-----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, BeifEzHn5Rc9vf5074X6J4NJWM08Z8Oqt2EYFZRgo4XcCG7VxMhMS1SuLOto1wk6 MgdDRtv4jq2YNZ9H/Nd1lw== 0000950131-00-005421.txt : 20001009 0000950131-00-005421.hdr.sgml : 20001009 ACCESSION NUMBER: 0000950131-00-005421 CONFORMED SUBMISSION TYPE: SC TO-T PUBLIC DOCUMENT COUNT: 15 FILED AS OF DATE: 20000920 SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: BEAUTICONTROL INC CENTRAL INDEX KEY: 0000788330 STANDARD INDUSTRIAL CLASSIFICATION: 2844 IRS NUMBER: 752036343 STATE OF INCORPORATION: DE FISCAL YEAR END: 1130 FILING VALUES: FORM TYPE: SC TO-T SEC ACT: SEC FILE NUMBER: 005-37319 FILM NUMBER: 725687 BUSINESS ADDRESS: STREET 1: 2121 MIDWAY CITY: CARROLLTON STATE: TX ZIP: 75006 BUSINESS PHONE: 9724580601 FORMER COMPANY: FORMER CONFORMED NAME: BEAUTICONTROL COSMETICS INC DATE OF NAME CHANGE: 19920703 FORMER COMPANY: FORMER CONFORMED NAME: BEAUTICONTROL COSMETICS DATE OF NAME CHANGE: 19860724 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: TUPPERWARE CORP CENTRAL INDEX KEY: 0001008654 STANDARD INDUSTRIAL CLASSIFICATION: 3089 IRS NUMBER: 364062333 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC TO-T BUSINESS ADDRESS: STREET 1: 14901 S ORANGE BLOSSOM TRAIL CITY: ORLANDO STATE: FL ZIP: 32802-2353 BUSINESS PHONE: 4078265050 MAIL ADDRESS: STREET 1: P O BOX 2353 CITY: ORLANDO STATE: FL ZIP: 32802 SC TO-C 1 0001.txt SCHEDULE TO TENDER OFFER ================================================================================ SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 ------------- SCHEDULE TO (RULE 14D-100) TENDER OFFER STATEMENT UNDER SECTION 14(D)(1) OR SECTION 13(E)(1) OF THE SECURITIES EXCHANGE ACT OF 1934 ------------- BEAUTICONTROL, INC. (Name of Subject Company (Issuer)) B-C MERGER CORPORATION TUPPERWARE CORPORATION (Names of Filing Persons (Offerors)) ------------- COMMON STOCK, PAR VALUE $.10 PER SHARE (Title of Class of Securities) ------------- 074655101 (CUSIP Number of Class of Securities) ------------- Thomas M. Roehlk Senior Vice President, General Counsel and Secretary Tupperware Corporation 14901 S. Orange Blossom Tr. Orlando, FL 32837 Telephone: (407) 826-5050 (Name, address and telephone number of person authorized to receive notices and communications on behalf of filing persons) Copy to: Steven Sutherland Sidley & Austin Bank One Plaza 10 South Dearborn Street Chicago, Illinois 60603 Telephone: (312) 853-7000 CALCULATION OF FILING FEE Transaction Valuation*: $62,083,336 Amount of Filing Fee: $12,417 - - ---------- *Estimated for purposes of calculating the amount of the filing fee only. This calculation assumes the purchase of all outstanding shares of common stock, par value $.10 per share, of BeautiControl, Inc. (the "Company Common Stock") at a price per share of Company Common Stock of $7.00 in cash. This calculation assumes that all options to purchase shares of Common Stock have been exercised and the purchase of all shares of Common Stock issued in connection with such exercise. As of September 11, 2000, there were approximately 7,231,448 shares of Company Common Stock outstanding and approximately 1,637,600 shares of Company Common Stock subject to outstanding options. The amount of the filing fee, calculated in accordance with Rule 0-11 of the Securities Exchange Act of 1934, as amended, equals 1/50th of one percent of the value of the transaction. [ ] Check the 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: Not applicable Filing Party: Not applicable Form or registration No.: Not applicable Date Filed: Not applicable [ ] 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: [ ] ================================================================================ This Tender Offer Statement on Schedule TO relates to the third-party tender offer by B-C Merger Corporation, a Delaware corporation ("Purchaser") and a wholly owned subsidiary of Tupperware Corporation, a Delaware corporation ("Parent"), to purchase all of the issued and outstanding shares of common stock, par value $.10 per share (the "Shares"), of BeautiControl, Inc., a Delaware corporation (the "Company"), at a purchase price of $7.00 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 September 20, 2000 (the "Offer to Purchase"), a copy of which is attached hereto as Exhibit (a)(1)(A), and in the related Letter of Transmittal (the "Letter of Transmittal"), a copy of which is attached hereto as Exhibit (a)(1)(C) (which, together with the Offer to Purchase, as amended or supplemented from time to time, constitute the "Offer"). The information in the Offer to Purchase, including all schedules and annexes thereto, is hereby expressly incorporated herein by reference in response to all the items of this Schedule TO, except as otherwise set forth below. ITEM 1. SUMMARY TERM SHEET. The information set forth under "Summary Term Sheet" in the Offer to Purchase is incorporated herein by reference. ITEM 2. SUBJECT COMPANY INFORMATION. (a) The name of the subject company is BeautiControl, Inc. The Company's executive offices are located at 2121 Midway, Carrollton, TX 75006. The telephone number of the principal executive offices is: 972-458-0601. (b) The class of securities to which this statement relates is the common stock of the Company, par value $.10 per share, of which 7,231,448 shares were issued and outstanding as of September 11, 2000. (c) The information set forth in Section 6 ("Price Range of the Shares; Dividends") in the Offer to Purchase is incorporated herein by reference. ITEM 3. IDENTITY AND BACKGROUND OF FILING PERSON. (a) This Tender Offer Statement is filed by Parent and Purchaser. The information set forth in Section 9 ("Certain Information Concerning Tupperware Corporation and Purchaser") in the Offer to Purchase and on Schedule I thereto is incorporated herein by reference. (b) The information set forth in Section 9 ("Certain Information Concerning Tupperware Corporation and Purchaser") in the Offer to Purchase and on Schedule I thereto is incorporated herein by reference. (c) The information set forth in Section 9 ("Certain Information Concerning Tupperware Corporation and Purchaser") in the Offer to Purchase and on Schedule I thereto is incorporated herein by reference. During the last five years, none of Purchaser, Parent or, to the best knowledge of Purchaser and Parent, any of the persons listed on Schedule I to the Offer to 2 Purchase (i) has been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors) or (ii) was a party to any judicial or administrative proceeding (except for matters that were dismissed without sanction or settlement) that resulted in a judgment, decree or final order enjoining the person from future violations of, or prohibiting activities subject to, federal or state securities laws, or a finding of any violation of such laws. Unless otherwise noted, the persons listed on Schedule I to the Offer to Purchase are citizens of the United States. ITEM 4. TERMS OF THE TRANSACTION. The information set forth in the Offer to Purchase is incorporated herein by reference. ITEM 5. PAST CONTACTS, TRANSACTIONS, NEGOTIATIONS AND AGREEMENTS. (a) The information set forth in Section 10 ("Background of the Offer; Contacts with BeautiControl") is incorporated herein by reference. Except as disclosed above in this Item 5(a), during the past two years, there have been no transactions that would be required to be disclosed under this Item 5(a) between any of the Purchaser, Parent, or, to the best knowledge of the Purchaser and Parent, any of the persons listed on Schedule I to the Offer to Purchase, and the Company or any of its executive officers, directors or affiliates. (b) The information set forth under "Introduction," Section 10 ("Background of the Offer; Contacts with BeautiControl") and Section 11 ("Purpose of the Offer and the Merger; The Merger Agreement; The Stockholder Agreements; The Employment Agreements; Statutory Requirements; Appraisal Rights; Plans for BeautiControl") is incorporated herein by reference. Except as set forth under "Introduction," Section 10 ("Background of the Offer; Contacts with BeautiControl") and Section 11 ("Purpose of the Offer and the Merger; The Merger Agreement; The Stockholder Agreements; The Employment Agreements; Statutory Requirements; Appraisal Rights; Plans for BeautiControl") in the Offer to Purchase, there have been no material contacts, negotiations or transactions during the past two years that would be required to be disclosed under this Item 5(b) between any of the Purchaser, Parent or any of their respective subsidiaries or, to the best knowledge of the Purchaser and Parent, any of those persons listed on Schedule I to the Offer to Purchase and the Company or its affiliates concerning a merger, consolidation or acquisition, a tender offer or other acquisition of securities, an election of directors or a sale or other transfer of a material amount of the assets of the Company. ITEM 6. PURPOSE OF THE TRANSACTION AND PLANS OR PROPOSALS. The information set forth under "Introduction", Section 1 ("Terms of the Offer"), Section 6 ("Price Range of the Shares; Dividends"), Section 7 ("Possible Effects of the Offer on the Market for the Shares; Nasdaq Listing; Exchange Act Registration; Margin Regulations"); Section 8 ("Certain Information Concerning BeautiControl"), Section 9 ("Certain Information Concerning B-C Merger Corporation and Tupperware Corporation"), Section 10 ("Background of the Offer; Contacts with BeautiControl"), Section 11 ("Purpose of the Offer and the Merger; The Merger Agreement; The Stockholder Agreements; The Employment Agreements; Statutory Requirements; Appraisal Rights; Plans for BeautiControl") and Section 13 ("Dividends and Distributions") is incorporated herein by reference. 3 ITEM 7. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION. The information set forth under Section 12 ("Source and Amount of Funds") in the Offer to Purchase is incorporated herein by reference. ITEM 8. INTEREST IN SECURITIES OF THE SUBJECT COMPANY. (a) The information set forth under Section 9 ("Certain Information Concerning Tupperware and Purchaser") and Schedule I to the Offer to Purchase is incorporated herein by reference. (b) The information set forth under Section 9 ("Certain Information Concerning Tupperware and Purchaser") and Schedule I to the Offer to Purchase is incorporated herein by reference. ITEM 9. PERSONS/ASSETS RETAINED, EMPLOYED, COMPENSATED OR USED. The information set forth under "Introduction", Section 10 ("Background of the Offer; Contacts with BeautiControl") and Section 16 ("Fees and Expenses") in the Offer to Purchase is incorporated herein by reference. ITEM 10. FINANCIAL STATEMENTS. Not applicable. ITEM 11. ADDITIONAL INFORMATION. (a) The information set forth in Section 15 ("Legal Matters; Required Regulatory Approvals") is incorporated herein by reference. (b) The information set forth in the Offer to Purchase and Letter of Transmittal is incorporated herein by reference. ITEM 12. EXHIBITS. (a)(1)(A) Offer to Purchase dated September 20, 2000. (a)(1)(B) Letter of Transmittal. (a)(1)(C) Notice of Guaranteed Delivery. (a)(1)(D) Letter from the Information Agent to Brokers, Dealers, Commercial Banks, Trust Companies and Nominees. 4 (a)(1)(E) Letter to clients for use by Brokers, Dealers, Commercial Banks, Trust Companies and Nominees. (a)(1)(F) Guidelines for Certification of Taxpayer Identification Number on Substitute Form W-9. (a)(1)(G) Form of Summary Advertisement as published on September 20, 2000. (a)(1)(H) Text of press release issued by Parent dated September 20, 2000. (b) None. (d)(1) Agreement and Plan of Merger dated as of September 13, 2000, by and among Tupperware, B-C Merger Corporation and BeautiControl. (d)(2) Form of Employment Agreement - Richard W. Heath (d)(3) Form of Employment Agreement - Jinger L. Heath (d)(4) Form of Stockholder Agreement (d)(5) Confidentiality Agreement between Tupperware and BeautiControl dated as of August 18, 2000. (d)(6) Confidentiality Agreement between Tupperware and BeautiControl (g) None. (h) None. 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. TUPPERWARE CORPORATION By: Thomas M. Roehlk ------------------------- Name: Thomas M. Roehlk Title: Senior Vice President, General Counsel and Secretary B-C MERGER CORPORATION 5 By: Thomas M. Roehlk --------------------------- Name: Thomas M. Roehlk Title: Secretary Date: September 20, 2000 6 EXHIBIT INDEX
EXHIBIT NO. DESCRIPTION - - ----------- ----------- (a)(1)(A) Offer to Purchase dated September 20, 2000. (a)(1)(B) Letter of Transmittal. (a)(1)(C) Notice of Guaranteed Delivery. (a)(1)(D) Letter from the Dealer Manager to Brokers, Dealers, Commercial Banks, Trust Companies and Nominees. (a)(1)(E) Letter to clients for use by Brokers, Dealers, Commercial Banks, Trust Companies and Nominees. (a)(1)(F) Guidelines for Certification of Taxpayer Identification Number on Substitute Form W-9. (a)(1)(G) Form of Summary Advertisement as published on September 20, 2000. (a)(1)(H) Text of press release issued by Parent dated September 20, 2000. (b) None. (d)(1) Agreement and Plan of Merger dated as of September 13, 2000, by and among Tupperware, B-C Merger Corporation and BeautiControl. (d)(2) Form of Employment Agreement - Richard W. Heath (d)(3) Form of Employment Agreement - Jinger L. Heath (d)(4) Form of Stockholder Agreement (d)(5) Confidentiality Agreement between Tupperware and BeautiControl dated as of August 18, 2000. (d)(6) Confidentiality Agreement between Tupperware and BeautiControl. (g) None. (h) None.
7 EX-99.(A)(1)(A) 2 0002.txt OFFER TO PURCHASE Exhibit (a)(1)(A) Offer to Purchase for Cash All Outstanding Shares of Common Stock of BeautiControl, Inc. at $7.00 Net Per Share by B-C Merger Corporation a wholly owned subsidiary of Tupperware Corporation THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT, NEW YORK CITY TIME, ON TUESDAY, OCTOBER 17, 2000, UNLESS THE OFFER IS EXTENDED The Offer is being made pursuant to the terms of an agreement and plan of merger (the "Merger Agreement") dated as of September 13, 2000 among BeautiControl, Tupperware and B-C Merger Corporation. The Offer is conditioned upon, among other things, there being validly tendered and not withdrawn prior to the expiration of the Offer such number of Shares that would constitute at least a majority of the Shares that in the aggregate are outstanding determined on a fully diluted basis (assuming the exercise of all options to purchase Shares, and the conversion or exchange of all securities convertible or exchangeable into Shares outstanding at the expiration date of the Offer), and any waiting period under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, applicable to the purchase of Shares pursuant to the Offer having expired or having been terminated prior to the expiration of the Offer. The Offer is also subject to the other terms and conditions contained in this Offer to Purchase. Please read Sections 1 and 14 which set forth in full the conditions to the Offer. The Board of Directors of BeautiControl has by a unanimous vote approved the Merger Agreement, the Offer and the Merger, has determined that the terms of the Offer and the Merger are fair to, and in the best interests of, BeautiControl's stockholders, and recommends that stockholders of BeautiControl accept the Offer and tender their Shares pursuant to the Offer. A summary of the principal terms of the Offer appears on pages (ii) and (iii). You should read this entire document carefully before deciding whether to tender your shares. -------------- IMPORTANT Any stockholder desiring to tender all or any portion of such stockholder's Shares should either (i) complete and sign the Letter of Transmittal, or a manually signed facsimile thereof, in accordance with the instructions in the Letter of Transmittal, have such stockholder's signature thereon guaranteed if required by Instruction 1 to the Letter of Transmittal, mail or deliver the Letter of Transmittal, or such facsimile, and any other required documents to the Depositary and either deliver the certificates for such Shares to the Depositary along with the Letter of Transmittal or facsimile or deliver such Shares pursuant to the procedure for book-entry transfer set forth in Section 2 prior to the expiration of the Offer, or (ii) request such stockholder's broker, dealer, commercial bank, trust company or other nominee to effect the transaction for such stockholder. A stockholder having Shares registered in the name of a broker, dealer, commercial bank, trust company or other nominee must contact such broker, dealer, commercial bank, trust company or other nominee if such stockholder desires to tender such Shares. A stockholder who desires to tender Shares and whose certificates for such Shares are not immediately available or who cannot comply in a timely manner with the procedure for book-entry transfer described herein, or who cannot deliver all required documents to the Depositary prior to the expiration of the Offer, may tender such Shares by following the procedure for guaranteed delivery set forth in Section 3. Questions and requests for assistance or for additional copies of this Offer to Purchase, the Letter of Transmittal, the Notice of Guaranteed Delivery and all other tender offer materials may be directed to the Information Agent or the Dealer Manager at their addresses and telephone numbers set forth on the back cover of this Offer to Purchase. -------------- The Information Agent for the Offer is: [GEORGESON LOGO] The Dealer Manager for the Offer is: Lazard September 20, 2000 TABLE OF CONTENTS
Page ---- Summary Term Sheet...................................................... ii Introduction............................................................ 1 1.Terms of the Offer................................................ 2 2.Acceptance for Payment and Payment for Shares..................... 4 3.Procedures for Accepting the Offer and Tendering Shares........... 5 4.Withdrawal Rights................................................. 7 5.Material Federal Income Tax Consequences.......................... 8 6.Price Range of the Shares; Dividends.............................. 8 7.Possible Effects of the Offer on the Market for the Shares; Nasdaq Listing; Exchange Act Registration; Margin Regulations............ 9 8.Certain Information Concerning BeautiControl...................... 10 9.Certain Information Concerning Tupperware and Purchaser........... 11 10.Background of the Offer; Contacts with BeautiControl.............. 13 11.Purpose of the Offer and the Merger; The Merger Agreement; The Stockholder Agreements; The Employment Agreements; Statutory Requirements; Appraisal Rights; Plans for BeautiControl........... 15 12.Source and Amount of Funds........................................ 30 13.Dividends and Distributions....................................... 30 14.Conditions of the Offer........................................... 31 15.Legal Matters; Required Regulatory Approvals...................... 32 16.Fees and Expenses................................................. 34 17.Miscellaneous..................................................... 35 Schedule I Directors and Executive Officers of Tupperware and Purchaser Annex A Excerpts from the General Corporation Law of the State of Delaware relating to the Rights of Dissenting Stockholders pursuant to Section 262 thereof
i SUMMARY TERM SHEET This summary term sheet highlights selected information from this Offer to Purchase, and may not contain all of the information that is important to you. To better understand our offer to you and for a complete description of the terms of the offer, you should read this entire Offer to Purchase and the accompanying Letter of Transmittal carefully. Questions or requests for assistance may be directed to the Information Agent at its address and telephone number listed on the last page of this Offer to Purchase. Principal Terms . Tupperware Corporation, through its wholly owned subsidiary, is offering to buy all of the outstanding shares of common stock of BeautiControl, Inc. The tender price for the common stock is $7.00 per share, in cash. Tendering stockholders will not have to pay brokerage fees or commissions. . The offer is the first step in our plan to acquire all of the outstanding shares of BeautiControl common stock, as provided in our merger agreement with BeautiControl. If the offer is successful, we will acquire each remaining share of BeautiControl common stock in a later merger for $7.00 per share in cash. BeautiControl stockholders will not have appraisal rights in the tender offer; however, they will have appraisal rights in the merger. . The offer will expire at 12:00 midnight, New York City time, on Tuesday, October 17, 2000, unless we extend the offer. . If we decide to extend the offer, we will issue a press release giving the new expiration date no later than 9:00 a.m., New York City time, on the first business day after the previously scheduled expiration of the offer. BeautiControl Board Recommendation . By a unanimous vote of all directors, the BeautiControl board of directors has approved the merger agreement, the offer and the merger and determined that the terms of the offer and the merger are fair to, and in the best interests of, BeautiControl stockholders. The BeautiControl board recommends that stockholders of BeautiControl accept the offer and tender their shares in the offer. Conditions We are not required to complete the offer unless: . the number of shares of common stock validly tendered and not withdrawn prior to the expiration of the offer equals at least a majority of the outstanding shares of BeautiControl common stock, assuming the exercise of all options to purchase shares of common stock and the conversion or exchange of all securities convertible or exchangeable into shares of common stock, and . we receive U.S. federal antitrust clearance for the acquisition of shares. Other conditions to the offer are described on pages 31 and 32. The offer is not conditioned on our obtaining financing. Stockholder and Employment Agreements . We have entered into stockholder agreements with certain stockholders of BeautiControl. Pursuant to those agreements, those stockholders have agreed to tender a total of 2,848,774 shares of BeautiControl common stock in the offer, constituting approximately 39.4% of the total number of shares of BeautiControl common stock issued and outstanding as of September 11, 2000. The stockholders have also agreed that they will not transfer BeautiControl shares subject to the agreements prior to the termination of the stockholder agreements and that they will vote those shares in favor of the merger and against certain competing transactions. You can find a more complete description of the stockholder agreements on pages 24 and 25. In addition, BeautiControl has advised us that stockholders owning an additional 621,828 shares of common stock of BeautiControl, constituting an additional approximately 8.6% of the total number of shares of BeautiControl common stock issued and outstanding as of September 11, 2000, have agreed to tender their shares in the offer. . Richard W. Heath, the Chief Executive Officer of BeautiControl and Jinger L. Heath, the Chairman of the Board of Directors of BeautiControl, have agreed to enter into employment agreements whereby they will continue to be employed by BeautiControl after the completion of the merger. The employment agreements are described on pages 25 and 26. In addition, Mr. and Mrs. Heath each have agreed to purchase shares of Tupperware following the merger. ii Procedures for Tendering If you wish to accept the offer, this is what you must do: . If you are a record holder of BeautiControl shares (i.e., a stock certificate has been issued to you), you must complete and sign the enclosed letter of transmittal and send it with your stock certificate to the depositary for the offer or follow the procedures described in the offer for book-entry transfer. These materials must reach the depositary before the offer expires. Detailed instructions are contained in the letter of transmittal and on pages 5 through 7. . If you are a record holder but your stock certificate is not available or you cannot deliver it to the depositary before the offer expires, you may be able to tender your shares using the enclosed notice of guaranteed delivery. Please call our information agent, Georgeson Shareholder Communications at (800) 223-2064 for assistance. See page 6 for further details. . If you hold your shares through a broker or bank, you should contact your broker or bank and give instructions that your shares be tendered. Withdrawal Rights . If, after tendering your shares in the offer, you decide that you do NOT want to accept the offer, you can withdraw your shares by instructing the depositary before the offer expires. If you tendered by giving instructions to a broker or bank, you must instruct the broker or bank to arrange for the withdrawal of your shares. See pages 7 and 8 for further details. Recent BeautiControl Trading Prices; Subsequent Trading . The last sale price for BeautiControl common stock was: $3.75 on September 12, 2000, the last day on which there was a reported trade of BeautiControl common stock before we announced the execution of the merger agreement with BeautiControl, and $6.9063 on September 19, 2000, the last trading day before the commencement of the offer. Before deciding whether to tender, you should obtain a current market quotation for the shares. . If the offer is successful, we expect BeautiControl common stock to be traded on the Nasdaq National Market until the time of the merger, although we expect trading volume to be below its pre-offer level. Further Information If you have questions about the offer, you can call: Our Information Agent: [GEORGESON LOGO] 17 State Street, 10th Floor New York, New York 10004 Banks and Brokers Call Collect: (212) 440-9800 All Others Call Toll-Free: (800) 223-2064 Our Dealer Manager: Lazard 30 Rockefeller Plaza New York, New York 10020 iii To: All holders of shares of common stock of BeautiControl, Inc.: INTRODUCTION B-C Merger Corporation, a Delaware corporation ("Purchaser") and a wholly owned subsidiary of Tupperware Corporation, a Delaware corporation ("Tupperware"), is offering to purchase all of the outstanding shares (the "Shares") of common stock, $.10 par value per share, of BeautiControl, Inc., a Delaware corporation ("BeautiControl"), at a purchase price of $7.00 per share, net to the seller in cash, without interest thereon (the "Offer Price"), on the terms and subject to the conditions set forth in this Offer to Purchase and in the related Letter of Transmittal (which, as amended or supplemented from time to time, collectively constitute the "Offer"). As used herein, "we" or "our" refers to Tupperware and Purchaser. You will not be required to pay brokerage fees or commissions or, except as described in Instruction 6 of the Letter of Transmittal, stock transfer taxes on the purchase of Shares in the Offer. However, if you do not complete and sign the Substitute Form W-9 that is included in the Letter of Transmittal, you may be subject to a required backup federal income tax withholding of 31% of the gross proceeds payable to you. See Section 3. We will pay all charges and expenses of Lazard Freres & Co. LLC, as Dealer Manager, ChaseMellon Shareholder Services, L.L.C., as Depositary, and Georgeson Shareholder Communications, Inc., as Information Agent, incurred in connection with the Offer. See Section 16. The Board of Directors of BeautiControl (the "BeautiControl Board") has by a unanimous vote approved the Merger Agreement (as defined below), the Offer and the Merger (as defined below), has determined that the terms of the Offer and the Merger are fair to, and in the best interests of, BeautiControl's stockholders, and recommends that stockholders of BeautiControl accept the Offer and tender their Shares pursuant to the Offer. We are not required to purchase any Shares unless there shall have been validly tendered and not withdrawn prior to the expiration of the Offer such number of Shares that would constitute at least a majority of the Shares that in the aggregate are outstanding determined on a fully diluted basis (assuming the exercise of all options to purchase Shares and the conversion or exchange of all securities convertible or exchangeable into Shares outstanding at the expiration date of the Offer) (the "Minimum Condition"). We reserve the right (subject to the applicable rules and regulations of the Securities and Exchange Commission (the "SEC") and to the prior written consent of BeautiControl), which we presently have no intention of exercising, to waive or reduce the Minimum Condition and to elect to purchase a smaller number of Shares. The Offer is also subject to certain other terms and conditions. See Sections 1, 14, and 15 below. We are making the Offer under the Agreement and Plan of Merger (the "Merger Agreement"), dated as of September 13, 2000, among BeautiControl, Tupperware and Purchaser. Following the consummation of the Offer and the satisfaction or waiver of certain conditions, Purchaser will merge with and into BeautiControl (the "Merger"), with BeautiControl continuing as the surviving corporation (the "Surviving Corporation"). In the Merger, each Share issued and outstanding immediately prior to the Effective Time (as defined herein) (other than any Shares that are held in the treasury of BeautiControl or by any wholly owned subsidiary of BeautiControl and any Shares owned by Tupperware or any wholly owned subsidiary of Tupperware and other than Shares held by stockholders who properly perfect appraisal rights under the Delaware General Corporation Law (the "DGCL")) will be converted into the right to receive $7.00 in cash (the "Merger Consideration"). Section 11 below contains a more detailed description of the Merger Agreement. Section 5 below describes the material federal income tax consequences of the sale or exchange of Shares in the Offer and the Merger. Hoak Breedlove Wesneski & Co. ("HBW"), BeautiControl's financial advisor, has delivered to the BeautiControl Board a written opinion that, as of the date of the opinion, the $7.00 per Share consideration in cash to be received by the holders of Shares in the Offer and the Merger was fair from a financial point of view to such holders. A copy of the HBW opinion is included with BeautiControl's Solicitation/Recommendation 1 Statement on Schedule 14D-9, which is being mailed with this Offer to Purchase. Stockholders are urged to read the opinion in its entirety for a description of the assumptions made, matters considered and limitations of the review undertaken by HBW. The approval and adoption of the Merger Agreement by BeautiControl requires the affirmative vote of holders of a majority of the outstanding Shares. As a result, if the Minimum Condition and the other conditions to the Offer are satisfied and the Offer is completed, Tupperware and its subsidiaries will own a sufficient number of Shares to ensure that the Merger Agreement will be approved by BeautiControl's stockholders. BeautiControl has informed us that, as of September 11, 2000, there were (a) 7,231,448 Shares issued and outstanding, and (b) 1,637,600 Shares subject to issuance under outstanding options. If Purchaser acquires at least 4,434,525 Shares in the Offer, Purchaser would own a majority of such Shares and would own a sufficient number of Shares to approve the Merger without the affirmative vote of any other stockholder. Stockholders of BeautiControl owning a total of 2,848,774 Shares, constituting approximately 39.4% of the total number of Shares outstanding as of September 11, 2000, have entered into stockholder agreements pursuant to which they have agreed to tender those shares pursuant to the Offer. See Section 11 below. BeautiControl has advised us that each of its directors and each of its executive officers who had knowledge of the transaction prior to the execution of the Merger Agreement intends to tender all Shares that he or she owns in the Offer. BeautiControl has advised us that, in addition to the shareholders who have entered into stockholder agreements and those directors and executive officers, stockholders owning an additional 621,828 Shares, constituting approximately 8.6% of the total number of Shares outstanding at September 11, 2000, have agreed to tender their Shares in the Offer. Richard W. Heath, the Chief Executive Officer of BeautiControl, and Jinger L. Heath, the Chairman of the Board of Directors of BeautiControl, have agreed to enter into employment agreements with Purchaser and have agreed to purchase shares of Tupperware following the merger. See Section 11 below. The Offer is conditioned upon the fulfillment of the conditions described in Section 14 below. The Offer will expire at 12:00 midnight, New York City time, on Tuesday, October 17, 2000, unless we extend it. This Offer to Purchase and the related Letter of Transmittal contain important information which you should read carefully before you make any decision with respect to the Offer. 1. Terms of the Offer. 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 extension or amendment), we will purchase all Shares validly tendered and not withdrawn in accordance with the procedures set forth in Section 3 of this Offer to Purchase on or prior to the Expiration Date. The term "Expiration Date" means 12:00 midnight, New York City time, on Tuesday, October 17, 2000. We may terminate or withdraw the Offer or extend the offer from time to time if, at the then- scheduled expiration date of the Offer, the conditions to the Offer shall have not been satisfied or earlier waived. We may also extend the Offer for any period required by applicable rules, regulations, interpretations or positions of the SEC or its staff applicable to the Offer or on one or more occasions for an aggregate period of not more than fifteen business days. If we extend the Offer under any of these circumstances, the term "Expiration Date" will mean the time and date at which the Offer, as so extended, will expire. Upon the terms and subject to the conditions of the Offer, we will purchase, as soon as permitted under the terms of the Offer, all Shares validly tendered and not withdrawn prior to the expiration of the Offer. If, at the Expiration Date, the conditions to the Offer described in Section 14 have not been satisfied or earlier waived, then, subject to the provisions of the Merger Agreement, we may extend the Expiration Date for an additional period or periods of time by giving oral or written notice of the extension to the Depositary. During any such extension, all Shares previously tendered and not withdrawn will remain subject to the Offer and subject to your right to withdraw Shares. See Section 4. 2 Subject to the applicable regulations of the SEC and the terms of the Merger Agreement, we also reserve the right, in our sole discretion, at any time or from time to time, to: (a) delay purchase of or, regardless of whether we previously purchased any Shares, payment for any Shares pending receipt of any regulatory or governmental approvals or expiration of the applicable regulatory or governmental waiting period specified in Section 15; (b) terminate the Offer (whether or not any Shares have previously been purchased) if any condition referred to in Section 14 has not been satisfied or upon the occurrence of any event specified in Section 14; and (c) except as set forth in the Merger Agreement, waive any condition or otherwise amend the Offer in any respect, in each case, by giving oral or written notice of the delay, termination, waiver or amendment to the Depositary and, other than in the case of any waiver, by making a public announcement thereof. We acknowledge (a) that Rule 14e-1(c) under the Exchange Act requires us to pay the consideration offered or return the Shares tendered promptly after the termination or withdrawal of the Offer and (b) that we may not delay purchase of, or payment for (except as provided in clause (a) of the preceding sentence), any Shares upon the occurrence of any event specified in Section 14 without extending the period of time during which the Offer is open. The rights we reserve in the preceding paragraph are in addition to our rights described in Section 14. Any extension, delay, termination or amendment of the Offer will be followed as promptly as practicable by a public announcement. An announcement in the case of an extension will be made no later than 9:00 a.m., New York City time, on the next business day after the previously scheduled Expiration Date. Without limiting the manner in which we may choose to make any public announcement, subject to applicable law (including Rules14d-4(d) and 14d-6(c) under the Exchange Act, which require that material changes be promptly disseminated to holders of Shares), we will have no obligation to publish, advertise or otherwise communicate any such public announcement other than by issuing a release to the Dow Jones News Service. In the Merger Agreement, we have agreed that, without the prior written consent of BeautiControl, we will not (a) reduce the number of Shares subject to the Offer, (b) reduce the Offer Price, (c) impose conditions to the Offer other than those set forth in Section 14, or modify the conditions to the Offer (other than to waive any condition to the Offer to the extent permitted by the Merger Agreement), (d) except as provided in the Merger Agreement, extend the Offer or (e) change the form of consideration payable in the Offer. If we make a material change in the terms of the Offer, or if we waive a material condition to the Offer, we will extend the Offer and disseminate additional tender offer materials to the extent required by Rules14d-4(d), 14d- 6(c) and 14e-1 under the Exchange Act. The minimum period during which a tender offer must remain open following material changes in the terms of the offer, other than a change in price or a change in percentage of securities sought, depends upon the facts and circumstances, including the materiality of the changes. In the SEC's view, an offer should remain open for a minimum of five business days from the date the material change is first published, sent or given to stockholders, and, if material changes are made with respect to information that approaches the significance of price and the percentage of securities sought, a minimum of 10 business days may be required to allow for adequate dissemination and investor response. With respect to a change in price, a minimum 10 business-day period from the date of the change is generally required to allow for adequate dissemination to stockholders. Accordingly, if prior to the Expiration Date, we decrease the number of Shares being sought, or increase or decrease the consideration offered pursuant to the Offer, and if the Offer is scheduled to expire at any time earlier than the period ending on the tenth business day from the date that notice of the increase or decrease is first published, sent or given to holders of Shares, we will extend the Offer at least until the expiration of such period of ten business days. For purposes of the Offer, a "business day" means any day other than a Saturday, Sunday or a federal holiday and consists of the time period from 12:01 a.m. through 12:00 midnight, New York City time. The Offer is conditioned upon, among other things, the satisfaction of the Minimum Condition. Consummation of the Offer is also conditioned upon expiration or termination of all waiting periods imposed by the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, and the regulations 3 thereunder (the "HSR Act"), and the other conditions set forth in Section 14. We reserve the right (but are not obligated), in accordance with applicable rules and regulations of the SEC and with the Merger Agreement, to waive any or all of those conditions. If, by the Expiration Date, any or all of those conditions have not been satisfied, we may, without the consent of BeautiControl, elect to (a) extend the Offer and, subject to applicable withdrawal rights, retain all tendered Shares until the expiration of the Offer, as extended, subject to the terms of the Offer and the Merger Agreement; (b) waive all of the unsatisfied conditions (other than the Minimum Condition) and, subject to complying with applicable rules and regulations of the SEC, accept for payment all Shares so tendered; or (c) terminate the Offer and not accept for payment any Shares and return all tendered Shares to tendering stockholders. In the event that we waive any condition set forth in Section 14, the SEC may, if the waiver is deemed to constitute a material change to the information previously provided to the stockholders, require that the Offer remain open for an additional period of time and/or that we disseminate information concerning such waiver. There will not be a subsequent offering period after the expiration of the Offer. BeautiControl has provided us with its stockholder lists and security position listings for the purpose of disseminating the Offer to holders of Shares. We will mail this Offer to Purchase, the related Letter of Transmittal and other relevant materials to record holders of Shares and we will furnish the materials to brokers, dealers, commercial banks, trust companies and similar persons whose names, or the names of whose nominees, appear on the securityholder lists or, if applicable, who are listed as participants in a clearing agency's security position listing, for forwarding to beneficial owners of Shares. 2. Acceptance for Payment and Payment for Shares. Upon the terms and subject to the conditions of the Offer (including, if we extend or amend the Offer, the terms and conditions of the Offer as so extended or amended), we will purchase, by accepting for payment, and will pay for, all Shares validly tendered and not withdrawn (as permitted by Section 4) prior to the Expiration Date promptly after the later of (a) the Expiration Date and (b) the satisfaction or waiver of the conditions to the Offer set forth in Section 14. In addition, subject to applicable rules of the SEC, we reserve the right to delay acceptance for payment of, or payment for, Shares pending receipt of any regulatory or governmental approvals specified in Section 15. For information with respect to regulatory approvals that we are required to obtain prior to the completion of the Offer, see Section 15. In all cases, we will pay for Shares purchased in the Offer only after timely receipt by the Depositary of (a) certificates representing the Shares ("Share Certificates") or timely confirmation (a "Book-Entry Confirmation") of the book-entry transfer of the Shares into the Depositary's account at The Depository Trust Company (the "Book-Entry Transfer Facility") pursuant to the procedures set forth in Section 3; (b) the appropriate Letter of Transmittal (or a facsimile), properly completed and duly executed, with any required signature guarantees or an Agent's Message (as defined below) in connection with a book-entry transfer; and (c) any other documents that the Letter of Transmittal requires. The term "Agent's Message" means a message transmitted by the Book-Entry Transfer Facility to, and received by, the Depositary and forming a part of a Book-Entry Confirmation, which states that the Book-Entry Transfer Facility has received an express acknowledgment from the participant in the Book-Entry Transfer Facility tendering the Shares which are the subject of the Book-Entry Confirmation that the participant has received and agrees to be bound by the terms of the Letter of Transmittal and that we may enforce that agreement against the participant. For purposes of the Offer, we will be deemed to have accepted for payment, and purchased, Shares validly tendered and not withdrawn if, as and when we give oral or written notice to the Depositary of our acceptance of the Shares for payment pursuant to the Offer. In all cases, upon the terms and subject to the conditions of the Offer, payment for Shares purchased pursuant to the Offer will be made by deposit of the purchase price for the Shares with the Depositary, which will act as agent for tendering stockholders for the purpose of receiving payment from us and transmitting payment to validly tendering stockholders. 4 Under no circumstances will we pay interest on the purchase price for Shares, regardless of any extension of the Offer or any delay in making such payment. If we do not purchase any tendered Shares pursuant to the Offer for any reason, or if you submit Share Certificates representing more Shares than you wish to tender, we will return Share Certificates representing unpurchased or untendered Shares, without expense to you (or, in the case of Shares delivered by book-entry transfer into the Depositary's account at the Book-Entry Transfer Facility pursuant to the procedures set forth in Section 3, the Shares will be credited to an account maintained within the Book-Entry Transfer Facility), as promptly as practicable following the expiration, termination or withdrawal of the Offer. If, prior to the Expiration Date, we increase the price offered to holders of Shares in the Offer, we will pay the increased price to all holders of Shares that we purchase in the Offer, whether or not the Shares were tendered before the increase in price. We reserve the right, subject to the provisions of the Merger Agreement, to transfer or assign, in whole or from time to time in part, to one or more of our wholly owned subsidiaries the right to purchase all or any portion of the Shares tendered in the Offer, but any such transfer or assignment will not relieve us of our obligations under the Offer or prejudice your rights to receive payment for Shares validly tendered and accepted for payment in the Offer. 3. Procedures for Accepting the Offer and Tendering Shares. Valid Tender of Shares. Except as set forth below, in order for you to tender Shares in the Offer, the Depositary must receive the Letter of Transmittal (or a facsimile), properly completed and signed, together with any required signature guarantees or an Agent's Message in connection with a book- entry delivery of Shares and any other documents that the Letter of Transmittal requires at one of its addresses set forth on the back cover of this Offer to Purchase on or prior to the Expiration Date and either (a) you must deliver Share Certificates representing tendered Shares to the Depositary or you must cause your Shares to be tendered pursuant to the procedure for book-entry transfer set forth below and the Depositary must receive Book-Entry Confirmation, in each case on or prior to the Expiration Date, or (b) you must comply with the guaranteed delivery procedures set forth below. The method of delivery of Share Certificates, the Letter of Transmittal and all other required documents, including delivery through the Book-Entry Transfer Facility, is at your option and sole risk, and delivery will be considered made only when the Depositary actually receives the Share Certificates. If delivery is by mail, registered mail with return receipt requested, properly insured, is recommended. In all cases, you should allow sufficient time to ensure timely delivery. Book-Entry Transfer. The Depositary will make a request to establish an account with respect to the Shares at the Book-Entry Transfer Facility for purposes of the Offer within two business days after the date of this Offer to Purchase. Any financial institution that is a participant in the system of the Book-Entry Transfer Facility may make book-entry delivery of Shares by causing the Book-Entry Transfer Facility to transfer the Shares into the Depositary's account at the Book-Entry Transfer Facility in accordance with the Book-Entry Transfer Facility's procedures. However, although Shares may be delivered through book-entry transfer into the Depositary's account at the Book-Entry Transfer Facility, the Depositary must receive the Letter of Transmittal (or facsimile), properly completed and signed, with any required signature guarantees, or an Agent's Message in connection with a book-entry transfer, and any other required documents, at one of its addresses set forth on the back cover of this Offer to Purchase on or before the Expiration Date, or you must comply with the guaranteed delivery procedure set forth below. Delivery of documents to the Book-Entry Transfer Facility in accordance with the Book-Entry Transfer Facility's procedures does not constitute delivery to the Depositary. 5 Signature Guarantees. A bank, broker, dealer, credit union, savings association or other entity which is a member in good standing of the Securities Transfer Agents Medallion Program (an "Eligible Institution") must guarantee signatures on all Letters of Transmittal, unless the Shares tendered are tendered (a) by a registered holder of Shares who has not completed either the box labeled "Special Payment Instructions" or the box labeled "Special Delivery Instructions" on the Letter of Transmittal or (b) for the account of an Eligible Institution. See Instruction 1 of the Letter of Transmittal. If the Share Certificates are registered in the name of a person other than the signer of the Letter of Transmittal, or if payment is to be made to, or Share Certificates for unpurchased Shares are to be issued or returned to, a person other than the registered holder, then the tendered certificates must be endorsed or accompanied by appropriate stock powers, signed exactly as the name or names of the registered holder or holders appear on the certificates, with the signatures on the certificates or stock powers guaranteed by an Eligible Institution as provided in the Letter of Transmittal. See Instructions 1 and 5 of the Letter of Transmittal. If the Share Certificates are forwarded separately to the Depositary, a properly completed and duly executed Letter of Transmittal (or facsimile) must accompany each delivery of Share Certificates. Guaranteed Delivery. If you want to tender Shares in the Offer and your Share Certificates are not immediately available or time will not permit all required documents to reach the Depositary on or before the Expiration Date or the procedures for book-entry transfer cannot be completed on time, your Shares may nevertheless be tendered if you comply with all of the following guaranteed delivery procedures: (a) your tender is made by or through an Eligible Institution; (b) the Depositary receives, as described below, a properly completed and signed Notice of Guaranteed Delivery, substantially in the form made available by us, on or before the Expiration Date; and (c) the Depositary receives the Share Certificates (or a Book-Entry Confirmation) representing all tendered Shares, in proper form for transfer together with a properly completed and duly executed Letter of Transmittal (or facsimile), with any required signature guarantees (or, in the case of a book-entry transfer, an Agent's Message) and any other documents required by the Letter of Transmittal within three trading days after the date of execution of the Notice of Guaranteed Delivery. A "trading day" is any day on which the New York Stock Exchange is open for business. You may deliver the Notice of Guaranteed Delivery by hand, mail or facsimile transmission to the Depositary. The Notice of Guaranteed Delivery must include a guarantee by an Eligible Institution in the form set forth in the Notice of Guaranteed Delivery. Notwithstanding any other provision of the Offer, we will pay for Shares only after timely receipt by the Depositary of Share Certificates for, or of Book-Entry Confirmation with respect to, the Shares, a properly completed and duly executed Letter of Transmittal (or facsimile thereof), together with any required signature guarantees (or, in the case of a book-entry transfer, an Agent's Message) and any other documents required by the appropriate Letter of Transmittal. Accordingly, payment might not be made to all tendering stockholders at the same time, and will depend upon when the Depositary receives Share Certificates or Book-Entry Confirmation that the Shares have been transferred into the Depositary's account at the Book-Entry Transfer Facility. Backup Federal Income Tax Withholding. Under the backup federal income tax withholding laws applicable to certain stockholders (other than certain exempt stockholders, including, among others, all corporations and certain foreign individuals), the Depositary may be required to withhold 31% of the amount of any payments made to those stockholders pursuant to the Offer. To prevent backup federal income tax withholding, you must provide the Depositary with your correct taxpayer identification number and certify that you are not subject to backup federal income tax withholding by completing the Substitute Form W-9 included in the Letter of Transmittal. See Instruction 8 of the Letter of Transmittal. 6 Appointment as Proxy. By executing the Letter of Transmittal, you irrevocably appoint our designees, and each of them, as your agents, attorneys- in-fact and proxies, with full power of substitution, in the manner set forth in the Letter of Transmittal, to the full extent of your rights with respect to the Shares that you tender and that we accept for payment and with respect to any and all other Shares and other securities or rights issued or issuable in respect of those Shares on or after the date of this Offer to Purchase. All such powers of attorney and proxies will be considered irrevocable and coupled with an interest in the tendered Shares. This appointment will be effective when we accept your Shares for payment in accordance with the terms of the Offer. Upon such acceptance for payment, all other powers of attorney and proxies given by you with respect to your Shares and such other securities or rights prior to such payment will be revoked, without further action, and no subsequent powers of attorney and proxies may be given by you (and, if given, will not be deemed effective). Our designees will, with respect to the Shares and such other securities and rights for which the appointment is effective, be empowered to exercise all your voting and other rights as they in their sole discretion may deem proper at any annual or special meeting of BeautiControl's stockholders, or any adjournment or postponement thereof, or by consent in lieu of any such meeting or otherwise. In order for Shares to be deemed validly tendered, immediately upon the acceptance for payment of such Shares, we or our designee must be able to exercise full voting, consent and other rights with respect to such Shares and other securities, including voting at any meeting of stockholders. Determination of Validity. All questions as to the form of documents and the validity, eligibility (including time of receipt) and acceptance for payment of any tender of Shares will be determined by us, in our sole discretion, which determination will be final and binding on all parties. We reserve the absolute right to reject any or all tenders determined by us not to be in proper form or the acceptance of or payment for which may, in the opinion of our counsel, be unlawful. We also reserve the absolute right to waive any of the conditions of the Offer (subject, in the case of the Minimum Condition, to the prior written consent of BeautiControl) or any defect or irregularity in any tender of Shares of any particular stockholder whether or not similar defects or irregularities are waived in the case of other stockholders. Our interpretation of the terms and conditions of the Offer will be final and binding. No tender of Shares will be deemed to have been validly made until all defects and irregularities with respect to the tender have been cured or waived by us. None of BeautiControl, Purchaser or any of their affiliates or assigns, the Dealer Manager, the Depositary, the Information Agent or any other person or entity will be under any duty to give any notification of any defects or irregularities in tenders or incur any liability for failure to give any such notification. Our acceptance for payment of Shares tendered pursuant to any of the procedures described above will constitute a binding agreement between us and you upon the terms and subject to the conditions of the Offer. 4. Withdrawal Rights. Except as described in this Section 4, tenders of Shares made in the Offer are irrevocable. You may withdraw Shares that you have previously tendered in the Offer at any time on or before the Expiration Date and, unless theretofore accepted for payment as provided herein, may also be withdrawn at any time after November 20, 2000. If, for any reason, acceptance for payment of any Shares tendered in the Offer is delayed, or we are unable to accept for payment or pay for Shares tendered in the Offer, then, without prejudice to our rights set forth in this document, the Depositary may, nevertheless, on our behalf, retain Shares that you have tendered, and you may not withdraw your Shares except to the extent that you are entitled to and duly exercise withdrawal rights as described in this Section 4. Any such delay will be by an extension of the Offer to the extent required by law. In order for your withdrawal to be effective, you must deliver a written or facsimile transmission notice of withdrawal to the Depositary at one of its addresses set forth on the back cover of this Offer to Purchase. Any 7 such notice of withdrawal must specify your name, the number of Shares that you want to withdraw, and (if Share Certificates have been tendered) the name of the registered holder of the Shares as shown on the Share Certificate, if different from your name. If Share Certificates have been delivered or otherwise identified to the Depositary, then prior to the physical release of such certificates, you must submit the serial numbers shown on the particular certificates evidencing the Shares to be withdrawn and an Eligible Institution must guarantee the signature on the notice of withdrawal, except in the case of Shares tendered for the account of an Eligible Institution. If Shares have been tendered pursuant to the procedures for book-entry transfer set forth in Section 3, the notice of withdrawal must also specify the name and number of the account at the appropriate Book-Entry Transfer Facility to be credited with the withdrawn Shares, in which case a notice of withdrawal will be effective if delivered to the Depositary by any method of delivery described in the first sentence of this paragraph. You may not rescind a withdrawal of Shares. Any Shares that you withdraw will be considered not validly tendered for purposes of the Offer, but you may tender your Shares again at any time before the Expiration Date by following any of the procedures described in Section 3. All questions as to the form and validity (including time of receipt) of notices of withdrawal will be determined by us, in our sole discretion, which determination will be final and binding. None of BeautiControl, Purchaser or any of their affiliates or assigns, the Dealer Manager, the Depositary, the Information Agent or any other person or entity will be under any duty to give any notification of any defects or irregularities in any notice of withdrawal or incur any liability for failure to give any such notification. 5. Material Federal Income Tax Consequences. Your receipt of cash for Shares in the Offer or the Merger will be a taxable transaction for federal income tax purposes and may also be a taxable transaction under applicable state, local, foreign and other tax laws. For federal income tax purposes, if you sell or exchange your Shares for cash in the Offer or the Merger, you would generally recognize gain or loss equal to the difference between the amount of cash received and your tax basis for the Shares that you sold or exchanged. That gain or loss will be capital gain or loss (assuming you hold your Shares as a capital asset) and any such capital gain or loss will be long term if, as of the date of sale or exchange, you have held the Shares for more than one year or will be short term if, as of such date, you have held the Shares for one year or less. The discussion above may not be applicable to certain types of stockholders, including stockholders who acquired Shares through the exercise of employee stock options or otherwise as compensation, individuals who are not citizens or residents of the United States, foreign corporations, or entities that are otherwise subject to special tax treatment under the Internal Revenue Code (such as insurance companies, tax-exempt entities and regulated investment companies). The federal income tax discussion set forth above is included for general information only. You are urged to consult your tax advisor with respect to the specific tax consequences to you of the Offer and Merger, including federal, state, local and foreign tax consequences. 6. Price Range of the Shares; Dividends According to BeautiControl's Annual Report on Form 10-K for the fiscal year ended November 30, 1999, the Shares are principally traded on the Nasdaq National Market ("Nasdaq") under the symbol "BUTI." The following table sets forth, for the periods indicated, the reported high and low sale prices for the Shares on Nasdaq, as reported in BeautiControl's Form 10-K with respect to periods occurring in fiscal 1999 and 1998 and published financial sources, with respect to periods occurring in the current fiscal year.
