AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON OCTOBER 24, 1996
REGISTRATION NO. 333-12073
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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AMENDMENT NO. 2
TO
FORM S-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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NU SKIN ASIA PACIFIC, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
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DELAWARE 5122
(STATE OF JURISDICTION OF 87-0565309
INCORPORATION OR (PRIMARY STANDARD (I.R.S. EMPLOYER
ORGANIZATION) INDUSTRIAL CLASSIFICATION IDENTIFICATION NO.)
CODE NUMBER)
75 WEST CENTER STREET
PROVO, UTAH 84601
(801) 345-6100
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF
REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
STEVEN J. LUND, PRESIDENT
NU SKIN ASIA PACIFIC, INC.
75 WEST CENTER STREET
PROVO, UTAH 84601
(801) 345-6100
(NAME, AND ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA
CODE, OF AGENT FOR SERVICE)
---------------
COPIES TO:
NOLAN S. TAYLOR, ESQ. WILLIAM H. HINMAN, JR., ESQ.
LEBOEUF, LAMB, GREENE & MACRAE, SHEARMAN & STERLING
L.L.P. 555 CALIFORNIA STREET, SUITE 2000
1000 KEARNS BUILDING SAN FRANCISCO, CA 94104
136 SOUTH MAIN STREET TELEPHONE: (415) 616-1100
SALT LAKE CITY, UTAH 84101-1685
TELEPHONE: (801) 320-6700
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as
practicable after the effective date of this Registration Statement.
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If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the
following box. [_]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or
interest reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following
box and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [_]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [_]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [_]
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS
REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH
SECTION 8(A) OF THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT
SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID
SECTION 8(A), MAY DETERMINE.
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++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
+INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A +
+REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE +
+SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY +
+OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT +
+BECOMES EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR +
+THE SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE +
+SECURITIES IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE +
+UNLAWFUL PRIOR TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF +
+ANY SUCH STATE. +
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
SUBJECT TO COMPLETION
PRELIMINARY PROSPECTUS DATED OCTOBER 24 1996
PROSPECTUS
7,600,000 SHARES
[NU SKIN LOGO]
CLASS A COMMON STOCK
-------------
Of the 7,600,000 shares of Class A Common Stock, par value $.001 per share
(the "Class A Common Stock"), of Nu Skin Asia Pacific, Inc., a Delaware
corporation (the "Company"), offered hereby, 4,750,000 shares are being offered
by the Company and 2,850,000 shares are being offered by certain stockholders
of the Company (the "Selling Stockholders"). See "Principal and Selling
Stockholders." Of the 7,600,000 shares of Class A Common Stock being offered
hereby, 4,600,000 shares are being offered initially in the United States and
Canada by the U.S. Underwriters (the "U.S. Offering"), 1,670,000 shares are
being offered initially in a concurrent offering in Japan by the Japanese
Underwriters (the "Japanese Offering"), and 1,330,000 shares are being offered
initially in a concurrent offering outside the United States, Canada and Japan
by the International Managers (the "International Offering," together with the
U.S. Offering and the Japanese Offering, the "Offerings"). See "Underwriting."
Each share of Class A Common Stock entitles its holder to one vote, and each
share of Class B Common Stock (the "Class B Common Stock," together with the
Class A Common Stock, the "Common Stock") of the Company entitles its holder to
ten votes. All of the shares of Class B Common Stock are held by the
stockholders of the Company prior to consummation of the Offerings (the
"Existing Stockholders"). After consummation of the Offerings, the Existing
Stockholders will beneficially own shares of Common Stock having approximately
98.8% of the combined voting power of the outstanding shares of Common Stock
(approximately 98.7% if the Underwriters' over-allotment options are exercised
in full).
Prior to the Offerings, there has been no public market for the Class A
Common Stock. It is currently estimated that the initial public offering price
will be between $20 and $22 per share. See "Underwriting" for information
relating to the factors to be considered in determining the initial public
offering price. Approximately $15,000,000 of the net proceeds to the Company
from the Offerings will be used to repay a portion of the S Distribution Notes
(as defined herein) issued to the Existing Stockholders in connection with the
reorganization. See "Use of Proceeds" and "The Reorganization and S Corporation
Distribution."
The Class A Common Stock has been approved for listing on the New York Stock
Exchange under the symbol "NUS," subject to official notice of issuance.
SEE "RISK FACTORS," BEGINNING ON PAGE 11, FOR A DISCUSSION OF CERTAIN FACTORS
WHICH SHOULD BE CONSIDERED BY PROSPECTIVE PURCHASERS OF THE SECURITIES OFFERED
HEREBY.
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THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION, NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION
PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
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PRICE TO UNDERWRITING PROCEEDS TO PROCEEDS TO
PUBLIC DISCOUNT(1) COMPANY(2) SELLING STOCKHOLDERS
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Per Share................ $ $ $ $
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Total(3)................. $ $ $ $
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(1) The Company and the Selling Stockholders have agreed to indemnify the U.S.
Underwriters, the Japanese Underwriters and the International Managers
against certain liabilities, including liabilities under the Securities Act
1933, as amended. See "Underwriting."
(2) Before deducting expenses payable by the Company estimated to be
$3,000,000.
(3) The Selling Stockholders have granted the U.S. Underwriters and the
International Managers options, exercisable within 30 days after the date
hereof, to purchase up to 884,317 and 255,683 additional shares of Class A
Common Stock, respectively, solely to cover over-allotments, if any. If
such options are exercised in full, the total Price to Public, Underwriting
Discount, Proceeds to Company and Proceeds to Selling Stockholders will be
$ , $ , $ and $ , respectively. See "Underwriting."
-------------
The shares of Class A Common Stock offered hereby are offered by the
Underwriters, subject to prior sale, when, as and if issued to and accepted by
them, subject to approval of certain legal matters by counsel for the
Underwriters and certain other conditions. The Underwriters reserve the right
to withdraw, cancel or modify such offer and to reject orders in whole or in
part. It is expected that delivery of certificates for the shares of Class A
Common Stock will be made in New York, New York on or about , 1996.
-------------
MERRILL LYNCH & CO. MORGAN STANLEY & CO.
DEAN WITTER REYNOLDS INC. INCORPORATED
NOMURA SECURITIES INTERNATIONAL, INC.
-------------
The date of this Prospectus is , 1996.
[COMPANY LOGO AND THE WORDS "SCIENCE," "NATURE" AND
"BEST OF SCIENCE & NATURE."]
[PICTURE OF NU SKIN PERSONAL CARE AND NUTRITIONAL PRODUCTS.]
[PICTURE OF NU SKIN PERSONAL CARE AND NUTRITIONAL PRODUCTS CONTINUED FROM
PREVIOUS PAGE.]
PROSPECTUS SUMMARY
The following summary is qualified in its entirety by, and should be read in
conjunction with, the more detailed information and the financial statements
and notes thereto appearing elsewhere in this Prospectus. Unless otherwise
noted, all information in this Prospectus assumes no exercise of the
Underwriters' over-allotment options and gives effect to the Reorganization (as
defined herein). As used herein, "Nu Skin Asia Pacific" or the "Company" means
Nu Skin Asia Pacific, Inc., including the Subsidiaries, giving effect to the
Reorganization. The "Subsidiaries" means Nu Skin Hong Kong, Inc. ("Nu Skin Hong
Kong"), Nu Skin Japan Company, Limited ("Nu Skin Japan"), Nu Skin Korea, Inc.
("Nu Skin Korea"), and Nu Skin Taiwan, Inc. ("Nu Skin Taiwan"), collectively,
and excludes Nu Skin Personal Care (Thailand) Limited ("Nu Skin Thailand"),
which has been formed, but has not commenced operations.
See "The Reorganization and S Corporation Distribution." Until September 30,
1994, the Company's fiscal year ended on September 30 of each year. As of
October 1, 1994, the Company changed its fiscal year end to December 31 of each
year, beginning with the fiscal year ended December 31, 1995.
THE COMPANY
Nu Skin Asia Pacific is a rapidly growing network marketing company involved
in the distribution and sale of premium quality, innovative personal care and
nutritional products. The Company is the exclusive distribution vehicle for Nu
Skin International, Inc. ("Nu Skin International" or "NSI") in the countries of
Japan, Taiwan, Hong Kong (including Macau) and South Korea, where the Company
currently has operations, and in Thailand, Indonesia, Malaysia, the
Philippines, the People's Republic of China ("PRC"), Singapore and Vietnam,
where operations have not commenced.
The Company believes it is one of the fastest growing network marketing
companies in Asia. Revenue increased 95.2% to $471.3 million for the nine
months ended September 30, 1996 from $241.4 million for the same period in
1995. Net income increased 117.7% to $60.3 million for the nine months ended
September 30, 1996 from $27.7 million for the same period in 1995. Revenue
increased 35.6% to $358.6 million for the year ended December 31, 1995 from
$264.4 million in 1994. Although operating expenses have increased with the
growth of the Company's revenue,such expenses have declined as a percentage of
revenue due to improved operating leverage. Net income increased 86.1% to $40.2
million for the year ended December 31, 1995 from $21.6 million in 1994. The
Company's network of independent distributors has grown since the Company's
inception in 1991 to more than 330,000 active distributors as of September 30,
1996. See "Risk Factors--Managing Growth."
The Company's product philosophy is to combine the best of science and nature
in developing premium quality, innovative personal care and nutritional
products which are specifically designed for the network marketing distribution
channel. The Company offers products in two distinct categories: personal care
products, marketed under the trademark "Nu Skin," and nutritional products,
marketed under the trademark "Interior Design Nutritionals" ("IDN"). The Nu
Skin personal care product lines include facial care, body care, hair care and
color cosmetics, as well as specialty products such as sun protection, oral
hygiene and fragrances. The IDN product lines include nutritional supplements,
weight management products and nutritious snacks, and sports nutrition
products.
IN CONNECTION WITH THE OFFERINGS BY THE UNDERWRITERS, THE UNDERWRITERS MAY
OVER-ALLOT OR EFFECT TRANSACTIONS WHICH STABILIZE OR MAINTAIN THE MARKET PRICE
OF THE CLASS A COMMON STOCK AT LEVELS ABOVE THAT WHICH MIGHT OTHERWISE PREVAIL
IN THE OPEN MARKET. SUCH TRANSACTIONS MAY BE EFFECTED ON THE NEW YORK STOCK
EXCHANGE OR OTHERWISE. SUCH STABILIZING, IF COMMENCED, MAY BE DISCONTINUED AT
ANY TIME.
3
In Japan, Taiwan and Hong Kong, the Company currently offers most of NSI's
personal care products and approximately one-third of NSI's nutritional
products. In South Korea, the Company currently offers one-third of NSI's
personal care products and none of the nutritional products. The Company
believes that it can significantly grow its business and attract new customers
by expanding its product offerings in each of its markets to include more of
NSI's existing personal care and nutritional products. In addition to expanding
its product offerings with existing NSI products, the Company intends to
introduce new products tailored to specific markets.
The distribution of products through the network marketing and other direct
selling channels has grown significantly in recent years. The World Federation
of Direct Selling Associations ("WFDSA") reports that, since 1990, worldwide
direct distribution of goods and services to consumers has increased 65%,
resulting in the sale of over $75 billion of goods and services in 1995.
According to the WFDSA, $34 billion of goods and services were sold by its
members in 1995 through direct selling channels in the markets in which the
Company currently operates, which represents 45% of the global volume of direct
sales by its members.
OPERATING STRENGTHS
The Company believes that its success is due to its commitment to provide a
wide range of premium quality, innovative personal care and nutritional
products and an appealing global business opportunity for persons interested in
establishing a direct sales business. The Company has been able to achieve
rapid, sustained and profitable growth by capitalizing on the following
operating strengths:
PREMIUM PRODUCT OFFERINGS. The Company is committed to building its brand
name and distributor and customer loyalty by selling premium quality,
innovative personal care and nutritional products that appeal to broad
markets. This commitment is illustrated by the Company's personal care
products slogan "All of the Good and None of the Bad" and its nutritional
products slogan "Adding Life to Years." The Company offers products
designed for the direct selling channel by focusing on innovative
consumable products which build loyalty and lead to repeat purchases.
Management believes that the Company's focus on innovative products
supports its distributors' demonstrative and educational sales techniques.
GLOBAL DISTRIBUTOR COMPENSATION PLAN. The Company believes that one of
the strengths of the Company's global distributor compensation plan (the
"Global Compensation Plan") is its seamless integration across all markets
in which NSI products are sold. By entering into international sponsoring
agreements with NSI, distributors are authorized to sponsor new
distributors in each country where NSI or the Company has operations. This
allows distributors to receive commissions at the same rate for sales in
foreign countries as for sales in their home country. This is a significant
benefit to distributors because they are not required to establish new
distributorships or requalify for higher levels of commissions within each
new country in which they begin to operate. The seamless integration of the
Global Compensation Plan means that distributor knowledge and experience
can be used to rapidly build distributor leadership in new markets. See
"Risk Factors--Reliance Upon NSI Independent Distributors."
HIGH LEVEL OF DISTRIBUTOR INCENTIVES. The Company believes that the
Global Compensation Plan is among the most financially rewarding plans
offered to distributors by network marketing companies. There are two
fundamental ways in which distributors can earn money: (i) through retail
markups, for which the Company recommends a range from 43% to 60%, and (ii)
through a series of commissions on each product sale which can result in
commissions to distributors aggregating up to 58% of such product's
wholesale price. On a global basis, however, commissions have averaged from
40% to 42% of revenue from commissionable sales over the last seven years.
NEW MARKET DEVELOPMENT PROGRAM. The Company has developed a low cost,
disciplined approach to opening new markets. Each market opening is
preceded by a thorough analysis of economic and political conditions,
regulatory standards and other business, tax and legal issues. Prior to a
market opening, the Company's management team, in conjunction with NSI
support personnel, local legal counsel and tax advisors, works to obtain
all necessary regulatory approvals and establish facilities capable of
meeting distributor needs. This market development approach, combined with
the Global Compensation Plan, which motivates distributors to train and
sponsor other distributors to sell products in new markets, has enabled the
Company to quickly and successfully open new markets. See "Risk Factors--
Entering New Markets."
DISTRIBUTOR SUPPORT PROGRAMS. The Company is committed to providing a
high level of support services tailored to the needs of its distributors in
each market. The Company meets the needs and builds the loyalty of its
distributors with personalized distributor service, a support staff that
assists distributors as
4
they build networks of downline distributors, and a liberal product return
policy. The Company provides walk-in, telephonic and computerized product
fulfillment and tracking services that result in user-friendly, timely
product distribution. Each walk-in center maintains meeting rooms which
distributors may utilize in training and sponsoring activities.
RELATIONSHIP WITH NSI. NSI, founded in 1984 and based in Provo, Utah, is
engaged in selling personal care and nutritional products and, together
with its affiliates, comprises one of the largest network marketing
organizations in the world. NSI has provided, and will continue to provide,
a high level of support services to the Company, including product
development, marketing and other managerial support services. Management
believes that the Company's relationship with NSI has allowed the Company
to increase revenue and net income at rates that otherwise may not have
been possible. Since distributor agreements are entered into between NSI
and distributors, all of the distributors who generate revenue for the
Company are distributors of NSI. See "Risk Factors--Relationship with and
Reliance on NSI; Potential Conflicts of Interest." Because of this fact,
the Company cannot control who becomes a distributor.
EXPERIENCED MANAGEMENT TEAM. The Company's senior management team,
members of which founded NSI, has been instrumental in successfully
managing the growth in revenue and net income experienced by the Company to
date. The Company has also attracted experienced local general managers to
oversee operations in Japan, Taiwan, Hong Kong and South Korea.
GROWTH STRATEGY
The Company's primary objective is to capitalize on its operating strengths
to become a leading distributor of consumer products in each of its markets.
Specifically, the Company's strategy to increase revenue and net income is as
follows:
INTRODUCE NEW PRODUCTS. Because new products tend to increase sales by
existing distributors and attract new distributors, the Company intends to
continue introducing existing and new NSI products. For example, LifePak,
the Company's most successful nutritional product was introduced in Japan
in 1995, where it has grown to represent approximately 17% of revenue. In
October 1996, the Company introduced LifePak in Taiwan and intends, subject
to regulatory approval, to introduce LifePak in Hong Kong in 1997. In
addition, the Company expects to launch Epoch, a new line of ethnobotanical
personal care products, in all markets by mid-1997. The Company also
intends to introduce products tailored to specific demographic and
geographic market segments and will consider introducing entirely new
product categories in the future.
OPEN NEW MARKETS. The Company will continue to pursue attractive new
market opportunities. Thailand is the next country in which the Company
intends to commence operations, subject to receipt of necessary government
approvals. The Company's preparatory work for Thailand is currently
ongoing. In addition, the Company has conducted preliminary investigations
on the feasibility of commencing operations in Indonesia, Malaysia, the
Philippines, the PRC, Singapore and Vietnam. The Company believes that
these countries may represent significant markets for the future expansion
of its operations, provided that the Company can secure the required
regulatory and business permits. See "Risk Factors--Entering New Markets"
and "--Potential Negative Impact of Distributor Actions."
ATTRACT NEW DISTRIBUTORS AND ENHANCE DISTRIBUTOR PRODUCTIVITY. To date,
the Company has enjoyed significant growth in the number of its active
distributors (defined as those distributors which have purchased products
from the Company during the previous three months). By leveraging its
operating strengths, the Company intends to continue to create and maintain
a business climate to promote the growth in the number of active
distributors and to increase distributor retention, motivation and
productivity. In addition, the Company will pursue growth in the number of
active distributors by continuing to work with NSI to enhance the Global
Compensation Plan, initiating an innovative distributor equity incentive
program, selectively opening new distributor walk-in centers to provide a
local presence in additional key cities, enhancing distributor recognition
programs, and targeting inactive distributors who may still have an
interest in the Company's business opportunity or products.
INCREASE PRODUCT CONSUMPTION. The Company intends to increase sales to
new and existing consumers through (i) increasing product promotions in
marketing literature, (ii) increasing the availability of sample packages,
(iii) emphasizing product "systems," such as the HairFitness system of
various shampoos and conditioners, which leads to the purchase of multiple
products rather than a single product, and (iv) implementing an automatic
reordering system which is designed to result in convenient repeat
purchases.
5
THE OFFERINGS
Of the 7,600,000 shares of Class A Common Stock, par value $.001 per share,
being offered hereby, 4,600,000 shares are being offered initially in the
United States and Canada by the U.S. Underwriters, 1,670,000 shares are being
offered initially in a concurrent offering in Japan by the Japanese
Underwriters, and 1,330,000 shares are being offered initially in a concurrent
offering outside the United States, Canada and Japan by the International
Managers. The initial public offering price and the underwriting discount per
share are identical for each of the Offerings. See "Underwriting."
Class A Common Stock offered
by(1):
The Company..................... 4,750,000 shares
The Selling Stockholders........ 2,850,000 shares
Total Class A Common Stock.... 7,600,000 shares
Common Stock to be outstanding
after the Offerings:
Class A Common 8,850,000 shares
Stock(1)(2)(3)(4)..............
Class B Common Stock(3)......... 74,545,000 shares
Total Common Stock............ 83,395,000 shares
Concurrent Non-Underwritten Immediately prior to the Offerings (i) NSI
Offering......................... and its affiliates (other than the Company)
will grant stock bonus awards to their
employees covering 1,250,000 shares of
Class A Common Stock, (ii) the Company will
grant stock bonus awards to its employees
covering 109,000 shares of Class A Common
Stock, and (iii) NSI will grant options
("Distributor Options") to certain of its
distributors covering 1,605,000 shares of
Class A Common Stock. Prior to the
Offerings, the Existing Stockholders will
contribute to the Company the 1,605,000
shares of Class A Common Stock underlying
the Distributor Options and will contribute
to NSI and its affiliates (other than the
Company) the 1,250,000 shares of Class A
Common Stock issuable in connection with
certain of the aforementioned employee
stock bonus awards.
Use of proceeds................... The Company expects to apply the net
proceeds of the Offerings as follows: (i)
approximately $40 million to finance the
Company's entry into selected new countries
(including the payment of a licensing fee
to NSI); (ii) approximately $15 million to
repay a portion of the S Distribution Notes
(as defined herein); (iii) approximately
$12 million to introduce new products into
countries in which the Company currently
operates; (iv) approximately $12 million to
enhance the Company's technological
infrastructure; (v) approximately $10
million to establish additional offices and
distribution centers in countries in which
the Company currently operates; and (vi)
approximately $2 million for general
corporate purposes.
6
New York Stock Exchange symbol..... "NUS"
Voting rights...................... The Class A Common Stock and Class B Common
Stock vote as a single class on all mat-
ters, except as otherwise required by law,
with each share of Class A Common Stock en-
titling its holder to one vote and each
share of Class B Common Stock entitling its
holder to ten votes. In all other respects
the holders of Class A Common Stock and the
holders of Class B Common Stock have equal
rights. All of the shares of Class B Common
Stock are owned by the Existing Stockhold-
ers. After consummation of the Offerings,
the Existing Stockholders will beneficially
own shares of Common Stock having approxi-
mately 98.8% of the combined voting power
of the outstanding shares of Common Stock
(approximately 98.7% if the Underwriters'
over-allotment options are exercised in
full).
Risk Factors....................... Prospective investors should consider cer-
tain risk factors and uncertainties rela-
tive to the Company, its business and the
Class A Common Stock offered hereby includ-
ing, without limitation, the Company's re-
liance on the independent distributors of
NSI, the potential effects of adverse pub-
licity, the potential negative impact of
distributor actions, government regulation
of direct selling activities, government
regulation of products and marketing, reli-
ance on certain distributors and the poten-
tial divergence of interests between dis-
tributors and the Company, the Company's
entry into new markets, the management of
the Company's growth, the possible adverse
effect on the Company of a change in the
status of Hong Kong, the Company's rela-
tionship with and reliance upon NSI and po-
tential conflicts of interest related
thereto, control by the Existing Stockhold-
ers and the anti-takeover effect of dual
classes of Common Stock, the impact on in-
come due to the Distributor Options, the
Company's reliance on and concentration of
outside manufacturers, the Company's reli-
ance on operations of and dividends and
distributions from its subsidiaries, issues
related to transfer pricing and taxation,
potential increases in distributor compen-
sation expense, seasonality and
cyclicality, product liability, competi-
tion, operations outside the United States,
currency risks, import restrictions, duties
and regulation of consumer goods, the anti-
takeover effects of certain charter, con-
tractual and statutory provisions, the ab-
sence of a public market for the Class A
Common Stock, factors related to the deter-
mination of the offering price, fluctua-
tions in the price of the Class A Common
Stock, the existence of shares eligible for
future sale into the Company's market for
the Class A Common Stock upon exercise of
the Distributor Options, employee stock bo-
nus awards and otherwise, dilution and the
absence of dividends.
7
- --------
(1) Assumes no exercise of the Underwriters' over-allotment options aggregating
1,140,000 shares of Class A Common Stock, which have been granted by the
Selling Stockholders.
(2) Includes: (i) 7,600,000 shares of Class A Common Stock being offered in the
Offerings and (ii) 1,250,000 shares of Class A Common Stock that have been
issued to the Existing Stockholders and will, prior to the Offerings, be
contributed to NSI and its affiliates (other than the Company) for issuance
to employees of NSI and its affiliates (other than the Company) as employee
stock bonus awards.
(3) All shares of Class B Common Stock are currently held by the Existing
Stockholders and each such share is convertible at any time into one share
of Class A Common Stock and converts automatically into one share of Class
A Common Stock (i) upon a transfer to a person other than an Existing
Stockholder and (ii) if the number of shares of Class B Common Stock
becomes less than 10% of the aggregate number of shares of Common Stock
outstanding. See "Description of Capital Stock--Common Stock--Conversion."
(4) Does not include: (i) 4,000,000 shares of Class A Common Stock reserved
for issuance pursuant to the 1996 Stock Incentive Plan, 109,000 shares of
which are reserved for issuance by the Company to its employees in
connection with employee stock bonus awards which are to be awarded
immediately prior to the Offerings; (ii) 1,605,000 shares of Class A Common
Stock that are held as treasury shares by the Company and are reserved for
issuance upon the exercise of options that will be granted to NSI
immediately prior to the Offerings and assigned to qualifying NSI
distributors in connection with the Offerings (the "Distributor Options");
and (iii) 267,500 shares of Class A Common Stock subject to a stock option
which has been granted to an executive officer of the Company. See
"Management--1996 Stock Incentive Plan," "Certain Relationships and Related
Transactions" and "Shares Eligible for Future Sale."
----------------
Nu Skin (R), Interior Design Nutritionals(TM), IDN (R), a logo consisting of
an image of a gold fountain with the words "Nu Skin" below it, and a logo
consisting of the stylized letters "IDN" in black and red are trademarks of Nu
Skin International, Inc. ("NSI") which are licensed to the Company. The
italicized product names used in this Prospectus are product names and also, in
certain cases, trademarks and are the property of NSI. All other tradenames and
trademarks appearing in this Prospectus are the property of their respective
holders. See "Business--Relationship with NSI--Trademark/Tradename License
Agreements" and "--Licensing and Sales Agreements." The principal executive
offices of the Company are located at 75 West Center Street, Provo, Utah 84601,
and the Company's telephone number is (801) 345-6100.
In this Prospectus, references to "dollars" and "$" are to United States
dollars, and the terms "United States" and "U.S." mean the United States of
America, its states, territories, possessions and all areas subject to its
jurisdiction, and references to "yen" and "(Yen)" are to Japanese yen.
8
SUMMARY COMBINED FINANCIAL AND OTHER INFORMATION
The following tables set forth summary combined, pro forma and other
financial information of the Company.
NINE MONTHS
YEAR ENDED ENDED
YEAR ENDED SEPTEMBER 30, DECEMBER 31, SEPTEMBER 30,
------------------------------------- ------------------- ------------------
1991 1992 1993 1994 1994(/1/) 1995 1995 1996
--------- -------- -------- -------- --------- -------- -------- --------
(IN THOUSANDS, EXCEPT PER SHARE DATA)
INCOME STATEMENT DATA:
Revenue................. $ 677 $ 42,919 $110,624 $254,637 $264,440 $358,609 $241,412 $471,312
Cost of sales........... 462 14,080 38,842 86,872 82,241 96,615 64,110 133,592
--------- -------- -------- -------- -------- -------- -------- --------
Gross profit............ 215 28,839 71,782 167,765 182,199 261,994 177,302 337,720
Operating expenses:
Distributor incen-
tives................. 130 14,659 40,267 95,737 101,372 135,722 91,893 175,149
Selling, general and
administrative........ 1,249 10,065 27,150 44,566 48,753 67,475 44,099 69,970
--------- -------- -------- -------- -------- -------- -------- --------
Operating income........ (1,164) 4,115 4,365 27,462 32,074 58,797 41,310 92,601
Other income (expense),
net.................... 3 160 133 443 (394) 511 (408) 1,530
--------- -------- -------- -------- -------- -------- -------- --------
Income before provision
for income taxes....... (1,161) 4,275 4,498 27,905 31,680 59,308 40,902 94,131
Provision for income
taxes.................. -- 1,503 417 10,226 10,071 19,097 13,170 33,810
--------- -------- -------- -------- -------- -------- -------- --------
Net income (loss)....... $ (1,161) $ 2,772 $ 4,081 $ 17,679 $ 21,609 $ 40,211 $ 27,732 $ 60,321
========= ======== ======== ======== ======== ======== ======== ========
PRO FORMA INCOME STATEMENT DATA(/2/)(/3/):
Revenue........................................... $358,609 $241,412 $471,312
Cost of sales..................................... 96,615 64,110 133,592
-------- -------- --------
Gross profit...................................... 261,994 177,302 337,720
Operating expenses:
Distributor incentives........................... 135,722 91,893 175,149
Selling, general and administrative.............. 74,318 49,231 75,102
-------- -------- --------
Operating income.................................. 51,954 36,178 87,469
Other income (expense), net(/4/) ................. (2,298) (3,217) 1,997
-------- -------- --------
Income before provision for income taxes.......... 49,656 32,961 89,466
Provision for income taxes........................ 19,049 12,644 32,502
-------- -------- --------
Net income (loss)................................. $ 30,607 $ 20,317 $ 56,964
======== ======== ========
Net income per share.............................. $ .36 $ .24 $ .67
Weighted average common shares outstanding(/5/)... 85,377 85,377 85,377
AS OF SEPTEMBER 30, 1996
-------------------------
ACTUAL AS ADJUSTED(/6/)
-------- ----------------
BALANCE SHEET DATA: (IN THOUSANDS)
Cash and cash equivalents............................. $ 81,079 $151,844
Working capital....................................... 60,828 57,309
Total assets.......................................... 168,907 270,441
Short term notes payable to stockholders.............. -- 66,893
Short term note payable to NSI........................ -- 10,000
Long term note payable to NSI......................... -- 10,000
Stockholders' equity.................................. 78,259 92,900
AS AS
AS OF SEPTEMBER 30, OF DECEMBER 31, OF SEPTEMBER 30,
------------------------------ ---------------- ------------------
1991 1992 1993 1994 1994 1995 1995 1996
----- ------ ------- ------- ------- ------- -------- --------
OTHER INFORMATION(/7/):
Number of active
distributors........... -- 33,000 106,000 152,000 170,000 236,000 224,000 331,000
Number of executive
distributors........... -- 649 2,788 5,835 6,083 7,550 7,519 17,809
9
- --------
(1) The information for the year ended December 31, 1994 is not included in the
Company's Combined Financial Statements included elsewhere in this
Prospectus. Such information has been presented for comparative purposes
only.
(2) The unaudited pro forma income statement data reflects the Reorganization,
the Offerings and the following adjustments as if such events had occurred
on January 1, 1995: (i) the amortization over a 20-year period of a $25.0
million payment, consisting of $5.0 million in cash and $20.0 million in
notes, to NSI for the exclusive rights to distribute NSI products in
Thailand, Indonesia, Malaysia, the Philippines, the PRC, Singapore and
Vietnam (the "License Fee"); (ii) the recognition by the Company of
additional management charges of $4.4 million per year relating to certain
support services provided to the Company by NSI and an NSI affiliate; (iii)
estimated annual compensation expense of $1.2 million related to the
employee stock bonus awards granted to employees of the Company, NSI and
its affiliates; (iv) adjustments for U.S. Federal and state income taxes as
if the Company had been taxed as a C corporation rather than as an S
corporation since inception; and (v) increased interest expense of $2.7
million relating to the issuance of $81.9 million of interest bearing S
distribution notes (the "S Distribution Notes"), approximately $15.0
million of which will be repaid from the proceeds of the Offerings, due and
payable within six months (8% interest per annum) to the Existing
Stockholders in respect of the earned and undistributed taxable S
corporation earnings and capital at September 30, 1996, that would have
been distributed had the Company's S corporation status been terminated on
September 30, 1996.
(3) The unaudited pro forma income statement data does not reflect the
estimated non-cash compensation expense of $21.1 million in connection with
the one-time grant of the Distributor Options at an exercise price of 25%
of the initial public offering price. The granting and vesting of the
Distributor Options will be conditioned upon distributor performance under
the Global Compensation Plan and the NSI 1996 Distributor Stock Option
Plan. The vesting of the Distributor Options is scheduled to occur on
December 31, 1997. The Company will record distributor stock incentive
expense for these non-employee stock options. See "Certain Relationships
and Related Transactions" and "Shares Eligible for Future Sale."
(4) Other pro forma income and expense includes: (i) increased interest expense
of $2.7 million for the year ended December 31, 1995 and for the nine
months ended September 30, 1995, relating to the issuance of $81.9 million
of S Distribution Notes (approximately $15.0 million of which will be
repaid from the proceeds of the Offerings); (ii) increased interest expense
of $0.9 million, $0.7 million and $0.1 million for the year ended December
31, 1995 and for the nine months ended September 30, 1995 and 1996,
respectively, relating to the issuance of $20.0 million in notes as partial
payment of the License Fee payable to NSI; and (iii) increased interest
income of $0.8 million, $0.6 million and $0.6 million for the year ended
December 31, 1995 and for the nine months ended September 30, 1995 and
1996, respectively, relating to an estimated $10.0 million note receivable
from NSI as consideration for the Distributor Options.
(5) Reflects 80,250,000 shares of Common Stock and Common Stock equivalents
outstanding after giving effect to the Reorganization, increased by the
sale of 4,750,000 shares of Class A Common Stock, the award of 109,000
shares of Common Stock to employees of the Company and an option granted to
an executive officer of the Company to purchase 267,500 shares of Class A
Common Stock. Supplemental income per share, calculated as if $25.0 million
of the proceeds from the Offerings were used to repay notes payable, had a
dilutive effect of less than 2%, and therefore is not presented.
(6) The as adjusted balance sheet data as of September 30, 1996 reflects
estimated deferred compensation expense and additional paid-in capital of
$21.1 million in connection with the one-time grant of the Distributor
Options. The as adjusted balance sheet data also reflects: (i) the sale of
4,750,000 shares of Class A Common Stock pursuant to the Offerings; (ii)
the issuance of $81.9 million of S Distribution Notes to the Selling
Stockholders; (iii) a $15.0 million partial payment of the S Distribution
Notes from the proceeds of the Offerings; (iv) $20.0 million in notes
payable to NSI, consisting of a $10 million short-term note due on January
15, 1997 and a $10 million long-term note due on January 15, 1998, which
will be issued as partial payment of the $25.0 million License Fee to NSI;
(v) an estimated $10.0 million note receivable from NSI, issued by NSI as
partial consideration for the Distributor Options; (vi) estimated deferred
compensation and additional paid-in capital of $4.8 million, which
represents the estimated compensation expense related to the employee stock
bonus awards granted to employees of the Company, NSI and its affiliates
which vest over a period of four years; and (vii) the recognition of a
deferred tax asset of $5.8 million relating to adjustments for U.S. Federal
and state income taxes as if the Company had been taxed as a C corporation
rather than as an S corporation since inception. No adjustment has been
made to give effect to the Company's earned and undistributed taxable S
corporation earnings for the period from October 1, 1996 through the S
Termination Date (as defined herein). The Company anticipates the increase
in the S Distribution Notes to be between approximately $10.0 million and
$15.0 million. See "The Reorganization and S Corporation Distribution." The
Company estimates that, at the Offerings, it will reserve between $60.0
million and $70.0 million of cash on hand for repayment of the S
Distribution Notes. The balance of the S Distribution Notes will be repaid
from cash generated by operations.
(7) Active distributors are those distributors who are resident in the
countries in which the Company operates and who have purchased products
during the three months ended as of the date indicated, rounded to the
nearest thousand. An executive distributor is an active distributor who has
submitted a qualifying letter of intent to become an executive distributor,
achieved specified personal and group sales volumes for a four month period
and maintained such specified personal and group sales volumes thereafter.
