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TENDER AND SUPPORT
AGREEMENT
This Tender and Support Agreement dated as of November 18,
2007 (this " Agreement
") is among Elliott
Balbert and Cheryl Balbert, as Trustees of the Balbert Family Trust
(the " Shareholder
") and Plethico Pharmaceuticals Limited, a
public limited company incorporated under the laws of India
(" Parent "). Capitalized terms used but not defined herein have the
meanings assigned to them in the Agreement of Merger dated as of
the date of this Agreement (including the related Plan of Merger,
together with any amendments or supplements thereto consented to by
Shareholder, the " Merger
Agreement ") among Parent, Nutra
Acquisition Company, Inc., a Delaware corporation and a wholly
owned subsidiary of Parent (" Merger
Sub "), and Natrol, Inc., a Delaware
corporation (the " Company
").
As of the date hereof, the Shareholder beneficially owns
5,724,500 shares of common stock of the Company, par value $0.01
per share (" Company Common
Stock "), (such shares, together with
any shares of Company Common Stock that are hereafter issued to or
otherwise acquired or owned by the Shareholder prior to the
termination of this Agreement being referred herein as the "
Shares ").
Concurrently with the execution and delivery of this
Agreement, Parent, Merger Sub and the Company are entering into the
Merger Agreement, which provides for, among other things, the
making of a tender offer by Merger Sub for all of the outstanding
shares of the Company Common Stock and the merger of Merger Sub
with and into the Company, upon the terms and subject to the
conditions set forth therein.
As a condition to Parent’s willingness to enter into
the Merger Agreement, Parent has required that the Shareholder
enter into this Agreement.
In consideration of the foregoing and the mutual covenants,
representations, warranties and agreements set forth herein, and
intending to be legally bound, the parties agree as
follows:
Section 1. Certain
Definitions . The following
capitalized terms, as used in this Agreement, shall have the
meanings set forth below:
" beneficial
ownership " of any security by any
Person means "beneficial ownership" of such security as determined
pursuant to Rule 13d-3 under the Exchange Act, including all
securities as to which such Person has the right to acquire,
without regard to the 60-day period set forth in such rule. The
terms " beneficially owned
" and " beneficial
owner " shall have correlative
meanings.
Section 2. Agreement to
Tender . The Shareholder hereby
agrees to validly tender or cause to be tendered in the Offer all
the Shares pursuant to and in accordance with the terms of the
Offer as promptly as practicable after commencement of the Offer,
but in any event no later than five business days after receipt by
the Shareholder of all documents or instruments required to be
delivered pursuant to the terms of the Offer. In furtherance of the
foregoing, the Shareholder shall (i) deliver to the depositary
designated
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in the Offer (the "
Depositary ")
(A) a letter of transmittal with respect to his Shares complying
with the terms of the Offer, (B) a certificate or certificates
representing such Shares or an "agent’s message" (or such
other evidence, if any, of transfer as the Depositary may
reasonably request) in the case of a book-entry transfer of any
uncertificated Shares and (C) all other documents or instruments,
to the extent applicable, required to be delivered by other
shareholders of the Company pursuant to the terms of the Offer,
and/or (ii) instruct his broker or such other Person that is the
holder of record of any Shares to tender such Shares pursuant to
and in accordance with the terms of the Offer and this Agreement.
The Shareholder agrees that once his Shares are tendered, the
Shareholder will not withdraw or cause to be withdrawn any of such
Shares from the Offer, unless and until this Agreement shall have
been terminated in accordance with Section 13(d). Upon the end of
the Agreement Period, Parent shall cause the Depositary to
immediately return to the Shareholder all certificates representing
the Shareholder’s Shares which had been previously delivered
to the Depositary pursuant to this Section 2 or, with regard to
uncertificated Shares, to take such other appropriate action to
immediately evidence and effect the return of such Shares to each
Shareholder in book-entry form or otherwise. Notwithstanding the
foregoing, the Shareholder shall have no obligation to tender its
Shares pursuant to the Offer if Parent or Merger Sub shall have
amended or modified the Offer or if Company shall have consented to
a change described in Section 1.1(a)(i) of the Merger Agreement in
a manner adverse to the Shareholder (other than any extension of
the Offer to the extent permitted in the Merger Agreement) without
obtaining the Shareholder's prior written consent.
Section 3. Documentation and
Information . The Shareholder (i)
consents to and authorizes the publication and disclosure by Parent
of the Shareholder’s identity and holding of Shares, the
nature of the Shareholder’s commitments, arrangements and
understandings under this Agreement (including, for the avoidance
of doubt, the disclosure of this Agreement) and any other
information, in each case, that Parent reasonably determines is
required to be disclosed by applicable Law in any press release,
the Offer Documents, the Company Proxy Statement (including all
schedules and documents filed with the SEC), or any other
disclosure document in connection with the Offer, the Merger and
any transactions contemplated by the Merger Agreement and (ii)
agrees promptly to give to Parent any information it may reasonably
require for the preparation of any such disclosure documents.
Parent shall provide a copy of any proposed disclosure to the
Shareholder prior to filing and the Shareholder agrees to promptly
notify Parent of any required corrections with respect to any
information supplied by the Shareholder specifically for use in any
such disclosure document, if and to the extent that any such
information shall have become false or misleading in any material
respect.
