(c) Interested Transactions. The Company will not and will not permit
any of its Subsidiaries to (without the affirmative vote of at least a majority
of (A) the ▇▇▇▇▇▇ Shares and (B) the JNL Shares):
(i) enter into or permit to exist any material transaction with the
▇▇▇▇ Group or an Affiliate of the ▇▇▇▇ Group, except (i) as set forth in
the Advisory Agreement as in effect on the date hereof or (ii) transactions
in the ordinary course of and pursuant to the reasonable requirements of
the business of the Company or any of its Subsidiaries upon fair and
reasonable terms which are fully disclosed to each Qualified Holder and are
no less favorable to the Company or such Subsidiary than would be obtained
in a comparable arm's length transaction with a Person that is not a member
of the ▇▇▇▇ Group or an Affiliate of the ▇▇▇▇ Group; provided however, that
nothing in this Section 9(c) shall require the Company to seek such an
affirmative vote to enter into any transactions contemplated in the
Advisory Agreement; or
(ii) engage to any material extent in any business other than the
manufacture, sale, marketing and distribution of vitamins, minerals, other
food supplements, herbal products, teas, homeopathic remedies and personal
care products which are typically found in natural health food stores and
businesses and activities substantially similar or related thereto.
(d) Delivery of Public Information. At all times after the Company
has filed a registration statement with the Securities and Exchange Commission
pursuant to the requirements of either the
-18-
Securities Act or the Securities Exchange Act, the Company shall deliver to each
Qualified Holder, a copy of the Company's Annual Report on Form 10-K, a copy of
each of the Company's Quarterly Reports on Form 10-Q and a copy of each of the
Company's Current Reports on Form 8-K. The deliveries required pursuant to the
preceding sentence shall be sent within ten days after the due date of any such
filing (or in the case of any Current Report on Form 8-K, as and when made) with
the Securities and Exchange Commission.
10. Definitions.
-----------
"Advisory Agreement" shall mean that certain Amended and Restated
Advisory Agreement dated as of the date hereof, by and among Nutraceutical
Corporation (f/k/a Nutraceutical Newco, Inc.), Solaray, Inc., ▇▇▇▇ Capital, Inc.
and ▇.▇. ▇▇▇ & Sons.
"Affiliate" of a Stockholder means any other person, entity or
investment fund controlling, controlled by or under common control with the
Stockholder and, in the case of a Stockholder which is a partnership, any
partner of the Stockholder.
"Bain Shares" means (i) any Common Stock purchased by the ▇▇▇▇ Group
pursuant to the Purchase Agreement, (ii) any shares of Common Stock otherwise
acquired by the ▇▇▇▇ Group and (iii) any equity securities issued or issuable
directly or indirectly with respect to the Common Stock referred to in clauses
(i) or (ii) by way of stock dividend or stock split or in connection with a
combination of shares, recapitalization, merger, consolidation or other
reorganization. As to any particular shares constituting Bain Shares, such
shares will cease to be Bain Shares when they have been (x) effectively
registered under the Securities Act and disposed of in accordance with the
registration statement covering them, or (y) sold to the public through a
broker, dealer or market maker pursuant to Rule 144 (or by similar provision
then in force) under the Securities Act.
"Cash Equivalents" means cash and Marketable Securities.
"Certificate of Incorporation" means the Company's certificate of
incorporation in effect at the time as of which any determination is being made.
-19-
"Fair Market Value" means the fair market value of the Common Stock or
any warrants, options or other rights to purchase or subscribe for Common Stock
as determined by the Board in its good faith judgment; provided, that if the
holders of a majority of the JNL Shares then outstanding object to the
determination of Fair Market Value made by the Board, Fair Market Value shall be
determined by an Independent Investment Banking Firm, whose determination shall
be final and binding upon the Company and the holders of the JNL Shares;
provided further, that to the extent such Independent Investment Banking Firm's
determination of Fair Market Value is within 5% of the Fair Market Value
determination made by the Board, the Board's determination of Fair Market Value
shall be final and binding upon the Company and the holders of the JNL Shares.