10
RISK FACTORS
An investment in the Class A Common Stock involves special considerations
and significant risks, including, but not limited to, those discussed or
referred to below. Prospective investors should carefully consider the
following risks and information in conjunction with the other information
contained in this Prospectus before purchasing shares of Class A Common Stock.
RELIANCE UPON INDEPENDENT DISTRIBUTORS OF NSI
The Company distributes its products exclusively through independent
distributors who have contracted directly with NSI to become distributors.
Consequently, the Company does not contract directly with distributors but
licenses its distribution system and distributor force from NSI. Distributor
agreements with NSI are voluntarily terminable by distributors at any time.
The Company's revenue is directly dependent upon the efforts of these
independent distributors, and any growth in future sales volume will require
an increase in the productivity of these distributors and/or growth in the
total number of distributors. As is typical in the direct selling industry,
there is turnover in distributors from year to year, which requires the
sponsoring and training of new distributors by existing distributors to
maintain or increase the overall distributor force and motivate new and
existing distributors. The Company experiences seasonal decreases in
distributor sponsoring and product sales in some of the countries in which the
Company operates because of local holidays and customary vacation periods. The
size of the distribution force can also be particularly impacted by general
economic and business conditions and a number of intangible factors such as
adverse publicity regarding the Company or NSI, or the public's perception of
the Company's products, product ingredients, NSI's distributors or direct
selling businesses in general. Historically, the Company has experienced
periodic fluctuations in the level of distributor sponsorship (as measured by
distributor applications). However, because of the number of factors that
impact the sponsoring of new distributors, and the fact that the Company has
little or no control over the level of sponsorship of new distributors, the
Company cannot predict the timing or degree of those fluctuations. There can
be no assurance that the number or productivity of the Company's distributors
will be sustained at current levels or increased in the future. In addition,
the number of distributors as a percent of the population in a given country
or market could theoretically reach levels that become difficult to exceed due
to the finite number of persons inclined to pursue a direct selling business
opportunity. This is of particular concern in Taiwan, where industry sources
have estimated that up to 10% of the population is already involved in some
form of direct selling.
Since distributor agreements are entered into between NSI and distributors,
all of the distributors who generate revenue for the Company are distributors
of NSI. See "--Relationship with and Reliance on NSI; Potential Conflicts of
Interest." Because of this fact, the Company cannot control who becomes a
distributor. In addition, because distributors are independent contractors of
NSI, neither NSI nor the Company is in a position to provide the same level of
direction, motivation and oversight as either would with respect to its own
employees. Although NSI has a compliance department responsible for the
enforcement of the policies and procedures that govern distributor conduct, it
can be difficult to enforce these policies and procedures because of the large
number of distributors and their independent status, as well as the impact of
certain resale price maintenance and other regulations that limit the ability
of NSI and the Company to monitor and control the sales practices of
distributors.
POTENTIAL EFFECTS OF ADVERSE PUBLICITY
The size of the distribution force and the results of the Company's
operations can be particularly impacted by adverse publicity regarding the
Company or NSI, including publicity regarding the legality of the Company's
distribution system, the quality of the Company's products and product
ingredients, regulatory investigations of the Company and its products,
distributor actions and the public's perception of NSI's distributors and
direct selling businesses generally.
11
In 1991 and 1992, NSI was the subject of investigations by various
regulatory agencies of eight states. All of the investigations were concluded
satisfactorily. However, the publicity associated with the investigations
resulted in a material adverse impact to NSI's results of operations. The
Company has not been subject to investigations in Asia, however, the denial by
the Malaysian government in 1995 of the Company's business permits due to
distributor action resulted in adverse publicity for the Company. There can be
no assurance that the Company will not be subject to adverse publicity in the
future as a result of similar regulatory investigations, similar distributor
actions or other factors or that such adverse publicity will not have a
material adverse effect on the Company's business or results of operations.
See "--Government Regulation of Direct Selling Activities," "--Government
Regulation of Products and Marketing" and "--Entering New Markets."
POTENTIAL NEGATIVE IMPACT OF DISTRIBUTOR ACTIONS
Distributor actions can negatively impact the Company and its products. For
example, in October 1995, the Company's business permit applications were
denied by the Malaysian government as the result of activities by certain NSI
distributors before required government approvals could be secured. NSI
subsequently terminated the distributorship rights of some of the distributors
involved and elected to withdraw from the Malaysian market for a period of
time. The denial by the Malaysian government of the Company's business permit
application resulted in adverse publicity for the Company. Distributor
activities in other countries in which the Company has not commenced
operations may similarly result in an inability to secure, or delay in
securing required regulatory and business permits. See "Business--New Market
Opportunities." In addition, the publicity resulting from such distributor
activities and other distributor activities such as inappropriate earnings
claims and product representations by distributors can make the sponsoring and
retaining of distributors more difficult, thereby negatively impacting sales.
See "--Potential Effects of Adverse Publicity." Furthermore, the Company's
business and results of operations could be adversely affected if NSI
terminates a significant number of distributors or certain distributors who
play a key role in the Company's distribution system. There can be no
assurance that these or other distributor actions will not have a material
adverse effect on the Company's business or results of operations.
GOVERNMENT REGULATION OF DIRECT SELLING ACTIVITIES
Direct selling activities are regulated by various governmental agencies.
These laws and regulations are generally intended to prevent fraudulent or
deceptive schemes, often referred to as "pyramid" or "chain sales" schemes,
that promise quick rewards for little or no effort, require high entry costs,
use high pressure recruiting methods and/or do not involve legitimate
products. In Japan, the Company's distribution system is regulated under the
"Door-to-Door" Sales Law, which requires the submission of specific
information concerning the Company's business and products and which provides
certain cancellation and cooling-off rights for consumers and new
distributors. Management has been advised by counsel that in some respects
Japanese laws are becoming more restrictive with respect to direct selling in
Japan. In Taiwan, the Fair Trade Law (and the Enforcement Rules and
Supervisory Regulations of Multi-Level Sales) requires the Company to comply
with registration procedures and also provides distributors with certain
rights regarding cooling-off periods and product returns. The Company also
complies with South Korea's strict Door-to-Door Sales Act, which requires,
among other things, the regular reporting of revenue, the registration of
distributors together with the issuance of a registration card, and the
maintaining of a current distributor registry. This law also limits the amount
of sponsoring bonuses that a registered multi-level marketing company can pay
to its distributors to 35% of revenue in a given month.
As is the case with most network marketing companies, NSI and the Company
have from time to time received inquiries from various government regulatory
authorities regarding the nature of their business and other issues such as
compliance with local business opportunity and securities laws. Although to
date none of these inquiries has resulted in a finding materially adverse to
the Company or NSI, adverse publicity resulting from inquiries into NSI's
operations by certain government agencies in the early 1990's, stemming in
part out of alleged inappropriate product and earnings claims by distributors,
materially adversely affected NSI's business and results of operations. There
can be no assurance that the Company or NSI will not face similar inquiries in
the future which, either as a result of findings adverse to the Company or NSI
or as a result of adverse publicity resulting from the instigation of such
inquiries, could have a material adverse effect on the Company's business and
results of operations. See "--Potential Effects of Adverse Publicity."
12
Based on research conducted in opening its existing markets (including
assistance from local counsel), the nature and scope of inquiries from
government regulatory authorities and the Company's history of operations in
such markets to date, the Company believes that its method of distribution is
in compliance in all material respects with the laws and regulations relating
to direct selling activities of the countries in which the Company currently
operates. Even though management believes that laws governing direct selling
are generally becoming more permissive in certain Asian countries, many
countries, including Singapore, one of the Company's potential markets,
currently have laws in place that would prohibit the Company and NSI from
conducting business in such markets. There can be no assurance that the
Company will be allowed to conduct business in each of the new markets or
continue to conduct business in each of its existing markets licensed from
NSI. See "--Entering New Markets."
GOVERNMENT REGULATION OF PRODUCTS AND MARKETING
The Company and NSI are subject to or affected by extensive governmental
regulations not specifically addressed to network marketing. Such regulations
govern, among other things, (i) product formulation, labeling, packaging and
importation, (ii) product claims and advertising, whether made by the Company,
NSI or NSI distributors, (iii) fair trade and distributor practices, and (iv)
taxes, transfer pricing and similar regulations that affect foreign taxable
income and customs duties.
Based on the Company's experience and research (including assistance from
counsel) and the nature and scope of inquiries from government regulatory
authorities, the Company believes that it is in material compliance with all
regulations applicable to the Company. Despite this belief, either the Company
or NSI could be found not to be in material compliance with existing
regulations as a result of, among other things, the considerable
interpretative and enforcement discretion given to regulators or misconduct by
independent distributors. In 1994, NSI and three of its distributors entered
into a consent decree with the Federal Trade Commission (the "FTC") with
respect to its investigation of certain product claims and distributor
practices, pursuant to which NSI paid approximately $1 million to settle the
FTC investigation. NSI is currently in discussions with the FTC regarding its
compliance with such consent decree and other product issues raised by the
FTC. There can be no assurances that the Company will not be subject to
similar inquiries and regulatory investigations or disputes and the effects of
any adverse publicity resulting therefrom. Any assertion or determination that
either the Company, NSI or any NSI distributors are not in compliance with
existing laws or regulations could potentially have a material adverse effect
on the Company's business and results of operations. In addition, in any
country or jurisdiction, the adoption of new laws or regulations or changes in
the interpretation of existing laws or regulations could generate negative
publicity and/or have a material adverse effect on the Company's business and
results of operations. The Company cannot determine the effect, if any, that
future governmental regulations or administrative orders may have on the
Company's business and results of operations. Moreover, governmental
regulations in countries where the Company plans to commence or expand
operations may prevent, delay or limit market entry of certain products or
require the reformulation of such products. Regulatory action, whether or not
it results in a final determination adverse to the Company or NSI, has the
potential to create negative publicity, with detrimental effects on the
motivation and recruitment of distributors and, consequently, on the Company's
sales and earnings. See "--Potential Effects of Adverse Publicity" and "--
Entering New Markets."
RELIANCE ON CERTAIN DISTRIBUTORS; POTENTIAL DIVERGENCE OF INTERESTS BETWEEN
DISTRIBUTORS AND THE COMPANY
The Company's Global Compensation Plan allows distributors to sponsor new
distributors. The sponsoring of new distributors creates multiple distributor
levels in the network marketing structure. Sponsored distributors are referred
to as " downline" distributors within the sponsoring distributor's "downline
network." If downline distributors also sponsor new distributors, additional
levels of downline distributors are created, with the new downline
distributors also becoming part of the original sponsor's "downline network."
As a result of this network marketing distribution system, distributors
develop relationships with other distributors, both within their own countries
and internationally. The Company believes that its revenue is generated from
thousands of distributor networks. However, the Company estimates that
approximately 300 distributorships comprise NSI's
13
two highest executive distributor levels, which distributorships have
developed the most extensive downline networks and distributor relationships.
Consequently, the loss of such a high-level distributor or another key
distributor together with a group of leading distributors in such
distributor's downline network, or the loss of a significant number of
distributors for any reason, could adversely affect sales of the Company's
products, impair the Company's ability to attract new distributors and
adversely impact earnings.
Under the Global Compensation Plan, a distributor receives commissions based
on products sold by the distributor and by participants in the distributor's
worldwide downline network, regardless of the country in which such
participants are located. The Company, on the other hand, receives revenues
based almost exclusively on the volume of products sold within the Company's
markets. So, for example, if a distributor located in Japan sponsors a
distributor in Europe, the Japanese distributor could receive commissions
based on the sales made by the European distributor, but the Company would not
receive any revenue since the products would have been sold outside of the
Company's markets. The interests of the Company and distributors therefore
diverge somewhat in that the Company's primary objective is to maximize the
amount of products sold within the Company's markets, while the distributors'
objective is to maximize the amount of products sold by the participants in
the distributors' worldwide downline networks. The Company and NSI have
observed that the commencement of operations in a new country tends to
distract the attention of distributors from the established markets for a
period of time while key distributors begin to build their downline networks
within the new country. NSI is currently contemplating opening operations in
additional countries outside of the Company's markets. To the extent
distributors focus their energies on establishing downline networks in these
new countries, and decrease their focus on building organizations within the
Company's markets, the Company's business and results of operations could be
adversely affected. Furthermore, the Company itself is currently contemplating
opening new markets. In the event distributors focus on these new markets,
sales in existing markets might be adversely affected. There can be no
assurance that these new markets will develop or that any increase in sales in
new markets will not be more than offset by a decrease in sales in the
existing markets.
ENTERING NEW MARKETS
As part of its growth strategy, the Company has acquired from NSI the right
to act as NSI's exclusive distribution vehicle in Thailand, Indonesia,
Malaysia, the Philippines, the PRC, Singapore and Vietnam. The Company has
undertaken a preliminary review of the laws and regulations to which its
operations would be subject in Thailand, the Philippines, Indonesia, Malaysia,
the PRC, Vietnam and Singapore. Given existing regulatory environments and
economic conditions, the Company's entrance into Singapore and Vietnam is not
anticipated in the short to mid-term. The Company currently intends, subject
to receipt of government approvals, to commence operations in Thailand in the
near future and has conducted preliminary investigations into the feasibility
of opening the other markets in the countries for which the Company has the
right to act as NSI's exclusive distributor. The regulatory and political
climate in these other markets is such that a replication of the Company's
current operating structure cannot be guaranteed. Because the Company's
personal care and nutritional product lines are positioned as premium product
lines, the market potential for the Company's product lines in relatively less
developed countries, such as the PRC and Vietnam, remains to be determined.
Modifications to each product line may be needed to accommodate the market
conditions in each country, while maintaining the integrity of the Company's
products. No assurance can be given that the Company will be able to
successfully reformulate its product lines in any of its new markets to
attract local consumers.
Each of the proposed new markets will present additional unique difficulties
and challenges. In Thailand, for example, businesses which are more than 50%
owned by non-citizens are not permitted to operate unless they have an Alien
Business Permit, which is frequently difficult to obtain. Under the Treaty of
Amity and Economic Relations between Thailand and the United States (the
"Treaty of Amity") an Alien Business Permit is not required if a Thailand
business is owned by an entity organized in the United States, a majority of
whose owners are U.S. citizens or entities. From time to time, it has been
reported that certain Thailand government officials have considered supporting
the termination of the Treaty of Amity. There can be no assurance that the
Company will ever be able to obtain all of the necessary permits and approvals
to commence operations in Thailand. The Company could face particular
difficulties in commencing operations in Thailand if the Treaty of Amity were
terminated and the Company were forced to obtain an Alien Business Permit.
14
The PRC has also proven to be a particularly difficult market for foreign
corporations due to its extensive government regulation and the historical
political tenants of the PRC government. In order to enter the market in the
PRC, the Company may be required to create a joint venture enterprise with a
Chinese entity and to establish a local manufacturing presence, which will
entail a significant investment on the Company's part. The Company will likely
have to apply for licenses on a province by province basis and the
repatriation of the Company's profits will be subject to restrictions on
currency conversion and the fluctuations of the government controlled exchange
rate. In addition, because distribution systems are greatly fragmented, the
Company may be forced to use business models significantly different from
those used by the Company in more developed countries. The lack of a
comprehensive legal system and the uncertain and sporadic enforcement of
existing legislation and laws could also have an adverse effect on the
Company's proposed business in the PRC.
The other potential new markets also present significant regulatory,
political and economic obstacles to the Company. In Singapore, for example,
network marketing is currently illegal and is not permitted under any
circumstances. Although the Company believes that this restriction will
eventually be relaxed or repealed, no assurance can be given that such
regulation will not remain in place and that the Company will not be
permanently prevented from initiating sales in Singapore. In addition,
Malaysia has governmental guidelines that have the effect of limiting foreign
ownership of companies operating in Malaysia. There can be no assurance that
the Company will be able to properly structure Malaysian operations to comply
with this policy. In October of 1995, the Company's business permit
applications were denied by the Malaysian government as a result of activities
by certain NSI distributors. Therefore, the Company believes that although
significant opportunities exist to expand its operations into new markets,
there can be no assurance that these or other difficulties will not prevent
the Company from realizing the benefits of this opportunity.
MANAGING GROWTH
The Company has experienced rapid growth since it commenced operations in
1991. The management challenges imposed by this growth include entry into new
markets, growth in the number of employees and distributors, expansion of
facilities necessary to accommodate growth and additions and modifications to
the Company's product lines. To manage these changes effectively, the Company
may be required to hire additional management and operations personnel and to
improve its operational, financial and management systems. If the Company is
unable to manage growth effectively or hire or retain qualified personnel, the
Company's business and results of operations could be adversely affected.
POSSIBLE ADVERSE EFFECT ON THE COMPANY OF A CHANGE IN THE STATUS OF HONG KONG
The Company has offices and a portion of its operations in the British Crown
Colony of Hong Kong. Effective July 1, 1997, the exercise of sovereignty over
Hong Kong will be transferred from the Government of the United Kingdom of
Great Britain and Northern Ireland (the "United Kingdom") to the government of
the PRC pursuant to the Sino-British Joint Declaration on the Question of Hong
Kong (the "Joint Declaration") and Hong Kong will become a Special
Administrative Region (SAR) of the PRC. The Joint Declaration provides that
Hong Kong will be directly under the authority of the government of the PRC
but Hong Kong will enjoy a high degree of autonomy except in foreign and
defense affairs, and that Hong Kong will be vested with executive, legislative
and independent judicial power. The Joint Declaration also provides that the
current social and economic systems in Hong Kong will remain unchanged for 50
years after June 30, 1997 and that Hong Kong will retain the status of an
international financial center. Although sales in Hong Kong accounted for less
than 5% of the Company's revenues for the year ended December 31, 1995, Hong
Kong serves as the location for the Company's regional offices and an
important base of operations for many of the Company's most successful
distributors whose downline distributor networks extend into other Asian
markets. Any adverse effect on the social, political or economic systems in
Hong Kong resulting from this transfer could have a material adverse effect on
the Company's business and results of operations. Although the Company does
not anticipate any material adverse change in the business environment in Hong
Kong resulting from the 1997 transfer of sovereignty, the Company is
formulating contingency plans to transfer the Company's regional office to
another jurisdiction in the event that the Hong Kong business environment is
so affected.
15
RELATIONSHIP WITH AND RELIANCE ON NSI; POTENTIAL CONFLICTS OF INTEREST
Following the Reorganization, NSI will retain ownership and control of the
NSI trademarks, tradenames, the Global Compensation Plan, distributor lists
and related intellectual property and know-how (collectively, the "Licensed
Property"), and will license to the Company rights to use the Licensed
Property in certain markets. NSI and its affiliates currently operate in 15
countries, excluding the countries in which the Company currently operates,
and following the Offerings will continue to market and sell personal care and
nutritional products in these countries, as well as in additional countries
outside of the Company's markets, through the network marketing channel. Thus
the Company will not be able to use the Nu Skin name to expand into other
markets for which the Company does not currently have a license without first
obtaining additional licenses or other rights from NSI. There can be no
assurance that NSI will make any additional markets available to the Company
or that the terms of any new licenses from NSI will be acceptable to the
Company.
NSI has licensed to the Company, through the Subsidiaries, rights to
distribute NSI products and to use the Licensed Property in the Company's
markets, and an NSI affiliate, Nu Skin Management Group, Inc. ("NSIMG") will
provide management support services to the Company and the Subsidiaries,
pursuant to distribution, trademark/tradename license, licensing and sales,
and management services agreements with the Subsidiaries (collectively, the
"Operating Agreements"). The Company will rely on NSI for research,
development, testing, labeling and regulatory compliance for products sold to
the Company under the distribution agreements, and virtually all of the
Company's revenues will be derived from products and sales aids purchased from
NSI pursuant to these agreements. NSIMG will provide the Company with a
variety of management and consulting services, including, but not limited to,
management, legal, financial, marketing and distributor support/training,
public relations, international expansion, human resources, strategic
planning, product development and operations administration services. Each of
the Operating Agreements is for a term ending December 31, 2016, and is
subject to renegotiation after December 31, 2001, in the event that the
Existing Stockholders, on a combined basis, no longer beneficially own a
majority of the combined voting power of the outstanding shares of common
stock of the Company or of NSI. The Company will be almost completely
dependent on the Operating Agreements to conduct its business, and in the
event NSI is unable or unwilling to perform its obligations under the
Operating Agreements, or terminates the Operating Agreements as provided
therein, the Company's business and results of operations will be adversely
affected. See "Business--Relationship with NSI."
Upon the consummation of the Offerings, approximately 98.8% of the combined
voting power of the outstanding shares of Common Stock will be held by the
Existing Stockholders (approximately 98.7% if the Underwriters' overallotment
options are exercised in full). Consequently, the Existing Stockholders will
have the ability, acting in concert, to elect all directors of the Company and
approve any action requiring approval by a majority of the stockholders of the
Company. The Existing Stockholders also own, and following the Offerings will
continue to own, 100% of the outstanding shares of NSI. As a result of this
ownership, the Existing Stockholders will consider the short-term and the
long-term impact of all stockholder decisions on the consolidated financial
results of NSI and the Company. See "--Control by Existing Stockholders; Anti-
Takeover Effect of Dual Classes of Common Stock."
The Operating Agreements were approved by the present Board of Directors of
the Company, which is composed entirely of officers and shareholders of NSI.
It is expected that, subsequent to the closing of the Offerings, the
composition of the Board of Directors of the Company will be changed so that
at least two of its members will be persons unaffiliated with NSI. In
addition, most of the executive officers of the Company are also executive
officers of NSI. It is expected that a number of the Company's executive
officers will continue to spend a portion of their time on the affairs of NSI,
for which they will continue to receive compensation from NSI.
Prior to or concurrently with the Offerings, the Company will purchase from
NSI for $25 million the exclusive rights to distribute NSI products in
Thailand, Indonesia, Malaysia, the Philippines, the PRC, Singapore and
Vietnam. The Company will pay $15 million of this amount out of the proceeds
of the Offerings.
16
In view of the substantial relationships between the Company and NSI,
conflicts of interest may exist or arise with respect to existing and future
business dealings, including, without limitation, the relative commitment of
time and energy by the executive officers to the respective businesses of the
Company and NSI, potential acquisitions of businesses or properties, the
issuance of additional securities, the election of new or additional
directors, the payment of dividends by the Company, including the use of $15
million of the proceeds of the Offerings to repay a portion of the S
Distribution Notes. See "The Reorganization and S Corporation Distribution."
There can be no assurance that any conflicts of interest will be resolved in
favor of the Company. Under Delaware and Utah law, a person who is a director
of both the Company and NSI owes fiduciary duties to both corporations and
their respective shareholders. As a result, persons who are directors of both
the Company and NSI are required to exercise their fiduciary duties in light
of what they believe to be best for each of the companies and its
shareholders. See "Certain Relationships and Related Transactions."
CONTROL BY EXISTING STOCKHOLDERS; ANTI-TAKEOVER EFFECT OF DUAL CLASSES OF
COMMON STOCK
Because of the relationship between the Company and NSI, management elected
to structure the capitalization of the Company in such a manner as to minimize
the possibility of a change in control of the Company without the consent of
the Existing Stockholders. Consequently, the shares of Class B Common Stock
enjoy ten to one voting privileges over the shares of Class A Common Stock
until the outstanding shares of Class B Common Stock constitute less than 10%
of the total outstanding shares of Common Stock. Immediately following the
Offerings, the Existing Stockholders will collectively own 100% of the
outstanding shares of the Class B Common Stock representing approximately
98.8% of the combined voting power of the outstanding shares of Common Stock
(approximately 98.7% if the Underwriters' over-allotment options are exercised
in full). Accordingly, following completion of the Offerings, the Existing
Stockholders, acting fully or partially in concert, will be able to control
the election of the Board of Directors of the Company and thus the direction
and future operations of the Company without the supporting vote of any other
stockholder of the Company, including decisions regarding acquisitions and
other business opportunities, the declaration of dividends and the issuance of
additional shares of Class A Common Stock and other securities. NSI is a
privately-held company, all of the shares of which are owned by certain
Existing Stockholders of the Company. As long as the shareholders of NSI are
majority stockholders of the Company, assuming they act in concert, third
parties will not be able to obtain control of the Company through purchases of
shares of Class A Common Stock. See "Principal and Selling Stockholders" and
"Description of Capital Stock."
IMPACT ON INCOME DUE TO DISTRIBUTOR OPTION PROGRAM
The Company estimates a pre-tax non-cash compensation expense of $21.1
million in connection with the one-time grant of the Distributor Options at an
exercise price of 25% of the initial public offering price. This non-cash
compensation expense will result in a corresponding impact on net income and
net income per share. See "Shares Eligible for Future Sale."
RELIANCE ON AND CONCENTRATION OF OUTSIDE MANUFACTURERS
Virtually all the Company's products are sourced through NSI and are
produced by manufacturers unaffiliated with NSI. The Company currently has
little or no direct contact with these manufacturers. The Company's profit
margins and its ability to deliver its existing products on a timely basis are
dependent upon the ability of NSI's outside manufacturers to continue to
supply products in a timely and cost-efficient manner. Furthermore, the
Company's ability to enter new markets and sustain satisfactory levels of
sales in each market is dependent in part upon the ability of suitable outside
manufacturers to reformulate existing products, if necessary to comply with
local regulations or market environments, for introduction into such markets.
Finally, the development of additional new products in the future will
likewise be dependent in part on the services of suitable outside
manufacturers.
The Company currently acquires products or ingredients from sole suppliers
or suppliers that are considered by the Company to be the superior suppliers
of such ingredients. The Company believes that, in the event it is
17
unable to source any products or ingredients from its current suppliers, the
Company could produce such products or replace such products or substitute
ingredients without great difficulty or prohibitive increases in the cost of
goods sold. However, there can be no assurance that the loss of such a
supplier would not have a material adverse effect on the Company's business
and results of operations.
With respect to sales to the Company, NSI currently relies on two
unaffiliated manufacturers to produce approximately 70% and 80% of its
personal care and nutritional products, respectively. NSI has a written
agreement with the primary supplier of the Company's personal care products
that expires at the end of 1997. An extension to such contract is currently
being negotiated. NSI does not currently have a written contract with the
primary supplier of the Company's nutritional products. The Company believes
that in the event that NSI's relationship with any of its key manufacturers is
terminated, NSI will be able to find suitable replacement manufacturers.
However, there can be no assurance that the loss of either manufacturer would
not have a material adverse effect on the Company's business and results of
operations.
RELIANCE ON OPERATIONS OF AND DIVIDENDS AND DISTRIBUTIONS FROM SUBSIDIARIES
The Company is a holding company without operations of its own or
significant assets other than ownership of 100% of the capital stock of each
of the Subsidiaries. Accordingly, an important source of the Company's income
will be dividends and other distributions from the Subsidiaries. Each of the
Subsidiaries has its operations in a country other than the United States, the
country in which the Company is organized. In addition, each of the
Subsidiaries receives its revenues in the local currency of the country or
jurisdiction in which it is situated. As a consequence, the Company's ability
to obtain dividends or other distributions is subject to, among other things,
restrictions on dividends under applicable local laws and regulations, and
foreign currency exchange regulations of the country or jurisdictions in which
the Subsidiaries operate. The Subsidiaries' ability to pay dividends or make
other distributions to the Company is also subject to their having sufficient
funds from their operations legally available for the payment of such
dividends or distributions that are not needed to fund their operations,
obligations or other business plans. Because the Company will be a stockholder
of each of the Subsidiaries, the Company's claims as such will generally rank
junior to all other creditors of and claims against the Subsidiaries. In the
event of a Subsidiary's liquidation, there may not be assets sufficient for
the Company to recoup its investment in such Subsidiary.
TAXATION RISKS AND TRANSFER PRICING
After the Reorganization, the Company will be subject to taxation in the
United States, where it is incorporated, at a statutory corporate federal tax
rate of 35.0% plus any applicable state income taxes. In addition, each
Subsidiary will be subject to taxation in the country in which it operates,
currently ranging from a statutory tax rate of 57.9% in Japan to 16.5% in Hong
Kong. The Company will be eligible for foreign tax credits in the U.S. for the
amount of foreign taxes actually paid in a given period. In the event that the
Company's operations in high tax jurisdictions such as Japan grow
disproportionately to the rest of the Company's operations, the Company will
be unable to fully utilize its foreign tax credits in the U.S., which could,
accordingly, result in the Company paying a higher overall effective tax rate
on its worldwide operations.
Because the Subsidiaries operate outside of the United States, the Company
is subject to the jurisdiction of numerous foreign tax authorities. In
addition to closely monitoring the Subsidiaries locally based income, these
tax authorities regulate and restrict various corporate transactions,
including intercompany transfers. The Company believes that the tax
authorities in Japan and South Korea are particularly active in challenging
the tax structures of foreign corporations and their intercompany transfers.
Although the Company believes that its tax and transfer pricing structures are
in compliance in all material respects with the laws of every jurisdiction in
which it operates, no assurance can be given that these structures will not be
challenged by foreign tax authorities or that such challenges will not have a
material adverse effect on the Company's business or results of operations.
18
INCREASE IN DISTRIBUTOR COMPENSATION EXPENSE
Under the Licensing and Sales Agreements (the "Licensing and Sales
Agreements") between each of the Subsidiaries and NSI, the Company has agreed
to incur a distributor commission expense of 42% of commissionable product
sales (with the exception of South Korea where, due to government regulations,
the Company uses a formula based upon a maximum payout of 35% of
commissionable product sales). The Licensing and Sales Agreements provide that
the Company is to satisfy this obligation by paying commissions owed to local
distributors. In the event that these commissions exceed 42% of commissionable
product sales, the Company is entitled to receive the difference from NSI. In
the event that the commissions paid are lower than 42%, the Company must pay
the difference to NSI. Under this formulation, the Company's total commission
expense is fixed at 42% of commissionable product sales in each country
(except for South Korea). The 42% figure has been set on the basis of NSI's
experience over the past seven years during which period actual commissions
paid in a given year together with the cost of administering the Global
Compensation Plan have ranged between 41% and 43% of commissionable product
sales for such year (averaging approximately 42%). In the event that actual
commissions payable to distributors from sales in the Company's markets vary
from these historical results, whether as a result of changes in distributor
behavior or changes to the Global Compensation Plan or in the event that NSI's
cost of administering the Global Compensation Plan increases or decreases, the
Licensing and Sales Agreements provide that the intercompany settlement figure
may be modified to more accurately reflect actual results. This could result
in the Company becoming obligated to make greater settlement payments to NSI
under the Licensing and Sales Agreements. Such additional payments could
adversely affect the Company's results of operations. Because the Company
licenses the right to use the Global Compensation Plan from NSI, the structure
of the plan, including commission rates, is under the control of NSI.
SEASONALITY AND CYCLICALITY
The Company's business is impacted by general seasonal trends common to the
direct selling channel in Asia. Seasonal fluctuations experienced by the
Company have generally been related to the occurrence of major cultural events
and vacation patterns in each of the Company's markets. For example, the
Company has at times experienced a modest decline in revenue in Japan, Taiwan
and Hong Kong during the local New Year celebrations, which fall in the
Company's first quarter. Management also anticipates a modest decline in
revenue for the first quarter in South Korea, when a similar New Year
celebration occurs. In Japan, the Company has also historically experienced a
slight decline in revenue during August, when many of the local distributors
traditionally take vacations.
The Company's results of operations have been subject to cyclical
variations. Generally, the Company has experienced rapid revenue growth in
each new market from the commencement of operations. In Japan, Taiwan and Hong
Kong, the initial rapid revenue growth was followed by a short period of
stable or declining revenue followed by renewed growth fueled by new product
introductions, an increase in the number of active distributors and increased
distributor productivity. In addition, the Company has also experienced
variations on a quarterly basis in its results of operations, as new products
are introduced and new markets are opened. No assurances can be given that the
Company's revenue growth rate in South Korea, which commenced operations in
February 1996, or in new markets where operations have not commenced, will
follow this pattern. While neither seasonal nor cyclical variations have
materially affected the Company's results of operations to date, the Company
believes that its rapid growth may have overshadowed these factors.
Accordingly, there can be no assurance that seasonal or cyclical variations
will not materially adversely affect the Company's results of operations in
the future.
PRODUCT LIABILITY
The Company may be subject, under applicable laws and regulations, to
liability for loss or injury caused by its products. The Company's
Subsidiaries are currently covered for product liability claims to the extent
of and under insurance programs maintained by NSI for their benefit and for
the benefit of its affiliates purchasing NSI products and will continue to be
so covered after the Offerings. Accordingly, NSI maintains a policy covering
19
product liability claims for itself and its affiliates with a $1 million per
claim and $1 million annual aggregate limit and an umbrella policy with a $40
million per claim and annual aggregate limit. Although the Company has not
been the subject of material product liability claims and the laws and
regulations providing for such liability in the Company's markets appear to
have been seldom utilized, no assurance can be given that the Company may not
be exposed to future product liability claims, and, if any such claims are
successful, there can be no assurance that the Company will be adequately
covered by insurance or have sufficient resources to pay such claims. The
Company does not currently maintain its own product liability policy.
COMPETITION
The markets for personal care and nutritional products are large and
intensely competitive. The Company competes directly with companies that
manufacture and market personal care and nutritional products in each of the
Company's product lines. The Company competes with other companies in the
personal care and nutritional products industry by emphasizing the value and
premium quality of the Company's products and the convenience of the Company's
distribution system. Many of the Company's competitors have much greater name
recognition and financial resources than the Company. In addition, personal
care and nutritional products can be purchased in a wide variety of channels
of distribution. While the Company believes that consumers appreciate the
convenience of ordering products from home through a sales person or through a
catalog, the buying habits of many consumers accustomed to purchasing products
through traditional retail channels are difficult to change. The Company's
product offerings in each product category are also relatively small compared
to the wide variety of products offered by many other personal care and
nutritional product companies. There can be no assurance that the Company's
business and results of operations will not be affected materially by market
conditions and competition in the future.
The Company also competes with other direct selling organizations, some of
which have longer operating histories and higher visibility name recognition
and financial resources. The leading network marketing company in the
Company's markets is Amway Corporation and its affiliates. The Company
competes for new distributors on the basis of the Global Compensation Plan and
its premium quality products. Management envisions the entry of many more
direct selling organizations into the marketplace as this channel of
distribution expands over the next several years. The Company has been advised
that certain large, well-financed corporations are planning to launch direct
selling enterprises which will compete with the Company in certain of its
product lines. There can be no assurance that the Company will be able to
successfully meet the challenges posed by this increased competition.
The Company competes for the time, attention and commitment of its
independent distributor force. Given that the pool of individuals interested
in the business opportunities presented by direct selling tends to be limited
in each market, the potential pool of distributors for the Company's products
is reduced to the extent other network marketing companies successfully
recruit these individuals into their businesses. Although management believes
that the Company offers an attractive business opportunity, there can be no
assurance that other network marketing companies will not be able to recruit
the Company's existing distributors or deplete the pool of potential
distributors in a given market.