Section 4. Voting
Agreement . During the period
beginning on the date of this Agreement and ending on the earlier
of (x) the Effective Time, (y) the agreement of the parties hereto
to terminate this Agreement, and (z) the termination of the Merger
Agreement in accordance with its terms (the " Agreement Period "), the
Shareholder hereby irrevocably and unconditionally agrees that at
any meeting (whether annual or special and whether or not an
adjourned or postponed meeting) of the holders of Company Common
Stock, however called (each, a " Company Shareholders Meeting "),
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or in connection with any
written consent of the holders of Company Common Stock, the
Shareholder shall:
(a) be present, in
person or represented by proxy, or otherwise cause the Shares to be
counted for purposes of determining the presence of a quorum at
such meeting (to the fullest extent that such Shares may be counted
for quorum purposes under applicable Law);
(b) vote (or cause to
be voted) or deliver a written consent (or cause a written consent
to be delivered) with respect to the Shares, in each case, to the
fullest extent that such Shares are entitled to be voted at the
time of any vote or action by written consent:
(i) in favor of the
(A) approval and adoption of the Merger Agreement, the Merger and
each of the other actions contemplated by the Merger Agreement; and
(B) without limitation of the preceding clause (A), approval of any
proposal to adjourn or postpone the Company Shareholders Meeting to
a later date if there are not sufficient votes for approval and
adoption of the Merger Agreement on the date on which the Company
Shareholders Meeting is held; and
(ii) against (A) any
action or agreement that would reasonably be expected to frustrate
the purposes of, impede, hinder, interfere with, or prevent or
delay or adversely affect the consummation of, or dilute materially
the benefits to Parent of, the transactions contemplated by the
Merger Agreement, (B) any Takeover Proposal and any action in
furtherance thereof, (C) any reorganization, recapitalization or
winding-up of the Company or any other extraordinary transaction
involving the Company, or (D) any action, proposal, transaction or
agreement that would reasonably be expected to result in a breach
of any covenant, representation or warranty or any other obligation
or agreement of the Company under the Merger Agreement or of the
Shareholder under this Agreement.
Notwithstanding the
foregoing, the Shareholder shall have no obligation to vote in the
manner provided in this Section 4 if Parent or Merger Sub shall
have amended or modified the Offer or if Company shall have
consented to a change described in Section 1.1(a)(i) of the Merger
Agreement in a manner adverse to the Shareholder (other than any
extension of the Offer to the extent permitted in the Merger
Agreement) without obtaining the Shareholder's prior written
consent.
Section 5. Irrevocable
Proxy . The Shareholder, revoking (or
causing to be revoked) any proxies that he has heretofore granted,
hereby irrevocably appoints Parent as attorney-in-fact and proxy
for and on behalf of the Shareholder, for and in the name, place
and stead of the Shareholder, to: (a) attend any and all Company
Shareholder Meetings; (b) vote, express consent or dissent or issue
instructions to the record holder to vote the Shares in accordance
with the provisions of Section 4(b) at any such meeting; and (c)
grant or withhold, or issue instructions to the record holder to
grant or withhold, consistent with the provisions of Section 4, all
written consents with respect to the Shares. The foregoing proxy
shall be deemed to be a proxy coupled with an interest, is
irrevocable (and as such shall survive and not be affected by the
death, incapacity, mental
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illness or insanity of the
Shareholder) until the end of the Agreement Period and shall not be
terminated by operation of Law or upon the occurrence of any other
event other than the termination of this Agreement pursuant to
Section 13(d). The Shareholder authorizes such attorney and proxy
to substitute any other Person to act hereunder, to revoke any
substitution and to file this proxy and any substitution or
revocation with the Secretary of the Company. The Shareholder
hereby affirms that the irrevocable proxy set forth in this Section
5 is given in connection with and granted in consideration of and
as an inducement to Parent entering into the Merger Agreement and
that such irrevocable proxy is given to secure the obligations of
the Shareholder under Section 4 hereof. The irrevocable proxy set
forth in this Section 5 is executed and intended to be irrevocable,
subject, however, to automatic termination upon the termination of
this Agreement pursuant to Section 13(d).
Notwithstanding the foregoing, the Parent shall not have
the right to exercise the proxy contained in this Section 5 and the
Parent's appointment as attorney-in-fact and proxy for and on
behalf of the Shareholder shall be rendered void, if Parent or
Merger Sub shall have amended or modified the Offer or if Company
shall have consented to a change described in Section 1.1(a)(i) of
the Merger Agreement in a manner adverse to the Shareholder (other
than any extension of the Offer to the extent permitted in the
Merger Agreement) without obtaining the Shareholder's prior written
consent.
Section 6. Representations and
Warranties of the Shareholder . The
Shareholder represents and warrants to Parent as follows (it being
understood that, except where expressly stated to be given or made
as of the date hereof only, the representations and warranties
contained in this Agreement shall be made as of the date hereof and
as of the date of each Company Shareholders Meeting and the
Acceptance Date):
(a) Authorization . The
Shareholder has full legal capacity, right and authority to execute
and deliver this Agreement and to perform his obligations
hereunder. The execution and delivery by the Shareholder of this
Agreement and the consummation by the Shareholder of the
transactions contemplated hereby have been duly authorized by all
necessary act
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