Fiscal 2000 Fiscal 1999 Fiscal 1998 ----------------- ------------- -------------- High Low High Low High Low -------- -------- ------ ------ ------- ------ First Quarter.............. $ 3.1875 $ 1.7500 $6.625 $5.500 $ 8.625 $7.125 Second Quarter............. 4.3750 1.8750 6.000 4.313 10.250 8.125 Third Quarter*............. 7.0000 3.0000 4.875 3.625 10.000 6.125 Fourth Quarter............. 5.250 2.750 8.000 5.375
-------- *Through September 19, 2000 8 During fiscal 1999, cash dividends were paid at a rate of $.105 per Share for the first and second fiscal quarters and $.015 per Share for the third fiscal quarter. No cash dividends were paid for the fourth fiscal quarter of 1999 or for any quarter in fiscal 2000. Cash dividends were paid in each fiscal quarter of 1998 at a rate of $.105 per Share. Under the terms of the Merger Agreement, BeautiControl is not permitted to declare or pay dividends with respect to the Shares without the prior written consent of Tupperware. On September 12, 2000, the last day on which there was a reported trade of Shares prior to the announcement of the execution of the Merger Agreement, the reported closing price per Share on Nasdaq was $3.75. On September 19, 2000, the last full day of trading prior to the commencement of the Offer, the reported closing price per Share on Nasdaq was $6.9063. Stockholders are urged to obtain current market quotations for the Shares. 7. Possible Effects of the Offer on the Market for the Shares; Nasdaq Listing; Exchange Act Registration; Margin Regulations. Possible Effects of the Offer on the Market for the Shares. The purchase of Shares pursuant to the Offer will reduce the number of Shares that might otherwise trade publicly and could adversely affect the liquidity and market value of the remaining Shares held by the public. The purchase of Shares pursuant to the Offer can also be expected to reduce the number of holders of Shares. We cannot predict whether the reduction in the number of Shares that might otherwise trade publicly would have an adverse or beneficial effect on the market price for, or marketability of, the Shares or whether it would cause future market prices to be greater or less than the Offer Price. Nasdaq Quotation. Depending upon the number of Shares purchased pursuant to the Offer, the Shares may no longer meet the standards for continued inclusion in Nasdaq, which requires that an issuer either (i) have at least 750,000 publicly held shares, held by at least 400 round lot stockholders, with a market value of at least $5,000,000, have at least two market makers, have net tangible assets of at least $4 million, and have a minimum bid price of $1 or (ii) have at least 1,100,000 publicly held shares, held by at least 400 round lot stockholders, with a market value of at least $15,000,000, have a minimum bid price of $5, have at least 4 market makers and have either (A) a market capitalization of at least $50,000,000 or (B) total assets and revenues each of at least $50,000,000. If the Shares are no longer eligible for Nasdaq quotation, quotations might still be available from other sources. The extent of the public market for the Shares and the availability of such quotations would, however, depend upon the number of holders of such Shares remaining at such time, the interest in maintaining a market in such Shares on the part of securities firms, the possible termination of registration of such Shares under the Exchange Act as described below and other factors. We cannot predict whether the reduction in the number of Shares that might otherwise trade publicly would have an adverse or beneficial effect on the market price for or marketability of the Shares or whether it would cause future market prices to be greater or less than the Offer Price. Exchange Act Registration. The Shares are currently registered under the Exchange Act. The purchase of the shares pursuant to the Offer may result in the Shares becoming eligible for deregistration under the Exchange Act. Registration of the Shares may be terminated upon application by BeautiControl to the SEC if the Shares are not listed on a "national securities exchange" and there are fewer than 300 record holders of Shares. Termination of registration of the Shares under the Exchange Act would substantially reduce the information that BeautiControl would be required to furnish to its stockholders and the SEC and would make certain provisions of the Exchange Act, such as the short-swing profit recovery provisions of Section 16(b) and the requirements of furnishing a proxy statement in connection with stockholders' meetings pursuant to Section 14(a) or 14(c) and the related requirement of an annual report, no longer applicable to BeautiControl. If the 9 Shares are no longer registered under the Exchange Act, the requirements of Rule 13e-3 under the Exchange Act with respect to "going private" transactions would no longer be applicable to BeautiControl. In addition, the ability of "affiliates" of BeautiControl and persons holding "restricted securities" of BeautiControl to dispose of such securities pursuant to Rule 144 promulgated under the Securities Act, may be impaired or, with respect to certain persons, eliminated. If registration of the shares of Common Stock under the Exchange Act were terminated, the Shares would no longer be eligible for stock exchange listing or Nasdaq reporting. We believe that the purchase of the Shares pursuant to the Offer may result in the Shares becoming eligible for deregistration under the Exchange Act, and it would be our intention to cause BeautiControl to make an application for termination of registration of the shares of Common Stock as soon as possible after successful completion of the Offer if the Shares are then eligible for such termination. If registration of the Shares is not terminated prior to the Merger, then the registration of the Shares under the Exchange Act and the listing of the Shares on the Nasdaq will be terminated following the completion of the Merger. Margin Regulations. The Shares are currently "margin securities" under the regulations of the Board of Governors of the Federal Reserve System, which have the effect, among other things, of allowing brokers to extend credit on the collateral of the Shares for the purpose of buying, carrying or trading in securities ("Purpose Loans"). Depending upon factors such as the number of record holders of the Shares and the number and market value of publicly held Shares, following the purchase of Shares pursuant to the Offer, the Shares might no longer constitute "margin securities" for purposes of the Federal Reserve Board's margin regulations and, therefore, could no longer be used as collateral for Purpose Loans made by brokers. In addition, if registration of the Shares under the Exchange Act were terminated, the Shares would no longer constitute "margin securities." 8. Certain Information Concerning BeautiControl BeautiControl's principal executive offices are located at 2121 Midway Road, Carrollton, Texas 75006. Its telephone number at such offices is (972) 458- 0601. The following description of BeautiControl and its business has been taken from BeautiControl's Annual Report on Form 10-K for the fiscal year ended November 30, 1999 and is qualified in its entirety by reference to BeautiControl's Form 10-K: BeautiControl is a manufacturer and direct seller of skin care, cosmetics, nutritional supplements, nail care, toiletries, fragrances, beauty supplements and related products. BeautiControl sells its products through independent sales persons called "Consultants" (or "Distributors"), who purchase the products from BeautiControl and then sell them directly to consumers in the home or workplace. BeautiControl also sells its products over the Internet. Products and image services are provided to clients via an independent sales force in the United States, Taiwan, Hong Kong, Canada and Puerto Rico. BeautiControl's three primary geographic operating segments consist of the following: North America which includes the United States and Canada, Asia Pacific which includes Taiwan and Hong Kong and Eventus International which currently operates in the United States. BeautiControl files annual, quarterly and special reports, proxy statements and other information with the SEC. You may read and copy any reports, statements or other information filed at the SEC's public reference room at 450 Fifth Street, N.W., Washington, D.C. 20549, or at the SEC's public reference rooms in New York, New York and Chicago, Illinois. Please call the SEC at 1- 800-SEC-0330 for further information on the public reference rooms. BeautiControl's SEC filings are also available to the public from commercial document retrieval services and at the Internet world wide web site maintained by the SEC at http://www.sec.gov. Although we have no knowledge that any such information is untrue, we take no responsibility for the accuracy or completeness of information contained in this Offer to Purchase with respect to BeautiControl or any of its affiliates or for any failure by BeautiControl to disclose events which may have occurred or may affect the significance or accuracy of any such information. 10 Projections. BeautiControl does not, as a matter of course, make public forecasts or projections as to future revenues, earnings or other income statement data. However, certain projections (the "Projections") were provided to the BeautiControl Board, as well as to Tupperware and its advisers in connection with the negotiation of the Merger Agreement. The Projections were prepared by BeautiControl solely for internal use and not for publication. The Projections were not prepared with a view to complying with the published guidelines of the SEC regarding projections or with the American Institute of Certified Public Accountants Guide to Prospective Financial Statements. Neither BeautiControl's independent auditors, nor any other independent accountants, have compiled, examined or performed any procedures with respect to the prospective financial information contained in the Projections. The Projections do not reflect any of the effects of the Offer, the Merger or other changes that in the future may be deemed appropriate in light of the circumstances then existing. The Projections necessarily are based upon numerous estimates and assumptions that, although considered reasonable by BeautiControl, are inherently subject to significant economic, industry and competitive risks, uncertainties and contingencies, including industry performance, general business and economic conditions, and other matters, all of which are difficult to predict and many of which are beyond the control of BeautiControl. Accordingly, there can be no assurance that the projected results would be realized or that actual results would not be significantly higher, or lower, than those projected. The inclusion of this forward-looking information should not be regarded as fact or an indication that Tupperware, Purchaser or BeautiControl or anyone who received this information considered in a reliable predictor of future results, and this information should not be relied on as such. None of Tupperware, Purchaser or BeautiControl assumes any responsibility for the validity, reasonableness, accuracy or completeness of the forecasts. BeautiControl does not intend to update or revise the Projections. The following are the Projections:
Fiscal Quarter Ending Fiscal Quarter Ending Fiscal Year Ending August 31, 2000 November 30, 2000 November 30, 2000 --------------------- --------------------- ------------------ Net Sales............... $14,941,306 $16,945,104 $65,063,361 Cost of Goods Sold...... 3,576,626 4,151,863 15,538,294 ----------- ----------- ----------- Gross Margin on Sales... 11,364,680 12,793,241 49,525,067 Operating Expenses: Sales & Marketing Expenses............... 6,006,927 6,623,142 25,973,779 Administrative Expenses. 5,368,180 5,372,118 21,646,927 ----------- ----------- ----------- Total Operating Expenses............... 11,375,107 11,995,260 47,620,706 ----------- ----------- ----------- Net Operating Income.... (10,426) 797,981 1,904,361 Other Income and Expenses Interest Income......... 76,366 66,000 350,141 Other Income Expense.... 25,757 (283,133) (524,315) ----------- ----------- ----------- Net Other Income and Expense................ 102,123 (217,133) (174,174) ----------- ----------- ----------- Net Income Before Federal Income Tax..... 91,697 580,848 1,730,187 Federal Income Tax...... -- -- -- ----------- ----------- ----------- Net Income.......... $ 91,697 $ 580,848 $ 1,730,187 =========== =========== =========== Weighted Average Basic Shares Outstanding..... 7,231,448 7,250,000 7,250,000 Basic Income Per Share.. $ 0.01 $ 0.08 $ 0.24 With Gain on Sale of Plane.................. $ 0.01 $ 0.08 $ 0.37
11 9. Certain Information Concerning Tupperware and Purchaser Purchaser is a newly incorporated Delaware corporation organized in connection with the Offer and the Merger and has not carried on any activities other than in connection with the Offer and the Merger. Purchaser is a wholly owned subsidiary of Tupperware. Until immediately prior to the time that Purchaser will purchase Shares pursuant to the Offer, it is not anticipated that Purchaser will have any significant assets or liabilities or engage in activities other than those incident to its formation and capitalization and the transactions contemplated by the Offer and the Merger. Because and Purchaser is newly formed and has minimal assets and capitalization and no operating history, no meaningful financial information regarding Purchaser is available. Tupperware is a worldwide direct selling consumer products company engaged in the manufacture and sale of Tupperware* products. Tupperware conducts its business through a single business segment, manufacturing and marketing a broad line of high-quality consumer products for the home. The core of Tupperware's product line consists of food storage, preparation and serving containers that preserve freshness through the well- known Tupperware seals. Tupperware also has an established line of children's educational toys, serving products and gifts. The line of products has expanded over the years into kitchen, home storage and organizing uses with products such as Modular Mates* containers, Fridge Stackables* containers, One Touch* canisters, the Rock 'N Serve* line, Ultraplus* and OvenWorks* line, Expressions* line, Legacy* Serving line and TupperMagic* line, and many specialized containers. In recent years, Tupperware has expanded its offerings in the food preparation and servicing areas through the addition of a number of products, including double colanders, tumblers and mugs, mixing and serving bowls, serving centers, microwaveable cooking and serving products, and kitchen utensils. Tupperware continues to introduce new designs and colors in its product lines, and to extend existing products into new markets around the world. The development of new products varies in different markets in order to address differences in cultures, lifestyles, tastes and needs of the markets. New products introduced in 1999 included a wide range of products in all four geographic areas, including many using Disney movie and cartoon characters under a license. Some of the new products are the Fridgesmart* line, Royal Crest* line, Vitalic* stainless steel cookware line, Santoku Knives, Healthy Baster, Air Filter, Sandwich Keepers, and Cake Servers. New product development and introduction will continue to be an important part of Tupperware's strategy. Products sold by Tupperware are primarily produced by Tupperware in its manufacturing facilities around the world. (Words followed by * are Trademarks of the Registrant.) The common stock of Tupperware is listed and traded on the New York Stock Exchange. The principal offices of Tupperware and Purchaser are located at 14901 S. Orange Blossom Trail, Orlando, Florida 32837, and the telephone number for both Tupperware and Purchaser is (407) 826-5050. The name, citizenship, business address, business telephone number, principal occupation or employment and five-year business history of each of the directors and executive officers of Tupperware and Purchaser are described in Schedule I hereto. None of Tupperware, Purchaser nor, to our knowledge, any of the persons listed on Schedule I to this Offer to Purchase has during the last five years (a) been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors) or (b) been a party to any judicial or administrative proceeding (except for matters that were dismissed without sanction or settlement) that resulted in a judgment, decree or final order enjoining the person from future violations of, or prohibiting activities subject to, federal or state securities laws or finding any violation of such laws. Except as set forth elsewhere in this Offer to Purchase or Schedule I to this Offer to Purchase: (a) neither Tupperware, Purchaser nor, to our knowledge, any of the persons listed in Schedule I to this Offer to Purchase 12 or any associate or majority-owned subsidiary of ours or of any of the persons so listed, beneficially owns or has a right to acquire any Shares or any other equity securities of BeautiControl; (b) neither Tupperware, Purchaser nor, to our knowledge, any of the persons or entities referred to in clause (a) above nor any of their executive officers, directors or subsidiaries has effected any transaction in the Shares or any other equity securities of BeautiControl during the past 60 days; (c) neither Tupperware, Purchaser nor, to our knowledge, any of the persons listed in Schedule I to this Offer to Purchase, has any contract, arrangement, understanding or relationship with any other person with respect to any securities of BeautiControl (including, but not limited to, any contract, arrangement, understanding or relationship concerning the transfer or the voting of any such securities, joint ventures, loan or option arrangements, puts or calls, guaranties of loans, guaranties against loss or the giving or withholding of proxies, consents or authorizations); (d) since January 1, 1998, there have been no transactions which would require reporting under the rules and regulations of the SEC between Tupperware, Purchaser or any of our subsidiaries or, to our knowledge, any of the persons listed in Schedule I hereto, on the one hand, and BeautiControl or any of its executive officers, directors or affiliates, on the other hand; and (e) since January 1, 1998, there have been no contracts, negotiations or transactions between Tupperware, Purchaser or any of our subsidiaries or, to our knowledge, any of the persons listed in Schedule I hereto, on the other hand, and BeautiControl or any of its affiliates, on the other hand, concerning a merger, consolidation or acquisition, a tender offer or other acquisition of securities, an election of directors or a sale or other transfer of a material amount of assets. 10. Background of the Offer; Contacts with BeautiControl. On July 17, 2000 Alan D. Kennedy, President of Tupperware, initiated a telephone call with Richard W. Heath, the Chief Executive Officer of BeautiControl, in which Mr. Kennedy stated that he and E.V. Goings, the Chairman of the Board and Chief Executive Officer of Tupperware, proposed to meet with Mr. Heath to discuss a possible relationship between Tupperware and BeautiControl that would be mutually beneficial. A meeting was scheduled in Dallas, Texas on August 2, 2000. On August 2, 2000, Messrs. Heath, Goings and Kennedy met for dinner in Dallas, Texas. The parties discussed in general terms various possibilities concerning a merger or other type of business alliance between BeautiControl and Tupperware. The parties concluded the meeting by expressing a mutual interest in continuing the discussions at the headquarters of Tupperware in Orlando, Florida at a date to be determined later. On August 17, 2000, Mr. and Ms. Heath met at Tupperware's headquarters with Mr. Goings. The meeting consisted primarily of a tour of Tupperware's facility. That evening at dinner, discussions of a broad, general nature took place. On August 18, 2000, Mr. Heath and Mr. Goings met at Tupperware's offices and executed confidentiality agreements between Tupperware and BeautiControl. Paul B. Van Sickle, Tupperware's Executive Vice President and Chief Financial Officer, joined the meeting and general discussions took place regarding a friendly combination of the two companies. Mr. Van Sickle stated that Tupperware was prepared to make an offer of $6.00 per Share. According to Mr. Van Sickle, a $6.00 per Share purchase price was based on financial models of BeautiControl prepared by Tupperware and its financial advisor, Lazard Freres & Co. LLC ("Lazard"). In response to the proposal, Mr. Heath emphasized BeautiControl's improving operating performance in recent months and also made suggestions and estimates of how operating expenses might be reduced in the future. At that point, Messrs. Goings and Van Sickle left the room to privately discuss the matter, and then Mr. Van Sickle made an oral offer to Mr. Heath of $7.00 per Share, which he stated was Tupperware's final offer. Mr. Goings also expressed his general desire that senior management remain with BeautiControl, but no specific discussion of personnel or compensation took place. At the conclusion of the meeting, Mr. Goings emphasized that Tupperware would be prepared to move quickly, and that Tupperware's offer would not be subject to a financing contingency. He further emphasized that if the offer were to become publicly known, the offer would in all likelihood be withdrawn. He also emphasized that if BeautiControl 13 engaged in any auction process, whether public or private, the offer would be withdrawn. Mr. Heath agreed to present the $7.00 per Share offer to the BeautiControl Board. Thomas M. Roehlk, Tupperware's Senior Vice President, General Counsel and Secretary, joined the meeting and presented a timetable for moving forward. At that meeting and at subsequent meetings, various forms of consideration were discussed. On August 24, 2000, Messrs. Heath and Roehlk further discussed a proposed timetable for the transaction, and general matters relating the transaction. On August 25, 2000, representatives of BeautiControl met in Dallas with representatives of Tupperware and Lazard to conduct due diligence. On August 27, 2000, Mr. Heath and Mr. Goings had a telephone conversation in which Mr. Goings stated that it was Tupperware's desire that current management of BeautiControl remain in place after any transaction with Tupperware. On August 28, 2000, Mr. Roehlk called Mr. Heath and discussed the broad outline of a merger with Tupperware. That day, Tupperware sent BeautiControl a preliminary term sheet for the transaction, setting forth the material terms of the transaction, including consideration in the form of cash. That evening, members of Tupperware's senior management met with BeautiControl's management and toured BeautiControl's facilities. On August 29, 2000, BeautiControl, Tupperware and their respective legal counsel negotiated certain points in the preliminary term sheet, and the term sheet was revised. Throughout that day, senior management of Tupperware interviewed members of BeautiControl's senior management. On August 31, 2000, Mr. Heath and Mr. Roehlk discussed certain proposed compensation arrangements for BeautiControl's senior management in an attempt to make sure that BeautiControl's executives could be compensated within the framework of Tupperware's current executive compensation parameters. Discussions also included which members of BeautiControl's current management team might continue with BeautiControl after a merger. On September 1, 2000, BeautiControl received from Tupperware's counsel the first draft of the Merger Agreement and the Stockholder Agreement. On September 5, 2000, Mr. Roehlk informed Mr. Heath that Tupperware's Board of Directors had approved the terms of the transaction. On September 6, 2000, BeautiControl management and legal counsel for BeautiControl met with Tupperware and its legal counsel to negotiate the terms of the Merger Agreement and Stockholder Agreement. Tupperware also continued to interview members of BeautiControl's management. During the period from September 6, 2000 to September 9, 2000, the parties conducted negotiations with respect to the Merger Agreement and the Stockholder Agreements and related business issues, including the amount of the termination fee and the circumstances under which it would be payable, the ability of BeautiControl's directors to terminate the Merger Agreement under certain circumstances, the ability of those stockholders of BeautiControl who were being asked by Tupperware to enter into a Stockholder Agreement to withdraw shares tendered pursuant to the Offer if a competing offer arose, and certain other aspects of the Offer and the Merger. On September 7, 2000, Mr. Heath and Mr. Roehlk discussed the proposed compensation of Mr. and Ms. Heath, and certain other matters relating to the Merger, including how a public announcement of the Merger would be made. Between September 10, 2000 and September 13, 2000, officers of BeautiControl and Tupperware finalized the Merger Agreement and related agreements. 14 Following the completion of the final terms of the Merger Agreement on September 13, 2000, Tupperware, Purchaser and BeautiControl executed and delivered the Merger Agreement, and Tupperware and certain stockholders of BeautiControl executed and delivered the Stockholder Agreements. On September 13, 2000, BeautiControl and Tupperware each issued a press release announcing the execution of the Merger Agreement and the transactions contemplated thereby. On September 20, 2000, pursuant to the terms of the Merger Agreement, Purchaser commenced the Offer. 11. Purpose of the Offer and the Merger; The Merger Agreement; The Stockholder Agreements; The Employment Agreements; Statutory Requirements; Appraisal Rights; Plans for BeautiControl. Purpose. The purpose of the Offer and the Merger is for Tupperware and its subsidiaries to acquire all of the outstanding Shares of BeautiControl. Upon the consummation of the Merger, BeautiControl will become a wholly owned subsidiary of Tupperware. The acquisition of Shares has been structured as a cash tender offer followed by a cash merger in order to effect a prompt and orderly transfer of ownership of BeautiControl from the public stockholders to Tupperware and provide stockholders with cash for all of their Shares. Proceeding with the Offer and the Merger at this time would also afford BeautiControl's stockholders an opportunity to dispose of their shares at a premium over pre-announcement market prices. The Merger Agreement. The following summary description of the Merger Agreement is qualified in its entirety by reference to the agreement itself, which we have filed as an exhibit to the Schedule TO that we filed with the SEC, which you may examine and copy as set forth in Section 8 above (except that it will not be available at the regional offices of the SEC). The Offer. The Merger Agreement provides for the commencement of the Offer by Purchaser. The obligation of Purchaser to accept for payment and pay for Shares validly tendered pursuant to the Offer is subject to the prior satisfaction or waiver by Purchaser of the conditions to the Offer set forth in Section 14 hereof. The Merger Agreement provides that, without the prior written consent of BeautiControl, Purchaser will not (a) reduce the number of Shares subject to the Offer, (b) reduce the Offer Price; (c) impose any other conditions to the Offer other than the conditions set forth in Section 14 (the "Offer Conditions") or modify the Offer Conditions (other than to waive any Offer conditions to the extent permitted by the Merger Agreement), (d) except as described in the next paragraph, extend the Offer, or (e) change the form of consideration payable in the Offer. We have agreed with BeautiControl that we will not extend the Offer without the consent of BeautiControl; provided, however, that without the consent of BeautiControl, we may extend the Offer (a) if, at the scheduled or extended expiration date of the Offer any of the Offer Conditions are not satisfied or waived, until such time as such conditions are satisfied or waived, (b) for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer and (c) for any reason on one or more occasions for an aggregate period of not more than fifteen business days beyond the latest expiration date that would otherwise be permitted under the terms, described in clauses (a) or (b) of this sentence, in each case subject to the right of Tupperware, Purchaser or BeautiControl to terminate the Merger Agreement pursuant to its terms. The Merger. The Merger Agreement provides that Purchaser will be merged with and into BeautiControl following the satisfaction or waiver of the conditions to the Merger contained in the Merger Agreement upon the filing and effectiveness of a certificate of merger. As a result of the Merger, the separate corporate existence of Purchaser will cease and BeautiControl will continue as the Surviving Corporation. 15 At the effective time of the Merger (the "Effective Time"), (i) the Restated Certificate of Incorporation of BeautiControl shall be amended and restated as set forth in Exhibit C of the Merger Agreement, (ii) the Bylaws of Purchaser shall become the Bylaws of BeautiControl, (iii) the directors of Purchaser shall become the directors of the Surviving Corporation and (iv) the officers of BeautiControl shall become the officers of the Surviving Corporation. The Merger Agreement provides that BeautiControl will, if required by Delaware law in order to consummate the Merger, duly call, give notice of, convene and hold a meeting of its stockholders as soon as practicable following the purchase of Shares pursuant to the Offer for the purpose of considering the approval of the Merger Agreement. BeautiControl has agreed that it will, through the BeautiControl Board, recommend to its stockholders the approval of the Merger Agreement and that it will not withdraw or modify such recommendation. BeautiControl has agreed that it will submit the Merger Agreement to its stockholders for approval whether or not the BeautiControl Board determines at any time subsequent to the date of the Merger Agreement that the Merger Agreement is no longer advisable and recommends that the BeautiControl stockholders reject it. Tupperware has agreed to cause all Shares purchased pursuant to the Offer and all other Shares owned by Tupperware or any subsidiary of Tupperware to be voted in favor of approval of the Merger. BeautiControl has agreed in the Merger Agreement that it will, at Tupperware's request, as soon as practicable following the expiration of the Offer, prepare and file with the SEC a proxy statement relating to the Merger and use its reasonable best efforts to respond to any comments of the SEC or its staff and to cause the proxy statement to be mailed to BeautiControl's stockholders as promptly as practicable after responding to all such comments to the satisfaction of the staff. The Merger Agreement provides that if Purchaser or any other direct or indirect subsidiary of Tupperware owns at least 90% of the outstanding Shares, Tupperware, Purchaser and BeautiControl shall take all necessary and appropriate action to cause the Merger to become effective as soon as practicable after expiration of the Offer without a meeting of the stockholders of BeautiControl, in accordance with Section 253 of the DGCL. Conversion of Securities. As of the Effective Time, by virtue of the Merger and without any action on the part of Purchaser, BeautiControl or the holders of any securities of Purchaser or BeautiControl, each Share (other than Shares owned by BeautiControl, any wholly owned subsidiary of BeautiControl, Tupperware or any wholly owned subsidiary of Tupperware, and other than Shares owned by stockholders, if any, who are entitled to and who properly exercise dissenter's rights under the DGCL) shall be converted into the right to receive from the Surviving Corporation, in cash, without interest, the Merger Consideration. Each share of stock of Purchaser issued and outstanding immediately prior to the Effective Time shall, at the Effective Time, by virtue of the Merger and without any action on the part of Purchaser, BeautiControl or the holders of any securities of Purchaser or BeautiControl, be converted into one fully paid and nonassessable share of common stock of the Surviving Corporation. The Merger Agreement provides that Tupperware or the designated paying agent will be entitled to deduct and withhold from the consideration otherwise payable pursuant to the Merger Agreement to any holder of Shares such amounts as Tupperware or such paying agent is required to deduct and withhold with respect to the making of such payment under the Internal Revenue Code or the rules and regulations promulgated thereunder or any provision of state, local or foreign tax law. Representations and Warranties. In the Merger Agreement, BeautiControl has made representations and warranties to Tupperware and Purchaser. The representations and warranties of BeautiControl relate, among other things, to its organization, good standing and corporate power; capital structure; authority to enter into the Merger Agreement and to consummate the transactions contemplated thereby; required consents and approvals and no material violations of its agreements or organizational documents; filings made by BeautiControl with the SEC under the Securities Act of 1933, as amended (the "Securities Act"), and the Securities Exchange Act of 1934 (the "Exchange Act") (including financial statements included in the documents filed by BeautiControl under these acts); information supplied by BeautiControl; the absence of certain events since December 1, 16 1999; permits and compliance with laws; tax matters; actions and proceedings; certain agreements; benefit plans and employees and employment practices; liabilities; labor matters; intellectual property matters; title to assets; state takeover statutes; required votes; transactions with affiliates; brokers; compliance with worker safety laws; product liability and recalls; opinion of financial advisor; accounts receivable; inventories; material agreements; environmental matters; and regulatory compliance. Purchaser and Tupperware have also made representations and warranties to BeautiControl. The representations and warranties of Purchaser and Tupperware relate, among other things, to: their organization, good standing and corporate power; authority to enter into the Merger Agreement and to consummate the transactions contemplated thereby; required consents and approvals and no violations of their agreements or organizational documents; information supplied; operations of Purchaser; brokers; and financing. Covenants Relating to the Conduct of Business. During the period from the date of the Merger Agreement through the Effective Time, BeautiControl has agreed that, except as otherwise expressly contemplated by the Merger Agreement or except to the extent Tupperware shall otherwise consent in writing, BeautiControl and each of its subsidiaries shall in all material respects carry on its business in the ordinary course as currently conducted and, to the extent consistent therewith, use reasonable best efforts to preserve intact its current business organizations, keep available the services of its current officers and employees and preserve its relationships with customers, suppliers and others having business dealings with it to the end that its goodwill and ongoing business shall be unimpaired at the Effective Time. BeautiControl has also agreed that during such period, except as otherwise expressly contemplated by the Merger Agreement, BeautiControl will not, and will not permit any of its subsidiaries to, without the prior written consent of Tupperware: (a) subject to certain limited exceptions, (i) declare, set aside or pay any dividends on, or make any other actual, constructive or deemed distributions in respect of, any of its capital stock, or otherwise make any payments to its stockholders in their capacity as such, (ii) split, combine or reclassify any of its capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock or (iii) purchase, redeem or otherwise acquire any shares of capital stock of BeautiControl or any other securities thereof or any rights, warrants or options to acquire any such shares or other securities; (b) issue, deliver, sell, pledge, dispose of or otherwise encumber any shares of its capital stock, any other voting securities or equity equivalent or any securities convertible into, or any rights, warrants or options (including options under BeautiControl's stock option plans) to acquire any such shares, voting securities, equity equivalent or convertible securities, other than the issuance of Shares upon the exercise of stock options to purchase Shares outstanding on the date of the Merger Agreement in accordance with their current terms; (c) amend its charter or bylaws; (d) acquire or agree to acquire by merging or consolidating with, or by purchasing a substantial portion of the assets of or equity in, or by any other manner, any business or any corporation, limited liability company, partnership, association or other business organization or division thereof or, except in the ordinary course of business consistent with past practice, otherwise acquire or agree to acquire any assets; (e) sell, lease or otherwise dispose of, or agree to sell, lease or otherwise dispose of, any of its assets other than in the ordinary course of business consistent with past practice; (f) incur any indebtedness for borrowed money, guarantee any such indebtedness or make any loans, advances or capital contributions to, or other investments in, any other person, other than (i) in the ordinary course of business consistent with past practices and (ii) intra-company indebtedness incurred in the ordinary course of business consistent with past practices; (g) alter (through merger, liquidation, reorganization, restructuring or in any other fashion) the corporate structure or ownership of BeautiControl or any subsidiary; 17 (h) except as provided in the Merger Agreement or as required by applicable law, enter into or adopt any, or amend any existing, severance plan, agreement or arrangement or enter into or amend any Company Plan (as defined in the Merger Agreement) or employment or consulting agreement; (i) increase the compensation payable or to become payable to its directors, officers or employees (except for increases in the ordinary course of business consistent with past practice in salaries or wages of employees of BeautiControl or its subsidiaries who are not officers of BeautiControl or its subsidiaries) or grant any severance or termination pay to, or enter into any employment or severance agreement with, any director or officer of BeautiControl, or establish, adopt, enter into, or, except as may be required to comply with applicable law, amend in any material respect or take action to enhance in any material respect or accelerate any rights or benefits under, any labor, collective bargaining, bonus, profit sharing, thrift, compensation, stock option, restricted stock, pension, retirement, deferred compensation, employment, termination, severance or other plan, agreement, trust, fund, policy or arrangement for the benefit of any director, officer or employee; (j) knowingly violate or knowingly fail to perform any obligation or duty imposed upon it or any subsidiary by any applicable material federal, state or local law, rule, regulation, guideline or ordinance; (k) make any change to accounting policies or procedures (other than actions required to be taken by generally accepted accounting principles); (l) prepare or file any tax return inconsistent with past practice or, on any such tax return, take any position, make any election, or adopt any method that is inconsistent with positions taken, elections made or methods used in preparing or filing similar tax returns in prior periods; (m) settle or compromise any tax liability in excess of $10,000; (n) settle or compromise any claims or litigation in excess of $10,000 or commence any litigation or proceedings; (o) enter into or amend any agreement or contract (i) having a term in excess of twelve months and that is not terminable by BeautiControl or a subsidiary without penalty or premium by notice of 60 days or less or (ii) which involves or is expected to involve payments of $50,000 or more during the term thereof; (iii) enter into, amend or terminate any other agreement or contract material to BeautiControl and its subsidiaries, taken as a whole; or (iv) purchase any real property, or make or agree to make any new capital expenditure or expenditures (other than the purchase of real property) which in the aggregate are in excess of $50,000; (p) pay, discharge or satisfy any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction of any such claims, liabilities or obligations, in the ordinary course of business consistent with past practice or in accordance with their terms; (q) adopt a shareholders' rights plan or enter into a shareholders' rights agreement or adopt or enter into any other plan or agreement implementing a "poison pill" or any similar device; (r) reprice, either directly or indirectly, any stock option or other right to purchase Shares; or (s) authorize, recommend, propose or announce an intention to do any of the foregoing, or enter into any contract, agreement, commitment or arrangement to do any of the foregoing. No Solicitation. BeautiControl shall not, nor shall it permit any of its subsidiaries to, nor shall it authorize and it shall use its best efforts not to permit any officer, director or employee of or any financial advisor, attorney or other advisor or representative of BeautiControl or any of its subsidiaries to, (i) solicit, initiate or encourage the submission of, any Takeover Proposal (as defined below), (ii) enter into any agreement with respect to or approve or recommend any Takeover Proposal or (iii) participate in any discussions or negotiations regarding, or furnish to any person any information with respect to BeautiControl or any subsidiary in connection with, or take any other action to knowingly facilitate any inquiries or the making of any proposal that constitutes, or may reasonably be expected to lead to, any Takeover Proposal; provided 18 however, that neither BeautiControl nor its directors shall be prohibited from (x) complying with Rule 14e-2 promulgated under the Exchange Act with regard to a tender or exchange offer or (y) referring a third party to the section of the Merger Agreement described in this paragraph or making a copy of such section available to any third party; and provided further that prior to the acceptance for payment of Shares pursuant to the Offer, if the BeautiControl Board reasonably determines that a Takeover Proposal constitutes a Superior Proposal (as defined below), then, to the extent required by the fiduciary obligations of the BeautiControl Board, as determined in good faith by a majority thereof after consultation with outside counsel (who may be BeautiControl's regularly engaged outside counsel), and prior to taking such action, BeautiControl provides the notice to Tupperware required by the Merger Agreement, BeautiControl may, in response to an unsolicited request therefor, furnish information with respect to BeautiControl and its subsidiaries to any person pursuant to a confidentiality agreement, in customary form and in any event containing terms, taken as a whole, at least as stringent as those contained in the confidentiality agreement entered into between BeautiControl and Tupperware, and participate in discussions or negotiations with such person. Any violation of the restrictions set forth in the preceding sentence by any officer or director of BeautiControl or any of its subsidiaries or any financial advisor, attorney or other advisor or representative of BeautiControl or any of its subsidiaries, whether or not such person is purporting to act on behalf of BeautiControl or any of its subsidiaries or otherwise, shall be deemed to be a breach of this section of the Merger Agreement by BeautiControl. For purposes of the Merger Agreement, "Takeover Proposal" means any proposal for (i) a merger or other business combination involving BeautiControl or any of its subsidiaries, (ii) any proposal or offer to acquire in any manner, directly or indirectly, an equity interest in or any voting securities of BeautiControl representing 15% or more of the Shares or of the total voting securities of BeautiControl outstanding or (iii) an offer to acquire in any manner, directly or indirectly, a substantial portion of the assets of BeautiControl or any of its subsidiaries, other than the transactions contemplated by the Merger Agreement. For purposes of the Merger Agreement, "Superior Proposal" means a bona fide proposal made by a third party to acquire BeautiControl pursuant to a tender or exchange offer, a merger, a sale of all or substantially all of the assets of BeautiControl or otherwise on terms which a majority of the members of the BeautiControl Board determines at a duly constituted meeting or by unanimous written consent, in its reasonable good faith judgment to be more favorable to BeautiControl's stockholders than the Offer and the Merger (based on the advice from BeautiControl's independent financial advisor that the value of the consideration provided for in such proposal exceeds the value of the consideration provided for in the Offer and the Merger) and for which financing, to the extent required, is then committed. The Merger Agreement provides further that, BeautiControl must advise Tupperware orally and in writing of (i) any Takeover Proposal or any inquiry with respect to or which reasonably could lead to any Takeover Proposal received by any officer or director of BeautiControl or, to the knowledge of BeautiControl, any financial advisor, attorney or other advisor or representative of BeautiControl, (ii) the material terms of such Takeover Proposal (including a copy of any written proposal), and (iii) the identity of the person making any such Takeover Proposal or inquiry no later than 24 hours following receipt of such Takeover Proposal or inquiry. If BeautiControl intends to furnish any person with any information with respect to any Takeover Proposal, BeautiControl is required to advise Tupperware orally and in writing of such intention not less than two business days in advance of providing such information. BeautiControl is further required to keep Tupperware fully informed of the status and material terms of any such Takeover Proposal or inquiry. Reasonable Best Efforts. The Merger Agreement provides that, subject to its terms and conditions, each of the parties thereto will use reasonable best efforts to take or cause to be taken all actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable to consummate and make effective, in the most expeditious manner practicable, the Offer, the Merger and the other transactions contemplated by the Merger Agreement, including (i) obtaining all necessary consents from governmental entities to make all necessary filings, including in connection with the HSR Act, (ii) obtaining all necessary consents, approvals or waivers from third parties, (iii) defending any lawsuits or other legal proceedings challenging the Merger Agreement, and (iv) executing and delivering any additional instruments 19 necessary to consummate the transactions contemplated by the Merger Agreement. Each party has also agreed to use all reasonable best efforts to not take any action, or enter into any transaction which would cause any of its representations or warranties contained in the Merger Agreement to be untrue or result in a breach of any covenant made by it in the Merger Agreement. In connection with any filing or submission required or action to be taken by either Tupperware or BeautiControl to effect the Offer, the Merger and to consummate the other transactions contemplated by the Merger Agreement, BeautiControl may not, without Tupperware's prior written consent, commit to any divestiture transaction, and neither Tupperware nor any of its affiliates will be required to divest or hold separate or otherwise take or commit to take any action that limits its freedom of action with respect to, or its ability to retain, BeautiControl or any of the businesses or assets of Tupperware or any of its subsidiaries or that otherwise would have a material adverse effect on Tupperware. Third Party Standstill Agreements. During the period from the date of the Merger Agreement through the Effective Time, BeautiControl has agreed not to terminate, amend, modify or waive any provision of any confidentiality or standstill agreement to which BeautiControl or any of its subsidiaries is a party and to enforce, to the fullest extent permitted under applicable law, the provisions of any such agreements, including obtaining injunctions to prevent any breaches of such agreements and to enforce specifically the terms and provisions thereof in any court of the United States or any state thereof having jurisdiction. Stock Based Compensation. In the Merger Agreement, BeautiControl has agreed that, prior to the consummation of the Offer, the BeautiControl Board (or, if appropriate, a committee thereof) shall adopt appropriate resolutions and take any and all other action necessary or appropriate to cause each option (a "Stock Option") to purchase Shares issued under BeautiControl's stock option plans (the "BeautiControl Stock Option Plans"), that is outstanding as of the Effective Time to vest and become exercisable immediately prior to the Effective Time and to be canceled as of the Effective Time, in consideration for which the holder thereof shall be entitled to receive from BeautiControl an amount equal to (A) the product of (1) the number of Shares subject to such option and (2) the excess, if any, of the Offer Price over the exercise price per share for the purchase of Shares subject to such Stock Option, minus (B) all applicable federal, state and local taxes required to be withheld in respect of such payment. Such amount shall be paid to such option holder by mailing payment within three Business Days following the Effective Time. BeautiControl has also agreed to take all actions necessary to provide that, as of the Effective Time, the BeautiControl Stock Option Plans and any similar plan or agreement of BeautiControl will be terminated, any rights under any other plan, program, agreement or arrangement relating to the issuance or grant of any other interest in respect of the capital stock of BeautiControl or any of its subsidiaries will be terminated, and no holder of an option to purchase Shares will have any right to receive any shares of capital stock of BeautiControl or, if applicable, the Surviving Corporation, upon exercise of any Stock Option. Alternatively, Tupperware may, at its option, offer to certain option holders who are employees of BeautiControl at the Effective Time, the option to receive, in lieu of any payments described above, in exchange for each Stock Option held by such company employee that is outstanding as of the Effective Time, an option ( a "Substitute Option") to purchase the number of shares of common stock of Tupperware, determined by multiplying (i) the number of Shares subject to such Stock Option immediately prior to the Effective Time by (ii) the Exchange Ratio (as defined below), at an exercise price per share of Tupperware common stock (rounded up to the nearest cent) equal to the exercise price per Share immediately prior to the Effective Time divided by the Exchange Ratio. For purposes of the Merger Agreement, "Exchange Ratio" means the quotient, rounded to the nearest thousandth, of the Offer Price divided by the average, rounded to the nearest cent, of the last reported sales price per share of Tupperware common stock on the New York Stock Exchange for the ten trading days immediately preceding the date of the closing of the Merger. All Substitute Options will, upon issuance, be fully vested and immediately exercisable upon the terms and conditions set forth in the Tupperware Corporation 2000 Incentive Plan. As soon as reasonably practicable, and in no event later than twenty days after the Effective Time, Tupperware shall file a registration statement on Form S-8 (or any successor or other appropriate form) with respect to Tupperware common stock subject to such Substitute Options, or shall cause such Substitute Options to be deemed to be issued pursuant to a stock plan of Tupperware registered pursuant to an appropriate registration form. 20 Employee Benefit Plans. Tupperware has agreed in the Merger Agreement that, for a period of one year immediately following the Effective Time, Tupperware will, or will cause the Surviving Corporation to, maintain in effect employee benefit plans and arrangements that provide benefits that have a value that is substantially comparable, in the aggregate, to the benefits provided by BeautiControl's employee benefit plans (not taking into account the value of any benefits under any such plans that are equity based). Tupperware has also agreed that, for purposes of determining eligibility to participate, vesting and accrual or entitlement to benefits where length of service is relevant under any employee benefit plan or arrangement of the Surviving Corporation, employees of BeautiControl and its subsidiaries as of the Effective Time will receive service credit for service with BeautiControl and its subsidiaries to the same extent such credit was granted under the BeautiControl and its subsidiaries to the same extent such credit was granted under the BeautiControl's employee benefit plans, subject to offsets for previously accrued benefits and no duplication of benefits. Indemnification. Pursuant to the Merger Agreement, from and after the Effective Time, Tupperware will cause the Surviving Corporation to indemnify and hold harmless all past and present officers and directors of BeautiControl to the fullest extent permitted by the DGCL for acts or omissions occurring at or prior to the Effective Time. Tupperware has also agreed to cause the Surviving Corporation to provide, for a period of not less than three years from the Effective Time, to BeautiControl's current directors and officers an insurance and indemnification policy that provides coverage for events occurring prior to the Effective Time (the "D&O Insurance") on terms no less favorable to BeautiControl's existing policy or, if such insurance coverage is not available, the best available coverage; provided, however, that the Surviving Corporation shall not be required to pay an annual premium for the D&O Insurance in excess of 150% of the last annual premiums paid prior to the date of the Merger Agreement by BeautiControl, but in such case shall purchase as much coverage as possible for such amount. Board Representation. The Merger Agreement provides that promptly after such time as Purchaser purchases at least a majority of the outstanding Shares pursuant to the Offer, Purchaser will be entitled, to the fullest extent permitted by law, to designate at its option up to that number of directors of the BeautiControl Board, subject to compliance with Section 14(f) of the Exchange Act, as will make the percentage of BeautiControl's directors designated by Purchaser equal to the percentage of the aggregate voting power of the Shares held by Tupperware or any of its subsidiaries; provided, however, that in the event that Purchaser's designees are elected to the BeautiControl Board, until the Effective Time the BeautiControl Board shall have at least three directors who were directors of BeautiControl on the date of the Merger Agreement and who are not officers of BeautiControl (the "Independent Directors"). If the number of Independent Directors shall be reduced below three for any reason whatsoever, the remaining Independent Directors shall designate an Independent Director or Independent Directors (as the case may be) for purposes of the Merger Agreement or, if no Independent Directors then remain, the other directors of BeautiControl shall designate three persons to fill such vacancies who shall not be officers or affiliates of BeautiControl or any of its subsidiaries, or officers or affiliates of Tupperware or any of its subsidiaries, and such persons shall be deemed to be Independent Directors for purposes of the Merger Agreement. Following the election or appointment of Purchaser's designees to the BeautiControl Board and prior to the Effective Time, any amendment, or waiver of any term or condition, of the Merger Agreement or BeautiControl's Restated Certificate of Incorporation or Restated Bylaws, any termination of the Merger Agreement by BeautiControl, any extension by BeautiControl of the time for the performance of any of the obligations or other acts of Purchaser or waiver or assertion of any of BeautiControl's rights under the Merger Agreement, and any other consent or action by the BeautiControl Board with respect to the Merger Agreement, will require the concurrence of a majority of the Independent Directors and no other action by BeautiControl, including any action by any other director of BeautiControl, shall be required for purposes of the Merger Agreement. In connection with the foregoing, BeautiControl will promptly, at the option of Tupperware, either increase the size of the BeautiControl Board and/or obtain the resignation of such number of its current directors as is necessary to enable Purchaser's designees to be elected or appointed to the BeautiControl Board as provided above. 21 Conditions Precedent. The respective obligations of each party to effect the Merger are subject to the satisfaction (or waiver by each party) prior to the Effective Time of the following conditions: (i) the Merger Agreement shall have been approved and adopted by the affirmative vote of the stockholders of BeautiControl (unless the vote of stockholders is not required under the DGCL) as required by the DGCL and BeautiControl's Restated Certificate of Incorporation; (ii) any waiting period (and any extension thereof) applicable to the consummation of the Merger under the HSR Act shall have expired or been terminated; (iii) Purchaser shall have previously accepted for payment and paid for Shares pursuant to the Offer, except that this condition shall not apply if Purchaser shall have failed to purchase Shares pursuant to the Offer in breach of its obligations under the Merger Agreement; and (iv) no court or other Governmental Entity (as defined in the Merger Agreement) having jurisdiction over BeautiControl or Tupperware or any of their respective subsidiaries shall have enacted, issued, promulgated, enforced or entered any law, rule, regulation, executive order, decree, injunction or other order (whether temporary, preliminary or permanent) which is then in effect and has the effect of making the Merger illegal. Termination. The Merger Agreement provides that it may be terminated at any time prior to the Effective Time, whether before or after adoption of the Merger Agreement by the stockholders of BeautiControl: (a) by mutual written consent of Tupperware and BeautiControl; (b) by either Tupperware or BeautiControl: (i) if (x) as a result of the failure of any of the Offer Conditions as set forth in Section 14 of this Offer to Purchase shall have terminated or expired in accordance with its terms without Purchaser having accepted for payment any Shares pursuant to the Offer or (y) Purchaser shall not have accepted for payment any Shares pursuant to the Offer prior to March 31, 2001 (provided that the right to terminate the Merger Agreement pursuant to this clause (b)(i) shall not be available to any party whose failure to perform any of its obligations under the Merger Agreement results in the failure of any such condition or if the failure of such condition results from facts or circumstances that constitute a breach of any representation or warranty under the Merger Agreement by such party), or (ii) if any Governmental Entity shall have issued an order, decree or ruling or taken any other action permanently enjoining, restraining or otherwise prohibiting the acceptance for payment of, or payment for, Shares pursuant to the Offer and such order, decree or ruling or other action shall have become final and nonappealable; (c) by Tupperware or Purchaser in the event of a breach by BeautiControl of any representation, warranty, covenant or other agreement contained in the Merger Agreement which (i) would give rise to the failure of the Offer Conditions described in paragraph (e) or (f) of Section 14 and (ii) cannot be or has not been cured within 30 days after the giving of written notice to BeautiControl; (d) by Tupperware or Purchaser if either Tupperware or Purchaser is entitled to terminate the Offer as a result of the occurrence of any event set forth in paragraph (d) of Section 14; (e) by BeautiControl if the BeautiControl Board reasonably determines that a Takeover Proposal constitutes a Superior Proposal and a majority of the BeautiControl Board determines in its reasonable good faith judgment, after consultation with outside counsel, that failing to terminate the Merger Agreement would constitute a breach of the BeautiControl Board's fiduciary duties under applicable law; provided, that BeautiControl may not terminate the Merger Agreement pursuant to this clause (e) unless (i) BeautiControl has complied with all provisions of the no-solicitation provisions of the Merger Agreement, including the notice provisions therein, (ii) BeautiControl has delivered to Tupperware a written notice of BeautiControl's intent to enter into an agreement to effect a Superior Proposal, (iii) 72 hours have elapsed following delivery to Tupperware of such written notice by BeautiControl, (iv) during such 72-hour period BeautiControl has reasonably cooperated with Tupperware, including informing Tupperware of the terms and conditions of the Takeover Proposal and identifying the identity of the person making the Takeover Proposal, with the intent of enabling Tupperware to agree to a modification of the terms and conditions of the Merger Agreement so the transactions contemplated by the Merger Agreement may be effected, (v) at the end of such 72-hour period the BeautiControl Board continues reasonably to believe that the Takeover Proposal constitutes a Superior Proposal when compared to the Offer and the Merger (taking into account 22 any such modifications as may be proposed by Tupperware) and (vi) BeautiControl has complied with the requirements of the Merger Agreement relating to the payment (including the timing of any payment) of the Expenses and the Termination Fee to the extent required by the Merger Agreement; and provided, further that BeautiControl may not terminate the Merger Agreement pursuant to this provision until October 18, 2000; or (f) by BeautiControl, if (i) any of the representations or warranties of Tupperware or Purchaser set forth in the Merger Agreement that are qualified as to materiality shall not be true and correct in any respect or any such representations or warranties that are not so qualified shall not be true and correct in any material respect or (ii) Tupperware or Purchaser shall have failed to perform in any material respect any material obligation or to comply in any material respect with any material agreement or covenant of Tupperware or Purchaser to be performed or complied with by it under the Merger Agreement and such untruth, incorrectness or failure cannot be or has not been cured within 30 days after the giving of written notice to Tupperware or Purchaser, as applicable. In the event of a termination of the Merger Agreement by either BeautiControl or Tupperware, the Merger Agreement shall become void (except for certain provisions pertaining to the payment of certain expenses and fees and except for certain confidentiality obligations of the parties) and there shall be no liability thereunder on the part of Tupperware, Purchaser or BeautiControl or their respective officers or directors other than for liability for any breach of a representation or warranty contained in the Merger Agreement, the breach of any covenant contained in the Merger Agreement or for fraud. Fees and Expenses. Except as provided in the Merger Agreement, whether or not the Offer or the Merger is consummated, all costs and expenses incurred in connection with the Merger Agreement and the transactions contemplated thereby shall be paid by the party incurring such costs and expenses. The Merger Agreement provides that BeautiControl will pay, or cause to be paid, in same day funds to Tupperware the following amounts under the circumstances and at the times set forth as follows: (i) if Tupperware or the Purchaser terminates the Merger Agreement in accordance with the provisions described in clause (d) under "Termination" above, BeautiControl shall pay the Expenses (as defined below) (not to exceed $1,000,000) of Tupperware and a $1,865,500 termination fee (the "Termination Fee") upon demand; (ii) if BeautiControl terminates the Merger Agreement in accordance with the provisions described in clause (e) under "Termination" above, BeautiControl shall pay the Termination Fee and the Expenses (not to exceed $1,000,000) of Tupperware upon demand; or (iii) if any other termination of the Merger Agreement occurs (other than a termination by BeautiControl in accordance with the provisions described in clause (f) under "Termination" above), and at the time of any such termination a Takeover Proposal shall have been made (other than a Takeover Proposal made prior to the date of the Merger Agreement ), (x) BeautiControl shall pay the Expenses (not to exceed $1,000,000) of Tupperware upon demand, and (y) if concurrently therewith or within twelve months thereafter, (A) BeautiControl enters into a merger agreement, acquisition agreement or similar agreement (including a letter of intent) with respect to a Takeover Proposal, or a Takeover Proposal is consummated, involving any party (1) with whom BeautiControl had any discussions with respect to a Takeover Proposal, (2) to whom BeautiControl furnished information with respect to or with a view to a Takeover Proposal or (3) who had submitted a proposal or expressed any interest publicly in a Takeover Proposal, in the case of each of clauses (1), (2) and (3), prior to such termination, or (B) BeautiControl enters into a merger agreement, acquisition agreement or similar agreement (including a letter of intent) with respect to a Superior Proposal, or a Superior Proposal is consummated, then, in the case of either (A) or (B) above, BeautiControl shall pay the Termination Fee upon the earlier of the execution of such agreement or upon consummation of such Takeover Proposal or Superior Proposal. 