OPERATIONS OUTSIDE THE UNITED STATES; CURRENCY RISKS
Virtually all of the Company's assets and operations are located, and all of
its revenues are derived from, operations outside the United States. The
Company's operations may be materially and adversely affected by economic,
political and social conditions in the countries in which it operates. A
change in policies by any government in the Company's markets could adversely
affect the Company and its operations through, among other things, changes in
laws, rules or regulations, or the interpretation thereof, confiscatory
taxation, restrictions on currency conversion, currency repatriation or
imports, or the expropriation of private enterprises. Although the general
trend in these countries has been toward more open markets and trade policies
and the fostering of private business and economic activity, no assurance can
be given that the governments in these countries will continue to pursue such
policies or that such policies will not be significantly altered in future
periods. This could
20
be especially true in the event of a change in leadership, social or political
disruption or upheaval, or unforeseen circumstances affecting economic,
political or social conditions or policies. The Company is aware of news
releases in South Korea, for example, reporting comments by political figures
proposing restrictions on foreign direct sellers designed to protect the
market share of local companies. There can be no assurance that such
activities, or other similar activities in the Company's markets, will not
result in passage of legislation or the enactment of policies which could
materially adversely affect the Company's operations in these markets. In
addition, the Company's ability to expand its operations into the new markets
for which it has received an exclusive license to distribute NSI products will
directly depend on its ability to secure the requisite government approvals
and comply with the local government regulations in each of those countries.
The Company has in the past experienced difficulties in obtaining such
approvals as a result of certain actions taken by its distributors, and no
assurance can be given that these or similar problems will not prevent the
Company from commencing operations in those countries. See "Risk Factors--
Entering New Markets."
The Company purchases virtually all of its products from NSI through Nu Skin
Hong Kong. Nu Skin Hong Kong pays for its purchases from NSI under a regional
distribution agreement in U.S. dollars, while the other Subsidiaries pay for
their purchases from Nu Skin Hong Kong under wholesale distribution agreements
in their local currency. Nu Skin Hong Kong therefore bears significant
currency exchange risk as a result of purchases from NSI on behalf of the
Subsidiaries. Fluctuations in currency exchange rates, particularly those
caused by an increase in the value of the U.S. dollar, could have a material
adverse effect on the Company's financial position, results of operations and
cash flows. The Company reduces its exposure to fluctuations in foreign
exchange rates by creating offsetting positions through the use of foreign
currency exchange contracts. The Company currently does not use such financial
instruments for trading or speculative purposes. The Company regularly
monitors its foreign currency risks and periodically takes measures to reduce
the impact of foreign exchange fluctuations on the Company's operating
results. See "Management's Discussion and Analysis of Financial Condition and
Results of Operations--Currency Fluctuation and Exchange Rate Information."
IMPORT RESTRICTIONS, DUTIES AND REGULATION OF CONSUMER GOODS
With the exception of a small percentage of revenues in Japan, virtually all
of the Company's sales historically have been derived from products purchased
from NSI. All of those products historically have been imported into the
countries in which they were ultimately sold. The countries in which the
Company currently conducts business impose various legal restrictions on
imports. In most cases, permits or licenses are required to import particular
types of goods, including nutritional supplements and personal care products.
Duties of varying amounts are imposed based on the values or quantities of the
goods imported. In certain countries and jurisdictions, cosmetic and
nutritional products are subject to significant import duties. Other products
that the Company imports, notably products in the personal care line, may be
subject to health and safety regulations. Certain products in the nutritional
line are also subject to governmental regulation regarding food and drugs,
which regulations have had the effect of limiting the Company's ability to
sell some of its products in some of its countries and jurisdictions. Certain
of the Company's products which may be deemed in certain countries to be
"pharmaceutical" in nature may not be sold through network marketing channels
in those countries. The Company has not experienced any difficulty maintaining
its import licenses but has experienced complications regarding health and
safety and food and drug regulations for nutritional products. Many products
require reformulation to comply with local requirements. In addition, new
regulations could be adopted or any of the existing regulations could be
changed at any time in a manner that could have a material adverse effect on
the Company's business and results of operations. Duties on imports are a
component of national trade and economic policy and could be changed in a
manner that would be materially adverse to the Company's sales and its
competitive position compared to locally-produced goods, in particular in
countries such as Taiwan, where the Company's products are already subject to
high customs duties. In addition, import restrictions in certain countries and
jurisdictions limit the Company's ability to import products from NSI. In some
jurisdictions, such as the PRC, regulators may prevent the importation of NSI
products altogether. Present or future health and safety or food and drug
regulations could delay or prevent the introduction of new products into a
given country or marketplace or suspend or prohibit the sale of existing
products in such country or marketplace.
21
ANTI-TAKEOVER EFFECTS OF CERTAIN CHARTER, CONTRACTUAL AND STATUTORY PROVISIONS
The Board of Directors is authorized, subject to certain limitations, to
issue without further consent of the stockholders up to 25,000,000 shares of
preferred stock with rights, preferences and privileges designated by the
Board of Directors. See "Description of Capital Stock--Preferred Stock." In
addition, the Company's Certificate of Incorporation requires the approval of
66 2/3% of the outstanding voting power of the Class A Common Stock and the
Class B Common Stock to authorize or approve certain change of control
transactions. See "Description of Capital Stock--Voting Rights" and "--Mergers
and Other Business Combinations." The Company's Certificate of Incorporation
and Bylaws also contain certain provisions that limit the ability to call
special meetings of stockholders and the ability of stockholders to bring
business before or to nominate directors at a meeting of stockholders. See
"Description of Capital Stock--Other Charter and Bylaw Provisions." Pursuant
to the Company's 1996 Stock Incentive Plan, in the event of certain change of
control transactions the Board of Directors has the right, under certain
circumstances, to accelerate the vesting of options and the expiration of any
restriction periods on stock awards. See "Management--1996 Stock Incentive
Plan." Finally, the Operating Agreements with NSI and NSIMG are subject to
renegotiation after December 31, 2001 upon a change of control of the Company.
Any of these actions, provisions or requirements could have the effect of
delaying, deferring or preventing a change of control of the Company. See
"Business--Relationship with NSI--General Provisions."
ABSENCE OF PUBLIC MARKET FOR CLASS A COMMON STOCK; DETERMINATION OF OFFERING
PRICE; PRICE FLUCTUATIONS
Prior to the Offerings, there has been no public market for the Class A
Common Stock and there can be no assurance that an active trading market for
the Class A Common Stock will develop or continue after the closing of the
Offerings. Accordingly, no assurance can be given as to the liquidity of the
market for the Class A Common Stock or the price at which any sales of shares
of Class A Common Stock may occur in the future, which price will depend upon
the number of holders thereof and other factors beyond the control of the
Company, including the liquidity of the market for the Common Stock, investor
perceptions of the Company, changes in conditions or trends in the Company's
industry or publicly traded comparable companies, adverse publicity which the
Company or NSI may suffer and general economic and other conditions. The
initial public offering price per share of the Class A Common Stock will be
determined by negotiation among the Company, the Selling Stockholders and
representatives of the Underwriters, and may not be indicative of the market
price for the shares of Class A Common Stock after the closing of the
Offerings.
SHARES ELIGIBLE FOR FUTURE SALE
Sales of a substantial number of shares of Class A Common Stock in the
public market following the Offerings could adversely affect the market price
for the Class A Common Stock. See "Description of Capital Stock" and "Shares
Eligible for Future Sale."
DILUTION
The initial public offering price is expected to be approximately $21 per
share of Class A Common Stock. At this assumed offering price, investors
purchasing shares of Class A Common Stock in the Offerings will incur
immediate dilution of $20.19 per share. See "Dilution."
22
ABSENCE OF DIVIDENDS
The Company does not anticipate that, after the Offerings, any dividends
will be declared on Common Stock in the immediate future. The Company intends
from time to time to re-evaluate this policy based on its net income and its
alternative uses for retained earnings, if any. Any future declaration of
dividends will be subject to the discretion of the Board of Directors of the
Company and subject to certain limitations under the General Corporation Law
of the State of Delaware. The timing, amount and form of dividends, if any,
will depend, among other things, on the Company's results of operations,
financial condition, cash requirements and other factors deemed relevant by
the Board of Directors of the Company. There can be no assurance regarding the
timing or payment of any future dividends by the Company. It is anticipated
that any dividends, if declared, will be paid in U.S. dollars. See "Dividend
Policy."
23
THE REORGANIZATION AND S CORPORATION DISTRIBUTION
THE REORGANIZATION
Prior to the Offerings, the shareholders of Nu Skin Japan, Nu Skin Korea, Nu
Skin Taiwan, Nu Skin Hong Kong and Nu Skin Thailand will contribute their
shares of capital stock to the capital of the Company in a transaction
intended to qualify under Section 351 of the Code in exchange for shares of
the Company's Class B Common Stock (the "Reorganization"). Prior to the
Reorganization, all of the outstanding shares of capital stock of the
Subsidiaries and Nu Skin Thailand were held by the Existing Stockholders. The
Reorganization will result in each of the Subsidiaries and Nu Skin Thailand
becoming a wholly-owned subsidiary of the Company.
Nu Skin Hong Kong and Nu Skin Taiwan are Utah corporations, each operating
through branches in Hong Kong and Taiwan, respectively. Nu Skin Japan and Nu
Skin Korea are Japanese and South Korean corporations, respectively, and both
are domesticated corporations in Delaware. Nu Skin Thailand, which currently
has no operations, is a Thailand corporation and also a Delaware domesticated
corporation. Nu Skin Japan, Nu Skin Korea and Nu Skin Thailand each has dual
residence in the U.S. and its respective foreign jurisdiction, and each is
treated as a U.S. corporation for U.S. tax purposes and a Japan, South Korea
or Thailand corporation, respectively, for tax purposes in each such
jurisdiction. After the Reorganization, Nu Skin Hong Kong and Nu Skin Taiwan
will continue to be viewed as branches in Hong Kong and Taiwan, respectively,
and Nu Skin Japan, Nu Skin Korea and Nu Skin Thailand will continue to be
viewed as domestic corporations in Japan, South Korea and Thailand,
respectively.
The following chart illustrates the organizational structure of the Company
immediately after the Reorganization and the Offerings.
POST-REORGANIZATION AND THE OFFERINGS
[FLOWCHART APPEARS HERE]
S CORPORATION DISTRIBUTION
Prior to the Reorganization, each Subsidiary elected to be treated as an "S"
corporation under subchapter S of the Code and comparable state tax laws. As a
result of the Subsidiaries' S corporation status, the earnings of the
Subsidiaries since incorporation have been included in the taxable income of
the Existing Stockholders for Federal and certain state income tax purposes,
and the Subsidiaries have generally not been subject to U.S. Federal or state
income tax on such earnings. Prior to the consummation of the Offerings, the
Subsidiaries' S corporation status will be terminated (the "S Termination
Date"). Prior to the S Termination Date, the Company will declare a
distribution to the Existing Stockholders that will include all of the
Subsidiaries' previously earned and undistributed S corporation earnings
through the S Termination Date (the "S Corporation Distribution").
24
As of September 30, 1996, the Subsidiaries' aggregate undistributed taxable S
corporation earnings were $81.9 million. The Company estimates that the
Subsidiaries' aggregate undistributed taxable S corporation earnings will be
between $92.0 million and $97.0 million as of the S Termination Date (which
includes approximately $10 million to $15 million of the Company's earned and
undistributed taxable S corporation earnings for the period from October 1,
1996 through the S Termination Date). The S Corporation Distribution will be
distributed in the form of promissory notes due within six months of the S
Termination Date bearing interest at 8% per annum (S Distribution Notes). Upon
the consummation of the Offerings, approximately $15.0 million of the proceeds
from the Offerings will be used to pay a portion of the S Distribution Notes.
The Company estimates that, at the Offerings, it will reserve between $60.0
million and $70.0 million of cash on hand for repayment of the S Distribution
Notes. The balance of the S Distribution Notes will be repaid from cash
generated by operations. On and after the S Termination Date, the Company will
no longer be treated as an S corporation and, accordingly, will be fully
subject to Federal and state income taxes.
25
USE OF PROCEEDS
The net proceeds from the sale of shares of Class A Common Stock by the
Company are estimated to be approximately $91 million, based on an assumed
initial public offering price of $21 per share and after deducting estimated
underwriting discounts and offering expenses payable by the Company. The
Company will not receive any of the proceeds from the sale of shares of Class
A Common Stock by the Selling Stockholders, including from the exercise of the
Underwriters' over-allotment options. The Company has agreed to pay certain
expenses on behalf of the Selling Stockholders.
The Company anticipates applying the net proceeds of the Offerings as
follows: (i) approximately $40 million of such proceeds will be used, together
with operating income, to finance the planned entry of the Company into
Thailand, the Philippines, the PRC (where it is anticipated that the Company
will be required to invest in a manufacturing facility), Malaysia, Indonesia,
Vietnam and Singapore, which includes a $15 million payment to NSI (consisting
of a $5 million payment upon the consummation of the Offerings and a $10
million payment scheduled for January 15, 1997) as partial payment for the
exclusive rights to distribute NSI products in these countries and which may
include organizational costs, the initial build-up of inventory and other
start-up expenses; (ii) approximately $15 million will be used to repay a
portion of the S Distribution Notes; (iii) approximately $12 million of such
proceeds will be used for the introduction of new products in the Company's
markets; (iv) approximately $12 million of such proceeds will be used to
enhance the Company's technological infrastructure, including the expansion of
information systems hardware and support capabilities allowing the Company the
ability to better support distributors; (v) approximately $10 million of such
proceeds will be used to expand the Company's presence and operations in South
Korea, Japan and Taiwan, which will include the establishment of several
additional walk-in distributor centers in major cities; and (vi) the remainder
of such proceeds, approximately $2 million, will be used for general corporate
purposes, which may include additional capital expansion projects. Pending
such uses, the Company intends to invest the proceeds from the Offerings in
short-term, interest bearing, investment grade instruments.
DIVIDEND POLICY
The Company does not anticipate that, after the Offerings, any dividends
will be declared on Common Stock in the immediate future. The Company intends
from time to time to re-evaluate this policy based on its net income and its
alternative uses for retained earnings, if any. Any future declaration of
dividends will be subject to the discretion of the Board of Directors of the
Company and subject to certain limitations under the General Corporation Law
of the State of Delaware (the "DGCL"). The timing, amount and form of
dividends, if any, will depend, among other things, on the Company's results
of operations, financial condition, cash requirements and other factors deemed
relevant by the Board of Directors of the Company. It is anticipated that any
dividends, if declared, will be paid in U.S. dollars. The Company, as a
holding company, will be dependent on the earnings and cash flow of, and
dividends and distributions from, the Subsidiaries to pay any cash dividends
or distributions on the Class A Common Stock that may be authorized by the
Board of Directors of the Company. See "Certain United States Tax Consequences
to Non-United States Holders." Holders of Class A Common Stock and holders of
Class B Common Stock will share equally in any dividends declared by the Board
of Directors. See "Risk Factors--Absence of Dividends," "--Reliance on
Operations of and Dividends and Distributions from Subsidiaries" and
"Description of Capital Stock--Common Stock--Dividends" and "--Preferred
Stock."
26
CAPITALIZATION
The following table sets forth the cash and cash equivalents, the short-term
debt and capitalization of the Company on a combined basis as of September 30,
1996, and as adjusted as of that date to give effect to the Reorganization,
including (i) the S Corporation Distribution as if the Company's S corporation
status had terminated on such date; and (ii) $5.8 million of net deferred tax
assets that would have been recorded had the Company's S corporation status
been terminated on September 30, 1996, and as further adjusted to reflect the
sale by the Company of shares of Class A Common Stock in the Offerings, and
the application of the net proceeds therefrom. The information below should be
read in conjunction with the Combined Financial Statements and the related
notes thereto and "Management's Discussion and Analysis of Financial Condition
and Results of Operations" and pro forma financial statements included
elsewhere in this Prospectus.
AS OF SEPTEMBER 30, 1996
-----------------------------------------------------------
(IN THOUSANDS, EXCEPT SHARE AMOUNTS)
AS AS FURTHER
ACTUAL ADJUSTED ADJUSTED (/1/)(/2/)(/3/)
------- -------- ------------------------
Cash and cash
equivalents............ $81,079 $81,079 $151,844
======= ======= ========
Short-term notes
payable(/1/)(/4/)...... $ -- $81,893 $ 76,893
======= ======= ========
Long-term notes
payable(/1/)........... $ -- $ -- $ 10,000
Stockholders' equity:
Capital Stock of the
Subsidiaries prior to
the Reorganization.... 4,550(/5/) -- --
Preferred Stock, par
value $.001 per share,
25,000,000 shares
authorized,
no shares issued and
outstanding .......... -- -- --
Class A Common Stock,
par value $.001 per
share, 500,000,000
shares
authorized, no, no and
8,850,000 shares
issued and outstanding
actual, as adjusted
and as further
adjusted,
respectively(/7/)..... -- -- 9
Class B Common Stock,
par value $.001 per
share, 100,000,000
shares authorized, no,
80,250,000 and
74,545,000 shares
issued and outstanding
actual, as adjusted
and as further
adjusted,
respectively.......... -- 80(/5/) 75
Additional paid in
capital............... -- -- 126,692
Cumulative foreign
currency translation
adjustment............ (3,714) (3,714) (3,714)
Retained earnings...... 77,423 5,769(/6/) 5,769
Deferred compensation.. -- -- (25,931)
Note receivable from
NSI................... -- -- (10,000)
------- ------- --------
Total stockholders'
equity.............. 78,259 2,135 92,900
------- ------- --------
Total
capitalization...... $78,259 $ 2,135 $102,900
======= ======= ========
- --------
(1) Reflects the sale by the Company of 4,750,000 shares of Class A Common
Stock at an estimated offering price of $21 per share, less estimated
offering expenses of $9.0 million, including Underwriters' discounts. In
connection with the Offerings, the Company will pay the $25.0 million
License Fee to NSI, which consists of a $5 million cash payment upon the
consummation of the Offerings, a $10 million short-term note due on
January 15, 1997 and a $10 million long-term note due on January 15, 1998.
The $5 million cash payment and the $10 million short-term note will be
paid from the proceeds of the Offerings. Approximately $15.0 million of
the net proceeds of the Offerings will also be used to repay a portion of
the S Distribution Notes. The Company estimates that, at the Offerings, it
will reserve between $60.0 million and $70.0 million of cash on hand for
repayment of the S Distribution Notes. The balance of the S Distribution
Notes are expected to be repaid from cash generated by operations.
(2) Reflects the conversion by the Existing Stockholders of 5,705,000 shares
of Class B Common Stock into Class A Common Stock. Of these shares,
2,855,000 shares will be contributed by the Existing Stockholders, prior
to the Offerings, to the Company and NSI and its affiliates (other than
the Company) for issuance in connection with the Distributor Options and
employee stock bonus awards and 2,850,000 shares will be sold in the
Offerings. Also reflects estimated deferred compensation and additional
paid-in capital of $25.9 million, $4.8 million of which represents the
estimated compensation expense related to the employee stock bonus awards
granted to employees of the Company, NSI and its affiliates which vest
over a period of four years and $21.1 million of which represents the
estimated compensation expense related to the one-time grant of the
Distributor Options with an exercise price at 25% of the initial public
offering price to independent distributors (non-employees) of the Company
immediately prior to the Offerings. See "Shares Eligible for Future Sale."
(3) No adjustment has been made to give effect to the Company's earned and
undistributed taxable S corporation earnings for the period from October
1, 1996, through the S Termination Date. The Company anticipates the
increase in the S Distribution Notes will be approximately $10 million and
$15 million. See "The Reorganization and S Corporation Distribution."
(4) Reflects the issuance of $81.9 million of S Distribution Notes to the
Selling Stockholders in respect of the earned and undistributed taxable S
corporation earnings and capital at September 30, 1996, that would have
been distributed had the Subsidiaries' S corporation status been
terminated on September 30, 1996. Approximately $15.0 million of the net
proceeds of the Offerings will be used to repay a portion of the S
Distribution Notes.
(5) Reflects the contribution by the Existing Stockholders of their interests
in the Subsidiaries in exchange for shares of Class B Common Stock.
(6) Reflects the recognition of a deferred tax asset of $5.8 million. In
connection with the Reorganization, the Company will record deferred tax
assets for U.S. Federal and state income taxes as if the Company had been
taxed as a C corporation rather than as an S corporation since inception.
(7) Excludes 1,605,000 shares held by the Company and reserved for issuance
upon exercise of the Distributor Options.
27
DILUTION
The net tangible book value of the Company at September 30, 1996 was
approximately $78.3 million, or $.98 per share of Common Stock. After giving
effect to the Reorganization and the S Corporation Distribution as if they had
occurred as of September 30, 1996 and the Company's S corporation status had
terminated at such date, the pro forma net tangible book value of the Company
at September 30, 1996 would have been approximately $2.1 million, or $.03 per
share of Common Stock. After giving effect to the sale of the 4,750,000 shares
of Class A Common Stock offered by the Company hereby, and the application of
the estimated net proceeds therefrom as set forth under "Use of Proceeds"
(after deducting estimated offering expenses and the underwriting discount),
after the purchase of the License Fee from NSI, the pro forma net tangible
book value of the Company as adjusted at September 30, 1996 would have been
approximately $67.9 million, or $.81 per share. See "The Reorganization and S
Corporation Distribution" and "Use of Proceeds." This represents an immediate
dilution of $20.19 per share to purchasers of shares at the initial public
offering price. See "Risk Factors--Dilution." The following table illustrates
the per share dilution:
Assumed initial public offering price per share(/1/).......... $21.00
Net tangible book value per share at September 30, 1996..... $ .98
Increase in net tangible book value per share attributable
to the establishment of deferred tax assets................ .07
Decrease in net tangible book value per share attributable
to S Corporation Distribution and Reorganization........... (1.02)
-----
Adjusted net tangible book value per share before the
Offerings.................................................. .03
Increase in net tangible book value per share attributable
to the Offerings........................................... 1.08
Decrease in tangible book value per share attributable to
the purchase of the exclusive license fee from NSI......... (.30)
-----
Net tangible book value, as further adjusted, per share after
the Offerings................................................ .81
------
Dilution per share to purchasers of shares in the Offerings... $20.19
======
--------
(1) Before deducting estimated underwriting discounts and commissions
and estimated expenses of the Offerings payable by the Company.
The following table summarizes on a pro forma basis as of September 30, 1996
the difference between the number of shares of Common Stock purchased from the
Company, the total consideration paid and the average price per share paid by
the Existing Stockholders and by the purchasers of Common Stock in the
Offerings at an assumed initial public offering price of $21 per share.
SHARES PURCHASED TOTAL CONSIDERATION AVERAGE
----------------------- ------------------------- PRICE
NUMBER PERCENT AMOUNT PERCENT PER SHARE
---------- ------- ------------ ------- ---------
Existing Stockholders... 77,400,000(/1/) 91% $ --(/2/) --% $ --
New investors........... 7,600,000(/3/) 9 159,600,000 100 21.00
---------- --- ------------ ---
Total................. 85,000,000 100% $159,600,000 100%
========== === ============ ===
--------
(1) Excludes the 2,850,000 shares to be sold by the Selling
Stockholders to new investors in connection with the Offerings.
Includes 1,250,000 shares which the Existing Stockholders have
committed to transfer to NSI and its affiliates (other than the
Company) for subsequent issuance in connection with employee stock
bonus awards and 1,605,000 shares which the Existing Stockholders
intend to contribute to the Company for subsequent issuance upon
exercise of the Distributor Options.
(2) The cash consideration paid by the Existing Stockholders has been
reduced by distributions previously made to the Existing
Stockholders and certain distributions to be received by the
Existing Stockholders out of the net proceeds of the Offerings. See
"The Reorganization and S Corporation Distribution" and "Use of
Proceeds."
(3) Includes 2,850,000 shares to be sold by the Selling Stockholders
and 4,750,000 shares to be sold by the Company in connection with
the Offerings.
28
SELECTED COMBINED FINANCIAL AND OTHER INFORMATION
The following selected combined financial and other data as of December 31,
1994 and 1995 and for the fiscal years ended September 30, 1993 and 1994 and
for the three month period ended December 31, 1994 and for the year ended
December 31, 1995 have been derived from the Company's Combined Financial
Statements, which have been audited by Price Waterhouse LLP, independent
accountants, included elsewhere in this Prospectus. The combined financial
data as of September 30, 1993 and 1994 are derived from the combined financial
statements of the Company, which have been audited but are not contained
herein. The financial data as of September 30, 1991 and 1992 and for the
fiscal years ended September 30, 1991 and 1992 and for the year ended December
31, 1994 and as of September 30, 1996 and for the nine months ended September
30, 1995 and 1996 are unaudited. Interim results, in the opinion of
management, include all adjustments (consisting solely of normal recurring
adjustments) necessary to present fairly the financial information for such
periods; however, such results are not necessarily indicative of the results
which may be expected for any other interim period or for a full year. This
information should be read in conjunction with "Management's Discussion and
Analysis of Financial Condition and Results of Operations" and the Combined
Financial Statements and the related notes thereto included elsewhere in this
Prospectus.
THREE
MONTHS NINE MONTHS
ENDED YEAR ENDED ENDED
YEAR ENDED SEPTEMBER 30, DECEMBER 31, DECEMBER 31, SEPTEMBER 30,
------------------------------------ ------------ ------------------- ------------------
1991 1992 1993 1994 1994 1994(/1/) 1995 1995 1996
-------- -------- -------- -------- ------------ --------- -------- -------- --------
(IN THOUSANDS, EXCEPT PER SHARE DATA)
INCOME STATEMENT DATA:
Revenue................. $ 677 $ 42,919 $110,624 $254,637 $ 73,562 $264,440 $358,609 $241,412 $471,312
Cost of sales........... 462 14,080 38,842 86,872 19,607 82,241 96,615 64,110 133,592
-------- -------- -------- -------- -------- -------- -------- -------- --------
Gross profit............ 215 28,839 71,782 167,765 53,955 182,199 261,994 177,302 337,720
Operating expenses:
Distributor incen-
tives................. 130 14,659 40,267 95,737 27,950 101,372 135,722 91,893 175,149
Selling, general and
administrative........ 1,249 10,065 27,150 44,566 13,545 48,753 67,475 44,099 69,970
-------- -------- -------- -------- -------- -------- -------- -------- --------
Operating income........ (1,164) 4,115 4,365 27,462 12,460 32,074 58,797 41,310 92,601
Other income (expense),
net.................... 3 160 133 443 (813) (394) 511 (408) 1,530
-------- -------- -------- -------- -------- -------- -------- -------- --------
Income before provision
for income taxes....... (1,161) 4,275 4,498 27,905 11,647 31,680 59,308 40,902 94,131
Provision for income
taxes.................. -- 1,503 417 10,226 2,730 10,071 19,097 13,170 33,810
-------- -------- -------- -------- -------- -------- -------- -------- --------
Net income (loss)....... $ (1,161) $ 2,772 $ 4,081 $ 17,679 $ 8,917 $ 21,609 $ 40,211 $ 27,732 $ 60,321
======== ======== ======== ======== ======== ======== ======== ======== ========
PRO FORMA INCOME STATEMENT DATA(/2/)(/3/):
Revenue........................................... $358,609 $241,412 $471,312
Cost of sales..................................... 96,615 64,110 133,592
-------- -------- --------
Gross profit...................................... 261,994 177,302 337,720
Operating expenses:
Distributor incentives........................... 135,722 91,893 175,149
Selling, general and administrative.............. 74,318 49,231 75,102
-------- -------- --------
Operating income.................................. 51,954 36,178 87,469
Other income (expense), net(/4/).................. (2,298) (3,217) 1,997
-------- -------- --------
Income before provision for income taxes.......... 49,656 32,961 89,466
Provision for income taxes........................ 19,049 12,644 32,502
-------- -------- --------
Net income (loss)................................. $ 30,607 $ 20,317 $ 56,964
======== ======== ========
Net income per share.............................. $ .36 $ .24 $ .67
Weighted average common shares outstanding(/5/)... 85,377 85,377 85,377
29
AS
AS OF SEPTEMBER 30, OF DECEMBER 31,
------------------------------- ----------------
1991 1992 1993 1994 1994 1995
------ ------ ------- ------- ------- -------
BALANCE SHEET DATA: (IN THOUSANDS)
Cash and cash equiva-
lents.................. $1,132 $1,553 $14,591 $18,077 $16,288 $63,213
Working capital......... (921) 1,026 (504) 15,941 26,680 47,863
Total assets............ 2,733 10,236 41,394 71,565 61,424 118,228
Stockholders' equity.... (656) 2,749 6,926 24,934 33,861 61,771
AS OF SEPTEMBER 30, 1996
-------------------------
ACTUAL AS ADJUSTED(/6/)
-------- ----------------
BALANCE SHEET DATA: (IN THOUSANDS)
Cash and cash equivalents............................. $ 81,079 $151,844
Working capital....................................... 60,828 57,309
Total assets.......................................... 168,907 270,441
Short term notes payable to stockholders.............. -- 66,893
Short term note payable to NSI........................ -- 10,000
Long term note payable to NSI......................... -- 10,000
Stockholders' equity.................................. 78,259 92,900
AS AS
AS OF SEPTEMBER 30, OF DECEMBER 31, OF SEPTEMBER 30,
--------------------------- --------------- -----------------
1991 1992 1993 1994 1994 1995 1995 1996
---- ------ ------- ------- ------- ------- -------- --------
OTHER INFORMATION(/7/):
Number of active
distributors........... -- 33,000 106,000 152,000 170,000 236,000 224,000 331,000
Number of executive
distributors........... -- 649 2,788 5,835 6,083 7,550 7,519 17,809
- --------
(1) The information for the year ended December 31, 1994 is not included in
the Company's Combined Financial Statements included elsewhere in this
Prospectus. Such information has been presented for comparative purposes
only.
(2) The unaudited pro forma income statement data reflects the Reorganization,
the Offerings and the following adjustments as if such events had occurred
on January 1, 1995: (i) the amortization over a 20-year period of a $25.0
million payment, consisting of $5.0 million in cash and $20.0 million in
notes, to NSI for the exclusive rights to distribute NSI products in
Thailand, Indonesia, Malaysia, the Philippines, the PRC, Singapore and
Vietnam (the "License Fee"); (ii) the recognition by the Company of
additional management charges of $4.4 million per year relating to certain
support services provided to the Company by NSI and an NSI affiliate;
(iii) estimated annual compensation expense of $1.2 million related to the
employee stock bonus awards granted to employees of the Company, NSI and
its affiliates; (iv) adjustments for U.S. Federal and state income taxes
as if the Company had been taxed as a C corporation rather than as an S
corporation since inception; and (v) increased interest expense of $2.7
million relating to the issuance of $81.9 million of interest bearing S
distribution notes (the "S Distribution Notes"), approximately $15.0
million of which will be repaid from the proceeds of the Offerings, due
and payable within six months (8% interest per annum) to the Existing
Stockholders in respect of the earned and undistributed taxable S
corporation earnings and capital at September 30, 1996, that would have
been distributed had the Company's S corporation status been terminated on
September 30, 1996.
(3) The unaudited pro forma income statement data does not reflect the
estimated non-cash compensation expense of $21.1 million in connection
with the one-time grant of the Distributor Options at an exercise price of
25% of the initial public offering price. The granting and vesting of the
Distributor Options will be conditioned upon distributor performance under
the Global Compensation Plan and the NSI 1996 Distribution Stock Option
Plan. The vesting of the Distributor Options is scheduled to occur on
December 31, 1997. The Company will record distributor stock incentive
expense for these non-employee stock options. See "Certain Relationships
and Related Transactions" and "Shares Eligible for Future Sale."
(4) Other pro forma income and expense includes: (i) increased interest
expense of $2.7 million for the year ended December 31, 1995 and for the
nine months ended September 30, 1995, relating to the issuance of $81.9
million of S Distribution Notes (approximately $15.0 million of which will
be repaid from the proceeds of the Offerings); (ii) increased interest
expense of $0.9 million, $0.7 million and $0.1 million for the year ended
December 31, 1995 and for the nine months ended September 30, 1995 and
1996, respectively, relating to the issuance of $20.0 million in notes as
partial payment of the License Fee payable to NSI; and (iii) increased
interest income of $0.8 million, $0.6 million and $0.6 million for the
year ended December 31, 1995 and for the nine months ended September 30,
1995 and 1996, respectively, relating to an estimated $10.0 million note
receivable from NSI as consideration for the Distributor Options.
(5) Reflects 80,250,000 shares of Common Stock and Common Stock equivalents
outstanding after giving effect to the Reorganization, increased by the
sale of 4,750,000 shares of Class A Common Stock, the award of 109,000
shares of Common Stock to employees of the Company and an option granted
to an executive officer of the Company to purchase 267,500 shares of Class
A Common Stock. Supplemental income per share, calculated as if $25.0
million of the proceeds from the Offerings were used to repay notes
payable, had a dilutive effect of less than 2%, and therefore, is not
presented.
(6) The as adjusted balance sheet data as of September 30, 1996 reflects
estimated deferred compensation expense and additional paid-in capital of
$21.1 million in connection with the one-time grant of the Distributor
Options. The as adjusted balance sheet data also reflects: (i) the sale of
4,750,000 shares of Class A Common Stock pursuant to the Offerings; (ii)
the issuance of $81.9 million of S Distribution Notes to the Selling
Stockholders; (iii) a $15.0 million partial payment of the S Distribution
Notes from the proceeds of the Offerings; (iv) $20.0 million in notes
payable to NSI, consisting of a $10 million short-term note due on January
15, 1997 and a $10 million long-term note due on January 15, 1998, which
will be issued as partial payment of the $25.0 million License Fee to NSI;
(v) an estimated $10.0 million note receivable from NSI, issued by NSI as
partial consideration for the Distributor Options; (vi) estimated deferred
compensation and additional paid-in capital of $4.8 million, which
represents the estimated compensation expense related to the employee
stock bonus awards granted to employees of the Company, NSI and its
affiliates which vest over a period of four years; and (vii) the
recognition of a deferred tax asset of $5.8 million relating to
adjustments for U.S. Federal and state income taxes as if the Company had
been taxed as a C corporation rather than as an S corporation since
inception. No adjustment has been made to give effect to the Company's
earned and undistributed taxable S corporation earnings for the period
from October 1, 1996 through the S Termination Date (as defined herein).
The Company anticipates the increase in the S Distribution Notes to be
between $10.0 million and $15.0 million. See "The Reorganization and S
Corporation Distribution." The Company estimates that, at the Offerings,
it will reserve between $60.0 million and $70.0 million of cash on hand
for repayment of the S Distribution Notes. The balance of the S
Distribution Notes will be repaid from cash generated by operations.
