-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, IscsxGFr8cFiQzx9Iy7uf0eVlzFRCp4hfGXNRzVGAB2wRdivQHzwBsrbkpEgs1GU 3HfzD4Jng+Q5IaC9k88kLQ== 0000912057-00-026327.txt : 20000526 0000912057-00-026327.hdr.sgml : 20000526 ACCESSION NUMBER: 0000912057-00-026327 CONFORMED SUBMISSION TYPE: SC TO-T/A PUBLIC DOCUMENT COUNT: 5 FILED AS OF DATE: 20000525 GROUP MEMBERS: KONINKLIJKE NUMICO NV GROUP MEMBERS: NUTRICIA FLORIDA, INC. GROUP MEMBERS: NUTRICIA FLORIDA, L.P. GROUP MEMBERS: NUTRICIA INTERNATIONAL B.V. GROUP MEMBERS: NUTRICIA INVESTMENT CORP. SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: REXALL SUNDOWN INC CENTRAL INDEX KEY: 0000901620 STANDARD INDUSTRIAL CLASSIFICATION: PHARMACEUTICAL PREPARATIONS [2834] IRS NUMBER: 591688986 STATE OF INCORPORATION: FL FISCAL YEAR END: 0831 FILING VALUES: FORM TYPE: SC TO-T/A SEC ACT: SEC FILE NUMBER: 005-49369 FILM NUMBER: 643611 BUSINESS ADDRESS: STREET 1: 6111 BROKEN SOUND PARKWAY N W CITY: BOCA RATON STATE: FL ZIP: 33487 BUSINESS PHONE: 5612419400 MAIL ADDRESS: STREET 1: 6111 BROKEN SOUND PARKWAY NW CITY: BOCA RATON STATE: FL ZIP: 33487 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: KONINKLIJKE NUMICO NV CENTRAL INDEX KEY: 0001089936 STANDARD INDUSTRIAL CLASSIFICATION: UNKNOWN SIC - 0000 [0000] FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC TO-T/A BUSINESS ADDRESS: STREET 1: P.O. BOX 1 STREET 2: 2700 MA ZOETERMEER CITY: AMSTERDAM BUSINESS PHONE: 01131793539607 MAIL ADDRESS: STREET 1: P.O. BOX 1 STREET 2: 2700 MA ZOETERMEER CITY: AMSTERDAM SC TO-T/A 1 SC TO-T/A - ------------------------------------------------------------------------------- - ------------------------------------------------------------------------------- SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 ----------- SCHEDULE TO/A (RULE 14d-100) TENDER OFFER STATEMENT UNDER TO SECTION 14(d)(1) OR 13(e)(1) OF THE SECURITIES EXCHANGE ACT OF 1934 (AMENDMENT NO. 2) ----------- REXALL SUNDOWN, INC. (NAME OF SUBJECT COMPANY) NUTRICIA INVESTMENT CORP. NUTRICIA FLORIDA, L.P. NUTRICIA FLORIDA, INC. NUTRICIA INTERNATIONAL B.V. KONINKLIJKE NUMICO N.V. (ROYAL NUMICO) (NAMES OF FILING PERSONS) COMMON STOCK, PAR VALUE $.01 PER SHARE (TITLE OF CLASS OF SECURITIES) 761648104 (CUSIP NUMBER OF CLASS OF SECURITIES) JULITTE VAN DER VEN NUTRICIA INVESTMENT CORP. C/O GUY SNYDER, ESQ. VEDDER, PRICE, KAUFMAN & KAMMHOLZ 222 NORTH LASALLE STREET CHICAGO, ILLINOIS 60601 TELEPHONE: (312) 609-7500 (NAME, ADDRESS AND TELEPHONE NUMBER OF PERSON AUTHORIZED TO RECEIVE NOTICES AND COMMUNICATIONS ON BEHALF OF BIDDERS) COPIES TO: GUY E. SNYDER, ESQ. STEVEN J. GRAY, ESQ. VEDDER, PRICE, KAUFMAN & KAMMHOLZ 222 NORTH LASALLE STREET CHICAGO, ILLINOIS 60601 (312) 609-7500 ------------- / / Check box if any part of the fee is offset as provided by Rule 0-11(a)(2) and identify the filing with which the offsetting fee was previously paid. Identify the previous filing by registration statement number, or the Form or Schedule and the date of its filing. Amount Previously Paid: N/A Filing Party: N/A Form or Registration No.: N/A Date Filed: N/A / / Check the box if the filing relates solely to preliminary communications made before the commencement of a tender offer. Check the appropriate boxes below to designate any transactions to which the statement relates: /X/ third-party tender offer subject to Rule 14d-1. / / issuer tender offer subject to Rule 13e-4. / / going-private transaction subject to Rule 13e-3. / / amendment to Schedule 13D under Rule 13d-2. Check the following box if the filing is a final amendment reporting the results of the tender offer: / / - ------------------------------------------------------------------------------- - ------------------------------------------------------------------------------- 1 This Amendment No. 2 amends and supplements the Tender Offer Statement on Schedule TO , as amended ("Schedule TO") filed May 5, 2000 relating to the offer by Nutricia Investment Corp. (the "Purchaser"), a Delaware corporation and an indirect wholly owned subsidiary of Koninklijke Numico ("Parent"), a company incorporated under the laws of the Netherlands, to purchase all of the issued and outstanding shares of common stock, par value $0.01 per share, (the "Common Stock") of Rexall Sundown, Inc. (the "Company"), at a price of $24.00 per share of Common Stock, net to the seller in cash, without interest thereon, upon the terms and subject to the conditions set forth in the Offer to Purchase, dated May 5, 2000 (the "Offer to Purchase") and in the related Letter of Transmittal (which, together with any amendments or supplements thereto, collectively constitute the "Offer"). All capitalized terms used herein and not defined herein shall have the meanings set forth in the Offer to Purchase. On May 25, 2000, the Company distributed an amendment to its Schedule 14D-9 dated May 5, 2000 (the "Schedule 14D-9 Amendment"). The entire Schedule 14D-9 Amendment is set forth in Exhibit (a)(11). ITEM 4. TERMS OF THE TRANSACTION. (a) The first paragraph of Section 2 on page 3 of the Offer to Purchase is hereby deleted and replaced with the following: Upon the terms and subject to the conditions of the Offer (including, if the Offer is extended or amended, the terms and conditions of any such extension), the Purchaser will accept for payment, and will pay for, all Shares validly tendered and not withdrawn as promptly as practicable after the Expiration Date. (b) Section 12 of the Offer to Purchase is hereby amended and supplemented by adding the following sentence as the first sentence of the first paragraph of Section 12 on page 35: All Offer Conditions, other than Required Regulatory Approvals (as defined below), will be satisfied or waived prior to the Expiration Date. ITEM 11. ADDITIONAL INFORMATION. (a) Section 17 of the Offer to Purchase is hereby amended and supplemented as follows: Item 8 of the Schedule 14D-9 Amendment, other than the new subsection (g) concerning the Projections (as defined therein), is incorporated herein by reference. (b) The information regarding Koninklijke Numico N.V. and Nutricia International B.V. on pages A-1 and A-2 of Schedule A to the Offer to Purchase is hereby amended and restated as follows: KONINKLIJKE NUMICO N.V. ("Numico) and NUTRICIA INTERNATIONAL B.V. ("Nutricia International") The following table sets forth the name, business address, present principal occupation or employment and five-year employment history of each of the directors and executive officers of Nutricia International. Each person has a business address at Rokkeveenseweg 49, 2712 PJ Zoetermeer, P.O. Box 1, 2700 MA Zoetermeer, the Netherlands, and is a citizen of the Netherlands, unless a different business address and/or citizenship is indicated under his or her name. Directors are indicated by an asterisk. Present Principal Occupation or Employment Name and Five-Year Employment History - ----- ---------------------------------------------- Erlend Jan van der Hagen*.......Chairman of the Supervisory Board of Numico and Nutricia International since January 1992. Mr. van der Hagen is also Chairman of the Supervisory Board of Hagemeijer N.V. 2 Peter Adrianus Wihelmus Roef*...Member of the Supervisory Board of Numico and Nutricia International since May 1987. Mr. Roef is also a member of the Supervisory Board of Hagemeijer N.B., VNU N.V., Gamma Holding N.V., Parcon N.V. and Robeco N.V. Ellis Josst Ruitenberg*.........Member of the Supervisory Board of Numico and Nutricia International since May 1996. Mr. Ruitenberg has also served as the General and Scientific Manager of Central Blood Transfusion Laboratories of the Red Cross in Amsterdam for the past five years. Robert Zwartendijk..............Member of the Supervisory Board of Numico and Nutricia International since May 1998. Mr. Zwartendijk served as a member of the Board of Managing Directors of Koninklijke Ahold N.V. from 1981 until his retirement in May 1999. Mr. Zwartendijk also holds the following positions: Chairman of the Supervisory Boards of Nutreco Holding N.V. and Blokker Holding N.V., a member of the Supervisory Boards of Buhrmann N.V., Randstad Holdings N.V. and Innoconcepts N.V., and a member of the Board of Telepanel Systems Inc., Lincoln Snacks, Luis Paez, Disco Ahold International Holdings N.V. and Ahold Supermercados. Cornelius Johannes Brakel*......Member of the Supervisory Board of Numico and Nutricia International since May 1999. Mr. Brakel was Chairman and Chief Executive Officer of Wolters Kluwer from 1991 to May 1999. Mr. Brakel also holds the following positions: Chairman of the Executive Board of Wolters Kluwer N.V.; Chairman of the Supervisory Board of Kappa Packaging Nederland V.V., Bols Royal Distilleries and Unique International N.V.; member of the Supervisory Board of Maxeres N.V. and Kempen & Co. N.V. Johannes C.T. Van der Wielen....President, Chief Executive Officer of Numico and Nutricia International since January 1992 and member of the Executive Board of Numico and Nutricia International since January 1989, Mr. van der Wielen is also a member of the Supervisory Boards of Maxeres Holding N.V., Gouda Vuuvast Holding