23 For purposes of the Merger Agreement, "Expenses" means documented reasonable out-of-pocket fees and expenses incurred or paid by or on behalf of Tupperware in connection with the Offer, the Merger or the consummation of any of the transactions contemplated by the Merger Agreement, including all fees and expenses of law firms, commercial banks, investment banking firms, accountants, experts and consultants to Tupperware. The Stockholder Agreements. The following summary description of the Stockholder Agreements is qualified in its entirety by reference to the agreements themselves, which we have filed as exhibits to the Schedule TO that we filed with the SEC, which you may examine and copy as set forth in Section 8. Tupperware entered into Stockholder Agreements dated as of September 13, 2000 (the "Stockholder Agreements") with each of the following stockholders of BeautiControl: Richard W. Heath, Jinger L. Heath, A. Stark Taylor, Joel Williams, Sheila O'Connell Cooper, Joseph M. Haggar, III, Robert S. Folsom and Charles M. Diker (the "Tendering Stockholders"). Pursuant to the Stockholder Agreements, each Tendering Stockholder has agreed that, (a) such Tendering Stockholder will, promptly after the commencement of the Offer, and in no event later than five business days prior to the first scheduled expiration date of the Offer, tender and not withdraw his or her Shares pursuant to the Offer; (b) such Tendering Stockholder will vote his or her Shares in favor of the Merger and the Merger Agreement; (c) such Tendering Stockholder will vote his or her Shares against (i) any other merger agreement or merger, Takeover Proposal consolidation, combination, sale of substantial assets, reorganization, recapitalization, dissolution, liquidation or winding up of or by BeautiControl or any of its subsidiaries or (ii) any amendment of BeautiControl's Restated Certificate of Incorporation or Restated Bylaws or other proposal or transaction involving BeautiControl or any of its subsidiaries, which amendment or other proposal or transaction would in any manner impede, frustrate, prevent or nullify the Offer, the Merger, the Merger Agreement or any of the other transactions contemplated by the Merger Agreement or change in any manner the voting rights of any class of capital stock of BeautiControl; (d) such Tendering Stockholder will not tender his or her Shares pursuant to any offer other than the Offer; (e) such Tendering Stockholder will not (i) sell, transfer, pledge, assign or otherwise dispose of, or enter into any contract, option or other arrangement (including any profit sharing arrangement) with respect to the sale, transfer, pledge, assignment or other disposition of, his or her Shares to any person other than in connection with the Offer and the Merger or (ii) enter into any voting arrangement, whether by proxy, voting agreement or otherwise, in relation to his or her Shares; (f) such Tendering Stockholder will not, and will not authorize any investment banker, attorney or other adviser or representative of such Tendering Stockholder to directly or indirectly, (i) solicit, initiate or encourage the submission of, any Takeover Proposal or (ii) participate in any discussions or negotiations regarding, or furnish to any person any information with respect to BeautiControl or any of its subsidiaries, or take any other action to facilitate any inquiries or the making of any proposal that constitutes, or may reasonably be expected to lead to, any Takeover Proposal except in his or her capacity as a representative or agent of BeautiControl, as permitted by the terms and conditions of the Merger Agreement; (g) such Tendering Stockholder will use his or her best efforts to take all actions and to do all things necessary, proper or advisable to support and to consummate the Offer and the Merger; (h) such Tendering Stockholder will promptly notify Tupperware in writing of any acquisition of BeautiControl voting securities by such Tendering Stockholder after the date of the Stockholder Agreement; (i) such Tendering Stockholder has, by executing the Stockholder Agreement, revoked any and all prior proxies or powers of attorney with respect to his or her Shares and (j) such Tendering Stockholder will not to take any action inconsistent with any of the above covenants. In addition, Richard W. Heath and Jinger L. Heath have each, in their individual Stockholder Agreements, agreed that they will, individually, within 90 days of the closing of the Merger, purchase in the open market not less than $1.25 million worth of Tupperware common stock and that they will not for two years thereafter sell, transfer, pledge, assign or otherwise dispose of, short against the box or in any way reduce their risk in the purchased shares of Tupperware common stock, unless (i) Tupperware terminates their employment, (ii) E.V. 24 Goings ceases to be Chief Executive Officer of Tupperware or (iii) Tupperware undergoes a change in control (as defined in such Stockholder Agreements). Richard W. Heath and Jinger L. Heath have also agreed, in their individual Stockholder Agreements, that they will not, for so long as they are receiving severance payments under the relevant provision of their Employment Agreements, (i) engage in any, or assist any person who is engaged in any, business in competition with any business conducted or contemplated by Tupperware or BeautiControl in which they had been involved prior to the termination of their employment (ii) in any manner, directly or indirectly induce or attempt to induce any employee or independent sales force member of BeautiControl, its subsidiaries or any worldwide direct selling company of Tupperware to terminate or abandon his or her relationship with BeautiControl or Tupperware or (iii) in connection with any business in which they were involved while employed by BeautiControl, call on, service, solicit or otherwise do business with any customer of BeautiControl or any of the worldwide direct selling companies of Tupperware. The Stockholder Agreements will terminate upon the earlier of (i) the Effective Time or (ii) six months following the termination of the Merger Agreement, provided however, that (A) the obligations of Mr. and Mrs. Heath regarding the purchase of Tupperware Common Stock, noncompetition and nonsolicitation will terminate in accordance with the terms of those specific provisions of their Stockholder Agreements, and (B) upon termination of the Merger Agreement, the Tendering Stockholders will no longer be required to tender into the Offer, refrain from withdrawing their Shares from the Offer or vote in favor of the Merger and the Merger Agreement. Consequently, in the event that the Merger Agreement is terminated, the obligations of the Tendering Stockholders to vote their shares against any Takeover Proposal and not tender their shares into any other offer, along with the other provisions of the Stockholder Agreement, will continue in effect until six months following the termination of the Merger Agreement, even if the Board of Directors of BeautiControl recommends the approval of such transaction. The Employment Agreements. The following summary description of the Employment Agreements is qualified in its entirety by reference to the agreements themselves, which we have filed as exhibits to the Schedule TO that we filed with the SEC, which you may examine and copy as set forth in Section 8. Concurrently with the execution of the Merger Agreement, Tupperware agreed that it would, upon the effectiveness of the Merger, cause BeautiControl to enter into an Employment Agreement with each of Richard W. Heath and Jinger L. Heath. The form of those Employment Agreements has been agreed to. Richard W. Heath's Employment Agreement provides that he will be employed as President and Chief Executive Officer of BeautiControl. In his capacity as such he will, subject to the powers, authority and responsibility vested in BeautiControl's Board of Directors, have the authority and responsibility for the strategic direction and international expansion of BeautiControl and the general administration of BeautiControl's affairs. The term of his Employment Agreement is for five years from the Effective Time of the Merger. His base salary will be at a rate of $300,000 per year and he shall be eligible for an annual incentive bonus under Tupperware's annual bonus plan. His annual target bonus will be at least 45% of his base salary, but he will in no event be able to receive an annual bonus in excess of 90% of his base salary. Mr. Heath's Employment Agreement provides that Tupperware will recommend to the Compensation Committee of its Board of Directors that, as soon as practicable following the effective time of the Merger, Mr. Heath be granted an option to purchase 52,500 shares of Tupperware common stock at a price equal to the fair market value of a share of Tupperware common stock on the date of grant. During the term of his Employment Agreement, Tupperware will recommend to the Compensation Committee of its Board of Directors that Mr. Heath be granted an option to purchase at least 35,000 shares of Tupperware common stock. All such awards are to be subject to the terms and conditions of the Tupperware 2000 Incentive Plan. Mr. Heath's Employment Agreement also provides that he will be eligible to receive other benefits, including participation in BeautiControl's employee benefit plans, time off for vacation or illness in accordance with BeautiControl's policies for executives, golf club membership, payment for financial planning advice and use of an automobile. 25 In the event that Tupperware terminates Mr. Heath other than for cause (as defined in his Employment Agreement), he will be entitled to continuation of payments equal to his base salary for two years. Ms. Heath's Employment Agreement provides that she will serve as the Chairman of BeautiControl. In her capacity as such, she will, subject to the powers, authority and responsibilities vested in BeautiControl's Board of Directors, have the authority and responsibility for the creative function of BeautiControl. In other respects, Ms. Heath's Employment Agreement is materially identical to Mr. Heath's. Confidentiality Agreements The following summary description of confidentiality agreements entered into between BeautiControl and Tupperware (the "Confidentiality Agreements") is qualified in its entirety by reference to the agreements themselves, which are exhibits to the Schedule TO that we filed with the SEC, which you may examine and copy as set forth in Section 8. Effective as of August 18, 2000, Tupperware and BeautiControl into a Confidentiality Agreement, pursuant to which the parties agreed, among other things, to keep confidential all of the confidential information provided to such parties, except with respect to disclosures to directors, officers, employees and certain representatives for the purpose of evaluating the transactions contemplated by the Merger Agreement. Each party also agreed not to use, or to permit any of its representatives to use, any of such information for any purpose other than the evaluation of the transactions contemplated by the Merger Agreement, and agreed not to make any of such information available to any person for any other purpose whatsoever. Each party also agreed not to disclose the fact that it was engaged in discussions concerning the transactions contemplated by the Merger Agreement, the fact that the confidential information had been disclosed to the other party, or the fact that the other party had inspected any portion of the confidential information. In addition, Tupperware and BeautiControl also entered into a second Confidentiality Agreement, pursuant to which Tupperware agreed, in return for the Company's making available certain non-public information, to use such information solely for the purpose of evaluating the transaction between the parties. Tupperware also agreed that it and its representatives will not disclose any of the evaluation information in any manner whatsoever, unless BeautiControl gives its prior written consent or unless the disclosure is made to a representative of Tupperware who needs to have such material for the sole purpose of evaluating the transaction between the parties. Tupperware further agreed, among other things, to take reasonable precautions to safeguard and protect the confidentiality of the material provided to it. Tupperware agreed that, except under certain circumstances, it and its representatives will not disclose to any other person the fact that the materials have been provided to it or that discussions or negotiations were taking place. Statutory Requirements. In general, under the DGCL a merger of two Delaware corporations requires the adoption of a resolution by the board of directors of each of the corporations desiring to merge approving an agreement of merger containing provisions with respect to certain statutorily specified matters and the approval of such agreement of merger by the stockholders of each corporation by the affirmative vote of the holders of a majority of all the outstanding shares of stock entitled to vote on such merger. According to BeautiControl's Restated Certificate of Incorporation, the Shares are the only securities of BeautiControl which entitle the holders thereof to voting rights. The DGCL also provides that if a parent company owns at least 90% of each class of stock of a subsidiary that is outstanding and would be entitled to vote on a merger, the parent company can effect a short-form merger (a "Short- Form Merger") with that subsidiary without the action of the other stockholders of the subsidiary. Accordingly, if as a result of the Offer or otherwise Purchaser acquires or controls the voting power of at least 90% of the Shares, Purchaser could, and intends (subject to the conditions to its obligations to effect the Merger contained in the Merger Agreement) to, effect the Merger without prior notice to, or any action by, 26 any other stockholder of BeautiControl. Pursuant to the Merger Agreement, under certain circumstances we could extend the Offer in order to receive tenders of at least 90% of the issued and outstanding shares of Common Stock to enable us to effect a Short-Form Merger. See "--The Merger Agreement--The Offer." Appraisal Rights. No appraisal rights are available in connection with the Offer. However, if the Merger is consummated, any holder of Shares at the Effective Time (a "Remaining Stockholder") will have certain rights under the DGCL to dissent and demand appraisal of their Shares. Under Section 262 of the DGCL, a Remaining Stockholder who does not wish to accept the Merger Consideration pursuant to the Merger has the right to seek an appraisal and be paid the "fair value" of its Shares at the Effective Time (exclusive of any element of value arising from the accomplishment or expectation of the Merger) judicially determined and paid to it in cash provided that such holder complies with the provisions of Section 262 of the DGCL. The following is a brief summary of the statutory procedures to be followed by a Remaining Stockholder in order to dissent from the Merger and perfect appraisal rights under Delaware law. This summary is not intended to be complete and is qualified in its entirety by reference to Section 262 of the DGCL, the text of which is set forth in Annex A hereto. Any Remaining Stockholder considering demanding appraisal is advised to consult legal counsel. Dissenter's rights will not be available unless and until the Merger (or a similar business combination) is consummated. Remaining Stockholders of record who desire to exercise their appraisal rights must fully satisfy all of the following conditions. A written demand for appraisal of Shares must be delivered to the Secretary of BeautiControl (a) before the taking of the vote on the approval and adoption of the Merger Agreement if the Merger is not being effected as a Short-Form Merger but rather is being consummated following approval thereof at a meeting of BeautiControl's stockholders (a "Long-Form Merger") or (b) within 20 days after the date that the Surviving Corporation mails to the Remaining Stockholders a notice (the "Notice of Merger") to the effect that the Merger is effective and that appraisal rights are available (and includes in such notice a copy of Section 262 of the DGCL and any other information required thereby) if the Merger is being effected as a Short-Form Merger without a vote or meeting of BeautiControl's stockholders. If the Merger is effected as a Long-Form Merger, this written demand for appraisal of Shares must be in addition to and separate from any proxy or vote abstaining from or against the approval and adoption of the Merger Agreement, and neither voting against, abstaining from voting, nor failing to vote on the Merger Agreement will constitute a demand for appraisal within the meaning of Section 262 of the DGCL. In the case of a Long-Form Merger, any stockholder seeking appraisal rights must hold the Shares for which appraisal is sought on the date of the making of the demand, continuously hold such Shares through the Effective Time, and otherwise comply with the provisions of Section 262 of the DGCL. In the case of both a Short-Form Merger and a Long-Form Merger, a demand for appraisal must be executed by or for the stockholder of record, fully and correctly, as such stockholder's name appears on the stock certificates. If Shares are owned of record in a fiduciary capacity, such as by a trustee, guardian or custodian, such demand must be executed by the fiduciary. If Shares are owned of record by more than one person, as in a joint tenancy or tenancy in common, such demand must be executed by all joint owners. An authorized agent, including an agent for two or more joint owners, may execute the demand for appraisal for a stockholder of record; however, the agent must identify the record owner and expressly disclose the fact that, in exercising the demand, he is acting as agent for the record owner. A record owner, such as a broker, who holds Shares as a nominee for others, may exercise appraisal rights with respect to the Shares held for all or less than all beneficial owners of Shares as to which the holder is the record owner. In such case the written demand must set forth the number of Shares covered by such demand. Where the number of Shares is not expressly stated, the demand will be presumed to cover all Shares outstanding in the name of such record owner. Beneficial owners who are not record owners and who intend to 27 exercise appraisal rights should instruct the record owner to comply strictly with the statutory requirements with respect to the exercise of appraisal rights before the date of any meeting of stockholders of BeautiControl called to approve the Merger in the case of a Long-Form Merger and within 20 days following the mailing of the Notice of Merger in the case of a Short-Form Merger. Remaining Stockholders who elect to exercise appraisal rights must mail or deliver their written demands to: Secretary, BeautiControl, Inc., 2121 Midway Road, Carrollton, TX 75006. The written demand for appraisal should specify the stockholder's name and mailing address, the number of Shares covered by the demand and that the stockholder is thereby demanding appraisal of such Shares. In the case of a long-form merger, BeautiControl must, within ten days after the Effective Time, provide notice of the Effective Time to all stockholders who have complied with Section 262 of the DGCL and have not voted for approval and adoption of the Merger Agreement. In the case of a Long-Form Merger, Remaining Stockholders electing to exercise their appraisal rights under Section 262 must not vote for the approval and adoption of the Merger Agreement or consent thereto in writing. Voting in favor of the approval and adoption of the Merger Agreement, or delivering a proxy in connection with the stockholders meeting called to approve the Merger Agreement (unless the proxy votes against, or expressly abstains from the vote on, the approval and adoption of the Merger Agreement), will constitute a waiver of the stockholder's right of appraisal and will nullify any written demand for appraisal submitted by the stockholder. Regardless of whether the Merger is effected as a Long-Form Merger or a Short-Form Merger, within 120 days after the Effective Time, either BeautiControl or any stockholder who has complied with the required conditions of Section 262 and who is otherwise entitled to appraisal rights may file a petition in the Delaware Court of Chancery demanding a determination of the fair value of the Shares of the dissenting stockholders. If a petition for an appraisal is timely filed, after a hearing on such petition, the Delaware Court of Chancery will determine which stockholders are entitled to appraisal rights and thereafter will appraise the Shares owned by such stockholders, determining the fair value of such Shares, exclusive of any element of value arising from the accomplishment or expectation of the Merger, together with a fair rate of interest to be paid, if any, upon the amount determined to be the fair value. In determining fair value, the Delaware Court of Chancery is to take into account all relevant factors. In Weinberger v. UOP, Inc., et al., the Delaware Supreme Court discussed the factors that could be considered in determining fair value in an appraisal proceeding, stating that "proof of value by any techniques or methods which are generally considered acceptable in the financial community and otherwise admissible in court" should be considered and that "[f]air price obviously requires consideration of all relevant factors involving the value of a company." The Delaware Supreme Court stated that in making this determination of fair value the court must consider "market value, asset value, dividends, earnings prospects, the nature of the enterprise and any other facts which were known or which could be ascertained as of the date of merger which throw any light on future prospects of the merged corporation . . ." The Delaware Supreme Court has construed Section 262 of the DGCL to mean that "elements of future value, including the nature of the enterprise, which are known or susceptible of proof as of the date of the merger and not the product of speculation, may be considered." However, the court noted that Section 262 provides that fair value is to be determined "exclusive of any element of value arising from the accomplishment or expectation of the merger." Remaining Stockholders who in the future consider seeking appraisal should have in mind that the fair value of their Shares determined under Section 262 could be more than, the same as, or less than the Merger Consideration if they do seek appraisal of their Shares, and that opinions of investment banking firms as to fairness from a financial point of view are not necessarily opinions as to fair value under Section 262 of the DGCL. Moreover, Tupperware intends to cause the Surviving Corporation to argue in any appraisal proceeding that, for purposes thereof, the "fair value" of the Shares is less than that paid in the Offer. The cost of the appraisal proceeding may be determined by the Delaware Court of Chancery and taxed upon the parties as the Delaware Court of Chancery deems equitable in the circumstances. Upon application of a dissenting stockholder, the Delaware Court of Chancery may order that all or a portion of the expenses incurred by any 28 dissenting stockholder in connection with the appraisal proceeding, including, without limitation, reasonable attorneys' fees and the fees and expenses of experts, be charged pro rata against the value of all Shares entitled to appraisal. In the absence of such a determination or assessment, each party bears its own expenses. Any Remaining Stockholder who has duly demanded appraisal in compliance with Section 262 of the DGCL will not, after the Effective Time, be entitled to vote for any purpose the Shares subject to such demand or to receive payment of dividends or other distributions on such Shares, except for dividends or other distributions payable to stockholders of record at a date prior to the Effective Time. At any time within 60 days after the Effective Time, any former holder of Shares shall have the right to withdraw his or her demand for appraisal and to accept the Merger Consideration. After this period, such holder may withdraw his or her demand for appraisal only with the consent of BeautiControl as the Surviving Corporation. If no petition for appraisal is filed with the Delaware Court of Chancery within 120 days after the Effective Time, stockholders' rights to appraisal shall cease and all stockholders shall be entitled to receive the Merger Consideration. Inasmuch as BeautiControl has no obligation to file such a petition, and Tupperware has no present intention to cause or permit the Surviving Corporation to do so, any stockholder who desires such a petition to be filed is advised to file it on a timely basis. However, no petition timely filed in the Delaware Court of Chancery demanding appraisal shall be dismissed as to any stockholder without the approval of the Delaware Court of Chancery, and such approval may be conditioned upon such terms as the Delaware Court of Chancery deems just. Failure to take any required step in connection with the exercise of appraisal rights may result in the termination or waiver of such rights. APPRAISAL RIGHTS CANNOT BE EXERCISED AT THIS TIME. THE INFORMATION SET FORTH ABOVE IS FOR INFORMATIONAL PURPOSES ONLY WITH RESPECT TO ALTERNATIVES AVAILABLE TO STOCKHOLDERS IF THE MERGER IS CONSUMMATED. STOCKHOLDERS WHO WILL BE ENTITLED TO APPRAISAL RIGHTS IN CONNECTION WITH THE MERGER WILL RECEIVE ADDITIONAL INFORMATION CONCERNING APPRAISAL RIGHTS AND THE PROCEDURES TO BE FOLLOWED IN CONNECTION THEREWITH BEFORE SUCH STOCKHOLDERS HAVE TO TAKE ANY ACTION RELATING THERETO. STOCKHOLDERS WHO SELL SHARES IN THE OFFER WILL NOT BE ENTITLED TO EXERCISE APPRAISAL RIGHTS WITH RESPECT THERETO BUT, RATHER, WILL RECEIVE THE PRICE PAID IN THE OFFER THEREFOR. Plans for BeautiControl After the Offer and the Merger. Pursuant to the Merger Agreement, upon completion of the Offer, Tupperware and Purchaser intend to effect the Merger in accordance with the Merger Agreement. See "--The Merger Agreement." Except as otherwise described in this Offer to Purchase, Tupperware has no current plans or proposals or negotiations which relate to or would result in: (i) other than the Merger, an extraordinary corporate transaction, such as a merger, reorganization or liquidation involving BeautiControl; (ii) any purchase, sale or transfer of a material amount of assets of BeautiControl; (iii) any change in the management of BeautiControl or any change in any material term of the employment contract of any executive officer of BeautiControl; or (iv) any other material change in BeautiControl's corporate structure or business. Nevertheless, Tupperware may initiate a review of BeautiControl and its assets, corporate structure, capitalization, operations, properties, policies, management and personnel to determine what changes, if any, would be desirable following the Merger in order best to organize and integrate the activities of Tupperware and BeautiControl. 29 12. Source and Amount of Funds. The Offer is not conditioned on obtaining financing. Tupperware estimates that the total amount of funds required to purchase all of the Shares pursuant to the Offer and to pay all amounts due with respect to stock options as a result of the Offer and the Merger (excluding related fees and expenses) will be approximately $54.3 million. The Purchaser expects to obtain these funds from capital contributions or loans to the Purchaser from Tupperware. Tupperware intends to obtain the funds for such capital contributions or loans from borrowings under Tupperware's Revolving Credit Agreement (as defined below) and/or from the issuance of privately placed commercial paper pursuant to an agreement currently being negotiated with Goldman Sachs International. Under the terms of the Tupperware's Competitive Advance and Revolving Credit Facility Agreement dated as of May 16, 1996 and amended as of August 8, 1997 (the "Revolving Credit Agreement"), with Chemical Bank (now Chase Manhattan Bank) as agent bank (the "Agent"), and certain other commercial banks, Tupperware may borrow up to an aggregate of $300 million on an unsecured basis. As of September 19, 2000, no borrowings were outstanding thereunder. The term of the Revolving Credit Agreement expires on August 8, 2002. The Revolving Credit Agreement is used by Tupperware principally as a back-up facility for an existing U.S. commercial paper program. As of September 19, 2000, outstanding borrowings under the existing U.S. commercial paper program totaled approximately $195.2 million, leaving approximately $104.8 million of additional borrowing capacity under the Revolving Credit Agreement. The interest rate on a borrowing under the Revolving Credit Agreement is the London Interbank Offer Rate for the interest period plus a margin (as defined therein). The Revolving Credit Agreement contains certain covenants of Tupperware and its subsidiaries, including a limitation on consolidated debt, restrictions on subsidiary debt, restrictions on liens, a consolidated leverage ratio requirement and a consolidated interest coverage ratio requirement. In addition to typical events of default, including cross default, the Revolving Credit Agreement provides that a "change of control" (as defined therein) of Tupperware shall constitute an event of default unless the change of control is approved by the directors of Tupperware in accordance with the Revolving Credit Agreement. Tupperware is currently negotiating, but as of September 19, 2000, has not finalized, an agreement with Goldman Sachs International, London, to act as Arranger and Dealer for a Euro-commercial paper program. Under this agreement, Euro-commercial paper will be issuable in denominations of not less than the equivalent of $500,000 with maturities not exceeding 364 days. The Euro- commercial paper may be sold either at a discount or as interest bearing obligations with interest payable at maturity. Tupperware expects that any Euro-commercial paper to be issued will be sold at discounts comparable to those for similarly rated Euro-commercial paper. Tupperware's existing U.S. commercial paper is currently rated A-2 by Standard & Poor's Corporation and P- 2 by Moody's Investors Service, Inc. It is anticipated that the indebtedness incurred by Tupperware through the issuance of commercial paper and/or borrowings under the Revolving Credit Agreement will be repaid from funds generated internally by Tupperware and its subsidiaries (including, after the Merger, if consummated, funds generated by BeautiControl) and from other sources which may include the proceeds of the sale of private or public debt securities (including commercial paper). No final decisions have been made concerning the repayment of such indebtedness and decisions will be made based on Tupperware's review from time to time of the advisability of particular actions, as well as on prevailing interest rates and financial and other economic conditions. 13. Dividends and Distributions. The Merger Agreement provides that subject to certain limited exceptions, BeautiControl shall not, without the prior written consent of Tupperware, (i) declare, set aside or pay any dividends on, or make any other actual, constructive or deemed distributions in respect of, any of its capital stock, or otherwise make any payments to its stockholders in their capacity as such, (ii) split, combine or reclassify any of its capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of its 30 capital stock, or (iii) purchase, redeem or otherwise acquire any of its own shares of capital stock of BeautiControl or any other securities thereof or any rights, warrants or options to acquire any such shares or other securities. 14. Conditions of the Offer. Conditions to the Offer. Notwithstanding any other term of the Offer or the Merger Agreement, Purchaser shall not be required to accept for payment or, subject to any applicable rules and regulations of the SEC, including Rule 14e- 1(c) under the Exchange Act (relating to Purchaser's obligation to pay for or return tendered Shares after the termination or withdrawal of the Offer), to pay for any Shares tendered pursuant to the Offer unless (i) the Minimum Condition shall have been satisfied and, (ii) any waiting period under the HSR Act applicable to the purchase of Shares pursuant to the Offer shall have expired or been terminated prior to the expiration date of the Offer. Furthermore, notwithstanding any other term of the Offer or the Merger Agreement, Purchaser shall not be required to accept for payment or, subject as aforesaid, to pay for any Shares not theretofore accepted for payment or paid for, and may terminate the Offer if, at any time on or after the date of the Merger Agreement and before the acceptance of such Shares for payment or the payment therefor, any of the following conditions exist (other than as a result of any action or inaction of Tupperware or any of its subsidiaries that constitutes a breach of the Merger Agreement): (a) there shall be threatened or pending by any Governmental Entity (as defined in the Merger Agreement) any suit, action or proceeding (i) challenging the acquisition by Tupperware or Purchaser of any Shares under the Offer, seeking to restrain or prohibit the making or consummation of the Offer or the Merger or the performance of any of the other transactions contemplated by the Merger Agreement or the Stockholder Agreements (including the voting provisions thereunder), or seeking to obtain from BeautiControl, Tupperware or Purchaser any damages that are material in relation to BeautiControl and its subsidiaries taken as a whole, (ii) seeking to prohibit or materially limit the ownership or operation by BeautiControl, Tupperware or any of their respective subsidiaries of a material portion of the business or assets of BeautiControl and its subsidiaries, taken as a whole, or Tupperware and its subsidiaries, taken as a whole, or to compel BeautiControl or Tupperware to dispose of or hold separate any material portion of the business or assets of BeautiControl and its subsidiaries, taken as a whole, or Tupperware and its subsidiaries, taken as a whole, in each case, as a result of the Offer or any of the other transactions contemplated by the Merger Agreement or the Stockholder Agreements, (iii) seeking to impose material limitations on the ability of Tupperware or Purchaser to acquire or hold, or exercise full rights of ownership of, any Shares to be accepted for payment pursuant to the Offer, including the right to vote such Shares on all matters properly presented to the stockholders of BeautiControl, (iv) seeking to prohibit Tupperware or any of its subsidiaries from effectively controlling in any material respect any material portion of the business or operations of BeautiControl or its subsidiaries (v) which otherwise is reasonably likely to have a Material Adverse Effect (as defined below) on BeautiControl, or there shall be pending by any other person any suit, action or proceeding which would have a Material Adverse Effect on BeautiControl; (b) there shall be enacted, entered, enforced, promulgated or deemed applicable to the Offer or the Merger by any Governmental Entity any statute, rule, regulation, judgment, order or injunction, other than the application to the Offer or the Merger of applicable waiting periods under the HSR Act, that is reasonably likely to result, directly or indirectly, in any of the consequences referred to in clauses (i) through (v) of paragraph (a) above; (c) there shall have occurred any Material Adverse Change with respect to BeautiControl; (d) (i) the BeautiControl Board or any committee thereof shall have withdrawn or modified in a manner adverse to Tupperware or Purchaser its approval or recommendation of the Offer, the Merger or the Merger Agreement, or approved or recommended any Takeover Proposal or (ii) the BeautiControl Board or any committee thereof shall have resolved to take any of the foregoing actions; 31 (e) the representations and warranties of BeautiControl set forth in the Merger Agreement shall not be true and correct in each case at the date of the Merger Agreement and at the scheduled or extended expiration of the Offer unless the inaccuracies (without giving effect to any materiality or Material Adverse Effect qualifications or exceptions contained therein) under such representations and warranties, taking all the inaccuracies under such representations and warranties together in their entirety, do not, individually or in the aggregate, result in a Material Adverse Effect on BeautiControl; (f) BeautiControl shall have failed to perform in any material respect any material obligation or to comply in any material respect with any material agreement or covenant of BeautiControl to be performed or complied with by it under the Merger Agreement; (g) any person or "group" (as defined in Section 13(d)(3) of the Exchange Act), other than Tupperware, Purchaser or their affiliates or any group of which any of them is a member, shall have acquired or announced its intention to acquire beneficial ownership (as determined pursuant to Rule 13d-3 promulgated under the Exchange Act) of 15% or more of the Shares; (h) there shall have occurred and be continuing (i) any general suspension of trading in, or limitation on prices for, securities on a national securities exchange in the United States (excluding any coordinated trading halt triggered solely as a result of a specified decrease in a market index), (ii) a declaration of a banking moratorium or any suspension of payments in respect of banks in the United States, (iii) any limitation (whether or not mandatory) by any Governmental Entity on, or other event that materially adversely affects, the extension of credit by banks or other lending institutions, (iv) a commencement of a war or armed hostilities or other national or international calamity directly or indirectly involving the United States which in any case is reasonably expected to have a Material Adverse Effect on BeautiControl or to materially adversely affect Tupperware's or Purchaser's ability to complete the Offer and/or the Merger or materially delay the consummation of the Offer and/or the Merger, or (v) from the date of the Merger Agreement through the date of termination or expiration, a decline of at least 25% in either the Dow Jones Industrial Average, the Standard & Poor's 500 Index or the NASDAQ Composite Index; or (i) the Merger Agreement shall have been terminated in accordance with its terms. "Material Adverse Change" or "Material Adverse Effect" means any change or effect that is or could reasonably be expected (as far as can be foreseen at the time) to be materially adverse to the business, operations, properties, assets, liabilities, earnings or results of operations, financial projections or forecasts, or the business prospects or condition (financial or otherwise), with all such matters being considered in the aggregate, of BeautiControl and its subsidiaries, taken as a whole. The foregoing conditions are for the sole benefit of Tupperware and Purchaser and may, subject to the terms of the Merger Agreement, be waived by Tupperware and Purchaser in whole or in part at any time and from time to time in their sole discretion. The failure by Tupperware or Purchaser at any time to exercise any of the foregoing rights shall not be deemed a waiver of any such right, the waiver of any such right with respect to particular facts and circumstances shall not be deemed a waiver with respect to any other facts and circumstances and each such right shall be deemed an ongoing right that may be asserted at any time and from time to time. 15. Legal Matters; Required Regulatory Approvals. Except as set forth in this Offer to Purchase, based on our review of publicly available filings by BeautiControl with the SEC and other information regarding BeautiControl, we are not aware of any licenses or regulatory permits that appear to be material to the business of BeautiControl and that might be adversely affected by our acquisition of Shares in the Offer. In addition, except as described in this Offer to Purchase, we are not aware of any filings, approvals or other actions by or with any governmental authority or administrative or regulatory agency that would be required for our acquisition or ownership of the Shares. Should any such approval or other action be required, we expect to seek such approval or action, except as described below 32 under "State Takeover Laws." Should any such approval or other action be required, we cannot be certain that we would be able to obtain any such approval or action without substantial conditions or that adverse consequences might not result to BeautiControl's business, or that certain parts of BeautiControl's, Tupperware's, or any of their respective subsidiaries' businesses might not have to be disposed of or held separate in order to obtain such approval or action. In that event, we may not be required to purchase any Shares in the Offer. See Introduction and Section 14 for a description of the conditions to the Offer. State Takeover Laws. BeautiControl is incorporated under the laws of the State of Delaware. In general, Section 203 of the DGCL ("Section 203") prevents an "interested stockholder" (including a person who owns or has the right to acquire 15% or more of a corporation's outstanding voting stock) from engaging in a "business combination" (defined to include mergers and certain other actions) with a Delaware corporation for a period of three years following the date such person became an interested stockholder unless, among other things, the "business combination" is approved by the Board of Directors of such corporation prior to such date. The BeautiControl Board has approved the Offer and the Merger. Accordingly, Section 203 is inapplicable to the Offer and the Merger. A number of other states have adopted laws and regulations applicable to attempts to acquire securities of corporations which are incorporated, or have substantial assets, stockholders, principal executive offices or principal places of business or whose business operations otherwise have substantial economic effects in such states. In 1982, the Supreme Court of the United States, in Edgar v. Mite Corp., invalidated on constitutional grounds the Illinois Business Takeovers Statute, which as a matter of state securities law made takeovers of corporations meeting certain requirements more difficult. The reasoning in that decision is likely to apply to certain other state takeover statutes. In 1987, however, in CTS Corp. v. Dynamics Corp. of America, the Supreme Court of the United States held that the State of Indiana could as a matter of corporate law and, in particular, those aspects of corporate law concerning corporate governance, constitutionally disqualify a potential acquirer from voting on the affairs of a target corporation without the prior approval of the remaining stockholders, as long as those laws were applicable only under certain conditions. Subsequently, in TLX Acquisition Corp. v. Telex Corp., a federal district court in Oklahoma ruled that the Oklahoma statutes were unconstitutional insofar as they apply to corporations incorporated outside Oklahoma, because they would subject those corporations to inconsistent regulations. Similarly, in Tyson Foods, Inc. v. McReynolds, a federal district court in Tennessee ruled that four Tennessee takeover statutes were unconstitutional as applied to corporations incorporated outside Tennessee. This decision was affirmed by the United States Court of Appeals for the Sixth Circuit. In December 1988, a federal district court in Florida held, in Grand Metropolitan PLC v. Butterworth, that the provisions of the Florida Affiliated Transactions Act and Florida Control Share Acquisition Act were unconstitutional as applied to corporations incorporated outside of Florida. We have not attempted to comply with any state takeover statutes in connection with the Offer or the Merger. We reserve the right to challenge the validity or applicability of any state law allegedly applicable to the Offer or the Merger, and nothing in this Offer to Purchase nor any action that we take in connection with the Offer is intended as a waiver of that right. In the event that it is asserted that one or more takeover statutes apply to the Offer or the Merger, and it is not determined by an appropriate court that the statutes in question do not apply or are invalid as applied to the Offer or the Merger, as applicable, we may be required to file certain documents with, or receive approvals from, the relevant state authorities, and we might be unable to accept for payment or purchase Shares tendered in the Offer or be delayed in continuing or consummating the Offer. In that case, we may not be obligated to accept for purchase, or pay for, any Shares tendered. See Section 14. Antitrust. Under the HSR Act, certain acquisition transactions may not be consummated until certain information and documentary material has been furnished for review by the Federal Trade Commission (the "FTC") and the Antitrust Division of the Department of Justice (the "Antitrust Division") and certain waiting period requirements have been satisfied. These requirements apply to our acquisition of Shares in the Offer and the Merger. 33 Under the HSR Act, the purchase of Shares in the Offer may not be completed until the expiration of a 15-calendar-day waiting period following the filing of certain required information and documentary material concerning the Offer with the FTC and the Antitrust Division, unless the waiting period is earlier terminated by the FTC and the Antitrust Division. We expect to file a Premerger Notification and Report Form under the HSR Act with the FTC and the Antitrust Division in connection with the purchase of Shares in the Offer and the Merger on September 21, 2000, and, in that event, the required waiting period with respect to the Offer and the Merger will expire at 11:59 p.m., New York City time, on or about October 6, 2000, unless earlier terminated by the FTC or the Antitrust Division or we receive a request for additional information or documentary material prior to that time. If within the 15-calendar-day waiting period either the FTC or the Antitrust Division requests additional information or documentary material from us, the waiting period with respect to the Offer and the Merger would be extended for an additional period of 10 calendar days following the date of our substantial compliance with that request. Only one extension of the waiting period pursuant to a request for additional information is authorized by the HSR Act rules. After that time, the waiting period could be extended only by court order or with our consent. The FTC or the Antitrust Division may terminate the additional 10-calendar-day waiting period before its expiration. In practice, complying with a request for additional information or documentary material can take a significant period of time. Although BeautiControl is required to file certain information and documentary material with the FTC and the Antitrust Division in connection with the Offer, neither BeautiControl's failure to make those filings nor a request made to BeautiControl from the FTC or the Antitrust Division for additional information or documentary material will extend the waiting period with respect to the purchase of Shares in the Offer and the Merger. The FTC and the Antitrust Division frequently scrutinize the legality under the antitrust laws of transactions such as our acquisition of Shares in the Offer and the Merger. At any time before or after our purchase of Shares, the FTC or the Antitrust Division could take any action under the antitrust laws that either considers necessary or desirable in the public interest, including seeking to enjoin the purchase of Shares in the Offer and the Merger, the divestiture of Shares purchased in the Offer or the divestiture of substantial assets of BeautiControl, Tupperware or any of their respective subsidiaries or affiliates. Private parties as well as state attorneys general may also bring legal actions under the antitrust laws under certain circumstances. Based upon an examination of publicly available information relating to the businesses in which BeautiControl is engaged, we believe that the acquisition of Shares in the Offer and the Merger should not violate the applicable antitrust laws. Nevertheless, we cannot be certain that a challenge to the Offer and the Merger on antitrust grounds will not be made, or, if such challenge is made, what the result will be. 16. Fees and Expenses. We have retained Lazard Freres & Co. LLC to act as Dealer Manager in connection with the Offer, pursuant to which Lazard Freres & Co. LLC will receive customary fees upon consummation of the acquisition. We have also agreed to indemnify Lazard Freres & Co. LLC against certain liabilities and expenses in connection with its engagement, including liabilities under the federal securities laws. Lazard Freres & Co. LLC has rendered various investment banking services and other advisory services to Tupperware and its affiliates in the past and may continue to render such services, for which they have received and may continue to receive customary compensation from Tupperware and its affiliates. We have retained Georgeson Shareholder Communications Inc. as Information Agent in connection with the Offer. The Information Agent may contact holders of Shares by mail, telephone, telex, telegraph and personal interview and may request brokers, dealers and other nominee stockholders to forward material relating to the Offer to beneficial owners of Shares. We will pay the Information Agent reasonable and customary compensation for these services in addition to reimbursing the Information Agent for its reasonable out-of-pocket expenses. We have agreed to indemnify the Information Agent against certain liabilities and expenses in connection with the Offer, including certain liabilities under the federal securities laws. 34 In addition, we have retained ChaseMellon Shareholder Services, L.L.C. as the Depositary. We will pay the Depositary reasonable and customary compensation for its services in connection with the Offer, will reimburse the Depositary for its reasonable out-of-pocket expenses and will indemnify the Depositary against certain liabilities and expenses, including certain liabilities under the federal securities laws. Except as described in "The Merger Agreement--Fees and Expenses," BeautiControl will not pay any of the fees and expenses to be incurred by us in connection with the Offer. Except as set forth above, we will not pay any fees or commissions to any broker, dealer or other person for soliciting tenders of Shares pursuant to the Offer. We will reimburse brokers, dealers, commercial banks and trust companies and other nominees, upon request, for customary clerical and mailing expenses incurred by them in forwarding offering materials to their customers. 17. Miscellaneous. We are not aware of any jurisdiction where the making of the Offer is prohibited by any administrative or judicial action pursuant to any valid state statute. If we become aware of any valid state statute prohibiting the making of the Offer or the acceptance of the Shares, we will make a good faith effort to comply with that state statute. If, after a good faith effort, we cannot comply with the state statute, we will not make the Offer to, nor will we accept tenders from or on behalf of, the holders of Shares in that state. In any jurisdiction where the securities, blue sky or other laws require the Offer to be made by a licensed broker or dealer, the Offer shall be deemed to be made on behalf of Purchaser by the Dealer Manager or one or more registered brokers or dealers licensed under the laws of such jurisdiction. We have filed with the SEC a Tender Offer Statement on Schedule TO, together with exhibits, furnishing certain additional information with respect to the Offer, and may file amendments to our Schedule TO. Our Schedule TO and any exhibits or amendments may be examined and copies may be obtained from the SEC in the same manner as described in Section 8 with respect to information concerning BeautiControl. We have not authorized any person to give any information or to make any representation on our behalf not contained in this Offer to Purchase or in the Letter of Transmittal and, if given or made, you should not rely on any such information or representation as having been authorized. Neither the delivery of the Offer to Purchase nor any purchase pursuant to the Offer will under any circumstances create any implication that there has been no change in the affairs of Tupperware, Purchaser, BeautiControl or any of their respective subsidiaries since the date as of which information is furnished or the date of this Offer to Purchase. B-C MERGER CORPORATION September 20, 2000 35 SCHEDULE I DIRECTORS AND EXECUTIVE OFFICERS OF TUPPERWARE AND PURCHASER The name, present principal occupation or employment and business address and material occupations or employment for the past five years of each of the directors and executive officers of Tupperware and Purchaser is set forth below. Unless otherwise indicated below, each individual listed below has a business address of 14901 S. Orange Blossom Trail, Orlando, Florida 32837. Unless otherwise indicated below, each individual listed below is a citizen of the United States. Directors are designated by the symbol *. Directors and Executive Officers of Tupperware
Principal Occupation or Employment and Five-Year Name Employment History ---- -------------------- Rita Bornstein, Ph.D.* President of Rollins College, an independent comprehensive liberal arts college with campuses in Winter Park and Melbourne, Florida, since 1990. Dr. Bornstein served as Vice President of the University of Miami before being elected to her current position. She also chairs the Associated Colleges of the South. Gerald M. Crompton Senior Vice President, Product Marketing, Tupperware Worldwide since November 1997, after serving as Vice President, Product Marketing, Worldwide since November 1996. Prior thereto, he served as Vice President, Product Management for Tupperware Europe, Africa and Middle East since 1992. Mr. Crompton is a citizen of the United Kingdom. Judy B. Curry Vice President and Controller of Tupperware since August 2000. Prior thereto, she served in various financial positions with Tupperware since October 1990. Karel A. De Vydt Vice President and Chief Information Officer of Tupperware since January 1999. Prior thereto, he served as Director of Information Technology Worldwide from April 1997 after being the Director of Information Technology for Tupperware Europe, Africa and Middle East. Mr. De Vydt is a citizen of Belgium. R. Glenn Drake President, Tupperware North America since January 2000. Prior thereto, he served as Managing Director, Tupperware Canada from September 1998 after serving as Area Vice President of Tupperware North America from July 1995. Prior thereto, he served as Managing Director, Tupperware Spain from January 1993. Lillian D. Garcia Senior Vice President, Human Resources of Tupperware since December 1999. Prior thereto, she was Vice President Human Resources since March 1999, after serving in various human resources positions within Tupperware. E.V. Goings* Chairman and Chief Executive Officer of Tupperware since October 1997, after serving as President and Chief Operating Officer since 1996. Prior thereto, he served as Executive Vice President of Premark International, Inc. and President of Tupperware Worldwide since November 1992. Mr. Goings serves as a Director of SunTrust Bank, Florida. Clifford J. Grum* Retired Chairman of the Board and Chief Executive Officer of Temple-Inland Inc., a holding company with operations in corrugated packaging, bleached paperboard, building products and financial services. The business address of Temple-Inland Inc. is 303 South Temple Drive, Diboll, Texas 75941. Mr. Grum serves as a director of Cooper Industries, Inc. and Trinity Industries, Inc. Betsy D. Holden* President and Chief Executive Officer of Kraft Foods, Inc., a unit of Philip Morris Companies Inc., since May 2000. Prior thereto, she served as Executive Vice President of Kraft Foods, Inc. with responsibility for operations, research and
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Principal Occupation or Employment and Five-Year Name Employment History - - ---- -------------------- development, marketing services, procurement and e-business, since December 1998. Prior thereto, she served as Executive Vice President of Kraft Foods, Inc. and President of the Kraft Cheese Division since 1995, after serving as President of Kraft's Pizza Division. The business address of Kraft Foods, Inc. is 3 Lakes Drive, Northfield, Illinois 60093. David T. Halversen Senior Vice President, Business Development and Communications of Tupperware since November 1996. Prior thereto, he served as Senior Vice President, Planning, Business Development and Financial Relations since March 1996. He previously served as Vice President, Business Development and Planning since February 1995, after serving in various planning and strategy positions with Avon Products, Inc. Charles H.R. Henry Vice President, Process Reengineering of Tupperware since January 1999. From 1994 to 1998, he served in various executive positions with Tupperware Europe, Africa and Middle East. Mr. Henry is a citizen of Australia. Alan D. Kennedy President of Tupperware, since April 1998. Prior thereto, he was an independent consultant, since 1996, and from 1989 to 1996 served as President and CEO of Nature's Sunshine Products, Inc. The business address of Nature's Sunshine Products is 75 East 1700 South, Provo, Utah 84606. Joe R. Lee* Chairman and Chief Executive Officer of Darden Restaurants, Inc., which owns and operates casual dining restaurants, since May 1995. The business address of Darden Restaurants, Inc. is 5900 Lake Ellenor Drive, Orlando, Florida 32809. Mr. Lee served as President and Chief Executive Officer of General Mills Restaurants from December 1994 until being named to his present position. He previously served as Vice Chairman of General Mills, Inc. and Chief Financial Officer. Mr. Lee serves as a director of Darden Restaurants, Inc. Bob Marbut* Chairman and Co-Chief Executive Officer of Hearst-Argyle Television, Inc., a NYSE-listed television station group, from August 1997. The business address of Hearst-Argyle Television, Inc. is 888 Seventh Avenue, New York, New York 10106. Previously, he was Chairman and Chief Executive Officer of Argyle Television since 1994 and prior thereto, he was Chairman and Chief Executive Officer of Argyle Communications, Inc. since 1992. Mr. Marbut serves as a director of Argyle Communications, Inc., Hearst-Argyle Television, Inc., Ultramar Diamond Shamrock, Inc., Geocast, Inc. and Internet Business Systems. Angel R. Martinez* Executive Vice President and Chief Marketing Officer of Reebok International Ltd. since October 1998, with responsibility for development and coordination of marketing, communication and design strategies, after serving as President and Chief Executive Officer of The Rockport Company, a subsidiary of Reebok, since 1994. Prior thereto he served in a variety of executive positions at Reebok. The business address of Reebok International Ltd. is 1895 J.W. Foster Boulevard, Canton, Massachusetts 02021. Anne E. Naylor Vice President, Internal Audit of Tupperware since October 1999. Prior thereto, she served as Executive Director, Business Analysis and Audit, Cummins Engine Company from May 1995. Prior thereto, she served as Controller, North American Engine Marketing, Cummins Engine Company since May 1991. The business address of Cummins Engine Company is 500 Jackson Street, Box 3005, Columbus, Indiana 47202-3005.
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Principal Occupation or Employment and Five-Year Name Employment History - - ---- -------------------- Gaylin L. Olson President, Tupperware Latin America since September 1998. He has served in various executive positions for Tupperware, including Senior Vice President, Emerging Markets since May 1996 and prior thereto as President, Tupperware Asia Pacific since 1993. David R. Parker* Managing Principal of Interprise Technology Partners, L.P., a technology and Internet-focused venture capital firm, since January 1999. The business address of Interprise Technology Partners, L.P. is 1001 Brickell Bay Drive, 30th Floor, Miami, FL 33131. Previously, he was employed by AmeriServe, Inc., a food-service distribution company, from May 1998 until August 1998, after the acquisition of ProSource, Inc. by AmeriServe, Inc. Prior thereto, he was Chairman of ProSource, Inc., a food service distribution company, since July 1992. The business address of ProSource, Inc. was 1500 San Remo Avenue, Coral Gables, FL 33146. Mr. Parker serves as a director of Applied Graphics Technologies, Inc. and World Commerce Online, Inc. Michael S. Poteshman Vice President, Investor Relations and Treasury since August 2000. He served as Vice President and Controller of Tupperware from January 1998 until August 2000, after serving as Assistant Controller since March 1996. Prior thereto, he served as Director, Accounting and Reporting Standards for Premark International, Inc. since September 1993. Robert M. Price* President of PSV, Inc., a Burnsville, Minnesota firm which assists public and private organizations in the utilization and commercialization of new technologies. Mr. Price serves as a director of Data Link, Inc., Fourth Shift Corporation, International Multifoods Corporation, Public Service Company of New Mexico and Affinity Technology Group, Inc. Joyce M. Roche* President and CEO of Girls Incorporated, a non-profit organization that helps girls in the United States empower themselves, since September 2000. The national headquarters of Girls Incorporated is located at 120 Wall Street, 3rd Floor, New York, NY 10005. Prior thereto she was an independent marketing consultant from September 1998 until September 2000. Formerly, she served as President and Chief Operating Officer of Carson, Inc., a personal care products company, from 1996 until September 1998, after serving in various executive positions with Avon Products, Inc., a direct-selling consumer products company. The business address of Carson, Inc. is 64 Ross Road, Savannah Industrial Park, Savannah, Georgia 31405 and the business address of Avon Products, Inc. is 1345 Avenue of the Americas, New York, New York 10105-0196. She serves as a director of SBC Communications, Inc. and Anheuser-Busch Companies. Thomas M. Roehlk Senior Vice President, General Counsel and Secretary of Tupperware since December 1995. Prior thereto, he served as Assistant General Counsel and Assistant Secretary of Premark International, Inc. James E. Rose, Jr. Senior Vice President, Taxes and Government Affairs of Tupperware since March 1997, after serving as Vice President, Taxes and Government Affairs since March 1996. Prior thereto, he served as Vice President, Taxes and Government Affairs for Premark International, Inc. Hans Joachim Schwenzer Senior Vice President, Tupperware Worldwide since May 1996. He also serves as President, Tupperware Germany; President, Sales Programs and Promotions, Tupperware Europe, Africa and Middle East; and Regional General Manager, Russia. Prior to assuming those positions, he served as President, Tupperware Europe, Africa and Middle East. Mr. Schwenzer is a citizen of Germany.