(7) Active distributors are those distributors who are resident in the
countries in which the Company operates and who have purchased products
during the three months ended as of the date indicated, rounded to the
nearest thousand. An executive distributor is an active distributor who
has submitted a qualifying letter of intent to become an executive
distributor, achieved specified personal and group sales volumes for a
four month period and maintained such specified personal and group sales
volumes thereafter.
30
MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF
OPERATIONS
The following discussion of the Company's financial condition and results of
operations should be read in conjunction with the Combined Financial
Statements and the related notes thereto included elsewhere in this
Prospectus. See also "The Reorganization and S Corporation Distribution."
OVERVIEW
Nu Skin Asia Pacific is a rapidly growing network marketing company involved
in the distribution and sale of premium quality, innovative personal care and
nutritional products. The Company is the exclusive distribution vehicle for Nu
Skin International, Inc. ("Nu Skin International" or "NSI") in the countries
of Japan, Taiwan, Hong Kong (including Macau) and South Korea, where the
Company currently has operations, and in Thailand, Indonesia, Malaysia, the
Philippines, the PRC, Singapore and Vietnam, where operations have not
commenced. Additionally, the Company supplies certain products to NSI
affiliates in Australia and New Zealand. The Company's network of independent
distributors has grown since inception to more than 330,000 active
distributors as of September 30, 1996.
The Company has generated increased revenue each year since it commenced
operations in September 1991 and has operated profitably each year since 1992.
The Company's growth is primarily due to an increase in revenue from sales of
personal care products, the introduction of nutritional products, an increase
in the number of active distributors and the expansion of operations into new
geographic markets.
The Company's revenue is primarily dependent upon the efforts of a network
of independent distributors who purchase products and sales materials from the
Company in their local currency. The Company recognizes virtually all of its
revenue when the Company ships products and sales materials to its
distributors, which occurs after payment is received by the Company. Revenue
is net of returns, which have historically been approximately 1.5% of gross
sales. The following table sets forth revenue information for the time periods
indicated.
NINE MONTHS ENDED
DATE YEAR ENDED DECEMBER 31, SEPTEMBER 30,
OPERATIONS ----------------------- -----------------
COUNTRY COMMENCED 1993 1994 1995 1995 1996
------- -------------- ------- ------- ------- -------- --------
(IN MILLIONS)
Japan................... April 1993 $ 101.2 $ 172.9 $ 231.5 $ 153.6 $ 265.1
Taiwan.................. January 1992 38.6 79.2 105.4 74.1 107.0
South Korea............. February 1996 -- -- -- -- 83.7
Hong Kong............... September 1991 14.3 10.9 17.1 10.7 12.1
Sales to NSI
affiliates(/1/)........ January 1993 8.5 1.4 4.6 3.0 3.4
------- ------- ------- -------- --------
Total revenue......... $ 162.6 $ 264.4 $ 358.6 $ 241.4 $ 471.3
======= ======= ======= ======== ========
--------
(1) Includes revenue from the sale of certain products to NSI
affiliates in Australia and New Zealand.
Revenue generated in Japan and Taiwan represented 56.2% and 22.7%,
respectively, of total revenue generated during the nine months ended
September 30, 1996. Since the commencement of operations in February 1996, the
Company's South Korean operations generated $83.7 million of revenue, or 17.8%
of total revenue for the nine months ended September 30, 1996. Although
operating costs have increased in each country with the growth of the
Company's revenue, such costs have declined as a percentage of revenue due to
improved operating leverage. Revenue generated in Hong Kong during the nine
months ended September 30, 1996 represented 2.6% of total Company revenue.
31
Cost of sales primarily consists of the cost of products purchased from NSI
(in U.S. dollars) as well as customs duties related to the importation of such
products. As the sales mix changes between product categories, cost of sales
and, accordingly, gross profit, may fluctuate to some degree. In general,
however, costs of sales move proportionate to revenue. Also, as currency
exchange rates fluctuate, the Company's gross margin will fluctuate.
Distributor incentives are the Company's most significant expense. Pursuant
to the Operating Agreements with NSI, the Company has agreed to incur a
distributor commission expense of 42% of commissionable product sales (with
the exception of South Korea, where, due to government regulations, the
Company uses a formula based upon a maximum payout of 35% of commissionable
product sales). The Licensing and Sales Agreements provide that the Company is
to satisfy this obligation by paying commissions owed to local distributors.
In the event that these commissions exceed 42% of commissionable product
sales, the Company is entitled to receive the difference from NSI. In the
event that the commissions paid are lower than 42%, the Company must pay the
difference to NSI. Under this formulation, the Company's total commission
expense is fixed at 42% of commissionable product sales in each country
(except for South Korea). Because the Company's revenue includes sales of both
commissionable and non-commissionable items, distributor incentives as a
percentage of total revenue have ranged from approximately 36.4% to 38.1%
since September 30, 1993. Non-commissionable items consist of sales materials
and starter kits as well as sales to NSI affiliates in Australia and New
Zealand.
Selling, general and administrative expenses include wages and benefits,
rents and utilities, travel and entertainment, promotion and advertising and
professional fees, as well as license and management fees paid to NSI and Nu
Skin International Management Group, Inc. ("NSIMG"). Pursuant to the Operating
Agreements, the Company contracts for management support services from NSIMG,
for which the Company pays a fee equal to an allocation of expenses plus 3%.
In addition, the Company pays to NSI a license fee of 4% of the Company's
revenues from sales to distributors (excluding sales of starter kits) for the
use of NSI's distributor lists, distribution system and certain related
intangibles.
Provision for income taxes is dependent on the statutory tax rates in each
of the countries in which the Company operates. Historically, each of the
Subsidiaries was only taxed in its local jurisdiction in accordance with
relevant tax laws. Statutory tax rates in the countries in which the Company
has operations are 16.5% in Hong Kong, 25.0% in Taiwan, 30.1% in South Korea
and 57.9% in Japan. The Company operates a regional business center in Hong
Kong, which bears inventory obsolescence and currency exchange risks. Any
income or loss incurred by the regional business center is not subject to
taxation in Hong Kong.
Upon the consummation of the Reorganization, the Company will be subject to
taxation in the United States, where it is incorporated, at a statutory
corporate federal tax rate of 35%. In addition, each Subsidiary will be
subject to taxation in the country in which it operates. The Company will
receive foreign tax credits for the amount of foreign taxes actually paid in a
given period, which may be utilized to reduce taxes paid in the United States.
In the event that the Company's operations in high tax jurisdictions such as
Japan grow disproportionately to the rest of the Company's operations, the
Company may be unable to fully utilize its foreign tax credits in the U.S.
which could, accordingly, result in the Company paying a higher overall
effective tax rate on its worldwide operations.
32
RESULTS OF OPERATIONS
The following tables set forth (i) the results of operations and
supplemental data, and (ii) operating results and supplemental data as a
percentage of revenue, respectively, for the periods indicated.
YEAR ENDED YEAR ENDED NINE MONTHS ENDED
SEPTEMBER 30, DECEMBER 31, SEPTEMBER 30,
------------- -------------- ------------------
1993 1994 1994 1995 1995 1996
------ ------ ------ ------ -------- --------
(IN MILLIONS)
Revenue....................... $110.6 $254.6 $264.4 $358.6 $ 241.4 $ 471.3
Cost of sales................. 38.8 86.8 82.2 96.6 64.1 133.6
------ ------ ------ ------ -------- --------
Gross profit.................. 71.8 167.8 182.2 262.0 177.3 337.7
Operating expenses:
Distributor incentives...... 40.3 95.7 101.4 135.7 91.9 175.1
Selling, general and admin-
istrative.................. 27.1 44.6 48.8 67.5 44.1 70.0
------ ------ ------ ------ -------- --------
Operating income.............. 4.4 27.5 32.0 58.8 41.3 92.6
Other income (expense), net... .1 .4 (.4) .5 (.4) 1.5
------ ------ ------ ------ -------- --------
Income before provision for
income taxes................. 4.5 27.9 31.6 59.3 40.9 94.1
Provision for income taxes.... .4 10.2 10.0 19.1 13.2 33.8
------ ------ ------ ------ -------- --------
Net income.................... $ 4.1 $ 17.7 $ 21.6 $ 40.2 $ 27.7 $ 60.3
====== ====== ====== ====== ======== ========
Unaudited supplemental da-
ta(/1/):
Net income before pro forma
provision for income taxes... $ 4.5 $ 27.9 $ 31.6 $ 59.3 $ 40.9 $ 94.1
Pro forma provision for income
taxes........................ 1.5 10.4 11.5 22.8 15.7 34.2
------ ------ ------ ------ -------- --------
Net income after pro forma
provision for income taxes... $ 3.0 $ 17.5 $ 20.1 $ 36.5 $ 25.2 $ 59.9
====== ====== ====== ====== ======== ========
YEAR ENDED YEAR ENDED NINE MONTHS ENDED
SEPTEMBER 30, DECEMBER 31, SEPTEMBER 30,
-------------- -------------- ------------------
1993 1994 1994 1995 1995 1996
------ ------ ------ ------ -------- --------
Revenue................... 100.0% 100.0% 100.0% 100.0% 100.0% 100.0%
Cost of sales............. 35.1 34.1 31.1 26.9 26.6 28.3
------ ------ ------ ------ -------- --------
Gross profit.............. 64.9 65.9 68.9 73.1 73.4 71.7
------ ------ ------ ------ -------- --------
Operating expenses:
Distributor incentives... 36.4 37.6 38.4 37.8 38.1 37.2
Selling, general and ad-
ministrative............ 24.5 17.5 18.4 18.8 18.3 14.9
------ ------ ------ ------ -------- --------
Operating income.......... 4.0 10.8 12.1 16.5 17.0 19.6
Other income (expense),
net...................... .1 .2 (.1) .1 (.2) .3
------ ------ ------ ------ -------- --------
Income before provision
for income taxes......... 4.1 11.0 12.0 16.6 16.8 19.9
Provision for income
taxes.................... .4 4.0 3.8 5.3 5.5 7.2
------ ------ ------ ------ -------- --------
Net income................ 3.7% 7.0% 8.2% 11.3% 11.3% 12.7%
====== ====== ====== ====== ======== ========
Unaudited supplemental da-
ta(/1/):
Net income before pro
forma
provision for income tax-
es....................... 4.1% 11.0% 12.0% 16.6% 16.8% 19.9%
Pro forma provision for
income taxes............. 1.4 4.1 4.3 6.4 6.5 7.3
------ ------ ------ ------ -------- --------
Net income after pro forma
provision for income tax-
es....................... 2.7% 6.9% 7.7% 10.2% 10.3% 12.6%
====== ====== ====== ====== ======== ========
- --------
(1) Reflects adjustment for Federal and state income taxes as if the Company
had been taxed as a C corporation rather than as an S corporation since
inception.
33
NINE MONTHS ENDED SEPTEMBER 30, 1996 COMPARED TO THE NINE MONTHS ENDED
SEPTEMBER 30, 1995
REVENUE was $471.3 million during the nine months ended September 30, 1996,
an increase of 95.2% from the revenue of $241.4 million recorded during the
same period in 1995. This increase is attributable to the following factors.
First, revenue in Japan increased by $111.5 million, or 72.6%. This increase
in revenue was primarily as a result of the continued success of nutritional,
color cosmetics and HairFitness products, which were introduced in October
1995 and was partially offset by the strengthening of the U.S. dollar relative
to the Japanese yen during the same period. Second, revenue in Taiwan
increased by $32.9 million, or 44.4%, primarily as a result of the
introduction of color cosmetics and other products, along with the opening of
a new distribution center in Taichung, Taiwan. Third, in February 1996, Nu
Skin Korea commenced operations and, through September 30, 1996, has generated
revenue of $83.7 million. Additionally, revenue in Hong Kong increased by $1.4
million during the nine months ended September 30, 1996 as compared to the
same period in 1995.
GROSS PROFIT as a percentage of revenue was 71.7% and 73.4% during the nine
months ended September 30, 1996 and 1995, respectively. This decline reflected
the strengthening of the U.S. dollar, the introduction of three nutritional
products in Japan in October 1995 and the commencement of operations in South
Korea in 1996. Nutritional products are generally subject to higher duties
than other products marketed by the Company, which yields lower gross profit
as a percentage of revenue. The commencement of operations in South Korea also
impacted gross profit as a percentage of revenue due to South Korean
regulations which result in higher prices on imported products than in other
markets.
DISTRIBUTOR INCENTIVES as a percentage of total revenue declined from 38.1%
for the nine months ended September 30, 1995 to 37.2% for the same period in
1996. The primary reason for this decline was increased revenue from South
Korea where local regulations limit the incentives which can be paid to South
Korean distributors.
SELLING, GENERAL AND ADMINISTRATIVE EXPENSES as a percentage of revenue
declined from 18.3% during the nine months ended September 30, 1995 to 14.9%
during the same period in 1996. This fluctuation was primarily due to
economies of scale gained as the Company's revenue increased.
OPERATING INCOME during the nine months ended September 30, 1996 increased
to $92.6 million, an increase of 124.2% from the $41.3 million of operating
income recorded during the same period in 1995. Operating income as a
percentage of revenue increased from 17.0% to 19.6%. This increase was caused
primarily by lower selling, general and administrative expenses as a
percentage of revenue.
OTHER INCOME increased by $1.9 million during the nine months ended
September 30, 1996 as compared to the same period in 1995. The increase was
primarily caused by an increase in interest income generated through the short
term investment of cash.
PRO FORMA PROVISION FOR INCOME TAXES increased to $34.2 million during the
nine months ended September 30, 1996 compared to $15.7 million during the same
period in 1995. The pro forma effective tax rate decreased to 36.3% in 1996 as
compared to 38.4% for the same period in 1995. The Company generated excess
foreign tax credits in 1995 which did not continue in 1996.
NET INCOME AFTER PRO FORMA PROVISION FOR INCOME TAXES increased by $34.7
million to $59.9 million during the nine months ended September 30, 1996
compared to the $25.2 million during the same period in 1995. Pro forma net
income as a percentage of revenue increased to 12.6% for the nine months ended
September 30, 1996 as compared to 10.3% for the same period in 1995.
YEAR ENDED DECEMBER 31, 1995 COMPARED TO THE YEAR ENDED DECEMBER 31, 1994
REVENUE was $358.6 million during the year ended December 31, 1995, an
increase of 35.6% from the $264.4 million of revenue recorded during 1994.
This increase was due primarily to an increased number of active distributors
in each market, which was the primary factor contributing to a $58.6 million
increase in revenue in Japan, a $26.2 million increase in revenue in Taiwan
and a $6.2 million increase in revenue in Hong Kong. Nutritional products,
color cosmetics products and a new line of HairFitness products were
introduced in
34
Japan in the fourth quarter of 1995, accounting for $25.0 million of the $58.6
million increase. Additionally, the Company benefitted by the strengthening of
the Japanese yen during 1995. Revenue in Taiwan and Hong Kong increased as a
result of a higher volume of sales of color cosmetics, which were introduced
in late 1994, and other personal care products. Additionally, certain new
product introductions by NSI affiliates in Australia and New Zealand led to a
$3.2 million increase in revenue.
GROSS PROFIT as a percentage of revenue increased from 68.9% in 1994 to
73.1% in 1995. The increase in gross profit resulted from a reduction in
product costs on purchases from NSI, the weakening of the U.S. dollar relative
to the Japanese yen and other cost savings related to inventory shipping and
handling.
DISTRIBUTOR INCENTIVES as a percentage of revenue decreased from 38.4% in
1994 to 37.8% in 1995. This decline was primarily attributable to an increase
in revenue in 1995 from non-commissionable sales materials and sales to NSI
affiliates.
SELLING, GENERAL AND ADMINISTRATIVE EXPENSES as a percentage of revenue
increased to 18.8% during the year ended December 31, 1995, from 18.4% during
1994. This increase was primarily due to a one-time cost incurred in February
1995 in connection with moving the Company's Japanese facilities into a
larger, more accessible office and distributor center in Tokyo, Japan.
OPERATING INCOME increased to $58.8 million in 1995 from $32.0 million in
1994, an increase of 83.8%. Operating income as a percentage of revenue
increased to 16.5% from 12.1%. The increase was primarily the result of the
product cost reductions discussed above.
OTHER INCOME increased by approximately $0.9 million during 1995 as compared
to 1994. This increase was primarily caused by the disposal of property and
equipment related to a move to new facilities during 1994, and an increase in
interest income generated through the short term investment of cash.
PRO FORMA PROVISION FOR INCOME TAXES increased to $22.8 million during the
year ended December 31, 1995 as compared to $11.5 million for the same period
in 1994. The effective tax rate was 38.4% in 1995 as compared to 36.4% in
1994.
NET INCOME AFTER PRO FORMA PROVISION FOR INCOME TAXES increased by $16.4
million to $36.5 million during the year ended December 31, 1995 as compared
to $20.1 million for the same period in 1994. Pro forma net income as a
percentage of revenue increased to 10.2% during the year ended December 31,
1995 as compared to 7.7% for the same period in 1994.
YEAR ENDED SEPTEMBER 30, 1994, COMPARED TO THE YEAR ENDED SEPTEMBER 30, 1993
REVENUE for the year ended September 30, 1994, was $254.6 million, an
increase of 130.2% when compared to the $110.6 million of revenue reported in
1993. This increase was largely due to the following three factors: (i) a
$113.6 million increase in revenue reflecting a full year of operations in
Japan in fiscal year 1994 as compared to only six months of operations in
fiscal year 1993; (ii) a $33.2 million increase in revenue in Taiwan due to a
growing number of active distributors purchasing the Company's products; and
(iii) a $2.3 million increase in revenue in Hong Kong. These increases were
partially offset by a $5.1 million decrease in revenues from sales to NSI
affiliates in Australia and New Zealand.
GROSS PROFIT as a percentage of revenue increased slightly to 65.9% in
fiscal year 1994 from 64.9% in fiscal year 1993. The increase in gross profit
as a percentage of revenue was primarily due to changes in the sales mix.
DISTRIBUTOR INCENTIVES as a percentage of revenue increased to 37.6% during
the year ended September 30, 1994, from 36.4% during the year ended September
30, 1993. This increase was primarily due to a decrease in non-commissionable
sales to NSI affiliates in Australia and New Zealand which represented 6.7% of
total revenue in fiscal year 1993 compared to less than 1.0% of total revenue
in fiscal year 1994.
35
SELLING, GENERAL AND ADMINISTRATIVE EXPENSES as a percentage of revenue
decreased to 17.5% during the year ended September 30, 1994, from 24.5% during
the year ended September 30, 1993. This decrease in selling, general and
administrative expenses as a percentage of revenue was the result of economies
of scale obtained as revenue increased in Japan and Taiwan.
OPERATING INCOME during the year ended September 30, 1994, increased to
$27.5 million from $4.4 million recorded during the year ended September 30,
1993. This increase was the combination of an increase in revenue and a
decrease in selling, general, and administrative expenses.
OTHER INCOME increased by $0.3 million during the year ended September 30,
1994 as compared to the same period in 1993.
PRO FORMA PROVISION FOR INCOME TAXES increased to $10.4 million during the
year ended December 31, 1994, as compared to $1.5 million for the same period
in 1993. The effective tax rate was 37.3% in 1994 compared to 33.3% in 1993.
NET INCOME AFTER PRO FORMA PROVISION FOR INCOME TAXES increased by $14.5
million to $17.5 million during the year ended December 31, 1994 as compared
to $3.0 million for the same period in 1993. Pro forma net income as a
percentage of revenue increased to 6.9% for the year ended December 31, 1994
as compared to 2.7% for the same period in 1993.
UNAUDITED PRO FORMA COMBINED RESULTS OF OPERATIONS
As part of the Reorganization and Offerings, several actions will occur
which will impact the comparability of the historical financial results for
the Company with the future results of the Company. The following adjustments
are reflected in the unaudited pro forma combined financial information set
forth below and included elsewhere in this Prospectus: (i) the amortization
over a 20-year period of a $25.0 million payment, consisting of $5.0 million
in cash and $20.0 million in notes, to NSI for the exclusive rights to
distribute NSI products in Thailand, Indonesia, Malaysia, the Philippines, the
PRC, Singapore and Vietnam, (ii) the recognition by the Company of additional
management charges of $4.4 million per year relating to certain support
services provided to the Company by NSI and an NSI affiliate, (iii) estimated
annual compensation expense of $1.2 million related to the employee stock
bonus awards granted to employees of the Company, NSI and its affiliates, (iv)
recording of U.S. Federal and state income taxes as if the Company had been
taxed as a C corporation rather than as an S corporation since inception, and
(v) increased interest expense of $2.7 million relating to the issuance of
$81.9 million of S Distribution Notes due and payable within six months (8%
interest per annum) to the Selling Stockholders in respect of the earned and
undistributed taxable S corporation earnings at September 30, 1996 that would
have been distributed had the Company's S corporation status been terminated
on September 30, 1996. The unaudited pro forma combined financial information
set forth below does not reflect the estimated non-cash compensation expense
of $21.1 million in connection with the one-time grant of the Distributor
Options at an exercise price of 25% of the initial public offering price in
connection with the Offerings. The Distributor Options will include conditions
related to the achievement of performance goals and will vest on December 31,
1997. The Company will record distributor incentive stock expense for these
non-employee stock options.
36
The following table sets forth the percentage of revenue represented by the
specific components of income and expense on a pro forma basis for the periods
presented. See "Unaudited Pro Forma Combined Financial Statements" and the
related notes thereto included elsewhere in this Prospectus.
FOR THE
NINE MONTHS
ENDED
SEPTEMBER 30,
FOR THE YEAR ENDED --------------
DECEMBER 31, 1995 1995 1996
------------------ ------ ------
Revenue................................. 100.0% 100.0% 100.0%
Cost of sales........................... 26.9 26.6 28.3
----- ------ ------
Gross profit............................ 73.1 73.4 71.7
Operating expenses:
Distributor Incentives................. 37.8 38.1 37.2
Selling, general and administrative.... 20.7 20.4 15.9
----- ------ ------
Operating income........................ 14.6 14.9 18.6
Other income (expense), net............. (0.6) (1.3) 0.4
----- ------ ------
Income before provision for income
taxes.................................. 14.0 13.6 19.0
Provision for income taxes.............. 5.4 5.2 6.9
----- ------ ------
Net income.............................. 8.6% 8.4% 12.1%
===== ====== ======
Upon the consummation of the Reorganization, the Company will be subject to
taxation in the United States, where it is incorporated, at a statutory
corporate federal tax rate of 35%. In addition, each Subsidiary will be
subject to taxation in the country in which it operates. The Company will
receive foreign tax credits for the amount of foreign taxes actually paid in a
given period, which may be utilized to reduce taxes paid in the United States.
In the event that the Company's operations in high tax jurisdictions such as
Japan grow disproportionately to the rest of the Company's operations, the
Company will be unable to fully utilize its foreign tax credits in the U.S.
which could, accordingly, result in the Company paying a higher overall
effective tax rate on its worldwide operations.
LIQUIDITY AND CAPITAL RESOURCES
The Company generates significant cash flow from operations. During the year
ended December 31, 1995, cash provided by operations totaled $65.0 million. As
of September 30, 1996, the Company had cash and cash equivalents of $81.1
million. As of September 30, 1996, the Subsidiaries' aggregate undistributed
taxable S corporation earnings were $81.9 million. The Company estimates that
the Subsidiaries' aggregate undistributed taxable S corporation earnings will
be between $92.0 million and $97.0 million as of the S Termination Date (which
includes approximately $10 million to $15 million of the Company's earned and
undistributed taxable S corporation earnings for the period from October 1,
1996 through the S Termination Date). The S Corporation Distribution will be
distributed in the form of promissory notes due within six months of the S
Termination Date bearing interest at 8% per annum ("S Distribution Notes").
Upon the consummation of the Offerings, $15.0 million of the proceeds from the
Offerings will be used to pay a portion of the S Distribution Notes. The
Company estimates that at the Offerings it will reserve between $60.0 million
and $70.0 million of cash on hand for repayment of the S Distribution Notes.
The balance of the S Distribution Notes will be repaid from cash generated by
operations. On and after the S Termination Date, the Company will no longer be
treated as an S corporation and, accordingly, will be fully subject to Federal
and state income taxes. See "The Reorganization and S Corporation
Distribution."
The Company is able to generate significant cash balances due to its rapid
growth, high margins and minimal capital requirements. As of September 30,
1996, working capital was $60.8 million compared to $47.9 million and $26.7
million at December 31, 1995 and 1994, respectively. Cash and cash equivalents
at September 30, 1996 were $81.1 million compared to $63.2 million and $16.3
million at December 31, 1995 and 1994, respectively.
37
Historically, the Company's principal need for funds has been for
distributor incentives, working capital (principally inventory purchases),
capital expenditures and the development of new markets. The Company has
generally relied entirely on cash flow from operations to meet its business
objectives without incurring long term debt to unrelated third parties. The
Company did, however, rely upon borrowings from NSI in initially establishing
operations in Japan, Taiwan and Hong Kong. Regulations in South Korea preclude
borrowings from related entities, which led to the Company establishing an
$8.0 million line of credit to facilitate the opening of the South Korean
market. There were no outstanding borrowings under this credit facility as of
December 31, 1995, and it expired on July 1, 1996.
Capital expenditures, primarily for equipment, computer systems and
software, office furniture and leasehold improvements, were $4.0 million, $5.4
million and $1.7 million for the nine months ended September 30, 1996, and the
years ended December 31, 1995 and 1994, respectively. The Company anticipates
additional capital expenditures of $2.4 million to support growth through the
end of 1996. In addition, the Company anticipates capital expenditures over
the next two years of approximately $22.0 million to further enhance its
infrastructure, including computer systems and software, warehousing
facilities and distributor centers in order to accommodate future growth.
Under the Operating Agreements with NSI, the Company incurs related party
payables. The Company had related party payables of $36.1 million, $28.7
million and $10.6 million at September 30, 1996, and December 31, 1995 and
1994, respectively. In addition, the Company had related party receivables of
$7.8 million, $1.8 million and $17.9 million, respectively, at those dates.
NSI has the right to charge interest on balances outstanding in excess of 60
days at a rate of 2% above the U.S. prime rate. As of September 30, 1996, no
material related party payables or receivables had been outstanding for more
than 60 days.
Management believes that the proceeds from the Offerings together with
future cash flows from operations will be adequate to fund cash needs relating
to the implementation of the Company's strategic plans, including opening new
markets and funding the S Distribution Notes.
SEASONALITY AND CYCLICALITY
The Company's business is impacted by general seasonal trends common to the
direct selling channel in Asia. Seasonal fluctuations experienced by the
Company have generally been related to the occurrence of major cultural events
and vacation patterns in each of the Company's markets. For example, the
Company has occasionally experienced a modest decline in revenue in Japan,
Taiwan and Hong Kong during the local New Year celebrations, which fall in the
Company's first quarter. Management also anticipates a modest decline in
revenue for the first quarter in South Korea, when a similar New Year
celebration occurs. In Japan, the Company has also historically experienced a
slight decline in revenue during August, when many of the local distributors
traditionally take vacations.
The Company's results of operations have been subject to cyclical
variations. Generally, the Company has experienced rapid revenue growth in
each new market from the commencement of operations. In Japan, Taiwan and Hong
Kong, the initial rapid revenue growth was followed by a short period of
stable or declining revenue followed by renewed growth fueled by new product
introductions, an increase in the number of active distributors and increased
distributor productivity. In addition, the Company has also experienced
variations on a quarterly basis in its results of operations, as new products
are introduced and new markets are opened. No assurances can be given that the
Company's revenue growth rate in South Korea, which commenced operations in
February 1996, or in new markets where operations have not commenced, will
follow this pattern. While neither seasonal nor cyclical variations have
materially affected the Company's results of operations to date, the Company
believes that its rapid growth may have overshadowed these factors.
Accordingly, there can be no assurance that seasonal or cyclical variations
will not materially adversely affect the Company's results of operations in
the future.
38
QUARTERLY RESULTS
The following table sets forth certain unaudited quarterly data for the
periods shown.
1995 1996
------------------------------------ ----------------------------
1ST 2ND 3RD 4TH 1ST 2ND 3RD
QUARTER QUARTER QUARTER QUARTER(/1/) QUARTER(/2/) QUARTER QUARTER
------- ------- ------- ------------ ------------ ------- -------
(IN MILLIONS)
Revenue................... $77.7 $80.5 $83.2 $117.2 $124.2 $163.5 $183.6
Gross profit.............. 57.3 59.7 60.3 84.7 89.4 117.4 130.9
Operating income.......... 13.5 15.0 12.8 17.5 23.2 31.9 37.5
--------
(1) LifePak, Nu Colour and HairFitness products were introduced in Japan
during October of 1995.
(2) The Company commenced operations in South Korea in February of 1996.
CURRENCY FLUCTUATION AND EXCHANGE RATE INFORMATION
The Company purchases inventory from NSI in U.S. dollars and assumes
currency exchange rate risk with respect to such purchases. Local currency in
Japan, Taiwan, Hong Kong and South Korea is generally used to settle non-
inventory transactions with NSI. It is anticipated that the Company will
transact its business in new markets with NSI in a similar manner, as
permitted by local regulations. Given the uncertainty of exchange rate
fluctuations, the Company cannot estimate the effect of these fluctuations on
its future business, product pricing, results of operations or financial
condition. However, because nearly all of the Company's revenue will continue
to be realized in local currencies and the majority of its cost of sales will
continue to be denominated in U.S. dollars, the Company's gross profits will
be positively affected by a weakening in the U.S. dollar and will be
negatively affected by a strengthening in the U.S. dollar. The Company reduces
its exposure to fluctuations in foreign exchange rates by creating offsetting
positions through the use of foreign currency exchange contracts. The Company
currently does not use such financial instruments for trading or speculative
purposes. The Company regularly monitors its foreign currency risks and
periodically takes measures to minimize the impact of foreign exchange
fluctuations on the Company's operating results.
INFLATION
In general, costs are affected by inflation and the effects of inflation may
be experienced by the Company in future periods. Management believes, however,
that such effects have not been material to the Company during the periods
presented. Certain of the countries in which the Company operates have
experienced significant inflation in the past. Although to date this inflation
has not had a material effect on the Company's results of operations, there
can be no assurance that inflation will not in the future so affect results of
operations.
39
BUSINESS
GENERAL
Nu Skin Asia Pacific is a rapidly growing network marketing company involved
in the distribution and sale of premium quality, innovative personal care and
nutritional products. The Company is the exclusive distribution vehicle for Nu
Skin International, Inc. in the countries of Japan, Taiwan, Hong Kong
(including Macau) and South Korea, where the Company currently has operations,
and in Thailand, Indonesia, Malaysia, the Philippines, the PRC, Indonesia,
Singapore and Vietnam, where operations have not commenced.
The Company believes it is one of the fastest growing network marketing
companies in Asia. Revenue increased 95.2% to $471.3 million for the nine
months ended September 30, 1996 from $241.4 million for the same period in
1995. Net income increased 117.7% to $60.3 million for the nine months ended
September 30, 1996 from $27.7 million for the same period in 1995. Revenue
increased 35.6% to $358.6 million for the year ended December 31, 1995 from
$264.4 million in 1994. Although operating expenses have increased with the
growth of the Company's revenue, such expenses have declined as a percentage
of revenue due to improved operating leverage. Net income increased 86.1% to
$40.2 million for the year ended December 31, 1995 from $21.6 million in 1994.
The Company's network of independent distributors has grown since inception in
1991 to more than 330,000 active distributors as of September 30, 1996. See
"Risk Factors--Managing Growth."
The Company's product philosophy is to combine the best of science and
nature in developing premium quality, innovative personal care and nutritional
products which are specifically designed for the network marketing
distribution channel. The Company offers products in two distinct categories:
personal care products, marketed under the trademark "Nu Skin," and
nutritional products, marketed under the trademark "Interior Design
Nutritionals" (IDN). The Nu Skin personal care product lines include facial
care, body care, hair care and color cosmetics, as well as specialty products
such as sun protection, oral hygiene and fragrances. The IDN product lines
include nutritional supplements, weight management products and nutritious
snacks, and sports nutrition products.
In Japan, Taiwan and Hong Kong, the Company currently offers most of NSI's
personal care products and approximately one-third of NSI's nutritional
products. In South Korea, the Company currently offers one-third of NSI's
personal care products and none of the nutritional products. The Company
believes that it can significantly grow its business and attract new customers
by expanding its product offerings in each of its markets to include more of
NSI's existing personal care and nutritional products. In addition to
expanding its product offerings with existing NSI products, the Company
intends to introduce new products tailored to specific markets.
The distribution of products through the network marketing and other direct
selling channels has grown significantly in recent years. The WFDSA reports
that, since 1990, worldwide direct distribution of goods and services to
consumers has increased 65%, resulting in the sale of over $75 billion of
goods and services in 1995. According to the WFDSA, $34 billion of goods and
services were sold by its members in 1995 through direct selling channels in
the markets in which the Company operates, which represents 45% of the global
volume of direct sales by its members.
OPERATING STRENGTHS
The Company believes that its success is due to its commitment to provide a
wide range of premium quality, innovative personal care and nutritional
products and an appealing global business opportunity for persons interested
in establishing a direct sales business. The Company has been able to achieve
rapid, sustained and profitable growth by capitalizing on the following
operating strengths:
40
PREMIUM PRODUCT OFFERINGS. The Company is committed to building its brand
name and distributor and customer loyalty by selling premium quality,
innovative personal care and nutritional products that appeal to broad
markets. This commitment is illustrated by the Company's personal care
products slogan "All of the Good and None of the Bad" and its nutritional
products slogan "Adding Life to Years." The Company offers products designed
for the direct selling channel by focusing on innovative consumable products
which build loyalty and lead to repeat purchases. Management believes that the
Company's focus on innovative products supports its distributors'
demonstrative and educational sales techniques.
GLOBAL DISTRIBUTOR COMPENSATION PLAN. The Company believes that one of the
strengths of the Global Compensation Plan is its seamless integration across
all markets in which NSI products are sold. By entering into international
sponsoring agreements with NSI, distributors are authorized to sponsor new
distributors in each country where NSI or the Company has operations. This
allows distributors to receive commissions for sales at the same rate for
sales in foreign countries as for sales in their home country. This is a
significant benefit to distributors because they are not required to establish
new distributorships or requalify for higher levels of commissions within each
new country in which they begin to operate. The seamless integration of the
Global Compensation Plan means that distributor knowledge and experience can
be used to rapidly build distributor leadership in new markets. See "Reliance
Upon NSI Independent Distributors."