The holders of the JNL Shares shall pay the fees and expenses of any Independent
Investment Banking Firm retained to make a determination of Fair Market Value
pursuant to Section 4 of this Agreement.
"Family Group" means a stockholder's spouse and descendants (whether
or not adopted) and any trust solely for the benefit of the Stockholder and/or
the Stockholder's spouse and/or descendants.
"▇▇▇▇▇▇ Shares" means (i) any Class A Non-Voting Common or Non-Voting
Common issued upon the exercise of the ▇▇▇▇▇▇ Warrants, (ii) any Class A Common
or Common issued upon the conversion of any Class A Non-Voting Common or Non-
Voting Common issued upon the exercise of the ▇▇▇▇▇▇ Warrants, (iii) any shares
of Common Stock otherwise acquired by ▇▇▇▇▇▇ and (iv) any equity securities
issued or issuable with respect to the securities referred to in clauses (i),
(ii) and (iii) by way of a stock dividend or stock split or in connection with a
combination of shares, recapitalization, merger, consolidation or other
reorganization. For purposes of this Agreement, a Person will be deemed to be a
holder of ▇▇▇▇▇▇ Shares whenever such Person has the right to acquire such
▇▇▇▇▇▇ Shares (upon conversion or exercise in connection with a transfer of
securities or otherwise, but disregarding any restriction or limitations upon
the exercise of such right), whether or not such acquisition has actually been
effected. As to any particular shares constituting ▇▇▇▇▇▇ Shares, such shares
will cease to be ▇▇▇▇▇▇ Shares when they have been (x) effectively registered
under the Securities Act and disposed of in accordance with the registration
statement covering them, or (y)
-20-
sold to the public through a broker, dealer or market maker pursuant to Rule 144
(or by similar provision then in force) under the Securities Act.
"▇▇▇▇▇▇ Warrants" means those two warrants of the Company of the
Company dated October 28, 1993, each as amended on October 31, 1994 and on the
date hereof, whereby ▇▇▇▇▇▇ has the right to acquire the number of shares of
Common Stock set forth therein.
"Independent Investment Banking Firm" means a nationally recognized
investment banking firm which is not an Affiliate of the Company or any
shareholder of the Company, selected by the Company with the approval of holders
of a majority of the JNL Shares (which approval shall not be unreasonably
withheld); provided that one representative of the holders of a majority of the
JNL Shares shall be entitled to participate in and be a part of any discussions
with such Independent Investment Banking Firm and the holders of a majority of
the JNL Shares will be named as a client of record of such Independent
Investment Banking Firm.
"Independent Third Party" means any Person who, immediately prior to
the contemplated transaction, does not own in excess of 5% of the Company's
Common Stock on a fully-diluted basis (a "5% Owner"), who is not controlling,
controlled by or under common control with any such 5% Owner and who is not the
spouse or descendent (by birth or adoption) of any such 5% Owner or a trust for
the benefit of such 5% Owner and/or such other Persons. The term "Independent
Third Party" shall not include any Person who is an officer, director or
employee of ▇▇▇▇ Capital, Inc.
"JNL Shares" means (i) any Common Stock issued pursuant to the Credit
Agreement, (ii) any shares of Common Stock otherwise acquired by JNL and (iii)
any equity securities issued or issuable with respect to the securities referred
to in clauses (i) or (ii) by way of a stock dividend or stock split or in
connection with a combination of shares, recapitalization, merger, consolidation
or other reorganization. As to any particular shares constituting JNL Shares,
such shares will cease to be JNL Shares when they have been (x) effectively
registered under the Securities Act and disposed of in accordance with the
registration statement covering them, or (y) sold to the public through a
broker, dealer or market maker pursuant to Rule 144 (or by similar provision
then in force) under the Securities Act.
-21-
"Marketable Securities" means any of the following: U.S. Treasury
notes and securities traded on the New York Stock Exchange, Inc., or any
national stock exchange or quoted in the National Market System of the National
Association of Securities Dealers, Inc. Automated Quotation System.