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Principal Occupation or Employment and Five-Year Name Employment History - - ---- -------------------- Christian E. Skroeder Group President, Tupperware Europe, Africa and Middle East since April 1998. Prior thereto, he served in various other executive positions with Tupperware. Mr. Skroeder is a citizen of Sweden. M. Anne Szostak* Executive Vice President and Corporate Director of Human Resources of FleetBoston Corporation, a diversified financial services company, since October 1998. The business address of FleetBoston Corporation is One Federal Street, MA DE 10336A, Boston, MA 02110. Prior thereto Ms. Szostak served in various senior executive positions with Fleet Financial Group, Inc. Ms. Szostak serves as a director of New England Business Systems, Inc. and Providence Energy Corporation. Jose R. Timmerman Senior Vice President, Worldwide Operations of Tupperware, since August 1997, after serving as Vice President Worldwide Operations, since October 1993. Mr. Timmerman is a citizen of Belgium. Paul B. Van Sickle Executive Vice President and Chief Financial Officer of Tupperware since September 1999. Prior thereto, he served as Executive Vice President since March 1997, after serving as Senior Vice President, Finance and Operations since November 1992. Mr. Van Sickle is a citizen of Canada. Robert W. Williams President, Tupperware Asia Pacific since April 1995. Prior thereto, he served in various management positions in Tupperware Asia Pacific starting in August 1993. Directors and Executive Officers of Purchaser Name Position with the Purchaser - - ---- --------------------------- E.V. Goings President David T. Halverson Vice President Thomas M. Roehlk* Secretary Paul B. Van Sickle* Vice President
I-4 ANNEX A DELAWARE CODE TITLE 8. CORPORATIONS CHAPTER 1. GENERAL CORPORATION LAW SUBCHAPTER IX. MERGER, CONSOLIDATION OR CONVERSION (S)262 Appraisal Rights. (a) Any stockholder of a corporation of this State who holds shares of stock on the date of the making of a demand pursuant to subsection (d) of this section with respect to such shares, who continuously holds such shares through the effective date of the merger or consolidation, who has otherwise complied with subsection (d) of this section and who has neither voted in favor of the merger or consolidation nor consented thereto in writing pursuant to (S)228 of this title shall be entitled to an appraisal by the Court of Chancery of the fair value of the stockholder's shares of stock under the circumstances described in subsections (b) and (c) of this section. As used in this section, the word "stockholder" means a holder of record of stock in a stock corporation and also a member of record of a nonstock corporation; the words "stock" and "share" mean and include what is ordinarily meant by those words and also membership or membership interest of a member of a nonstock corporation; and the words "depository receipt" mean a receipt or other instrument issued by a depository representing an interest in one or more shares, or fractions thereof, solely of stock of a corporation, which stock is deposited with the depository. (b) Appraisal rights shall be available for the shares of any class or series of stock of a constituent corporation in a merger or consolidation to be effected pursuant to (S)251 (other than a merger effected pursuant to (S)251(g) of this title), (S)252, (S)254, (S)257, (S)258, (S)263 or (S)264 of this title: (1) Provided, however, that no appraisal rights under this section shall be available for the shares of any class or series of stock, which stock, or depository receipts in respect thereof, at the record date fixed to determine the stockholders entitled to receive notice of and to vote at the meeting of stockholders to act upon the agreement of merger or consolidation, were either (i) listed 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 (ii) held of record by more than 2,000 holders; and further provided that no appraisal rights shall be available for any shares of stock of the constituent corporation surviving a merger if the merger did not require for its approval the vote of the stockholders of the surviving corporation as provided in subsection (f) of (S)251 of this title. (2) Notwithstanding paragraph (1) of this subsection, appraisal rights under this section shall be available for the shares of any class or series of stock of a constituent corporation if the holders thereof are required by the terms of an agreement of merger or consolidation pursuant to (S)(S)251, 252, 254, 257, 258, 263 and 264 of this title to accept for such stock anything except: a. Shares of stock of the corporation surviving or resulting from such merger or consolidation, or depository receipts in respect thereof; b. Shares of stock of any other corporation, or depository receipts in respect thereof, which shares of stock (or depository receipts in respect thereof) or depository receipts at the effective date of the merger or consolidation will be either listed 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 more than 2,000 holders; c. Cash in lieu of fractional shares or fractional depository receipts described in the foregoing subparagraphs a. and b. of this paragraph; or d. Any combination of the shares of stock, depository receipts and cash in lieu of fractional shares or fractional depository receipts described in the foregoing subparagraphs a., b. and c. of this paragraph. A-1 (3) In the event all of the stock of a subsidiary Delaware corporation party to a merger effected under (S)253 of this title is not owned by the Tupperware corporation immediately prior to the merger, appraisal rights shall be available for the shares of the subsidiary Delaware corporation. (c) Any corporation may provide in its certificate of incorporation that appraisal rights under this section shall be available for the shares of any class or series of its stock as a result of an amendment to its certificate of incorporation, any merger or consolidation in which the corporation is a constituent corporation or the sale of all or substantially all of the assets of the corporation. If the certificate of incorporation contains such a provision, the procedures of this section, including those set forth in subsections (d) and (e) of this section, shall apply as nearly as is practicable. (d) Appraisal rights shall be perfected as follows: (1) If a proposed merger or consolidation for which appraisal rights are provided under this section is to be submitted for approval at a meeting of stockholders, the corporation, not less than 20 days prior to the meeting, shall notify each of its stockholders who was such on the record date for such meeting with respect to shares for which appraisal rights are available pursuant to subsections (b) or (c) hereof that appraisal rights are available for any or all of the shares of the constituent corporations, and shall include in such notice a copy of this section. Each stockholder electing to demand the appraisal of such stockholder's shares shall deliver to the corporation, before the taking of the vote on the merger or consolidation, a written demand for appraisal of such stockholder's shares. Such demand will be sufficient if it reasonably informs the corporation of the identity of the stockholder and that the stockholder intends thereby to demand the appraisal of such stockholder's shares. A proxy or vote against the merger or consolidation shall not constitute such a demand. A stockholder electing to take such action must do so by a separate written demand as herein provided. Within 10 days after the effective date of such merger or consolidation, the surviving or resulting corporation shall notify each stockholder of each constituent corporation who has complied with this subsection and has not voted in favor of or consented to the merger or consolidation of the date that the merger or consolidation has become effective; or (2) If the merger or consolidation was approved pursuant to (S)228 or (S)253 of this title, each constituent corporation, either before the effective date of the merger or consolidation or within ten days thereafter, shall notify each of the holders of any class or series of stock of such constituent corporation who are entitled to appraisal rights of the approval of the merger or consolidation and that appraisal rights are available for any or all shares of such class or series of stock of such constituent corporation, and shall include in such notice a copy of this section; provided that, if the notice is given on or after the effective date of the merger or consolidation, such notice shall be given by the surviving or resulting corporation to all such holders of any class or series of stock of a constituent corporation that are entitled to appraisal rights. Such notice may, and, if given on or after the effective date of the merger or consolidation, shall, also notify such stockholders of the effective date of the merger or consolidation. Any stockholder entitled to appraisal rights may, within 20 days after the date of mailing of such notice, demand in writing from the surviving or resulting corporation the appraisal of such holder's shares. Such demand will be sufficient if it reasonably informs the corporation of the identity of the stockholder and that the stockholder intends thereby to demand the appraisal of such holder's shares. If such notice did not notify stockholders of the effective date of the merger or consolidation, either (i) each such constituent corporation shall send a second notice before the effective date of the merger or consolidation notifying each of the holders of any class or series of stock of such constituent corporation that are entitled to appraisal rights of the effective date of the merger or consolidation or (ii) the surviving or resulting corporation shall send such a second notice to all such holders on or within 10 days after such effective date; provided, however, that if such second notice is sent more than 20 days following the sending of the first notice, such second notice need only be sent to each stockholder who is entitled to appraisal rights and who has demanded appraisal of such holder's shares in accordance with this subsection. An affidavit of the secretary or assistant secretary or of the transfer agent of the corporation that is required to give either notice that such notice has been given shall, in the absence of fraud, be prima facie evidence of the facts stated therein. For purposes of A-2 determining the stockholders entitled to receive either notice, each constituent corporation may fix, in advance, a record date that shall be not more than 10 days prior to the date the notice is given, provided, that if the notice is given on or after the effective date of the merger or consolidation, the record date shall be such effective date. If no record date is fixed and the notice is given prior to the effective date, the record date shall be the close of business on the day next preceding the day on which the notice is given. (e) Within 120 days after the effective date of the merger or consolidation, the surviving or resulting corporation or any stockholder who has complied with subsections (a) and (d) hereof and who is otherwise entitled to appraisal rights, may file a petition in the Court of Chancery demanding a determination of the value of the stock of all such stockholders. Notwithstanding the foregoing, at any time within 60 days after the effective date of the merger or consolidation, any stockholder shall have the right to withdraw such stockholder's demand for appraisal and to accept the terms offered upon the merger or consolidation. Within 120 days after the effective date of the merger or consolidation, any stockholder who has complied with the requirements of subsections (a) and (d) hereof, upon written request, shall be entitled to receive from the corporation surviving the merger or resulting from the consolidation a statement setting forth the aggregate number of shares not voted in favor of the merger or consolidation and with respect to which demands for appraisal have been received and the aggregate number of holders of such shares. Such written statement shall be mailed to the stockholder within 10 days after such stockholder's written request for such a statement is received by the surviving or resulting corporation or within 10 days after expiration of the period for delivery of demands for appraisal under subsection (d) hereof, whichever is later. (f) Upon the filing of any such petition by a stockholder, service of a copy thereof shall be made upon the surviving or resulting corporation, which shall within 20 days after such service file in the office of the Register in Chancery in which the petition was filed a duly verified list containing the names and addresses of all stockholders who have demanded payment for their shares and with whom agreements as to the value of their shares have not been reached by the surviving or resulting corporation. If the petition shall be filed by the surviving or resulting corporation, the petition shall be accompanied by such a duly verified list. The Register in Chancery, if so ordered by the Court, shall give notice of the time and place fixed for the hearing of such petition by registered or certified mail to the surviving or resulting corporation and to the stockholders shown on the list at the addresses therein stated. Such notice shall also be given by 1 or more publications at least 1 week before the day of the hearing, in a newspaper of general circulation published in the City of Wilmington, Delaware or such publication as the Court deems advisable. The forms of the notices by mail and by publication shall be approved by the Court, and the costs thereof shall be borne by the surviving or resulting corporation. (g) At the hearing on such petition, the Court shall determine the stockholders who have complied with this section and who have become entitled to appraisal rights. The Court may require the stockholders who have demanded an appraisal for their shares and who hold stock represented by certificates to submit their certificates of stock to the Register in Chancery for notation thereon of the pendency of the appraisal proceedings; and if any stockholder fails to comply with such direction, the Court may dismiss the proceedings as to such stockholder. (h) After determining the stockholders entitled to an appraisal, the Court shall appraise the shares, determining their fair value exclusive of any element of value arising from the accomplishment or expectation of the merger or consolidation, together with a fair rate of interest, if any, to be paid upon the amount determined to be the fair value. In determining such fair value, the Court shall take into account all relevant factors. In determining the fair rate of interest, the Court may consider all relevant factors, including the rate of interest which the surviving or resulting corporation would have had to pay to borrow money during the pendency of the proceeding. Upon application by the surviving or resulting corporation or by any stockholder entitled to participate in the appraisal proceeding, the Court may, in its discretion, permit discovery or other pretrial proceedings and may proceed to trial upon the appraisal prior to the final determination of the stockholder entitled to an appraisal. Any stockholder whose name appears on the list filed by the surviving or resulting corporation pursuant to subsection (f) of this section and who has submitted such stockholder's A-3 certificates of stock to the Register in Chancery, if such is required, may participate fully in all proceedings until it is finally determined that such stockholder is not entitled to appraisal rights under this section. (i) The Court shall direct the payment of the fair value of the shares, together with interest, if any, by the surviving or resulting corporation to the stockholders entitled thereto. Interest may be simple or compound, as the Court may direct. Payment shall be so made to each such stockholder, in the case of holders of uncertificated stock forthwith, and the case of holders of shares represented by certificates upon the surrender to the corporation of the certificates representing such stock. The Court's decree may be enforced as other decrees in the Court of Chancery may be enforced, whether such surviving or resulting corporation be a corporation of this State or of any state. (j) The costs of the proceeding may be determined by the Court and taxed upon the parties as the Court deems equitable in the circumstances. Upon application of a stockholder, the Court may order all or a portion of the expenses incurred by any stockholder in connection with the appraisal proceeding, including, without limitation, reasonable attorney's fees and the fees and expenses of experts, to be charged pro rata against the value of all the shares entitled to an appraisal. (k) From and after the effective date of the merger or consolidation, no stockholder who has demanded appraisal rights as provided in subsection (d) of this section shall be entitled to vote such stock for any purpose or to receive payment of dividends or other distributions on the stock (except dividends or other distributions payable to stockholders of record at a date which is prior to the effective date of the merger or consolidation); provided, however, that if no petition for an appraisal shall be filed within the time provided in subsection (e) of this section, or if such stockholder shall deliver to the surviving or resulting corporation a written withdrawal of such stockholder's demand for an appraisal and an acceptance of the merger or consolidation, either within 60 days after the effective date of the merger or consolidation as provided in subsection (e) of this section or thereafter with the written approval of the corporation, then the right of such stockholder to an appraisal shall cease. Notwithstanding the foregoing, no appraisal proceeding in the Court of Chancery shall be dismissed as to any stockholder without the approval of the Court, and such approval may be conditioned upon such terms as the Court deems just. (l) The shares of the surviving or resulting corporation to which the shares of such objecting stockholders would have been converted had they assented to the merger or consolidation shall have the status of authorized and unissued shares of the surviving or resulting corporation. A-4 Facsimile copies of Letters of Transmittal, properly completed and duly executed, will be accepted. The appropriate Letter of Transmittal, certificates for Shares and any other required documents should be sent or delivered by each stockholder of BeautiControl or his or her broker, dealer, commercial bank, trust company or other nominee to the Depositary at one of its addresses set forth below: The Depositary for the Offer is: CHASEMELLON SHAREHOLDER SERVICES, L.L.C. By Mail: By Hand: By Overnight Courier: Reorganization Reorganization Department Reorganization Department 120 Broadway Department PO Box 3301 13th Floor 85 Challenger Road South Hackensack, NJ New York, NY 10271 Mail Stop-Reorg 07606 Ridgefield Park, NJ 07660 Facsimile (for eligible institutions Confirm facsimile by telephone ONLY: only): (201) 296-4860 or (201) 296-4293 or You may direct questions and requests for assistance to the Information Agent at its telephone number and address set forth below. You may obtain additional copies of this Offer to Purchase, the Letter of Transmittal, the Notice of Guaranteed Delivery and other tender offer materials from the Information Agent as set forth below and they will be furnished promptly at our expense. You may also contact your broker, dealer, commercial bank, trust company or other nominee for assistance concerning the Offer. The Information Agent for the Offer is: [GEORGESON LOGO] 17 State Street, 10th Floor New York, New York 10004 Banks and Brokers Call Collect: (212) 440-9800 All Others Call Toll-Free: (800) 223-2064 The Dealer Manager for the Offer is: Lazard Freres & Co. llc 30 Rockefeller Plaza New York, New York 10020 EX-99.(A)(1)(B) 3 0003.txt LETTER OF TRANSMITTIAL Exhibit (a)(1)(B) Letter of Transmittal to Tender Shares of Common Stock of BeautiControl, Inc. Pursuant to the Offer to Purchase Dated September 20, 2000 by B-C Merger Corporation a wholly owned subsidiary of Tupperware Corporation THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT, NEW YORK CITY TIME, ON TUESDAY, OCTOBER 17, 2000 UNLESS THE OFFER IS EXTENDED. The Depositary for the Offer is: CHASEMELLON SHAREHOLDER SERVICES, L.L.C. By Facsimile By Mail: By Hand: By Overnight: Transmission: Reorganization Reorganization Reorganization (For Eligible Department Department Department Institutions Only) PO Box 3301 120 Broadway 85 Challenger Road South Hackensack, 13th Floor Mail Stop - Reorg NJ 07606 New York, NY 10271 Ridgefield Park, NJ 07660 (201) 296-4293 Confirm Receipt of Facsimile by Telephone: (201) 296-4860 DELIVERY OF THIS LETTER OF TRANSMITTAL TO AN ADDRESS, OR TRANSMISSION OF INSTRUCTIONS VIA A FACSIMILE OTHER THAN AS SET FORTH ABOVE, DOES NOT CONSTITUTE A VALID DELIVERY TO THE DEPOSITARY. YOU MUST SIGN THIS LETTER OF TRANSMITTAL IN THE APPROPRIATE SPACE THEREFOR PROVIDED BELOW AND COMPLETE THE SUBSTITUTE FORM W-9 SET FORTH BELOW. THE INSTRUCTIONS ACCOMPANYING THIS LETTER OF TRANSMITTAL SHOULD BE READ CAREFULLY BEFORE THIS LETTER OF TRANSMITTAL IS COMPLETED. This Letter of Transmittal is to be completed by stockholders of BeautiControl, Inc., a Delaware corporation (the "Company"), if certificates are to be forwarded herewith or, unless an Agent's Message (as defined in the Offer to Purchase) is utilized, if delivery of Shares (as defined below) is to be made by book-entry transfer to the Depositary's account at The Depository Trust Company (hereinafter referred to as the "Book-Entry Transfer Facility") pursuant to the procedures set forth in Section 3 of the Offer to Purchase (as defined below). Delivery of documents to the Book-Entry Transfer Facility does not constitute delivery to the Depositary. Stockholders whose certificates for Shares are not immediately available or who cannot deliver their Shares and all other documents required hereby to the Depositary by the Expiration Date (as defined in the Offer to Purchase), or who cannot comply with the book-entry transfer procedures on a timely basis, may nevertheless tender their Shares pursuant to the guaranteed delivery procedures set forth in Section 3 of the Offer to Purchase. See Instruction 2. DESCRIPTION OF SHARES TENDERED - - --------------------------------------------------------
Name(s) and Address(es) of Registered Holder(s) (Please fill in, if Shares Tendered blank) (Attach additional list if necessary) - - -------------------------------------------------------- Number of Share Shares Number of Certificate Represented by Shares Number(s)* Certificate(s)* Tendered** - - -------------------------------------------------------- - - -------------------------------------------------------- - - -------------------------------------------------------- - - -------------------------------------------------------- Total Shares - - --------------------------------------------------------
* Need not be completed by stockholders tendering by book-entry transfer. ** Unless otherwise indicated, it will be assumed that all Shares represented by any certificates delivered to the Depositary are being tendered. See Instruction 4. [_]CHECK HERE IF TENDERED SHARES ARE BEING DELIVERED BY BOOK-ENTRY TRANSFER TO THE DEPOSITARY'S ACCOUNT AT THE BOOK-ENTRY TRANSFER FACILITY AND COMPLETE THE FOLLOWING: Name of Tendering Institution __________________________________________________ Account No. at The Depository Trust Company: ___________________________________ Transaction Code No.: __________________________________________________________ [_]CHECK HERE IF TENDERED SHARES ARE BEING DELIVERED PURSUANT TO A NOTICE OF GUARANTEED DELIVERY PREVIOUSLY SENT TO THE DEPOSITARY AND COMPLETE THE FOLLOWING: Name(s) of Tendering Stockholder(s): ___________________________________________ Date of Execution of Notice of Guaranteed Delivery: ____________________________ Name of Institution which Guaranteed Delivery: _________________________________ If delivery is by book-entry transfer: Name of Tendering Institution: _____________________________________________ Account No. at The Depository Trust Company: _______________________________ Transaction Code No.: __________________________________________________________ NOTE: SIGNATURES MUST BE PROVIDED BELOW PLEASE READ THE ACCOMPANYING INSTRUCTIONS CAREFULLY 2 Ladies and Gentlemen: The undersigned hereby tenders to B-C Merger Corporation ("Purchaser"), a Delaware corporation and a wholly owned subsidiary of Tupperware Corporation, a Delaware corporation ("Tupperware"), the above-described shares of common stock, $.10 par value per share (the "Shares"), of BeautiControl, Inc., a Delaware corporation (the "Company"), pursuant to Purchaser's offer to purchase all of the outstanding shares of common stock of the Company at a purchase price of $7.00 per share of common stock, net to the seller in cash, without interest, upon the terms and subject to the conditions set forth in the Offer to Purchase, dated September 20, 2000 (the "Offer to Purchase"), receipt of which is hereby acknowledged, and in this Letter of Transmittal (which, together with the Offer to Purchase, and any amendments or supplements hereto or thereto, collectively constitute the "Offer"). The Offer is being made in connection with the Agreement and Plan of Merger, dated as of September 13, 2000 (the "Merger Agreement"), among Tupperware, Purchaser and the Company. Subject to and effective upon acceptance for payment of and payment for the Shares tendered herewith, the undersigned hereby sells, assigns and transfers to or upon the order of Purchaser all right, title and interest in and to all the Shares that are being tendered hereby (and any and all other Shares or other securities issued or issuable in respect thereof) and appoints the Depositary the true and lawful agent and attorney-in-fact of the undersigned with respect to such Shares (and all such other Shares or securities), with full power of substitution (such power of attorney being deemed to be an irrevocable power coupled with an interest), to (a) deliver certificates for such Shares (and all such other Shares or securities), or transfer ownership of such Shares (and all such other Shares or securities) on the account books maintained by the Book-Entry Transfer Facility, together, in any such case, with all accompanying evidences of transfer and authenticity, to or upon the order of Purchaser, (b) present such Shares (and all such other Shares or securities) for transfer on the books of the Company and (c) receive all benefits and otherwise exercise all rights of beneficial ownership of such Shares (and all such other Shares or securities), all in accordance with the terms of the Offer. The undersigned hereby irrevocably appoints each designee of Purchaser as the attorney-in-fact and proxy of the undersigned, each with full power of substitution, to exercise all voting and other rights of the undersigned in such manner as each such attorney and proxy or his substitute shall in his sole judgment deem proper, with respect to all of the Shares tendered hereby which have been accepted for payment by Purchaser prior to the time of any vote or other action (and any and all other Shares or other securities or rights issued or issuable in respect of such Shares) at any meeting of stockholders of the Company (whether annual or special and whether or not an adjourned meeting), any actions by written consent in lieu of any such meeting or otherwise. This proxy and power of attorney is irrevocable and is granted in consideration of, and is effective upon, the acceptance for payment of such Shares by Purchaser in accordance with the terms of the Offer. Such acceptance for payment shall revoke any other proxy, power of attorney or written consent granted by the undersigned at any time with respect to such Shares (and all such other Shares or other securities or rights), and no subsequent proxies or powers of attorney will be given or written consents will be executed by the undersigned (and if given or executed, will not be deemed effective). The undersigned hereby represents and warrants that the undersigned has full power and authority to tender, sell, assign and transfer the Shares tendered hereby (and any and all other Shares or other securities or rights issued or issuable in respect of such Shares) and that when the same are accepted for payment by Purchaser, Purchaser will acquire good, marketable and unencumbered title thereto, free and clear of all liens, restrictions, charges and encumbrances and not subject to any adverse claims. The undersigned, upon request, will execute and deliver any additional documents deemed by the Depositary or Purchaser to be necessary or desirable to complete the sale, assignment and transfer of the Shares tendered hereby (and all such other Shares or other securities or rights). All authority herein conferred or agreed to be conferred shall not be affected by and shall survive the death or incapacity of the undersigned, and any obligation of the undersigned hereunder shall be binding upon the heirs, personal representatives, successors and assigns of the undersigned. Except as stated in the Offer, this tender is irrevocable. 3 The undersigned understands that tenders of Shares pursuant to any one of the procedures described in Section 3 of the Offer to Purchase and in the instructions hereto will constitute an agreement between the undersigned and Purchaser upon the terms and subject to the conditions of the Offer. Unless otherwise indicated under "Special Payment Instructions," please issue the check for the purchase price of any Shares purchased, and return any Shares not tendered or not purchased, in the name(s) of the undersigned. Similarly, unless otherwise indicated under "Special Delivery Instructions," please mail the check for the purchase price of any Shares purchased and return any certificates for Shares not tendered or not purchased (and accompanying documents, as appropriate) to the undersigned at the address shown below the undersigned's signature(s). In the event that both "Special Payment Instructions" and "Special Delivery Instructions" are completed, please issue the check for the purchase price of any Shares purchased and return any Shares not tendered or not purchased in the name(s) of, and mail such check and any certificates to, the person(s) so indicated. The undersigned recognizes that Purchaser has no obligation, pursuant to the "Special Payment Instructions," to transfer any Shares from the name of the registered holder(s) thereof if Purchaser does not accept for payment any of the Shares so tendered. SPECIAL PAYMENT INSTRUCTIONS SPECIAL DELIVERY INSTRUCTIONS (See Instructions 1, 5, 6 and 7) (See Instructions 1, 5, 6, and 7) To be completed ONLY if the check To be completed ONLY if the check for the purchase price of Shares for the purchase price of Shares purchased or certificates for purchased or certificates for Shares not tendered or not Shares not tendered or not purchased are to be issued in the purchased are to be mailed to name of someone other than the someone other than the undersigned undersigned or if Shares tendered or to the undersigned at an hereby and delivered by book-entry address other than that shown transfer which are not accepted below the undersigned's for payment are to be returned by signature(s). credit to an account at the Book- Entry Transfer Facility other than designated above. Mail check and/or certificates to: Name ______________________________ (Please Print) Issue: [_] Check [_] Certificate Address ___________________________ to: ----------------------------------- Name ______________________________ (Zip Code) (Please Print) ----------------------------------- Address ___________________________ (Taxpayer Identification or Social ----------------------------------- Security No.) (Zip Code) ----------------------------------- (See Substitute Form W-9) ( Taxpayer Identification or Social Security No. ) (See Substitute Form W-9) [_]Credit Shares delivered by book-entry transfer and not purchased to The Depository Trust Company. 4 INSTRUCTIONS Forming Part of the Terms and Conditions of the Offer 1. Guarantee of Signatures. Except as otherwise provided below, signatures on this Letter of Transmittal must be guaranteed by a firm that is a bank, broker, dealer, credit union, savings association or other entity which is a member in good standing of the Securities Transfer Agents Medallion Program (an "Eligible Institution"), unless the Shares tendered thereby are tendered (i) by a registered holder (which term, for purposes of this document, shall include any participant in the Book-Entry Transfer Facility whose name appears on a security position listing as the owner of Shares) of Shares who has not completed either the box labeled "Special Payment Instructions" or the box labeled "Special Delivery Instructions" on the Letter of Transmittal or (ii) for the account of an Eligible Institution. See Instruction 5. If the certificates are registered in the name of a person or persons other than the signer of this Letter of Transmittal, or if payment is to be made or delivered to, or certificates evidencing unpurchased Shares are to be issued or returned to, a person other than the registered owner or owners, then the tendered certificates must be endorsed or accompanied by duly executed stock powers, in either case signed exactly as the name or names of the registered owner or owners appear on the certificates or stock powers, with the signatures on the certificates or stock powers guaranteed by an Eligible Institution as provided herein. See Instruction 5. 2. Delivery of Letter of Transmittal and Shares. This Letter of Transmittal is to be used either if certificates are to be forwarded herewith or, unless an Agent's Message (as defined in the Offer to Purchase) is utilized, if the delivery of Shares is to be made by book-entry transfer pursuant to the procedures set forth in Section 3 of the Offer to Purchase. Certificates for all physically delivered Shares, or a confirmation of a book-entry transfer into the Depositary's account of the Book-Entry Transfer Facility of all Shares delivered electronically, as well as a properly completed and duly executed Letter of Transmittal (or a manually signed facsimile thereof) and any other documents required by this Letter of Transmittal, or an Agent's Message in the case of a book-entry delivery, must be received by the Depositary at one of its addresses set forth on the front page of this Letter of Transmittal by the Expiration Date. Stockholders who cannot deliver their Shares and all other required documents to the Depositary by the Expiration Date must tender their Shares pursuant to the guaranteed delivery procedures set forth in Section 3 of the Offer to Purchase. Pursuant to such procedures: (a) such tender must be made by or through an Eligible Institution; (b) a properly completed and duly executed Notice of Guaranteed Delivery, substantially in the form provided by Purchaser, must be received by the Depositary prior to the Expiration Date; and (c) the certificates for all tendered Shares, in proper form for tender, or a confirmation of a book-entry transfer into the Depositary's account at the Book-Entry Transfer Facility of all Shares delivered electronically, as well as a properly completed and duly executed Letter of Transmittal (or a manually signed facsimile thereof), and any other documents required by this Letter of Transmittal must be received by the Depositary within three trading days after the date of execution of such Notice of Guaranteed Delivery, all as provided in Section 3 of the Offer to Purchase. The term "trading day" is any day on which the New York Stock Exchange is open for business. The method of delivery of Shares, the Letter of Transmittal and all other required documents, including delivery through the Book-Entry Transfer Facility, is at the option and risk of the tendering stockholder. Shares will be deemed delivered only when actually received by the Depositary (including, in the case of a book-entry transfer, by a confirmation of a book-entry transfer). If delivery is by mail, registered mail with return receipt requested, properly insured, is recommended. In all cases, sufficient time should be allowed to ensure timely delivery. No alternative, conditional or contingent tenders will be accepted, and no fractional Shares will be purchased. By executing this Letter of Transmittal (or a manually signed facsimile thereof), the tendering stockholder waives any right to receive any notice of the acceptance for payment of the Shares. 3. Inadequate Space. If the space provided herein is inadequate, the certificate numbers and/or the number of Shares should be listed on a separate schedule attached hereto. 5 4. Partial Tenders (not applicable to stockholders who tender by book-entry transfer). If fewer than all the Shares represented by any certificate delivered to the Depositary are to be tendered, fill in the number of Shares which are to be tendered in the box entitled "Number of Shares Tendered." In such case, a new certificate for the remainder of the Shares represented by the old certificate will be sent to the person(s) signing this Letter of Transmittal unless otherwise provided in the appropriate box on this Letter of Transmittal, as promptly as practicable following the expiration or termination of the Offer. All Shares represented by certificates delivered to the Depositary will be deemed to have been tendered unless otherwise indicated. 5. Signatures on Letter of Transmittal; Stock Powers and Endorsements. If this Letter of Transmittal is signed by the registered holder(s) of the Shares tendered hereby, the signature(s) must correspond with the name(s) as written on the face of the certificates without alteration, enlargement or any change whatsoever. If any of the Shares tendered hereby are held of record by two or more persons, all such persons must sign this Letter of Transmittal. If any of the Shares tendered hereby are registered in different names on different certificates, it will be necessary to complete, sign and submit as many separate Letters of Transmittal as there are different registrations of certificates. If this Letter of Transmittal is signed by the registered holder(s) of the Shares tendered hereby, no endorsements of certificates or separate stock powers are required unless payment of the purchase price is to be made, or Shares not tendered or not purchased are to be returned, in the name of any person other than the registered holder(s), in which case the certificate(s) for such Shares tendered hereby must be endorsed, or accompanied by, appropriate stock powers, in either case signed exactly as the name(s) of the registered holder(s) appear(s) on the certificate for such Shares. Signatures on any such certificates or stock powers must be guaranteed by an Eligible Institution. If this Letter of Transmittal is signed by a person other than the registered holder(s) of the Shares tendered hereby, the certificate must be endorsed or accompanied by appropriate stock powers, in either case signed exactly as the name(s) of the registered holder(s) appear(s) on the certificates for such Shares. Signature(s) on any such certificates or stock powers must be guaranteed by an Eligible Institution. If this Letter of Transmittal or any certificate or stock power is signed by a trustee, executor, administrator, guardian, attorney-in-fact, officer of a corporation or other person acting in a fiduciary or representative capacity, such person should so indicate when signing, and proper evidence satisfactory to Purchaser of the authority of such person so to act must be submitted. 6. Stock Transfer Taxes. Purchaser will pay any stock transfer taxes with respect to the sale and transfer of any Shares to it or its order pursuant to the Offer. If, however, payment of the purchase price is to be made to, or Shares not tendered or not purchased are to be returned in the name of, any person other than the registered holder(s), then the amount of any stock transfer taxes (whether imposed on the registered holder(s), such other person or otherwise) payable on account of the transfer to such person will be deducted from the purchase price unless satisfactory evidence of the payment of such taxes, or exemption therefrom, is submitted. Except as provided in this Instruction 6, it will not be necessary for transfer tax stamps to be affixed to the certificates listed in this Letter of Transmittal. 7. Special Payment and Delivery Instruction. If the check for the purchase price of any Shares purchased is to be issued, or any Shares not tendered or not purchased are to be returned, in the name of a person other than the person(s) signing this Letter of Transmittal or if the check or any certificates for Shares not tendered or not purchased are to be mailed to someone other than the person(s) signing this Letter of Transmittal or to the person(s) signing this Letter of Transmittal at an address other than that shown above, the appropriate boxes on this Letter of Transmittal should be completed. Stockholders tendering Shares by book-entry transfer may request that Shares not purchased be credited to such account at the Book-Entry Transfer Facility as such stockholder may designate under "Special Payment Instructions." If no such instructions are given, any such Shares not purchased will be returned by crediting the account at the Book-Entry Transfer Facility designated above. 6 8. Substitute Form W-9. The tendering stockholder is required to provide the Depositary with such stockholder's correct Taxpayer Identification Number ("TIN") on Substitute Form W-9, which is provided below, unless an exemption applies. Failure to provide the information on the Substitute Form W-9 may subject the tendering stockholder to a $50 penalty and to 31% federal income tax backup withholding on the payment of the purchase price for the Shares. 9. Foreign Holders. Foreign holders must submit a completed IRS Form W-8 to avoid 31% backup withholding. IRS Form W-8 may be obtained by contacting the Depositary at one of the addresses on the face of this Letter of Transmittal. 10. Requests for Assistance or Additional Copies. Requests for assistance or additional copies of the Offer to Purchase and this Letter of Transmittal may be obtained from the Information Agent at its address or telephone number set forth below. 11. Waiver of Conditions. The conditions of the Offer may be waived by Purchaser (subject to certain limitations in the Merger Agreement), in whole or in part, at any time or from time to time, in Purchaser's sole discretion. 12. Lost, Destroyed or Stolen Certificates. If any certificates for Shares have been lost, destroyed or stolen, the stockholder should promptly notify the Depositary for instructions as to the procedures for replacing the certificates for such Shares. This Letter of Transmittal and related documents cannot be processed until the lost, destroyed or stolen certificates have been replaced and the replacement certificates for such Shares have been delivered to the Depositary in accordance with the procedures set forth in Section 3 of the Offer to Purchase and the instructions contained in this Letter of Transmittal. Important: This Letter of Transmittal or a manually signed facsimile copy hereof (together with certificates or confirmation of book-entry transfer and all other required documents) or a Notice of Guaranteed Delivery must be received by the Depositary on or prior to the Expiration Date. IMPORTANT TAX INFORMATION Under United States federal income tax law, a stockholder whose tendered Shares are accepted for payment is required to provide the Depositary with such stockholder's correct TIN on the Substitute Form W-9. If such stockholder is an individual, the TIN is such stockholder's Social Security Number. If the Depositary is not provided with the correct TIN, the stockholder may be subject to a $50 penalty imposed by the Internal Revenue Service. In addition, payments that are made to such stockholder with respect to Shares purchased pursuant to the Offer may be subject to 31% federal backup withholding. Certain stockholders (including, among others, all corporations and certain foreign individuals) are not subject to these backup withholding and reporting requirements. In order for a foreign individual to qualify as an exempt recipient, that stockholder must submit a statement, signed under penalties of perjury, attesting to that individual's exempt status. Such statements may be obtained from the Depositary. All exempt recipients (including foreign persons wishing to qualify as exempt recipients) should see the enclosed Guidelines for Certification of Taxpayer Identification Number on Substitute Form W-9 for additional instructions. If backup withholding applies, the Depositary is required to withhold 31% of any payments made to the stockholder. Backup withholding is not an additional tax. Rather, the tax liability of persons subject to backup withholding will be reduced by the amount of tax withheld. If backup withholding results in an overpayment of taxes, a refund may be obtained. 7 Purpose of Substitute Form W-9 To prevent backup federal income tax withholding on payments that are made to a stockholder with respect to Shares purchased pursuant to the Offer, the stockholder is required to notify the Depositary of such stockholder's correct TIN by completing the form certifying that the TIN provided on the Substitute Form W-9 is correct. What Number to Give the Depositary The stockholder is required to give the Depositary the Social Security Number or Employer Identification Number of the record owner of the Shares. If the Shares are in more than one name or are not in the name of the actual owner, consult the enclosed Guidelines for Certification of Taxpayer Identification Number on Substitute Form W-9 for additional guidelines on which number to report. 8 SIGN HERE (Complete Substitute Form W-9 below) _____________________________________________________________________________ _____________________________________________________________________________ Signature(s) of Owner(s) Name(s) _____________________________________________________________________ _____________________________________________________________________________ Capacity (full title) _______________________________________________________ Address _____________________________________________________________________ _____________________________________________________________________________ _____________________________________________________________________________ (Include Zip Code) _____________________________________________________________________________ Area Code and Telephone Number_______________________________________________ Tax Identification or Social Security Number_________________________________ (See Substitute Form W-9) Dated: _____________________________________________, 2000 (Must be signed by registered holder(s) exactly as name(s) appear(s) on stock certificate(s) or on a security position listing or by the person(s) authorized to become registered holder(s) by certificates and documents transmitted herewith. If signature is by a trustee, executor, administrator, guardian, attorney-in-fact, agent, officer of a corporation or other person acting in a fiduciary or representative capacity, please set forth full title and see Instruction 5). GUARANTEE OF SIGNATURE(S) (See Instructions 1 and 5) FOR USE BY FINANCIAL INSTITUTIONS ONLY. PLACE MEDALLION GUARANTEE IN SPACE BELOW. Authorized signature(s) _____________________________________________________ Name ________________________________________________________________________ Name of Firm ________________________________________________________________ Address _____________________________________________________________________ _____________________________________________________________________________ (Include Zip Code) Area Code and Telephone Number_______________________________________________ Dated: _____________________________________________, 2000 9 PAYER'S NAME: CHASEMELLON SHAREHOLDER SERVICES, L.L.C. - - -------------------------------------------------------------------------------- Part I--PLEASE PROVIDE TIN: ______________________ YOUR TIN IN THE BOX AT Social Security Number RIGHT AND CERTIFY BY or SIGNING AND DATING BELOW. Employer Identification Number ------------------------------------------------------------ Part II--For Payees exempt from backup withholding, see the enclosed Guidelines for Certification of Taxpayer Identification Number on Substitute Form W-9 and complete as instructed therein. SUBSTITUTE Form W-9 ------------------------------------------------------------ Department of the Certification--Under penalties of perjury, I certify Treasury, that: Internal Revenue Service (1) The number shown on this form is my correct TIN (or I am waiting for a number to be issued to me); and Payer's Request for (2) I am subject to backup withholding because (a) I am Taxpayer exempt from backup withholding, or (b) I have not Identification been notified by the Internal Revenue Service ("IRS") Number ("TIN") that I am subject to backup withholding as a result and Certification of a failure to report all interest or dividend, or (c) the IRS has notified me that I am no longer subject to backup withholding. ------------------------------------------------------------ Certification Instructions--You must cross out item (2) above if you have been notified by the IRS that you are subject to backup withholding because of underreporting interest or dividends on your tax return. However, if after being notified by the IRS that you were subject to backup withholding, you received another notification from the IRS that you were no longer subject to backup withholding, do not cross out item (2). (Also see the instructions in the enclosed Guidelines.) SIGNATURE: _____________________ DATE: _________________ NOTE: FAILURE TO COMPLETE AND RETURN THIS SUBSTITUTE FORM W-9 MAY RESULT IN BACKUP WITHHOLDING OF 31% OF ANY PAYMENTS MADE TO YOU PURSUANT TO THE OFFER. PLEASE REVIEW THE ENCLOSED GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION NUMBER ON SUBSTITUTE FORM W-9 FOR ADDITIONAL DETAILS. YOU MUST COMPLETE THE FOLLOWING CERTIFICATE IF YOU ARE AWAITING YOUR TIN. CERTIFICATE OF AWAITING TAXPAYER IDENTIFICATION NUMBER I certify under penalties of perjury that a TIN has not been issued to me, and either (1) I have mailed or delivered an application to receive a TIN to the appropriate IRS Center or Social Security Administration Officer or (2) I intend to mail or deliver an application in the near future. I understand that if I do not provide a TIN by the time of payment, 31% of all payments pursuant to the Offer made to me thereafter will be withheld until I provide a number. Signature: _____________________________ Date: ______________________________ 10 The Information Agent for the Offer is: [GEORGESON LOGO] 17 State Street, 10th Floor New York, New York 10004 Banks and Brokers Call Collect: (212) 440-9800 All Others Call Toll-Free: (800) 223-2064 The Dealer Manager for the Offer is: Lazard Freres & Co. LLC 30 Rockefeller Plaza New York, New York 10020 11 EX-99.(A)(1)(C) 4 0004.txt NOTICE OF GUARANTED DELIVERY Exhibit (a)(1)(C) Notice of Guaranteed Delivery for Tender of Shares of Common Stock of BeautiControl, Inc. THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT, NEW YORK CITY TIME, ON TUESDAY, OCTOBER 17, 2000 UNLESS THE OFFER IS EXTENDED This form, or one substantially equivalent hereto, must be used to accept the Offer (as defined below) if certificates for shares of common stock, $.10 par value per share (the "Shares"), of BeautiControl, Inc., a Delaware corporation (the "Company"), are not immediately available or if the procedure for book-entry transfer cannot be completed on a timely basis or time will not permit all required documents to reach the Depositary on or prior to the Expiration Date (as defined in the Offer to Purchase). Such form may be delivered by hand, facsimile transmission, or mail to the Depositary. See Section 3 of the Offer to Purchase, dated September 20, 2000 (the "Offer to Purchase"). The Depositary for the Offer is: ChaseMellon Shareholder Services, L.L.C. By Facsimile By Mail; By Hand: By Overnight; Transmission: Reorganization Reorganization Reorganization (For Eligible Department Department Department Institutions PO Box 3301 South 120 Broadway 85 Challenger Road Only) Hackensack, NJ 07606 13th Floor Mail Stop - Reorg New York, NY 10271 Ridgefield Park, NJ 07660 (201) 296-4293 Confirm Receipt of Facsimile by Telephone: (201) 296-4860 DELIVERY OF THIS NOTICE OF GUARANTEED DELIVERY TO AN ADDRESS, OR TRANSMISSION OF INSTRUMENTS VIA A FACSIMILE, OTHER THAN AS SET FORTH ABOVE, DOES NOT CONSTITUTE A VALID DELIVERY TO THE DEPOSITARY. This Notice of Guaranteed Delivery is not to be used to guarantee signatures. If a signature on a Letter of Transmittal is required to be guaranteed by an "Eligible Institution" (as defined in the Offer to Purchase) under the instructions thereto, such signature guarantee must appear in the applicable space provided in the signature box on the Letter of Transmittal. The Eligible Institution that completes this form must communicate the guarantee to the Depositary and must deliver the Letter of Transmittal or an Agent's Message and certificates for Shares to the Depositary within the time period shown herein. Failure to do so could result in a financial loss to such Eligible Institution. THE GUARANTEE ON THE REVERSE SIDE MUST BE COMPLETED. Ladies and Gentlemen: The undersigned hereby tenders to B-C Merger Corporation, a Delaware corporation, upon the terms and subject to the conditions set forth in the Offer to Purchase, and the related Letter of Transmittal, receipt of which are hereby acknowledged, Shares of the Company, pursuant to the guaranteed delivery procedure set forth in Section 3 of the Offer to Purchase. Number of Shares: ___________________ SIGN HERE Name(s) of Record Holder(s): Certificate No(s) (if available): - - ------------------------------------- ------------------------------------- - - ------------------------------------- ------------------------------------- (Please Print) If Securities will be tendered by book-entry transfer at The Depository Trust Company, please provide Account No.: ________________ Address(es): ________________________ Dated: ______________________________ ------------------------------------- (Zip Code) Area Code and Telephone No(s): ------------------------------------- Signature(s): _______________________ ------------------------------------- GUARANTEE (Not to be used for signature guarantee) The undersigned, a bank, broker, dealer, credit union, savings association or other entity which is a member in good standing of the Securities Transfer Agents Medallion Program, guarantees the delivery to the Depositary of the Shares tendered hereby, together with a properly completed and duly executed Letter of Transmittal (or manually signed facsimile(s) thereof) and any other required documents, or an Agent's Message (as defined in the Offer to Purchase) in the case of a book-entry delivery of Shares, all within three trading days of the date hereof. A "trading day" is any day on which the New York Stock Exchange is open for business. Name of Firm: _______________________ Title: ______________________________ - - ------------------------------------- Name: _______________________________ (Authorized Signature) (Please Print or Type) Address: ____________________________ Area Code and Telephone No.: ________ - - ------------------------------------- Dated: ______________________________ (Zip Code) DO NOT SEND CERTIFICATES FOR SHARES WITH THIS FORM--CERTIFICATES SHOULD BE SENT WITH YOUR LETTER OF TRANSMITTAL 2 EX-99.(A)(1)(D) 5 0005.txt LETTER FROM THE DEALER MANAGER TO BROKERS Exhibit (a)(1)(D) Offer to Purchase for Cash All Outstanding Shares of Common Stock of BeautiControl, Inc. at $7.00 Net Per Share by B-C Merger Corporation a wholly owned subsidiary of Tupperware Corporation THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT, NEW YORK CITY TIME, ON TUESDAY, OCTOBER 17, 2000, UNLESS THE OFFER IS EXTENDED. September 20, 2000 To Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees: We have been appointed by B-C Merger Corporation, a Delaware corporation ("Purchaser") and a wholly owned subsidiary of Tupperware Corporation, a Delaware corporation ("Tupperware"), to act as Information Agent in connection with Purchaser's offer to purchase all outstanding shares of common stock, $.10 par value per share (the "Shares"), of BeautiControl, Inc., a Delaware corporation (the "Company"), at a purchase price of $7.00 per Share, net to the seller in cash, without interest, upon the terms and subject to the conditions set forth in the Offer to Purchase, dated September 20, 2000 (the "Offer to Purchase"), and in the related Letter of Transmittal (which, together with any amendments or supplements thereto, collectively constitute the "Offer") enclosed herewith. The Offer is being made in connection with the Agreement and Plan of Merger, dated as of September 13, 2000, among Tupperware, Purchaser and the Company (the "Merger Agreement"). Holders of Shares whose certificates for such Shares (the "Certificates") are not immediately available or who cannot deliver their Certificates and all other required documents to ChaseMellon Shareholder Services, L.L.C. (the "Depositary") or complete the procedures for book-entry transfer prior to the Expiration Date (as defined in Section 2 of the Offer to Purchase) must tender their Shares according to the guaranteed delivery procedures set forth in Section 3 of the Offer to Purchase. Please furnish copies of the enclosed materials to those of your clients for whose accounts you hold Shares in your name or in the name of your nominee. Enclosed herewith for your information and forwarding to your clients are copies of the following documents: 1. The Offer to Purchase, dated September 20, 2000. 2. The Letter of Transmittal to tender Shares for your use and for the information of your clients. Facsimile copies of the Letter of Transmittal (with manual signatures) may be used to tender Shares. 3. A letter to stockholders of the Company from Richard W. Heath, the Chief Executive Officer and Chairman of the Executive Committee of the Company, together with a Solicitation/Recommendation Statement on Schedule 14D-9 filed with the Securities and Exchange Commission by the Company and mailed to the stockholders of the Company. 4. The Notice of Guaranteed Delivery for Shares to be used to accept the Offer if neither of the two procedures for tendering Shares set forth in the Offer to Purchase can be completed on a timely basis. 1 5. A printed form of letter which may be sent to your clients for whose accounts you hold Shares registered in your name, with space provided for obtaining such clients' instructions with regard to the Offer. 6. Guidelines of the Internal Revenue Service for Certification of Taxpayer Identification Number on Substitute Form W-9. 7. A return envelope addressed to the Depositary. YOUR PROMPT ACTION IS REQUESTED. WE URGE YOU TO CONTACT YOUR CLIENTS AS PROMPTLY AS POSSIBLE. PLEASE NOTE THAT THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT, NEW YORK CITY TIME, ON TUESDAY, OCTOBER 17, 2000, UNLESS THE OFFER IS EXTENDED. Please note the following: 1. The tender price is $7.00 per Share, net to the seller in cash without interest. 2. The Offer is being made for all of the outstanding Shares. 3. The Offer and withdrawal rights will expire at 12:00 Midnight, New York City time, on Tuesday, October 17, 2000, unless the Offer is extended. 4. The Offer is conditioned upon, among other things, there being validly tendered and not withdrawn prior to the expiration of the Offer such number of Shares that would constitute at least a majority of the Shares that in the aggregate are outstanding determined on a fully diluted basis (assuming the exercise of all options to purchase Shares, and the conversion or exchange of all securities convertible or exchangeable into Shares outstanding at the expiration date of the Offer), and any waiting period under the HSR Act (as defined in the Offer to Purchase) applicable to the purchase of Shares pursuant to the Offer having expired or having been terminated prior to the expiration of the Offer. The Offer is also subject to the other terms and conditions contained in the Offer to Purchase. 5. Tendering stockholders will not be obligated to pay brokerage fees or commissions imposed by Tupperware or Purchaser or, except as set forth in Instruction 6 of the Letter of Transmittal, stock transfer taxes on the transfer of Shares pursuant to the Offer. In order to take advantage of the Offer, (i) a duly executed and properly completed Letter of Transmittal (or a manually signed facsimile thereof) and any required signature guarantees or, in the case of a book-entry transfer, an Agent's Message (as defined in the Offer to Purchase) or other required documents should be sent to the Depositary and (ii) certificates representing the tendered Shares on a timely Book-Entry Confirmation (as defined in the Offer to Purchase) should be delivered to the Depositary in accordance with the instructions set forth in the Offer. If holders of Shares wish to tender, but it is impracticable for them to forward their Certificates or other required documents or complete the procedures for book-entry transfer prior to the Expiration Date, a tender must be effected by following the guaranteed delivery procedures specified in Section 3 of the Offer to Purchase. Neither Purchaser, Tupperware nor any officer, director, stockholder, agent or other representative of Purchaser or Tupperware will pay any fees or commissions to any broker, dealer or other person (other than the Depositary and the Information Agent as described in the Offer to Purchase) for soliciting tenders of Shares pursuant to the Offer. Purchaser will, however, upon request, reimburse you for customary mailing and handling expenses incurred by you in forwarding any of the enclosed materials to your clients. Purchaser will pay or cause to be paid any transfer taxes payable on the transfer of Shares to it, except as otherwise provided in Instruction 6 of the Letter of Transmittal. Any inquiries you may have with respect to the Offer should be addressed to Georgeson Shareholder Communications Inc., the Information Agent for the Offer, at (800) 223-2064. 2 Requests for copies of the enclosed materials may be directed to the Information Agent at the above address and telephone number. Very truly yours, Georgeson Shareholder Communications Inc. NOTHING CONTAINED HEREIN OR IN THE ENCLOSED DOCUMENTS SHALL CONSTITUTE YOU OR ANY OTHER PERSON THE AGENT OF TUPPERWARE, PURCHASER, THE DEPOSITARY, THE DEALER MANAGER, THE INFORMATION AGENT OR ANY AFFILIATE OF ANY OF THEM, OR AUTHORIZE YOU OR ANY OTHER PERSON TO MAKE ANY STATEMENT OR USE ANY DOCUMENT ON BEHALF OF ANY OF THEM IN CONNECTION WITH THE OFFER OTHER THAN THE ENCLOSED DOCUMENTS AND THE STATEMENTS CONTAINED THEREIN. 3 EX-99.(A)(1)(E) 6 0006.txt LETTERS TO CLIENTS FOR USE BY BROKERS, DEALERS Exhibit (a)(1)(E) Offer to Purchase for Cash All Outstanding Shares of Common Stock of BeautiControl, Inc. at $7.00 Net Per Share by B-C Merger Corporation a wholly owned subsidiary of Tupperware Corporation THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT, NEW YORK CITY TIME, ON TUESDAY, OCTOBER 17, 2000 UNLESS THE OFFER IS EXTENDED. September 20, 2000 To Our Clients: Enclosed for your consideration are the Offer to Purchase, dated September 20, 2000 (the "Offer to Purchase"), and the related Letter of Transmittal (which, together with any amendments or supplements thereto, collectively constitute the "Offer") relating to an offer by B-C Merger Corporation, a Delaware corporation ("Purchaser") and a wholly owned subsidiary of Tupperware Corporation, a Delaware corporation ("Tupperware"), to purchase all outstanding shares of common stock, par value $.10 per share (the "Shares"), of BeautiControl, Inc., a Delaware corporation (the "Company"), at a purchase price of $7.00 per Share, net to the seller in cash, without interest, upon the terms and subject to the conditions set forth in the Offer. The Offer is being made in connection with the Agreement and Plan of Merger, dated as of September 13, 2000, among Tupperware, Purchaser and the Company (the "Merger Agreement"). This material is being forwarded to you as the beneficial owner of Shares carried by us in your account but not registered in your name. A tender of such Shares can be made only by us as the holder of record and pursuant to your instructions. The Letter of Transmittal is furnished to you for your information only and cannot be used by you to tender Shares held by us for your account. Accordingly, we request instructions as to whether you wish to tender any or all of the Shares held by us for your account, upon the terms and conditions set forth in the Offer. Please note the following: 1. The tender price is $7.00 per Share, net to you in cash without interest. 2. The Offer is being made for all of the outstanding Shares. 3. The Offer and withdrawal rights will expire at 12:00 Midnight, New York City time, on Tuesday, October 17, 2000, unless the Offer is extended. 4. The Offer is conditioned upon, among other things, there being validly tendered and not withdrawn prior to the expiration of the Offer such number of Shares that would constitute at least a majority of the Shares that in the aggregate are outstanding determined on a fully diluted basis (assuming the exercise of all options to purchase Shares and the conversion or exchange of all securities convertible or exchangeable into Shares outstanding at the expiration date of the Offer, and any waiting period under the HSR Act (as defined in the Offer to Purchase) applicable to the purchase of Shares pursuant to the Offer having expired or having been terminated prior to the expiration of the Offer. The Offer is also subject to the other terms and conditions contained in the Offer to Purchase. 5. Tendering stockholders will not be obligated to pay brokerage fees or commissions imposed by Tupperware or Purchaser or, except as set forth in Instruction 6 of the Letter of Transmittal, stock transfer taxes on the transfer of Shares pursuant to the Offer. If you wish to have us tender any or all of the Shares, please so instruct us by completing, executing, detaching and returning to us the instruction form contained in this letter. An envelope to return your instruction to us is enclosed. If you authorize tender of your Shares, all such Shares will be tendered unless otherwise indicated in such instruction form. Please forward your instructions to us as soon as possible to allow us ample time to tender your Shares on your behalf prior to the expiration of the Offer. The Offer is made solely by the Offer to Purchase and the related Letter of Transmittal and any supplements or amendments thereto. The Offer is not being made to, nor will tenders be accepted from or on behalf of, holders of Shares residing in any jurisdiction in which the making of the Offer or acceptance thereof would not be in compliance with the securities laws of such jurisdiction. In any jurisdiction where the securities, blue sky or other laws require the Offer to be made by a licensed broker or dealer, the Offer will be deemed to be made on behalf of Purchaser by one or more registered brokers or dealers licensed under the laws of such jurisdiction. 2 INSTRUCTIONS WITH RESPECT TO THE OFFER TO PURCHASE FOR CASH ALL OUTSTANDING SHARES OF COMMON STOCK OF BEAUTICONTROL, INC. AT $7.00 NET PER SHARE BY B-C MERGER CORPORATION The undersigned acknowledge(s) receipt of your letter and the enclosed Offer to Purchase dated September 20, 2000 (the "Offer to Purchase"), and the related Letter of Transmittal (which, together with any amendments or supplements thereto, collectively constitute the "Offer") in connection with the offer by B-C Merger Corporation, a Delaware corporation ("Purchaser") and a wholly owned subsidiary of Tupperware Corporation, a Delaware corporation ("Tupperware"), to purchase all outstanding shares of common stock, par value $.10 per share (the "Shares"), of BeautiControl, Inc., a Delaware corporation. This will instruct you to tender to Purchaser the number of Shares indicated below (or if no number is indicated below, all Shares) which are held by you for the account of the undersigned, upon the terms and subject to the conditions set forth in the Offer. Number of Shares to be Tendered:* ___________________________________________ SIGN HERE _____________________________________ _____________________________________ (Signature(s)) Account Number: _____________________ _____________________________________ Date: _________________________, 2000 _____________________________________ (Print Name(s)) _____________________________________ _____________________________________ (Print Address(es)) _____________________________________ (Area Code and Telephone Number(s)) _____________________________________ (Taxpayer Identification or Social Security Number(s)) - - -------- *Unless otherwise indicated, it will be assumed that all Shares held by us for your account are to be tendered. 3 EX-99.(A)(1)(F) 7 0007.txt GUIDELINES FOR CERTIFICATION OF TAXPAYER Exhibit (a)(1)(F) GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION NUMBER ON SUBSTITUTE FORM W-9 Guidelines for Determining the Proper Identification Number to Give the Payer--Social Security numbers have nine digits separated by two hyphens: i.e. 000-00-0000. Employer identification numbers have nine digits separated by only one hyphen: i.e. 00-0000000. The table below will help determine the number to give the payer. - - --------------------------------------- ---------------------------------------