HIGH LEVEL OF DISTRIBUTOR INCENTIVES. The Company believes that the Global
Compensation Plan is among the most financially rewarding plans offered to
distributors by network marketing companies. There are two fundamental ways in
which distributors can earn money: (i) through retail markups, for which the
Company recommends a range from 43% to 60%; and (ii) through a series of
commissions on each product sale which can result in commissions to
distributors aggregating up to 58% of such product's wholesale price. On a
global basis, however, commissions have averaged from 40% to 42% of revenue
from commissionable sales over the last seven years. See "Risk Factors--
Increase in Distributor Compensation Expense."
NEW MARKET DEVELOPMENT PROGRAM. The Company has developed a low cost,
disciplined approach to opening new markets. Each market opening is preceded
by a thorough analysis of economic and political conditions, regulatory
standards and other business, tax and legal issues. Prior to a market opening,
the Company's management team, in conjunction with NSI support personnel,
local legal counsel and tax advisors, works to obtain all necessary regulatory
approvals and establish facilities capable of meeting distributor needs. This
market development approach, combined with the Global Compensation Plan, which
motivates distributors to train and sponsor other distributors to sell
products in new markets, has enabled the Company to quickly and successfully
open new markets. See "Risk Factors--Entering New Markets."
DISTRIBUTOR SUPPORT PROGRAMS. The Company is committed to providing a high
level of support services tailored to the needs of its distributors in each
market. The Company meets the needs and builds the loyalty of its distributors
with personalized distributor service, a support staff that assists
distributors as they build networks of downline distributors, and a liberal
product return policy. The Company provides walk-in, telephonic and
computerized product fulfillment and tracking services that result in user-
friendly, timely product distribution. Each walk-in center maintains meeting
rooms which distributors may utilize in training and sponsoring activities.
RELATIONSHIP WITH NSI. NSI, founded in 1984 and based in Provo, Utah, is
engaged in selling personal care and nutritional products and, together with
its affiliates, comprises one of the largest network marketing organizations
in the world. NSI has provided, and will continue to provide, a high level of
support services to the Company, including product development, marketing and
other managerial support services. Management believes that the Company's
relationship with NSI has allowed the Company to increase revenue and net
income at rates that otherwise may not have been possible. Since distributor
agreements are entered into between NSI and distributors, all of the
distributors who generate revenue for the Company are distributors of NSI. See
"Risk Factors--Relationship with and Reliance on NSI; Potential Conflicts of
Interest." Because of this fact, the Company cannot control who becomes a
distributor.
41
EXPERIENCED MANAGEMENT TEAM. The Company's senior management team, members
of which founded NSI, has been instrumental in successfully managing the
growth in revenue and net income experienced by the Company to date. The
Company has also attracted experienced local general managers to oversee
operations in Japan, Taiwan, Hong Kong and South Korea.
GROWTH STRATEGY
The Company's primary objective is to capitalize on its operating strengths
to become a leading distributor of consumer products in each of its markets.
Specifically, the Company's strategy to increase revenue and net income is as
follows:
INTRODUCE NEW PRODUCTS. Because new products tend to increase sales by
existing distributors and attract new distributors, the Company intends to
continue introducing existing and new NSI products. For example, LifePak, the
Company's most successful nutritional product was introduced in Japan in 1995,
where it has grown to represent approximately 17% of revenue. In October 1996,
the Company introduced LifePak in Taiwan and intends, subject to regulatory
approval, to introduce LifePak in Hong Kong in 1997. In addition, the Company
expects to launch Epoch, a new line of ethnobotanical personal care products,
in all markets by mid-1997. The Company also intends to introduce products
tailored to specific demographic and geographic market segments and will
consider introducing entirely new product categories in the future. See "Risk
Factors--Government Regulation of Products and Marketing."
OPEN NEW MARKETS. The Company will continue to pursue attractive new market
opportunities. Thailand is the next country in which the Company intends to
commence operations, subject to receipt of necessary government approvals. The
Company's preparatory work for Thailand is currently ongoing. In addition, the
Company has conducted preliminary investigations on the feasibility of
commencing operations in Indonesia, Malaysia, the Philippines, the PRC,
Singapore and Vietnam. The Company believes that these countries may represent
significant markets for the future expansion of its operations, provided that
the Company can secure the required regulatory and business permits. See "Risk
Factors--Entering New Markets," "--Potential Negative Impact of Distributor
Actions," "--Government Regulation of Direct Selling Activities" and "--
Government Regulation of Products and Marketing."
ATTRACT NEW DISTRIBUTORS AND ENHANCE DISTRIBUTOR PRODUCTIVITY. To date, the
Company has enjoyed significant growth in the number of its active
distributors (defined as those distributors which have purchased products from
the Company during the previous three months). By leveraging its operating
strengths, the Company intends to continue to create and maintain a business
climate to promote the growth in the number of active distributors and to
increase distributor retention, motivation and productivity. In addition, the
Company will pursue growth in the number of active distributors by continuing
to work with NSI to enhance the Global Compensation Plan, initiating an
innovative distributor equity incentive program, selectively opening new
distributor walk-in centers to provide a local presence in additional key
cities, enhancing distributor recognition programs, and targeting inactive
distributors who may still have an interest in the Company's business
opportunity or products. See "Shares Eligible for Future Sale."
INCREASE PRODUCT CONSUMPTION. The Company intends to increase sales to new
and existing consumers through (i) increasing product promotions in marketing
literature, (ii) increasing the availability of sample packages, (iii)
emphasizing product "systems," such as the HairFitness system of various
shampoos and conditioners, which leads to the purchase of multiple products
rather than a single product, and (iv) implementing an automatic reordering
system which is designed to result in convenient repeat purchases.
INDUSTRY OVERVIEW
The distribution of products through the network marketing and other direct
selling channels has grown dramatically in recent years. The WFDSA reports
that, since 1990, worldwide direct distribution of goods and services to
consumers has increased 65%, resulting in the sale of over $75 billion of
goods and services in 1995.
42
According to the WFDSA, $34 billion of goods and services were sold by its
members in 1995 through direct selling channels in the markets in which the
Company currently operates, which represents 45% of the global volume of
direct sales. The Company believes that extended family relationships, the
family culture and the extended social networks common in Asian countries are
particularly well suited to the Company's network marketing methods. The
Company also believes that a variety of recent social and economic changes
which have occurred throughout Asia have had a positive impact on the
Company's revenues and net income. Trends that have benefited the Company
include the emergence of a greater interest on the part of some Asians in
pursuing more independent entrepreneurial activities outside traditional
business settings, an increase in the number of Asian women joining the work
force and an increase in the number of Asians seeking supplemental income from
alternative sources.
The Asian retail market is generally characterized by fragmented
distribution and numerous small retailers who may have only limited knowledge
of the products they sell and may not be able to effectively demonstrate their
products to customers. In Japan, these problems are further exacerbated by the
multi-tiered, traditional Japanese distribution system which has proven
difficult for many foreign manufacturers to penetrate. Outside of Japan, the
general lack of a developed distribution infrastructure throughout Asia has
fostered and encouraged the growth of direct selling as a significant
distribution channel. Given this environment, the Company believes that the
high level of personal service provided by direct selling companies, including
convenient in-home demonstrations, easy-access product ordering, timely
delivery and product return policies, provides additional value to consumers.
In addition, rapidly growing Asian economies and a growing demand in Asia for
Western brand name products has fueled the growth and demand for high quality
consumer products.
COUNTRY PROFILES
The following table sets forth the Company's revenue and the total number of
active distributors for each of the countries in which the Company currently
operates for the years ended December 31, 1994 and 1995 and for the nine
months ended September 30, 1996.
NINE
MONTHS
YEAR ENDED DECEMBER 31, ENDED
----------------------- SEPTEMBER 30,
COUNTRY 1994 1995 1996
------- ----------- ----------- -------------
(DOLLARS IN THOUSANDS)
Revenue:
Japan................................ $ 172,960 $ 231,540 $265,072
Taiwan............................... 79,219 105,415 107,023
Hong Kong............................ 10,880 17,046 12,133
South Korea(/1/)..................... -- -- 83,697
----------- ----------- --------
Total(/2/)......................... $ 263,059 $ 354,001 $467,925
=========== =========== ========
Active Distributors(/3/)(/4/):
Japan................................ 106,000 147,000 182,000
Taiwan............................... 53,000 75,000 81,000
Hong Kong............................ 11,000 14,000 12,000
South Korea(/1/)..................... -- -- 56,000
----------- ----------- --------
Total.............................. 170,000 236,000 331,000
=========== =========== ========
--------
(1) The Company commenced operations in South Korea in February 1996.
(2) Operating expenses have increased with the growth of the Company's
revenue. However, as a percentage of revenue such expenses have
declined due to improved operating leverage. In addition, total
revenue does not include sales of certain products to NSI
affiliates in Australia and New Zealand of $1.4 million, $4.6
million and $3.4 million in 1994, 1995 and the first nine months
of 1996, respectively.
(3) "Active Distributors" include only those distributors who
purchased products from the Company during the three months ended
as of the date indicated.
(4) Numbers are rounded to the nearest thousand.
43
The following table sets forth certain estimated economic and demographic
data regarding the Company's markets:
REAL GDP
1995 POPULATION 1995 GDP 1995 GDP GROWTH
COUNTRY (IN MILLIONS) (IN BILLIONS OF $) PER CAPITA (IN $) 1995/1994(%)
------- --------------- ------------------ ----------------- ------------
Japan................... 125.3 $4,645.5 $37,672 0.9%
Taiwan.................. 21.2 259.9 13,403 6.1
Hong Kong............... 6.2 144.3 26,442 5.0
South Korea............. 44.9 446.4 11,422 8.1
- --------
Source: World Information Services; Country Data Forecasts March, 1996.
JAPAN. The Company, through its subsidiary Nu Skin Japan, commenced
operations in Japan in April 1993. According to the WFDSA, the direct selling
channel in Japan generated sales of approximately $30 billion of goods and
services in 1995, making Japan the largest direct selling market in the world.
Management believes that as many as six million people are involved in direct
selling businesses in Japan. Network marketing activities and the sale of the
Company's products are subject to significant government regulation in Japan.
See "Risk Factors--Government Regulation of Direct Selling Activities" and "--
Government Regulation of Products and Marketing."
To date, the Company has experienced significant growth in Japan, where
revenue increased 34% in 1995 compared to 1994 and has continued to grow at
53% on an annualized basis for the nine months ended September 30, 1996.
Significant revenue was recognized from the outset of the Company's operations
in Japan due to the immediate attention given to the market by leading NSI
distributors from around the world. A great deal of the Company's success to
date can be directly attributed to the growth of its Japanese business in
recent years. Furthermore, given the size of the Japanese market, management
believes that there is significant opportunity for expansion of its market
share. Nu Skin Japan currently offers 52 of the 80 NSI personal care products
and 10 of the 30 IDN products, including LifePak, the core IDN product.
Additionally, Nu Skin Japan offers 11 personal care products that are
manufactured in Japan and are specifically targeted to the Japanese market.
In support of the Company's growth strategy, Nu Skin Japan intends to (i)
focus on internal country development by opening offices in additional
Japanese cities, thereby increasing consumer awareness and enhancing the
Company's image; (ii) expand development capacity to develop more products
that are particularly suited to the Japanese market; and (iii) enhance
corporate support of distributors by upgrading information technology
resources.
TAIWAN. The Company, through its subsidiary Nu Skin Taiwan, commenced
operations in Taiwan in January 1992. According to the WFDSA, the direct
selling channel in Taiwan generated approximately $2 billion in sales of goods
and services in 1995, of which 43% were nutritional products. Currently, two
million people (approximately 10% of the population) are estimated to be
involved in direct selling. Since a significant percentage of its population
is involved in direct selling activities, the Taiwanese government regulates
direct selling activities to a significant extent. For example, the Taiwan
government recently enacted tax legislation aimed at ensuring proper tax
payments by distributors on their transactions with end consumers. See "Risk
Factors--Government Regulations of Direct Selling Activities" and "--
Government Regulation of Products and Marketing."
Revenue growth in Taiwan has averaged 52% on an annualized basis since 1992.
The Company believes that the recent increase in sales is primarily due to (i)
the opening of walk-in centers in Kaohsiung and Taichung; (ii) increased
distributor training and recognition; and (iii) increased product offerings.
Based on information provided by the Taiwan Direct Selling Association, Nu
Skin Taiwan is the third largest direct selling business in Taiwan. Management
believes that Nu Skin Taiwan has captured approximately 31% and 1% of the
market for personal care products and nutritional supplements, respectively,
sold through the direct selling channel. Nu Skin Taiwan currently offers 60 of
the 80 NSI personal care products and 7 of the 30 IDN products.
44
In support of the Company's growth strategy, Nu Skin Taiwan intends to (i)
capitalize on the size of the nutritional supplements market by expanding the
current product offerings in Taiwan to include additional NSI products, in
particular LifePak, which, subject to regulatory approval, is scheduled for
introduction in Taiwan by the end of 1996, (ii) focus more resources on
product development specifically for the Taiwanese market, (iii) add
additional walk-in distribution and distributor support centers in additional
major cities, and (iv) enhance corporate support of distributors by upgrading
information technology resources.
HONG KONG. The Company, through its subsidiary Nu Skin Hong Kong, commenced
operations in Hong Kong in September 1991. According to the WFDSA, the direct
selling channel in Hong Kong generated approximately $78 million in sales of
goods and services in 1995. Hong Kong represents an important market in the
structure of the Asian region because it serves as the location of the
Company's regional office and is an important base of operations for many of
the Company's most successful distributors, whose downline distributor
networks extend into other Asian markets. Nu Skin Hong Kong currently offers
74 of the 80 NSI personal care products and 13 of the 30 IDN products.
Hong Kong is currently a British Crown Colony and is scheduled to become a
Special Administrative Region (SAR) of the PRC effective July 1, 1997. The
further integration of the Hong Kong economy and political system with the
economy and political system of the PRC could have an impact on the Company's
business in Hong Kong. See "Risk Factors--Possible Adverse Effect on the
Company of a Change in the Status of Hong Kong."
In February 1995, Macau, a Portuguese colony scheduled to become an SAR of
the PRC in 1999, was opened as a new market. Revenue figures for Macau are
combined with those of Hong Kong. Macau represents the smallest of the
Company's markets in population, with just under 500,000 residents. The
Company's Macau office works under the direction of Nu Skin Hong Kong.
In support of the Company's growth strategy, Nu Skin Hong Kong intends to
(i) promote distributor growth, retention and leadership development through
local initiatives such as a recently opened "distributor business center,"
which provides offices for distributors to rent, at cost, from which they can
conduct business; (ii) seek regulatory approvals for the introduction of
LifePak; which is not yet available in Hong Kong, and (iii) stimulate
purchases from inactive distributors through direct mail campaigns.
SOUTH KOREA. The Company, through its subsidiary Nu Skin Korea, commenced
operations in South Korea in February 1996. According to the WFDSA, the direct
selling channel in South Korea generated approximately $1.7 billion in sales
of goods and services in 1995. South Korea's new direct sales legislation,
which went into effect in July 1995, requires companies to comply with
numerous provisions, such as local registration, reporting of certain
operating results and dissemination of certain information regarding the laws
to distributors. See "Risk Factors--Government Regulations of Direct Selling
Activities" and "--Government Regulation of Products and Marketing."
The Company's sales in South Korea exceeded $83 million through September
30, 1996, making the Company the second largest direct seller in the country.
Nu Skin Korea currently offers 27 of the 80 NSI personal care products and
none of the IDN products. Nu Skin Korea was among the first foreign-owned
firms to register and begin operations under the new direct selling
legislation. Management believes that significant competition will soon enter
the South Korean market. See "Risk Factors--Competition" and "--Competition."
In support of the Company's growth strategy, Nu Skin Korea intends to (i)
continue to add products from NSI's personal care product line to stimulate
new sales; (ii) seek regulatory approvals for the introduction of IDN
products; (iii) continue to develop an infrastructure to support a rapidly
growing distributor base, including, but not limited to, adding additional
walk-in centers in major South Korean cities; and (iv) promote the development
of local distributor leadership.
45
NEW MARKET OPPORTUNITIES
The Company has developed a low cost, disciplined approach to opening new
markets. Each market opening is preceded by a thorough analysis of economic
and political conditions, regulatory standards and other business, tax and
legal issues. Prior to a market opening, the Company's management team, in
conjunction with NSI support personnel, local legal counsel and tax advisors,
works to obtain all necessary regulatory approvals and establish facilities
capable of meeting distributor needs. This approach, combined with the Global
Compensation Plan, which motivates distributors to sponsor and train other
distributors to sell products in new markets, has enabled the Company to
quickly and successfully open new markets.
The Company, as a matter of policy, does not announce the timing of its
opening of new markets. However, the Company has announced that its next new
market expansion efforts will be in Thailand and anticipates opening this
market upon receipt of all final government approvals. In addition to
Thailand, the Company is the exclusive distributor of NSI products in
Indonesia, Malaysia, the Philippines, the PRC, Singapore and Vietnam. The
Company believes that these countries collectively represent significant
markets for future expansion. There are, however, significant risks and
uncertainties associated with this expansion. Given existing regulatory
environments and economic conditions, the Company's entrance into Singapore
and Vietnam is not anticipated in the short to mid-term. See "Risk Factors--
Entering New Markets."
The following table sets forth certain economic and demographic data
regarding the countries for which the Company has an exclusive license but in
which the Company has not commenced operations.
1995 POPULATION 1995 GDP 1995 GDP REAL GDP GROWTH
COUNTRY (IN MILLIONS) (IN BILLIONS OF $) PER CAPITA (IN $) 1995/1994(%)
------- --------------- ------------------ ----------------- ---------------
Thailand................ 60.7 $ 162.7 $ 3,033 8.6%
Indonesia............... 203.1 196.4 1,066 8.0
Malaysia................ 20.0 86.5 4,826 9.6
Philippines............. 68.9 74.6 1,186 4.8
PRC..................... 1,227.0 673.5 680 10.2
Singapore............... 3.0 79.2 29,573 8.9
Vietnam................. 74.7 22.8 379 9.5
--------
Source: World Information Services; Country Data Forecasts March, 1996.
THAILAND. According to the WFDSA, direct sales in 1995 totaled $562 million
in Thailand. This makes Thailand the sixteenth largest direct selling market
worldwide. In opening the Thailand market, the Company does not anticipate a
material departure from its traditional business model.
INDONESIA. Although historically not open to foreign investment
opportunities, Indonesia has experienced a recent emphasis on deregulation and
private enterprise and an average annual growth in GDP of 6% from 1985 to
1994. The Indonesian Direct Selling Association reports that there are 600,000
participants in direct selling in the country. Management believes that the
combination of the above factors creates an attractive opportunity for
expansion.
MALAYSIA. According to the WFDSA, more than $640 million in goods and
services were sold through the direct selling channel in Malaysia in 1995.
There are currently several direct selling companies operating in Malaysia. In
October 1995, the Company's business permit applications were denied by the
Malaysian government as the result of activities by certain NSI distributors
before required government approvals could be secured. See "Risk Factors--
Potential Negative Impact of Distributor Actions" and "--Potential Effects of
Adverse Publicity." Management is reevaluating the time frame in which it will
reapproach the Malaysian market.
PHILIPPINES. Even though the per capita GDP in the Philippines is low, the
Company believes that there is demand for premium personal care and nutrition
products, especially near Manila, the capital city, which, in 1995, had a
population of 11 million. Management believes that nearly $500 million of
goods and services are sold annually through the direct selling channel and
that more than 20 international direct selling companies currently operating
in the Philippines.
46
PRC. With the PRC's large population and the Company's success in the
neighboring and Chinese-speaking countries of Hong Kong and Taiwan, management
believes that the PRC will be an attractive market for the Company. The PRC
government and local jurisdictions have recently initiated rules and
regulations for network marketing companies. The Company believes that it will
be able to comply with these regulations in operating a network marketing
business in the PRC.
SINGAPORE. In Singapore, relatively high levels of GDP per capita indicate
that the country enjoys strong consumer buying power and a dynamic market
structure similar to Hong Kong. Although direct selling activities are
permitted, currently network marketing is not allowed in Singapore.
Accordingly, the Company's entrance into Singapore is not anticipated in the
short to mid-term.
VIETNAM. The Company believes that there is little or no direct selling
activity in Vietnam. However, the country is moving towards a market-based
economy and has recently adopted a freely convertible currency. The Company
anticipates that the increase in free enterprise will help to develop the
direct selling channel. However, given existing regulatory environmental and
economic conditions, the Company's entrance into Vietnam is not anticipated in
the short to mid-term.
DISTRIBUTION SYSTEM
OVERVIEW OF DISTRIBUTION SYSTEM. The foundation of the Company's sales
philosophy and distribution system is network marketing. Under most network
marketing systems, distributors purchase products for retail sale or personal
consumption. Pursuant to the Global Compensation Plan, products are sold
exclusively to or through independent distributors who are not employees of
the Company or NSI. Distributors contract directly with NSI, and NSI makes
such distributors available to the Company through Licensing and Sales
Agreements. See "--Relationship with NSI" and "Certain Relationships and
Related Transactions."
Network marketing is an effective vehicle to distribute the Company's
products because (i) a consumer can be educated about a product in person by a
distributor, which is more direct than the use of television and print
advertisements; (ii) direct sales allow for actual product testing by a
potential consumer; (iii) the impact of distributor and consumer testimonials
is enhanced; and (iv) as compared to other distribution methods, distributors
can give customers higher levels of service and attention, by, among other
things, delivering products to a consumer's home and following up on sales to
ensure proper product usage, customer satisfaction, and to encourage repeat
purchases. Under most network marketing systems, independent distributors
purchase products either for resale or for personal consumption.
Direct selling as a distribution channel has been enhanced in the past
decade due to advancements in communications, including telecommunications,
and the proliferation of the use of videos and fax machines. Direct selling
companies can now produce high quality videos for use in product education,
demonstrations and sponsoring sessions that project a desired image for the
Company and the product line. Management believes that high quality sales aids
play an important role in the success of distributor efforts. For this reason,
NSI maintains an in-house staff of video production personnel and video and
audio cassette duplication equipment for timely and cost-effective production
of sales materials. These facilities and expertise are available for the
Company's use. Management is committed to fully utilizing current and future
technological advances to continue enhancing the effectiveness of direct
selling.
NSI's network marketing program differs from many other network marketing
programs in several respects. First, the Global Compensation Plan allows NSI
distributors to develop a seamless global network of downline distributors.
Second, NSI's order and fulfillment systems eliminate the need for
distributors to carry significant levels of inventory. Third, the Global
Compensation Plan is among the most financially rewarding plans offered to
distributors by network marketing companies, and can result in commissions to
distributors aggregating up to 58% of a product's wholesale price. On a global
basis, commissions have averaged 40% to 42% of revenue from commissionable
sales over the last seven years. See "Risk Factors--Potential Increase in
Distributor Compensation Expense."
SPONSORING. The Company relies solely on its distributor force to sponsor
new distributors. While the Company provides, at cost, product samples,
brochures, magazines and other sales materials, distributors are primarily
responsible for educating new distributors with respect to products, the
Global Compensation Plan, and how to build a successful distributorship.
47
The sponsoring of new distributors creates multiple levels in the network
marketing structure. Persons whom a distributor sponsors are referred to as
"downline" or "sponsored" distributors. If downline distributors also sponsor,
they create additional levels in the structure, but their downline
distributors remain part of the same downline network as their original
sponsoring distributor. See "Risk Factors--Reliance on Certain Distributors;
Potential Divergence of Interests between Distributors and the Company."
Sponsoring activities are not required of distributors. However, because of
the financial incentives provided to those who succeed in building a
distributor network, the Company believes that most of its distributors
attempt, with varying degrees of effort and success, to sponsor additional
distributors. Generally, distributors invite friends, family members and
acquaintances to sales meetings where Company products are presented and where
the Global Compensation Plan is explained. People are often attracted to
become distributors after using Company products and becoming regular retail
customers. Once a person becomes a distributor, he or she is able to purchase
products directly from the Company at wholesale prices for resale to consumers
or for personal consumption. The distributor is also entitled to sponsor other
distributors in order to build a network of distributors and product users.
A potential distributor must enter into a standard distributor agreement
with NSI which obligates the distributor to abide by NSI's policies and
procedures. Additionally, in all countries except Japan, a new distributor is
required to enter into a product purchase agreement with the Company's local
Subsidiary, which governs product purchases. In Japan, Taiwan and Hong Kong,
distributors are also required to purchase a starter kit, which includes NSI's
policies and procedures, for between $55 and $85, which essentially represents
the cost of producing the starter kit, and active distributors are required to
pay the Company an Annual Materials Fee ("AMF") of up to $35 to cover the cost
of newsletters, magazines and updates that are mailed regularly to them. In
South Korea, due to local regulations, distributors are not required to
purchase a starter kit, and active distributors are not required to pay an
AMF.
GLOBAL COMPENSATION PLAN. Management believes that one of the Company's key
competitive advantages is the Global Compensation Plan, which it licenses from
NSI. The Global Compensation Plan is seamlessly integrated across all markets
in which NSI products are sold. This seamless integration means that the
Company's distributor base has global reach and that the knowledge and
experience resident in current distributors can be used to build distributor
leadership in new markets. By entering into international sponsoring
agreements with NSI, distributors are authorized to sponsor new distributors
in each country where NSI or the Company has operations. These countries
currently include the U.S., the United Kingdom, Puerto Rico, Canada, Taiwan,
Hong Kong (including Macau), Japan, South Korea, Australia, New Zealand,
Ireland, Germany, France, the Netherlands, Belgium, Italy, Spain, Mexico and
Guatemala. This allows distributors to receive commissions at the same rate
for sales in foreign countries as for sales in their home country. This is a
significant benefit to distributors because they are not required to establish
new distributorships or requalify for higher levels of commissions within each
new country in which they begin to operate. Under the Global Compensation
Plan, a distributor is paid consolidated monthly commissions in the
distributor's home country, in local currency, for product sales in that
distributor's global downline distributor network. Current and future
distributor lists have been licensed by NSI to the Company, pursuant to
Licensing and Sales Agreements. See "--Relationship with NSI" and "Certain
Relationships and Related Transactions."
The Global Compensation Plan allows an individual the opportunity to develop
a business, the success of which is based upon that individual's level of
commitment, time, enthusiasm, personal skills, contacts, and motivation. For
many, a distributorship is a very small business, in which products may be
purchased primarily for personal consumption and for resale to relatively few
customers. For others, a distributorship becomes a full-time occupation.
HIGH LEVEL OF DISTRIBUTOR INCENTIVES. Based upon its knowledge of network
marketing distributor compensation plans, the Company believes that the Global
Compensation Plan is among the most financially rewarding plans offered to
distributors by network marketing companies. There are two fundamental ways in
which distributors can earn money: (i) through retail markups, for which the
Company recommends a range from
48
43% to 60%; and (ii) through a series of commissions on product sales, which
can result in commissions to distributors aggregating up to 58% of such
product's wholesale price. On a global basis, however, commissions have
averaged from 40% to 42% of revenue from commissionable sales for each of the
last seven years. See "Risk Factors--Potential Increase in Distributor
Compensation Expense."
Each product carries a specified number of sales volume points. Commissions
are based on total personal and group sales volume points per month. Sales
volume points are essentially based upon a product's wholesale cost, net of
any point of sale taxes. As a distributor's retail business expands and as he
or she successfully sponsors other distributors into the business who in turn
expand their own businesses, he or she receives a higher percentage of
commissions.
Once a distributor becomes an executive ("Executive"), the distributor can
begin to take full advantage of the benefits of commission payments on
personal and group sales volume. To achieve Executive status, a distributor
must submit a qualifying letter of intent and achieve specified personal and
group sales volumes for a four-month period of time. To maintain Executive
status, a distributor must generally also maintain specified personal and
group sales volumes each month. An Executive's commissions increase
substantially as multiple downline distributors achieve Executive status. In
determining commissions, the number of levels of downline distributors that
can be included in an Executive's group increases as the number of executive
distributorships directly below the Executive increases.
As of the dates indicated below, the Company had the following number of
Executive distributors.
TOTAL NUMBER OF EXECUTIVE DISTRIBUTORS
AS OF DECEMBER 31, AS OF
--------------------------- SEPTEMBER 30,
EXECUTIVE DISTRIBUTORS 1992 1993 1994 1995 1996
---------------------- ----- ----- ----- ----- -------------
Japan.............................. -- 2,459 3,613 4,017 8,937
Taiwan............................. 551 1,170 2,093 3,014 4,346
Hong Kong.......................... 164 275 377 519 520
South Korea........................ -- -- -- -- 4,006
----- ----- ----- ----- ------
Total............................ 715 3,904 6,083 7,550 17,809
===== ===== ===== ===== ======
On a monthly basis, the Company and NSI evaluate requests for exemptions to
the Global Compensation Plan to determine whether technical exemptions should
be granted. While the general policy is to discourage exceptions, management
believes that the flexibility to grant such exceptions is critical in
retaining distributor loyalty and dedication. In each market, distributor
services personnel evaluate each such instance and appropriate recommendations
are made to NSI.
DISTRIBUTOR SUPPORT. The Company is committed to providing a high level of
support services tailored to the needs of its distributors in each market. The
Company meets the needs and builds the loyalty of its distributors with
personalized distributor service, a support staff that assists distributors as
they build networks of downline distributors, and a liberal product return
policy. Because many distributors have only a limited number of hours each
week to concentrate on their Nu Skin business, management believes that
maximizing a distributor's efforts through effective support of each
distributor has been and will continue to be important to the success of the
Company.
Through training meetings, annual conventions, distributor focus groups,
regular telephone conference calls and personal contacts with distributors,
the Company seeks to understand and satisfy the needs of each distributor. The
Company provides walk-in, telephonic and computerized product fulfillment and
tracking services that result in user-friendly, timely product distribution.
In addition, the Company is committed to evaluating new ideas in technology
and services, such as automatic product reordering, that the Company can
provide to distributors. The Company currently utilizes voicemail,
teleconferencing and fax services. Global Internet access (including Company
and product information, ordering abilities and group and personal sales
volume inquiries) is anticipated to be provided to distributors in the future.
Each walk-in center maintains meeting rooms which distributors may utilize in
training and sponsoring activities.
49
RULES AFFECTING DISTRIBUTORS. NSI's standard distributor agreement, policies
and procedures, and compensation plan contained in every starter and/or
introductory kit outline the scope of permissible distributor marketing
activities. The Company's distributor rules and guidelines are designed to
provide distributors with maximum flexibility and opportunity within the
bounds of governmental regulations regarding network marketing. Distributors
are independent contractors and are thus prohibited from representing
themselves as agents or employees of NSI or the Company. Distributors are
obligated to present the Company's products and business opportunity ethically
and professionally. Distributors agree that the presentation of the Company's
business opportunity must be consistent with, and limited to, the product
claims and representations made in literature distributed by the Company. No
medical claims may be made regarding the products, nor may distributors
prescribe any particular product as suitable for any specific ailment. Even
though sponsoring activities can be conducted in many countries, distributors
are prohibited from conducting marketing activities outside of countries in
which NSI and the Company conduct business and are not allowed to export
products from one country to another. Prior to the commencement of Company
operations in a new country, distributor activity is restricted to discussions
of the product line and business opportunity with personal acquaintances. See
"Risk Factors--Potential Negative Impact of Distributor Actions."
Distributors must represent that the receipt of commissions is based on
substantial efforts. Exhibiting commission statements or checks is prohibited.
Sales aids such as videotapes, promotional clothing, pens, stationary and
other miscellaneous items must be produced or pre-approved by the Company or
NSI.
Distributors may not use any form of media advertising to promote products.
Products may be promoted only by personal contact or by literature produced or
approved by the Company. Generic business opportunity advertisements (without
using either the Company or the NSI names) may be placed in accordance with
certain guidelines in some countries. NSI logos and names may not be
permanently displayed on physical premises. Distributors may not use NSI
trademarks or other intellectual property of NSI without NSI's consent.
Products may not be sold, and the business opportunity may not be promoted,
in traditional retail environments such as food markets, pharmacies and
drugstores. Nor may business be conducted at conventions, trade shows, flea
markets, swap meets, and similar events. Distributors who own or are employed
by a service-related business such as a doctor's office, hair salon, or health
club, may make products available to regular customers as long as products are
not displayed visibly to the general public in such a way as to attract the
general public into the establishment to purchase products.
Generally, distributors can receive commission bonuses only if, on a monthly
basis (i) the distributor achieves at least 100 points (approximately U.S.
$100) in personal sales volume, (ii) the distributor documents retail sales to
at least five retail customers, (iii) the distributor sells and/or consumes at
least 80% of personal sales volume, and (iv) the distributor is not in default
of any material policies or procedures.
NSI systematically reviews alleged reports of distributor misbehavior. If
NSI determines that a distributor has violated any of the distributor policies
or procedures, it may either terminate the distributor's rights completely or
impose sanctions such as warnings, probation, withdrawal or denial of an
award, suspension of privileges of a distributorship, fines or penalties,
withholding commissions until specified conditions are satisfied, or other
appropriate injunctive relief. Distributor terminations based on violations of
NSI's policies and procedures have aggregated less than 1% of the Company's
distributor force since inception. Distributors may voluntarily terminate
their distributorship at any time.
PAYMENT. Distributors pay for products prior to or shortly after shipment.
Accordingly, the Company carries minimal accounts receivable. Distributors pay
for products in one of several ways. Cash, which represents a large portion of
all payments, is received by order takers in the distribution center when
orders are personally picked up by a distributor. In addition, in Japan cash
is sent through the mail using a postal cash envelope. The Company also
accepts payment through the use of credit cards. This method of payment is
very popular in Hong Kong and Taiwan and is expected to increase in popularity
in South Korea. Another form of payment utilized in Japan is a Tososhin card,
which is essentially a distributor credit card utilized to place orders. Bank
wire transfers are also popular throughout Asia, particularly in Japan.
50
PRODUCT SUMMARY
The Company offers products in two distinct categories: personal care
products, marketed under the trademark "Nu Skin," and nutritional products,
marketed under the trademark "Interior Design Nutritionals" (IDN). The Company
is entitled to distribute NSI products in specified Asian countries pursuant
to a Regional Distribution Agreement. See "--Relationship with NSI" and "Risk
Factors--Relationship with and Reliance on NSI; Potential Conflicts of
Interest." NSI markets 80 different personal care and 30 different nutritional
products, of which 69 and 13, respectively, are available in the Company's
current markets. Nearly all products sold by the Company are purchased from
NSI, with the exception of a line of 11 personal care products which are
produced locally in Japan. In addition to products, the Company offers a
variety of sales aids, including items such as starter kits, introductory
kits, brochures, product catalogs, videotape and personal care accessories.
See "Risk Factors--Product Liability."
The following chart indicates how many of the NSI personal care and IDN
products available as of September 30, 1996, in each of the Company's current
markets.