N.V. and Benckiser N.V. In addition, he is a member of "Raad van Bestuur" Telindus V.V., a member of the Advisory Board of ABN AMRO, Chairman of "Stichting Continuiteit Wolters Kluwer" and a director of Numico National B.V. 3 Philippe J.M. Misteli...........Chief Financial Officer and a member of the Executive Board of Numico and Nutricia International since May 2000. From July 1997 to May 2000, Mr. Misteli served as the Chief Financial Officer and a member of the Executive Board of Euro Disney. Prior to that, Mr. Misteli held various positions with Unilever, including Chief Financial Officer North American Division and Head of Commercial Services. William E. Watts................Member of the Executive Board since September 6, 1999. Director of General Nutrition Companies, Inc. ("GNC") since October 1991 and director of General Nutrition, Incorporated ("GNI") since January 1989. Mr. Watts has served as President and Chief Executive Officer of GNC since October 1991, as President of GNI since September 1988 and as Chief Executive Officer of GNI since December 1990. He served as Senior Vice President of GNI from January 1988 to September 1988 and as Senior Vice President -- Retailing of GNI between August 1985 and January 1988. Mr. Watts was Vice President -- Retail Operations of General Nutrition Corporation from February 1984 to August 1985 and prior thereto served as Director of Retail Operations. Mr. Watts is also a director of CT Farm & Country, Inc. Albert H. Eenink................Member of the Executive Board since September 6, 1999. Mr. Albert Eenink joined Numico in December 1997 and was appointed Director Research and Development and a member of the Executive Committee. Prior to joining Numico, Mr. Eenink founded the National Institute for Agro/Food Technological Research in Wageningen in 1990 and was its chief executive officer until 1997. From 1984 until 1990 he was director of the National Institute for Plant Breeding in Wageningen. 4 ITEM 12. MATERIAL TO BE FILED AS EXHIBITS Item 12 is hereby amended and supplemented by adding the following: (a)(11) Amendment No. 1 to the Schedule 14D-9 dated May 5, 2000. (a)(12) Press release dated May 25, 2000. (d)(13) First Amendment, dated May 25, 2000, to the Agreement and Plan of Merger dated April 30, 2000. (d)(14) Memorandum of Understanding dated May 25, 2000. 5 SIGNATURES After due inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct. Dated: May 25, 2000 KONINKLIJKE NUMICO N.V. By: /s/ JOHANNES C.T. VAN DER WIELEN ----------------------------------------- Name: Johannes C.T. van der Wielen Title: President and Chief Executive Officer NUTRICIA INVESTMENT CORP. By: /s/ JULITTE VAN DER VEN ----------------------------------------- Name: Julitte van der Ven Title: President NUTRICIA FLORIDA, L.P. By: Nutricia Florida, Inc., its general partner By: /s/ JULITTE VAN DER VEN ----------------------------------------- Name: Julitte van der Ven Title: President NUTRICIA FLORIDA, INC. By: /s/ JULITTE VAN DER VEN ----------------------------------------- Name: Julitte van der Ven Title: President NUTRICIA INTERNATIONAL B.V. By: /s/ JOHANNES C.T. VAN DER WIELEN ----------------------------------------- Name: Johannes C.T. van der Wielen Title: President and Chief Executive Officer 6 EXHIBIT INDEX Exhibit Number Description - -------- ------------ (a)(11) Amendment No. 1 to the Schedule 14D-9 dated May 5, 2000. (a)(12) Press release dated May 25, 2000. (d)(13) First Amendment, dated May 25, 2000, to the Agreement and Plan of Merger dated April 30, 2000. (d)(14) Memorandum of Understanding dated May 25, 2000. 7 EX-99.(A)(11) 2 EXHIBIT 99(A)(11) - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 ------------------------ SCHEDULE 14D-9 (AMENDMENT NO. 1) Solicitation/Recommendation Statement under Section 14(d)(4) of the Securities Exchange Act of 1934 REXALL SUNDOWN, INC. (Name of Subject Company) REXALL SUNDOWN, INC. (Name of Person(s) Filing Statement) COMMON STOCK, PAR VALUE $0.01 PER SHARE (Title of Class of Securities) 761648104 (CUSIP Number of Class of Securities) ------------------------ RICHARD WERBER, ESQ. VICE PRESIDENT AND GENERAL COUNSEL REXALL SUNDOWN, INC. 6111 BROKEN SOUND PARKWAY, NW BOCA RATON, FLORIDA 33487 (561) 241-9400 (Name, Address and Telephone Number of Person Authorized to Receive Notice and Communications on Behalf of the Person(s) Filing Statement) ------------------------ WITH A COPY TO: PAUL BERKOWITZ, ESQ. GREENBERG TRAURIG, P.A. 1221 BRICKELL AVENUE MIAMI, FLORIDA 33131 (305) 579-0500 / / Check the box if the filing relates solely to preliminary communications made before the commencement of a tender offer. - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- INTRODUCTION This Amendment No. 1 to the Solicitation/Recommendation Statement on Schedule 14D-9 initially filed with the Securities and Exchange Commission on May 5, 2000 (as amended, the "Schedule 14D-9") of Rexall Sundown, Inc., a Florida corporation ("Company"), relates to the offer by Nutricia Investment Corp., a Florida corporation (the "Purchaser") and an indirect wholly owned subsidiary of Koninklijko Numico N.V., a company incorporated under the laws of the Netherlands ("Numico"), to purchase all of the outstanding shares of Common Stock (as defined below) of the Company, pursuant to an Agreement and Plan of Merger dated as of April 30, 2000, among the Company, Numico and the Purchaser (the "Merger Agreement") for a purchase price of $24.00 per share, net to the seller in cash, without interest thereon, upon the terms and subject to the conditions set forth in the Offer to Purchase, dated May 5, 2000, and in the related Letter of Transmittal. This Schedule 14D-9 is being filed on behalf of the Company. Capitalized terms not defined herein have the meanings set forth in the Schedule 14D-9 filed on May 5, 2000. ITEM 4. THE SOLICITATION OR RECOMMENDATION. Item 4(b)(i) of the Schedule 14D-9 is hereby amended and supplemented to include the following immediately prior to the last paragraph thereof: "On May 17, 2000, the waiting period under the Hart-Scott-Rodino Antitrust Improvements Act of 1976 expired. No further approvals or clearances relating to antitrust laws are required in connection with the Offer or Merger. On May 22, 2000, the Board met and was briefed by counsel and Company management as to the status of the litigation captioned LAWRENCE PECCATIELLO V. CARL DESANTIS, ET AL, Case No. CL00-4284AO pending before the Circuit Court of the 15th Judicial Circuit, in and for Palm Beach County, Florida (the 'Litigation') and the proposed settlement thereof on the terms set forth in Item 8 hereof, including, among other things, amendments to the Merger Agreement (the 'Amendment') providing for: (a) the reduction of the Termination Fee set forth in the Merger Agreement from U.S. $65 million to U.S. $50 million and the reduction of the maximum transaction expense reimbursement payable by the Company to Numico in connection with a termination of the Merger Agreement from U.S. $14 million to U.S. $10 million; and (b) notwithstanding the fact that the Florida Business Corporation Act (the 'FBCA') might not provide dissenters' rights to shareholders of the Company in connection with the Merger, granting all shareholders complying with the procedural requirements of Section 607.1320 of the FBCA such dissenters' rights. Management also reported to the Board that since the May 1, 2000 public announcement of the signing of the Merger Agreement, there had been no expression of interest, offer or proposal to acquire all or more than 15% of the Company's businesses, assets or capital shares whether by merger, consolidation, other business combination, purchase of assets, reorganization, tender or exchange offer or otherwise. At such meeting, the Board unanimously approved the Amendment, a copy of which is filed as Exhibit (e)(14) to the Schedule 14D-9 and is incorporated herein by reference, subject to the approval by the parties of the conditional settlement of the Litigation, as described in Item 8 below. On May 25, 2000, following the approval by the parties of the conditional settlement of the Litigation, as described in Item 8 below, the Company, the Purchaser and Numico executed the Amendment." ITEM 5. PERSON/ASSETS, RETAINED, EMPLOYED, COMPENSATED OR USED. The second paragraph of this item is amended to read in its entirety as follows: "Pursuant to the Morgan Stanley Engagement Letter, the Company has agreed to pay Morgan Stanley a transaction fee, based on the aggregate value of the transaction, of approximately $10,750,000. This fee is payable only upon the closing of the Offer. The payment of the fee does not depend on whether Morgan Stanley delivers its fairness opinion and no additional fee is payable to Morgan Stanley in respect of such fairness opinion." ITEM 8. ADDITIONAL INFORMATION. Item 8 of the Schedule 14D-9 is hereby amended and supplemented as follows: The following paragraphs are added to Item 8(d): "On May 16, 2000, the Court denied without prejudice plaintiff's motion to conduct expedited discovery in anticipation of seeking to enjoin