"Person" means an individual, a partnership, a corporation, an
association, a joint stock company, a trust, a joint venture, an unincorporated
organization and a governmental entity or any department, agency or political
subdivision thereof.
"Public Sale" means any sale of Stockholder Shares to the public
pursuant to an offering registered under the Securities Act or to the public
through a broker, dealer or market maker pursuant to the provisions of Rule 144
adopted under the Securities Act.
"Purchase Agreement" means that certain Stock Purchase Agreement dated
as of October 28, 1993 between the Company and the ▇▇▇▇ Group, whereby the ▇▇▇▇
Group purchased the number of shares of Common Stock set forth opposite each
Stockholder's name on the Schedule of Purchasers attached thereto.
"Qualified Holder" means any holder (or group of Affiliate holders) of
outstanding shares of Common Stock representing 2% or more of the outstanding
shares of Common Stock of any class.
"Qualified Public Offering" means the sale in an underwritten public
offering registered under the Securities Act of shares of the Company's Common
Stock having an aggregate value of at least $20 million and the listing of the
Common Stock on the New York Stock Exchange, the American Stock Exchange or the
National Association of Securities Dealers, Inc. Automated Quotation System.
"Registration Agreement" means that certain Amended and Restated
Registration Agreement dated as of the date hereof between the Company and
certain of its stockholders.
"Securities Act" means the Securities Act of 1933, as amended from
time to time.
"Securities and Exchange Commission" includes any governmental body or
agency succeeding to the functions thereof.
-22-
"Securities Exchange Act" means the Securities Exchange Act of 1934,
as amended from time to time.
"Stockholder Shares" means the Bain Shares, the ▇▇▇▇▇▇ Shares and the
JNL Shares.
"Subsidiary" means with respect to any Person, any corporation,
partnership, association or other business entity of which (i) if a corporation,
a majority of the total voting power of shares of stock entitled (without regard
to the occurrence of any contingency) to vote in the election of directors is at
the time owned or controlled, directly or indirectly, by that Person or one or
more of the other Subsidiaries of that Person or a combination thereof, or (ii)
if a partnership, association or other business entity, a majority of the
partnership or other similar ownership interest thereof is at the time owned or
controlled, directly or indirectly, by any Person or one or more Subsidiaries of
that Person or a combination thereof. For purposes hereof, a Person or Persons
shall be deemed to have a majority ownership interest in a partnership,
association or other business entity if such Person or Persons shall be
allocated a majority of partnership, association or other business entity gains
or losses or shall be or control the managing director or general partner of
such partnership, association or business entity.
"Warrants" means the ▇▇▇▇▇▇ Warrants.
11. Transfers in Violation of Agreement. Any Transfer or attempted
Transfer of any Stockholder Shares in violation of any provision of this
Agreement shall be void, and the Company shall not record such Transfer on its
books or treat any purported transferee of such Stockholder Shares as the owner
of such shares for any purpose.
12. Amendment and Waiver. Except as otherwise provided herein, no
modification, amendment or waiver of any provision of this Agreement shall be
effective against the Company or the Stockholders unless such modification,
amendment or waiver is approved in writing by the Company, the holders of at
least a majority of the then outstanding Bain Shares, the holders of at least a
majority of the then outstanding ▇▇▇▇▇▇ Shares and the holders of at least a
majority of the then outstanding JNL Shares. The failure of any party to enforce
any of the provisions of this
-23-
Agreement shall in no way be construed as a waiver of such provisions and shall
not affect the right of such party thereafter to enforce each and every
provision of this Agreement in accordance with its terms.
13. Severability. Whenever possible, each provision of this
Agreement shall 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 shall not affect
any other provision or the effectiveness or validity of any provision in any
other jurisdiction, and this Agreement shall be reformed, construed and enforced
in such jurisdiction as if such invalid, illegal or unenforceable provision had
never been contained herein.