PERSONAL CARE AND IDN PRODUCT OFFERINGS
PRODUCT CATEGORIES /PRODUCT LINES TOTAL PRODUCTS OFFERED
- --------------------------------- PRODUCTS ---------------------------
OFFERED BY HONG SOUTH
NSI JAPAN TAIWAN KONG KOREA
---------- ----- ------ ---- -----
Personal Care:
Facial Care............................... 17 10(/1/) 13 15 10
Body Care................................. 12 9 9 12 7
Hair Care................................. 14 13 13 13 10
Color Cosmetics........................... 11 11 10 10 -
Specialty................................. 26 9 15 24 -
--- --- --- --- ---
Total................................... 80 52 60 74 27
=== === === === ===
IDN:
Nutritional Supplements................... 18 8 5 10 -
Weight Management Products and Nutritious
Snacks................................... 8 1 2 3 -
Sports Nutrition.......................... 4 1 - - -
--- --- --- --- ---
Total................................... 30 10 7 13 -
=== === === === ===
--------
(1) In Japan, the Company also sells 11 locally sourced facial care
products.
Presented below are the dollar amount and percentage of revenue of each of
the two product categories and other sales aid revenue for the years ended
December 31, 1994 and 1995, and for the nine months ended September 30, 1996.
REVENUE BY PRODUCT CATEGORY
YEAR ENDED YEAR ENDED NINE MONTHS ENDED
DECEMBER 31, 1994 DECEMBER 31, 1995 SEPTEMBER 30, 1996
------------------- ------------------- --------------------
PRODUCT CATEGORY $ % $ % $ %
---------------- ---------- -------- ---------- -------- ---------- ---------
(DOLLARS IN THOUSANDS)
Personal care... $ 241,188 91.2% $ 308,145 85.9% $ 345,069 73.2%
Nutritional..... 5,464 2.1 16,298 4.5 92,241 19.6
Sales aids...... 17,788 6.7 34,166 9.6 34,002 7.2
---------- ------- ---------- ------- ---------- -------
Total......... $ 264,440 100.0% $ 358,609 100.0% $ 471,312 100.0%
========== ======= ========== ======= ========== =======
51
PERSONAL CARE PRODUCTS
The Company's current personal care products category is divided into the
following lines: facial care, body care, hair care and color cosmetics, as
well as specialty products, such as sun protection, oral hygiene and
fragrances. Each of the Subsidiaries markets a variety of the 80 personal care
products currently offered by NSI. The Company also offers product sets that
include a variety of products in each product line as well as small, sample-
size packages to facilitate product sampling by potential consumers. The
product sets are especially popular during the opening phase of a new country,
where distributors and consumers are anxious to purchase a variety of
products, and during holiday and gift giving seasons in each market. The
Company anticipates the introduction of additional personal care products into
each market, based on the likelihood of the particular product's success in
the market as well as applicable regulatory approvals. See "Risk Factors--
Government Regulation of Products and Marketing."
The personal care products offered in Taiwan and Hong Kong are substantially
the same formulations of the products offered by NSI in the U.S. In Japan and
South Korea, however, most of the products have been reformulated to satisfy
certain regulatory requirements with respect to product ingredients and
preservatives and to meet the preferences of Japanese and South Korean
consumers.
The following is a brief description of each line within the personal care
product category offered by the Company as of September 30, 1996:
FACIAL CARE. The goal of the facial care line is to allow users to cleanse
thoroughly without causing dryness and to moisturize with effective humectants
that allow the skin to attract and retain vital water. The Company's facial
care line currently consists of 17 different products: Cleansing Lotion,
Facial Scrub, Exfoliant Scrub, Facial Cleansing Bar, Clay Pack, pH Balance
Facial Toner, NaPCA Moisturizer, Rejuvenating Cream, Celltrex (called Hylatrex
in Japan and South Korea), Intensive Eye Complex, HPX Hydrating Gel, Face Lift
and Activator (two formulas for sensitive and normal skin), Jungamals Lip
Balm, Clarifex Cleansing Scrub, Clarifex Mud, Alpha Extra Face and Nu Colour
Eye Makeup Remover.
BODY CARE. The Company's line of body care products relies on premium
quality ingredients to cleanse and condition skin. The cleansers are uniquely
formulated without soap, and the moisturizers contain light but effective
humectants and emollients. The Company's body care line currently consists of
12 products: Antibacterial Body Cleansing Gel, Liquid Body Lufra, Body
Smoother, Hand Lotion, NaPCA Moisture Mist, Body Bar, Body Cleansing Gel,
Enhancer, Glacial Marine Mud (Original), Jungamals Crazy Crocodile Cleaner,
Jungamals Rhino Ray Resister and Alpha Extra Body. Glacial Marine Mud
(Original) is exclusively licensed to NSI for sale in the direct selling
channel.
HAIR CARE. The Company's hair care line, HairFitness, is designed to meet
the needs of people with all types of hair and hair problems. Focusing on the
condition of the scalp and its impact on hair quality, the Company's hair care
products use water-soluble conditioners like panthenol to reduce build-up on
the scalp and to promote healthy hair. HairFitness includes 12 products
featuring ceregen, a revolutionary wheat hydrocolloid complex of conditioning
molecules that have been shown to have dramatic hair repair and moisture
control aspects: 3 in 1 Shampoo, Moisturizing Shampoo, Balancing Shampoo,
Vital Shampoo, Deep Clarifying Shampoo, Glacial Therapy, Weightless
Conditioner, Luxurious Conditioner, Conditioning Detangler Spray, Styling Gel,
Holding Spray and Mousse (Styling Foam). The Company also carries Dermanator
Shampoo and Jungamals Tiger Tangle Tamer Shampoo.
COLOR COSMETICS. In the latter part of 1995, the Company introduced Nu
Colour, a new line of color cosmetics, in Hong Kong, Taiwan and Japan. The Nu
Color line consists of 11 products with 72 sku's including MoistureShade
Liquid Finish (10), MoistureShade Pressed Powder (4), Blush Duo (5), Eye
Shadow Trio (6), Mascara (2), Eyeliner (3), Lip Liner (5), Lipstick (20),
DraMATTEics Lip Pencils (6), Nu Colour Moisture Finish (10), and Lip Gloss.
SPECIALTY PRODUCTS. The Company recently introduced a product line labeled
Epoch, a unique line of ethnobotanical personal care products created in
cooperation with well known ethnobotanists. These products,
52
which unite natural compounds used by indigenous cultures with advanced
scientific ingredients, include Glacial Marine Mud, Deodorant with Citrisomes,
Polishing Bar, LeafClean Hand Wash, Everglide Foaming Shave Gel, Desert Breeze
Aftershave and Post Shave Lotion for Women. Epoch was launched in October of
1996 in Hong Kong and Taiwan and is currently expected to be launched, subject
to regulatory approval, in the spring of 1997 in Japan and South Korea.
Glacial Marine Mud is exclusively licensed to NSI for sale in the direct
selling channel.
Nutriol, a line of products exclusively licensed to NSI for sale in the
direct selling channel and manufactured in Europe, consists of five products:
Nutriol Hair Fitness Preparation, Nutriol Shampoo, Nutriol Mascara, Nutriol
Nail and Nutriol Eyelash. Nutriol represents a product designed to replenish
the hair's vital minerals and elements. Each Nutriol product uses
mucopolysaccharide, a patented ingredient.
The Company's line of Sunright products is designed to provide a variety of
sun screen protection with non-irritating and non-greasy products. The sun
protection line includes a sun preparation product that prepares the skin for
the drying impact of the sun, five sun screen alternatives with various levels
of SPF, and a sun screen lip balm. In the Asian market, the Company's sun care
line is currently available in Hong Kong and Japan. At present, Sunright Prime
Pre & Post Sun Moisturizer and Sunright Lip Balm are not available in Japan.
AP-24, a line of oral health care products which incorporates anti-plaque
technology designed to help prevent plaque build-up 24 hours a day, is
exclusively licensed to the Company, together with the associated trademark,
for sale in the direct selling channel under the trademark AP-24. This product
line includes AP-24 Anti-Plaque Toothpaste, AP-24 Anti-Plaque Mouthwash, AP-24
Triple Action Dental Floss and AP-24 Anti-Plaque Breath Spray. These products
are currently available in Hong Kong and Taiwan. The Company currently intends
to launch this product line, subject to regulatory approval, in South Korea
and Japan in 1997. The AP-24 oral health care products for kids offers
products designed to make oral care fun for children, including Jungamal's
Tough Tusk Toothpaste and Jungamal's Fluffy Flamingo Floss.
The Company offers a men's and a women's fragrance under the Nu Skin
trademark Safiro.
PRODUCT SETS. The Company currently offers product sets that include a
sampling of products from a given product line. These package configurations
are intended to encourage increased product trials.
INTERIOR DESIGN NUTRITIONALS
The IDN product category is comprised of 30 products in the following lines:
nutritional supplements, weight management products and nutritious snacks, and
sports nutrition. IDN is designed to promote healthy, active lifestyles and
general well-being through proper diet, exercise and nutrition. Although less
developed in the Asian market than the personal care category, each of the
Subsidiaries, except Nu Skin Korea, markets a variety of the IDN products
offered by NSI. In the United States, the IDN division is an official licensee
of the U.S. Olympic Committee.
The Company believes that the nutritional supplement market is expanding in
Asia because of changing dietary patterns, a health-conscious population and
recent reports supporting the benefits of using vitamin and mineral
nutritional supplements. This product line is particularly well suited to
network marketing because the average consumer is often uneducated regarding
nutritional products. The Company believes that network marketing is a more
efficient method than traditional retailing channels in educating consumers
regarding the benefits of nutritional products. Because of the numerous over-
the-counter vitamin and mineral supplements in Asia, the Company is confident
that individual attention and testimonials by distributors will provide
information and comfort to a potential consumer.
IDN products generally require reformulation to satisfy the strict
regulatory requirements of each Asian market. While each product's concept and
positioning are generally the same, regulatory differences between U.S. and
Asian markets result in some product ingredient differences. See "Risk
Factors--Government Regulation of Products and Marketing." In addition, Asian
preferences and regulations favor tablets instead of gel caps, which are
typically used in the U.S.
53
The following is a brief description of each of the IDN product lines:
NUTRITIONAL SUPPLEMENTS. LifePak, the core IDN nutritional supplement, is
designed to provide an optimum mix of nutrients including vitamins, minerals,
antioxidants and phytonutrients (natural chemical extracts from plants). The
introduction of LifePak in Japan in October 1995 resulted in a significant
increase in revenue and currently represents 17% of the Company's revenue in
Japan. LifePak was launched in Taiwan in October of 1996.
Additional nutritional supplements include: Vitox, which incorporates beta
carotene and other important vitamins for overall health; Metabotrim, which
provides B vitamins necessary to convert food to energy and chromium chelate
which has been shown to help in the body's normal metabolic process; Optimum
Omega, a pure source of omega 3 fatty acids aimed to assist cardiovascular
health; Image HNS, an all-around vitamin and antioxidant supplement; and
Optigar Q, a blend of co-enzyme Q10 and deodorized garlic. The IDN Masters
Wellness Supplement provides nutrition specifically for an aging generation.
Jungamals Children's Chewables combine natural flavors and colors and contain
a unique blend of antioxidants, chelated minerals, and vitamins specifically
tailored for children. NutriFi contains four grams of soluble and insoluble
fibers per serving in a powder that can be added to liquids and foods to
supplement the recommended daily amounts of fiber.
The Company also offers a number of nutritional drinks. Hot & Healthy,
unlike traditional hot drinks, is 100% caffeine-free and contains beneficial
ingredients such as Korean Panax Ginseng and grape seed extract. Splash C with
juice crystals is a healthy beverage providing significant doses of vitamins C
and E as well as calcium in each serving. Real fruit juice crystals are added
to create orange or lemon flavor.
IDN's botanical line contains phytonutrients for those who seek natural
ingredients in dietary supplements and is designed to address specific areas
of need. The botanicals, offered in eight different dietary supplements,
provide natural ingredients without sugar, salt, wheat, dairy products,
artificial colors, chemicals or preservatives.
WEIGHT MANAGEMENT PRODUCTS AND NUTRITIOUS SNACKS. As part of the Company's
mission to promote a healthy lifestyle and long-term wellness, IDN includes a
HealthTrim Lifestyle System (which includes LifePak Trim, Fiberry Fat-Free
Snack Bars and Appeal Lite, a nutritional drink containing chelated minerals
and vitamins), and instructional assessment materials with a counseling
program. The Company also offers Breakbars, a nutritious snack which provides
carbohydrates, protein and fiber.
SPORTS NUTRITION. To cater to health conscious individuals with active
lifestyles, the IDN Sports Nutrition System offers a comprehensive, flexible
program for individuals who desire to optimize performance on an individual
basis. The system includes LifePak, OverDrive, a sports supplement licensed by
the U.S. Olympic Committee that features antioxidants, B vitamins and chromium
chelate, GlycoBar energy bars, and SportaLyte performance drink to help supply
the necessary carbohydrates, electrolytes and chelated minerals to optimize
performance. AminoBuild is a low fat high protein drink mix that is designed
to replace nutrients before and after workouts.
SALES AIDS
The Company provides an assortment of sales aids to facilitate the sales of
its products. Sales aids include videotapes, promotional clothing, pens,
stationary, business cards, brushes, combs, cotton pads, tissues, and other
miscellaneous items to help create consumer awareness of the Company and its
products. Sales aids are priced at the Company's approximate cost and are not
commissionable items (i.e., distributors do not receive commissions on
purchases of sales aids).
PRODUCT GUARANTEES
The Company believes that it is among the most consumer protective companies
in the direct selling industry. For 30 days from the date of purchase, the
Company's product return policy allows a retail purchaser to return any
product to the distributor through whom the product was purchased for a full
refund. After 30 days
54
from the date of purchase, the return privilege is in the discretion of the
distributor. Because distributors may return unused and resalable products to
the Company for a refund of 90% of the purchase price for one year, they are
encouraged to provide consumer refunds beyond 30 days. In addition, the
product return policy is a material aspect of the success of distributors in
developing a retail customer base. The Company's experience with actual
product returns to date has averaged approximately 1.5% of annual revenue
through 1995.
PRODUCT DEVELOPMENT AND PRODUCTION
PRODUCT DEVELOPMENT PHILOSOPHY. The Company is committed to building its
brand name and distributor and customer loyalty by selling premium quality,
innovative personal care and nutritional products that appeal to broad
markets. This commitment is illustrated by the Company's personal care
products slogan "All of the Good and None of the Bad" and its nutritional
products slogan "Adding Life to Years." The Company's product philosophy is to
combine the best of science and nature and to include in each of its products
the highest quality ingredients. For example, NSI avoids soaps and other harsh
cleansers that can dry and irritate skin, undesirable oils such as lanolin,
elements known to be irritating and pore clogging, volatile alcohols such as
ethyl alcohol, and conditioning agents that leave heavy residues. This
philosophy has led to the Company being one of the only personal care
companies in Japan to disclose every ingredient to consumers. This philosophy
has also led to the Company's commitment to avoid any ingredients in
nutritional supplements that are reported to have any long-term addictive or
harmful effects, even if short-term effects may be desirable. Independent
distributors need to have confidence that they are distributing the best
products available in order to have a sense of pride in their association with
the Company and to have products that are distinguishable from "off the shelf"
products. NSI and the Company are committed to developing and providing
quality products that can be sold at an attractive retail price and allow the
Company to maintain reasonable profit margins.
NSI is also committed to constantly improving its evolving product
formulations to incorporate innovative and proven ingredients into its product
line. Whereas many consumer product companies develop a formula and stay with
that formula for years, and sometimes decades, NSI believes that it must stay
current with product and ingredient evolution to maintain its reputation for
innovation to retain distributor and consumer attention and enthusiasm. For
this reason, NSI continuously evaluates its entire line of products for
possible enhancements and improvements.
In addition, the Company believes that timely and strategic product
introductions are critical to maintaining the growth of independent
distribution channels. Distributors become enthusiastic about new products and
are generally excited to share new products with their customer base. An
expanding product line helps to attract new distributors and generate
additional revenues.
NSI maintains a laboratory and a staff of approximately 90 individuals
involved in product development. NSI also relies on an advisory board
comprised of recognized authorities in various disciplines. In addition, NSI
and the Company evaluate a significant number of product ideas that are
presented by distributors and other outside sources. NSI believes that
strategic relationships with certain vendors also provide important access to
innovative product concepts. The Company will continue to develop products
tailored to appeal to the particular needs of the Company's markets.
Historically, one of the reasons for the success of the Company's personal
care product line has been its gender neutral positioning. This product
positioning substantially expands the size of the traditional skin and hair
care market. NSI's IDN line of products has historically been positioned to be
age neutral. However, with a substantial distributor and user base
established, the Company believes that it can further increase its market
share in both the personal care and the nutritional products categories by
introducing age and gender specific products, including LifePak for Women,
additional vitamin products targeted to seniors, and personal care products
targeted to either men or women.
PRODUCTION. All the Company's products are produced by unaffiliated
manufacturers primarily through NSI. The Company currently has little or no
direct contact with these manufacturers. The Company's profit
55
margins and its ability to deliver its existing products on a timely basis are
dependent upon the ability of NSI's outside manufacturers to continue to
supply products in a timely and cost-efficient manner. Furthermore, the
Company's ability to enter new markets and sustain satisfactory levels of
sales in each market is dependent in part upon the ability of suitable outside
manufacturers to reformulate existing products, if necessary to comply with
local regulations or market environments, for introduction into such markets.
Finally, the development of additional new products in the future will
likewise be dependent in part on the services of suitable outside
manufacturers.
The Company currently acquires products or ingredients from sole suppliers
or suppliers that are considered by the Company to be the superior suppliers
of such ingredients. The Company believes that, in the event it is unable to
source any products or ingredients from its current suppliers, the Company
could produce such products or replace such products or substitute ingredients
without great difficulty or prohibitive increases in the cost of goods sold.
However, there can be no assurance that the loss of such a supplier would not
have a material adverse effect on the Company's business and results of
operations.
With respect to sales to the Company, NSI currently relies on two
unaffiliated manufacturers to produce approximately 70% and 80% of its
personal care and nutritional products, respectively. NSI has a written
contract with the primary supplier of the Company's personal care products
that expires at the end of 1997. An extension to such contract is currently
being negotiated. NSI does not currently have a written contract with the
primary supplier of the Company's nutritional products. The Company believes
that in the event that NSI's relationship with either of these manufacturers
is terminated, NSI will be able to find suitable replacement manufacturers.
However, there can be no assurance that the loss of either manufacturer would
not have a material adverse effect on the Company's business and results of
operations. See "Risk Factors--Reliance on and Concentration of Outside
Manufacturers."
RELATIONSHIP WITH NSI
Upon the consummation of the Offerings, approximately 98.8% of the combined
voting power of the outstanding shares of Common Stock (approximately 98.7% if
the Underwriters' over-allotment options are exercised in full) will be held
by the Shareholders of NSI. In addition, the Company has entered into, or,
upon consummation of the Offerings will enter into, the Operating Agreements
with NSI and with NSIMG, a Delaware corporation also controlled by the
shareholders of NSI, summary descriptions of which are set forth below. Such
summaries are qualified in their entirety by reference to the Operating
Agreements, which are filed as exhibits to the Registration Statement of which
this Prospectus forms a part. In the future the Company may enter into
amendments to the Operating Agreements or additional agreements with NSI or
NSIMG. The Company intends to seek the approval of a majority of its
independent directors for any amendment to the Operating Agreements and any
new agreement which the Company believes to be of material importance to the
Company and as to which the Company and NSI or NSIMG have conflicting
interests. See "Risk Factors--Relationship with and Reliance on NSI; Potential
Conflicts of Interest."
DISTRIBUTION AGREEMENTS. The Company has entered into a regional
distribution agreement (the "Regional Distribution Agreement") with NSI,
through Nu Skin Hong Kong, pursuant to which NSI has granted to the Company
the exclusive right to sell and distribute NSI products and sales aids in the
Company's markets. Nu Skin Japan, Nu Skin Taiwan and Nu Skin Korea have each
entered into wholesale distribution agreements (the "Wholesale Distribution
Agreements") with Nu Skin Hong Kong, pursuant to which each such Subsidiary
has been granted the right to sell and distribute NSI products in its
respective country.
The Company has the right to purchase any of NSI's products, subject to
unavailability due to local regulatory requirements. See "--Government
Regulation." Purchases are made by submission of a purchase order to NSI,
which NSI must accept unless it has insufficient inventory to fill the order.
In determining whether it has sufficient inventory to fill a given order, NSI
is required to treat the Company on a parity basis with its other affiliates.
56
The prices for products are governed by a price schedule which is subject to
change by NSI from time to time upon at least 30 days advance notice. NSI pays
ordinary freight and the Company pays handling, excise taxes and customs
duties on the products the Company orders. In order to assist NSI in planning
its inventory and pricing, the Company is required to provide NSI with certain
business plans and reports of its sales and prices to independent
distributors.
The Company purchases virtually all of its products from NSI through Nu Skin
Hong Kong. Nu Skin Hong Kong pays for its purchases from NSI under the
Regional Distribution Agreement in U.S. dollars, while the other Subsidiaries
pay for their purchases from Nu Skin Hong Kong under the Wholesale
Distribution Agreements in their local currency. Nu Skin Hong Kong therefore
bears significant currency exchange risk as a result of purchases from NSI on
behalf of the other Subsidiaries. See "Risk Factors--Operations Outside the
United States; Currency Risks."
The Company is responsible for paying for and obtaining government approvals
and registrations necessary for importation of NSI's products into its
markets. In addition, the Company is responsible for obtaining any government
approvals, including any filings and notifications, necessary for the
effectiveness of the Regional Distribution Agreement and the Wholesale
Distribution Agreements or for the parties performance thereunder. See "Risk
Factors--Government Regulation of Products and Marketing."
NSI is generally responsible for paying for the research, development and
testing of the products sold to the Company, including any product
reformulations needed to comply with local regulatory requirements. NSI
warrants as to the merchantability of, and its title to, such products. NSI
has further indemnified the Company from losses and liability relating to
claims arising out of alleged or actual defects in the design, manufacture or
content of its products. NSI is required to maintain insurance covering claims
arising from the use of its products and to cause each Subsidiary to be a
named insured on such insurance policy. The Subsidiaries are also required to
maintain insurance policies covering the business to be conducted by them
pursuant to the Regional Distribution Agreement and the Wholesale Distribution
Agreements. See "Risk Factors--Product Liability."
The Company is prohibited from selling NSI products outside of the countries
for which it has an exclusive distribution license, except that the Company
may sell certain NSI products to NSI affiliates in Australia and New Zealand.
In addition, the Company is prohibited from selling products which directly or
indirectly compete with NSI products in any country without NSI's prior
consent, which consent will not be unreasonably withheld or delayed. The
Company may sell non-competing products without restriction.
The Company may manufacture products which do not compete with NSI products
without restriction but may not manufacture products which compete directly or
indirectly with NSI products without NSI's prior consent, which consent will
not be unreasonably withheld or delayed. Any products manufactured by the
Company carrying an NSI trademark will be subject to the Trademark/Tradename
License Agreements with NSI described below and will require the payment to
NSI of certain royalties as set forth therein. If NSI discontinues a product
that the Company would like to continue to sell, the Company may elect to
manufacture the product itself or through a third party manufacturer unless
NSI has a competing product. In this event, NSI has agreed to license the
product formulation and any associated trademarks and tradenames to the
Company pursuant to the Trademark/Tradename License Agreements described
below.
When the Company determines to commence operations in Thailand, Indonesia,
Malaysia, the Philippines, the PRC, Singapore or Vietnam, NSI has agreed under
the Regional Distribution Agreement to enter into new Trademark/Tradename
License Agreements and Licensing and Sales Agreements and to cause NSIMG to
enter into new Management Services Agreements, in each case substantially
similar to those described below, with the Company or subsidiaries operating
in such countries. See "Risk Factors--Entering New Markets."
TRADEMARK/TRADENAME LICENSE AGREEMENTS. Pursuant to the Trademark/Tradename
License Agreements, NSI has granted to each Subsidiary an exclusive license to
use in its market the NSI and IDN trademarks, the individual product
trademarks used on NSI products and any NSI tradenames. Each of the
Subsidiaries may thus use the licensed trademarks and tradenames on products
and commercial materials not purchased from NSI, including locally sourced
products and commercial materials and products and commercial materials
manufactured by such subsidiary and may grant a sub-license, with the consent
of NSI, for the licensed
57
trademarks and tradenames in its market. In addition, each Subsidiary has the
right to export such products and commercial materials into other Company
markets with NSI's consent, which consent shall not be unreasonably withheld
or delayed.
The Company pays a royalty to NSI for use of the licensed trademarks and
tradenames on products, starter and introductory kits and commercial materials
not purchased from NSI, including locally sourced products and commercial
materials and products and commercial materials manufactured by the Company.
The royalty is paid monthly and is equal to 5% of the Company's revenues from
such products and commercial materials for such month generally and a total of
8% where NSI owns the formula or has exclusive rights in the subject market
for such products or commercial materials.
NSI has the right to inspect the premises where products using its
trademarks are manufactured in order to ensure that the products meet its
quality standards. The Company's labels, packaging, advertising and
promotional materials using NSI's trademarks must conform with NSI's published
standards and NSI has the right of prior approval. The Company is responsible
for correcting any manufacturing defects in locally sourced products or
products it manufactures that are brought to the Company's attention by NSI or
otherwise.
NSI is responsible for securing and maintaining trademark registrations in
the territory covered by each Trademark/Tradename Agreement. NSI has agreed to
take such actions as the Company may reasonably request to protect its and the
Company's rights to the licensed trademarks from infringement and related
claims and has indemnified the Company from losses and liability resulting
from such claims.
LICENSING AND SALES AGREEMENTS. Currently, all distributor agreements are
entered into between the distributor and NSI rather than with the Company.
Therefore, the Company does not own the distributor lists or the distribution
system, the Global Compensation Plan, copyrights and related intangibles.
Consequently, each of the Subsidiaries has entered into a Licensing and Sales
Agreement with NSI which includes a license to the Company to use the
distributor lists, the Global Compensation Plan, know how, distributor system
and related intellectual property exclusively in its markets. The Company pays
a license fee to NSI of 4% of the Company's revenue from product sales
(excluding starter and introductory kits) to NSI distributors for the use of
such licensed property. The Company may not grant a sublicense for the
licensed property.
The Company is required to use the Global Compensation Plan to distribute
any products, except as NSI may agree to modify the plan in accordance with
local requirements. The Company must comply with all policies implemented by
NSI under the Global Compensation Plan. This is necessary to ensure global
consistency in NSI's operations. The Company must also employ all NSI policies
relating to commissions payable to, and other relationships with, NSI
distributors.
The Company has agreed to incur a distributor commission expense of 42% of
commissionable product sales (with the exception of South Korea where, due to
government regulations, the Company satisfies this obligation by using a
formula based upon a maximum payout of 35% of commissionable product sales).
The Licensing and Sales Agreements provide that the Company is to satisfy this
obligation by paying commissions owed to local distributors. In the event that
these commissions exceed 42% of commissionable product sales, the Company is
entitled to receive the difference from NSI. In the event that the commissions
paid are lower than 42%, the Company must pay the difference to NSI. Under
this formulation, the Company's total commission expense is fixed at 42% of
commissionable product sales in each country (except for South Korea). The 42%
figure has been set on the basis of NSI's experience over the past seven years
which indicates that actual commissions paid in a given year together with the
cost of administering the Global Compensation Plan average approximately 42%
of commissionable product sales for such year. In the event that actual
commissions payable to distributors from sales in the Company's markets vary
from these historical results, whether as a result of changes in distributor
behavior or changes to the Global Compensation Plan or in the event that NSI's
cost of administering the Global Compensation Plan increases or decreases, the
Licensing and Sales Agreements provide that the intercompany settlement figure
may be modified to more accurately reflect actual results. See "Risk Factors--
Potential Increase in Distributor Compensation Expense."
58
In addition to payments to local distributors, the Company is generally
responsible for distributor support and relations within Japan, Taiwan, Hong
Kong and South Korea. The Company has agreed to use its best efforts to
support the development of NSI's distributor network in its markets by
purchasing starter or introductory kits from NSI and selling them to potential
NSI distributors.
NSI has agreed to take such actions as the Company may reasonably request to
protect its and the Company's rights to the property licensed under the
Licensing and Sales Agreements from infringement and related claims and has
indemnified the Company from losses and liability resulting from such claims.
Both NSI and the Company are required to maintain insurance coverage adequate
to insure their assets and financial stability. NSI is responsible for
ensuring that the property licensed under the Licensing and Sales Agreements
complies with local laws and regulations, including direct selling laws. See
"Risk Factors--Government Regulation of Direct Selling Activities."
MANAGEMENT SERVICES AGREEMENTS. Upon consummation of the Offerings, the
Subsidiaries will enter into Management Services Agreements with NSIMG,
pursuant to which NSIMG has agreed to provide a variety of management and
support services to each Subsidiary. These services will likely include
management, legal, financial, marketing and distributor support/training,
public relations, international expansion, human resources, strategic
planning, product development and operations administration services. Most of
NSI's senior management personnel and most employees who deal with
international issues are employees of NSIMG.
Generally, the management and support services will be provided by employees
of NSI and NSIMG acting through NSIMG either (i) on a temporary basis in a
specific consulting role or (ii) on a full-time basis in a management position
in the country in which the services are required. The Management Services
Agreements do not cover the services of many of the Company's executive
officers. See "Management--Executive Compensation."
GENERAL PROVISIONS. The Operating Agreements are each for a term ending on
December 31, 2016, and, after December 31, 2001, will be subject to
renegotiation in the event that members of the families of, or trusts or
foundations established by or for the benefit of the Existing Stockholders of
NSI on a combined basis no longer beneficially own a majority of the combined
voting power of the outstanding shares of common stock of the Company or of
NSI. See "Risk Factors--Anti-Takeover Effects of Certain Charter, Contractual
and Statutory Provisions." Each Operating Agreement is subject to termination
by either party in the event of: (i) a material breach by the other party
which remains uncured for a period of 60 days after notice thereof; (ii) the
bankruptcy or insolvency of the other party; or (iii) entry of a judgment by a
court of competent jurisdiction against the other party in excess of
$25,000,000. Each Operating Agreement is further subject to termination by NSI
upon 30 days notice in the event of a change of control of the Subsidiary
party thereto and by such subsidiary upon 30 days notice in the event of a
change of control of NSI. Each Operating Agreement provides that neither party
may assign its rights thereunder without the consent of the other party. Each
Operating Agreement is governed by Utah law. Any dispute arising under an
Operating Agreement is to be settled by arbitration conducted in Utah in
accordance with the applicable rules of the American Arbitration Association,
as supplemented by the commercial arbitration procedures for international
commercial arbitration.
MUTUAL INDEMNIFICATION AGREEMENT. Prior to or concurrently with the
Offerings, the Company and NSI will enter into a mutual indemnification
agreement pursuant to which NSI will indemnify the Company for certain claims,
losses and liabilities relating to the operations of the Subsidiaries prior to
the Reorganization and the Company will indemnify NSI for certain claims,
losses and liabilities relating to the operations of the Subsidiaries after
the Reorganization.
COMPETITION
PERSONAL CARE AND NUTRITIONAL PRODUCTS. The markets for personal care and
nutritional products are large and intensely competitive. The Company competes
directly with companies that manufacture and market personal care and
nutritional products in each of the Company's product categories. The Company
competes with other companies in the personal care and nutritional products
industry by emphasizing the value and premium
59
quality of the Company's products and the convenience of the Company's
distribution system. Many of the Company's competitors have much greater name
recognition and financial resources than the Company. In addition, personal
care and nutritional products can be purchased in a wide variety of channels
of distribution. While the Company believes that consumers appreciate the
convenience of ordering products from home through a sales person or through a
catalog, the buying habits of many consumers accustomed to purchasing products
through traditional retail channels are difficult to change. The Company's
product offerings in each product category are also relatively small compared
to the wide variety of products offered by many other personal care and
nutritional product companies. There can be no assurance that the Company's
business and results of operations will not be affected materially by market
conditions and competition in the future.
NETWORK MARKETING COMPANIES. The Company also competes with other direct
selling organizations, some of which have a longer operating history and
higher visibility, name recognition and financial resources. The leading
network marketing company in the Company's markets is Amway Corporation and
its affiliates. The Company competes for new distributors on the basis of the
Global Compensation Plan and its premium quality products. Management
envisions the entry of many more direct selling organizations into the
marketplace as this channel of distribution expands over the next several
years. The Company has been advised that certain large, well-financed
corporations are planning to launch direct selling enterprises which will
compete with the Company in certain of its product lines. There can be no
assurance that the Company will be able to successfully meet the challenges
posed by this increased competition. See "Risk Factors--Competition."
GOVERNMENT REGULATION
DIRECT SELLING ACTIVITIES. Direct selling activities are regulated by various
governmental agencies. These laws and regulations are generally intended to
prevent fraudulent or deceptive schemes, often referred to as "pyramid" or
"chain sales" schemes, that promise quick rewards for little or no effort,
require high entry costs, use high pressure recruiting methods and/or do not
involve legitimate products. In Japan, the Company's distribution system is
regulated under the "Door-to-Door" Sales Law, which requires the submission of
specific information concerning the Company's business and products and which
provides certain cancellation and cooling-off rights for consumers and new
distributors. In Taiwan, the Fair Trade Law (and the Enforcement Rules and
Supervisory Regulations of Multi-Level Sales) requires the Company to comply
with registration procedures and also provides distributors with certain
rights regarding cooling-off periods and product returns. The Company also
complies with South Korea's strict Door-to-Door Sales Act, which requires,
among other things, the regular reporting of revenue, the registration of
distributors together with the issuance of a registration card, and the
maintaining of a current distributor registry. This law also limits the amount
of sponsoring bonuses that a registered multi-level marketing company can pay
to its distributors to 35% of revenue in a given month. As is the case with
most network marketing companies, NSI and the Company have from time to time
received inquiries from various government regulatory authorities regarding
the nature of their business and other issues such as compliance with local
business opportunity and securities laws. Although to date none of these
inquiries has resulted in a finding materially adverse to the Company or NSI,
adverse publicity resulting from inquiries into NSI's operations by certain
government agencies in the early 1990's, stemming in part out of inappropriate
product and earnings claims by distributors, materially adversely affected
NSI's business and results of operations. There can be no assurance that the
Company or NSI will not face similar inquiries in the future which, either as
a result of findings adverse to the Company or NSI or as a result of adverse
publicity resulting from the instigation of such inquiries, could have a
material adverse effect on the Company's business and results of operations.
See "Risk Factors--Potential Effects of Adverse Publicity."