For this type of account: Give the name and SOCIAL SECURITY number of-- - - ----------------------------------------------- 1. Individual The individual 2. Two or more individuals The actual owner (joint account) of the account or, if combined funds, the first individual on the account (1) 3. Custodian account of a The minor (2) minor (Uniform Gift to Minors Act) 4. a. The usual revocable The grantor- savings trust (grantor trustee (1) is also trustee) b. So-called trust account The actual owner that is not a legal or (1) valid trust under State law 5. Sole proprietorship The owner (3) 6. Sole proprietorship The owner (3) account
Give the name and For this type of account: EMPLOYER IDENTIFICATION number of -- -------- 7. A valid trust, estate, or The legal entity pension trust (Do not furnish the identifying number of the personal representative or trustee unless the legal entity itself is not designated in the account title) (4) 8. Corporate The corporation 9. Association, club, The organization religious, charitable, educational, or other tax- exempt organization 10. Partnership The partnership 11. A broker or registered The broker or nominee nominee 12. Account with the The public entity Department of Agriculture in the name of a public entity (such as a State or local government, school district, or prison) that receives agricultural program payments
- - --------------------------------------- (1) List first and circle the name of the person whose number you furnish. If only one person on a joint account has a SSN, that person's number must be furnished. (2) Circle the minor's name and furnish the minor's social security number. (3) You must show your individual name, but you may also enter your business or "doing business as" name. You may use either your social security number or employment identification number (if you have one). --------------------------------------- (4) List first and circle the name of the legal trust, estate, or pension trust. Note: If no name is circled when there is more than one name, the number will be considered to be that of the first name listed. GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION NUMBER OF SUBSTITUTE FORM W-9 Page 2 Obtaining a Number If you don't have a taxpayer identification number or you don't know your number, obtain Form SS-5, Application for a Social Security Card, or Form SS- 4, Application for Employer Identification Number (for businesses and all other entities), or Form W-7 for Individual Taxpayer Identification Number (for alien individuals required to file U.S. tax returns), at an office of the Social Security Administration or the Internal Revenue Service. Payees Exempt from Backup Withholding Payees specifically exempted from backup withholding on all payments include the following: . A financial institution. . An organization exempt from tax under section 501(a), or an individual re- tirement plan, or a custodial account under Section 403(b)(7). . The United States or any agency or instrumentality thereof. . A State, the District of Columbia, a possession of the United States, or any political subdivision or instrumentality thereof. . A foreign government, a political subdivision of a foreign government, or any agency or instrumentality thereof. . An international organization or any agency or instrumentality thereof. Payees that may be exempt from backup withholding, including, among others: . A corporation. . A registered dealer in securities or commodities registered in the U.S. or a possession of the U.S. . A real estate investment trust. . A common trust fund operated by a bank under section 584(a). . An entity registered at all times during the tax year under the Investment Company Act of 1940. . A foreign central bank of issue. Payments of dividends and patronage dividends not generally subject to backup withholding include the following: . Payments to nonresident aliens subject to withholding under section 1441. . Payments to partnerships not engaged in a trade or business in the U.S. and which have at least one nonresident alien partner. . Payments of patronage dividends where the amount received is not paid in money. . Payments made by certain foreign organizations. Payments of interest not generally subject to backup withholding include the following: . Payments of interest on obligations issued by individuals. Note: You may be subject to backup withholding if this interest is $600 or more and is paid in the course of the payer's trade or business and you have not provided your correct taxpayer identification number to the payer. . Payments of tax-exempt interest (including exempt-interest dividends under section 852). . Payments described in section 6049(b)(5) to non-resident aliens. . Payments on tax-free covenant bonds under section 1451. . Payments made by certain foreign organizations. . Mortgage interest paid to you. Exempt payees described above should file a Substitute Form W-9 to avoid possible erroneous backup withholding. FILE THIS FORM WITH THE PAYER, FURNISH YOUR TAXPAYER IDENTIFICATION NUMBER, WRITE "EXEMPT" ON THE FACE OF THE FORM, AND RETURN IT TO THE PAYER. IF THE PAYMENTS ARE INTEREST, DIVIDENDS, OR PATRONAGE DIVIDENDS, ALSO SIGN AND DATE THE FORM. Certain payments other than interest, dividends, and patronage dividends that are not subject to information reporting are also not subject to backup with- holding. For details, see sections 6041, 6041A(a), 6042, 6044, 6045, 6049, 6050A, and 6050N, and their regulations. Privacy Act Notice.--Section 6109 requires most recipients of dividend, inter- est or other payments to give taxpayer identification numbers to payers who must report the payments to the IRS. The IRS uses the numbers for identifica- tion purposes and to help verify the accuracy of your tax return. Payers must be given the numbers whether or not recipients are required to file tax re- turns. Payers must generally withhold 31% of taxable interest, dividend and certain other payments to a payee who does not furnish a taxpayer identifica- tion number to a payer. Certain penalties may also apply. Penalties (1) Penalty for Failure to Furnish Taxpayer Identification Number.--If you fail to furnish your correct taxpayer identification number to a payer, you are subject to a penalty of $50 for each such failure unless your failure is due to reasonable cause and not to willful neglect. (2) Civil Penalty for False Information With Respect to Withholding.--If you make a false statement with no reasonable basis which results in no imposition of backup withholding, you are subject to a penalty of $500. (3) Criminal Penalty for Falsifying Information.--Falsifying certifications or affirmations may subject you to criminal penalties including fines and/or im- prisonment. FOR ADDITIONAL INFORMATION CONTACT YOUR TAX CONSULTANT OR THE INTERNAL REVENUE SERVICE. EX-99.(A)(1)(G) 8 0008.txt FORM OF SUMMARY ADVERTISMENT Exhibit (a)(1)(G) This announcement is neither an offer to purchase nor a solicitation of an offer to sell Shares (as defined below). The Offer (as defined below) is made solely by the Offer to Purchase, dated September 20, 2000, and the related Letter of Transmittal (and any amendments or supplements thereto), and is being made to all holders of Shares. Purchaser (as defined below) is not aware of any state where the making of the Offer is prohibited by administrative or judicial action pursuant to any valid state statute. If Purchaser becomes aware of any valid state statute prohibiting the making of the Offer or the acceptance of the Shares pursuant thereto, Purchaser will make a good faith effort to comply with such statue or seek to have such statue declared inapplicable to the Offer. If, after such good faith effort, Purchaser cannot comply with such state statute, the Offer will not be made to (nor will tenders be accepted from or on behalf of) holders of Shares in such state. In any jurisdiction where the securities, "blue sky" or other laws require the Offer to be made by a licensed broker or dealer, the Offer will be deemed to be made on behalf of Purchaser by one or more registered brokers or dealers licensed under the laws of such jurisdiction. Notice of Offer to Purchase for Cash All Outstanding Shares of Common Stock at $7.00 per share of BeautiControl, Inc. by B-C Merger Corporation a wholly owned subsidiary of Tupperware Corporation B-C Merger Corporation, a Delaware corporation ("Purchaser") and a wholly owned subsidiary of Tupperware Corporation, a Delaware corporation ("Tupperware"), is offering to purchase all of the outstanding shares of common stock, par value $.10 per share (the "Shares"), of BeautiControl, Inc., a Delaware corporation (the "Company"), for $7.00 per Share, net to the seller in cash, without interest, upon the terms and subject to the conditions set forth in the Offer to Purchase, dated September 20, 2000 (the "Offer to Purchase"), and in the related Letter of Transmittal (which, together with any amendments or supplements thereto, collectively constitute the "Offer"). - - -------------------------------------------------------------------------------- THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT, NEW YORK CITY TIME, ON TUESDAY, OCTOBER 17, 2000, UNLESS THE OFFER IS EXTENDED. - - -------------------------------------------------------------------------------- The Offer is conditioned upon, among other things, (i) there being validly tendered and not withdrawn prior to the expiration of the Offer such number of Shares that would constitute at least a majority of the Shares that in the aggregate are outstanding determined on a fully diluted basis (assuming the exercise of all options to purchase Shares, and the conversion or exchange of all securities convertible or exchangeable into Shares, outstanding at the expiration date of the Offer), (ii) any waiting period under the HSR Act (as defined in the Offer to Purchase) applicable to the purchase of Shares pursuant to the Offer having expired or having been terminated prior to the expiration of the Offer, and (iii) the satisfaction of certain other terms and conditions. The Offer is being made pursuant to an Agreement and Plan of Merger dated as of September 13, 2000 (the "Merger Agreement") among Tupperware, Purchaser and the Company. The Merger Agreement provides that following satisfaction or waiver of the conditions set forth in the Merger Agreement and in accordance with relevant provisions of the General Corporation Law of the State of Delaware, as amended (the "DGCL"), Purchaser will be merged with and into the Company (the "Merger"). At the effective time of the Merger (the "Effective Time"), each Share issued and outstanding immediately prior to the Effective Time (other than Shares owned by the Company, any wholly owned subsidiary of the Company, Tupperware, or any wholly owned subsidiary of Tupperware, or by stockholders, if any, who are entitled to and properly exercise dissenter's rights under the DGCL) will be converted into the right to receive $7.00 in cash, without interest. THE BOARD OF DIRECTORS OF THE COMPANY HAS APPROVED THE MERGER AGREEMENT AND APPROVED THE OFFER AND THE MERGER, HAS DETERMINED THAT THE TERMS OF THE OFFER AND THE MERGER ARE FAIR TO, AND IN THE BEST INTERESTS OF, THE COMPANY'S STOCKHOLDERS, AND RECOMMENDS THAT THE COMPANY'S STOCKHOLDERS ACCEPT THE OFFER AND TENDER ALL THEIR SHARES PURSUANT TO THE OFFER. For purposes of the Offer, Purchaser will be deemed to have accepted for payment, and thereby purchased, Shares validly tendered and not withdrawn, if and when Purchaser gives oral or written notice to ChaseMellon Shareholder Services, L.L.C. (the "Depositary") of Purchaser's acceptance of such Shares for payment. In all cases, payment for Shares purchased pursuant to the Offer will be made by deposit of the purchase price with the Depositary, which shall act as agent for tendering stockholders for the purpose of receiving payment from Purchaser and transmitting payment to the tendering stockholders. Payment for Shares accepted for payment pursuant to the Offer will be made only after timely receipt by the Depositary (i) of certificates for such Shares or timely confirmation of a book-entry transfer of such Shares into the Depositary's account at the Book-Entry Transfer Facility (as defined in the Offer to Purchase) pursuant to the procedures set forth in the Offer to Purchase, (ii) a properly completed and duly executed Letter of Transmittal (or a manually signed facsimile thereof), with any required signature guarantees, or, in the case of a book-entry transfer, an Agent's Message (as defined in the Offer to Purchase) and (iii) any other documents required by the Letter of Transmittal. Purchaser expressly reserves the right, in its sole discretion (subject to the terms and conditions of the Merger Agreement), at any time and from time to time, to extend the period of time during which the Offer is open for any reason, including the failure of any of the conditions specified in Section 14 of the Offer to Purchase to be satisfied, and thereby delay acceptance for payment of and payment for any Shares. The term "Expiration Date" shall mean 12:00 Midnight, New York City time, on Tuesday, October 17, 2000 unless Purchaser shall have extended the period of time for which the Offer is open, in which event the term "Expiration Date" shall mean the latest time and date at which the Offer, as so extended by Purchaser, shall expire. No subsequent offering period will be available. Subject to the limitations set forth in the Offer and the Merger Agreement, Purchaser reserves the right (but will not be obligated), at any time or from time to time in its sole discretion, to extend the period during which the Offer is open by giving oral or written notice of such extension to the Depositary and by making a public announcement of such extension. There can be no assurance that Purchaser will exercise its right to extend the Offer. Any extension of the period during which the Offer is open will be followed, as promptly as practicable, by public announcement thereof, such announcement to be issued not later than 9:00 a.m., New York City time, on the next business day after the previously scheduled Expiration Date. During any such extension, all Shares previously tendered and not withdrawn will remain subject to the Offer, subject to the rights of a tendering stockholder to withdraw such stockholder's Shares. Except as otherwise provided in Section 4 of the Offer to Purchase, tenders of Shares made pursuant to the Offer are irrevocable, except that Shares tendered pursuant to the Offer may be withdrawn at any time prior to the Expiration Date, and, unless theretofore accepted for payment, may also be withdrawn at any time after November 20, 2000. For a withdrawal to be effective, a written, telegraphic, telex or facsimile transmission notice of withdrawal must be timely received by the Depositary at one of its addresses set forth on the back cover of the Offer to Purchase. Any such notice of withdrawal must specify the name of the person who tendered the Shares to be withdrawn, the number of Shares to be withdrawn and the name of the registered holder if different from the name of the person who tendered the Shares. If certificates for Shares to be withdrawn have been delivered or otherwise identified to the Depositary, then prior to the physical release of such certificates, the serial numbers shown on such certificates must be submitted to the Depositary and, unless such Shares have been tendered for the account of an Eligible Institution (as defined in the Offer to Purchase), the signature on the notice of withdrawal must be guaranteed by an Eligible Institution. All questions as to the form and validity (including time of receipt) of a notice of withdrawal will be determined by Purchaser, in its sole discretion, and its determination shall be final and binding on all parties. The information required to be disclosed pursuant to Rule 14d-6 of the General Rules and Regulations under the Securities Exchange Act of 1934, as amended, is contained in the Offer to Purchase and is incorporated herein by reference. The Company has provided to Purchaser its lists of stockholders and security position listings for the purpose of disseminating the Offer to holders of Shares. The Offer to Purchase, the related Letter of Transmittal and other related materials are being mailed to record holders of Shares and will be mailed to brokers, dealers, commercial banks, trust companies and similar persons whose names, or the names of whose nominees, appear on the stockholder lists or, if applicable, who are listed as participants in a clearing agency's security position listing, for subsequent transmittal to beneficial owners of Shares. The Offer to Purchase and the related Letter of Transmittal contain important information that should be read before any decision is made with respect to the Offer. Any questions or requests for assistance or for copies of the Offer to Purchase and the related Letter of Transmittal and other tender offer materials may be directed to the Information Agent as set forth below, and copies will be furnished promptly at Purchaser's expense. No fees or commissions will be payable to brokers, dealers or other persons other than the Information Agent, the Dealer Manager and the Depositary for soliciting tenders of Shares pursuant to the Offer. The Information Agent for the Offer is: GEORGESON SHAREHOLDER COMMUNICATIONS INC. 17 State Street New York, New York 10004 Bankers and Brokers Call Collect: (212) 440-9800 All Others Call Toll-Free: (800) 223-2064 The Dealer Manager for the Offer is: L a z a r d 30 Rockefeller Plaza New York, New York 10020 September 20, 2000 EX-99.(A)(1)(H) 9 0009.txt TEXT OF PRESS RELEASE Exhibit (a)(1)(H) TUPPERWARE NEWS RELEASE Release: Immediate Contact: Michael Poteshman Phone: 407-826-4522 TUPPERWARE COMMENCES TENDER OFFER FOR BEAUTICONTROL, INC. Orlando, Fla., September 20, 2000--Following its announcement last week of its plan to acquire BeautiControl, Inc. (NASDAQ: BUTI), Tupperware Corporation (NYSE: TUP) today announced that it is commencing a $7.00 per share cash tender offer for all of the outstanding common shares of BeautiControl. BeautiControl has approximately 8.9 million shares outstanding, including shares under option. The offer, approved by the boards of directors of both Tupperware and BeautiControl, will be conditioned upon, among other things, the tender of a majority of the fully diluted common shares outstanding. Tupperware has also entered into agreements with the holders of approximately 47% of the BeautiControl shares currently outstanding. Under those agreements, the stockholders have agreed to tender their shares prior to the expiration of the offer. The offer and withdrawal rights will expire at midnight, Eastern time, on Tuesday, October 17, 2000, unless the offer is extended. Georgeson Shareholder Communications Inc. will serve as the information agent for the offer. This announcement is not an offer to purchase or a solicitation of an offer to sell shares. The offer is made solely by the Offer to Purchase dated September 20, 2000 and the related letter of transmittal and is not being made to, nor will tenders be accepted from or on behalf of, holders of shares in any jurisdiction in which the making of the offer or acceptance thereof would not be in compliance with the laws of such jurisdiction. Tupperware Corporation, a $1.0 billion multinational company, is one of the world's leading direct sellers and suppliers of food storage, preparation and serving items, with premium products reaching consumers in more than 100 countries. Tupperware's web site address is www.tupperware.com, and its stock is listed on the New York Stock Exchange. WE URGE HOLDERS OF BEAUTICONTROL COMMON STOCK TO READ THE OFFER TO PURCHASE, THE LETTER OF TRANSMITTAL AND THE OTHER TENDER OFFER DOCUMENTS CAREFULLY BECAUSE THEY WILL CONTAIN IMPORTANT INFORMATION. Investors will be able to obtain these documents free of charge at the SEC's website, www.sec.gov. In addition, documents filed with the SEC by Tupperware will be available free of charge from Tupperware at 14901 S. Orange Blossom Trail, Orlando, FL 32837, Attn: Corporate Secretary. Documents filed with the SEC by BeautiControl will be available free of charge from BeautiControl at 2121 Midway, Carrollton, TX 75006, Attn: Corporate Secretary. EX-99.(D)(1) 10 0010.txt AGREEMENT AND PLAN OF MERGER Exhibit (d)(1) EXECUTION COPY AGREEMENT AND PLAN OF MERGER AMONG TUPPERWARE CORPORATION B-C MERGER CORPORATION AND BEAUTICONTROL, INC. Dated as of September 13, 2000 TABLE OF CONTENTS Page ---- ARTICLE I THE OFFER Section 1.1 The Offer................................................ 2 Section 1.2 Company Actions.......................................... 3 ARTICLE II THE MERGER Section 2.1 The Merger............................................... 4 Section 2.2 Effective Time........................................... 4 Section 2.3 Effects of the Merger.................................... 5 Section 2.4 Charter and Bylaws; Directors and Officers............... 5 Section 2.5 Conversion of Securities................................. 5 Section 2.6 Exchange of Certificates................................. 6 Section 2.7 Merger Without Meeting of Stockholders................... 8 Section 2.8 Further Assurances....................................... 8 Section 2.9 Closing.................................................. 8 ARTICLE III REPRESENTATIONS AND WARRANTIES OF PARENT AND SUB Section 3.1 Organization............................................. 8 Section 3.2 Authority................................................ 8 Section 3.3 Consents and Approvals; No Violations.................... 9 Section 3.4 Information Supplied..................................... 10 Section 3.5 Interim Operations of Sub................................. 10 Section 3.6 Brokers................................................... 10 Section 3.7 Financing................................................. 10 ARTICLE IV REPRESENTATIONS AND WARRANTIES OF THE COMPANY Section 4.1 Organization, Standing and Power.......................... 11 Section 4.2 Capital Structure......................................... 11 Section 4.3 Authority................................................. 12 Section 4.4 Consents and Approvals; No Violation...................... 13 Section 4.5 SEC Documents and Other Reports........................... 14 Section 4.6 Information Supplied...................................... 14 Section 4.7 Absence of Certain Changes or Events...................... 14 Section 4.8 Permits and Compliance.................................... 15 Section 4.9 Tax Matters............................................... 16 Section 4.10 Actions and Proceedings.................................. 17 Section 4.11 Compensation Agreements.................................. 17 Section 4.12 Employee Benefits........................................ 18 Section 4.13 Liabilities.............................................. 19 Section 4.14 Labor Matters............................................ 20 Section 4.15 Intellectual Property.................................... 20 Section 4.16 Title to Assets.......................................... 21 Section 4.17 State Takeover Statutes.................................. 21 Section 4.18 Required Vote of Company Stockholders.................... 21 Section 4.19 Transactions with Affiliates............................. 22 ii Section 4.20 Brokers............................................... 22 Section 4.21 Compliance with Worker Safety Laws.................... 22 Section 4.22 Products.............................................. 23 Section 4.23 Opinion of Financial Advisor.......................... 23 Section 4.24 Accounts Receivable................................... 23 Section 4.25 Inventories........................................... 24 Section 4.26 Certain Agreements.................................... 24 Section 4.27 Environmental Matters................................. 24 Section 4.28 Regulatory Compliance................................. 26 ARTICLE V COVENANTS RELATING TO CONDUCT OF BUSINESS Section 5.1 Conduct of Business by the Company Pending the Merger.. 26 Section 5.2 No Solicitation........................................ 29 Section 5.3 Third Party Standstill Agreements...................... 29 ARTICLE VI ADDITIONAL AGREEMENTS Section 6.1 Stockholder Meeting.................................... 30 Section 6.2 Access to Information.................................. 31 Section 6.3 Directors.............................................. 31 Section 6.4 Fees and Expenses...................................... 32 Section 6.5 Company Stock Options.................................. 33 Section 6.6 Reasonable Best Efforts................................ 34 Section 6.7 Public Announcements................................... 35 iii Section 6.8 State Takeover Laws................................... 35 Section 6.9 Indemnification; Directors and Officers Insurance..... 35 Section 6.10 Notification of Certain Matters....................... 35 Section 6.11 Employee Benefit Plans................................ 36 ARTICLE VII CONDITIONS PRECEDENT TO THE MERGER Section 7.1 Conditions to Each Party's Obligation to Effect the Merger............................................. 36 ARTICLE VIII TERMINATION, AMENDMENT AND WAIVER Section 8.1 Termination............................................ 37 Section 8.2 Effect of Termination.................................. 38 Section 8.3 Amendment.............................................. 38 Section 8.4 Waiver................................................. 38 ARTICLE IX GENERAL PROVISIONS Section 9.1 Non-Survival of Representations and Warranties......... 39 Section 9.2 Notices................................................ 39 Section 9.3 Interpretation; Certain Definitions.................... 40 Section 9.4 Counterparts........................................... 42 Section 9.5 Entire Agreement; No Third-Party Beneficiaries......... 42 Section 9.6 Governing Law.......................................... 42 Section 9.7 Assignment............................................. 42 Section 9.8 Severability........................................... 42 iv Section 9.9 Enforcement of this Agreement.......................... 42 v EXHIBITS A Stockholder Agreement B Conditions of the Offer C Certificate of Incorporation vi AGREEMENT AND PLAN OF MERGER AGREEMENT AND PLAN OF MERGER, dated as of September 13, 2000 (this "Agreement"), among Tupperware Corporation, a Delaware corporation ("Parent"), B-C Merger Corporation, a Delaware corporation and a wholly-owned subsidiary of Parent ("Sub"), and BeautiControl, Inc., a Delaware corporation (the "Company") (Sub and the Company being hereinafter collectively referred to as the "Constituent Corporations"). W I T N E S S E T H: WHEREAS, the respective Boards of Directors of Parent, Sub and the Company have approved the acquisition of the Company by Parent on the terms and subject to the conditions set forth herein; WHEREAS, in furtherance of such acquisition, Parent proposes to cause Sub to make a tender offer (as it may be amended from time to time as permitted under this Agreement, the "Offer") to purchase all of the issued and outstanding shares (the "Shares") of Common Stock, par value $0.10 per share, of the Company (the "Company Common Stock") at a purchase price of $7.00 per Share (the "Offer Price"), net to the seller in cash, without interest thereon, upon the terms and subject to the conditions set forth in this Agreement; and the Board of Directors of the Company has adopted resolutions approving the Offer and the Merger (as defined below) and recommending that holders of Shares accept the Offer and that the Company's stockholders approve this Agreement; WHEREAS, the respective Boards of Directors of Parent, Sub and the Company have approved and declared advisable the merger of Sub and the Company (the "Merger"), upon the terms and subject to the conditions set forth herein, whereby each issued and outstanding Share not owned directly or indirectly by Parent or the Company will be converted into the right to receive the price per share paid in the Offer and the respective Boards of Directors of Sub and the Company have approved and adopted this Agreement; and WHEREAS, in order to induce Parent and Sub to enter into this Agreement, concurrently herewith Parent and certain of the stockholders of the Company are entering into Stockholder Agreements dated as of the date hereof (the "Stockholder Agreements" and, together with this Agreement, the "Transaction Agreements") in the form of the attached Exhibit A. NOW, THEREFORE, in consideration of the premises, representations, warranties and agreements herein contained, the parties agree as follows: ARTICLE I THE OFFER Section 1.1 The Offer. (a) Subject to the provisions of this Agreement, as promptly as practicable, Sub shall, and Parent shall cause Sub to, commence, within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (together with the rules and regulations thereunder, the "Exchange Act"), the Offer. The obligation of Sub to, and of Parent to cause Sub to, commence the Offer and accept for payment, and pay for, any Shares tendered pursuant to the Offer shall be subject only to the conditions set forth in the attached Exhibit B (the "Offer Conditions") (any of which may be waived in whole or in part by Sub in its sole discretion, except that Sub shall not waive the Minimum Condition (as defined in Exhibit B) without the consent of the Company) and subject to the rights of Parent and Sub to terminate this Agreement as provided in Section 8.1. Sub expressly reserves the right to modify the terms of the Offer, except that, without the consent of the Company, Sub shall not (i) reduce the number of Shares subject to the Offer, (ii) reduce the Offer Price, (iii) impose any other conditions to the Offer other than the Offer Conditions or modify the Offer Conditions (other than to waive any Offer Conditions to the extent permitted by this Agreement), (iv) except as provided in the next sentence, extend the Offer or (v) change the form of consideration payable in the Offer. Notwithstanding the foregoing, Sub may, without the consent of the Company, (i) extend the Offer, if at the scheduled or extended expiration date of the Offer any of the Offer Conditions shall not be satisfied or waived, until such time as such conditions are satisfied or waived, (ii) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") or the staff thereof applicable to the Offer and (iii) extend the Offer for any reason on one or more occasions for an aggregate period of not more than 15 business days beyond the latest expiration date that would otherwise be permitted under clause (i) or (ii) of this sentence, in each case subject to the right of Parent, Sub or the Company to terminate this Agreement pursuant to the terms hereof. Subject to the terms and conditions of the Offer and this Agreement, Sub shall, and Parent shall cause Sub to, accept for payment, and pay for, all Shares validly tendered and not withdrawn pursuant to the Offer, and pay for, pursuant to the Offer as soon as practicable after the expiration of the Offer, and in any event in compliance with the obligations respecting prompt payment pursuant to Rule 14e-1(c) under the Exchange Act. (b) On the date of commencement of the Offer, Parent and Sub shall file with the SEC a Tender Offer Statement on Schedule TO (the "Schedule TO") with respect to the Offer, which shall contain as an exhibit or incorporate by reference an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule TO and the documents included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "Offer Documents"), and Parent and Sub shall cause to be disseminated the Offer Documents to holders of Shares as and to the extent required by applicable federal securities laws. Parent, Sub and the Company each agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and Parent and Sub further agree to take all steps necessary to cause the Schedule TO as so corrected to be filed with the SEC and the other Offer 2 Documents as so corrected to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws. The Company and its counsel shall be given reasonable opportunity to review and comment upon the Offer Documents prior to their filing with the SEC or dissemination to the stockholders of the Company. Parent and Sub agree to provide the Company and its counsel any comments Parent, Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments and to cooperate with the Company and its counsel in responding to any such comments. (c) Parent shall provide or cause to be provided to Sub on a timely basis the funds necessary to accept for payment, and pay for, any Shares that Sub becomes obligated to accept for payment, and pay for, pursuant to the Offer. Section 1.2 Company Actions. (a) The Company hereby approves of and consents to the Offer and represents and warrants that the Board of Directors of the Company, at a meeting duly called and held, at which all directors were present (in person or by telephone), duly and unanimously adopted resolutions approving and adopting this Agreement, approving the Offer and the Merger, taking all action necessary to render the provisions of Section 203 of the DGCL (as defined below) inapplicable to the Offer, the Merger and the Stockholder Agreements, determining that the terms of the Offer and the Merger are fair to, and in the best interests of, the Company's stockholders and recommending that holders of Shares accept the Offer and that the Company's stockholders approve this Agreement and the Merger. The Company has been advised by each of its directors and by each of its executive officers that, prior to the date hereof, has knowledge of the transactions contemplated by this Agreement that each such person intends to tender all Shares owned by such person pursuant to the Offer. (b) On the date the Offer Documents are filed with the SEC, the Company shall file with the SEC a Solicitation/Recommendation Statement on Schedule 14D-9 with respect to the Offer (such Schedule 14D-9, as amended from time to time, the "Schedule 14D-9") containing the recommendation described in paragraph (a), and the Company shall cause the Schedule 14D-9 to be disseminated to holders of Shares as and to the extent required by applicable federal securities laws. Each of the Company, Parent and Sub agrees promptly to correct any information provided by it for use in the Schedule 14D-9 if and to the extent that such information shall have become false or misleading in any material respect, and the Company further agrees to take all steps necessary to amend or supplement the Schedule 14D-9 and to cause the Schedule 14D-9 as so amended or supplemented to be filed with the SEC and disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws. Parent and its counsel shall be given reasonable opportunity to review and comment upon the Schedule 14D-9 prior to its filing with the SEC or dissemination to stockholders of the Company. The Company agrees to provide Parent and its counsel any comments the Company or its counsel may receive from the SEC or its staff with respect to the Schedule 14D-9 promptly after the receipt of such comments and to cooperate with Parent, Sub and their counsel in responding to any such comments. 3 (c) In connection with the Offer and the Merger, the Company shall cause its transfer agent or agents to furnish Sub promptly with mailing labels containing the names and addresses of the record holders of Shares as of a recent date and of those persons becoming record holders subsequent to such date, together with copies of all lists of stockholders, security position listings and computer files and all other information in the Company's possession or control, to the extent reasonably available to the Company, regarding the beneficial owners of Shares and any securities convertible into Shares, and shall furnish to Sub such information (including updated lists of stockholders, security position listings and computer files) as Parent may reasonably request in communicating the Offer to the Company's stockholders. Subject to the requirements of applicable law, and except for such steps as are necessary to disseminate the Offer Documents and any other documents necessary to consummate the Merger, Parent and Sub and their agents shall hold in confidence the information contained in any such labels, listings and files, will use such information only in connection with the Offer and the Merger and, if this Agreement shall be terminated, will, upon request, deliver, and will use their best efforts to cause their agents to deliver, to the Company all copies of such information then in their possession or control. ARTICLE II THE MERGER Section 2.1 The Merger. Upon the terms and subject to the conditions hereof, and in accordance with the General Corporation Law of the State of Delaware, as amended (the "DGCL"), Sub shall be merged with and into the Company at the Effective Time (as hereinafter defined). Following the Merger, the separate corporate existence of Sub shall cease and the Company shall continue as the surviving corporation (the "Surviving Corporation") and shall succeed to and assume all the rights and obligations of Sub in accordance with the DGCL. Notwithstanding anything to the contrary herein, at the election of Parent, any direct wholly-owned Subsidiary (as hereinafter defined) of Parent may be substituted for Sub as a constituent corporation in the Merger. In such event, the parties agree to execute an appropriate amendment to this Agreement, in form and substance reasonably satisfactory to Parent and the Company, in order to reflect such substitution. Section 2.2 Effective Time. The Merger shall become effective when the certificate of merger or, if applicable, the certificate of ownership and merger (each, the "Certificate of Merger"), executed in accordance with the relevant provisions of the DGCL, is filed with the Secretary of State of the State of Delaware; provided, however, that, upon mutual consent of the Constituent Corporations, the Certificate of Merger may provide for a later date of effectiveness of the Merger. When used in this Agreement, the term "Effective Time" shall mean the date and time at which the Certificate of Merger is accepted for record or such later time established by the Certificate of Merger. The filing of the Certificate of Merger shall be made on the date of the Closing (as hereinafter defined). 4 Section 2.3 Effects of the Merger. The Merger shall have the effects set forth in this Agreement and the DGCL. Section 2.4 Charter and Bylaws; Directors and Officers. (a) At the Effective Time, the Restated Certificate of Incorporation, as amended, as further amended to read in its entirety as indicated on the attached Exhibit C, of the Company (the "Company Charter") shall be the Certificate of Incorporation of the Surviving Corporation until thereafter changed or amended as provided therein or by applicable law. At the Effective Time, the Bylaws of Sub, as in effect immediately prior to the Effective Time, shall be the Bylaws of the Surviving Corporation until thereafter changed or amended as provided therein or by the Company Charter or applicable law. (b) The directors of Sub at the Effective Time shall be the directors of the Surviving Corporation, until the earlier of their resignation or removal or until their respective successors are duly elected and qualified, as the case may be. The officers of the Company at the Effective Time shall be the officers of the Surviving Corporation, until the earlier of their resignation or removal or until their respective successors are duly elected and qualified, as the case may be. Section 2.5 Conversion of Securities. (a) As of the Effective Time, by virtue of the Merger and without any action on the part of Sub, the Company or the holders of any securities of the Constituent Corporations: (i) Each issued and outstanding share of common stock, par value $.01 per share, of Sub shall be converted into one validly issued, fully paid and nonassessable share of common stock of the Surviving Corporation. (ii) All Shares that are held in the treasury of the Company or by any wholly-owned Subsidiary of the Company and any Shares owned by Parent or by any wholly-owned Subsidiary of Parent shall be canceled and no capital stock of Parent or other consideration shall be delivered in exchange therefor. (iii) Subject to the provisions of Section 2.5(a)(iv), each Share issued and outstanding immediately prior to the Effective Time (other than shares to be canceled in accordance with Section 2.5(a)(ii) and other than Dissenting Shares (as hereinafter defined)) shall be converted into the right to receive from the Surviving Corporation in cash, without interest, the Offer Price (the "Merger Consideration"). All such Shares, when so converted, shall no longer be outstanding and shall automatically be canceled and retired and each holder of a certificate representing any such Shares shall cease to have any rights with respect thereto, except the right to receive the Merger Consideration. (iv) Notwithstanding any provision of this Agreement to the contrary, if required by the DGCL but only to the extent required thereby, Shares which are issued and outstanding immediately prior to the Effective Time and which are held by holders who have properly exercised appraisal rights with respect thereto in accordance with Section 262 of the DGCL (the "Dissenting Shares") will not be exchangeable for the right to receive the Merger Consideration, and holders of such Shares will be entitled to 5 receive payment of the appraised value of such Shares in accordance with the provisions of such Section 262 unless and until such holders fail to perfect or effectively withdraw or lose their rights to appraisal and payment under the DGCL. If, after the Effective Time, any such holder fails to perfect or effectively withdraws or loses such right, such Shares will thereupon be treated as if they had been converted into and have become exchangeable for, at the Effective Time, the right to receive the Merger Consideration, without any interest thereon. The Company will give Parent prompt notice of any demands received by the Company for appraisals of Shares. 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) Each Company Stock Option (as hereinafter defined) shall be treated in accordance with Section 6.5 of this Agreement. Section 2.6 Exchange of Certificates. (a) Paying Agent. Prior to the Effective Time, Parent shall designate a bank or trust company (or such other person or persons as shall be reasonably acceptable to Parent and the Company) to act as paying agent in the Merger (the "Paying Agent"), and, from time to time on, prior to or after the Effective Time, Parent shall make available, or cause the Surviving Corporation to make available, to the Paying Agent cash in amounts and at the times necessary for the payment of the Merger Consideration upon surrender of certificates representing Shares as part of the Merger pursuant to Section 2.5. Any and all interest earned on funds made available to the Paying Agent pursuant to this Agreement shall be paid over to Parent. (b) Exchange Procedure. As soon as reasonably practicable after the Effective Time, Parent shall cause the Paying Agent to mail to each holder of record of a certificate or certificates that immediately prior to the Effective Time represented Shares (the "Certificates"), (i) a letter of transmittal (which shall specify that delivery shall be effected, and risk of loss and title to the Certificates shall pass, only upon delivery of the Certificates to the Paying Agent and shall be in a form and have such other provisions not inconsistent with this Agreement as Parent may reasonably specify) and (ii) instructions for use in effecting the surrender of the Certificates in exchange for the Merger Consideration. Upon surrender of a Certificate for cancellation to the Paying Agent or to such other agent or agents as may be appointed by Parent, together with such letter of transmittal, duly executed, and such other documents as may reasonably be required by the Paying Agent, Parent shall cause the Paying Agent to pay the holder of such Certificate, in exchange for such Certificate, the Merger Consideration, and the Certificate so surrendered shall forthwith be canceled. In the event of a transfer of ownership of Shares that is not registered in the transfer records of the Company, payment may be made to a person other than the person in whose name the Certificate so surrendered is registered, if such Certificate shall be properly endorsed or otherwise be in proper form for transfer and the person requesting such payment shall pay any transfer or other taxes required by reason of the payment to a person other than the registered holder of such Certificate or establish to the satisfaction of the Surviving Corporation that such tax has been paid or is not applicable. Until surrendered as contemplated by this Section 2.6, each Certificate (other than Certificates representing Dissenting Shares) shall be deemed at any time after the Effective Time to represent only the right to receive upon such 6 surrender the amount of cash, without interest, into which the Shares theretofore represented by such Certificate shall have been converted pursuant to Section 2.5. No interest will be paid or will accrue on the cash payable upon the surrender of any Certificate. Parent or the Paying Agent shall be entitled to deduct and withhold from the consideration otherwise payable pursuant to this Agreement to any holder of Shares such amounts as Parent or the Paying Agent is required to deduct and withhold with respect to the making of such payment under the Code (as hereinafter defined) or under any provisions of state, local or foreign tax law. To the extent that amounts are so withheld by Parent or the Paying Agent, such withheld amounts shall be treated for all purposes of this Agreement as having been paid to the person in respect of which such deduction or withholding was made by the Parent or the Paying Agent. (c) No Further Ownership Rights in Shares. All cash paid upon the surrender of Certificates in accordance with the terms of this Article II shall be deemed to have been paid in full satisfaction of all rights pertaining to the Shares theretofore represented by such Certificates. At the Effective Time, the stock transfer books of the Company shall be closed, and there shall be no further registration of transfers on the stock transfer books of the Surviving Corporation of the Shares that were outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates are presented to the Surviving Corporation or the Paying Agent for any reason, they shall be canceled and exchanged as provided in this Article II. (d) Termination of Payment Fund. Any portion of the funds made available to the Paying Agent to pay the Merger Consideration which remains undistributed to the holders of Shares for six months after the Effective Time shall be delivered to Parent, upon demand, and any holders of Shares who have not theretofore complied with this Article II and the instructions set forth in the letter of transmittal mailed to such holders after the Effective Time shall thereafter look only to Parent for payment of the Merger Consideration to which they are entitled. (e) No Liability. None of Parent, Sub, the Company or the Paying Agent shall be liable to any person in respect of any cash delivered to a public official pursuant to any applicable abandoned property, escheat or similar law. If any Certificates shall not have been surrendered prior to seven years after the Effective Time (or immediately prior to such earlier date on which any payment pursuant to this Article II would otherwise escheat to or become the property of any Governmental Entity (as hereinafter defined)), the cash payment in respect of such Certificate shall, to the extent permitted by applicable law, become the property of the Surviving Corporation, free and clear of all claims or interests of any person previously entitled thereto. (f) Lost Certificates. If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person claiming such Certificate to be lost, stolen or destroyed and, if required by Parent or the Paying Agent, the posting by such person of a bond, in such reasonable amount as Parent or the Paying Agent may direct as indemnity against any claim that may be made against them with respect to such Certificate, the Paying Agent will pay in exchange for such lost, stolen or destroyed Certificate the amount of cash to which the holders thereof are entitled pursuant to Section 2.5. 7 Section 2.7 Merger Without Meeting of Stockholders. Notwithstanding the foregoing, if Sub, or any other direct or indirect subsidiary of Parent, shall acquire at least 90 percent of the outstanding Shares, pursuant to the Offer or otherwise, the parties hereto agree to take all necessary and appropriate action to cause the Merger to become effective as soon as practicable after expiration of the Offer without a meeting of stockholders of the Company, in accordance with Section 253 of the DGCL. Section 2.8 Further Assurances. If at any time after the Effective Time the Surviving Corporation shall consider or be advised that any deeds, bills of sale, assignments or assurances or any other acts or things are necessary, desirable or proper (a) to vest, perfect or confirm, of record or otherwise, in the Surviving Corporation its right, title or interest in, to or under any of the rights, privileges, powers, franchises, properties or assets of either of the Constituent Corporations, or (b) otherwise to carry out the purposes of this Agreement, the Surviving Corporation and its proper officers and directors or their designees shall be authorized to execute and deliver, in the name and on behalf of either of the Constituent Corporations, all such deeds, bills of sale, assignments and assurances and to do, in the name and on behalf of either Constituent Corporation, all such other acts and things as may be necessary, desirable or proper to vest, perfect or confirm the Surviving Corporation's right, title or interest in, to or under any of the rights, privileges, powers, franchises, properties or assets of such Constituent Corporation and otherwise to carry out the purposes of this Agreement. Section 2.9 Closing. The closing of the Merger (the "Closing") and all actions specified in this Agreement to occur at the Closing shall take place at the offices of Sidley & Austin, Bank One Plaza, 10 South Dearborn Street, Chicago, Illinois 60603, at 5:00 p.m., local time, no later than the second business day following the day on which the last of the conditions set forth in Article VII shall have been fulfilled or waived (if permissible) or at such other time and place as Parent and the Company shall agree. ARTICLE III REPRESENTATIONS AND WARRANTIES OF PARENT AND SUB Parent and Sub represent and warrant to the Company as follows: Section 3.1 Organization. Each of Parent and Sub is a corporation duly organized, validly existing and in good standing under the laws of the state of Delaware and has all requisite corporate power and authority to carry on its business as now being conducted. Each of Parent and Sub is duly qualified to do business, and is in good standing, in each jurisdiction where the character of its properties owned or held under lease or the nature of its activities makes such qualification necessary, except where the failure to be so qualified would not, individually or in the aggregate, have a Material Adverse Effect on Parent. Section 3.2 Authority. On or prior to the date of this Agreement, the Boards of Directors of Parent and Sub have declared the Merger advisable and approved and adopted this Agreement in accordance with the DGCL. Each of Parent and Sub has all requisite corporate 8 power and authority to execute and deliver the Transaction Agreements to which it is a party, and each of Parent and Sub has all requisite corporate power and authority to consummate the transactions contemplated in the Transaction Agreements to which it is a party. The execution, delivery and performance by Parent and Sub of the Transaction Agreements to which it is a party and the consummation of the transactions contemplated hereby and thereby have been duly authorized by all necessary corporate action (including Board action) on the part of Parent and Sub subject, in the case of this Agreement, to the filing of the Certificate of Merger as required by the DGCL. Each of Parent and Sub has duly executed and delivered the Transaction Agreements to which it is a party, and (assuming the valid authorization, execution and delivery of this Agreement by the Company, the valid authorization, execution and delivery of the Stockholder Agreements by the stockholders who are parties thereto and the validity and binding effect hereof and thereof on the Company and such stockholders), such agreements constitute the valid and binding obligation of each of Parent and Sub enforceable against them in accordance with their respective terms. Section 3.3 Consents and Approvals; No Violations. Assuming that all consents, approvals, authorizations and other actions described in this Section 3.3 have been obtained and all filings and obligations described in this Section 3.3 have been made, the execution and delivery of this Agreement and the Stockholder Agreements do not, and the consummation of the transactions contemplated hereby and thereby and compliance with the provisions hereof and thereof will not, result in any violation of, or default (with or without notice or lapse of time, or both) under, or give to others a right of termination, cancellation or acceleration of any obligation or result in the loss of a material benefit under, or result in the creation of any lien, security interest, charge or encumbrance upon any of the properties or assets of Parent or any of its Subsidiaries under, any provision of (i) the Certificate of Incorporation or the by-laws of Parent or Sub, each as amended to date, (ii) any provision of the comparable charter or organization documents of any of Parent's Subsidiaries, (iii) any loan or credit agreement, note, bond, mortgage, indenture, lease or other agreement, instrument, permit, concession, franchise or license applicable to Parent or any of its Subsidiaries or (iv) any judgment, order, decree, statute, law, ordinance, rule or regulation applicable to Parent or any of its Subsidiaries or any of their respective properties or assets, other than, in the case of clauses (ii), (iii) or (iv), any such violations, defaults, rights, liens, security interests, charges or encumbrances that, individually or in the aggregate, would not have a Material Adverse Effect on Parent or Sub, materially impair the ability of Parent or Sub to perform their respective obligations hereunder or under the Stockholder Agreements or prevent the consummation of any of the transactions contemplated hereby or thereby. No filing or registration with, or authorization, consent or approval of, any domestic (federal and state), foreign or supranational court, commission, governmental body, regulatory agency, (including the Food and Drug Administration) authority or tribunal (a "Governmental Entity") is required by or with respect to Parent or any of its Subsidiaries in connection with the execution and delivery of this Agreement or the Stockholder Agreements by Parent or Sub or is necessary for the consummation of the Offer, the Merger and the other transactions contemplated by this Agreement or the Stockholder Agreements, except for (i) in connection, or in compliance, with the provisions of the Hart- Scott-Rodino Antitrust Improvements Act of 1976, as amended (the "HSR Act"), and the Exchange Act, (ii) the filing of the Certificate of Merger with the Secretary of State of the State of Delaware and appropriate 9 documents with the relevant authorities of other states in which the Company or any of its Subsidiaries is qualified to do business, (iii) such filings and consents as may be required under any environmental, health or safety law or regulation pertaining to any notification, disclosure or required approval triggered by the Offer, the Merger or by the transactions contemplated by this Agreement or the Stockholder Agreements, (iv) such filings, authorizations, orders and approvals as may be required by state takeover laws (the "State Takeover Approvals"), (v) applicable requirements, if any, of state securities or "blue sky" laws ("Blue Sky Laws"), (vi) as may be required under foreign laws and (vii) such other consents, orders, authorizations, registrations, declarations and filings the failure of which to be obtained or made would not, individually or in the aggregate, have a Material Adverse Effect on Parent or Sub, materially impair the ability of Parent or Sub to perform its obligations hereunder or under the Stockholder Agreements or prevent the consummation of any of the transactions contemplated hereby or thereby. Section 3.4 Information Supplied. None of the information supplied or to be supplied by Parent or Sub specifically for inclusion or incorporation by reference in (i) the Offer Documents, (ii) the Schedule 14D-9, (iii) the information to be filed by the Company in connection with the Offer pursuant to Rule 14f-1 promulgated under the Exchange Act (the "Information Statement") or (iv) the proxy statement (together with any amendments or supplements thereto, the "Proxy Statement") relating to the Stockholder Meeting (as hereinafter defined) will (a) in the case of the Offer Documents, the Schedule 14D-9 and the Information Statement, at the respective times the Offer Documents, the Schedule 14D-9 and the Information Statement are filed with the SEC or first published, sent or given to the Company's stockholders, or (b) in the case of the Proxy Statement, at the time the Proxy Statement is first mailed to the Company's stockholders or at the time of the Stockholder Meeting, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading. The Offer Documents will comply as to form in all material respects with the requirements of the Exchange Act, except that no representation or warranty is made by Parent or Sub with respect to statements made or incorporated by reference therein based on information supplied by the Company specifically for inclusion or incorporation by reference therein. Section 3.5 Interim Operations of Sub. Sub was formed solely for the purpose of engaging in the transactions contemplated hereby, has engaged in no other business activities and has conducted its operations only as contemplated hereby. Section 3.6 Brokers. No broker, investment banker, financial advisor or other person, other than Lazard Freres & Co., LLC, the fees and expenses of which will be paid by Parent, is entitled to any broker's, finder's, financial advisor's or other similar fee or commission in connection with the transactions contemplated by this Agreement based upon arrangements made by or on behalf of Parent or Sub. Section 3.7 Financing. Parent has available (through existing credit arrangements or otherwise) sufficient funds to purchase all of the Shares outstanding on a fully-diluted basis at the Offer Price and to pay all fees and expenses related to the transactions contemplated herein. 