preliminarily consummation of the Merger. On May 19, 2000, plaintiff renewed his motion for expedited discovery and filed a motion to enjoin preliminarily the Company and the Company's directors from proceeding to consummate the Merger. Plaintiff filed, on May 22, 2000, an amended complaint adding the Purchaser as a defendant and alleging that the Purchaser is aiding and abetting the alleged breaches of fiduciary duties by the Company's directors. The Company and the Company's directors served, on May 22, 2000, a motion to dismiss the complaint based on the legal insufficiency of plaintiff's allegations. On May 24, 2000, the Company and the Company's directors served a motion to dismiss plaintiff's amended complaint based on the legal insufficiency of plaintiff's allegations. On May 25, 2000, the parties to the Litigation entered into a Memorandum of Understanding (a copy of which is attached hereto as Exhibit (e)(15) and incorporated herein by reference) providing for the settlement and dismissal with prejudice of the Litigation. Pursuant to the Memorandum of Understanding, the defendants to the Litigation have agreed, in order to avoid the burden and expense of further litigation and to put to rest all claims arising out of or relating in any way to the Offer or the Merger, that the Company will (i) mail to the Company's shareholders an amendment to the Schedule 14D-9 that will contain certain supplemental disclosures and (ii) issue a press release announcing that the parties to the Litigation have reached a settlement in principle subject to the approval of the Circuit Court of the 15th Judicial Circuit, in and for Palm Beach County, Florida. The Memorandum of Understanding is subject to a number of conditions, including, without limitation (i) the completion by plaintiff of discovery; (ii) the execution of a formal settlement agreement; (iii) the consummation of the Offer; and (iv) the final approval by the Court of the settlement. The principal terms of the Memorandum of Understanding are as follows: 1. The Merger Agreement will be amended as set forth in Item 4 hereof; and 2. The Company will amend the Schedule 14D-9, as more fully set forth herein (a) to disclose that there have been no inquiries by third parties to the Company since the announcement of the Merger Agreement on May 1, 2000 with respect to any expression of interest, offer or proposal to acquire all or more than 15% of the Company's businesses, assets or capital shares, whether by merger, consolidation, other business combination, purchase of assets, reorganization, tender or exchange offer or otherwise; (b) to provide the assumptions underlying the Company's financial projections set forth in Section 8 of Exhibit (a)(1) to the Schedule TO filed by Numico and Nutricia with the Securities and Exchange Commission on May 5, 2 2000; and (c) to state that the receipt by Morgan Stanley of its transaction fee is not dependent on the issuance of a fairness opinion regarding the Offer and the Merger. Notwithstanding the fact that appraisal rights may not be available in connection with the Merger under the FBCA, the parties to the Merger Agreement have agreed to make appraisal rights available to all shareholders complying with the procedural requirements of the FBCA. Set forth below is a summary of the principal provisions of the FBCA dealing with the rights and remedies of dissenters to a merger. This summary is not a complete description and should be read in conjunction with the full text of Sections 607.1301, 607.1302 and 607.1320 of the FBCA, a copy of which is attached hereto as Annex B and incorporated herein by reference. Under the Merger Agreement as amended by the Amendment thereto (the 'Amended Merger Agreement'), each registered owner of shares of the Company's Common Stock has the right under Sections 607.1301, 607.1302 and 607.1320 of the FBCA to object to the Merger and demand in writing to be paid in cash the Fair Value (as hereinafter defined) of such shares. Such provisions must be strictly complied with or the dissenters' rights may be lost. 'Fair Value,' with respect to a dissenters' shares, means the value of the shares as of the close of business on the day prior to (i) the date on which the Merger is approved by the Company's shareholders, (ii) the date on which the Company receives written consents from the requisite number of shareholders to approve the Merger, or (iii) in the case the Merger is completed without a shareholder vote or written consent pursuant to Section 607.1104 of the FBCA, the date prior to the day on which a plan of merger is mailed to each shareholder of the Company (any such date, the 'Shareholders' Authorization Date'), excluding any appreciation or depreciation in anticipation of the Merger unless such exclusion would be inequitable. The FBCA permits a shareholder to dissent as to less than all the shares registered in his or her name. In that event, the dissenter's rights shall be determined as if the shares as to which he or she has dissented and his or her other shares were registered in the names of different shareholders. Unless all the procedures prescribed by the FBCA are followed by a Company shareholder who wishes to dissent from the Merger, the shareholder will be bound by the terms of the Amended Merger Agreement. To properly assert dissenters' rights at any meeting of the Company's shareholders called to approve the Merger, a shareholder must (i) deliver to the Company before the vote is taken written notice of the shareholder's intent to demand payment for his or her shares if the Merger is effectuated, and (ii) not vote his or her shares in favor of the Merger. A proxy or vote against the Merger does not constitute such a notice of intent to demand payment. Each written notice of intent to demand payment should be sent to Rexall Sundown, Inc., 6111 Broken Sound Parkway, NW, Boca Raton, Florida 33487, Attention: General Counsel. If the Merger is to be effectuated by written consent without a meeting, then the Company shall deliver a copy of Sections 607.1301, 607.1302 and 607.1320 of the FBCA to each shareholder simultaneously with any request for written consent or, if no such request is made, within 10 days after the date the Company receives written consents from the requisite number of shareholders necessary to approve the Merger. Within 10 days after the Shareholders' Authorization Date, the Company must give written notice of such approval to each shareholder who filed a notice of intent to demand payment for shares in the case where the Merger is approved at a meeting of shareholders, or, in any other case, to each shareholder excepting those who voted for or consented in writing to the Merger. Within 20 days after receipt of such notice, any shareholder who elects to dissent must file with the Company a notice of election, stating the shareholder's name, 3 address, the number of shares as to which the dissent is made, and a demand for payment of the fair value of such shares. The certificates representing the dissenting shares must be deposited with the Company simultaneously with filing the election to dissent. Any Company shareholder failing to timely file an election to dissent will be bound by the terms of the Amended Merger Agreement. Upon filing such election to dissent, the shareholder will thereafter be entitled only to payment as provided in the Amended Merger Agreement and under the FBCA and will not be entitled to vote or to exercise any other rights of a shareholder. Once filed, an election to dissent may be withdrawn only under limited circumstances as described more fully in Section 607.1320 of the FBCA. Within 10 days after such 20 day period or 10 days after the Merger is effectuated, whichever is later, the Company must make to each dissenting shareholder a written offer to pay an amount the Company estimates to be the Fair Value of such dissenting shares. Such offer must be accompanied by the Company's balance sheet as of the latest available date and its related profit and loss statements. If the Company's offer is accepted by the shareholder within 30 days, payment for the dissenting shares must be made within 90 days after the date of such written offer or the Effective Time, whichever is later. Upon payment of the agreed value, the dissenting shareholder shall cease to have any interest in such shares. If the Company fails to make such offer within the period specified or if it makes the offer and the dissenting shareholder fails to accept it within 30 days, then an action may be filed in any court of competent jurisdiction in Palm Beach County, Florida requesting that the Fair Value of such shares be determined. All dissenting shareholders who are proper parties to the proceeding are entitled to judgment against the Company for the amount of the Fair Value of their shares. The court may, if it so elects, appoint one or more appraisers to receive evidence and recommend a decision on the question of Fair Value. The Company must pay each dissenting shareholder the amount found to be due him or her within 10 days after the final determination