Based on research conducted in opening its existing markets (including
assistance from local counsel), the nature and scope of inquiries from
government regulatory authorities and the Company and NSI's history of
operations in such markets to date, the Company and NSI believe that their
method of distribution is in compliance in all material respects with the laws
and regulations relating to direct selling activities of the countries in
which the Company and NSI currently operate. Even though management believes
that laws governing direct selling are generally becoming more permissive,
many countries, including Singapore, one of
60
the Company's potential markets, currently have laws in place that would
prohibit the Company and NSI from conducting business in such markets. There
can be no assurance that the Company will be allowed to conduct business in
each of the new markets or continue to conduct business in each of its
existing markets licensed from NSI. See "Risk Factors--Entering New Markets."
REGULATION OF PRODUCTS AND MARKETING. The Company and NSI are subject to or
affected by extensive governmental regulations not specifically addressed to
network marketing. Such regulations govern, among other things, (i) product
formulation, labeling, packaging and importation, (ii) product claims and
advertising, whether made by the Company, NSI or NSI distributors, (iii) fair
trade and distributor practices, and (iv) taxes, transfer pricing and similar
regulations that affect foreign taxable income and customs duties.
The Japanese Ministry of Health and Welfare ("MOHW") requires the Company to
possess an import business license and to register each personal care product
imported into the country. Packaging and labeling requirements are also
specified. The Company has had to reformulate many products to satisfy MOHW
regulations. In Japan, nutritional foods, drugs and quasi-drugs are all
strictly regulated. The chief concern involves the types of claims and
representations that can be made regarding the efficacy of nutritional
products. The Company's successful introduction of IDN products in Japan was
achieved by utilizing the combined efforts of NSI's technical staff as well as
external consultants.
In Taiwan, all "medicated" cosmetic and pharmaceutical products, including
PharmAssist, require registration. Non-medicated cosmetic products, such as
shampoo and hair conditioner, require no registration.
In Hong Kong, cosmetic products not classified as "drugs" nor as
"pharmaceutical products" are not subject to statutory registrations,
packaging and labeling requirements apart from the Trade Descriptions
Ordinance. In Macau, "pharmaceutical" products are strictly regulated; general
products are not subject to registration requirements.
In South Korea, the Company has obtained the mandatory certificate of
confirmation as a qualified importer of cosmetics under the Pharmaceutical
Affairs Law as well as additional product approvals for each of the 45
categories of cosmetic products which it imports. Each new cosmetic product
undergoes a 60 day post-customs inspection where, in addition to compliance
with ingredient requirements, each product is inspected for compliance with
South Korean labeling requirements.
Based on the Company and NSI's experience and research (including assistance
from counsel) and the nature and scope of inquiries from government regulatory
authorities, the Company and NSI believe that they are in material compliance
with all regulations applicable to them. Despite this belief, either the
Company or NSI could be found not to be in material compliance with existing
regulations as a result of, among other things, the considerable
interpretative and enforcement discretion given to regulators or misconduct by
independent distributors. In 1994, NSI and three of its distributors entered
into a consent decree with the Federal Trade Commission (the "FTC") with
respect to its investigation of certain product claims and distributor
practices. NSI is currently in discussions with the FTC regarding its
compliance with such consent decree and other product issues raised by the
FTC. Pursuant to which NSI paid approximately $1 million to settle the FTC
investigation. There can be no assurances that the Company will not be subject
to similar inquiries and regulatory investigations or disputes and the effects
of any adverse publicity resulting therefrom. Any assertion or determination
that either the Company, NSI or any NSI distributors are not in compliance
with existing laws or regulations could have a material adverse effect on the
Company's business and results of operations. In addition, in any country or
jurisdiction, the adoption of new laws or regulations or changes in the
interpretation of existing laws or regulations could generate negative
publicity and/or have a material adverse effect on the Company's business and
results of operations. The Company cannot determine the effect, if any, that
future governmental regulations or administrative orders may have on the
Company's business and results of operations. Moreover, governmental
regulations in countries where the Company plans to commence or expand
operations may prevent, delay or limit market entry of certain products or
require the reformulation of such products. Regulatory action, whether or not
it results in a final determination adverse to the Company or NSI, has the
potential to create negative publicity, with detrimental effects on the
motivation and recruitment of distributors and, consequently, on the Company's
sales and earnings. See "Risk Factors--Potential Effects of Adverse Publicity"
and "--Entering New Markets."
61
EMPLOYEES
As of September 30, 1996, the Company had approximately 825 full-time and
part-time employees. None of the employees is represented by a union or other
collective bargaining group. The Company believes its relationship with its
employees is good, and does not currently foresee a shortage in qualified
personnel needed to operate the business. Each Subsidiary is directed by an
experienced manager.
PROPERTIES
In each of its current markets, the Company has established a central office
for the local administrative staff who is directed by a general manager. These
offices also have a training room for distributor and employee use and an
adjoining distribution center where distributors can place, pay for, and pick
up orders. In Japan, Taiwan, and South Korea additional pick up centers have
been added to provide better service to distributors and meet the increasing
demand for product. In Hong Kong, the Company maintains a distributor business
center where established distributors can use office space for training and
sponsoring activities at cost.
In addition to the Company's corporate headquarters in Provo, Utah, the
following table summarizes, as of September 30, 1996, the Company's leased
office and distribution facilities in each country where the Company currently
has operations.
PROPERTIES LEASED
LOCATION FUNCTION LEASE TOTAL
-------- -------- ------------------
Tokyo, Japan............ Central office/ distribution center 35,000 square feet
Osaka, Japan............ Distribution center/office 13,400 square feet
Taipei, Taiwan.......... Central office/distribution center 22,000 square feet
Kaohsiung, Taiwan....... Distribution center/office 9,500 square feet
Taichung, Taiwan........ Distribution center/office 17,000 square feet
Taoyuan, Taiwan......... Warehouse/distribution center 36,000 square feet
Causeway Bay, Hong Central office/distribution 19,000 square feet
Kong................... center/distributor business
center/regional office
Tsing Yi, Hong Kong..... Warehouse 10,000 square feet
Macau................... Distribution center/office 2,000 square feet
Seoul, South Korea...... Central office/distribution center 20,000 square feet
Seoul, South Korea...... Distribution center 7,000 square feet
Kyungki-Do, South Warehouse 16,000 square feet
Korea..................
Pusan, South Korea...... Distribution Center 10,000 square feet
LEGAL PROCEEDINGS
The Company is not a party to any litigation or other legal proceedings or
investigations which is expected to have a material adverse effect on its
financial condition or results of operations, nor are any such proceedings
known to be contemplated.
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MANAGEMENT
DIRECTORS AND EXECUTIVE OFFICERS
The following table sets forth certain information regarding the Company's
directors and executive officers.
NAME AGE POSITION
---- --- --------
Blake M. Roney.......... 38 Chairman of the Board
Steven J. Lund.......... 42 President, Chief Executive Officer and Director
Renn M. Patch........... 46 Chief Operating Officer
Corey B. Lindley........ 32 Vice President of Finance
Michael D. Smith........ 50 Vice President of Operations
M. Truman Hunt.......... 37 Vice President of Legal Affairs and Investor Relations
Keith R. Halls.......... 38 Secretary and Director
Takashi Bamba........... 61 President, Nu Skin Japan
John Chou............... 50 President, Nu Skin Taiwan
S.T. Han................ 54 President, Nu Skin Korea
George Mak.............. 42 President, Nu Skin Hong Kong
Mark L. Adams........... 44 Controller
Sandie N. Tillotson..... 39 Director
Brooke B. Roney......... 34 Director
Kirk V. Roney........... 42 Director
Max L. Pinegar.......... 65 Director
Max E. Esplin........... 53 Director
Blake M. Roney has served as the Chairman of the Board since the Company's
inception and is a founder of NSI. He has also served as President, Chief
Executive Officer and Chairman of the Board of NSI and its affiliated entities
since their respective inceptions. He received a B.S. degree from Brigham
Young University. He is the brother of Kirk V. Roney and Brooke B. Roney.
Steven J. Lund has been the President, Chief Executive Officer and a
Director of the Company since its inception. Mr. Lund has also served as
Executive Vice President and a Director of NSI since its inception and as Vice
President and Secretary of certain NSI affiliated entities since their
respective inceptions. Mr. Lund previously worked as an attorney in private
practice. He received a B.A. degree from Brigham Young University and a J.D.
degree from Brigham Young University's J. Reuben Clark Law School.
Renn M. Patch has been the Chief Operating Officer of the Company since its
inception. Since 1992 he has been Vice President of Global Operations and
Assistant General Manager of NSI. From 1991 to 1992, he served as Director of
Government Affairs of NSI. Prior to joining NSI in 1991, Mr. Patch was
associated with the Washington, D.C. consulting firm of Parry and Romani
Associates. Mr. Patch earned a B.A. degree from the University of Minnesota, a
J.D. degree from Hamline University School of Law and an L.L.M. degree from
Georgetown University.
Corey B. Lindley has been the Vice President of Finance of the Company since
its inception. From 1993 to 1996, he served as Managing Director,
International of NSI. Mr. Lindley worked as the International Controller of
NSI from 1991 to 1994 and lived in Hong Kong and Japan during that time. From
1990 to 1991, he served as Assistant Director of Finance of NSI. Mr. Lindley
is a Certified Public Accountant. Prior to joining NSI in 1990, he worked for
the accounting firm of Deloitte and Touche. He earned a B.S. degree from
Brigham Young University and an M.B.A. degree from Utah State University.
Michael D. Smith has been the Vice President of Operations for the Company
since its inception. He has also served as Vice President of Asian Operations
of NSI since February 1996. Prior to that time, he served as General Counsel
of NSI from 1992 to 1996 and as Director of Legal Affairs of NSI from 1989 to
1992. He earned B.S. and M.A. degrees from Brigham Young University and a J.D.
degree from the University of Utah.
63
M. Truman Hunt has served as the Vice President of Legal Affairs and
Investor Relations since the Company's inception. He has also served as
Counsel to the President of NSI since 1994. From 1991 to 1994, Mr. Hunt served
as President and Chief Executive Officer of Better Living Products, Inc., an
NSI affiliate involved in the manufacture and distribution of houseware
products sold through traditional retail channels. Prior to that time, he was
a securities and business attorney in private practice. He received a B.S.
degree from Brigham Young University and a J.D. degree from the University of
Utah.
Keith R. Halls has served as the Secretary and a Director of the Company
since its inception. He has also served as General Vice President and a
Director of NSI since 1992. He served as Director of Finance of NSI from 1986
to 1992. Mr. Halls is a Certified Public Accountant. Mr. Halls received a B.A.
degree from Stephen F. Austin State University and a B.S. degree from Brigham
Young University.
Takashi Bamba has served as the President of Nu Skin Japan since 1993. Prior
to joining Nu Skin Japan in 1993, Mr. Bamba served five years as President and
CEO of Avon Products Co., Ltd., the publicly traded Japanese subsidiary of
Avon Products, Inc. Prior to working at Avon Products Co., Ltd., he spent 17
years at Avon Products, Inc. He received a B.A. degree from Yokohama National
University.
John Chou has served as the President of Nu Skin Taiwan since 1991. Prior to
joining Nu Skin Taiwan in 1991, he spent twenty-one years in international
marketing and management with 3M Taiwan Ltd., Amway Taiwan and Universal PR
Co. Mr. Chou is a standing director of the Taiwan ROC Direct Selling
Association. He is also a member of the Kiwanis International, and the Taiwan
American Chamber of Commerce. He received a B.A. degree from Tan Kang
University in Taipei, Taiwan.
S.T. Han has served as the President of Nu Skin Korea since 1995. Prior to
joining Nu Skin Korea in 1995, Mr. Han spent four years as the Executive
Managing Director of Woosung Film Co., the exclusive distributor of Konica
film in South Korea. He also worked for Amway Korea, Ltd. during that
company's start-up phase of operations in 1991. Mr. Han graduated with a B.A.
degree from ChungAng University.
George Mak has served as the President of Nu Skin Hong Kong since 1991.
Prior to joining Nu Skin Hong Kong in 1991, Mr. Mak worked for Johnson &
Johnson as a personnel and administration manager for Hong Kong and Shanghai
from 1989 to 1991. Prior to joining Johnson & Johnson he worked for 10 years
in the human resources and accounting fields. He earned an M.B.A. degree from
the University of East Asia, Macau.
Mark L. Adams has served as the Controller since the Company's inception. He
has also served as International Controller of NSI since 1994. Prior to
joining NSI in 1994, he was an audit manager with Arthur Andersen & Co. and
served as Chief Financial Officer and a Director of Sanyo Icon, a subsidiary
of Sanyo Electric Co. Ltd. He received an M.A. degree from Brigham Young
University and has been a Certified Public Accountant since 1978.
Sandie N. Tillotson has served as a Director of the Company since its
inception. She was a founder of NSI and has also served as General Vice
President since 1992 and a Director of NSI since its inception. She served as
Vice President of Corporate Services of NSI from 1984 to 1992. She earned a
B.S. degree from Brigham Young University.
Brooke B. Roney has served as a Director of the Company since its inception.
He was a founder of NSI and has also served as General Vice President and a
Director of NSI since 1992. He served as Vice President of Distribution of NSI
from 1984 to 1992. He is the brother of Blake M. Roney and Kirk V. Roney.
Kirk V. Roney has served as a Director of the Company since its inception.
He has also served as General Vice President of NSI since 1992 and a Director
of NSI since 1984. He served as Vice President of Planning and Development of
NSI from 1984 to 1992. He earned an M.I.M. degree from the American Graduate
School
64
of International Management. He earned an M.A. degree from Central Michigan
University and a B.A. from Brigham Young University. He is the brother of
Blake M. Roney and Brooke B. Roney.
Max L. Pinegar has served as a Director of the Company since September 1996.
He has also served as General Manager of NSI since 1989 and as Vice President
of NSI since 1992. He received a B.A. degree from Brigham Young University and
an M.B.A. degree from the University of Utah.
Max E. Esplin has served as a Director of the Company since September 1996.
He has also served as Vice President of Finance of NSI since 1993. He served
as Controller of NSI from 1989 until 1993. Mr. Esplin is a Certified Public
Accountant. He received a B.S. degree from Brigham Young University.
Following completion of the Offerings, the Company's Board of Directors
intends to appoint at least two additional directors who will not be officers
or employees of NSI or the Company. It is expected that these outside
directors will receive annual retainer and per meeting fees in connection with
these directorships. See "--Compensation of Directors."
COMMITTEES OF THE BOARD OF DIRECTORS
Within 90 days after the closing of the Offerings, the Company's Board of
Directors will establish an Audit Committee consisting of at least two
directors, none of whom will be an officer or employee of the Company or NSI.
The duties of the Audit Committee will be to recommend to the Company's Board
of Directors the selection of independent certified public accountants to
audit annually the books and records of the Company, to review the activities
and the reports of the independent certified public accountants and to report
the results of such review to the Company's Board of Directors. The Audit
Committee will also consider the adequacy of the Company's internal controls
and internal auditing methods and procedures. Within 90 days after the closing
of the Offerings, the Company's Board of Directors will establish a
Compensation Committee consisting of at least two directors, none of whom will
be an officer or employee of the Company, the duties of which are to make
recommendations to the Company's Board of Directors with respect to the
salaries, bonuses and other compensation to be paid to the Company's officers.
The Company's Board of Directors also intends to establish an Executive
Committee consisting of Messrs. Blake M. Roney, Steven J. Lund and Keith R.
Halls. The duties of the Executive Committee are, to the extent authorized by
the Company's Board of Directors, to exercise all the powers and authority of
the Company's Board of Directors with respect to the management of the
business and affairs of the Company.
COMPENSATION OF DIRECTORS
Following the Offerings, directors who do not receive compensation as
officers or employees of the Company, NSI or its affiliates will be paid an
annual fee of $25,000 and a fee of $1,000 for each meeting of the Company's
Board of Directors or any committee meeting thereof that they attend.
COMPENSATION COMMITTEE INTERLOCKS AND INSIDER PARTICIPATION
The Company's Board of Directors does not currently have a compensation
committee but anticipates establishing one within 90 days following the
closing of the Offerings. Several members of the Company's Board of Directors
are also directors of NSI and have set or will set compensation for certain
executive officers of the Company who have been or will be following the
Offerings, executive officers of NSI.
EXECUTIVE COMPENSATION
The Company was formed in September 1996, and consequently paid no
compensation to the executive officers named in the table below during the
year ended December 31, 1995. However, salary, bonus and other compensation is
presented in the table below for the year ended December 31, 1995 based on
payments by NSI and the Subsidiaries to the named executive officers as if the
Company had been in existence during that period. During 1995, Messrs. Bamba,
Chou, and Mak were employed full time as the Presidents of Nu Skin Japan,
Nu Skin Taiwan and Nu Skin Korea, respectively. During 1995, Messrs. Lund and
Patch were, and after the
65
Offerings will continue to be, executive officers of NSI and the Company. The
compensation presented in the table below reflects an allocation of the time
spent by Messrs. Lund and Patch providing services to the Subsidiaries during
1995. During 1996, the Company will pay Messrs. Lund and Patch annual salaries
commensurate with their 1995 salaries in return for their services to the
Company. These salaries and bonuses will be in addition to any amounts
received by these officers from NSI in return for their services to NSI.
During 1996, the Company, through the Subsidiaries, will pay Messrs. Bamba,
Chou and Mak salaries of approximately $361,000, $211,000 and $111,000,
respectively. In addition, Messrs. Bamba, Chou and Mak will be eligible to
participate in the Bonus Incentive Plan which is intended to be modeled after
NSI's cash bonus long term incentive plan which was in effect for these
individuals in 1995. See "--Bonus Incentive Plan." It is anticipated that
Messrs. Bamba, Chou and Mak will continue to receive all of their compensation
from the Company through the Subsidiaries.
SUMMARY COMPENSATION TABLE
ANNUAL COMPENSATION
----------------------------------
OTHER ALL
ANNUAL OTHER
NAME AND PRINCIPAL POSITION YEAR SALARY BONUS COMPENSATION COMPENSATION
--------------------------- ---- -------- ------- ------------ ------------
Steven J. Lund........... 1995 $236,364 $85,529(/1/) $ -- $ --
President and Chief
Executive Officer
Takashi Bamba............ 1995 361,028 105,563(/2/) 98,063(/3/) 3,297(/4/)
President, Nu Skin Japan
John Chou................ 1995 185,370 75,786(/2/) 63,730(/5/) --
President, Nu Skin
Taiwan
Renn M. Patch............ 1995 97,175 104,765(/6/) 18,750(/7/) --
Chief Operating Officer
George Mak............... 1995 102,564 17,535(/2/) 9,645(/8/) --
President, Nu Skin Hong
Kong
--------
(1)Cash bonus paid to Mr. Lund not pursuant to a formal bonus plan.
(2) Cash bonus paid during 1995 pursuant to NSI's cash bonus long term
incentive plan for the Presidents of the Subsidiaries.
(3) Includes deferred portion of a bonus accrued during 1995 pursuant to
NSI's cash bonus long term incentive plan for the Presidents of the
Subsidiaries and annual lease payments for a Company-provided
automobile.
(4) Annual premium for disability and accidental death insurance policy.
(5) Includes deferred portion of a bonus accrued during 1995 pursuant to
NSI's cash bonus long term incentive plan for the Presidents of the
Subsidiaries and annual payments for a Company-provided automobile and
club dues.
(6)Noncash bonus paid to Mr. Patch, not pursuant to a formal bonus plan.
(7) Includes $16,500 of accrued deferred compensation and $2,250 of vested
deferred compensation awarded to Mr. Patch under NSI's deferred
compensation plan.
(8) Deferred portion of a bonus accrued during 1995 pursuant to NSI's cash
bonus long term incentive plan for the Presidents of the Subsidiaries.
EMPLOYMENT AGREEMENTS
Messrs. Bamba, Chou and Han have entered into employment agreements with Nu
Skin Japan, Nu Skin Taiwan and Nu Skin Korea, respectively. Under these
agreements, these individuals are paid an annual salary and receive various
other benefits. These individuals, together with Mr. Mak, are also entitled to
participate in the Bonus Incentive Plan to be adopted by the Company prior to
or concurrently with the Offerings. See "--Bonus Incentive Plan."
Mr. Bamba is employed as the President of Nu Skin Japan at an annual salary
of approximately $361,000. This salary is subject to annual review by Nu Skin
Japan. Under the terms of his employment agreement, Mr. Bamba is entitled to
reimbursement of business-related expenses, the use of an automobile provided
by Nu
66
Skin Japan, and participation in any retirement plan offered by Nu Skin Japan.
Mr. Bamba also has the right under his employment agreement to have Nu Skin
Japan purchase a country club membership and pay related dues, although he has
not exercised this right. Mr. Bamba is also provided with a private insurance
plan paid for by Nu Skin Japan provided the premium for such private insurance
plan does not exceed (Yen)300,000 per year. Mr. Bamba has agreed to certain
confidentiality obligations. The term of Mr. Bamba's employment is indefinite,
subject to termination by Mr. Bamba or Nu Skin Japan upon three months'
notice.
Mr. Chou is employed as the President of Nu Skin Taiwan at an annual salary
of approximately $211,000. Under the terms of his employment agreement, Mr.
Chou is entitled to health insurance paid for in part by Nu Skin Taiwan. Nu
Skin Taiwan also provides Mr. Chou with a monthly car allowance. The term of
Mr. Chou's employment agreement currently extends until June 1997. Under his
employment agreement, Mr. Chou has agreed to certain confidentiality
obligations.
Mr. Han is employed as the President of Nu Skin Korea at an annual salary of
approximately $110,000. Under the terms of his employment agreement, Mr. Han
is entitled to the use of an automobile and driver provided by Nu Skin Korea,
as well as medical insurance and pension benefits. Mr. Han's employment is for
a three year term ending January 1, 1999, subject to the right of Nu Skin
Korea or Mr. Han to terminate the agreement on 60 days' advance notice. Once
Mr. Han has been employed by Nu Skin Korea for 12 months, he will become
entitled to receive, upon termination, severance pay equal to two months'
salary for each consecutive year of service. Mr. Han has agreed to certain
confidentiality and noncompetition obligations.
1996 STOCK INCENTIVE PLAN
The Board of Directors of the Company has adopted the Nu Skin Asia Pacific,
Inc. 1996 Stock Incentive Plan (the "Plan"). The purpose of the Plan is to
attract and retain executives, other employees, independent consultants and
directors who are important to the success and growth of the Company and to
ensure that their interests are aligned with the interests of the stockholders
of the Company. The Company expects that the Existing Stockholders will
approve the Plan prior to consummation of the Offerings.
ADMINISTRATION. The Plan is administered by the 1996 Stock Incentive Plan
Committee (the "Plan Committee"). Initially, the Plan Committee will consist
of the members of the Company's Board of Directors, and later of the members
of the Compensation Committee of the Board of Directors, once the Compensation
Committee has been established. The Plan Committee will determine, from time
to time, the individuals to whom awards shall be made, the type of awards, and
the amount, size and terms of each award. The Plan Committee will make all
other determinations necessary or advisable for the administration of the
Plan.
AWARDS. Awards under the Plan may be in the form of options (both
nonqualified stock options ("NQSOs") and incentive stock options ("ISOs")),
contingent stock, restricted stock, and stock appreciation rights ("SARs"), or
such other forms as the Plan Committee in its discretion may deem appropriate.
The maximum number of awards that may be issued to any one person during the
life of the Plan shall be limited to 10% of the shares reserved for issuance
under the Plan. The number of shares which may be issued under the Plan as
well as the terms of any outstanding awards may be equitably adjusted by the
Plan Committee in the event of a stock split, stock dividend,
recapitalization, merger, consolidation, combination or similar events. In
general, any shares subject to an option or right which for any reason expires
or is terminated unexercised shall again be available under the Plan. No
awards may be granted more than ten years after the effective date of the
Plan.
NUMBER OF SHARES. A total of 4,000,000 shares of the Company's Class A
Common Stock has been authorized to be issued pursuant to the Plan. The
Company anticipates issuing stock bonus awards for 1.8% of these shares to
executive officers of the Company prior to the Offerings. Messrs. Renn M.
Patch, Corey B. Lindley, Michael D. Smith, Takashi Bamba, John Chou, S.T. Han,
George Mak, and Mark Adams, will receive stock bonus awards of 13,000, 9,000,
13,000, 10,400, 13,000, 1,800, 9,000 and 3,500 shares of Class A Common Stock,
respectively. These awards vest ratably over four years following the date of
grant, provided the executive officer remains in the employment of the
Company.
67
PLAN AMENDMENT. The Board of Directors may amend the Plan, without
stockholder approval, anytime in any respect unless stockholder approval of
the amendment in question is required under Delaware law, the Code, certain
exemptions from Section 16 of the Securities Exchange Act of 1934, as amended
(the "1934 Act"), any national securities exchange system on which the shares
are then listed or reported, by any regulatory body having jurisdiction with
respect to the Plan, or other applicable laws, rules or regulations. No
amendment to the Plan may alter or impair any award granted under the Plan
without the consent of the holders thereof. The Plan may be terminated at any
time by the Board of Directors.
OPTIONS. The Plan provides for the grant of ISOs to employees and NQSOs to
employees and independent consultants. In the case of ISOs, the exercise price
of an option may not be less than 100% of the fair market value of a share of
Class A Common Stock at the time of grant (or 110% of such fair market value
if the optionee owns more than 10% of the total voting power of all classes of
Company stock outstanding at the time of grant). In the case of NQSOs, the
exercise price of an option may not be less than 85% of the fair market value
of a share of Class A Common Stock at the time of grant. The Plan Committee
may provide for a reduction in the exercise price of a NQSO by dividends paid
on a share of Class A Common Stock while the NQSO is outstanding. Options will
be exercisable for a term determined by the Plan Committee provided such
exercise shall occur not earlier than six months and not later than ten years
(five years if the optionee owns more than ten percent of the total voting
power of all classes of Company Stock outstanding at the time of grant) after
the grant of the option. The aggregate fair market value of ISO's (determined
at the time of grant) granted to an employee which may become first
exercisable in any one calendar year shall not exceed $100,000. If any option
is not granted, exercised, or held pursuant to the provisions applicable to an
ISO, it will be considered to be an NQSO to the extent that any or all of the
grant is in conflict with such provisions. The Plan Committee has the power to
permit acceleration of previously determined exercise terms under certain
circumstances and upon such terms and conditions as the Plan Committee deems
appropriate. See "Risk Factors--Anti-Takeover Effects of Certain Charter,
Contractual and Statutory Provisions."
CONTINGENT STOCK. The Plan Committee will determine the amount of contingent
stock to be granted to a participant based on the past or expected impact the
participant has had or can have on the financial well being of the Company and
other factors determined by the Plan Committee to be appropriate. A
participant receiving an award of contingent stock will receive the stock upon
the satisfaction of certain objectives. Contingent stock awards made pursuant
to the Plan will be subject to such terms, conditions and restrictions,
including obtainment of performance objectives, for such period or periods as
may be determined by the Plan Committee at the time of grant. The Plan
Committee in its discretion may permit acceleration of the expiration of the
applicable restriction period with respect to part or all of the award to any
participant. See "Risk Factors--Anti-Takeover Effects of Certain Charter,
Contractual and Statutory Provisions."
RESTRICTED STOCK. The Plan Committee will determine the amount of restricted
stock to be granted to a participant based on the past or expected impact the
participant has had or can have on the financial well being of the Company and
other factors deemed by the Plan Committee to be appropriate. Restricted stock
is issued to the participant subject to forfeiture if certain objectives are
not met. Restricted stock awards made pursuant to the Plan shall be subject to
the terms, conditions and restrictions, including the payment of performance
objectives, and for such period or periods as will be determined by the Plan
Committee at the time of grant. The Plan Committee in its discretion may
permit acceleration of the expiration of the applicable restriction period
with respect to part or all of the award to any participant. See "Risk
Factors--Anti-Takeover Effects of Certain Charter, Contractual and Statutory
Provisions." Shares of restricted stock may not be sold, assigned,
transferred, pledged, hypothecated or otherwise disposed of, except by will or
the laws of descent and distribution, for such period provided in the
participant's award agreement.
SARS. SARs are rights to receive cash or shares of Company stock, or a
combination thereof, as the Plan Committee may determine in an amount equal to
the excess of (i) the fair market value of the stock with respect to which the
SAR is exercised, or (ii) 100% of the fair market value of such stock at the
time the SAR was granted, less any dividends paid on such shares while the SAR
was outstanding. No cash consideration will be received by the Company for the
grant of any SAR. No SAR may be granted for a period of less than one year
68
or greater than ten years. SARs may be exercised at such time and subject to
such terms and conditions as are prescribed by the Plan Committee at the time
of grant, subject to certain limitations (including that no SAR shall be
exercisable within one year after the date of grant).
FEDERAL INCOME TAX CONSEQUENCES. The participant recognizes no taxable gain
or loss when an incentive stock option is granted or exercised. If the shares
acquired upon the exercise of an incentive stock option are held for at least
one year after exercise and two years after grant (the "Holding Period"), the
participant recognizes any gain or loss recognized upon such sale as long-term
capital gain or loss and the Company is not entitled to a deduction. If the
shares are not held for the Holding Period, the gain is ordinary income to the
participant to the extent of the difference between the exercise price and the
fair market value of the Class A Common Stock on the date the option is
exercised and any excess is capital gain. Also, in such circumstances, the
Company is entitled to a deduction equal to the amount of any ordinary income
recognized by the participant.
The participant recognizes no taxable income and the Company receives no
deduction when a nonqualified stock option is granted. Upon exercise of a
nonqualified stock option, the participant recognizes ordinary income and the
Company is entitled to a deduction equal to the difference between the
exercise price and the fair market value of the shares on the date of
exercise. The participant recognizes as a capital gain or loss any subsequent
profit or loss realized on the sale or exchange of any shares disposed of or
sold.
A participant granted restricted stock or contingent stock is not required
to include the value of such shares in income until the first time such
participant's rights in the shares are transferable or are not subject to
substantial risk of forfeiture, whichever occurs earlier, unless such
participant timely files an election under Code Section 83(b) to be taxed on
the receipt of the shares. In either case, the amount of such ordinary income
will be equal to the excess of the fair market value of the shares at the time
the income is recognized over the amount (if any) paid for the shares. The
Company is entitled to a deduction, in the amount of the ordinary income
recognized by the participant, for the Company's taxable year in which the
participant recognizes such income.
Upon the grant of an SAR, the participant recognizes no taxable income and
the Company receives no deduction. The participant recognizes ordinary income
and the Company is entitled to a deduction at the time of exercise equal to
the cash and the fair market value of shares payable upon such exercise.
Under certain circumstances, an accelerated vesting or cash out of stock
options, or accelerated lapse of restrictions on other awards, in connection
with a change in control of the Company might be deemed an "excess parachute
payment" for purposes of the golden parachute tax provisions of Code Section
280G. To the extent it is so considered, the participant may be subject to a
20% excise tax and the Company may be denied a tax deduction.
Code Section 162(m) limits to $1,000,000 per year the federal income tax
deduction available to a public company for compensation paid to any of its
chief executive officer and four other highest paid executive officers.
However, Section 162(m) provides an exception from its limitation for certain
"performance based" compensation if various requirements are satisfied. The
Plan contains provisions which are intended to satisfy these requirements for
awards made at the time the Company is considered a public company and which
otherwise are "performance based" compensation.
BONUS INCENTIVE PLAN
Concurrent with the Offerings, the Company intends to adopt a bonus
incentive plan for the Presidents of the Subsidiaries. This bonus incentive
plan will be patterned after a similar plan under which Messrs. Bamba, Chou,
Han and Mak were compensated by NSI prior to the Reorganization and the
Offerings. Under the contemplated bonus incentive plan, Messrs. Bamba, Chou,
Han and Mak will be entitled to receive an annual cash bonus based upon the
prior year's operating results of the Subsidiary for which they are
responsible. Under this bonus incentive plan, participants would be able to
receive a bonus equal to 100% of their respective salaries, conditioned on
meeting certain performance criteria and subject to cash availability and
approval of the Board of Directors of the Company. One half of this bonus
would be payable by February 15 of the year following the year in which the
bonus is earned and the remaining one half would be deferred and would vest
ratably over 10 years or at age 65, whichever occurs first.
69
CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
Prior to or concurrently with the Offerings, the Existing Stockholders, who
are also the stockholders of Nu Skin Japan, Nu Skin Taiwan, Nu Skin Korea and
Nu Skin Hong Kong, will contribute their shares of capital stock in such
entities to the Company in exchange for shares of Class B Common Stock. See
"The Reorganization and S Corporation Distribution."
Upon the consummation of the Offerings, approximately 98.8% of the combined
voting power of the outstanding shares of Common Stock will be held by the
Selling Stockholders (approximately 98.7% if the Underwriters' over-allotment
options are exercised in full). Consequently, the Selling Stockholders will
have the ability, acting in concert, to elect all directors of the Company and
approve any action requiring approval by a majority of the stockholders of the
Company. The Selling Stockholders also own, and following the Offerings will
continue to own, 100% of the outstanding shares of NSI. As a result of this
ownership, the Selling Stockholders will consider the short-term and the long-
term impact of all stockholder decisions on the consolidated financial results
of NSI and the Company. The interests of NSI, on the one hand, and of the
Company, on the other hand, may differ from time to time. See "Risk Factors--
Control by Existing Stockholders; Anti-Takeover Effect of Dual Classes of
Common Stock" and "--Relationship with and Reliance on NSI; Conflict of
Interest."
The Operating Agreements were approved by the present Board of Directors of
the Company, which is composed entirely of officers and shareholders of NSI.
It is expected that, subsequent to the closing of the Offerings, the
composition of the Board of Directors of the Company will be changed so that
at least two of its members will be persons unaffiliated with NSI. In
addition, most of the executive officers of the Company are also executive
officers of NSI. It is expected that a number of the Company's executive
officers will continue to spend a portion of their time on the affairs of NSI,
for which they will continue to receive compensation from NSI. See "Risk
Factors--Relationship with and Reliance on NSI; Conflict of Interest" and
"Business--Relationship with NSI."
Virtually all of the products sold by the Company are purchased from NSI
pursuant to distribution agreements with NSI. The Company also manufactures
itself, or through third-party manufacturers, certain products and commercial
materials which it then sells using NSI trademarks or tradenames licensed
under trademark/tradename license agreements with NSI. In addition, the
Company does not have its own sales or distribution network but licenses the
right to use NSI's distribution network and the Global Compensation Plan
pursuant to licensing and sales agreements with NSI. During 1995, the Company
paid NSI approximately $99.2 million for goods and services provided to the
Company under the Operating Agreements. NSIMG also provides a broad range of
management, administrative and technical support to the Company pursuant to
management services agreements with the Company. During 1995, the Company paid
NSIMG approximately $2.1 million for services provided to the Company under a
management service agreement. For a summary of the terms of these agreements,
see "Business--Relationship with NSI." See also Combined Financial Statements
and footnotes thereto.