10 ARTICLE IV REPRESENTATIONS AND WARRANTIES OF THE COMPANY The Company represents and warrants to Parent and Sub as follows: Section 4.1 Organization, Standing and Power. The Company is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware and has all requisite corporate power and authority to carry on its business as now being conducted. Each Subsidiary of the Company is duly organized, validly existing and in good standing under the laws of the jurisdiction in which it is organized and has all requisite corporate (in the case of a Subsidiary that is a corporation) or other power and authority to carry on its business as now being conducted, except where the failure to be so organized, existing or in good standing or to have such power or authority would not, individually or in the aggregate, have a Material Adverse Effect on the Company. The Company and each of its Subsidiaries are duly qualified to do business, and are in good standing, in each jurisdiction where the character of their properties owned or held under lease or the nature of their activities makes such qualification necessary, except where the failure to be so qualified would not, individually or in the aggregate, have a Material Adverse Effect on the Company. A list of all Subsidiaries of the Company, together with the jurisdiction of incorporation of each Subsidiary, the percentage of the outstanding capital stock of each Subsidiary owned by the Company and each other Subsidiary and the name of any person other than the Company or another Subsidiary that owns capital stock of the Subsidiary, is set forth in Section 4.1 of the letter dated the date hereof and delivered on the date hereof by the Company to Parent, which relates to this Agreement and is designated therein as the Company Letter (the "Company Letter"). Section 4.2 Capital Structure. (a) As of the date hereof, the authorized capital stock of the Company consists of 20,000,000 Shares and 1,000,000 shares of Preferred Stock, par value $.10 per share ("Company Preferred Stock"). (b) At the close of business on September 11, 2000: (i) 7,231,448 Shares were issued and outstanding, all of which were validly issued, fully paid and nonassessable and free of preemptive rights; (ii) no shares of Company Preferred Stock were issued and outstanding; (iii) 3,708,800 Shares were held in the treasury of the Company or by Subsidiaries of the Company; (iv) 843,825 Shares were reserved for issuance upon the exercise of outstanding vested and exercisable stock options issued under the Company's Incentive Stock Option Plan, as amended, Non-Qualified Stock Option Plan, as amended, Special Stock Option Plan, as amended, 1996 Incentive Stock Option Plan, as amended, the 1996 Non-Qualified Stock Option Plan, as amended, and the 1998 Special Stock Option Plan, as amended, (the "Company Stock Option Plans"); and 11 (v) 793,775 Shares were reserved for issuance upon the exercise of outstanding unvested or unexercisable stock options issued under the Company Stock Option Plans; (c) Section 4.2 of the Company Letter contains a correct and complete list as of the date of this Agreement of each outstanding option to purchase Shares issued under any of the Company Option Plans (collectively, the "Company Stock Options"), including the holder, date of grant, term, exercise price and number of shares of Company Common Stock subject thereto and whether the option is vested and exercisable or subject to acceleration. (d) Except for the Company Stock Options, there are no options, warrants, calls, rights or agreements to which the Company or any of its Subsidiaries is a party or by which any of them is bound obligating the Company or any of its Subsidiaries to issue, deliver or sell, or cause to be issued, delivered or sold, additional shares of capital stock of the Company or any of its Subsidiaries or obligating the Company or any of its Subsidiaries to grant, extend or enter into any such option, warrant, call, right or agreement, and there are no outstanding contractual rights to which the Company or any of its Subsidiaries is a party the value of which is based on the value of Shares. Except as set forth in Section 4.2 of the Company Letter, there are no outstanding contractual obligations of the Company or any Subsidiary to repurchase, redeem or otherwise acquire any shares of Company Common Stock or any capital stock of or any equity interests in the Company or any Subsidiary. (e) Each outstanding share of capital stock of each Subsidiary of the Company is duly authorized, validly issued, fully paid and nonassessable and, except as set forth in Section 4.2 of the Company Letter, each such share is owned by the Company or another Subsidiary of the Company, free and clear of all security interests, liens, claims, pledges, options, rights of first refusal, agreements, limitations on voting rights, charges and other encumbrances of any nature whatsoever. (f) The Company does not have any outstanding bonds, debentures, notes or other obligations the holders of which have the right to vote (or which are convertible into or exercisable for securities having the right to vote) with the stockholders of the Company on any matter. Section 4.3 Authority. On or prior to the date of this Agreement, the Board of Directors of the Company has unanimously approved the Offer and declared the Merger advisable and fair to and in the best interest of the Company and its stockholders, approved and adopted this Agreement and the transactions contemplated hereby in accordance with the DGCL, resolved to recommend the acceptance of the Offer by the Company's stockholders and directed that this Agreement, if necessary, be submitted to the Company's stockholders for approval. The Company has all requisite corporate power and authority to enter into this Agreement and, subject to approval by the stockholders of the Company of this Agreement, to consummate the transactions contemplated hereby. The execution and delivery of this Agreement by the Company and the consummation by the Company of the transactions contemplated hereby have been duly authorized by all necessary corporate action (including Board action) on the part of the 12 Company, subject to (x) approval and adoption of this Agreement by the stockholders of the Company and (y) the filing of the Certificate of Merger as required by the DGCL. This Agreement has been duly executed and delivered by the Company and (assuming the valid authorization, execution and delivery of this Agreement by Parent and Sub and the validity and binding effect of this Agreement on Parent and Sub) constitutes the valid and binding obligation of the Company enforceable against the Company in accordance with its terms. Section 4.4 Consents and Approvals; No Violation. Assuming that all consents, approvals, authorizations and other actions described in this Section 4.4 have been obtained and all filings and obligations described in this Section 4.4 have been made, the execution and delivery of this Agreement does not, and the consummation of the transactions contemplated hereby and compliance with the provisions hereof will not, result in any violation of, or default (with or without notice or lapse of time, or both) under, or give to others a right of termination, cancellation or acceleration of any obligation or result in the loss of a material benefit under, or result in the creation of any lien, security interest, charge or encumbrance upon any of the properties or assets of the Company or any of its Subsidiaries under, any provision of (i) the Company Charter or the Amended and Restated Bylaws of the Company, (ii) any provision of the comparable charter or organization documents of any of the Company's Subsidiaries, (iii) any loan or credit agreement, note, bond, mortgage, indenture, lease or other agreement, instrument, permit, concession, franchise or license applicable to the Company or any of its Subsidiaries or (iv) any judgment, order, decree, statute, law, ordinance, rule or regulation applicable to the Company or any of its Subsidiaries or any of their respective properties or assets, other than, in the case of clauses (ii), (iii) or (iv), any such violations, defaults, rights, liens, security interests, charges or encumbrances that, individually or in the aggregate, would not have a Material Adverse Effect on the Company, materially impair the ability of the Company to perform its obligations hereunder or prevent the consummation of any of the transactions contemplated hereby. No filing or registration with, or authorization, consent or approval of, any Governmental Entity is required by or with respect to the Company or any of its Subsidiaries in connection with the execution and delivery of this Agreement by the Company or is necessary for the consummation of the Offer, the Merger and the other transactions contemplated by this Agreement, except for (i) in connection, or in compliance, with the provisions of the HSR Act and the Exchange Act, (ii) the filing of the Certificate of Merger with the Secretary of State of the State of Delaware and appropriate documents with the relevant authorities of other states in which the Company or any of its Subsidiaries is qualified to do business, (iii) such filings and consents as may be required under any environmental, health or safety law or regulation pertaining to any notification, disclosure or required approval triggered by the Offer, the Merger or the transactions contemplated by this Agreement, (iv) such filings, authorizations, orders and approvals as may be required to obtain the State Takeover Approvals, (v) applicable requirements, if any, of Blue Sky Laws or the Nasdaq National Market, (vi) as may be required under foreign laws and (vii) such other consents, orders, authorizations, registrations, declarations and filings the failure of which to be obtained or made would not, individually or in the aggregate, have a Material Adverse Effect on the Company, materially impair the ability of the Company to perform its obligations hereunder or prevent the consummation of any of the transactions contemplated hereby. 13 Section 4.5 SEC Documents and Other Reports. The Company has filed all required documents (including proxy statements) with the SEC since December 1, 1998 (the "Company SEC Documents"). As of their respective dates, the Company SEC Documents complied in all material respects with the requirements of the Securities Act of 1933, as amended (the "Securities Act"), or the Exchange Act, as the case may be, and, at the respective times they were filed, none of the Company SEC Documents contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. The consolidated financial statements (including, in each case, any notes thereto) of the Company included in the Company SEC Documents complied as to form in all material respects with applicable accounting requirements and the published rules and regulations of the SEC with respect thereto, were prepared in accordance with United States generally accepted accounting principles ("GAAP") (except, in the case of the unaudited statements, as permitted by Form 10-Q of the SEC) applied on a consistent basis during the periods involved (except as may be indicated therein or in the notes thereto) and fairly presented in all material respects the consolidated financial position of the Company and its consolidated Subsidiaries as at the respective dates thereof and the consolidated results of their operations and their consolidated cash flows for the periods then ended (subject, in the case of unaudited statements, to normal year-end audit adjustments and to any other adjustments described therein). Except as disclosed in the Company SEC Documents or as required by GAAP, the Company has not, since December 1, 1998, made any change in the accounting practices or policies applied in the preparation of financial statements. Since December 1, 1998, the SEC has not (i) to the Knowledge of the Company, conducted any investigation of the Company, (ii) initiated any enforcement action against the Company or (iii) provided to the Company any comments on any of the Company SEC Documents, and, to the Knowledge of the Company, no such investigation, enforcement action or comments is pending or threatened. Section 4.6 Information Supplied. None of the information supplied or to be supplied by the Company specifically for inclusion or incorporation by reference in (i) the Offer Documents, (ii) the Schedule 14D-9, (iii) the Information Statement or (iv) the Proxy Statement, will (a) in the case of the Offer Documents, the Schedule 14D-9 and the Information Statement, at the respective times the Offer Documents, the Schedule 14D-9 and the Information Statement are filed with the SEC or first published, sent or given to the Company's stockholders, or (b) in the case of the Proxy Statement, at the time the Proxy Statement is first mailed to the Company's stockholders or at the time of the Stockholder Meeting, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading. The Schedule 14D-9, the Information Statement and the Proxy Statement will comply as to form in all material respects with the requirements of the Exchange Act, except that no representation or warranty is made by the Company with respect to statements made or incorporated by reference therein based on information supplied by Parent or Sub specifically for inclusion or incorporation by reference therein. Section 4.7 Absence of Certain Changes or Events. Except as disclosed in the Company SEC Documents filed with the SEC prior to the date of this Agreement or as set forth 14 in the Company Letter, since December 1, 1999, (i) the Company and its Subsidiaries have not incurred any material liability or obligation (indirect, direct or contingent), or entered into any material oral or written agreement or other transaction, that is not in the ordinary course of business or that would result in a Material Adverse Effect on the Company, (ii) the Company and its Subsidiaries have not sustained any loss or interference with their business or properties from fire, flood, windstorm, accident or other calamity (whether or not covered by insurance) that has had a Material Adverse Effect on the Company, (iii) there has been no change in the capital stock of the Company except for the issuance of shares of the Company Common Stock pursuant to Company Stock Options and no dividend or distribution of any kind declared, paid or made by the Company on any class of its stock, (iv) there has not been (A) any adoption of a new Company Plan (as hereinafter defined), (B) any amendment to a Company Plan materially increasing benefits thereunder or any repricing, directly or indirectly of any Company Stock Option or other right to purchase shares of Company Common Stock, (C) any granting by the Company or any of its Subsidiaries to any executive officer or other key employee of the Company or any of its Subsidiaries of any increase in compensation, except in the ordinary course of business consistent with prior practice or as was required under employment agreements in effect as of the date of the most recent audited financial statements included in the Company SEC Documents filed prior to the date hereof, (D) any granting by the Company or any of its Subsidiaries to any such executive officer or other key employee of any increase in severance or termination agreements in effect as of the date of the most recent audited financial statements included in the Company SEC Documents filed prior to the date hereof or (E) any entry by the Company or any of its Subsidiaries into any employment, severance or termination agreement with any such executive officer or other key employee, (v) there has not been any material changes in the amount or terms of the indebtedness of the Company and its Subsidiaries from that described in the Company SEC Documents filed prior to the date hereof and (vi) there has been no event causing a Material Adverse Effect on the Company, nor any development that would reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect on the Company. Section 4.8 Permits and Compliance. (a) Each of the Company and its Subsidiaries is in possession of all franchises, grants, authorizations, licenses, permits, easements, variances, exceptions, consents, certificates, approvals and orders of any Governmental Entity necessary for the Company or any of its Subsidiaries to own, lease and operate its properties or to carry on its business as it is now being conducted (the "Company Permits"), except where the failure to have any of the Company Permits would not, individually or in the aggregate, have a Material Adverse Effect on the Company. No suspension or cancellation of any of the Company Permits is pending or, to the Knowledge of the Company (as hereinafter defined), threatened, except where the suspension or cancellation of any of the Company Permits would not, individually or in the aggregate, have a Material Adverse Effect on the Company. Neither the Company nor any of its Subsidiaries is in violation of (A) its charter, by-laws or other organizational documents, (B) any law, ordinance, administrative or governmental rule or regulation, (C) any order, decree or judgment of any Governmental Entity having jurisdiction over the Company or any of its Subsidiaries, or (D) any Company Permits except, in the case of clauses (B), (C) or (D), for any violations that, individually or in the aggregate, would not have a Material Adverse Effect on the Company. 15 (b) Except as disclosed in the Company SEC Documents filed prior to the date of this Agreement, there are no contracts or agreements of the Company or its Subsidiaries having terms or conditions which would have a Material Adverse Effect on the Company or having covenants not to compete that materially impair the ability of the Company to conduct its business as currently conducted or purport to bind any stockholder or any Affiliated Person (as defined herein) of any stockholder of the Company after the Effective Time. Except as set forth in the Company SEC Documents filed prior to the date of this Agreement, no event of default or event that, but for the giving of notice or the lapse of time or both, would constitute an event of default exists or, upon the consummation by the Company of the transactions contemplated by this Agreement, will exist under any indenture, mortgage, loan agreement, note or other agreement or instrument for borrowed money, any guarantee of any agreement or instrument for borrowed money or any lease, contractual license or other agreement or instrument to which the Company or any of its Subsidiaries is a party or by which the Company or any such Subsidiary is bound or to which any of the properties, assets or operations of the Company or any such Subsidiary is subject, other than any defaults that, individually or in the aggregate, would not have a Material Adverse Effect on the Company. Section 4.9 Tax Matters. Except as otherwise set forth in Section 4.9 of the Company Letter, (i) the Company and each of its Subsidiaries have filed all Tax Returns (as hereinafter defined) required to have been filed, and such Tax Returns are correct and complete and disclose all Taxes (as hereinafter defined) required to be paid by the Company and its Subsidiaries for the periods covered thereby, except to the extent that any failure to so file or any failure to be correct and complete or to disclose all Taxes required to be paid would not, individually or in the aggregate, have a Material Adverse Effect on the Company; (ii) all Taxes shown to be due on such Tax Returns have been timely paid or extensions for payment have been properly obtained, or such Taxes are being contested in good faith; (iii) the Company and each of its Subsidiaries have complied with all rules and regulations relating to the withholding of Taxes and the remittance of withheld Taxes, except to the extent that any failure or failures to so comply would not, individually or in the aggregate, have a Material Adverse Effect on the Company; (iv) neither the Company nor any of its Subsidiaries has waived any statute of limitations in respect of its Taxes; (v) any Tax Returns required to have been filed by or with respect to the Company and each of its Subsidiaries relating to federal and state income Taxes have been examined by the Internal Revenue Service ("IRS") or the appropriate foreign or state taxing authority or the period for assessment of the Taxes in respect of which such Tax Returns were required to be filed has expired; (vi) no issues that have been raised by the relevant taxing authority in connection with the examination of Tax Returns required to have been filed by or with respect to the Company and each of its Subsidiaries are currently pending; (vii) all deficiencies asserted or assessments made as a result of any examination of such Tax Returns by any taxing authority have been paid in full or properly reflected on the books of the Company; and (viii) there is no action, suit, investigation, audit, claim or assessment pending or, to the Knowledge of the Company, proposed or threatened with respect to Taxes of the Company or any Subsidiary; (ix) there are no liens for Taxes upon the assets of the Company or any Subsidiary except liens relating to current Taxes not yet due; (x) none of the Company or any Subsidiary has been a member of any group of corporations filing Tax Returns on a consolidated, combined, unitary or similar basis other than each such group of which it is currently a member; 16 (xi) no transaction contemplated by this Agreement is subject to withholding under Section 1445 of the Code (relating to "FIRPTA") and no material stock transfer Taxes, sales Taxes, use Taxes, real estate transfer Taxes, or other similar Taxes will be imposed on the transactions contemplated by this Agreement; (xii) no material liability for any state or local Taxes attributable to the transfer of the beneficial ownership of the Company's and its Subsidiaries' real properties, or any penalties or interest with respect thereto, will be incurred in connection with the consummation of the Offer and the Merger; (xiii) except as may be limited by the transactions contemplated by this Agreement, the "regular" and, if applicable, "alternative minimum tax" net operating loss carry forwards of the Company and its Subsidiaries for each of the taxable years ended on or prior to November 30, 1999 (collectively, the "NOLs") are set forth (for each year) in Section 4.9 of the Company Letter and are each available to the Company (or the applicable Subsidiary) for the period set forth in Section 172(b)(1)(A) of the Code as in effect for the taxable year in which the applicable NOL was incurred; and (xiv) except as may be limited as a result of the transactions contemplated by this Agreement, immediately prior to the Effective Time, none of the NOLs will constitute separate return limitation year (SRLY) losses, consolidated return change of ownership (CRCO) losses or "dual consolidated losses" and none of the NOLs will be limited by sections 382 or 384 of the Code and the regulations thereunder. Section 4.10 Actions and Proceedings. There are no outstanding orders, judgments, injunctions, awards or decrees of any Governmental Entity against or involving the Company or any of its Subsidiaries, or against or involving any of the present or former directors, officers, employees, consultants, agents or stockholders of the Company or any of its Subsidiaries with respect to the Company or any of its Subsidiaries, any of the properties, assets or business of the Company or any of its Subsidiaries or any Company Plan (as hereinafter defined) that, individually or in the aggregate, would have a Material Adverse Effect on the Company or materially impair the ability of the Company to perform its obligations hereunder. Except as set forth in Section 4.10 of the Company Letter, there are no actions, suits or claims or legal, administrative or arbitrative proceedings or investigations (including claims for workers' compensation) pending or, to the Knowledge of the Company, threatened against or involving the Company or any of its Subsidiaries or any of its or their present or former directors, officers, employees, consultants, agents or stockholders with respect to the Company or any of its Subsidiaries, or any of the properties, assets or business of the Company or any of its Subsidiaries or any Company Plan that, individually or in the aggregate, would have a Material Adverse Effect on the Company or materially impair the ability of the Company to perform its obligations hereunder. There are no actions, suits, labor disputes or other litigation, legal or administrative proceedings or governmental investigations pending or, to the Knowledge of the Company, threatened against or affecting the Company or any of its Subsidiaries or any of its or their present or former officers, directors, employees, consultants, agents or stockholders with respect to the Company or its Subsidiaries, or any of the properties, assets or business of the Company or any of its Subsidiaries relating to the transactions contemplated by this Agreement. Section 4.11 Compensation Agreements. Except as set forth in Section 4.11 of the Company Letter, neither the Company nor any of its Subsidiaries is a party to any oral or written agreement or plan, including any employment agreement, severance agreement, stock option plan, stock appreciation rights plan, restricted stock plan or stock purchase plan (collectively, the 17 "Compensation Agreements"), pension plan (as defined in Section 3(2) of ERISA) or welfare plan (as defined in Section 3(1) of ERISA), any of the benefits of which will be increased, or the vesting of the benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement. Except as set forth in Section 4.11 of the Company Letter, no holder of any option to purchase Shares, or Shares granted in connection with the performance of services for the Company or its Subsidiaries, is or will be entitled to receive cash from the Company or any Subsidiary in lieu of or in exchange for such option or shares as a result of the transactions contemplated by this Agreement. Section 4.11 of the Company Letter sets forth (i) for each officer, director or employee who is a party to, or will receive benefits under, any Compensation Agreement as a result of the transactions contemplated herein, the total amount that each such person may receive, or is eligible to receive, assuming that the transactions contemplated by this Agreement are consummated on the date hereof, and (ii) the total amount of indebtedness owed to the Company or its Subsidiaries from each officer, director or employee of the Company and its Subsidiaries. Section 4.12 Employee Benefits. (a) Each Company Plan (as hereinafter defined), is listed in Section 4.12(a) of the Company Letter. With respect to each Company Plan, the Company has provided to Parent a true and correct copy of (i) the three most recent annual reports (Form 5500) filed with the IRS, if applicable, (ii) each such Company Plan that has been reduced to writing and all amendments thereto, (iii) each trust agreement, insurance contract or administration agreement relating to each such Company Plan, (iv) a written summary of each unwritten Company Plan, (v) the most recent summary plan description or other written explanation of each Company Plan provided to participants, (vi) the most recent determination letter and request therefor, if any, issued by the IRS with respect to any Company Plan intended to be qualified under Section 401(a) of the Code, (vii) any request for a determination currently pending before the IRS and (viii) all correspondence with the IRS, the Department of Labor, or the SEC relating to any outstanding controversy. Each Company Plan complies in all material respects with ERISA, the Code and all other applicable Statutes and governmental rules and regulations. Neither the Company nor any ERISA Affiliate currently maintains, contributes to or has any liability under, or at any time during the past six years has maintained or contributed to, any pension plan which is subject to Section 412 of the Code, Section 302 of ERISA or Title IV of ERISA. Neither the Company nor any ERISA Affiliate currently maintains, contributes to or has any liability under, or at any time during the past six years has maintained or contributed to, any "multiemployer Plan" (as defined in Section 4001(a)(3) of ERISA). (b) Except as listed in Section 4.12(b) of the Company Letter, with respect to the Company Plans, no event has occurred and there exists no condition or set of circumstances in connection with which the Company or any Subsidiary or ERISA Affiliate or Company Plan fiduciary could be subject to any material liability under the terms of such Company Plans, ERISA, the Code or any other applicable law. All Company Plans that are intended to be qualified under Section 401(a) of the Code have been determined by the IRS to be so qualified, or a timely application for such determination is now pending and the Company is not aware of any reason why any such Company Plan is not so qualified in operation. Except as disclosed in Section 4.12(b) of the Company Letter, neither the Company nor any of its ERISA Affiliates has 18 any liability or obligation under any welfare plan to provide benefits after termination of employment to any employee or dependent other than as required by Section 4980B of the Code. (c) As used herein, (i) "Company Plan" means a "pension plan" (as defined in Section 3(2) of ERISA (other than a Company Multiemployer Plan)), a "welfare plan" (as defined in Section 3(1) of ERISA), or any other written or oral bonus, profit sharing, deferred compensation, incentive compensation, stock ownership, stock purchase, stock option, phantom stock, restricted stock, stock appreciation right, holiday pay, vacation, severance, medical, dental, vision, disability, death benefit, sick leave, fringe benefit, personnel policy, insurance or other plan, arrangement or understanding, in each case established or maintained by the Company or any of its ERISA Affiliates or as to which the Company or any of its ERISA Affiliates has contributed or otherwise may have any liability, and (ii) "ERISA Affiliate" means any trade or business (whether or not incorporated) which would be considered a single employer with the Company or any of its Subsidiaries pursuant to Section 414(b), (c), (m) or (o) of the Code and the regulations promulgated under those sections or pursuant to Section 4001(b) of ERISA and the regulations promulgated thereunder. (d) Section 4.12(d) of the Company Letter contains a list of all (i) severance and employment agreements with employees of the Company and each of its Subsidiaries, (ii) severance programs and policies of the Company and each of its Subsidiaries with or relating to its employees and (iii) plans, programs, agreements and other arrangements of the Company and each of its Subsidiaries with or relating to its employees containing change of control or similar provisions. (e) Except as set forth in Section 4.12(e) of the Company Letter, neither the Company nor any of its Subsidiaries is a party to any agreement, contract or arrangement that could result, separately or in the aggregate, in the payment of any "excess parachute payments" within the meaning of Section 280G of the Code. (f) No Company Plan is subject to laws outside of the United States. Section 4.13 Liabilities. Except as set forth in Section 4.13 of the Company Letter or as fully reflected or reserved against in the financial statements included in the Company SEC Documents filed prior to the date hereof, or disclosed in the footnotes thereto, since December 1, 1999 the Company and its Subsidiaries have incurred no liabilities (including Tax liabilities) or obligations of any nature, absolute or contingent, other than liabilities or obligations that (i) would not, individually or in the aggregate, have a Material Adverse Effect on the Company or (ii) that would not be required by GAAP to be reflected or reserved in the financial statements of the Company or in the footnotes thereto, prepared in accordance with GAAP consistent with past practices, or (iii) that arise in the ordinary course of business consistent with past practices. Except as set forth in Section 4.13 of the Company Letter, as of the date hereof, none of the Company or its Subsidiaries has any indebtedness for borrowed money (other than advances from the Company to such Subsidiaries). 19 Section 4.14 Labor Matters. Except as set forth in Section 4.14 of the Company Letter, neither the Company nor any of its Subsidiaries is a party to any collective bargaining agreement or labor contract. Neither the Company nor any of its Subsidiaries has engaged in any unfair labor practice with respect to any persons employed by or otherwise performing services primarily for the Company or any of its Subsidiaries (the "Company Business Personnel"), and there is no unfair labor practice complaint or grievance against the Company or any of its Subsidiaries by any person pursuant to the National Labor Relations Act or any comparable state or foreign law pending or threatened in writing with respect to the Company Business Personnel, except where such unfair labor practice, complaint or grievance would not have a Material Adverse Effect on the Company. There is no union-organizing activity, labor strike, dispute, slowdown or stoppage pending or, to the Knowledge of the Company, threatened against or affecting the Company or any of its Subsidiaries which may interfere with the respective business activities of the Company or any of its Subsidiaries, except where such union-organizing activity, labor strike, dispute, slowdown or stoppage would not have a Material Adverse Effect on the Company. Section 4.15 Intellectual Property. (a) As used herein, "Company Intellectual Property" means all trademarks, trademark registrations, trademark rights and renewals thereof, trade names, trade name rights, patents, patent rights, patent applications, industrial models, inventions, invention disclosures, designs, utility models, inventor rights, software, computer programs, computer systems, modules and related data and materials, copyrights, copyright registrations and renewals thereof, servicemarks, servicemark registrations and renewals thereof, servicemark rights, trade secrets, applications for trademark and servicemark registrations, know-how, confidential information and other proprietary rights, and any data and information of any nature or form used or held for use in connection with the businesses of the Company and/or the Subsidiaries as currently conducted or as currently contemplated by the Company, together with all applications currently pending or in process for any of the foregoing. (b) Except as disclosed in the Company SEC Documents filed with the SEC prior to the date hereof, the Company and the Subsidiaries own, or possess adequate licenses or other valid rights to use (including the right to sublicense to customers, suppliers or others as needed), all of the Company Intellectual Property that is necessary for the conduct or contemplated conduct of the Company's or Subsidiaries' businesses, except for such failures to own or possess as would not, individually or in the aggregate, have a Material Adverse Effect on the Company. Section 4.15 of the Company Letter lists each material license or other agreement pursuant to which the Company or any Subsidiary has the right to use Company Intellectual Property utilized in connection with any product of, or service provided by, the Company and the Subsidiaries, the cancellation or expiration of which would have a Material Adverse Effect on the Company (the "Company Licenses"). There are no pending, or, to the Knowledge of the Company, threatened interferences, re-examinations, oppositions or cancellation proceedings involving any patents or patent rights, trademarks or trademark rights, or applications therefor, of the Company or any Subsidiary, except such as would not, individually or in the aggregate, have a Material Adverse Effect on the Company. There is no breach or violation by the Company or by any Subsidiary under, and, to the Knowledge of the Company, there is no breach or violation by any other party to, any Company License that is reasonably likely to give rise to any termination or any loss of 20 rights thereunder. To the Knowledge of the Company, there has been no unauthorized disclosure or use of confidential information, trade secret rights, processes and formulas, research and development results and other know-how of the Company or any Subsidiary, except where such disclosure or use of such information would not, individually or in the aggregate, have a Material Adverse Effect on the Company. The conduct of the business of the Company and the Subsidiaries as currently conducted or contemplated does not and will not infringe upon or conflict with, in any way, any license, trademark, trademark right, trade name, trade name right, patent issued as of the date hereof, patent right, industrial model, invention, service mark, service mark right, copyright or trade secret of any third party that, individually or in the aggregate, would have a Material Adverse Effect on the Company. Except as disclosed in the Company SEC Documents filed with the SEC prior to the date hereof, to the Knowledge of the Company, there are no infringements of, or conflicts with, any Company Intellectual Property which, individually or in the aggregate, would have a Material Adverse Effect on the Company. Except as set forth in Section 4.15 of the Company Letter, neither the Company nor any Subsidiary has licensed or otherwise permitted the use by any third party of any proprietary information or Company Intellectual Property on terms or in a manner which, individually or in the aggregate, would have a Material Adverse Effect on the Company. Section 4.16 Title to Assets. (a) As of the date hereof, the Company and the Subsidiaries own, and as of the Effective Time the Company and the Subsidiaries will own, good and marketable title to all of their assets material to their business (excluding, for purposes of this sentence, assets held under leases), free and clear of any and all mortgages, liens, encumbrances, charges, claims, restrictions, pledges, security interests or impositions, except as set forth in the Company SEC Documents filed with the SEC prior to the date hereof, or Section 4.16 of the Company Letter. (b) Except as set forth in Section 4.16 of the Company Letter, neither the Company nor any of its Subsidiaries owns any Real Estate. The leases to all Real Estate occupied by the Company and the Subsidiaries which are material to the operation of the businesses of the Company are in full force and effect and no event has occurred which with the passage of time, the giving of notice, or both, would constitute a default or event of default by the Company or any Subsidiary or, to the Knowledge of the Company, any other person who is a party signatory thereto, other than such defaults or events of default which, individually or in the aggregate, would not have a Material Adverse Effect on the Company. Section 4.17 State Takeover Statutes. The Board of Directors of the Company has, to the extent such statute is applicable, taken all action so to render the provisions of Section 203 of the DGCL inapplicable to the Offer, the Merger and the Stockholder Agreements and the consummation of the transactions contemplated by this Agreement and the Stockholder Agreements. No other state takeover statute is applicable to the Offer, the Merger, this Agreement, the Stockholder Agreements and the transactions contemplated hereby and thereby. Section 4.18 Required Vote of Company Stockholders. The affirmative vote of the holders of at least a majority of Shares entitled to vote is required to adopt this Agreement. No other vote of the security holders of the Company is required by law, the Company Charter or the 21 Amended and Restated Bylaws of the Company or otherwise in order for the Company to consummate the Merger and the transactions contemplated hereby. Section 4.19 Transactions with Affiliates. (a) For purposes of this Agreement, "Affiliated Person" means (i) any holder of 2% or more of the Company Common Stock, (ii) any director, officer or senior executive of the Company or any Subsidiary, (iii) any person, firm or corporation that directly or indirectly controls, is controlled by, or is under common control with, any of the Company or any subsidiary or (iv) any member of the immediate family or any of such persons, in each case other than Parent or its Subsidiaries. (b) Except as set forth in Section 4.19 of the Company Letter or in the Company SEC Documents filed with the SEC prior to the date hereof, since December 1, 1999, the Company and the Subsidiaries have not, in the ordinary course of business or otherwise, (i) purchased, leased or otherwise acquired any material property or assets or obtained any material services from, (ii) sold, leased or otherwise disposed of any material property or assets or provided any material services to (except with respect to remuneration for services rendered in the ordinary course of business as director, officer or employee of the Company or any Subsidiary), (iii) entered into or modified in any manner any contract with, or (iv) borrowed any money from, or made or forgiven any loan or other advance (other than expenses or similar advances made in the ordinary course of business) to, any Affiliated Person. (c) Except as set forth in Section 4.19 of the Company Letter or in the Company SEC Documents filed with the SEC prior to the date hereof, (i) the contracts of the Company and the Subsidiaries do not include any material obligation or commitment between the Company or any Subsidiary and any Affiliated Person, (ii) the assets of the Company or any Subsidiary do not include any receivable or other obligation or commitment from an Affiliated Person to the Company or any Subsidiary and (iii) the liabilities of the Company and the Subsidiaries do not include any payable or other obligation or commitment from the Company or any Subsidiary to any Affiliated Person. (d) To the Knowledge of the Company and except as set forth in Section 4.19 of the Company Letter or in the Company SEC Documents filed with the SEC prior to the date hereof, no Affiliated Person of any of the Company or any Subsidiary is a party to any contract with any supplier of the Company or any Subsidiary that affects in any material manner the business, financial condition or results of operation of the Company or any Subsidiary. Section 4.20 Brokers. No broker, investment banker, financial advisor or other person, other than Hoak Breedlove Wesneski & Co. ("HBW"), the fees and expenses of which will be paid by the Company (as reflected in an agreement between HBW and the Company, a copy of which has been furnished to Parent), is entitled to any broker's, finder's, financial advisor's or other similar fee or commission in connection with the transactions contemplated by this Agreement based upon arrangements made by or on behalf of the Company. Section 4.21 Compliance with Worker Safety Laws. The properties, assets and operations of the Company and its Subsidiaries are in compliance with all applicable federal, 22 state, local and foreign laws, rules and regulations, orders, decrees, judgments, permits and licenses relating to public and worker health and safety (collectively, "Worker Safety Laws"), except for any violations that, individually or in the aggregate, would not have a Material Adverse Effect on the Company. With respect to such properties, assets and operations, including any previously owned, leased or operated properties, assets or operations, there are no past, present or reasonably anticipated future events, conditions, circumstances, activities, practices, incidents, actions or plans (other than those taken by subsequent owners of such properties, assets or operations) of the Company or any of its Subsidiaries that may interfere with or prevent compliance or continued compliance with applicable Worker Safety Laws, other than any such interference or prevention as would not, individually or in the aggregate with any such other interference or prevention, have a Material Adverse Effect on the Company. Section 4.22 Products. Except as set forth in Section 4.22 of the Company Letter, since December 1, 1999, neither the Company nor any Subsidiary has received a written, or to the Knowledge of the Company, oral claim for or based upon breach of product or service warranty or guaranty or similar claim (other than warranty or guaranty claims in the ordinary course of business not material in amount or significance), strict liability in tort, negligent design of product, negligent provision of services or any other allegation of liability, including or arising from the materials, design, testing, manufacture, packaging, labeling (including instructions for use), or sale of its products or from the provision of services; and, to the Knowledge of the Company, there is no basis for any such claim which, if asserted, would likely have a Material Adverse Effect on the Company. Except as set forth in Section 4.22 of the Company Letter, the Company has never undertaken any recall of any of its products. Section 4.23 Opinion of Financial Advisor. The Company has received the written opinion of HBW to the effect that the Merger Consideration is fair to the Company's shareholders from a financial point of view, a copy of which opinion has been delivered to Parent. Section 4.24 Accounts Receivable. All of the accounts and notes receivable of the Company and its Subsidiaries set forth on the books and records of the Company (net of the applicable reserves, which such reserves are adequate notwithstanding the items set forth in the Company Letter, reflected on the books and records of the Company and in the financial statements included in the Company SEC Documents) (i) represent sales actually made or transactions actually effected in the ordinary course of business for goods or services delivered or rendered to unaffiliated customers in bona fide arm's length transactions, (ii) except as set forth in Section 4.24(ii) of the Company Letter, constitute valid claims, and (iii) except as set forth on Section 4.24(iii) of the Company Letter, are good and collectible at the aggregate recorded amounts thereof (net of such reserves, which such reserves are adequate notwithstanding the items set forth in the Company Letter,) without right of recourse, defense, deduction, return of goods, counterclaim, or offset and have been or will be collected in the ordinary course of business and consistent with past experience, except for such failures of accounts and notes receivable to satisfy the conditions set forth in clauses (i), (ii) and (iii) of this Section 4.24 as would not have a Material Adverse Effect on the Company. 23 Section 4.25 Inventories. Except as set forth in Section 4.25 of the Company Letter, all inventories of the Company and its Subsidiaries consist of items of merchantable quality and quantity usable or saleable in the ordinary course of business, are saleable at prevailing market prices that are not less than the book value amounts thereof or the price customarily charged by the Company or the applicable Subsidiary therefor, and all finished goods or products of the Company and its Subsidiaries conform to the specifications established therefor, and have been manufactured in accordance with applicable regulatory requirements, except to the extent that the failure so to consist, be saleable, conform, or be manufactured would not have a Material Adverse Effect on the Company. Except as set forth in Section 4.25 of the Company Letter, the quantities of all inventories, materials and supplies of the finished products of the Company and each Subsidiary (net of the obsolescence reserves, which such reserves are adequate notwithstanding the items set forth in the Company Letter, therefor shown in the financial statements included in the Company SEC Documents and determined in the ordinary course of business consistent with past practice) are not obsolete, damaged, slow-moving, defective, or excessive, except to the extent that the failure of such inventories to be in such conditions would not have a Material Adverse Effect on the Company. Section 4.26 Certain Agreements. (a) Set forth in Section 4.26(a) of the Company Letter is a list of all contracts (except for contracts that have been filed, prior to the date hereof, with Company SEC Documents) that are material to the business of the Company and its Subsidiaries taken as a whole (whether oral or written), including all distribution contracts, sole-source supply contracts, national accounts contracts, any indenture, mortgage, loan agreement, note or other agreement or instrument for borrowed money, any guarantee of any agreement or instrument for borrowed money or any material lease, contractual license or other agreement or instrument to which the Company or any of its Subsidiaries is a party or by which the Company or any such Subsidiary is bound or to which any of the properties, assets or operations of the Company or any such Subsidiary is subject (collectively, "Significant Contracts"). Prior to the date hereof, the Company has provided true and complete copies of all such contracts to Parent. (b) Except as set forth in Section 4.26(b) of the Company Letter, each Significant Contract is a legal, valid and binding agreement of the Company or its Subsidiaries, neither the Company nor any of its Subsidiaries (or to the Knowledge of the Company, any other party thereto) is in default under any Significant Contract, and none of such Significant Contracts has been canceled by the other party thereto; each Significant Contract is in full force and effect and no event has occurred which, with the passage of time or the giving of notice or both, would constitute a default, event of default or other breach by the Company or any Subsidiary party thereto which would entitle the other party to such Significant Contract to terminate the same or declare a default or event of default thereunder; the Company and the Subsidiaries are not in receipt of any claim of default under any such agreement; in each instance, except where it would not have a Material Adverse Effect on the Company. Section 4.27 Environmental Matters. (a) For purposes of this Agreement, the following terms shall have the following meanings: (i) "Hazardous Substances" means (A) 24 petroleum and petroleum products, by-products or breakdown products, radioactive materials, asbestos-containing materials and polychlorinated biphenyls, and (B) any other chemicals, materials or substances regulated as toxic or hazardous or as a pollutant, contaminant or waste under any applicable Environmental Law; (ii) "Environmental Law" means any law, past, present or future (up until the Effective Time) and as amended, and any judicial or administrative interpretation thereof, including any judicial or administrative order, consent decree or judgment, or common law, relating to pollution or protection of the environment, health or safety or natural resources, including those relating to the use, handling, transportation, treatment, storage, disposal, release, or discharge of Hazardous Substances; and (iii) "Environmental Permit" means any permit, approval, identification number, license or other authorization required under any applicable Environmental Law. (b) The Company and the Subsidiaries are and have been in material compliance with all applicable Environmental Laws, have obtained all Environmental Permits and are in material compliance with their requirements, and have resolved all past non-compliance with Environmental Laws and Environmental Permits without any pending, on-going or future obligation, cost or liability, except as set forth in Section 4.27 of the Company Letter. (c) Except as set forth in Section 4.27 of the Company Letter (i) neither the Company nor any of its Subsidiaries has placed, held, located, released, transported or disposed of any Hazardous Substances on, under, from or at any of the Company's or any of its Subsidiaries' properties or any other properties, other than in a manner that would not, in all such cases taken individually or in the aggregate, result in a Material Adverse Effect on the Company, (ii) to the Knowledge of the Company there are no Hazardous Substances on, under, emanating from, or at any of the Company's or any of its Subsidiaries' properties or any other property but arising from the Company's or any of its Subsidiaries' current or former properties or operations, other than in a manner that would not result in a Material Adverse Effect on the Company, or (iii) to the Knowledge of the Company, neither the Company nor any of its Subsidiaries has any reason to know, or has received any written notice, (A) of any violation of or liability under any Environmental Laws, (B) of the institution or pendency of any suit, action, claim, proceeding or investigation by any Governmental Entity or any third party in connection with any such violation or liability, (C) requiring the investigation of, response to or remediation of Hazardous Substances at or arising from any of the Company's or any of its Subsidiaries' current or former properties or operations or any other properties, (D) alleging noncompliance by the Company or any of its Subsidiaries with the terms of any Environmental Permit in any manner reasonably likely to require material expenditures or to result in material liability or (E) demanding payment for response to or remediation of Hazardous Substances at or arising from any of the Company's or any of its Subsidiaries' current or former properties or operations or any other properties, except in each case for the notices or matters set forth in Section 4.27 of the Company Letter. (d) Except as set forth in Section 4.27 of the Company Letter, no Environmental Law imposes any material obligation upon the Company or any of its subsidiaries arising out of or as a condition to any transfer or transaction contemplated by this Agreement, including any requirement to modify or to transfer any Environmental Permit or license, any 25 requirement to file any notice or other submission with any Governmental Entity, the placement of any notice, acknowledgment or covenant in any land records, or the modification of or provision of notice under any agreement, consent order or consent decree. (e) Except as set forth in Schedule 4.27 (e) of the Company Letter, there are no environmental assessments or audit reports or other similar studies or analyses in the possession or control of the Company or any of its Subsidiaries relating to any real property currently or formerly owned, leased or occupied by the Company or any of its Subsidiaries. Section 4.28 Regulatory Compliance. Except as set forth in Section 4.28 of the Company Letter, (i) the Company is in compliance with, and has complied with, all applicable federal and state statutes, laws, ordinances, decrees, rules and regulations relating to the manufacture, sale and distribution of food, dietary supplements, cosmetics and/or drugs and (ii) the Company holds and is in compliance with all licenses, registrations, permits and other approvals relating to food, dietary supplements, cosmetics and/or drugs that are necessary for the lawful operation of its business as it is currently conducted, except in each case for such failures as would not have a Material Adverse Effect on the Company. ARTICLE V COVENANTS RELATING TO CONDUCT OF BUSINESS Section 5.1 Conduct of Business by the Company Pending the Merger. Except as expressly permitted by clauses (i) through (xvii) of this Section 5.1, during the period from the date of this Agreement through the Effective Time, the Company shall, and shall cause each of its Subsidiaries to, in all material respects carry on its business in the ordinary course of its business as currently conducted and, to the extent consistent therewith, use reasonable best efforts to preserve intact its current business organizations, keep available the services of its current officers and employees and preserve its relationships with customers, suppliers and others having business dealings with it to the end that its goodwill and ongoing business shall be unimpaired at the Effective Time. Without limiting the generality of the foregoing, and except as otherwise expressly contemplated by this Agreement or as set forth in the Company Letter (with specific reference to the applicable subsection below), the Company shall not, and shall not permit any of its Subsidiaries to, without the prior written consent of Parent: (i) (A) other than dividends paid by wholly-owned Subsidiaries, declare, set aside or pay any dividends on, or make any other actual, constructive or deemed distributions in respect of, any of its capital stock, or otherwise make any payments to its stockholders in their capacity as such, (B) other than in the case of any Subsidiary, split, combine or reclassify any of its capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock or (C) purchase, redeem or otherwise acquire any shares of capital stock of the Company or any other securities thereof or any rights, warrants or options to acquire any such shares or other securities; 26 (ii) issue, deliver, sell, pledge, dispose of or otherwise encumber any shares of its capital stock, any other voting securities or equity equivalent or any securities convertible into, or any rights, warrants or options (including options under the Company Option Plans) to acquire any such shares, voting securities, equity equivalent or convertible securities, other than the issuance of shares of Company Common Stock upon the exercise of Company Stock Options outstanding on the date of this Agreement in accordance with their current terms; (iii) amend its charter or by-laws; (iv) acquire or agree to acquire by merging or consolidating with, or by purchasing a substantial portion of the assets of or equity in, or by any other manner, any business or any corporation, limited liability company, partnership, association or other business organization or division thereof or, except in the ordinary course of business consistent with past practice, otherwise acquire or agree to acquire any assets; (v) sell, lease or otherwise dispose of, or agree to sell, lease or otherwise dispose of, any of its assets, other than in the ordinary course of business consistent with past practice; (vi) incur any indebtedness for borrowed money, guarantee any such indebtedness or make any loans, advances or capital contributions to, or other investments in, any other person, other than (A) in the ordinary course of business consistent with past practices and (B) indebtedness, loans, advances, capital contributions and investments between the Company and any of its wholly-owned Subsidiaries or between any of such wholly- owned Subsidiaries, in each case in the ordinary course of business consistent with past practices; (vii) alter (through merger, liquidation, reorganization, restructuring or in any other fashion) the corporate structure or ownership of the Company or any Subsidiary; (viii) except as provided in Section 6.5 or as required by applicable law, enter into or adopt any, or amend any existing, severance plan, agreement or arrangement or enter into or amend any Company Plan or employment or consulting agreement; (ix) increase the compensation payable or to become payable to its directors, officers or employees (except for increases in the ordinary course of business consistent with past practice in salaries or wages of employees of the Company or any of its Subsidiaries who are not officers of the Company or any of its Subsidiaries) or grant any severance or termination pay to, or enter into any employment or severance agreement with, any director or officer of the Company or any of its Subsidiaries, or establish, adopt, enter into, or, except as may be required to comply with applicable law, amend in any material respect or take action to enhance in any material respect or accelerate any rights or benefits under, any labor, collective bargaining, bonus, profit sharing, thrift, compensation, stock option, restricted stock, pension, retirement, deferred compensation, 27 employment, termination, severance or other plan, agreement, trust, fund, policy or arrangement for the benefit of any director, officer or employee; (x) knowingly violate or knowingly fail to perform any obligation or duty imposed upon it or any Subsidiary by any applicable material federal, state or local law, rule, regulation, guideline or ordinance; (xi) make any change to accounting policies or procedures (other than actions required to be taken by GAAP); (xii) prepare or file any Tax Return inconsistent with past practice or, on any such Tax Return, take any position, make any election, or adopt any method that is inconsistent with positions taken, elections made or methods used in preparing or filing similar Tax Returns in prior periods; (xiii) settle or compromise any Tax liability in excess of $10,000; (xiv) settle or compromise any claims or litigation in excess of $10,000 or commence any litigation or proceedings; (xv) enter into or amend any agreement or contract (i) having a term in excess of 12 months and which is not terminable by the Company or a Subsidiary without penalty or premium by notice of 60 days or less or (ii) which involves or is expected to involve payments of $50,000 or more during the term thereof; enter into or amend any other agreement or contract material to the Company and its Subsidiaries, taken as a whole; or purchase any real property, or make or agree to make any new capital expenditure or expenditures (other than the purchase of real property) which in the aggregate are in excess of $50,000; (xvi) pay, discharge or satisfy any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction of any such claims, liabilities or obligations in the ordinary course of business consistent with past practice or in accordance with their terms; (xvii) adopt a shareholders' rights plan or enter into a shareholders' rights agreement or adopt or enter into any other plan or agreement implementing a "poison pill" or any similar device; (xviii) reprice, either directly or indirectly, any Company Stock Option or other right to purchase shares of Company Common Stock; or (xix) authorize, recommend, propose or announce an intention to do any of the foregoing, or enter into any contract, agreement, commitment or arrangement to do any of the foregoing. 