of the proceedings. The judgment may, at the discretion of the court, include a fair rate of interest. The costs and expenses of the proceeding shall be determined by the court and shall be assessed against the Company, except that all or any part of such costs and expenses may be apportioned and assessed as the court deems equitable against any or all of the dissenting shareholders who are parties to the proceeding, to whom the Company made an offer to pay for the shares, if the court finds that the action of such shareholders in failing to accept such offer was arbitrary, vexatious, or not in good faith. SHAREHOLDERS WISHING TO DISSENT SHOULD CONSULT THEIR OWN COUNSEL. As a result of the settlement, plaintiff will not pursue his motion to enjoin preliminarily the consummation of the Merger. The settlement contemplated by the Memorandum of Understanding is subject to numerous conditions, including consummation of the Offer, the completion of confirmatory discovery, the execution of a stipulation of settlement and Court approval." A new subsection (g) is added as follows: "(g) PROJECTIONS. The Company does not, as a matter of course, make public forecasts or projections as to its future financial performance. However, in connection with the negotiations between Numico and the Company, the Company made available to Numico and its representatives certain nonpublic information (the 'Projections') regarding the Company's projected operating performance. The Projections were included in the Offer to Purchase and are also set forth below. The Projections indicated that for the fiscal year ending August 31, 2000 and for the calendar years ending December 31, 2000, 2001 and 2002, the Company's net revenue, 4 earnings before interest and income taxes ('EBIT'), earnings before interest, income taxes, depreciation and amortization ('EBITDA') and net earnings were projected to be: REXALL SUNDOWN, INC. CERTAIN PROJECTIONS OF FUTURE OPERATING RESULTS (IN THOUSANDS)
YEAR ENDING DECEMBER 31, FISCAL YEAR ENDING -------------------------------- AUGUST 31, 2000 2000 2001 2002 ------------------ -------- -------- ---------- Net revenue.................. $747,500 $807,300 $940,200 $1,079,300 EBIT......................... 129,396 148,376 183,179 210,859 EBITDA....................... 150,103 171,930 210,025 240,772 Net income................... 74,387 83,040 104,056 122,225
The Projections reflect the Company's forecast of its consolidated net revenue, EBIT, EBITDA and net earnings on a stand-alone basis and without reflecting any potential synergies from the consummation of the Offer and the Merger. The foregoing projections are based upon certain assumptions, including the following: (i) Assumptions for the fiscal year ending August 31, 2000:
PROJECTED ACTUAL FOR SIX PROJECTED SIX FISCAL MONTHS ENDED MONTHS ENDING YEAR ENDING FEBRUARY 29, 2000 MET-RX(1) WORLDWIDE(2) AUGUST 31, 2000(3) AUGUST 31, 2000 ----------------- ----------- ------------ ------------------- ---------------- (IN THOUSANDS) Net revenue.......... $318,427 $54,700 $28,700 $345,673 $747,500 EBIT................. 46,869 7,848 6,087 68,592 129,396 EBITDA............... 55,588 9,466 7,359 77,690 150,103 Net income........... 28,662 2,501 2,116 41,108 74,387
- ------------------------ (1) Represents estimated increase attributable to the January 7, 2000 acquisition of MET-Rx Nutrition, Inc. ('MET-Rx'). (2) Represents estimated increase attributable to the March 23, 2000 acquisition of Worldwide Sport Nutritional Supplements Inc. ('Worldwide'). (3) Represents actual results for the six months ended February 29, 2000, increased by the organic sales growth in the second half of fiscal year 2000 as compared to the first half of fiscal year 2000 and cost savings initiatives expected to be realized during the second half of fiscal year 2000. The operations of the SDV Vitamins mail order division, which was sold in March 2000, and the Thompson division, which the Company is currently attempting to sell, have been eliminated. (ii) Assumptions for the calendar year ending December 31, 2000: 1. Projections for the September 2000 through December 2000 period have been added to the fiscal year 2000 projections and the actual results for the September through December 1999 period have been eliminated. 2. Projections for September 2000 through December 2000 are assumed to be four times the projected average monthly results during the fourth quarter of the Company's fiscal year 2000 less approximately $10.5 million in revenue and associated profits to account for seasonality (as the Company's fourth quarter is generally stronger than the first quarter of the subsequent fiscal year). 5 (iii) Assumptions for the calendar year ending December 31, 2001: 1. The calendar year 2000 projections in (ii) above have been adjusted to account for (A) inclusion of a full year of estimated MET-Rx integration savings and (B) inclusion of a full year of estimated Worldwide results. 2. A 15% growth rate in net revenues and EBITDA from the 2000 projections, as adjusted as described above. (iv) Assumptions for the calendar year ending December 31, 2002: A 15% growth rate in net revenues and EBITDA from the 2001 projections. THE PROJECTIONS WERE PREPARED SOLELY FOR INTERNAL USE AND NOT WITH A VIEW TO PUBLIC DISCLOSURE OR COMPLIANCE WITH THE PUBLISHED GUIDELINES OF THE SEC OR THE AMERICAN INSTITUTE OF CERTIFIED PUBLIC ACCOUNTANTS REGARDING PROJECTIONS. THE PROJECTIONS AND ASSUMPTIONS ARE INCLUDED IN THIS SCHEDULE 14D-9 SOLELY BECAUSE THE PLAINTIFF IN THE LITIGATION DEMANDED THE DISCLOSURE OF SUCH INFORMATION AS PART OF THE SETTLEMENT OF THE LITIGATION AS DISCUSSED ABOVE. THE PROJECTIONS WERE NOT PREPARED IN ACCORDANCE WITH GENERALLY ACCEPTED ACCOUNTING PRINCIPLES AND WERE NOT PREPARED WITH THE ASSISTANCE OF, AUDITED OR REVIEWED BY, ANY INDEPENDENT ACCOUNTING FIRM, NOR DID ANY SUCH FIRM PERFORM ANY OTHER SERVICES WITH RESPECT THERETO. THE PROJECTIONS ARE BASED ON VARIOUS ASSUMPTIONS INCLUDING THOSE STATED HEREIN AND MAY ALSO BE AFFECTED BY A VARIETY OF FACTORS RELATING TO THE BUSINESSES OF THE COMPANY, INDUSTRY PERFORMANCE, GENERAL BUSINESS AND ECONOMIC CONDITIONS AND OTHER MATTERS, WHICH ARE INHERENTLY SUBJECT TO SIGNIFICANT UNCERTAINTIES AND CONTINGENCIES, MANY OF WHICH ARE BEYOND THE COMPANY'S CONTROL. THE ASSUMPTIONS INVOLVE JUDGMENTS WITH RESPECT TO, AMONG OTHER THINGS, FUTURE ECONOMIC AND COMPETITIVE CONDITIONS, INFLATION RATES AND FUTURE BUSINESS CONDITIONS. ACCORDINGLY, THERE CAN BE NO ASSURANCE THAT THE ASSUMPTIONS MADE IN PREPARING THE PROJECTIONS WILL PROVE ACCURATE, AND ACTUAL RESULTS MAY BE MATERIALLY GREATER OR LESS THAN THOSE CONTAINED IN THE PROJECTIONS. THE INCLUSION OF THE PROJECTIONS AND ASSUMPTIONS HEREIN SHOULD NOT BE REGARDED AS AN INDICATION THAT THE COMPANY, NUMICO, THE PURCHASER OR THEIR RESPECTIVE AFFILIATES OR REPRESENTATIVES CONSIDERED OR CONSIDER THE PROJECTIONS OR ASSUMPTIONS TO BE A RELIABLE PREDICTION OF FUTURE EVENTS, AND THE PROJECTIONS AND ASSUMPTIONS SHOULD NOT BE RELIED UPON AS SUCH. NONE OF THE COMPANY, NUMICO, THE PURCHASER OR ANY OF THEIR RESPECTIVE AFFILIATES ASSUMES ANY RESPONSIBILITY FOR THE VALIDITY, REASONABLENESS, ACCURACY OR COMPLETENESS OF THE PROJECTIONS OR ASSUMPTIONS. NONE OF NUMICO, THE PURCHASER OR THE COMPANY IS UNDER ANY OBLIGATION TO OR HAS ANY INTENTION TO UPDATE THE PROJECTIONS OR ASSUMPTIONS AT ANY FUTURE TIME." 6 ITEM 9. EXHIBITS.(1)
*+ (a)(1) Offer to Purchase dated May 5, 2000. *+ (a)(2) Letter of Transmittal. * (a)(3) Letter to Shareholders of the Company dated May 5, 2000. + (a)(4) Press Release of the Company, dated May 1, 2000. + (a)(5) Form of Summary Advertisement dated May 5, 2000. (a)(6) Form of Press Release of the Company dated May 25, 2000. * (a)(7) Letter to Shareholders of the Company dated May 25, 2000. + (e)(1) Agreement and Plan of Merger dated as of April 30, 2000. + (e)(2) Shareholder Agreement, dated April 30, 2000. * (e)(3) Opinion of Morgan Stanley & Co. Incorporated. + (e)(4) Employment Agreement, dated as of April 30, 2000, among Numico, the Company and Damon DeSantis. + (e)(5) Employment Agreement, dated as of April 30, 2000, among Numico, the Company and Geary Cotton. + (e)(6) Employment Agreement, dated as of April 30, 2000, among Numico, the Company and Richard Goudis. + (e)(7) Employment Agreement, dated as of April 30, 2000, among Numico, the Company and Gerald Holly. + (e)(8) Employment Agreement, dated as of April 30, 2000, among Numico, the Company and Richard Werber. + (e)(9) Employment Agreement, dated as of April 30, 2000, among Numico, the Company and Carl DeSantis. + (e)(10) Employment Agreement, dated as of April 30, 2000, among Numico, the Company and Nickolas Palin. + (e)(11) Employment Agreement, dated as of April 30, 2000, among Numico, the Company and Christian Nast. + (e)(12) Benefits Letter, dated April 30, 2000, by and between Numico and the Company. + (e)(13) Confidentiality Agreement, dated March 22, 2000, by and between Numico and the Company. (e)(14) Amendment to Agreement and Plan of Merger dated as of May 25, 2000. (e)(15) Memorandum of Understanding dated May 25, 2000.