14. Entire Agreement. Except as otherwise expressly set forth
herein, this Agreement, the Purchase Agreement, the Warrants and the
Registration Agreement embody the complete agreement and understanding among the
parties hereto with respect to the subject matter hereof and supersede and
preempt 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.
15. Successors and Assigns. Except as otherwise provided herein,
this Agreement shall bind and inure to the benefit of and be enforceable by the
Company and its successors and assigns and the Stockholders and any subsequent
holders of Stockholder Shares and the respective successors and assigns of each
of them, so long as they hold Stockholder Shares.
16. Counterparts. This Agreement may be executed in separate
counterparts each of which shall be an original and all of which taken together
shall constitute one and the same agreement.
17. 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 the Company and any Stockholder shall have the right to
injunctive relief, in addition to all of its rights and remedies at law or in
equity, to enforce the provisions of this Agreement. Nothing contained in this
Agreement shall be construed to confer upon any Person who is not
-24-
a signatory hereto any rights or benefits, as a third party beneficiary or
otherwise.
18. Notices. Any notice provided for in this Agreement shall be in
writing and shall be either personally delivered, or received by certified mail,
return receipt requested, or sent by reputable overnight courier service
(charges prepaid) to the Company, ▇▇▇▇▇▇ or JNL at the respective addresses set
forth below and to any other recipient at the address indicated in the Company's
records and to any subsequent holder of Stockholder Shares subject to this
Agreement at such address as indicated by the Company's records, or at such
address or to the attention of such other person as the recipient party has
specified by prior written notice to the sending party. Notices will be deemed
to have been given hereunder when delivered personally, three days after deposit
in the U.S. mail (for delivery by certified mail, return receipt requested) and
one day after deposit with a reputable overnight courier service. The
Company's, ▇▇▇▇▇▇'▇ and JNL's addresses are:
Nutraceutical International Corporation
▇/▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇.▇.▇.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇ ▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇
With a copy to:
▇▇▇▇ Capital, Inc.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
and
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. Learner
-25-
To ▇▇▇▇▇▇:
▇▇▇▇▇▇ Financial, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Portfolio Manager
Portfolio Organization
Corporate Finance Group
With a copy to:
▇▇▇▇▇▇ Financial, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Legal Department
Portfolio Organization
Corporate Finance Group
To JNL:
▇▇▇▇▇▇▇ National Life Insurance Company
c/o PPM America, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Private Placements
With a copy to:
▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
19. Governing Law. The corporate law of the State of Delaware will
govern all 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 New York, without
giving effect to any choice of law or conflict of law provision or rule (whether
of the State of New York or any other jurisdiction) that would cause the
application of the law of any jurisdiction other than the State of New York.
-26-
20. Descriptive Headings. The descriptive headings of this Agreement
are inserted for convenience only and do not constitute a part of this
Agreement.
* * * * *
-27-
IN WITNESS WHEREOF, the parties hereto have executed this Amended and
Restated Stockholders Agreement on the day and year first above written.
NUTRACEUTICAL INTERNATIONAL CORPORATION
By: /s/▇▇▇▇▇ ▇. ▇▇▇▇▇
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Its: Vice President
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▇▇▇▇ 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
▇.▇. ▇▇▇ & SONS
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇ ▇▇
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Its: Partner
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/s/ ▇▇▇▇▇ ▇. Learner
-----------------------------------
▇▇▇▇▇ ▇. Learner
▇▇▇▇▇▇ FINANCIAL, INC.
By: (signature illegible)
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Its: Vice President
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▇▇▇▇▇▇▇ NATIONAL LIFE
INSURANCE COMPANY
By: /s/ ▇.▇. ▇▇▇▇▇▇▇
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Its: Sr. V.P. & CFO
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SCHEDULE I
▇▇▇▇ Group
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▇▇▇▇ Capital Fund IV, ▇.▇.
▇▇▇▇ Capital Fund IV-B, L.P.
BCIP Associates
BCIP Trust Associates, L.P.
F.W. Gay & Sons
▇▇▇▇▇ ▇. Learner