28 Section 5.2 No Solicitation. (a) The Company shall not, nor shall it permit any of its Subsidiaries to, nor shall it authorize and it shall use its best efforts not to permit any officer, director or employee of or any financial advisor, attorney or other advisor or representative of, the Company or any of its Subsidiaries to, (i) solicit, initiate or encourage the submission of, any Takeover Proposal (as hereinafter defined), (ii) enter into any agreement with respect to or approve or recommend any Takeover Proposal or (iii) participate in any discussions or negotiations regarding, or furnish to any person any information with respect to the Company or any Subsidiary in connection with, or take any other action to knowingly facilitate any inquiries or the making of any proposal that constitutes, or may reasonably be expected to lead to, any Takeover Proposal; provided, however, that nothing contained in this Agreement shall prohibit the Company or its directors from (i) complying with Rule 14e-2 promulgated under the Exchange Act with regard to a tender or exchange offer or (ii) referring a third party to this Section 5.2(a) or making a copy of this Section 5.2(a) available to any third party; and provided, further, that prior to the acceptance for payment of Shares pursuant to the Offer, if the Board of Directors of the Company reasonably determines that a Takeover Proposal constitutes a Superior Proposal (as hereinafter defined), then, to the extent required by the fiduciary obligations of the Board of Directors of the Company, as determined in good faith by a majority thereof after consultation with outside counsel (who may be the Company's regularly engaged outside counsel), the Company may, in response to an unsolicited request therefor, and subject to compliance with Section 5.2(b), furnish information with respect to the Company and its Subsidiaries to any person pursuant to a confidentiality agreement, in customary form and in any event containing terms, taken as a whole, at least as stringent as those contained in the Confidentiality Agreement (as hereinafter defined), and participate in discussions or negotiations with such person. Without limiting the foregoing, it is understood that any violation of the restrictions set forth in the preceding sentence by any officer or director of the Company or any of its Subsidiaries or any financial advisor, attorney or other advisor or representative of the Company or any of its Subsidiaries, whether or not such person is purporting to act on behalf of the Company or any of its Subsidiaries or otherwise, shall be deemed to be a breach of this Section 5.2(a) by the Company. (b) The Company shall advise Parent orally and in writing of (i) any Takeover Proposal or any inquiry with respect to or which reasonably could lead to any Takeover Proposal received by any officer or director of the Company or, to the Knowledge of the Company, any financial advisor, attorney or other advisor or representative of the Company, (ii) the material terms of such Takeover Proposal (including a copy of any written proposal), and (iii) the identity of the person making any such Takeover Proposal or inquiry no later than 24 hours following receipt of such Takeover Proposal or inquiry. If the Company intends to furnish any Person with any information with respect to any Takeover Proposal in accordance with Section 5.2(a), the Company shall advise Parent orally and in writing of such intention not less than two business days in advance of providing such information. The Company will keep Parent fully informed of the status and material terms of any such Takeover Proposal or inquiry. Section 5.3 Third Party Standstill Agreements. During the period from the date of this Agreement through the Effective Time, the Company shall not terminate, amend, modify or waive any provision of any confidentiality or standstill agreement to which the Company or any 29 of its Subsidiaries is a party. During such period, the Company agrees to enforce, to the fullest extent permitted under applicable law, the provisions of any such agreements, including, but not limited to, obtaining injunctions to prevent any breaches of such agreements and to enforce specifically the terms and provisions thereof in any court of the United States or any state thereof having jurisdiction. ARTICLE VI ADDITIONAL AGREEMENTS Section 6.1 Stockholder Meeting. (a) If Sub is unable to effectuate the merger pursuant to Section 253 of the DGCL, the Company will duly call, give notice of, convene and hold a meeting of stockholders (the "Stockholder Meeting") for the purpose of considering the approval of this Agreement and at such meeting call for a vote and cause proxies that have been voted in favor of the transactions contemplated herein to be voted in respect of the approval and adoption of this Agreement. The Stockholder Meeting shall be held as soon as practicable following the purchase of Shares pursuant to the Offer, and the Company will, through its Board of Directors, recommend to its stockholders the approval of this Agreement, and shall not withdraw or modify such recommendation. The Company agrees to submit this Agreement, as soon as practicable following the purchase of Shares pursuant to the Offer, to its stockholders for approval whether or not the Board of Directors of the Company determines at any time subsequent to the date hereof that this Agreement is no longer advisable and recommends that the stockholders of the Company reject it. The record date for the Stockholder Meeting shall be a date subsequent to the date Parent or Sub becomes a record holder of Company Common Stock purchased pursuant to the Offer. (b) The Company shall, at Parent's request, as soon as practicable following the expiration of the Offer, prepare and file a preliminary Proxy Statement with the SEC and shall use its reasonable best efforts to respond to any comments of the SEC or its staff and to cause the Proxy Statement to be mailed to the Company's stockholders as promptly as practicable after responding to all such comments to the satisfaction of the staff. The Company shall notify Parent promptly of the receipt of any comments from the SEC or its staff and of any request by the SEC or its staff for amendments or supplements to the Proxy Statement or for additional information and will supply Parent with copies of all correspondence between the Company or any of its representatives, on the one hand, and the SEC or its staff, on the other hand, with respect to the Proxy Statement or the Merger. If at any time prior to the Stockholder Meeting there shall occur any event that should be set forth in an amendment or supplement to the Proxy Statement, the Company shall promptly prepare and mail to its stockholders such an amendment or supplement. The Company shall not mail any Proxy Statement, or any amendment or supplement thereto, to which Parent reasonably objects. Parent shall cooperate with the Company in the preparation of the Proxy Statement or any amendment or supplement thereto, including the supply of any information required to be included in the Proxy Statement regarding Parent or Sub. 30 (c) Parent agrees to cause all Shares purchased pursuant to the Offer and all other Shares owned by Parent or any subsidiary of Parent to be voted in favor of approval of the Merger. Section 6.2 Access to Information. Subject to currently existing contractual and legal restrictions applicable to the Company or any of its Subsidiaries, the Company shall, and shall cause each of its Subsidiaries to, afford to the accountants, counsel, financial advisors and other representatives of Parent reasonable access to, and permit them to make such inspections as they may reasonably require of, during the period from the date of this Agreement through the Effective Time, all of their respective properties, books, contracts, commitments and records (including accounting records and Tax Returns and the work papers of independent accountants, if available and subject to the consent of such independent accountants) and, during such period, the Company shall, and shall cause each of its Subsidiaries to (i) furnish promptly to Parent a copy of each report, schedule, registration statement and other document filed by it during such period pursuant to the requirements of federal or state securities laws, (ii) furnish promptly to Parent all other information concerning its business, properties and personnel as Parent may reasonably request and (iii) promptly make available to Parent all personnel of the Company and its Subsidiaries knowledgeable about matters relevant to such inspections. Parent shall make all reasonable efforts to minimize any disruption to the businesses of the Company and its Subsidiaries that may result from any investigation conducted pursuant to this Section 6.2. No investigation pursuant to this Section 6.2 shall affect any representation or warranty in this Agreement of any party hereto or any condition to the obligations of the parties hereto. All information obtained by Parent pursuant to this Section 6.2 shall be kept confidential in accordance with the Confidentiality Agreement dated August 18, 2000 between Parent and the Company (the "Confidentiality Agreement"). Section 6.3 Directors. Promptly after such time as Sub purchases at least a majority of the outstanding Shares pursuant to the Offer, Sub shall be entitled, to the fullest extent permitted by law, to designate at its option up to that number of directors, rounded to the nearest whole number, of the Company's Board of Directors, subject to compliance with Section 14(f) of the Exchange Act, as will make the percentage of the Company's directors designated by Sub equal to the percentage of the aggregate voting power of the shares of Common Stock held by Parent or any of its Subsidiaries; provided, however, that in the event that Sub's designees are elected to the Board of Directors of the Company, until the Effective Time such Board of Directors shall have at least three directors who are directors on the date of this Agreement and who are not officers of the Company (the "Independent Directors"); and provided further that, in such event, if the number of Independent Directors shall be reduced below three for any reason whatsoever, the remaining Independent Directors or Director shall designate a person or persons to fill such vacancy or vacancies, each of whom shall be deemed to be an Independent Director for purposes of this Agreement or, if no Independent Directors then remain, the other directors shall designate three persons to fill such vacancies who shall not be officers or affiliates of the Company or any of its Subsidiaries, or officers or affiliates of Parent or any of its Subsidiaries, and such persons shall be deemed to be Independent Directors for purposes of this Agreement. Following the election or appointment of Sub's designees pursuant to this Section 6.3 and prior to the Effective Time, any amendment, or waiver of any term or condition, of this Agreement or 31 the Restated Certificate of Incorporation or the Restated By-Laws of the Company, any termination of this Agreement by the Company, any extension by the Company of the time for the performance of any of the obligations or other acts of Sub or waiver or assertion of any of the Company's rights hereunder, and any other consent or action by the Board of Directors of the Company with respect to this Agreement, will require the concurrence of a majority of the Independent Directors and no other action by the Company, including any action by any other director of the Company, shall be required for purposes of this Agreement. To the fullest extent permitted by applicable law, the Company shall take all action requested by Parent that is reasonably necessary to effect any such election, including mailing to its stockholders the Information Statement containing the information required by Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder, and the Company agrees to make such mailing with the mailing of the Schedule 14D-9 (provided that Sub shall have provided to the Company on a timely basis all information required to be included in the Information Statement with respect to Sub's designees). In connection with the foregoing, the Company will promptly, at the option of Parent, to the fullest extent permitted by law, either increase the size of the Company's Board of Directors and/or obtain the resignation of such number of its current directors as is necessary to enable Sub's designees to be elected or appointed to the Company's Board of Directors as provided above. Section 6.4 Fees and Expenses. (a) Except as provided in this Section 6.4, whether or not the Offer or the Merger is consummated, all costs and expenses incurred in connection with this Agreement and the transactions contemplated hereby, including the fees and disbursements of counsel, financial advisors and accountants, shall be paid by the party incurring such costs and expenses. (b) The Company shall pay, or cause to be paid, in same day funds to Parent the following amounts under the circumstances and at the times set forth as follows: (i) if Parent or Sub terminates this Agreement under Section 8.1(d), the Company shall pay the Expenses of Parent (not to exceed $1,000,000) and the Termination Fee upon demand; (ii) if the Company terminates this Agreement under Section 8.1(e), the Company shall pay the Termination Fee and the Expenses of Parent (not to exceed $1,000,000) upon demand; or (iii) if any other termination of this Agreement occurs (other than a termination by the Company pursuant to Section 8.1(f)) and at the time of any such termination a Takeover Proposal shall have been made (other than a Takeover Proposal made prior to the date hereof), (x) the Company shall pay the Expenses of Parent (not to exceed $1,000,000) upon demand, and (y) if concurrently therewith or within 12 months thereafter, (A) the Company enters into a merger agreement, acquisition agreement or similar agreement (including a letter of intent) with respect to a Takeover Proposal, or a Takeover Proposal is consummated, involving any party (1) with whom the Company had any discussions with respect to a Takeover Proposal, (2) to whom the Company 32 furnished information with respect to or with a view to a Takeover Proposal or (3) who had submitted a proposal or expressed any interest publicly in a Takeover Proposal, in the case of each of clauses (1), (2) and (3), prior to such termination, or (B) the Company enters into a merger agreement, acquisition agreement or similar agreement (including a letter of intent) with respect to a Superior Proposal, or a Superior Proposal is consummated, then, in the case of either (A) or (B) above, the Company shall pay the Termination Fee upon the earlier of the execution of such agreement or upon consummation of such Takeover Proposal or Superior Proposal. Section 6.5 Company Stock Options. (a) Prior to the consummation of the Offer, the Board of Directors of the Company (or, if appropriate, any committee thereof) shall adopt appropriate resolutions and take all other actions necessary or appropriate to cause each Company Stock Option that is outstanding as of the Effective Time to vest in full and become exercisable immediately prior to the Effective Time with respect to all of the shares of Company Common Stock at the time subject to such Company Stock Option. Each Company Stock Option that is outstanding upon the Effective Time shall be canceled as of the Effective Time, in consideration for which the holder thereof (an "Option Holder") shall be entitled to receive from the Company an amount equal to (i) the product of (A) the number of shares of Company Common Stock subject to such Company Stock Option and (B) the excess, if any, of the Offer Price over the exercise price per share for the purchase of the Company Common Stock subject to such Company Stock Option, minus (B) all applicable federal, state and local Taxes required to be withheld in respect of such payment. The amounts payable pursuant to the second sentence of this Section 6.5 shall be paid within three Business Days following the Effective Time, with payment being deemed to be made, for the purposes of this sentence, on the day that the Paying Agent mails such payment to Option Holders. The surrender of an Option in exchange for the consideration contemplated by the second sentence of this Section 6.5 shall be deemed a release of any and all rights the Option Holder had or may have had in respect thereof. (b) The Company shall take all actions necessary to provide that, as of the Effective Time, (i) each Company Option Plan and any similar plan or agreement of the Company shall be terminated, (ii) any rights under any other plan, program, agreement or arrangement relating to the issuance or grant of any other interest in respect of the capital stock of the Company or any of its Subsidiaries shall be terminated, and (iii) no Option Holder will have any right to receive any shares of capital stock of the Company or, if applicable, the Surviving Corporation, upon exercise of any Company Stock Option. (c) The Company represents and warrants that it has the power and authority under the terms of each Company Option Plan or option agreement thereunder to comply with this Section 6.5 without the consent of any Option Holder. (d) Notwithstanding Section 6.5(a), Parent may, at its option, offer to certain Company Option Holders who are employees of the Company at the Effective Time, the option to receive, in lieu of any payments pursuant to Section 6.5(a), in exchange for each Company Stock Option held by such company employee that is outstanding as of the Effective Time, an option ( a "Substitute Option") to purchase the number of shares of common stock of the Parent, 33 par value of $.01 per share, (the "Parent Common Stock") determined by multiplying (i) the number of shares of Company Common Stock subject to such Company Stock Option immediately prior to the Effective Time by (ii) the Exchange Ratio, at an exercise price per share of Parent Common Stock (rounded up to the nearest cent) equal to the exercise price per share of Company Common Stock immediately prior to the Effective Time divided by the Exchange Ratio. All Substitute Options will, upon issuance, be fully vested in the Option Holder and immediately exercisable. After the Effective Time, except as provided above in this Section 6.5(d), each Substitute Option shall be exercisable upon the terms and conditions set forth in the Tupperware Corporation 2000 Incentive Plan. As soon as reasonably practicable, and in no event later than twenty days after the Effective Time, Parent shall file a registration statement on Form S-8 (or any successor or other appropriate form) with respect to Parent Common Stock subject to such Substitute Options, or shall cause such Substitute Options to be deemed to be issued pursuant to a stock plan of Parent registered pursuant to an appropriate registration form. Section 6.6 Reasonable Best Efforts. (a) Upon the terms and subject to the conditions set forth in this Agreement, each of the parties agrees to use reasonable best efforts to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable to consummate and make effective, in the most expeditious manner practicable, the Offer, the Merger and the other transactions contemplated by this Agreement, including: (i) the obtaining of all necessary actions or non-actions, waivers, consents and approvals from all Governmental Entities and the making of all necessary registrations and filings (including filings with Governmental Entities) and the taking of all reasonable steps as may be necessary to obtain an approval or waiver from, or to avoid an action or proceeding by, any Governmental Entity (including those in connection with the HSR Act, any other pre-merger filings and State Takeover Approvals), (ii) the obtaining of all necessary consents, approvals or waivers from third parties, (iii) the defending of any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the transactions contemplated hereby, including seeking to have any stay or temporary restraining order entered by any court or other Governmental Entity vacated or reversed, and (iv) the execution and delivery of any additional instruments necessary to consummate the transactions contemplated by this Agreement. No party to this Agreement shall consent to any voluntary delay of the consummation of the Offer or the Merger at the behest of any Governmental Entity without the consent of the other parties to this Agreement, which consent shall not be unreasonably withheld. (b) Each party shall use all reasonable best efforts to not take any action, or enter into any transaction, which would cause any of its representations or warranties contained in this Agreement to be untrue or result in a breach of any covenant made by it in this Agreement. (c) Notwithstanding anything to the contrary contained in this Agreement, in connection with any filing or submission required or action to be taken by either Parent or the Company to effect the Offer, the Merger and to consummate the other transactions contemplated hereby, the Company shall not, without Parent's prior written consent, commit to any divestiture transaction, and neither Parent nor any of its Affiliates shall be required to divest or hold separate or otherwise take or commit to take any action that limits its freedom of action with respect to, or 34 its ability to retain, the Company or any of the businesses or assets of Parent or any of its Subsidiaries or that otherwise would have a Material Adverse Effect on Parent. Section 6.7 Public Announcements. Parent and the Company will not issue any press release with respect to the transactions contemplated by this Agreement or otherwise issue any written public statements with respect to such transactions without prior consultation with the other party, except as may be required by applicable law or by obligations pursuant to any listing agreement with any national securities exchange. Section 6.8 State Takeover Laws. If any "fair price," "business combination" or "control share acquisition" statute or other similar statute or regulation shall become applicable to the transactions contemplated hereby or the Stockholder Agreements, Parent and the Company and their respective Boards of Directors shall use their reasonable best efforts to grant such approvals and take such actions as are necessary so that the transactions contemplated hereby may be consummated as promptly as practicable on the terms contemplated hereby and otherwise act to minimize the effects of any such statute or regulation on the transactions contemplated hereby. Section 6.9 Indemnification; Directors and Officers Insurance. (a) From and after the Effective Time, Parent shall cause the Surviving Corporation to indemnify and hold harmless all past and present officers and directors of the Company and of its Subsidiaries to the fullest extent permitted by the DGCL for acts or omissions occurring at or prior to the Effective Time. (b) Parent shall cause the Surviving Corporation to provide, for an aggregate period of not less than three years from the Effective Time, the Company's current directors and officers an insurance and indemnification policy that provides coverage for events occurring prior to the Effective Time (the "D&O Insurance") on terms no less favorable to the Company's existing policy or, if such insurance coverage is not available, the best available coverage; provided, however, that the Surviving Corporation shall not be required to pay an annual premium for the D&O Insurance in excess of 150% of the last annual premiums paid prior to the date hereof (which premiums the Company has disclosed to Parent), but in such case shall purchase as much coverage as possible for such amount. Section 6.10 Notification of Certain Matters. Parent shall use its reasonable best efforts to give prompt notice to the Company, and the Company shall use its reasonable best efforts to give prompt notice to Parent, of: (i) the occurrence, or non-occurrence, of any event the occurrence, or non- occurrence, of which it is aware and which would be reasonably likely to cause (x) any representation or warranty contained in this Agreement and made by it to be untrue or inaccurate in any material respect or (y) any covenant, condition or agreement contained in this Agreement and made by it not to be complied with or satisfied in all material respects, (ii) any failure of Parent or the Company, as the case may be, to comply in a timely manner with or satisfy any covenant, condition or agreement to be complied with or satisfied by it hereunder or (iii) any change or event which would be reasonably likely to have a Material Adverse Effect on the Company; provided, however, that the delivery of any notice pursuant to this Section 6.10 35 shall not limit or otherwise affect the remedies available hereunder to the party receiving such notice. Section 6.11 Employee Benefit Plans. For a period of one year immediately following the Effective Time, Parent shall, or shall cause the Surviving Corporation to, maintain in effect employee benefit plans and arrangements that provide benefits that have a value that is substantially comparable, in the aggregate, to the benefits provided by the Company Plans (not taking into account the value of any benefits under any such plans that are equity based). For purposes of determining eligibility to participate, vesting and accrual or entitlement to benefits where length of service is relevant under any employee benefit plan or arrangement of the Surviving Corporation, employees of the Company and its Subsidiaries as of the Effective Time shall receive service credit for service with the Company and its Subsidiaries to the same extent such credit was granted under the Company Plans, subject to offsets for previously accrued benefits and no duplication of benefits. ARTICLE VII CONDITIONS PRECEDENT TO THE MERGER Section 7.1 Conditions to Each Party's Obligation to Effect the Merger. The respective obligations of each party to effect the Merger shall be subject to the fulfillment at or prior to the Effective Time of the following conditions: (a) Stockholder Approval. This Agreement (including the Merger) shall have been approved and adopted by the affirmative vote of the stockholders of the Company (unless the vote of stockholders is not required under the DGCL) as required by the DGCL and the Company Charter. (b) HSR Act Filings. Any waiting period (and any extension thereof) applicable to the consummation of the Merger under the HSR Act shall have expired or been terminated. (c) Purchase of Shares. Sub shall have previously accepted for payment and paid for Shares pursuant to the Offer, except that this condition shall not apply if Sub shall have failed to purchase Shares pursuant to the Offer in breach of its obligations under this Agreement. (d) No Order. No court or other Governmental Entity having jurisdiction over the Company or Parent, or any of their respective Subsidiaries, shall have enacted, issued, promulgated, enforced or entered any law, rule, regulation, executive order, decree, injunction or other order (whether temporary, preliminary or permanent) which is then in effect and has the effect of making the Merger illegal. ARTICLE VIII TERMINATION, AMENDMENT AND WAIVER 36 Section 8.1 Termination. This Agreement may be terminated at any time prior to the Effective Time, whether before or after approval of this Agreement by the stockholders of the Company: (a) by mutual written consent of Parent and the Company; (b) by either Parent or the Company: (i) if (x) as a result of the failure of any of the Offer Conditions the Offer shall have terminated or expired in accordance with its terms without Sub having accepted for payment any Shares pursuant to the Offer or (y) Sub shall not have accepted for payment any Shares pursuant to the Offer prior to March 31, 2001; provided, however, that the right to terminate this Agreement pursuant to this Section 8.1(b)(i) shall not be available to any party whose failure to perform any of its obligations under this Agreement results in the failure of any such condition or if the failure of such condition results from facts or circumstances that constitute a breach of any representation or warranty under this Agreement by such party; or (ii) if any Governmental Entity shall have issued an order, decree or ruling or taken any other action permanently enjoining, restraining or otherwise prohibiting the acceptance for payment of, or payment for, Shares pursuant to the Offer and such order, decree or ruling or other action shall have become final and nonappealable; (c) by Parent or Sub in the event of a breach by the Company of any representation, warranty, covenant or other agreement contained in this Agreement which (i) would give rise to the failure of a condition set forth in paragraph (e) or (f) of Exhibit B and (ii) cannot be or has not been cured within 30 days after the giving of written notice to the Company; (d) by Parent or Sub if either Parent or Sub is entitled to terminate the Offer as a result of the occurrence of any event set forth in paragraph (d) of Exhibit B; (e) by the Company if the Board of Directors of the Company reasonably determines that a Takeover Proposal constitutes a Superior Proposal and a majority of the members of the Board of Directors determines, in its reasonable good faith judgment, after consultation with outside counsel, that failing to terminate this Agreement would constitute a breach of such Board's fiduciary duties under applicable law, provided that the Company may not terminate this Agreement pursuant to this Section 8.1 unless (i) the Company has complied with all provisions of Section 5.2, including the notice provisions therein, (ii) the Company has delivered to Parent a written notice of the Company's intent to enter into an agreement to effect a Superior Proposal, (iii) 72 hours have elapsed following delivery to Parent of such written notice by the Company, (iv) during such 72-hour period the Company has reasonably cooperated with Parent, including informing Parent of the terms and conditions of the Takeover Proposal and identifying the identity 37 of the person making the Takeover Proposal, with the intent of enabling Parent to agree to a modification of the terms and conditions of this Agreement so the transactions contemplated hereby may be effected, (v) at the end of such 72-hour period the Board of directors continues reasonably to believe that the Takeover Proposal constitutes a Superior Proposal when compared to the Offer and the Merger (taking into account any such modifications as may be proposed by Parent) and (vi) the Company has complied with the requirements of Section 6.4(b) relating to the payment (including the timing of any payment) of the Expenses and the Termination Fee to the extent required by Section 6.4(b); and provided further that the Company may not terminate this Agreement pursuant to this Section 8.1(e) until one business day after the Initial Expiration Date (as defined herein); (f) by the Company, if (i) any of the representations or warranties of Parent or Sub set forth in this Agreement that are qualified as to materiality shall not be true and correct in any respect or any such representations or warranties that are not so qualified shall not be true and correct in any material respect, or (ii) Parent or Sub shall have failed to perform in any material respect any material obligation or to comply in any material respect with any material agreement or covenant of Parent or Sub to be performed or complied with by it under this Agreement and such untruth, incorrectness or failure cannot be or has not been cured within 30 days after the giving of written notice to Parent or Sub, as applicable. The right of any party hereto to terminate this Agreement pursuant to this Section 8.1 shall remain operative and in full force and effect regardless of any investigation made by or on behalf of any party hereto, any person controlling any such party or any of their respective officers or directors, whether prior to or after the execution of this Agreement. Section 8.2 Effect of Termination. In the event of termination of this Agreement by either Parent or the Company, as provided in Section 8.1, this Agreement shall forthwith become void and there shall be no liability hereunder on the part of the Company, Parent, Sub or their respective officers or directors (except for the last sentence of Section 6.2 and the entirety of Section 6.4, which shall survive the termination); provided, however, that nothing contained in this Section 8.2 shall relieve any party hereto from any liability for any breach of a representation or warranty contained in this Agreement, the breach of any covenant contained in this Agreement or for fraud. Section 8.3 Amendment. This Agreement may be amended by the parties hereto, by or pursuant to action taken by their respective Boards of Directors, at any time before or after approval of the matters presented in connection with the Merger by the stockholders of the Company, but, after any such approval, no amendment shall be made which by law requires further approval by such stockholders without such further approval. This Agreement may not be amended except by an instrument in writing signed on behalf of each of the parties hereto. Section 8.4 Waiver. At any time prior to the Effective Time, the parties hereto may (i) extend the time for the performance of any of the obligations or other acts of the other parties 38 hereto, (ii) waive any inaccuracies in the representations and warranties contained herein or in any document delivered pursuant hereto and (iii) waive compliance with any of the agreements or conditions contained herein which may legally be waived. Any agreement on the part of a party hereto to any such extension or waiver shall be valid only if set forth in an instrument in writing signed on behalf of such party. ARTICLE IX GENERAL PROVISIONS Section 9.1 Non-Survival of Representations and Warranties. The representations and warranties in this Agreement or in any instrument delivered pursuant to this Agreement shall terminate at the Effective Time. Section 9.2 Notices. All notices and other communications hereunder shall be in writing and shall be deemed given when delivered personally, one day after being delivered to an overnight courier or when telecopied (with a confirmatory copy sent by overnight courier) to the parties at the following addresses (or at such other address for a party as shall be specified by like notice): (a) if to Parent or Sub, to: Tupperware Corporation 14901 S. Orange Blossom Tr. Orlando, FL 32837 Attention: Thomas M. Roehlk Facsimile: 407-826-4505 with a copy to copies to: Sidley & Austin Bank One Plaza 10 South Dearborn Street Chicago, Illinois 60603 Attention: Thomas A. Cole Steven Sutherland Facsimile: 312-853-7036 (b) if to the Company, to: BeautiControl, Inc. 2121 Midway Carrollton, TX Attention: Richard W. Heath 39 Facsimile: 972-341-3098 with a copy to: Haynes and Boone, LLP 1600 N. Collins, Suite 3100 Richardson, TX 75080 Attention: David H. Oden Facsimile: 972-692-9029 Section 9.3 Interpretation; Certain Definitions. (a) When a reference is made in this Agreement to a Section, such reference shall be to a Section of this Agreement unless otherwise indicated. The table of contents and headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement. Whenever the words "include," "includes" or "including" are used in this Agreement, they shall be deemed to be followed by the words "without limitation." (b) For purposes of this Agreement, the following terms have the meaning specified in this Section 9.3: "Average Closing Price" shall mean the average, rounded to the nearest cent, of the last reported sales price per share of Parent Common Stock on the New York Stock Exchange for the ten trading days immediately preceding the date of the Closing. "Business Day" means any day that is not a Saturday, Sunday or a day on which the New York Stock Exchange is not open for trading. "Code" means the Internal Revenue Code of 1986, as amended. "ERISA" means the Employee Retirement Income Security Act of 1974, as amended. "Exchange Ratio" means the quotient, rounded to the nearest thousandth, of the Offer Price divided by the Average Closing Price of Parent Common Stock. "Expenses" means documented reasonable out-of-pocket fees and expenses incurred or paid by or on behalf of Parent in connection with the Offer, the Merger or the consummation of any of the transactions contemplated by this Agreement, including all fees and expenses of law firms, commercial banks, investment banking firms, accountants, experts and consultants to Parent. "Initial Expiration Date" means 12:00 Midnight, New York City time, on the date that is 20 business days (as defined in Rule 14d-1 under the Exchange Act) from and including the date of commencement of the Offer. 40 "Knowledge of the Company" means the actual knowledge of the directors and executive officers of the Company. "Material Adverse Change" or "Material Adverse Effect" means, when used with respect to the Company or Parent, as the case may be, any change or effect that is or could reasonably be expected (as far as can be foreseen at the time) to be materially adverse to the business, operations, properties, assets, liabilities, earnings or results of operations, financial projections or forecasts, or the business prospects and condition (financial or otherwise), with all such matters being considered in the aggregate, of the Company and its Subsidiaries, taken as a whole, or Parent and its Subsidiaries, taken as a whole, as the case may be. "Real Estate" means, with respect to the Company or any Subsidiary, as applicable, all of the fee or leasehold ownership right, title and interest of such person, in and to all real estate and improvement owned or leased by any such person and which is used by any such person in connection with the operation of its business. "Subsidiary" means any corporation, partnership, limited liability company, joint venture or other legal entity of which Parent or the Company, as the case may be (either alone or through or together with any other Subsidiary), owns, directly or indirectly, 50% or more of the stock or other equity interests the holders of which are generally entitled to vote for the election of the board of directors or other governing body of such corporation, partnership, limited liability company, joint venture or other legal entity. "Superior Proposal" means a bona fide proposal made by a third party to acquire the Company pursuant to a tender or exchange offer, a merger, a sale of all or substantially all of the Company's assets or otherwise on terms which a majority of the members of the Board of Directors of the Company determines, at a duly constituted meeting of the Board of Directors or by unanimous written consent, in its reasonable good faith judgment to be more favorable to the Company's stockholders than the Offer and the Merger (based on the advice of the Company's independent financial advisor that the value of the consideration provided for in such proposal exceeds the value of the consideration provided for in the Offer and the Merger) and for which financing, to the extent required, is then committed. "Takeover Proposal" means any proposal for (i) a merger or other business combination involving the Company or any of its Subsidiaries, (ii) any proposal or offer to acquire in any manner, directly or indirectly, an equity interest in or any voting securities of the Company representing 15% or more of the Shares or of the total voting securities of the Company outstanding or (iii) an offer to acquire in any manner, directly or indirectly, a substantial portion of the assets of the Company or any of its Subsidiaries, other than the transactions contemplated by this Agreement. "Taxes" means any federal, state, local or foreign income, gross receipts, property, sales, use, license, excise, franchise, employment, payroll, withholding, alternative or add-on minimum, ad valorem, value-added, transfer or excise tax, or other tax, custom, duty, 41 governmental fee or any other like assessment or charge of any kind whatsoever, together with any interest or penalty imposed by any Governmental Entity. "Tax Return" means any return, report or similar statement (including the attached schedules) required to be filed with respect to any Tax, including any information return, claim for refund, amended return or declaration of estimated Tax. "Termination Fee" means $1,865,500.00. Section 9.4 Counterparts. This Agreement may be executed in counterparts, all of which shall be considered one and the same agreement, and shall become effective when one or more counterparts have been signed by each of the parties and delivered to the other parties. Section 9.5 Entire Agreement; No Third-Party Beneficiaries. This Agreement, except as provided in the last sentence of Section 6.2, constitutes the entire agreement and supersedes all prior agreements and understandings, both written and oral, among the parties with respect to the subject matter hereof. This Agreement, except for the provisions of Section 6.9, is not intended to confer upon any person other than the parties hereto any rights or remedies hereunder. Section 9.6 Governing Law. This Agreement shall be governed by, and construed in accordance with, the laws of the State of Delaware, regardless of the laws that might otherwise govern under applicable principles of conflicts of laws thereof. Section 9.7 Assignment. Subject to Section 2.1, neither this Agreement nor any of the rights, interests or obligations hereunder shall be assigned by any of the parties hereto (whether by operation of law or otherwise) without the prior written consent of the other parties. Section 9.8 Severability. If any term or other provision of this Agreement is invalid, illegal or incapable of being enforced by any rule of law, or public policy, all other terms, conditions and provisions of this Agreement shall nevertheless remain in full force and effect so long as the economic and legal substance of the transactions contemplated hereby are not affected in any manner materially adverse to any party. Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the parties shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated by this Agreement may be consummated as originally contemplated to the fullest extent possible. Section 9.9 Enforcement of this Agreement. The parties hereto agree that irreparable damage would occur in the event that any of the provisions of this Agreement were not performed in accordance with their specific wording or were otherwise breached. It is accordingly agreed that the parties hereto shall be entitled to an injunction or injunctions to prevent breaches of this Agreement and to enforce specifically the terms and provisions hereof, such remedy being in addition to any other remedy to which any party is entitled at law or in equity. Each party hereby irrevocably submits to the exclusive jurisdiction of the United States District Court for the District of Delaware in any action, suit or proceeding arising in connection 42 with this Agreement, and agrees that any such action, suit or proceeding shall be brought only in such courts (and waives any objection based on forum non conveniens or any other objection to venue therein). Each party hereto waives any right to a trial by jury in connection with any such action, suit or proceeding. 43 IN WITNESS WHEREOF, Parent, Sub and the Company have caused this Agreement to be signed by their respective officers thereunto duly authorized all as of the date first written above. TUPPERWARE CORPORATION /s/ Rick Goings By: ________________________________ Name: Rick Goings Title: Chairman and Chief Executive Officer B-C MERGER CORPORATION /s/ Paul B. Van Sickle By: ________________________________ Name: Paul B. Van Sickle Title: Vice President BEAUTICONTROL, INC. /s/ Richard W. Heath By: ________________________________ Name: Richard W. Heath Title: Chief Executive Officer 44 Exhibit A --------- See attached. 45 Exhibit B --------- CONDITIONS OF THE OFFER Notwithstanding any other term of the Offer or this Agreement, Sub shall not be required to accept for payment or, subject to any applicable rules and regulations of the SEC, including Rule 14e-1(c) under the Exchange Act (relating to Sub's obligation to pay for or return tendered Shares after the termination or withdrawal of the Offer), to pay for any Shares tendered pursuant to the Offer unless (i) there shall have been validly tendered and not withdrawn prior to the expiration of the Offer such number of Shares that would constitute at least a majority of the Shares that in the aggregate are outstanding determined on a fully diluted basis (assuming the exercise of all options to purchase Company Common Stock and the conversion or exchange of all securities convertible or exchangeable into, Shares outstanding at the expiration date of the Offer) ("Minimum Condition") and (ii) any waiting period under the HSR Act applicable to the purchase of Shares pursuant to the Offer shall have expired or been terminated prior to the expiration date of the Offer (the "HSR Condition"). Furthermore, notwithstanding any other term of the Offer or this Agreement, Sub shall not be required to accept for payment or, subject as aforesaid, to pay for any Shares not theretofore accepted for payment or paid for, and may terminate the Offer if, at any time on or after the date of this Agreement and before the acceptance of such Shares for payment or the payment therefor, any of the following conditions exists (other than as a result of any action or inaction of Parent or any of its subsidiaries that constitutes a breach of this Agreement): (a) there shall be threatened or pending by any Governmental Entity any suit, action or proceeding (i) challenging the acquisition by Parent or Sub of any Shares under the Offer, seeking to restrain or prohibit the making or consummation of the Offer or the Merger or the performance of any of the other transactions contemplated by this Agreement or the Stockholder Agreements (including the voting provisions thereunder), or seeking to obtain from the Company, Parent or Sub any damages that are material in relation to the Company and its Subsidiaries taken as a whole, (ii) seeking to prohibit or materially limit the ownership or operation by the Company, Parent or any of their respective Subsidiaries of a material portion of the business or assets of the Company and its Subsidiaries, taken as a whole, or Parent and its Subsidiaries, taken as a whole, or to compel the Company or Parent to dispose of or hold separate any material portion of the business or assets of the Company and its Subsidiaries, taken as a whole, or Parent and its Subsidiaries, taken as a whole, as a result of the Offer or any of the other transactions contemplated by this Agreement or the Stockholder Agreements, (iii) seeking to impose material limitations on the ability of Parent or Sub to acquire or hold, or exercise full rights of ownership of, any Shares to be accepted for payment pursuant to the Offer, including the right to vote such Shares on all matters properly presented to the stockholders of the Company, (iv) seeking to prohibit Parent or any of its Subsidiaries from effectively controlling in any material respect any material portion of the business or operations of the Company or its Subsidiaries or (v) which otherwise is reasonably likely to have a Material Adverse Effect on the Company, or there shall be pending by 46 any other person any suit, action or proceeding which would have a Material Adverse Effect on the Company. (b) there shall be enacted, entered, enforced, promulgated or deemed applicable to the Offer or the Merger by any Governmental Entity any statute, rule, regulation, judgment, order or injunction, other than the application to the Offer or the Merger of applicable waiting periods under the HSR Act, that is reasonably likely to result, directly or indirectly, in any of the consequences referred to in clauses (i) through (v) of paragraph (a) above; (c) there shall have occurred any Material Adverse Change with respect to the Company; (d) (i) the Board of Directors of the Company or any committee thereof shall have withdrawn or modified in a manner adverse to Parent or Sub its approval or recommendation of the Offer, the Merger or this Agreement, or approved or recommended any Takeover Proposal or (ii) the Board of Directors of the Company or any committee thereof shall have resolved to take any of the foregoing actions; (e) the representations and warranties of the Company set forth in this Agreement shall not be true and correct in each case at the date of this Agreement and at the scheduled or extended expiration of the Offer unless the inaccuracies (without giving effect to any materiality or Material Adverse Effect qualifications or exceptions contained therein) under such representations and warranties, taking all the inaccuracies under all such representations and warranties together in their entirety, do not, individually or in the aggregate, result in a Material Adverse Effect on the Company; (f) the Company shall have failed to perform in any material respect any material obligation or to comply in any material respect with any material agreement or covenant of the Company to be performed or complied with by it under this Agreement; (g) any person or "group" (as defined in Section 13(d)(3) of the Exchange Act), other than Parent, Sub or their affiliates or any group of which any of them is a member, shall have acquired or announced its intention to acquire beneficial ownership (as determined pursuant to Rule 13d-3 promulgated under the Exchange Act) of 15% or more of the Shares; (h) there shall have occurred and be continuing (i) any general suspension of trading in, or limitation on prices for, securities on a national securities exchange in the United States (excluding any coordinated trading halt triggered solely as a result of a specified decrease in a market index), (ii) a declaration of a banking moratorium or any suspension of payments in respect of banks in the United States, (iii) any limitation (whether or not mandatory) by any Governmental Entity on, or other event that materially adversely affects, the extension of credit by banks or other lending institutions, (iv) a commencement of a war or armed hostilities or other national or international calamity directly or indirectly involving the United States which in any case is reasonably 47 expected to have a Material Adverse Effect on the Company or to materially adversely affect Parent's or Sub's ability to complete the Offer and/or the Merger or materially delay the consummation of the Offer and/or the Merger, or (v) from the date of this Agreement through the date of termination or expiration, a decline of at least 25% in either the Dow Jones Industrial Average, the Standard & Poor's 500 Index or the Nasdaq Composite Index. (i) this Agreement shall have been terminated in accordance with its terms. The foregoing conditions are for the sole benefit of Parent and Sub and may, subject to the terms of this Agreement, be waived by Parent and Sub in whole or in part at any time and from time to time in their sole discretion. The failure by Parent or Sub at any time to exercise any of the foregoing rights shall not be deemed a waiver of any such right, the waiver of any such right with respect to particular facts and circumstances shall not be deemed a waiver with respect to any other facts and circumstances and each such right shall be deemed an ongoing right that may be asserted at any time and from time to time. Terms used but not defined herein shall have the meanings assigned to such terms in the Agreement to which this Exhibit B is a part. 48 Exhibit C --------- AMENDED AND RESTATED CERTIFICATE OF INCORPORATION OF BEAUTICONTROL, INC. Pursuant to Section 251(e) of the Delaware General Corporation Law, the Certificate of Incorporation of BeautiControl, Inc., a Delaware corporation (the "Corporation"), is hereby amended and restated to read, in its entirety, as follows: FIRST: The name of the Corporation is BeautiControl, Inc. SECOND: The address of the Corporation's registered office in the State of Delaware is Corporation Trust Center, 1209 Orange Street, in the City of Wilmington, County of New Castle, and the name of the Corporation's registered agent at such address is The Corporation Trust Company. THIRD: The purpose of the Corporation is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of the State of Delaware. FOURTH: The total number of shares of all classes of stock which the Corporation shall have authority to issue is five thousand (5,000) shares of Common Stock of the par value of one cent ($.01) each. FIFTH: Unless and except to the extent that the By-laws of the Corporation shall so require, the election of directors of the Corporation need not be by written ballot. SIXTH: The Board of Directors is expressly authorized and empowered to make, alter and repeal the By-laws of the Corporation. SEVENTH: The Corporation reserves the right at any time to amend, alter, change or repeal any provision contained in this Amended and Restated Certificate of Incorporation, in the manner now or hereafter prescribed by law, and all rights, preferences and privileges of whatsoever nature conferred upon stockholders, directors or any other persons whomsoever by and pursuant to this Amended and Restated Certificate of Incorporation in its present form or as hereafter amended are granted subject to the right reserved herein. * * * 49 EX-99.(D)(2) 11 0011.txt FORM OF EMPLOYMENT AGREEMENT - RICHARD J. HEATH Exhibit (d)(2) EMPLOYMENT AGREEMENT This Employment Agreement (this "Agreement") is entered into as of __________, 2000 between BeautiControl, Inc., a Delaware corporation (the "Company"), and Richard W. Heath (the "Executive"). WHEREAS, the Company desires to employ the Executive to serve as President and Chief Executive Officer of the Company, and the Executive desires to be employed by the Company, upon the terms and subject to the conditions set forth herein. NOW, THEREFORE, in consideration of the premises and the mutual agreements contained herein, the Company and the Executive hereby agree as follows: 1. Employment. The Company hereby agrees to employ the Executive and the Executive hereby agrees to be employed by the Company upon the terms and subject to the conditions contained in this Agreement. The term of employment of the Executive by the Company pursuant to this Agreement (the "Employment Period") shall commence as of the Effective Time of the merger of B-C Merger Corporation with and into the Company pursuant to the Agreement and Plan of Merger, dated as of September 13, 2000, among Tupperware Corporation ("Tupperware"), B-C Merger Corporation and the Company (the "Effective Date") and shall end on the fifth annual anniversary of the Effective Date, unless earlier terminated pursuant to Section 4 hereof. 2. Position and Duties; Responsibilities. (a) Position and Duties. The Company shall employ the Executive during the Employment Period as its President and Chief Executive Officer. During the Employment Period, the Executive shall perform faithfully and loyally and to the best of the Executive's abilities the duties assigned to the Executive hereunder and shall devote the Executive's full business time, attention and effort to the affairs of the Company and its subsidiaries and shall use the Executive's reasonable best efforts to promote the interests of the Company and its subsidiaries. The Executive may engage in charitable, civic or community activities and, with the prior approval of the Chief Executive Officer of Tupperware, may serve as a director of any other business corporation, provided that such activities or service do not interfere with the Executive's duties hereunder. The Company agrees that the Executive may continue to serve as a director of Haggar Clothing Co., as a commissioner of the Texas Parks and Wildlife Department, and as Chairman or Vice Chairman of The Episcopal School of Dallas. (b) Responsibilities. Subject to the powers, authority and responsibilities vested in the Board of Directors of the Company (the "Board"), the Executive shall have the authority and responsibility for the strategic direction and international expansion of the Company and the general administration of the Company's affairs. The Executive shall also perform such other duties (not inconsistent with the position of President and Chief Executive Officer) on behalf of the Company and its subsidiaries as may from time to time be authorized or directed. 3. Compensation. (a) Base Salary. During the Employment Period, the Company shall pay to the Executive a base salary at the rate of $300,000 per annum ("Base Salary"), payable in accordance with the Company's executive payroll policy. Such Base Salary shall be reviewed annually, and shall be subject to such annual increases, if any, as determined by the Compensation and Directors Committee of the Board of Directors of Tupperware (the "Committee"). (b) Annual Bonus. During the Employment Period, the Company shall provide the Executive the opportunity to earn an annual incentive bonus (with such targets being set at reasonable levels) under Tupperware's annual bonus plan in effect from time to time, with an annual target bonus of at least 45% of the Executive's Base Salary; provided, however, in no event may the Executive receive an annual bonus in excess of 90% of the Executive's Base Salary ("Annual Bonus"). Nothing in this Section 3(b) shall be construed as limiting the Committee's right to revise, amend or terminate Tupperware's annual bonus plan in effect from time to time. (c) Stock Option Grants. The Company shall recommend to the Committee that, as soon as practicable following the Effective Date, the Executive be granted an option to purchase 52,500 shares of Tupperware common stock ("Common Stock"), at a price equal to the fair market value of a share of Common Stock on the date of grant. The terms and conditions of such option shall be governed by the Executive's individual stock option award agreement and the Tupperware Corporation 2000 Incentive Plan. During each year of the Employment Period commencing after 2000, the Company shall recommend to the Committee that the Executive be granted an option to purchase at least 35,000 shares of Common Stock. Any such annual stock option grants shall be subject to the terms and conditions of the Tupperware 2000 Incentive Plan or such other plan in effect from time to time and under which such options are granted to the Executive, as well as to the Committee's discretion to grant annual stock option awards generally, and which option grants shall be memorialized in Tupperware's standard stock option agreement used for officers of Tupperware, a copy of which is attached hereto as an exhibit. (d) Other Benefits. During the Employment Period, the Executive shall be entitled to participate in the Company's employee benefit plans generally available to executives of the Company (including, but not limited to, medical, dental, short-term disability, long-term disability, executive life insurance and 401(k), such benefits being hereinafter referred to as the "Employee Benefits"). The Executive shall be entitled to take time off for vacation or illness in accordance with the Company's policy for executives (which shall be at least six weeks per year for vacation) and to receive all other fringe benefits as are from time to time made generally available to executives of the Company. (e) Perquisites. During the Employment Period, the Company shall pay or reimburse the Executive for (i) monthly golf club membership dues for the club membership in effect on the date of this Agreement; (ii) the Executive's reasonable expenses for financial planning advice; and (iii) an automobile consistent with the Company's current policy; provided, however, any and all such payments and/or reimbursements shall be made under the same terms and in the same amounts as the Executive was receiving from the Company immediately prior to entering into this Agreement. 2 (f) Expense Reimbursement. During the Employment Period, the Company shall reimburse the Executive, in accordance with the Company's policies and procedures, for all proper expenses incurred by the Executive in the performance of the Executive's duties hereunder. 4. Termination. (a) Death. Upon the death of the Executive, this Agreement shall automatically terminate and all rights of the Executive and the Executive's heirs, executors and administrators to compensation and other benefits under this Agreement shall cease immediately, except that the Executive's heirs, executors or administrators, as the case may be, shall be entitled to: (i) accrued Base Salary through and including the Executive's date of death; (ii) accrued Annual Bonus through and including the Executive's date of death; and (iii) other Employee Benefits to which the Executive was entitled on the date of death in accordance with the terms of the plans and programs of the Company. (b) Disability. The Company may, at its option, terminate this Agreement upon written notice to the Executive if the Executive, because of physical or mental incapacity or disability, fails to perform the essential functions of the Executive's position, with or without reasonable accommodation, required of the Executive hereunder for a continuous period of 120 days or any 180 days within any 12-month period. Upon such termination, all obligations of the Company hereunder shall cease immediately, except that the Executive shall be entitled to: (i) accrued Base Salary through and including the effective date of the Executive's termination of employment; (ii) accrued Annual Bonus through and including the effective date of the Executive's termination of employment; and (iii) other Employee Benefits to which the Executive is entitled upon termination of employment in accordance with the terms of the plans and programs of the Company. In the event of any dispute regarding the existence of the Executive's incapacity or disability hereunder, the matter shall be resolved by the determination of a physician mutually agreed to by the Executive and the Chief Executive Officer of Tupperware. The Executive shall submit to appropriate medical examinations for purposes of such determination. (c) Cause. (i) The Company may terminate the Executive's employment hereunder for Cause upon written notice to the Executive (the "Cause Notice"). The Cause Notice shall state with particularity the basis for the termination of Executive under this provision. Such termination for Cause shall be authorized by the Chief Executive Officer of Tupperware. 3 (ii) For the purposes of this Agreement, "Cause" means the occurrence of any of the following events: (A) any intentional act of fraud, embezzlement or theft in connection with the Executive's employment, or the misappropriation of Company property; (B) the Executive's conviction of, or plea of nolo contendre to, a felony; (C) the Executive's willful disobedience of a lawful directive of the Chief Executive Officer of Tupperware, which directive is otherwise reasonable and consistent with the scope and nature of the Executive's duties and responsibilities under this Agreement; (D) gross negligence or willful misconduct in the performance of Executive's duties or responsibilities under this Agreement which results in a substantial loss to the Company or any of its subsidiaries, taken as a whole; or (E) a violation of a statutory or common law duty of loyalty to the Company, which results in a material loss to the Company or any of its subsidiaries, taken as a whole, or a violation which involves the engagement in or performance of services for a competing business which provides the same or substantially similar products as those provided by the Company or Tupperware. (iii) The events described in clauses (C), (D) and (E) above shall not constitute Cause unless the Company gives the Executive a written notice of such event, and the Executive thereafter fails to cure such event within 30 days after receipt of the notice. (iv) The exercise of the right of the Company to terminate this Agreement pursuant to this Section 4(c) shall not abrogate the rights or remedies of the Company in respect of the breach giving rise to such termination. (v) If the Company terminates the Executive's employment for Cause, all obligations of the Company hereunder shall cease, except that the Executive shall be entitled to the payments and benefits specified in Sections 4(b)(i) and 4(b)(iii) hereof. (d) Termination Without Cause. The Company may, at its option, terminate the Executive's employment under this Agreement upon written notice to the Executive for a reason other than a reason set forth in Section 4(a), 4(b) or 4(c). Any such termination shall be authorized by the Chief Executive Officer of Tupperware. If the Company terminates the Executive's employment for any such reason, all obligations of the Company hereunder shall cease immediately, except that the Executive shall be entitled to: (i) the payments and benefits specified in Sections 4(b)(i) through 4(b)(iii) hereof, inclusive; and 4 (ii) the continuation of payment of amounts equal to the Base Salary which otherwise would have been payable hereunder had the Executive's employment hereunder not been terminated pursuant to this Section 4(d) for a period of two years. (e) Voluntary Termination. Upon 60 days prior written notice to the Company (or such shorter period as may be permitted by the Chief Executive Officer of Tupperware), the Executive may voluntarily terminate the Executive's employment with the Company for any reason. If the Executive voluntarily terminates the Executive's employment pursuant to this Section 4(e), all obligations of the Company hereunder shall cease immediately, except that the Executive shall be entitled to the payments and benefits specified in Sections 4(b)(i) and 4(b)(iii) hereof. 5. Federal and State Withholding. The Company shall deduct from the amounts payable to the Executive pursuant to this Agreement the amount of all required federal, state and local withholding taxes in accordance with the Executive's Form W-4 on file with the Company, and all applicable federal employment taxes. 6. Confidentiality. The Executive shall not, at any time during the Employment Period or thereafter, make use of or disclose, directly or indirectly, any (i) trade secret or other confidential or secret information of the Company or of any of its subsidiaries or (ii) other technical, business, proprietary or financial information of the Company or of any of its subsidiaries not available to the public generally or to the competitors of the Company or to the competitors of any of its subsidiaries ("Confidential Information"), except to the extent that such Confidential Information (a) becomes publicly available, other than as a result of any act or omission of the Executive, (b) is required to be disclosed by any law, regulation or order of any court or regulatory commission, department or agency, provided that the Executive gives prompt notice of such requirement to the Company to enable the Company to seek an appropriate protective order, or (c) is required to be used or disclosed by the Executive to perform properly the Executive's duties under this Agreement. The Executive also shall abide by the terms of any and all existing or future confidentiality agreements with the Company; provided, however, in the event that there is a conflict between the provisions of this Agreement and such other agreement or agreements, the provisions of this Agreement shall govern. Promptly following the termination of the Employment Period, the Executive shall surrender to the Company all records, memoranda, notes, plans, reports, computer tapes and software and other documents and data which constitute Confidential Information which the Executive may then possess or have under the Executive's control (together with all copies thereof). 7. Inventions. The Executive hereby assigns to the Company the Executive's entire right, title and interest in and to all discoveries and improvements, patentable or otherwise, trade secrets and ideas, writings, copyrightable material, trademarks and servicemarks which may be conceived by the Executive or developed or acquired by the Executive during the Employment Period, which may pertain directly or indirectly to the business of the Company or any of its subsidiaries. The Executive agrees to disclose fully all such developments to the Company upon its request, which disclosure shall be made in writing promptly following any such request. The Executive shall, upon the Company's request, execute, acknowledge and deliver to the Company all instruments and do all other acts which are necessary or desirable to enable the Company or any of its subsidiaries to file and prosecute 5 applications for, and to acquire, maintain and enforce, all patents, trademarks and copyrights in all countries. The Executive also shall abide by the terms of any and all existing or future intellectual property agreements with the Company; provided, however, in the event that there is a conflict between the provisions of this Agreement and such other agreement or agreements, the provisions of this Agreement shall govern. 8. Representations. The Executive represents and warrants to the Company that (a) the execution, delivery and performance of this Agreement by the Executive does not and will not conflict with, breach, violate or cause a default under any contract, agreement, instrument, order, judgment or decree to which the Executive is a party or by which the Executive is bound, (b) the Executive is not a party to or bound by any employment agreement, noncompetition agreement or confidentiality agreement with any other person or entity and (c) upon the execution and delivery of this Agreement by the Company, this Agreement shall be the valid and binding obligation of the Executive, enforceable in accordance with its terms. 9. Survival. Sections 6 and 7 of this Agreement shall survive and continue in full force and effect in accordance with their respective terms, notwithstanding any termination of the Employment Period. 10. Arbitration. Any dispute or controversy between the Company and the Executive arising out of or relating to this Agreement shall be settled by arbitration in Texas administered by the American Arbitration Association, with any such dispute or controversy arising under this Agreement being so administered in accordance with its Commercial Rules then in effect, and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. The arbitrator shall have the authority to award any remedy or relief that a court of competent jurisdiction could order or grant, including, without limitation, the issuance of an injunction. However, either party may, without inconsistency with this arbitration provision, apply to any court having jurisdiction over such dispute or controversy and seek interim provisional, injunctive or other equitable relief until the arbitration award is rendered or the controversy is otherwise resolved. Except as necessary in court proceedings to enforce this arbitration provision or an award rendered hereunder, or to obtain interim relief, neither a party nor an arbitrator may disclose the existence, content or results of any arbitration hereunder without the prior written consent of the Company and the Executive. The Company and the Executive acknowledge that this Agreement evidences a transaction involving interstate commerce. Notwithstanding any choice of law provision included in this Agreement, the United States Federal Arbitration Act shall govern the interpretation and enforcement of this arbitration provision. 11. Notices. All notices and other communications required or permitted hereunder shall be in writing and shall be deemed given when (a) delivered personally or by overnight courier to the following address of the other party hereto (or such other address for such party as shall be specified by notice given pursuant to this Section) or (b) sent by facsimile to the following facsimile number of the other party hereto (or such other facsimile number for such party as shall be specified by notice given pursuant to this Section), with the confirmatory copy delivered by overnight courier to the address of such party pursuant to this Section 11: 6 If to the Company, to: If to the Executive, to: --------------------- ----------------------- BeautiControl, Inc. Richard W. Heath c/o Tupperware Corporation 10041 Hollow Way 14901 S. Orange Blossom Trail Dallas, Texas 75229 Orlando, Florida 32837 Attention: Thomas M. Roehlk 12. Severability. Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement is held to be invalid, illegal or unenforceable in any respect under applicable law or rule in any jurisdiction, such invalidity, illegality or unenforceability shall not affect the validity, legality or enforceability of any other provision of this Agreement or the validity, legality or enforceability of such provision in any other jurisdiction, but this Agreement shall be reformed, construed and enforced in such jurisdiction as if such invalid, illegal or unenforceable provision had never been contained herein. 13. Entire Agreement. Except as otherwise provided in Sections 6 and 7 hereof, this Agreement constitutes the entire agreement and understanding between the parties with respect to the subject matter hereof and supersedes and preempts any prior understandings, agreements or representations by or between the parties, written or oral, which may have related in any manner to the subject matter hereof. 14. Successors and Assigns. This Agreement shall be enforceable by the Executive and the Executive's heirs, executors, administrators and legal representatives, and by the Company and its successors and assigns. 