- ------------------------ * Included in materials delivered to shareholders of the Company. + Filed as an exhibit to the Purchaser's Tender Offer Statement on Schedule TO dated May 5, 2000, and incorporated herein by reference. (1) All exhibits previously filed except for Exhibits (a)(6), (a)(7), (e)(14) and (e)(15). 7 SIGNATURE After due inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct. REXALL SUNDOWN, INC. By: /s/ DAMON DESANTIS ----------------------------------------- Name: Damon DeSantis Title: PRESIDENT AND CHIEF EXECUTIVE OFFICER
May 25, 2000 8 ANNEX B DISSENTERS' RIGHTS PROVISIONS OF THE FLORIDA BUSINESS CORPORATIONS ACT 607.1301 DISSENTERS' RIGHTS; DEFINITIONS. The following definitions apply to SectionSection 607.1302 and 607.1320: (1) "Corporation" means the issuer of the shares held by a dissenting shareholder before the corporate action or the surviving or acquiring corporation by merger or share exchange of that issuer. (2) "Fair value," with respect to a dissenter's shares, means the value of the shares as of the close of business on the day prior to the shareholders' authorization date, excluding any appreciation or depreciation in anticipation of the corporate action unless exclusion would be inequitable. (3) "Shareholders' authorization date" means the date on which the shareholders' vote authorizing the proposed action was taken, the date on which the corporation received written consents without a meeting from the requisite number of shareholders in order to authorize the action, or, in the case of a merger pursuant to Section 607.1104, the day prior to the date on which a copy of the plan of merger was mailed to each shareholder of record of the subsidiary corporation. 607.1302 RIGHT OF SHAREHOLDERS TO DISSENT. (1) Any shareholder of a corporation has the right to dissent from, and obtain payment of the fair value of his or her shares in the event of, any of the following corporate actions: (a) Consummation of a plan of merger to which the corporation is a party; 1. If the shareholder is entitled to vote on the merger, or 2. If the corporation is a subsidiary that is merged with its parent under Section 607.1104, and the shareholders would have been entitled to vote on action taken, except for the applicability of Section 607.1104; (b) Consummation of a sale or exchange of all, or substantially all, of the property of the corporation, other than in the usual and regular course of business, if the shareholder is entitled to vote on the sale or exchange pursuant to Section 607.1202, including a sale in dissolution but not including a sale pursuant to court order or a sale for cash pursuant to a plan by which all or substantially all of the net proceeds of the sale will be distributed to the shareholders within 1 year after the date of sale; (c) As provided in Section 607.0902(11), the approval of a control-share acquisition; (d) Consummation of a plan of share exchange to which the corporation is a party as the corporation the shares of which will be acquired, if the shareholder is entitled to vote on the plan; (e) Any amendment of the articles of incorporation if the shareholder is entitled to vote on the amendment and if such amendment would adversely affect such shareholder by: 1. Altering or abolishing any preemptive rights attached to any of his or her shares; 2. Altering or abolishing the voting rights pertaining to any of his or her shares, except as such rights may be affected by the voting rights of new shares then being authorized of any existing or new class or series of shares; B-1 3. Effecting an exchange, cancellation, or reclassification of any of his or her shares, when such exchange, cancellation, or reclassification would alter or abolish the shareholder's voting rights or alter his or her percentage of equity in the corporation, or effecting a reduction or cancellation of accrued dividends or other arrearages in respect to such shares; 4. Reducing the stated redemption price of any of the shareholder's redeemable shares, altering or abolishing any provision relating to any sinking fund for the redemption or purchase of any of his or her shares, or making any of his or her shares subject to redemption when they are not otherwise redeemable; 5. Making noncumulative, in whole or in part, dividends of any of the shareholder's preferred shares which had theretofore been cumulative; 6. Reducing the stated dividend preference of any of the shareholder's preferred shares; or 7. Reducing any stated preferential amount payable on any of the shareholder's preferred shares upon voluntary or involuntary liquidation; or (f) Any corporate action taken, to the extent the articles of incorporation provide that a voting or nonvoting shareholder is entitled to dissent and obtain payment for his or her shares. (2) A shareholder dissenting from any amendment specified in paragraph (1)(e) has the right to dissent only as to those of his or her shares which are adversely affected by the amendment. (3) A shareholder may dissent as to less than all the shares registered in his or her name. In that event, the shareholder's rights shall be determined as if the shares as to which he or she has dissented and his or her other shares were registered in the names of different shareholders. (4) Unless the articles of incorporation otherwise provide, this section does not apply with respect to a plan of merger or share exchange or a proposed sale or exchange of property, to the holders of shares of any class or series which, on the record date fixed to determine the shareholders entitled to vote at the meeting of shareholders at which such action is to be acted upon or to consent to any such action without a meeting, were either registered on a national securities exchange or designated as a national market system security on an interdealer quotation system by the National Association of Securities Dealers, Inc., or held of record by not fewer than 2,000 shareholders. (5) A shareholder entitled to dissent and obtain payment for his or her shares under this section may not challenge the corporate action creating his or her entitlement unless the action is unlawful or fraudulent with respect to the shareholder or the corporation. 607.1320 PROCEDURE FOR EXERCISE OF DISSENTERS' RIGHTS. (1) (a) If a proposed corporate action creating dissenters' rights under Section 607.1302 is submitted to a vote at a shareholders' meeting, the meeting notice shall state that shareholders are or may be entitled to assert dissenters' rights and be accompanied by a copy of SectionSection 607.1301, 607.1302 and 607.1320. A shareholder who wishes to assert dissenters' rights shall: 1. Deliver to the corporation before the vote is taken written notice of the shareholder's intent to demand payment for his or her shares if the proposed action is effectuated, and 2. Not vote his or her shares in favor of the proposed action. A proxy or vote against the proposed action does not constitute such a notice of intent to demand payment. (b) If proposed corporate action creating dissenters' rights under Section 607.1302 is effectuated by written consent without a meeting, the corporation shall deliver a copy of SectionSection 607.1301, 607.1302 and B-2 607.1320 to each shareholder simultaneously with any request for the shareholder's written consent or, if such a request is not made, within 10 days after the date the corporation received written consents without a meeting from the requisite number of shareholders necessary to authorize the action. (2) Within 10 days after the shareholders' authorization date, the corporation shall give written notice of such authorization or consent or adoption of the plan of merger, as the case may be, to each shareholder who filed a notice of intent to demand payment for his or her shares pursuant to paragraph (1)(a) or, in the case of action authorized by written consent, to each shareholder, excepting any who voted for, or consented in writing to, the proposed action. (3) Within 20 days after the giving of notice to him or her, any shareholder who elects to dissent shall file with the corporation a notice of such election, stating the shareholder's name and address, the number, classes, and series of shares as to which he or she dissents, and a demand for payment of the fair value of his or her shares. Any shareholder failing to file such election to dissent within the period set forth shall be bound by the terms of the proposed corporate action. Any shareholder filing an election to dissent shall deposit his or her certificates for certificated shares with the corporation simultaneously with the filing of the election to dissent. The corporation may restrict the transfer of uncertificated shares from the date the shareholder's election to dissent is filed with the corporation. (4) Upon filing a notice of election to dissent, the shareholder shall thereafter be entitled only to payment as provided in this section and shall not be entitled to vote or to exercise any other rights of a shareholder. A notice of election may be withdrawn in writing by the shareholder at any time before an offer is made by the corporation, as provided in subsection (5), to pay for his or her shares. After such offer, no such notice of election may be withdrawn unless the corporation consents thereto. However, the right of such shareholder to be paid the fair value of his or her shares shall cease, and the shareholder shall be reinstated to have all his or her rights as a shareholder as of the filing of his or her notice of election, including any intervening preemptive rights and the right to payment of any intervening dividend or other distribution or, if any such rights have expired or any such dividend or distribution other than in cash has been completed, in lieu thereof, at the election of the corporation, the fair value thereof in cash as determined by the board as of the time of such expiration or completion, but without prejudice otherwise to any corporate proceedings that may have been taken in the interim, if: (a) Such demand is withdrawn as provided in this section; (b) The proposed corporate action is abandoned or rescinded or the shareholders revoke the authority to effect such action; (c) No demand or petition for the determination of fair value by a court has been made or filed within the time provided in this section; or (d) A court of competent jurisdiction determines that such shareholder is not entitled to the relief provided by this section. (5) Within 10 days after the expiration of the period in which shareholders may file their notices of election to dissent, or within 10 days after such corporate action is effected, whichever is later (but in no case later than 90 days from the shareholders' authorization date), the corporation shall make a written offer to each dissenting shareholder who has made demand as provided in this section to pay an amount the corporation estimates to be the fair value for such shares. If the corporate action has not been consummated before the expiration of the 90-day period after the shareholders' authorization date, the offer may be made conditional upon the consummation of such action. Such notice and offer shall be accompanied by: (6) A balance sheet of the corporation, the shares of which the dissenting shareholder holds, as of the latest available date and not more than 12 months prior to the making of such offer; and B-3 (7) A profit and loss statement of such corporation for the 12-month period ended on the date of such balance sheet or, if the corporation was not in existence throughout such 12-month period, for the portion thereof during which it was in existence. (8) If within 30 days after the making of such offer any shareholder accepts the same, payment for his or her shares shall be made within 90 days after the making of such offer or the consummation of the proposed action, whichever is later. Upon payment of the agreed value, the dissenting shareholder shall cease to have any interest in such shares. (9) If the corporation fails to make such offer within the period specified therefor in subsection (5) or if it makes the offer and any dissenting shareholder or shareholders fail to accept the same within the period of 30 days thereafter, then the corporation, within 30 days after receipt of written demand