15. Governing Law. This Agreement shall be governed by and construed and enforced in accordance with the internal laws of the State of Texas without regard to principles of conflict of laws. 16. Amendment and Waiver. The provisions of this Agreement may be amended or waived only by the written agreement of the Company and the Executive, and no course of conduct or failure or delay in enforcing the provisions of this Agreement shall affect the validity, binding effect or enforceability of this Agreement. 17. Counterparts. This Agreement may be executed in two counterparts, each of which shall be deemed to be an original and both of which together shall constitute one and the same instrument. 7 IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first written above. BEAUTICONTROL, INC. By:________________________________ Title: ____________________________ RICHARD W. HEATH ___________________________________ 8 EX-99.(D)(3) 12 0012.txt FORM OF EMPLOYMENT AGREEMENT - JINGER L. HEAATH Exhibit (d)(3) EMPLOYMENT AGREEMENT This Employment Agreement (this "Agreement") is entered into as of __________, 2000 between BeautiControl, Inc., a Delaware corporation (the "Company"), and Jinger L. Heath (the "Executive"). WHEREAS, the Company desires to employ the Executive to serve as Chairman of the Company, and the Executive desires to be employed by the Company, upon the terms and subject to the conditions set forth herein. NOW, THEREFORE, in consideration of the premises and the mutual agreements contained herein, the Company and the Executive hereby agree as follows: 1. Employment. The Company hereby agrees to employ the Executive and the Executive hereby agrees to be employed by the Company upon the terms and subject to the conditions contained in this Agreement. The term of employment of the Executive by the Company pursuant to this Agreement (the "Employment Period") shall commence as of the Effective Time of the merger of B-C Merger Corporation with and into the Company pursuant to the Agreement and Plan of Merger, dated as of September 13, 2000, among Tupperware Corporation ("Tupperware"), B-C Merger Corporation and the Company (the "Effective Date") and shall end on the fifth annual anniversary of the Effective Date, unless earlier terminated pursuant to Section 4 hereof. 2. Position and Duties; Responsibilities. (a) Position and Duties. The Company shall employ the Executive during the Employment Period as its Chairman. During the Employment Period, the Executive shall perform faithfully and loyally and to the best of the Executive's abilities the duties assigned to the Executive hereunder and shall devote the Executive's full business time, attention and effort to the affairs of the Company and its subsidiaries and shall use the Executive's reasonable best efforts to promote the interests of the Company and its subsidiaries. The Executive may engage in charitable, civic or community activities and, with the prior approval of the Chief Executive Officer of the Company, may serve as a director of any other business corporation, provided that such activities or service do not interfere with the Executive's duties hereunder. (b) Responsibilities. Subject to the powers, authority and responsibilities vested in the Board of Directors of the Company (the "Board"), the Executive shall have the authority and responsibility for the creative function of the Company, including but not limited to (i) maintaining regular motivational contact with senior leaders in the Company's independent sales force, (ii) planning and selecting new products, colors and packaging, (iii) establishing and maintaining print and television media appearances for the Company, (iv) in coordination with the staff of Tupperware, managing ongoing public relations of the Company, (v) serving as the image representative of the Company with internal and external audiences of the Company, and (vi) serving as the Chairperson of WHO Foundation, in coordination with the staff of Tupperware. The Company recognizes that a substantial amount of the Executive's duties may be performed outside the offices of the Company. The Executive shall also perform such other duties (not inconsistent with the position of Chairman) on behalf of the Company and its subsidiaries as may from time to time be authorized or directed. 3. Compensation. (a) Base Salary. During the Employment Period, the Company shall pay to the Executive a base salary at the rate of $300,000 per annum ("Base Salary"), payable in accordance with the Company's executive payroll policy. Such Base Salary shall be reviewed annually, and shall be subject to such annual increases, if any, as determined by the Compensation and Directors Committee of the Board of Directors of Tupperware (the "Committee"). (b) Annual Bonus. During the Employment Period, the Company shall provide the Executive the opportunity to earn an annual incentive bonus (with such targets being set at reasonable levels) under Tupperware's annual bonus plan in effect from time to time, with an annual target bonus of at least 45% of the Executive's Base Salary; provided, however, in no event may the Executive receive an annual bonus in excess of 90% of the Executive's Base Salary ("Annual Bonus"). Nothing in this Section 3(b) shall be construed as limiting the Committee's right to revise, amend or terminate Tupperware's annual bonus plan in effect from time to time. (c) Stock Option Grants. The Company shall recommend to the Committee that, as soon as practicable following the Effective Date, the Executive be granted an option to purchase 52,500 shares of Tupperware common stock ("Common Stock"), at a price equal to the fair market value of a share of Common Stock on the date of grant. The terms and conditions of such option shall be governed by the Executive's individual stock option award agreement and the Tupperware Corporation 2000 Incentive Plan. During each year of the Employment Period commencing after 2000, the Company shall recommend to the Committee that the Executive be granted an option to purchase at least 35,000 shares of Common Stock. Any such annual stock option grants shall be subject to the terms and conditions of the Tupperware 2000 Incentive Plan or such other plan in effect from time to time and under which such options are granted to the Executive, as well as to the Committee's discretion to grant annual stock option awards generally, and which option grants shall be memorialized in Tupperware's standard stock option agreement used for officers of Tupperware, a copy of which is attached hereto as an exhibit. (d) Other Benefits. During the Employment Period, the Executive shall be entitled to participate in the Company's employee benefit plans generally available to executives of the Company (including, but not limited to, medical, dental, short-term disability, long-term disability, executive life insurance and 401(k), such benefits being hereinafter referred to as the "Employee Benefits"). The Executive shall be entitled to take time off for vacation or illness in accordance with the Company's policy for executives (which shall be at least six weeks per year for vacation) and to receive all other fringe benefits as are from time to time made generally available to executives of the Company. (e) Perquisites. During the Employment Period, the Company shall pay or reimburse the Executive for (i) monthly country club membership dues for the club in effect on the date of this Agreement, and (ii) an automobile consistent with the Company's current policy; provided, however, any and all such payments and/or reimbursements shall be made under the 2 same terms and in the same amounts as the Executive was receiving from the Company immediately prior to entering into this Agreement. (f) Expense Reimbursement. During the Employment Period, the Company shall reimburse the Executive, in accordance with the Company's policies and procedures, for all proper expenses incurred by the Executive in the performance of the Executive's duties hereunder. 4. Termination. (a) Death. Upon the death of the Executive, this Agreement shall automatically terminate and all rights of the Executive and the Executive's heirs, executors and administrators to compensation and other benefits under this Agreement shall cease immediately, except that the Executive's heirs, executors or administrators, as the case may be, shall be entitled to: (i) accrued Base Salary through and including the Executive's date of death; (ii) accrued Annual Bonus through and including the Executive's date of death; and (iii) other Employee Benefits to which the Executive was entitled on the date of death in accordance with the terms of the plans and programs of the Company. (b) Disability. The Company may, at its option, terminate this Agreement upon written notice to the Executive if the Executive, because of physical or mental incapacity or disability, fails to perform the essential functions of the Executive's position, with or without reasonable accommodation, required of the Executive hereunder for a continuous period of 120 days or any 180 days within any 12-month period. Upon such termination, all obligations of the Company hereunder shall cease immediately, except that the Executive shall be entitled to: (i) accrued Base Salary through and including the effective date of the Executive's termination of employment; (ii) accrued Annual Bonus through and including the effective date of the Executive's termination of employment; and (iii) other Employee Benefits to which the Executive is entitled upon termination of employment in accordance with the terms of the plans and programs of the Company. In the event of any dispute regarding the existence of the Executive's incapacity or disability hereunder, the matter shall be resolved by the determination of a physician mutually agreed to by the Executive and the Chief Executive Officer of the Company. The Executive shall submit to appropriate medical examinations for purposes of such determination. (c) Cause. (i) The Company may terminate the Executive's employment hereunder for Cause upon written notice to the Executive (the "Cause Notice"). The Cause Notice shall state with particularity the basis for the termination of Executive 3 under this provision. Such termination for Cause shall be authorized by the Chief Executive Officer of Tupperware. (ii) For the purposes of this Agreement, "Cause" means the occurrence of any of the following events: (A) any intentional act of fraud, embezzlement or theft in connection with the Executive's employment, or the misappropriation of Company property; (B) the Executive's conviction of, or plea of nolo contendre to, a felony; (C) the Executive's willful disobedience of a lawful directive of the Chief Executive Officer of Tupperware, which directive is otherwise reasonable and consistent with the scope and nature of the Executive's duties and responsibilities under this Agreement; (D) gross negligence or willful misconduct in the performance of Executive's duties or responsibilities under this Agreement which results in a substantial loss to the Company or any of its subsidiaries, taken as a whole; or (E) a violation of a statutory or common law duty of loyalty to the Company, which results in a material loss to the Company or any of its subsidiaries, taken as a whole, or a violation which involves the engagement in or performance of services for a competing business which provides the same or substantially similar products as those provided by the Company or Tupperware. (iii) The events described in clauses (C), (D) and (E) above shall not constitute Cause unless the Company gives the Executive a written notice of such event, and the Executive thereafter fails to cure such event within 30 days after receipt of the notice. (iv) The exercise of the right of the Company to terminate this Agreement pursuant to this Section 4(c) shall not abrogate the rights or remedies of the Company in respect of the breach giving rise to such termination. (v) If the Company terminates the Executive's employment for Cause, all obligations of the Company hereunder shall cease, except that the Executive shall be entitled to the payments and benefits specified in Sections 4(b)(i) and 4(b)(iii) hereof. (d) Termination Without Cause. The Company may, at its option, terminate the Executive's employment under this Agreement upon written notice to the Executive for a reason other than a reason set forth in Section 4(a), 4(b) or 4(c). Any such termination shall be authorized by the Chief Executive Officer of the Company. If the Company terminates the Executive's employment for any such reason, all obligations of the Company hereunder shall cease immediately, except that the Executive shall be entitled to: (i) the payments and benefits specified in Sections 4(b)(i) through 4(b)(iii) hereof, inclusive; and 4 (ii) the continuation of payment of amounts equal to the Base Salary which otherwise would have been payable hereunder had the Executive's employment hereunder not been terminated pursuant to this Section 4(d) for a period of two years. (e) Voluntary Termination. Upon 60 days prior written notice to the Company (or such shorter period as may be permitted by the Chief Executive Officer of the Company), the Executive may voluntarily terminate the Executive's employment with the Company for any reason. If the Executive voluntarily terminates the Executive's employment pursuant to this Section 4(e), all obligations of the Company hereunder shall cease immediately, except that the Executive shall be entitled to the payments and benefits specified in Sections 4(b)(i) and 4(b)(iii) hereof. 5. Federal and State Withholding. The Company shall deduct from the amounts payable to the Executive pursuant to this Agreement the amount of all required federal, state and local withholding taxes in accordance with the Executive's Form W-4 on file with the Company, and all applicable federal employment taxes. 6. Confidentiality. The Executive shall not, at any time during the Employment Period or thereafter, make use of or disclose, directly or indirectly, any (i) trade secret or other confidential or secret information of the Company or of any of its subsidiaries or (ii) other technical, business, proprietary or financial information of the Company or of any of its subsidiaries not available to the public generally or to the competitors of the Company or to the competitors of any of its subsidiaries ("Confidential Information"), except to the extent that such Confidential Information (a) becomes publicly available, other than as a result of any act or omission of the Executive, (b) is required to be disclosed by any law, regulation or order of any court or regulatory commission, department or agency, provided that the Executive gives prompt notice of such requirement to the Company to enable the Company to seek an appropriate protective order, or (c) is required to be used or disclosed by the Executive to perform properly the Executive's duties under this Agreement. The Executive also shall abide by the terms of any and all existing or future confidentiality agreements with the Company; provided, however, in the event that there is a conflict between the provisions of this Agreement and such other agreement or agreements, the provisions of this Agreement shall govern. Promptly following the termination of the Employment Period, the Executive shall surrender to the Company all records, memoranda, notes, plans, reports, computer tapes and software and other documents and data which constitute Confidential Information which the Executive may then possess or have under the Executive's control (together with all copies thereof). 7. Inventions. The Executive hereby assigns to the Company the Executive's entire right, title and interest in and to all discoveries and improvements, patentable or otherwise, trade secrets and ideas, writings, copyrightable material, trademarks and servicemarks which may be conceived by the Executive or developed or acquired by the Executive during the Employment Period, which may pertain directly or indirectly to the business of the Company or any of its subsidiaries. The Executive agrees to disclose fully all such developments to the Company upon its request, which disclosure shall be made in writing promptly following any such request. The Executive shall, upon the Company's request, execute, acknowledge and deliver to the Company all instruments and do all other acts which are necessary or desirable to enable the Company or any of its subsidiaries to file and prosecute 5 applications for, and to acquire, maintain and enforce, all patents, trademarks and copyrights in all countries. The Executive also shall abide by the terms of any and all existing or future intellectual property agreements with the Company; provided, however, in the event that there is a conflict between the provisions of this Agreement and such other agreement or agreements, the provisions of this Agreement shall govern. 8. Representations. The Executive represents and warrants to the Company that (a) the execution, delivery and performance of this Agreement by the Executive does not and will not conflict with, breach, violate or cause a default under any contract, agreement, instrument, order, judgment or decree to which the Executive is a party or by which the Executive is bound, (b) the Executive is not a party to or bound by any employment agreement, noncompetition agreement or confidentiality agreement with any other person or entity and (c) upon the execution and delivery of this Agreement by the Company, this Agreement shall be the valid and binding obligation of the Executive, enforceable in accordance with its terms. 9. Survival. Sections 6 and 7 of this Agreement shall survive and continue in full force and effect in accordance with their respective terms, notwithstanding any termination of the Employment Period. 10. Arbitration. Any dispute or controversy between the Company and the Executive arising out of or relating to this Agreement shall be settled by arbitration in Texas administered by the American Arbitration Association, with any such dispute or controversy arising under this Agreement being so administered in accordance with its Commercial Rules then in effect, and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. The arbitrator shall have the authority to award any remedy or relief that a court of competent jurisdiction could order or grant, including, without limitation, the issuance of an injunction. However, either party may, without inconsistency with this arbitration provision, apply to any court having jurisdiction over such dispute or controversy and seek interim provisional, injunctive or other equitable relief until the arbitration award is rendered or the controversy is otherwise resolved. Except as necessary in court proceedings to enforce this arbitration provision or an award rendered hereunder, or to obtain interim relief, neither a party nor an arbitrator may disclose the existence, content or results of any arbitration hereunder without the prior written consent of the Company and the Executive. The Company and the Executive acknowledge that this Agreement evidences a transaction involving interstate commerce. Notwithstanding any choice of law provision included in this Agreement, the United States Federal Arbitration Act shall govern the interpretation and enforcement of this arbitration provision. 11. Notices. All notices and other communications required or permitted hereunder shall be in writing and shall be deemed given when (a) delivered personally or by overnight courier to the following address of the other party hereto (or such other address for such party as shall be specified by notice given pursuant to this Section) or (b) sent by facsimile to the following facsimile number of the other party hereto (or such other facsimile number for such party as shall be specified by notice given pursuant to this Section), with the confirmatory copy delivered by overnight courier to the address of such party pursuant to this Section 11: 6 If to the Company, to: If to the Executive, to: --------------------- ----------------------- BeautiControl, Inc. Jinger L. Heath c/o Tupperware Corporation 10041 Hollow Way 14901 S. Orange Blossom Trail Dallas, Texas 75229 Orlando, Florida 32837 Attention: Thomas M. Roehlk 12. Severability. Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement is held to be invalid, illegal or unenforceable in any respect under applicable law or rule in any jurisdiction, such invalidity, illegality or unenforceability shall not affect the validity, legality or enforceability of any other provision of this Agreement or the validity, legality or enforceability of such provision in any other jurisdiction, but this Agreement shall be reformed, construed and enforced in such jurisdiction as if such invalid, illegal or unenforceable provision had never been contained herein. 13. Entire Agreement. Except as otherwise provided in Sections 6 and 7 hereof, this Agreement constitutes the entire agreement and understanding between the parties with respect to the subject matter hereof and supersedes and preempts any prior understandings, agreements or representations by or between the parties, written or oral, which may have related in any manner to the subject matter hereof. 14. Successors and Assigns. This Agreement shall be enforceable by the Executive and the Executive's heirs, executors, administrators and legal representatives, and by the Company and its successors and assigns. 15. Governing Law. This Agreement shall be governed by and construed and enforced in accordance with the internal laws of the State of Texas without regard to principles of conflict of laws. 16. Amendment and Waiver. The provisions of this Agreement may be amended or waived only by the written agreement of the Company and the Executive, and no course of conduct or failure or delay in enforcing the provisions of this Agreement shall affect the validity, binding effect or enforceability of this Agreement. 17. Counterparts. This Agreement may be executed in two counterparts, each of which shall be deemed to be an original and both of which together shall constitute one and the same instrument. 7 IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first written above. BEAUTICONTROL, INC. By:________________________________ Title: ____________________________ JINGER L. HEATH ___________________________________ 8 EX-99.(D)(4) 13 0013.txt FORM OF STOCKHOLDER AGREEMENT Exhibit (d)(4) STOCKHOLDER AGREEMENT STOCKHOLDER AGREEMENT, dated as of September 13, 2000 (this "Agreement"), by the undersigned stockholder (the "Stockholder") of BeautiControl, Inc., a Delaware corporation (the "Company"), and Tupperware Corporation, a Delaware corporation ("Parent"). RECITALS -------- A. Parent, B-C Merger Corporation, a Delaware corporation and a direct wholly owned subsidiary of Parent ("Sub"), and the Company are entering into an Agreement and Plan of Merger, dated as of the date hereof (the "Merger Agreement"), whereby, upon the terms and subject to the conditions set forth in the Merger Agreement, Sub shall, and Parent shall cause Sub to, make a cash tender offer (the "Offer") for all outstanding shares of Common Stock, par value $0.10 per share, of the Company ("Company Common Stock") at the Offer Price (as defined in the Merger Agreement), the completion of such tender offer to be followed by a merger of Sub with and into the Company; B. As of the date hereof, the Stockholder owns the number of shares of Company Common Stock appearing opposite his or her name on Exhibit A (such shares of Company Common Stock, together with any other shares of capital stock of the Company acquired by such Stockholder, individually, after the date hereof during the term of this Agreement, whether upon the exercise of options or by means of purchase, dividend, distribution or otherwise, being collectively referred to herein as the "Subject Shares"); [DN: Paragraph C below to be included only in the Agreements of the Chairman and the CEO.] [C. Promptly following the consummation of the Merger contemplated by the Merger Agreement, the Stockholder and the Company will enter into an Employment Agreement, in the form of the Attached Exhibit B (the "Employment Agreement");] and D. As a condition to its willingness to enter into the Merger Agreement, Parent has required that the Stockholder agree, and in order to induce Parent to enter into the Merger Agreement the Stockholder has agreed, to enter into this Agreement. NOW, THEREFORE, in consideration of the foregoing and the mutual covenants and agreements set forth herein, the parties hereto agree as follows: 1. Capitalized Terms. Capitalized terms used in this Agreement that are not defined herein shall have such meanings as set forth in the Merger Agreement. 2. Covenants of Stockholder. The Stockholder agrees as follows: (a) Promptly after the commencement, within the meaning of Section 14d-2 of the Exchange Act, of the Offer, and in any event not later than five business days prior to the first scheduled expiration date of the Offer, the Stockholder shall tender, or cause to be tendered, the Subject Shares pursuant to the Offer by delivering, or causing to be delivered, to the depository for the Offer a duly executed letter of transmittal together with any other documents that may be reasonably requested by Parent or such depositary. The Stockholder further agrees that he or she shall not withdraw such tender of the Subject Shares. (b) In any circumstances where a vote, consent or other approval with respect to the Merger and the Merger Agreement is sought, the Stockholder shall vote (or cause to be voted) the Subject Shares in favor of the Merger, the adoption of the Merger Agreement and the approval of the terms thereof and each of the other transactions contemplated by the Merger Agreement. (c) At any meeting of stockholders of the Company or at any adjournment thereof or in any other circumstances where the Stockholder's vote, consent or other approval is sought, the Stockholder shall vote (or cause to be voted) the Subject Shares against any (i) merger agreement or merger (other than the Merger Agreement and the Merger), Takeover Proposal, consolidation, combination, sale of substantial assets, reorganization, recapitalization, dissolution, liquidation or winding up of or by the Company or any Subsidiary or (ii) amendment of the Company's Restated Certificate of Incorporation or By-laws or other proposal or transaction involving the Company or any of its Subsidiaries, which amendment or other proposal or transaction would in any manner impede, frustrate, prevent or nullify the Offer, the Merger, the Merger Agreement or any of the other transactions contemplated by the Merger Agreement or change in any manner the voting rights of any class of capital stock of the Company. The Stockholder further agrees that he or she shall not tender the Subject Shares pursuant to any offer other than the Offer. (d) The Stockholder agrees not to (i) sell, transfer, pledge, assign or otherwise dispose of (including by gift) (collectively, "Transfer"), or enter into any contract, option or other arrangement (including any profit- sharing arrangement) with respect to the Transfer of the Subject Shares to any person other than in connection with the Offer and the Merger or (ii) enter into any voting arrangement, whether by proxy, voting agreement or otherwise, in relation to the Subject Shares. (e) The Stockholder shall not, nor shall the Stockholder authorize any investment banker, attorney or other advisor or representative of the Stockholder to, directly or indirectly (i) solicit, initiate or encourage the submission of any Takeover Proposal or (ii) participate in any discussions or negotiations regarding, or furnish to any person any information with respect to the Company or any Subsidiary in connection with, or take any other action to facilitate any inquiries or the making of any proposal that constitutes or may reasonably be expected to lead to, any Takeover Proposal, except in his or her capacity as a representative or agent of the Company, as permitted by the terms and conditions of the Merger Agreement. 2 (f) The Stockholder shall use the Stockholder's best efforts to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with Parent in doing, all things necessary, proper or advisable to support and to consummate and make effective, in the most expeditious manner practicable, the Offer, the Merger and the other transactions contemplated by the Merger Agreement. (g) The Stockholder agrees to promptly notify Parent in writing of the nature and amount of any acquisition by such Stockholder of any voting securities of the Company acquired by such Stockholder hereinafter. (h) The Stockholder hereby revokes any and all prior proxies or powers of attorney in respect of any of Subject Shares. [DN: The following covenant to be included only in the agreements of the CEO and the Chairman.] [(i) In the 90 days following the Closing, the Stockholder shall purchase shares of common stock, par value $.01, of the Parent (the "Parent Common Stock") having an aggregate Price of not less than $1.25 million (the "Purchased Shares"). For purposes of this section, the "Price" of a share of Parent Common Stock shall be the price paid by the Stockholder for that share. During the two years following the date on which the Stockholder completes his or her accumulation of all of the Purchased Shares pursuant to this Section 2(i), the Stockholder shall not Transfer, short against the box or in any way reduce his or her risk in (or enter into any contract, option or other arrangement that accomplishes or has the effect of accomplishing any of the foregoing) the Purchased Shares; provided, however, that the restriction set forth in this sentence shall no longer apply if: (a) the Parent terminates the Stockholder's employment with the Parent or the Surviving Corporation, (b) E.V. (Rick) Goings ceases to be Chief Executive Officer of the Parent, or (c) Parent undergoes a Change in Control.] (j) The Stockholder shall not commit or agree to take any action inconsistent with the covenants set forth in this Agreement. 3. Representations and Warranties. Each Stockholder represents and warrants with respect to himself or herself to Parent as follows: (a) The Stockholder does not own, of record or beneficially, any shares of capital stock of the Company other than the Subject Shares. The Stockholder has the sole right to vote, and the sole power of disposition with respect to, the Subject Shares, and none of the Subject Shares is subject to any voting trust, proxy or other agreement, arrangement or restriction with respect to the voting or disposition of such Subject Shares. (b) The Stockholder has all requisite power and authority to execute and deliver this Agreement, to perform his or her obligations hereunder and to consummate the transactions contemplated hereby. This Agreement has been duly executed and delivered by the Stockholder. Assuming the due authorization, execution and delivery of this Agreement by Parent, this Agreement constitutes the valid and binding agreement of 3 the Stockholder enforceable against the Stockholder in accordance with its terms. The execution and delivery of this Agreement by the Stockholder does not and will not conflict with any agreement, order or other instrument binding upon the Stockholder, nor require any regulatory filing or approval, other than pursuant to the HSR Act. 4. Representations and Warranties of Parent. Parent represents and warrants to the Stockholder that Parent has all requisite corporate power and authority to execute and deliver this Agreement, to perform its obligations hereunder and to consummate the transactions contemplated hereby and that the execution and delivery of this Agreement by Parent and the consummation by it of the transactions contemplated hereby have been duly authorized by all necessary corporate action on the part of Parent and this Agreement has been duly executed and delivered by Parent and constitutes a valid and binding agreement of Parent. [DN: The following section will be included only in the Stockholder Agreements of the Chairman and the CEO.] 5. Noncompetition; Nonsolicitation. (a) The Stockholder acknowledges that in the course of the Stockholder's employment with the Company the Stockholder has and will become familiar with trade secrets and other confidential information concerning the Company and its subsidiaries and that the Stockholder's services will be of special, unique and extraordinary value to the Company and its subsidiaries. (b) The Stockholder agrees that during the period of the Stockholder's employment with the Company and the period, if any, during which the Stockholder is receiving severance payments from the Company pursuant to Section 4 of the Stockholder's Employment Agreement (the "Noncompetition Period"), the Stockholder shall not in any manner, directly or indirectly, through any person, firm or corporation, alone or as a member of a partnership or as an officer, director, stockholder, investor or employee of or consultant to any other corporation or enterprise or otherwise, engage or be engaged, or assist any other person, firm, corporation or enterprise in engaging or being engaged, in any business, in which the Stockholder was involved or had knowledge, being conducted by, or contemplated by, the Company, any of its subsidiaries or any of the worldwide direct selling companies of Parent as of the termination of the Stockholder's employment in any geographic area in which the Company, any of its subsidiaries or any of the worldwide direct selling companies of Parent is then conducting such business. (c) The Stockholder further agrees that during the Noncompetition Period the Stockholder shall not (i) in any manner, directly or indirectly, induce or attempt to induce any employee or independent sales force member of the Company, any of its subsidiaries or any worldwide direct selling company of Parent to terminate or abandon his or her employment or other relationship with the Company or such Parent affiliate for any purpose whatsoever or (ii) in connection with any business to which Section 5(b) applies, 4 call on, service, solicit or otherwise do business with any customer of the Company, any of its subsidiaries or any of the worldwide direct selling companies of Parent. (d) Nothing in this Section 5 shall prohibit the Stockholder from being (i) a stockholder in a mutual fund or a diversified investment company or (ii) an owner of not more than two percent of the outstanding stock of any class of a corporation, any securities of which are publicly traded, so long as the Stockholder has no active participation in the business of such corporation. (e) If, at any time of enforcement of this Section 5, a court or an arbitrator holds that the restrictions stated herein are unreasonable under circumstances then existing, the parties hereto agree that the maximum period, scope or geographical area reasonable under such circumstances shall be substituted for the stated period, scope or area and that the court or arbitrator shall be allowed to revise the restrictions contained herein to cover the maximum period, scope and area permitted by law. This Agreement shall not authorize a court or arbitrator to increase or broaden any of the restrictions in this Section 5. (f) Parent and the Stockholder agree that the payment of proceeds for the Subject Shares pursuant to the Offer represents in part value for the covenants given by the Stockholder in this Section 5, as well as value given for the other covenants made by the Stockholder in this Agreement. [DN: Bracketed clause below to be included only in the Agreements of the Chairman and the CEO.] 6. Termination. [With the exception of the obligations set forth in Section 2(i) and Section 5 above, which obligations shall terminate pursuant to the terms set forth in such sections,] [t]he obligations of the Stockholder hereunder shall terminate upon the earlier to occur of (i) 6 months after the termination of the Merger Agreement pursuant to Section 8.1 thereof and (ii) the Effective Time, provided however, that upon the termination of the Merger Agreement pursuant to Section 8.1 thereof, the obligations set forth in Sections 2(a) and 2(b) shall no longer apply. No termination of this Agreement shall relieve any party hereto from any liability for any breach of this Agreement prior to termination. 7. Further Assurances. The Stockholder will, from time to time, execute and deliver, or cause to be executed and delivered, such additional or further consents, documents and other instruments as Parent may reasonably request for the purpose of effectively carrying out the transactions contemplated by this Agreement. 8. Successors, Assigns and Transferees Bound. Any successor, assignee or transferee (including a successor, assignee or transferee as a result of the death of the Stockholder, such as an executor or heir) shall be bound by the terms hereof, and the Stockholder shall take any and all actions necessary to obtain the written confirmation from such successor, assignee or transferee that it is bound by the terms hereof. 5 9. Remedies. The Stockholder acknowledges that money damages would be both incalculable and an insufficient remedy for any breach of this Agreement by it, and that any such breach would cause Parent irreparable harm. Accordingly, the Stockholder agrees that in the event of any breach or threatened breach of this Agreement, Parent, in addition to any other remedies at law or in equity it may have, shall be entitled, without the requirement of posting a bond or other security, to equitable relief, including injunctive relief and specific performance. 10. Severability. The invalidity or unenforceability of any provision of this Agreement in any jurisdiction shall not affect the validity or enforceability of any other provision of this Agreement in such jurisdiction, or the validity or enforceability of any provision of this Agreement in any other jurisdiction. 11. Amendment. This Agreement may be amended only by means of a written instrument executed and delivered by both the Stockholder and Parent. 12. Jurisdiction. Each party hereby irrevocably submits to the exclusive jurisdiction of the U.S. District Court for the District of Delaware in any action, suit or proceeding arising in connection with this Agreement, and agrees that any such action, suit or proceeding shall be brought only in such courts (and waives any objection based on forum non conveniens or any other objection to venue therein). Each party hereto waives any right to a trial by jury in connection with any such action, suit or proceeding. 13. Governing Law. This Agreement shall be governed by, and construed in accordance with, the laws of the State of Delaware, regardless of the laws that might otherwise govern under applicable principles of conflicts of laws thereof. 14. Expenses. Each party hereto shall pay its own expenses incurred in connection with this Agreement, except as specified in the Merger Agreement. 15. Notice. All notices, requests, demands and other communications hereunder shall be deemed to have been duly given and made if in writing and if served by personal delivery upon the party for whom it is intended or if sent by telex or telecopier (and also confirmed in writing) to the person at the address set forth below, or such other address as may be designated in writing hereafter, in the same manner, by such person: (a) if to Parent, to: Tupperware Corporation 14901 S. Orange Blossom Trail Orlando, FL 32827 Attention: Thomas M. Roehlk Facsimile: 407-826-4514 with copies to: 6 Sidley & Austin Bank One Plaza 10 South Dearborn Street Chicago, Illinois 60603 Attention: Thomas A. Cole Steven Sutherland Facsimile: 312-853-7036 (b) if to the Stockholder to: BeautiControl, Inc. 2121 Midway Road Carrollton, TX 75006 Attention: Richard W. Heath Facsimile: 972-341-3098 with a copy to: Haynes & Boone, LLP 1600 N. Collins, Suite 2000 Richardson, TX 75080 Attention: David H. Oden Facsimile: 972-692-9029 16. Counterparts. For the convenience of the parties, this Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. 17. No Limitation on Actions of the Stockholder as Director. Notwithstanding anything to the contrary in this Agreement, nothing in this Agreement is intended or shall be construed to require the Stockholder to take or in any way limit any action that the Stockholder may take to discharge the Stockholder's fiduciary duties as a director of the Company, including but not limited to the right to vote for or support a Superior Proposal in accordance with the terms of the Merger Agreement. 18. Waiver of Appraisal Rights. The Stockholder hereby waives any rights of appraisal or rights to dissent from the Merger. 19. Stop Transfer. The Stockholder shall not request that the Company register the transfer (book-entry or otherwise) of any certificate or uncertificated interest representing any of the Subject Shares. [DN: The following section is to be included only in the agreements of the Chairman and the CEO.] 7 20. Definition of Change in Control. For purposes of this Agreement, Change in Control shall mean: (a) The acquisition by any individual, entity or group (within the meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934, as amended (the "Exchange Act")) (a "Person") of beneficial ownership (within the meaning of Rule 13d-3 promulgated under the Exchange Act) of 20% or more of either (i) the then outstanding shares of common stock of the Parent (the "Outstanding Parent Common Stock") or (ii) the combined voting power of the then outstanding voting securities of the Parent entitled to vote generally in the election of directors (the "Outstanding Parent Voting Securities"); provided, however, that for purposes of this subsection (a), the following acquisitions shall not constitute a Change of Control: (i) any acquisition directly from the Parent, provided, however that this subsection (i) will not apply to the acquisition by any person or "group" (as defined in Section 13(d)(3) of the Exchange Act) from Parent of more than 50% of the Outstanding Parent Common Stock, (ii) any acquisition by the Parent, (iii) any acquisition by any employee benefit plan (or related trust) sponsored or maintained by the Parent or any corporation controlled by the Parent or (iv) any acquisition by any corporation pursuant to a transaction that complies with clauses (i), (ii) and (iii) of subsection (c) of this Section 20; or (b) Individuals who, as of the date hereof, constitute the Board of Directors (the "Incumbent Board") of the Parent cease for any reason to constitute at least a majority of the Board, provided that any individual becoming a director subsequent to the date hereof whose election, or nomination for election by the Parent's shareholders, was approved by a vote of at least a majority of the directors then comprising the Incumbent Board shall be considered as though such individual were a member of the Incumbent Board, but excluding, for this purpose, any such individual whose initial assumption of office is in connection with an actual or threatened election contest (as such terms are used in Rule 14a-11 of Regulation 14A promulgated under the Exchange Act) or other actual or threatened solicitation of proxies or consents by or on behalf of a Person other than the Board; or (c) Consummation by the Parent of a reorganization, merger or consolidation or sale or other disposition of all or substantially all of the assets of the Parent or the acquisition of the assets of another corporation (a "Corporate Transaction"), in each case, unless, following such Corporate Transaction, (i) all or substantially all of the individuals and entities who were the beneficial owners, respectively, of the Outstanding Parent Common Stock and Outstanding Parent Voting Securities immediately prior to such Corporate Transaction beneficially own, directly or indirectly, more than 60% of, respectively, the then outstanding shares of common stock and the combined voting power of the then outstanding voting securities entitled to vote generally in the election of directors, as the case may be, of the corporation resulting from such Corporate Transaction (including, without limitation, a corporation which as a result of such transaction owns the Parent or all or substantially all of the Parent's assets either directly or through one or more subsidiaries) in substantially the same proportions as their ownership, immediately prior to such Corporate Transaction of the Outstanding Parent Common Stock and Outstanding Parent Voting Securities, as the case may be, (ii) no Person (excluding any employee benefit plan (or related trust) of the Parent or such corporation resulting from such Corporate Transaction) beneficially owns, directly or indirectly, 20% or more of, respectively, the then outstanding shares of common stock of the corporation resulting from such Corporate Transaction or the combined voting power of the then outstanding voting securities of such corporation except to the extent that such ownership existed prior to the Corporate 8 Transaction and (iii) at least a majority of the members of the board of directors of the corporation resulting from such Corporate Transaction were members of the Incumbent Board at the time of the execution of the initial agreement, or at the time of the action of the Board, providing for such Corporate Transaction; or (d) Approval by the shareholders of the Parent of a complete liquidation or dissolution of the Parent. * * * 9 IN WITNESS WHEREOF, the Stockholder and Parent have caused this Agreement to be duly executed and delivered on the day first above written. STOCKHOLDER ------------------------------ Name: TUPPERWARE CORPORATION a Delaware corporation By:___________________________ Name: Rick Goings Title: Chairman and Chief Executive Officer 10 EXHIBIT A STOCKHOLDER NUMBER OF SHARES 11 EXHIBIT B 12 EX-99.(D)(5) 14 0014.txt CONFIDENTIALITY AGREEMENT Exhibit (d)(5) Tupperware Corporation Thomas M. Roehlk Senior Vice President General Counsel & Secretary August 18, 2000 Mr. Richard W. Heath President and Chief Executive Officer BeautiControl Cosmetics, Inc. 2121 Midway Carrollton, Texas 75006 Dear Mr. Heath: In connection with a possible combination or corporate transaction (the "Transaction") between Tupperware Corporation ("Tupperware") and BeautiControl Cosmetics, Inc. ("BeautiControl") (individually, a "Party," and collectively, the "Parties"), each Party may disclose and/or deliver to the other Party certain information about its properties, employees, finances, businesses and operations (such Party when disclosing such information being the "Disclosing Party" and such Party when receiving such information being the "Receiving Party"). All such information furnished by the Disclosing Party or any of its Representatives (as defined below), whether furnished before or after the date hereof (whether in oral or written form, electronically stored, or otherwise) and regardless of the manner in which it is furnished, is referred to in this confidentiality agreement as "Information". It is understood and agreed that this agreement creates no obligation to enter into any Transaction or any agreement relating to a Transaction. The Parties hereby agree as follows: 1. As used herein: "Act" means the Securities Exchange Act of 1934, as amended; "Affiliate" means any Person that (i) directly or indirectly controls a Party, (ii) directly or indirectly is controlled by a Party or (iii) is under direct or indirect common control with a Party; "Person" shall have the meaning contained in Section 3(a)(9) of the Act; and "Representative" or "Representatives" of a Party means such Party's officers, directors, partners, shareholders, employees, accountants, attorneys, agents, consultants, advisors, financing sources and financial institutions. "Restricted Period" means the two-year period commencing on the date hereof. 2. All information will be kept confidential by a Party, except that the Party may disclose or make available information to its directors, officers and employees and to Representatives of its advisors for the exclusive purpose of assisting in the evaluation of a possible Transaction, all of whom shall be specifically informed by the Party of the confidential character of such information and that by receiving such information they are agreeing to be bound by the terms of this agreement relating to the confidential treatment of such information. A Receiving Party will not use, or permit any of its representatives to use, any of the information for any purpose other than the evaluation of a possible Transaction, and will not make any information available to any Person for any other purpose whatsoever. 3. The Parties hereby acknowledge that they are aware (and that prior to the disclosure of any information by a Receiving Party to any Person pursuant to paragraph 2 such Person will be advised) that the United States securities laws prohibit any Person who has material non-public information about a company from purchasing or selling securities of such company or from communicating such information to any other Person under circumstances in which it is reasonably foreseeable that such Person is likely to purchase or sell such securities. In the event that a Receiving Party discloses any information to any Person, whether or not such disclosure is permitted under paragraph 2, the Receiving Party shall be liable to the Disclosing Party for any failure by such Person to treat such information in the same manner as the Receiving Party is obligated to treat such information under the terms of this agreement. 4. If at any time during the Restricted Period a Party is approached by any Person concerning participation in a transaction involving any of the assets, businesses or securities of the other Party or any subsidiary thereof, the Party will promptly inform the other Party of the nature of such contact and the parties thereto. 5. Except with the Party's prior written approval, the other Party will not disclose, or permit its representatives to disclose, to any Person other than the Persons described in paragraph 2, the fact that the Party is engaged in discussions with the other Party regarding a Transaction, the Page 3 August 18, 2000 fact that the Information has been made available to the other Party or that the other Party has inspected any portion of the Information. 6. In the event that a Party is requested in any proceeding to disclose any Information received by such Party or any matter subject to paragraph 5, the Party will give the other Party prompt notice of such request so that it may seek an appropriate protective order. If in the absence of a protective order the Party is nonetheless compelled to disclose any such Information or matter, it may disclose such Information or matter without liability hereunder, provided that it gives the other Party written notice of the Information or matter to be disclosed as far in advance of its disclosure as is practicable and uses its best efforts to obtain assurances that confidential treatment will be accorded to such Information or matter. 7. The restrictions with respect to Information set forth in paragraph 2 shall not apply to any Information furnished by the Disclosing Party or its Representatives which the Receiving Party demonstrates (i) is on the date hereof or hereafter becomes generally available to the public other than as a result of a disclosure, directly or indirectly, by the Disclosing Party or your Representatives or (ii) was available to the Receiving Party on a nonconfidential basis prior to its disclosure by the Disclosing Party or its Representatives or becomes available to the Receiving Party on a nonconfidential basis, in each case from a source other than the Disclosing Party or its Representatives, which source was not itself bound by a confidentiality agreement with the Disclosing Party or its Representatives and had not received such Information, directly or indirectly, from a Person so bound. 8. The Disclosing Party does not make any representation or warranty as to the accuracy or completeness of the Information provided by it. Neither the disclosing Party nor any of its Representatives shall have any liability resulting from the use of the Information by Receiving Party or any of its Representatives. 9. Upon our request at any time, the Receiving Party will promptly redeliver to the Disclosing Party all copies of documents containing Information and will promptly destroy all memoranda, notes and other writings prepared by the Receiving Party or by any Person referred to in paragraph 2 based on such Information. 10. During the Restricted Period, a Party will not (and will not assist or encourage others to) solicit the services, as employee, consultant or otherwise, of any employee of the other Party. Page 4 August 18, 2000 11. Each Party shall cause each of its Affiliates to comply with the terms of paragraphs 2, 3, 4, 5, 6, 7, 9 and 10 (construing such paragraphs for such purposes to refer also to such Affiliates in each instance where there is a reference to the affected Party). 12. Each Party acknowledges that irreparable damage would occur to the other Party in the event any of the provisions of this agreement were not performed in accordance with their specific terms or were otherwise breached. Accordingly, each Party shall be entitled to an injunction or injunctions to prevent breaches of the provisions of this agreement and to enforce specifically the terms and provisions hereof in any court of competent jurisdiction in the United States of America or any state thereof, in addition to any other remedy to which a Party may be entitled at law or in equity. 13. If any term or provision of this agreement or any application hereof shall be invalid or unenforceable, the remainder of this agreement and any other application of such term or provision shall not be affected thereby. 14. This agreement may be executed in any number of counterparts, each of which when so executed and delivered shall be an original, but such counterparts shall constitute one and the same instrument. 15. This agreement contains the entire understanding of the parties hereto with respect to the matters covered hereby and may be amended only by an agreement in writing executed by the Parties. 16. This agreement shall be binding upon, inure to the benefit of and be enforceable by each Party's respective successors and assigns. 17. This agreement shall be governed by and construed in accordance with the internal laws (as opposed to conflict of law provisions) of the State of Florida. * * * * * * Page 5 August 18, 2000 If the foregoing correctly sets forth our agreement as to the matters set forth herein, please confirm our agreement by executing and returning a copy of this agreement to the undersigned. Very truly yours, Tupperware Corporation By: /s/ Thomas M. Roehlk ------------------------ Name: Thomas M. Roehlk Title: Senior Vice President, General Counsel and Secretary The foregoing terms are agreed to: BeautiControl Cosmetics, Inc. By: ________________________ Name: Richard W. Heath Title: President and Chief Executive Officer EX-99.(D)(6) 15 0015.txt CONFIDENTIALITY AGREEMENT Exhibit (d)(6) CONFIDENTIALITY AGREEMENT Attention: In connection with your consideration of a possible negotiated transaction with BeautiControl Cosmetics (the "Company") involving some or all of its assets (a "Potential Transaction"), the Company is prepared to make available to you certain non-public information. As a condition to such information being furnished to you and your Representatives (as hereinafter defined), you agree to treat any information concerning the Company (whether prepared by the Company, its Representatives or otherwise, and irrespective of the form of communication) which is furnished to you or to your Representatives now or in the future by or on behalf of the Company (herein collectively referred to as the "Evaluation Material") in accordance with the provisions of this letter agreement, and to take or abstain from taking certain other actions as hereinafter set forth. In addition, you agree to reimburse the Company, upon its written request, for its reasonable costs incurred in retrieving, copying, and distributing to you the Evaluation Material. As used in this letter, a party's "Representatives" shall include the directors, officers, employees, agents, partners, or advisors of such party (including, without limitation, attorneys, accountants, consultants, bankers, and financial advisors) and those of such party's parent company, subsidiaries and affiliates. Notwithstanding any other provision hereof, the Company reserves the right not to make available hereunder any information, the provision of which is determined by it, in its sole discretion, to be inadvisable or inappropriate. The term "Evaluation Material" also shall be deemed to include all notes, analyses, compilations, studies, interpretations or other documents prepared by you or your Representatives which contain, reflect or are based upon, in whole or in part, the information furnished to you or your Representatives pursuant hereto. The term Evaluation Material does not include information which (i) is or becomes generally available to the public other than as a result of a disclosure by you or your Representatives, (ii) was within your possession prior to its being furnished to you by or on behalf of the Company pursuant hereto, provided that the source of such information was not known by you to be bound by a confidentiality agreement with or other contractual, legal or fiduciary obligation of confidentiality to the Company or any other party with respect to such information or (iii) becomes available to you on a non-confidential basis from a source other than the Company or any of its Representatives, provided that such source is not bound by a confidentiality agreement with or other contractual, legal or fiduciary obligation of confidentiality to the Company or any other party with respect to such information. Except as otherwise provided herein, you hereby agree that you and your Representatives shall use the Evaluation Material solely for the purpose of evaluating a Potential Transaction and for no other purpose, that the Evaluation Material will be kept confidential and that you and your Representatives will not disclosure any of the Evaluation Material in any manner whatsoever; provided, however, that, (i) you may make any disclosure of Evaluation Material to which the Company gives its prior written consent and (ii) any of Evaluation Material may be disclosed to your Representatives who need to have such Evaluation Material for the sole purpose of evaluating a Potential Transaction, who are provided with a copy of this letter agreement and who agree in writing to be bound by the terms hereof to the same extend as you. In any event, you agree to undertake reasonable precautions to safeguard and protect the confidentiality of the Evaluation Material, to accept responsibility for any breach of this letter agreement by any of your Representatives, and at your sole expense to take all reasonable measures (including but not limited to court proceedings) to restrain your Representatives from prohibited or unauthorized disclosure or uses of the Evaluation Material. In addition, except as otherwise provided herein, you agree that, without the prior written consent of the Company, you and your Representatives will not disclose to any other person the fact that the Evaluation Material has been made available to you, that discussions or negotiations are taking place concerning a Potential Transaction or any of the terms, conditions or other facts with respect thereto (including the status thereof); provided, however, that you may make such disclosure if the Company has already done so or you have received advice of your outside counsel that such disclosure must be made by you in order that you not commit a violation of law, and further provided, that any such permitted disclosure shall not affect or impair your obligations of confidentiality hereunder with respect to the Evaluation Material. It is understood and agreed that nothing contained herein shall be deemed to inhibit, impair or restrict your ability or the ability of your Representatives to have discussions or negotiations with other persons for the purpose of discussing or negotiating potential financing and/or partnering with or investment in the Potential Transaction as long as each of such persons agrees in writing to be bound by the terms of this letter agreement. The term person as used in this letter agreement shall be broadly interpreted to include the media and any corporation, partnership, group, individual or other entity. In the event that you or any of your Representatives are requested or required (by oral questions, interrogations, requests for information or documents in legal proceedings, subpoena, civil investigative demand or other similar process) to disclose any of the Evaluation Material, you shall provide the Company with prompt written notice of any such request or requirement so that the Company may seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this letter agreement. If, in the absence of a protective order or other remedy or the receipt of a waiver by the Company, you or any of the Representatives are nonetheless, upon the advice of counsel, legally compelled to disclose Evaluation Material to any tribunal or else stand liable for contempt or suffer other censure or penalty, you or your Representatives may, without liability hereunder, disclose to such tribunal only that portion of the Evaluation Material which such counsel advises you is legally required to be disclosed, provided that you exercise your best efforts to preserve the confidentiality of the Evaluation Material, including, without limitation, by cooperating with the Company to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded the Evaluation Material by such tribunal. -2- You understand and acknowledge that neither the Company nor any of its Representatives makes any representation or warranty, express or implied, as to the accuracy or completeness of its Evaluation material. You agree that neither the Company nor any of its Representatives shall have any liability to you or to any of your Representatives relating to or resulting from the use of the Evaluation Material or any errors therein or omissions therefrom. Only those representations or warranties which are made in a final definitive agreement regarding a Potential Transaction, when, as and if executed, and subject to such limitations and restrictions as may be specified therein, will have any legal effect. You acknowledge and agree that you are aware (and that your Representatives are aware or, upon receipt of any Evaluation Information, will be advised by you) of the restrictions imposed by the United States federal securities laws and other applicable foreign and domestic laws on a person possessing material non-public information about a public company and that you and your Representative will comply with such laws in a manner consistent with your confidentiality obligations hereunder. You understand and agree that no contract or agreement providing for a Potential Transaction or any other transaction involving the Company shall be deemed to exist between you and the Company unless and until a final definitive agreement has been executed and delivered. You also agree that unless and until a final definitive agreement regarding a Potential Transaction has been executed and delivered, neither the Company nor you will be under any legal obligation of any kind whatsoever with respect to a Potential Transaction by virtue of this letter agreement except for the matters specifically agreed to herein. You further acknowledge and agree that the Company reserves the right, in its sole discretion, to reject any and all proposals made by you or any of your Representatives with regard to a Potential Transaction, and to terminate discussions and negotiations with you at any time. You further understand that (i) the Company and its Representatives shall be free to conduct any process for a Potential Transaction, if and as they in their sole discretion shall determine (including, without limitation, negotiating with any other interested parties and entering into a definitive agreement therewith without prior notice to you or any other person, and (ii) any procedures relating to such process or transaction may be changed at any time without notice to you or any other person. Neither this paragraph nor any other provision in this agreement can be waived or amended except by written consent of the Company, which consent shall specifically refer to this paragraph (or such provision) and explicitly make such waiver or amendment. It is understood and agreed that no failure or delay by the company in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or future exercise thereof or the exercise of any other right, power or privilege hereunder. It is further understood and agreed that money damages would not be a sufficient remedy for any breach of this letter agreement by you or any of your Representatives and that the Company shall be entitled to equitable relief, including -3- injunction and specific performance, as a remedy for any such breach. Such remedies shall not be deemed to be the exclusive remedies for a breach by you of this letter agreement but shall be in addition to all other remedies available at law or equity to the Company. In the event of litigation relating to this letter agreement, if a court of competent jurisdiction determines that you or any of your Representatives have breached this letter agreement, then you shall be liable and pay to the Company the reasonable legal fees incurred by the Company in connection with such litigation, including any appeal therefrom. Please confirm your agreement with the foregoing by having a duly authorized representative of your organization sign and return one copy of this letter to the undersigned. This letter agreement may be executed by counterpart signatures, each of which shall constitute an original but all of which shall together constitute a single instrument. Very truly yours, By: ____________________ Name: __________________ Title: _________________ Accepted and agreed to as of the date first written above: By: _____________________ By: _____________________ By: /s/ E.V. Goings --------------------- Name: E.V. Goings Title: Chairman, Tupperware Corporation -4- -----END PRIVACY-ENHANCED MESSAGE-----