from any dissenting shareholder given within 60 days after the date on which such corporate action was effected, shall, or at its election at any time within such period of 60 days may, file an action in any court of competent jurisdiction in the county in this state where the registered office of the corporation is located requesting that the fair value of such shares be determined. The court shall also determine whether each dissenting shareholder, as to whom the corporation requests the court to make such determination, is entitled to receive payment for his or her shares. If the corporation fails to institute the proceeding as herein provided, any dissenting shareholder may do so in the name of the corporation. All dissenting shareholders (whether or not residents of this state), other than shareholders who have agreed with the corporation as to the value of their shares, shall be made parties to the proceeding as an action against their shares. The corporation shall serve a copy of the initial pleading in such proceeding upon each dissenting shareholder who is a resident of this state in the manner provided by law for the service of a summons and complaint and upon each nonresident dissenting shareholder either by registered or certified mail and publication or in such other manner as is permitted by law. The jurisdiction of the court is plenary and exclusive. All shareholders who are proper parties to the proceeding are entitled to judgment against the corporation for the amount of the fair value of their shares. The court may, if it so elects, appoint one or more persons as appraisers to receive evidence and recommend a decision on the question of fair value. The appraisers shall have such power and authority as is specified in the order of their appointment or an amendment thereof. The corporation shall pay each dissenting shareholder the amount found to be due him or her within 10 days after final determination of the proceedings. Upon payment of the judgment, the dissenting shareholder shall cease to have any interest in such shares. (10) The judgment may, at the discretion of the court, include a fair rate of interest, to be determined by the court. (11) The costs and expenses of any such proceeding shall be determined by the court and shall be assessed against the corporation, but all or any part of such costs and expenses may be apportioned and assessed as the court deems equitable against any or all of the dissenting shareholders who are parties to the proceeding, to whom the corporation has made an offer to pay for the shares, if the court finds that the action of such shareholders in failing to accept such offer was arbitrary, vexatious, or not in good faith. Such expenses shall include reasonable compensation for, and reasonable expenses of, the appraisers, but shall exclude the fees and expenses of counsel for, and experts employed by, any party. If the fair value of the shares, as determined, materially exceeds the amount which the corporation offered to pay therefor or if no offer was made, the court in its discretion may award to any shareholder who is a party to the proceeding such sum as the court determines to be reasonable compensation to any attorney or expert employed by the shareholder in the proceeding. (12) Shares acquired by a corporation pursuant to payment of the agreed value thereof or pursuant to payment of the judgment entered therefor, as provided in this section, may be held and disposed of by such corporation as authorized but unissued shares of the corporation, except that, in the case of a merger, they may be held and disposed of as the plan of merger otherwise provides. The shares of the surviving corporation into which the shares of such dissenting shareholders would have been converted had they assented to the merger shall have the status of authorized but unissued shares of the surviving corporation. B-4 EX-99.(A)(12) 3 EXHIBIT 99(A)(12) CONTACTS: Royal Numico N.V. Klaas A. de Jong, Director Corporate Affairs FOR IMMEDIATE RELEASE +31 79 353 9221 Jacqueline van der Klift, Investor Relations Manager +31 79 353 9003 Edward Nebb, BSMG Worldwide 212-445-8213 Rexall Sundown, Inc. Carol Walters (Media) 561-999-1960 Donna Conners (Investors) 561-241-9400 Karen Griffiths, FRB/BSMG 212-661-8030 ROYAL NUMICO AND REXALL SUNDOWN ANNOUNCE AGREEMENT IN PRINCIPLE TO SETTLE Shareholder LITIGATION ZOETERMEER, THE NETHERLANDS AND BOCA RATON, FLORIDA - May 25, 2000 - Royal Numico N.V. ("Royal Numico") (Amsterdam Stock Exchange: NUM) and Rexall Sundown, Inc. ("Rexall") (Nasdaq: RXSD) announced today that they had reached an agreement in principle to settle litigation pending in the Circuit Court of Palm Beach County, Florida brought on behalf of a class of Rexall shareholders against Rexall, Rexall's directors and an affiliate of Royal Numico. The plaintiff in the litigation sought, among other things, to enjoin the Rexall directors from proceeding with the previously announced merger agreement which provides for the acquisition by Royal Numico of Rexall through a tender offer and merger at $24 per share (the "Merger"). Pursuant to the agreement in principle to settle the Rexall shareholder litigation, Royal Numico and Rexall have agreed (i) to reduce the maximum fee and reimbursement of expenses payable by Rexall to Royal Numico in the event of termination of the merger agreement under certain circumstances from $79 million to $60 million; (ii) to provide Rexall shareholders with appraisal rights in connection with the Merger even if such rights are not available under applicable law; and (iii) to make certain supplemental disclosures to Rexall's shareholders confirming the absence of any inquiries by third parties regarding the possible acquisition of Rexall since the announcement of the Merger, describing the assumptions underlying previously disclosed financial projections of Rexall, and clarifying the fact that receipt by Rexall's financial adviser of its transaction fee is not dependent upon the issuance of a fairness opinion regarding the Merger. Royal Numico, Rexall and Rexall's directors have vigorously denied any wrongdoing or liability in connection with the allegations made in the litigation, and have entered into the agreement in principle solely to avoid the burdens, expenses and distractions of continued litigation. 1 Final settlement of the litigation is conditioned upon, among other things, consummation of the Offer, the completion of confirmatory discovery, the execution of a stipulation of settlement, and court approval. As previously announced, the waiting period required under the United States Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, in connection with Royal Numico's tender offer for all of the outstanding shares of common stock of Rexall expired on May 17, 2000. Royal Numico's tender offer is scheduled to expire at 12:00 midnight, New York City time, on Friday, June 2, 2000. Royal Numico (www.numico.com), headquartered in Zoetermeer, the Netherlands, is a world leader in specialized nutrition. A holding company for a group of companies including General Nutrition Companies, Nutricia, Milupa and Cow & Gate, its products include infant nutrition, medical nutrition and nutritional supplements. Royal Numico concentrates on the development, manufacture and sales of specialized nutrition products based upon medical scientific concepts with a high added value. The company operates in some 100 countries. Rexall (www.rexallsundown.com), headquartered in Boca Raton, Florida, is a leading manufacturer and marketer of vitamins, nutritional supplements and consumer health products primarily for the U.S. mass market. 2 EX-99.(D)(13) 4 EXHIBIT 99(D)(13) FIRST AMENDMENT TO AGREEMENT AND PLAN OF MERGER THIS FIRST AMENDMENT TO AGREEMENT AND PLAN OF MERGER (this "First Amendment") is entered into as of this 25th day of May 2000, by and among Koninklijke Numico N.V., a company incorporated under the laws of the Netherlands ("Parent"), Nutricia Investment Corp., a Florida corporation ("Merger Sub") and Rexall Sundown, Inc., a Florida corporation (the "Company"). W I T N E S S E T H: WHEREAS, Parent, Merger Sub and Company entered into an Agreement and Plan of Merger dated as of April 30, 2000 (the "Agreement"), and now desire to amend such Agreement. NOW, THEREFORE, for and in consideration of the premises and mutual agreements herein contained and for the purposes of setting forth the terms and conditions of this First Amendment, the parties, intending to be bound, hereby agree as follows: 1. INCORPORATION OF THE AGREEMENT. All capitalized terms which are not defined herein shall have the same meanings as set forth in the Agreement, and the Agreement, to the extent not inconsistent with this First Amendment, is incorporated herein by this reference as though the same was set forth in its entirety. To the extent any terms and provisions of the Agreement are inconsistent with the amendments set forth in PARAGRAPH 2 below, such terms and provisions shall be deemed superseded hereby. Except as specifically set forth herein, the Agreement shall remain in full force and effect and its provisions shall be binding on the parties hereto. 2. AMENDMENT OF THE AGREEMENT. The Agreement is hereby amended as follows: a. Paragraph (h) of SECTION 2.9 of the Agreement is amended and restated in its entirety as follows: (h) DISSENTING SHARES. Notwithstanding anything in this Agreement to the contrary, and despite the fact that the FBCA may not provide for such a right, shares of Company Common Stock that are issued and outstanding immediately prior to the Effective Time and which are held by shareholders ("Dissenting Shareholders") who (i) have not voted in favor of or consented to the Merger, (ii) to the extent required by and in the manner provided in Section 607.1320 of the FBCA, shall have delivered a written notice of intent to demand payment for such shares of Company Common Stock if the Merger is effectuated in the time and manner provided in FBCA and (iii) shall not have failed to perfect or shall not have effectively withdrawn or lost their rights to appraisal and payment under the FBCA shall not be converted into the right to receive the Merger Consideration, but shall, in lieu thereof, be entitled to receive the consideration as shall be determined pursuant to Sections 607.1301 through 607.1320 of the FBCA; 1 provided, however, that any such holder who shall have failed to perfect or shall have effectively withdrawn or lost his, her or its right to appraisal and payment under the FBCA, shall thereupon be deemed to have had such person's shares of Company Common Stock converted, at the Effective Time, into the right to receive the Merger Consideration set forth herein, without any interest or dividends thereon. Notwithstanding anything to the contrary contained in this Section 2.9(h), if (A) the Merger is rescinded or abandoned or (B) the shareholders of the Company revoke the authority to effect the Merger, then the right of any Dissenting Shareholder to be paid the fair value of such Dissenting Shareholder's Shares shall cease. The Company will give Parent prompt notice of any demands received by the Company for appraisals of Company Common Stock held by Dissenting Shareholders. The Company shall not, except with the prior written consent of Parent, make any payment with respect to any demands for appraisal or offer to settle or settle any such demands. b. Paragraph (b) of SECTION 7.2 of the Agreement is amended and restated in its entirety as follows: (b) In the event that this Agreement is terminated pursuant to Section 7.1(d), Section 7.1(e) (due to a material breach of any material covenant or agreement on the part of the Company contained in Article I hereof, or in Sections 5.1, 5.2, 5.3, 5.4, 5.8, 5.9, 5.10 or 7.1(i) hereof), Section 7.1(h), Section 7.1(i), or Section 7.1(j), then the Company shall pay Parent in cash (A) U.S. $60,000,000 plus (B) up to U.S. $10,000,000 of Parent's Expenses incurred in connection with the Offer and Merger. The amounts set forth in this Section 7.2(b) shall be payable by wire transfer of immediately available funds (A) prior to such termination by the Company pursuant to Section 7.1(i) or (B) on the date of such termination by Parent pursuant to Section 7.1(d), Section 7.1(e), Section 7.1(h) or Section 7.1(j). The Company acknowledges that the agreements contained in this Section 7.2(b) are an integral part of the transaction contemplated in this Agreement, and that, without these agreements, Parent and Merger Sub would not enter into this Agreement. In the event the Company shall fail to pay any amount payable pursuant to this Section 7.2(b) when due, the Expenses of Parent and Merger Sub shall be deemed to include (i) the costs and expenses actually incurred or accrued by Parent and Merger Sub (including, without limitations, fees and expenses of counsel) in connection with the collection under the enforcement of this Section 7.2(b), together with (ii) interest on such unpaid amounts, commencing on the date that such amounts became due, at a rate equal to the prime rate of Citibank, N.A. on the date that such amounts became due plus 2.00% per annum. 3. EFFECTUATION. The amendment to the Agreement contemplated by this First Amendment shall be deemed effective as of the date first written above upon the full execution of this First Amendment and without any further action required by the parties hereto. There are no conditions precedent or subsequent to the effectiveness of this First Amendment. 2 4. COUNTERPARTS. This First Amendment may be executed in two or more counterparts, each of which shall be deemed to be an original, but all of which together shall constitute one and the same instrument. IN WITNESS WHEREOF, the parties hereto have duly executed this First Amendment as of the date first above written. "PARENT": KONINKLIJKE NUMICO N.V. By: /s/ Julitte van der Ven ---------------------------- Name: Julitte van der Ven Title: Attorney-in-Fact "MERGER SUB": NUTRICIA INVESTMENT CORP. By: /s/ Julitte van der Ven ---------------------------- Name: Julitte van der Ven Title: President "COMPANY": REXALL SUNDOWN, INC. By: /s/ Damon DeSantis ---------------------------- Name: Damon DeSantis Title: President and CEO 3 EX-99.(D)(14) 5 EXHIBIT 99(D)(14) MEMORANDUM OF UNDERSTANDING This Memorandum of Understanding ("Memorandum") is entered into by and among (i) Lawrence Peccatiello ("Plaintiff") and (ii) Rexall Sundown, Inc. ("Rexall" or the "Company"), Nutricia Investment Corporation ("Nutricia") and the Rexall directors named as individual defendants (the "Individual Defendants") (collectively, "Defendants") in the action captioned LAWRENCE PECCATIELLO V. CARL DESANTIS, ET AL., Case No. CL 00-4284 AO, pending before the Circuit Court of the 15th Judicial Circuit, in and for Palm Beach County, Florida (respectively, the "Action" and the "Court"). WHEREAS: A. Plaintiff is and has been the beneficial owner of shares of common stock of the Company ("Common Stock") at all times as of and since the date of the filing of the complaint in the Action. B. On May 1, 2000, Rexall, Nutricia and Koninklijke Numico N.V., Nutricia's parent corporation ("Numico"), announced that they had entered into an Agreement and Plan of Merger, dated as of April 30, 2000 (the "Merger Agreement") regarding the acquisition of Rexall by Numico in an all-cash transaction valued at approximately $1.7 billion. Pursuant to the Merger Agreement, Nutricia has commenced a tender offer to acquire all of the outstanding shares of Rexall for $24.00 per share in cash (the "Tender Offer"). Following the Tender Offer, Numico will proceed with a second-step merger (the "Merger") to complete the acquisition of Rexall, and any Rexall shares not purchased in the Tender Offer will be acquired in the Merger for $24.00 per share in cash. C. The initial complaint in the Action was filed on May 1, 2000 and subsequently amended on May 22, 2000 (as amended, the "Complaint"). The Action was filed on behalf of a putative class consisting of all holders of the Company's Common Stock, other than Defendants and any person, firm, trust, corporation or other entity related or affiliated with any of the Defendants. The Complaint generally alleges that the Individual Defendants, aided and abetted by Nutricia, engaged in breaches of fiduciary duties purportedly owed to the Company's stockholders. The Action seeks to enjoin the consummation of the Merger, and to compel the Individual Defendants to carry out their fiduciary duties to Plaintiff and the Company's stockholders. On May 22, 2000, Rexall and the Individual Defendants filed a motion to dismiss the initial complaint. D. On May 16, 2000, the Court denied without prejudice plaintiff's motion to conduct expedited discovery in anticipation of seeking to enjoin preliminarily consummation of the Merger. On May 19, 2000, plaintiff renewed his motion for expedited discovery and filed a motion to enjoin preliminarily the Company and the Company's directors from proceeding to consummate the Merger. Plaintiff filed on May 22, 2000 an amended complaint adding Nutricia as a defendant and alleging that Nutricia is aiding and abetting the alleged breaches of fiduciary duties by the Company's directors. The Company and the Company's directors served on May 22, 2000 a motion to dismiss the complaint based on the legal insufficiency of plaintiff's allegations. On May 24, 2000, the Company and the Company's directors served a motion to dismiss plaintiff's amended complaint based on the legal insufficiency of plaintiff's allegations. E. On May 25, 2000, following extensive discussions and negotiations, counsel for Plaintiff and Defendants reached an agreement-in-principle concerning the proposed settlement of the Action which would result in the public stockholders of the Company receiving a more favorable transaction than that originally proposed. F. Because counsel for Plaintiff and Defendants in this Action have concluded that the terms contained in this Memorandum are fair and adequate to both the Company and its stockholders and that it is reasonable to pursue a settlement of the Action based upon the procedures outlined herein and the substantial benefits and protections offered herein, the parties wish to document their agreement-in-principle in this Memorandum. NOW, THEREFORE, the parties to the Action have reached an agreement providing for the settlement of the Action on the terms and subject to the conditions set forth below (the "Settlement"): 1. The purpose of this Memorandum is to set forth the agreement-in-principle of the parties to the Action with respect to the matters addressed below. However, the obligations of the parties pursuant to this Memorandum are subject to modifications, if necessary, to ensure that the terms thereof will not generate any adverse tax, accounting, financing or other consequences to the parties (including to enable the parties to obtain any necessary third party consents). Any necessary adjustments will be made on a mutually agreeable basis so as to preserve the economic, operational and other objectives of the parties in reaching this agreement-in-principle. 2. Subject to compliance with all applicable securities laws and other legal requirements, Numico, Nutricia and the Company will proceed with the Tender Offer and the Merger pursuant to the terms of the Merger Agreement, subject to the modifications described below. In consideration for the full settlement and release of all Settled Claims (as defined below), and subject in all respects to all terms and conditions of the Merger Agreement, the parties agree that: a. The Company, Numico and Nutricia shall cause Section 7.2 of the Merger Agreement to be amended to (i) reduce the termination fee set forth in subparagraph (b)(A) of Section 7.2 from U.S. $65,000,000 to U.S. $50,000,000; and (ii) reduce the expense reimbursement fee set forth in subparagraph (b)(B) of Section 7.2 from U.S. $14,000,000 to U.S. $10,000,000. b. The Company, Numico and Nutricia shall cause Section 2.9(h) of the Merger Agreement to be amended and restated in its entirety as follows: DISSENTING SHARES. Notwithstanding anything in this Agreement to the contrary, and despite the fact that the FBCA may not provide for such a right, shares of Company Common Stock that are issued and outstanding immediately prior to the Effective Time and which are held by shareholders ("Dissenting Shareholders") who (i) have not voted in favor of or consented to the Merger, (ii) to the extent required by and in the manner provided in Section 607.1320 of the FBCA, shall have delivered a written notice of intent to demand payment for such shares of Company Common Stock if the Merger is effectuated in the time and manner provided in FBCA and (iii) shall not have failed to perfect or shall not have effectively withdrawn or lost their rights to appraisal and payment under the FBCA shall not be converted into the right to receive the Merger Consideration, but shall, in lieu thereof, be entitled to receive the consideration as shall be determined pursuant to Sections 607.1301 through 607.1320 of the FBCA; provided, however, that any such holder who shall have failed to perfect or shall have effectively withdrawn or lost his, her or its right to appraisal and payment under the FBCA, shall thereupon be deemed to have had such person's shares of Company Common Stock converted, at the Effective Time, into the right to receive the Merger Consideration set forth herein, without any interest or dividends thereon. Notwithstanding anything to the contrary contained in this Section 2.9(h), if (A) the Merger is rescinded or abandoned or (B) the shareholders of the Company revoke the authority to effect the Merger, then the right of any Dissenting Shareholder to be paid the fair value of such Dissenting Shareholder's Shares shall cease. The Company will give parent prompt notice of any demands received by the Company for appraisals of Company Common Stock held by Dissenting Shareholders. The Company shall not, except with the prior written consent of Parent, make any payment with respect to any demands for appraisal or offer to settle or settle any such demands. c. As promptly as practicable, the Company shall issue a supplemental disclosure statement which describes the following in a manner reasonably acceptable to Plaintiff's counsel: A. the amendments to the Merger Agreement set forth in paragraphs 2.a and 2.b of this Memorandum; B. the status of any inquiries by third parties to the Company since the announcement of the Merger Agreement on May 1, 2000 with respect to any expression of interest, offer or proposal to acquire all or more than 15% of the Company's businesses, assets or capital shares whether by merger, consolidation, other business combination, purchase of assets, reorganization, tender or exchange offer or otherwise; 2 C. the assumptions underlying the Company's financial projections set forth in Section 8 of Exhibit (a)(1) to the Schedule TO filed by Numico and Nutricia with the Securities and Exchange Commission on May 5, 2000; D. the terms and conditions on which Morgan Stanley is entitled to be paid a transaction fee upon consummation of the Merger and not in consideration for its issuance of a fairness opinion regarding the Merger; and E. the terms and conditions of the Settlement. 3. Subject to such reasonable and appropriate confirmatory discovery as Plaintiff and Defendants agree, Plaintiff agrees to enter into a settlement stipulation (and such other related documentation as may be necessary) which will provide for the settlement of the Action (the "Settlement Agreement"). Among other things, the Settlement Agreement expressly will provide as follows: a. for the conditional certification of the Action, for settlement purposes only, as a class action pursuant to Rule 1.220(b)(1) and (b)(2) of the Florida Rules of Civil Procedure on behalf a class consisting of all record and beneficial holders of Common Stock of the Company (other than the Defendants and any person, firm, trust, corporation or other entity related or affiliated with any of the Defendants) for the period from and including April 30, 2000 through and including the effective date of the Merger, including any and all of their respective successors in interest, predecessors, representatives, trustees, executors, administrators, heirs, assigns or transferees, immediate and remote, and any person or entity acting for or on behalf of, or claiming under any of them, and each of them (the "Class"); b. for the complete discharge, dismissal with prejudice, settlement and release of, and an injunction barring, all claims, demands, rights, actions or causes of action, rights, liabilities, damages, losses, obligations, judgments, suits, matters and issues of any kind or nature whatsoever, whether known or unknown, contingent or absolute, suspected or unsuspected, disclosed or undisclosed, hidden or concealed, matured or unmatured, that have been, could have been, or in the future can or might be asserted in the Action or in any court, tribunal or proceeding (including, but not limited to, any claims arising under federal or state law relating to alleged fraud, breach of any duty, negligence, violations of the federal securities laws or otherwise) by or on behalf of any member of the Class, whether individual, class, derivative, representative, legal, equitable or any other type or in any other capacity against Defendants in the Action, or any of their families, parent entities, associates, affiliates or subsidiaries and each and all of their respective past, present or future officers, directors, stockholders, representatives, employees, attorneys, financial or investment advisors, consultants, accountants, investment bankers, commercial bankers, engineers, advisors or agents, heirs, executors, trustees, general or limited partners or partnerships, personal representatives, estates, administrators, predecessors, successors and assigns (collectively, the "Released Persons") which have arisen, could have arisen, arise now or hereafter arise out of, or relate in any manner to, the allegations, facts, events, transactions, acts, occurrences, statements, representations, 3 misrepresentations, omissions or any other matter, thing or cause whatsoever, or any series thereof, embraced, involved, set forth or otherwise related, directly or indirectly, to the complaint in the Action, the Merger Agreement, the Tender Offer, the Merger, and any Tender Offer or proxy material, public filings or statements (including, but not limited to, public statements) by any of the Defendants in the Action or any other Released Persons in connection with the Tender Offer, the Merger Agreement or the Merger (collectively, the "Settled Claims"); provided, however, that the Settled Claims shall not include (x) any properly perfected appraisal rights in connection with the Merger, and (y) any of the claims asserted in the following pending litigation; (i) IN RE REXALL SUNDOWN, INC. SECURITIES LITIGATION Case No. 98-8798-CIV-DIMITROULEAS, in the United States District Court for the Southern District of Florida; (ii) FOLBAUM ET AL. V. REXALL SUNDOWN INC., ET AL., No. L-8625-98, in the Superior Court of New Jersey, Camden County; and (iii) HUTSON V. REXALL SUNDOWN, INC., Case No. 98-10769AI, in the Circuit Court of the Fifteen Judicial Circuit in and for Palm Beach County, Florida. c. that Defendants have denied, and continue to deny, that any of them have committed or have threatened to commit any violations of law or breaches of duty to Plaintiff, the Class or anyone; d. that Defendants are entering into the Settlement Agreement solely because the proposed Settlement would eliminate the distraction, burden and expense of further litigation; and e. subject to the Order of the Court, pending final determination of whether the Settlement provided for in the Settlement Agreement should be approved, that Plaintiff and all members of the Class, or any of them, are barred and enjoined from commencing, prosecuting, instigating or in any way participating in the commencement or prosecution of any action asserting any Settled Claims against any of the Released Persons. 4. The parties to the Action will use their best efforts to complete the discovery contemplated by this Memorandum and to agree upon, execute and present to the Court, as soon as practicable, a formal Settlement Agreement and such other documents as may be necessary and appropriate in order to obtain the prompt approval by the Court of the Settlement and the dismissal with prejudice of the Action in the manner contemplated herein and by the Settlement Agreement. Pending the negotiation and execution of the Settlement Agreement, all proceedings in the Action, except for Settlement-related proceedings pursuant to this Memorandum, shall be suspended. 5. Plaintiff will cooperate with Defendants in all reasonable respects in connection with implementation of the Merger Agreement and the other understandings set forth herein. The parties to the Action, through their counsel, (i) agree to use their best efforts to pursue the Settlement in as expeditious and comprehensive a manner as possible and acknowledge that time is of the essence; and (ii) agree to cooperate in preparing any and all necessary papers to define, pursue and effectuate the Settlement. 6. Pending negotiation, execution and Court approval of the Settlement Agreement and Settlement, the Plaintiff in the Action agrees to stay any discovery and to stay and not to initiate any proceedings other than those incident to the Settlement itself. The parties also agree to use their best efforts to prevent, stay or seek dismissal of or oppose entry of any interim or final relief in favor of any member of the Class in any other litigation against any of the parties to this Memorandum which challenges the Settlement, the Merger Agreement, the Tender Offer or the Merger or otherwise involves a Settled Claim (other than an action involving solely dissenters' appraisal rights in connection with the Merger). 4 7. The Settlement contemplated by this Memorandum will not be binding upon any party until, and is otherwise subject to: a. the completion by Plaintiff in the Action of such documentary discovery and/or oral depositions or interviews as reasonably are requested by him and agreed to by the respective party from whom discovery is requested (the scope of such discovery having been discussed by the parties prior to the execution of this Memorandum); b. the execution of a formal Settlement Agreement (and such other documentation as may be required to obtain final approval by the Court of the Settlement) by counsel for the parties to the Action, which Settlement Agreement shall include a provision permitting Defendants to terminate the Settlement if, prior to the Effective Date of the Settlement (as defined below), any action is pending in any state or federal court which raises any Settled Claims against any of the Released Persons; c. the consummation of the Tender Offer; d. final approval by the Court of the Settlement (and the exhaustion of possible appeals, if any) and the dismissal of the Action by the Court with prejudice and without awarding costs to any party (except as provided herein) having been obtained, and entry by the Court of a final order and judgment containing such release language as is contained in the Settlement Agreement; and e. the determination by Defendants in the Action that the dismissal of the Action in accordance with the Settlement Agreement will result in the release with prejudice of the Settled Claims. 8. This Memorandum shall be null and void and of no force and effect should any of the conditions set forth herein not be met or should Plaintiff's counsel in the Action determine in good faith that, based upon the discovery contemplated by this Memorandum, the proposed Settlement is not fair, reasonable and adequate; in such event, this Memorandum shall not be deemed to prejudice in any way the positions of the parties with respect to the Action nor to entitle any party to the recovery of costs and expenses incurred to implement this Memorandum (except as provided in paragraph 10 hereof for the costs of notice of the Settlement). 9. The Effective Date of the Settlement shall be the date on which the order of the Court approving the Settlement becomes final and no longer subject to further appeal or review, whether by exhaustion of any possible appeal, lapse of time or otherwise. 10. The Company shall be responsible for providing notice of the Settlement to the members of the Class. The Company shall pay, on behalf of and for the benefit of the Individual Defendants in the Action, all reasonable costs and expenses incurred in providing notice of the Settlement to the members of the Class and shall cooperate with Plaintiff's counsel in providing such information as is reasonably available to it and reasonably identifies potential Class members. 5 11. With the exception of any fees and expenses which may be awarded or approved by the Court to counsel for Plaintiff in the Action, which shall be the sole responsibility of the Company and/or its successors in interest acting on behalf of and for the benefit of the Individual Defendants, the parties in the Action shall bear no other expenses, costs, damages or fees alleged or incurred by any other party or, by any member of the Class, or by any of their attorneys, experts, advisors, agents or representatives (except for the costs of notice set forth in paragraph 10 of this Memorandum). 12. The provisions contained in this Memorandum shall not be deemed a presumption, concession or an admission by any Defendant in the Action of any fault, liability or wrongdoing as to any facts or claims alleged or asserted in the Action, or any other actions or proceedings, and shall not be interpreted, construed, deemed, invoked, offered, or received in evidence or otherwise used by any person in the Action, or in any other action or proceeding, whether civil, criminal or administrative. 13. This Memorandum constitutes the entire agreement among the parties with respect to the subject matter hereof, and may not be amended nor any of its provisions waived except by a writing signed by all of the parties hereto. 14. This Memorandum and the Settlement contemplated by it shall be governed by, and construed in accordance with, the laws of the State of Florida, without regard to conflict of laws principles. 15. This Memorandum will be executed by counsel for the parties to the Action, each of whom represent and warrant that they have the authority from their client(s) to enter into this Memorandum. This Memorandum may be executed in any number of counterparts, each of which shall be deemed to be an original, but all of which together shall constitute one and the same instrument. 16. Plaintiff and his counsel in the Action represent and warrant that none of Plaintiff's claims or causes of action referred to in any complaint in the Action or this Memorandum have been assigned, encumbered or in any manner transferred in whole or in part. 17. This Memorandum shall be binding upon and shall inure to the benefit of the parties and their respective agents, successors, executors, heirs and assigns. IN WITNESS WHEREOF, the parties have executed this Memorandum effective as of the date set forth below. 6 /s/ Gerry S. Gibson ----------------------------------- Gerry S. Gibson Janet B. Teebagy Greenberg Traurig, P.A. 777 South Flagler Drive West Palm Beach, Florida 33401 (561) 650-7900 Attorneys for Rexall Sundown, Inc. and the Individual Defendants 7 /s/ Stanley H. Wakshlag ----------------------------------- Of Counsel: Stanley H. Wakshlag Akerman, Senterfitt & Eidson, P.A. David E. Bennett One Southeast Third Avenue Vedder, Price, Kaufman & Kammholz 28th Floor, SunTrust International Center 222 North LaSalle Street Miami, Florida 33131 Chicago, Illinois 60601-5005 Attorneys for Nutricia Investment Corporation (312) 609-7600 Kevin G. Abrams Raymond J. DiCamillo Christine M. Morabito Richards, Layton & Finger One Rodney Square P.O. Box 551 Wilmington, Delaware 19899 (302) 658-6541 /s/ Paul J. Geller ----------------------------------- Of Counsel: Paul J. Geller Jonathan M. Stein Marc A. Topaz Cauley & Geller, LLP Gregory M. Castaldo 7200 West Camino Real Schiffrin & Barroway, LLP Suite 203 Three Bala Plaza East Boca Raton, Florida 33433 Suite 400 (561) 750-3000 Bala Cynwyd, Pennsylvania 19004 Attorneys for Plaintiff Lawrence Peccatiello (610) 667-7706 William S. Lerach David J. Robbins Milberg Weiss Bershad Hynes & Lerach 600 West Broadway 1800 One America Plaza San Diego, California 92101-5050 (619) 231-1058 Alfred G. Yates, Jr. Law Offices of Alfred G. Yates, Jr. 519 Allegheny Building 429 Forbes Avenue Pittsburgh, Pennsylvania 15219 (412) 391-5163 Dated: May 25, 2000
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