During 1995, Nu Skin Japan paid NSI a royalty of 8% of the revenue from
sales of products manufactured by a third party manufacturer under a license
agreement between Nu Skin Japan and NSI. In fiscal 1995, Nu Skin Japan paid
NSI $2.3 million in royalties pursuant to this license agreement.
Pursuant to wholesale distribution agreements, Nu Skin Hong Kong distributes
certain NSI products to Nu Skin Personal Care Australia, Inc. and Nu Skin New
Zealand, Inc. Pursuant to these agreements, Nu Skin Hong Kong was paid
approximately $4.6 million in fiscal 1995 by Nu Skin Personal Care Australia,
Inc. and Nu Skin New Zealand, Inc.
Prior to or concurrently with the Offerings, the Company will purchase from
NSI for $25.0 million, the exclusive rights to distribute NSI products in
Thailand, Indonesia, Malaysia, the Philippines, the PRC, Singapore and
Vietnam. See "Risk Factors--Entering New Markets." The Company will pay $15
million of this amount out of proceeds of the Offerings. See "Use of
Proceeds." In addition the Company and NSI will enter into a mutual
indemnification agreement pursuant to which NSI will indemnify the Company for
certain claims, losses
70
and liabilities relating to the operations of the Subsidiaries prior to the
Reorganization and the Company will indemnify NSI for certain claims, losses
and liabilities relating to the operations of the Subsidiaries after the
Reorganization. See "Business--Relationship with NSI."
Craig Bryson and Craig S. Tillotson are major stockholders of the Company
and have been NSI distributors since 1984. Messrs. Bryson and Tillotson are
partners in an entity (the "Partnership") which receives substantial
commissions from NSI, including commissions on sales generated within the
Company's markets. For the fiscal year ended December 31, 1995, total
commissions paid to the Partnership on sales originating in the Company's then
open markets (Japan, Taiwan and Hong Kong) was approximately $1.1 million. By
agreement, NSI pays commissions to the Partnership at the highest level of
commissions available to distributors. Management believes that this
arrangement allows Messrs. Bryson and Tillotson the flexibility of using their
expertise and reputations in network marketing circles to sponsor, motivate
and train distributors to benefit NSI's distributor force generally, without
having to focus solely on their own organizations.
The Existing Stockholders will enter into a stockholders agreement with the
Company (the "Stockholders' Agreement"). The Existing Stockholders will in the
aggregate own shares having 98.8% of the voting power of the Company
immediately after the Offerings (approximately 98.7% of the Underwriters over-
allotment options are exercised in full.) In order to ensure the qualification
of the Reorganization under Section 351 of the Code, the Existing Stockholders
have agreed not to transfer any shares they own for 365 days after the
Offerings without the consent of the Company except for certain transfers
relating to the funding of the Distributor Options and the grant of the
employee stock bonus awards. See "Shares Eligible for Future Sale." After the
expiration of this 365-day period, no such stockholder is permitted to
transfer in any one-year period a number of shares greater than the lesser of
(i) the amount that could be sold under Rule 144 during that period, or (ii)
1.25% of the total Common Stock owned by Existing Stockholders and as of the
date of the Stockholders Agreement. The Existing Stockholders have been
granted registration rights by the Company permitting each of such Existing
Stockholder to register his or her shares of Class A Common Stock, subject to
certain restrictions, on any registration statement filed by the Company until
such Existing Stockholder has sold a specified value of shares of Class A
Common Stock. See "Certain Relationships and Related Transactions."
Prior to the Offerings, the Company will enter into indemnification
agreements with its officers and directors indemnifying them against liability
incurred by them in the course of their service to the Company. The Company
has granted certain of its executive officers options to purchase shares of
Class A Common Stock. In January 1994, NSI stockholders agreed to grant M.
Truman Hunt an option to purchase 267,500 shares of capital stock of the
Company at an aggregate exercise price of $500,000 which reflects the agreed
upon fair market value of this equity interest in January 1994. This option is
immediately exercisable, upon consummation of the Reorganization.
Prior to the Offerings, the Existing Stockholders intend to contribute to
the Company 1,605,000 of the outstanding shares of the Company's Common Stock.
The Company intends to grant to NSI the Distributor Options to purchase such
shares of Common Stock and NSI intends to assign the Distributor Options to
qualifying distributors of NSI in connection with the Offerings. The
Distributor Options will be subject to certain conditions related to
distributor performance and will vest on December 31, 1997. The Company will
record distributor incentive expense for the Distributor Options. See "Shares
Eligible for Future Sale."
The Company has employment agreements with certain of its executive
officers. See "Management--Employment Agreements."
71
PRINCIPAL AND SELLING STOCKHOLDERS
The following table sets forth, as of September 30, 1996, certain
information regarding the beneficial ownership of the Class A Common Stock and
Class B Common Stock after giving effect to the Reorganization and as adjusted
to give effect to (i) the contribution to the Company by the Existing
Stockholders of 1,605,000 shares of Class A Common Stock which the Company has
reserved for issuance upon exercise of the Distributor Options; (ii) the
contribution of 1,250,000 shares of Class A Common Stock by the Existing
Stockholders to NSI and its affiliates (other than the Company) for issuance
in connection with certain employee stock bonus awards; and (iii) the sales of
shares of Class A Common Stock in the Offerings (assuming no exercise of the
Underwriters' over-allotment options) by (a) each person known by the Company
to own beneficially more than 5% of either the outstanding shares of Class A
Common Stock or Class B Common Stock; (b) each of the Company's directors; (c)
each of the executive officers whose names appear in the summary compensation
table; and (d) all directors and executive officers as a group. The business
address of the 5% stockholders is 75 West Center Street, Provo, Utah 84601.
CLASS A CLASS B TOTAL
COMMON STOCK(/1/)(/2/) COMMON STOCK(/1/)(/2/) COMMON STOCK
------------------------------- ----------------------- ------------
TO
BE SOLD TO BE OWNED OWNED PRIOR TO AND VOTING
OWNED IN THE AFTER THE AFTER POWER AFTER
DIRECTORS, EXECUTIVE OFFICERS, PRIOR OFFERINGS OFFERINGS THE OFFERINGS(/3/) OFFERINGS
5% STOCKHOLDERS TO THE --------- ----------- ----------------------- ------------
AND SELLING STOCKHOLDERS OFFERINGS NUMBER NUMBER % NUMBER % %
- ------------------------------ --------- --------- ------- --- -------------- -------- ------------
Blake M. Roney(/4/)....... 215,369 215,369 -- -- 21,493,060 28.8 28.5
Nedra D. Roney(/5/)....... 453,949 453,949 -- -- 14,813,507 19.9 19.7
Sandie N. Tillotson(/6/).. 403,751 403,751 -- -- 8,997,985 12.1 11.9
Craig S. Tillotson(/7/)... 201,874 201,874 -- -- 4,619,795 6.2 6.1
R. Craig Bryson(/8/)...... 201,874 201,874 -- -- 5,127,483 6.9 6.8
Steven J. Lund(/9/)....... 142,500 142,500 -- -- 4,387,069 5.9 5.8
The WFA Trust and The All
R's Trust(/1//0/)........ 649,133 649,133 -- -- -- -- --
Brooke B. Roney(/1//1/)... 142,500 142,500 -- -- 3,639,168 4.9 4.8
Kirk V. Roney(/1//2/)..... 142,500 142,500 -- -- 3,389,168 4.5 4.5
Keith R. Halls(/1//3/).... 28,500 28,500 -- -- 1,227,640 1.6 1.6
The MAR Trust and The
Nedra Roney Fixed
Charitable
Trust(/1//4/)............ 251,583 251,583 -- -- -- -- --
Renn M. Patch(/1//5/)..... -- -- -- -- -- -- --
Takashi Bamba(/1//6/)..... -- -- -- -- -- -- --
John Chou(/1//7/)......... -- -- -- -- -- -- --
George Mak(/1//8/)........ -- -- -- -- -- -- --
Rick Roney(/1//9/)........ 6,333 6,333 -- -- 854,299 1.1 1.1
Burke Roney(/2//0/)....... 5,067 5,067 -- -- 614,093 * *
Park Roney(/2//1/)........ 5,067 5,067 -- -- 614,093 * *
BNASIA Limited(/2//2/).... -- -- -- -- 21,339,850 28.6 28.3
RCKASIA Limited(/2//3/)... -- -- -- -- 5,054,117 6.8 6.7
All directors and officers
as a group (17
persons)(/2//4/)......... 1,991,753 1,724,253 267,500 * 43,134,090 57.9 57.2
- -------
* Less than 1%
(1) Each share of Class B Common Stock is convertible at any time at the
option of the holder into one share of Class A Common Stock and each share
of Class B Common Stock is automatically converted into one share of Class
A Common Stock upon the transfer of any share of Class B Common Stock to
any person who is not a Permitted Transferee as defined in the
Stockholders Agreement entered into by the Existing Stockholders prior to
the Offerings. See "Certain Relationships and Related Transactions."
(2) Prior to the Offerings, the Selling Stockholders will convert shares of
Class B Common Stock to Class A Common Stock to be sold in the Offerings.
(3) Reflects the conversion prior to the Offerings by the Existing
Stockholders of approximately 2,855,000 shares of Class B Common Stock
into 2,855,000 shares of Class A Common Stock which were contributed by
the Existing Stockholders pro rata to NSI and its affiliates (other than
the Company) for distribution to distributors of NSI and employees of NSI
and its affiliates (other than the Company) pursuant to the Distributor
Options and employee stock bonus awards. See "Shares Eligible For Future
Sale." Does not reflect the option granted by the Selling Stockholders to
the U.S. Underwriters and the International Managers (on a pro rata basis,
based on the number of shares sold by such Selling Stockholders in the
Offerings) exercisable for 30 days after the date of this Prospectus to
purchase up to 884,317 and 255, 683 additional shares of Class A Common
Stock, respectively, to cover over-allotments, if any, at the initial
public offering price, less the underwriting discount.
(4) Includes shares beneficially owned or deemed to be owned beneficially by
Blake M. Roney prior to the Offerings as follows: 65,369 shares of Class A
Common Stock directly and with respect to which he has sole voting and
investment power; 21,316,895 shares of Class B Common Stock as the general
partner of BNASIA Limited, a limited partnership and with respect to which
he shares voting and investment power with his wife Nancy L. Roney;
176,165 shares of Class B Common Stock as trustee and with respect to
which he has sole voting and investment
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power with his wife Nancy L. Roney; 150,000 shares of Class A Common Stock as
a co-trustee and with respect to which he shares voting and investment power
with his wife Nancy L. Roney. Blake M. Roney is the Chairman of the Company's
Board of Directors, the Chief Executive Officer and a stockholder of the
Company and Chairman of the Board of Directors, an executive officer and a
stockholder of NSI.
(5) Includes shares beneficially owned or deemed to be owned beneficially by
Nedra D. Roney prior to the Offerings as follows: 328,949 shares of Class A
Common Stock directly and with respect to which she has sole voting and
investment power; 14,813,507 shares of Class B Common Stock directly with
respect to which she has sole voting and investment power; 125,000 shares
of Class A Common Stock as co-trustee and with respect to which she shares
voting and investment power with Evan Schmutz. Nedra D. Roney is a Director
and stockholder of NSI.
(6) Includes shares beneficially owned or deemed to be owned beneficially by
Sandie N. Tillotson prior to the Offerings as follows: 49,583 shares of
Class A Common Stock and 8,080,209 shares of Class B Common Stock directly
and with respect to which she has sole voting and investment power; 354,168
shares of Class A Common Stock and 417,776 shares of Class B Common Stock
as trustee and with respect to which she has sole voting and investment
power; 500,000 shares of Class B Common Stock as manager of a limited
liability company and with respect to which she has sole voting and
investment power. Sandie N. Tillotson is a Director of the Company and a
Director, executive officer and stockholder of NSI.
(7) Includes shares beneficially owned or deemed to be owned beneficially by
Craig S. Tillotson prior to the Offerings as follows: 24,792 shares of
Class A Common Stock and 3,255,631 shares of Class B Common Stock directly
and with respect to which he has sole voting and investment power; 177,082
shares of Class A Common Stock and 112,500 shares of Class B Common Stock,
as trustee and with respect to which he has sole voting and investment
power; 251,664 shares of Class B Common Stock as co-trustee with respect to
which he shares voting and investment power; 1,000,000 shares of Class B
Common Stock, as manager of a limited liability company with respect to
which he has sole voting and investment power. Craig S. Tillotson is a
stockholder of the Company and NSI.
(8) Includes shares beneficially owned or deemed to be owned beneficially by R.
Craig Bryson prior to the Offerings as follows: 26,874 shares of Class A
Common Stock directly and with respect to which he has sole voting and
investment power; 5,052,483 shares of Class B Common Stock as general
partner of RCKASIA Limited, a limited partnership with respect to which he
shares voting and investment power with his wife Kathleen D. Bryson;
175,000 shares of Class A Common Stock and 75,000 shares of Class B Common
Stock as co-trustee and with respect to which he shares voting and
investment power with Kathleen D. Bryson. R. Craig Bryson is a stockholder
of the Company and NSI.
(9) Includes shares beneficially owned or deemed to be owned beneficially by
Steven J. Lund prior to the Offerings as follows: 67,500 shares of Class A
Common Stock directly and with respect to which he has sole voting and
investment power; 3,414,168 shares of Class B Common Stock as general
partner of a limited partnership and with respect to which he shares voting
and investment power with his wife Kalleen Lund; 897,901 shares of Class B
Common Stock as trustee and with respect to which he has sole voting and
investment power; 75,000 shares of Class A Common Stock and 75,000 shares
of Class B Common Stock as co-trustee and with respect to which he shares
voting and investment power with Kalleen Lund. Excludes 649,133 shares of
Class A Common Stock held as trustee of The WFA Trust and The All R's Trust
and with respect to which he has sole voting and investment power as set
forth in footnote 10 below. Steven J. Lund is a Director, executive officer
and stockholder of both the Company and NSI.
(10) Includes shares of Class A Common Stock owned beneficially by Steven J.
Lund as trustee and with respect to which he has sole voting and
investment power.
(11) Includes shares beneficially owned or deemed to be owned beneficially by
Brooke B. Roney prior to the Offerings as follows: 127,500 shares of Class
A Common Stock directly and with respect to which he has sole voting and
investment power; 3,639,168 shares of Class B Common Stock as general
partner of a limited partnership and with respect to which he shares
voting and investment power with his wife Denise R. Roney; 15,000 shares
of Class A Common Stock as co-trustee and with respect to which he shares
voting and investment power with Denise B. Roney. Brooke B. Roney is a
Director of the Company and a Director, executive officer and stockholder
of NSI.
(12) Includes shares beneficially owned or deemed to be owned beneficially by
Kirk V. Roney prior to the Offerings as follows: 17,500 shares of Class A
Common Stock directly and with respect to which he has sole voting and
investment power; 3,314,168 shares of Class B Common Stock as general
partner of a limited partnership and with respect to which he shares
voting and investment power with his wife Melanie R. Roney; 125,000 shares
of Class A Common Stock and 75,000 shares of Class B Common Stock as co-
trustee and with respect to which he shares voting and investment power
with Melanie K. Roney and Lee S. McCullough. Kirk V. Roney is a Director
of the Company and a Director, executive officer and stockholder of NSI.
(13) Includes shares beneficially owned or deemed to be owned beneficially by
Keith R. Halls prior to the Offerings as follows: 12,250 shares of Class A
Common Stock directly and with respect to which he has sole voting and
investment power; 662,241 shares of Class B Common Stock as general
partner of a limited partnership and with respect to which he shares
voting and investment power with his wife Anna Lisa Massaro Halls; 50,000
shares of Class B as the manager of a limited liability company with
respect to which he has sole voting and investment power; 542,899 shares
of Class B Common Stock as trustee and with respect to which he has sole
voting and investment power; 16,250 shares of Class A Common Stock; and
12,500 shares of Class B Common Stock as co-trustee and with respect to
which he shares voting and investment power. Excludes 251,583 shares of
Class A Common Stock held as trustee of The MAR Trust and with respect to
which he has sole voting and investment power as set forth in footnote 14
below. Keith R. Halls is a Director and an executive officer of the
Company and is a Director, executive officer and a stockholder of NSI.
(14) Includes shares of Class A Common Stock owned beneficially by Keith R.
Halls as trustee and with respect to which he has sole voting and
investment power.
(15) Excludes employee stock bonus awards of 13,000 shares of Class A Common
Stock awarded to Mr. Patch and which will not vest within 60 days of the
Offerings.
(16) Excludes employee stock bonus awards of 10,400 shares of Class A Common
Stock awarded to Mr. Bamba and which will not vest within 60 days of the
Offerings.
(17) Excludes employee stock bonus awards of 13,000 shares of Class A Common
Stock awarded to Mr. Chou and which will not vest within 60 days of the
Offerings.
(18) Excludes employee stock bonus awards of 9,000 shares of Class A Common
Stock granted to Mr. Mak and which will not vest within 60 days of the
Offerings.
(19) Includes shares beneficially owned or deemed to be owned beneficially by
Rick Roney prior to the Offerings as follows: 6,333 shares of Class A
Common Stock to be sold in the Offerings and 767,617 shares of Class B
Common Stock directly and with respect to which he has sole voting and
investment power; 86,682 shares of Class B Common Stock as trustee and
with respect to which he has sole voting and investment power.
(20) Includes shares beneficially owned or deemed to be owned beneficially by
Burke Roney prior to the Offerings as follows: 5,067 shares of Class A
Common Stock and 614,093 shares of Class B Common Stock directly and with
respect to which he has sole voting and investment power.
(21) Includes shares beneficially owned or deemed beneficially owned by Park
Roney prior to the Offerings as follows: 5,067 shares of Class A Common
Stock and 614,093 shares of Class B Common Stock directly and with respect
to which he has sole voting and investment power. Park Roney is a brother
of Blake M. Roney, Nedra D. Roney, Brooke B. Roney, Kirk V. Roney and
Burke Roney.
(22) Includes 21,339,850 shares of Class B Common Stock owned by BNASIA Limited
of which Blake M. Roney and his wife Nancy L. Roney are the general
partners and have shared voting and investment power.
(23) Includes 5,054,117 shares of Class B Common Stock owned by RCKASIA Limited
of which R. Craig Bryson and his wife Kathleen D. Bryson are the general
partners and have shared voting and investment power.
(24) Class A Common Stock owned prior to the Offerings includes 267,500 shares
of Class A Common Stock subject to a stock option which has been granted
to an executive officer of the Company and which is exercisable within 60
days of the Offerings.
73
SHARES ELIGIBLE FOR FUTURE SALE
GENERAL. Prior to the Offerings, there has been no public market for the
Common Stock and no prediction can be made that an active trading market will
develop or as to the effect, if any, that market sales of shares or the
availability of such shares for sale will have on the market price of the
Common Stock prevailing from time to time. Future sales of substantial amounts
of Common Stock in the public market could adversely affect prevailing market
prices.
Upon completion of the Offerings, the Company will have 8,850,000 shares of
Class A Common Stock issued and outstanding. This number includes (i)
7,600,000 shares of Class A Common Stock to be sold in the Offerings and (ii)
1,250,000 shares of Class B Common Stock converted into Class A Common Stock
prior to the Offerings and contributed by the Existing Stockholders to NSI and
its affiliates (other than the Company) for issuance to employees of NSI and
its affiliates (other than the Company) as employee stock bonus awards and
excludes (a) 1,605,000 shares of Class B Common Stock converted into Class A
Common Stock prior to the Offerings and contributed by the Existing
Stockholders to the Company and held by the Company in reserve as treasury
shares for issuance upon the exercise of the Distributor Options, (b) 267,500
shares of Class A Common Stock subject to a stock option which has been
granted to an executive officer of the Company, and (c) 109,000 shares
reserved for issuance by the Company to its employees as employee stock bonus
awards. In addition, upon completion of the Offerings and the aforementioned
conversions, the Company will have 74,545,000 shares of Class B Common Stock
issued and outstanding, each share of which is convertible at any time into
one share of Class A Common Stock. The 74,545,000 shares of Class B Common
Stock and the 267,500 shares of Class A Common Stock subject to the
aforementioned executive option are "restricted" shares within the meaning of
Rule 144 under the 1933 Act ("Rule 144"). Restricted shares may not be resold
in the public market except in compliance with the registration requirements
of the 1933 Act or pursuant to an exemption therefrom, including the exemption
provided by Rule 144. The 7,600,000 shares of Class A Common Stock to be sold
in the Offerings, the 1,605,000 shares underlying the Distributor Options and
the 1,250,000 and 109,000 shares of Class A Common Stock reserved for issuance
as employee stock bonus awards have been registered under the 1933 Act and
are, accordingly, freely tradeable without restriction or further registration
under the 1933 Act, unless held by "affiliates" of the Company, as that term
is defined in Rule 144. The shares underlying the Distributor Options and the
employee stock bonus awards are, however, subject to certain vesting and
resale limitations, as described below.
Prior to the Offerings, the Company anticipates granting stock bonus awards
under the 1996 Stock Incentive Plan to certain of its executive officers and
employees for 109,000 shares of Class A Common Stock. These awards will vest
ratably over four years following the date of grant. See "Certain
Relationships and Related Transactions." After such grants, an aggregate of
approximately 3,891,000 shares will remain available for future option grants
and other equity awards under the Plan. See "Management--1996 Stock Incentive
Plan." Shares granted or issuable upon exercise of options granted pursuant to
the Plan are "restricted" shares within the meaning of Rule 144. The Company
intends to file a registration statement on Form S-8 under the 1933 Act to
register all of the shares of Class A Common Stock reserved for issuance under
the Plan. Such registration statement is expected to be filed as soon as
practicable after the date of the Offerings and will become automatically
effective upon filing. Shares issued under the Plan after such registration
statement is filed may thereafter be sold in the open market, subject to the
Rule 144 volume limitations applicable to affiliates and any transfer
restrictions imposed on the date of the grant.
Generally, as currently in effect, Rule 144 provides that beginning 90 days
after the date of this Prospectus, a person (or persons whose shares are
aggregated) who has beneficially owned "restricted" shares of the Common Stock
for at least two years will be entitled to sell on the open market in broker's
transactions within any three-month period a number of shares that does not
exceed the greater of (i) 1% of the then outstanding shares of the Common
Stock (1% is expected to be equal to approximately 885,000 shares immediately
following the Offerings) or (ii) the average weekly trading volume in the
Common Stock on the open market during the four calendar weeks preceding such
sale. Sales under Rule 144, as currently in effect, are also subject to
certain notice requirements and the availability of current public information
about the Company. Under the provisions of Rule 144, the Existing Stockholders
will be deemed to have acquired beneficial ownership of the shares of
74
Common Stock currently held by them on the date of the issuance of such shares
by the Company in the Reorganization. The Commission has recently proposed to
reduce the Rule 144 holding periods. If enacted, such modification will have a
material effect on the timing of when shares of the Common Stock become
eligible for resale.
Upon completion of the Offerings, the Existing Stockholders will hold
74,545,000 shares of the Class B Common Stock (which Class B shares are
convertible into Class A shares). See "Risk Factors--Control by Existing
Stockholders; Anti-Takeover Effect of Dual Classes of Common Stock." The
Existing Stockholders have entered into a stockholders agreement (the
"Stockholders Agreement") which restricts the extent to which any Existing
Stockholder can dispose of its shares of Common Stock following the Offerings.
Among other things, in order to ensure the qualification of the Reorganization
under Section 351 of the Code, such stockholders have agreed not to transfer
any shares they own for 365 days after the Offerings without the consent of
the Company except for the funding of the Distributor Options and the grant of
the employee stock bonus awards. After the expiration of the 365-day period,
no such stockholder is permitted to transfer in any one-year period a number
of shares greater than the lesser of (i) the amount that could be sold under
Rule 144 during that period, or (ii) 1.25% of the total Common Stock owned by
Existing Stockholders as of the date of the Stockholders Agreement. The
Existing Stockholders have been granted "piggyback" registration rights by the
Company permitting each of such Existing Stockholders to register his or her
shares of Class A Common Stock, subject to certain restrictions, on any
registration statement filed by the Company until such Existing Stockholder
has sold a specified value of shares of Class A Common Stock. See "Certain
Relationships and Related Transactions."
The Company, its directors and officers, and the Existing Stockholders of
NSI have agreed or will agree prior to the Offerings not to sell or otherwise
dispose of any shares of Common Stock or securities convertible into or
exchangeable or exercisable for Common Stock, without the prior consent of
Merrill Lynch & Co., for a period of 180 days after the date of this
Prospectus, except that the Company and the Existing Stockholders may, without
such consent, grant options or issue shares of Common Stock pursuant to
certain equity incentives, including, without limitation, the Distributor
Options and the employee stock bonus awards. See "Risk Factors--Shares
Eligible for Future Sale" and "Underwriting."
DISTRIBUTOR OPTIONS AND EMPLOYEE STOCK BONUS AWARDS. Prior to the Offerings,
the Existing Stockholders intend to convert 1,605,000 shares of Class B Common
Stock to Class A Common Stock and contribute such shares of Class A Common
Stock to the Company. The Company intends to grant to NSI the Distributor
Options to purchase such shares of Class A Common Stock, and NSI intends to
assign these Distributor Options to qualifying distributors of NSI in
connection with the Offerings pursuant to the NSI 1996 Distributor Stock
Option Plan. The vesting of and the right to exercise the Distributor Options
are subject to certain conditions, and the Distributor Options are being
registered along with the shares of Class A Common Stock underlying such
Distributor Options concurrently with the Offerings pursuant to Rule 415 under
the 1933 Act.
Prior to the date of this Prospectus, the Existing Stockholders will also
contribute an aggregate of 1,250,000 shares of the Company's Class A Common
Stock to NSI and its affiliates (other than the Company) for issuance in
connection with the employee stock bonus awards to be made by NSI and its
affiliates (other than the Company) to their respective employees. The shares
of Class A Common Stock underlying each such employee stock bonus award will
be issued to the employee recipient at a rate of 25% per year commencing one
year following the date of the award, provided the employee recipient is still
employed by NSI or one of its affiliates (other than the Company). The Company
also intends to issue 109,000 shares of Class A Common Stock to its employees
in connection with employee stock bonus awards to be made to the Company's
employees on the same terms as described above pursuant to the Nu Skin Asia
Pacific, Inc. 1996 Stock Incentive Plan.
The Distributor Options, the shares of Class A Common Stock underlying the
Distributor Options and the employee stock bonus awards will be registered
pursuant to Rule 415 under the 1933 Act. The Distributor Options will be
issued pursuant to this Prospectus upon the grant of the Distributor Options.
The shares of Class A Common Stock will be issued by the Company or sold by
the Rule 415 Selling Stockholders, as applicable, upon the exercise of the
Distributor Options and upon the grant of the employee stock bonus awards.
75
DESCRIPTION OF CAPITAL STOCK
GENERAL
As of the date of this Prospectus (and after consummation of the
Reorganization), the authorized capital stock of the Company consists of
500,000,000 shares of Class A Common Stock, par value $.001 per share and
100,000,000 shares of Class B Common Stock, par value $.001 per share, and
25,000,000 shares of Preferred Stock, par value $.001 per share ("Preferred
Stock"). Upon completion of the Offerings, the Company will have 8,850,000
shares of Class A Common Stock issued and outstanding. This number includes
(i) 7,600,000 shares of Class A Common Stock to be sold in the Offerings and
(ii) 1,250,000 shares of Class B Common Stock converted into Class A Common
Stock prior to the Offerings and contributed by the Existing Stockholders to
NSI and its affiliates (other than the Company) for issuance to employees of
NSI and its affiliates (other than the Company) as employee stock bonus awards
and excludes (a) 1,605,000 shares of Class B Common Stock converted into Class
A Common Stock prior to the Offerings and contributed by the Existing
Stockholders to the Company and held by the Company in reserve as treasury
shares for issuance upon the exercise of the Distributor Options, (b) 267,500
shares of Class A Common Stock subject to a stock option which has been
granted to an executive officer of the Company and (c) 109,000 shares reserved
for issuance by the Company to its employees as employee stock bonus awards.
In addition, upon completion of the Offerings, the Company will have
74,545,000 shares of Class B Common Stock issued and outstanding, all of which
are held of record by the Existing Stockholders. Of the authorized shares of
Preferred Stock, no shares of Preferred Stock are outstanding. The following
description is a summary and is subject to and qualified in its entirety by
reference to the provisions of the Company's Amended and Restated Certificate
of Incorporation (the "Certificate of Incorporation") filed as an exhibit to
the Registration Statement of which this Prospectus forms a part.
COMMON STOCK
The shares of Class A Common Stock and Class B Common Stock are identical in
all respects, except for voting rights and certain conversion rights and
transfer restrictions regarding the shares of the Class B Common Stock, as
described below.
VOTING RIGHTS. Each share of Class A Common Stock entitles the holder to one
vote on each matter submitted to a vote of the Company's stockholders and each
share of Class B Common Stock entitles the holder to ten votes on each such
matter, including the election of directors. There is no cumulative voting.
Except as required by applicable law, holders of Class A Common Stock and
holders of Class B Common Stock will vote together on all matters submitted to
a vote of the stockholders. With respect to certain corporate changes, such as
liquidations, reorganizations, recapitalizations, mergers, consolidations and
sales of substantially all of the Company's assets, holders of Class A Common
Stock and holders of Class B Common Stock will vote together as a single class
and the approval of 66 2/3% of the outstanding voting power is required to
authorize or approve such transactions. See "Risk Factors--Control by Existing
Stockholders; Anti-Takeover Effect of Dual Classes of Common Stock" and "--
Anti-Takeover Effects of Certain Charter, Contractual and Statutory
Provisions."
Any action that can be taken at a meeting of the stockholders may be taken
by written consent in lieu of a meeting if the Company receives consents
signed by stockholders having the minimum number of votes that would be
necessary to approve the action at a meeting at which all shares entitled to
vote on the matter were present. This could permit holders of Class B Common
Stock to take all actions required to be taken by the stockholders without
providing the other stockholders an opportunity to make nominations or raise
other matters at a meeting. The right to take action by less than unanimous
written consent expires at such time as there are no shares of Class B Common
Stock outstanding.
DIVIDENDS. Holders of Class A Common Stock and holders of Class B Common
Stock are entitled to receive dividends at the same rate if, as and when such
dividends are declared by the Board of Directors of the Company out of assets
legally available therefor after payment of dividends required to be paid on
shares of Preferred Stock, if any.
If a dividend or distribution payable in Class A Common Stock is made on the
Class A Common Stock, the Company must also make a pro rata and simultaneous
dividend or distribution on the Class B Common Stock payable in shares of
Class B Common Stock. Conversely, if a dividend or distribution payable in
Class B
76
Common Stock is made on the Class B Common Stock, the Company must also make a
pro rata and simultaneous dividend or distribution on the Class A Common Stock
payable in shares of Class A Common Stock. See "Risk Factors--Absence of
Dividends" and "Dividend Policy."
RESTRICTIONS ON TRANSFER. If a holder of Class B Common Stock transfers such
shares, whether by sale, assignment, gift, bequest, appointment or otherwise,
to a person other than a permitted transferee (as defined in the Company's
Certificate of Incorporation) such shares will be converted automatically into
shares of Class A Common Stock. In the case of a pledge of shares of Class B
Common stock to a financial institution, such shares will not be deemed to be
transferred unless and until a foreclosure occurs.
CONVERSION. The Class A Common Stock has no conversion rights. The Class B
Common Stock is convertible into shares of Class A Common Stock, in whole or
in part, at any time and from time to time at the option of the holder, on the
basis of one share of Class A Common Stock for each share of Class B Common
Stock converted. In the event of a transfer of shares of Class B Common Stock
to any person other than a Permitted Transferee each share of Class B Common
Stock so transferred automatically will be converted into one share of Class A
Common Stock. Each share of Class B Common Stock will also automatically
convert into one share of Class A Common Stock if, on the record date for any
meeting of the stockholders, the number of shares of Class B Common Stock then
outstanding is less than 10% of the aggregate number of shares of Class A
Common Stock and Class B Common Stock then outstanding.
LIQUIDATION. In the event of liquidation, after payment of the debts and
other liabilities of the Company and after making provision for the holders of
Preferred Stock, if any, the remaining assets of the Company will be
distributable ratably among holders of Class A Common Stock and holders of
Class B Common Stock treated as a single class.
MERGERS AND OTHER BUSINESS COMBINATIONS. Upon the merger or consolidation of
the Company, holders of each class of Common Stock are entitled to receive
equal per share payments or distributions, except that in any transaction in
which shares of capital stock are distributed, such shares may differ as to
voting rights to the extent and only to the extent that the voting rights of
the Class A Common Stock and the Class B Common Stock differ at that time. The
Company may not dispose of all or any substantial part of the assets of the
Company to, or merge or consolidate with, any person, entity or "group" (as
defined in Rule 13-d-5 of the 1934 Act), which beneficially owns in the
aggregate 10% or more of the outstanding Common Stock of the Company (a
"Related Person") without the affirmative vote of the holders, other than such
Related Person, of not less that 66 2/3% of the voting power of outstanding
Class A Common Stock and Class B Common Stock voting as a single class. For
the sole purpose of determining the 66 2/3% vote, a Related Person will also
include the seller or sellers from whom the Related Person acquired, during
the preceding six months, at least 5% of the outstanding shares of Class A
Common Stock in a single transaction or series of related transactions
pursuant to one or more agreements or other arrangements (and not through a
brokers' transaction), but only if such seller or sellers have beneficial
ownership of shares of Common Stock having a fair market value in excess of
$10 million in the aggregate following such disposition to such Related
Person. This 66 2/3% voting requirement is not applicable, however, if (i) the
proposed transaction is approved by a vote of not less than a majority of the
directors of the Company who are neither affiliated nor associated with the
Related Person (or the seller of shares to the Related Person as described
above) or (ii) in the case of a transaction pursuant to which the holders of
Common Stock are entitled to receive cash, property, securities or other
consideration, the cash or fair market value of the property, securities or
other consideration to be received per share in such transaction is not less
than the higher of (A) the highest price per share paid by the Related Person
for any of its holdings of Common Stock within the two-year period immediately
prior to the announcement of the proposed transaction or (B) the highest
closing sale price during the 30-day period immediately preceding such date or
during the 30-day period immediately preceding the date on which the Related
Person became a Related Person, whichever is higher. See "Risk Factors--Anti-
Takeover Effects of Certain Charter, Contractual and Statutory Provisions."
OTHER PROVISIONS. Holders of the Class A Common Stock and holders of Class B
Common Stock are not entitled to preemptive rights. Neither the Class A Common
Stock nor the Class B Common Stock may be subdivided or combined in any manner
unless the other class is subdivided or combined in the same proportion.
77
TRANSFER AGENT AND REGISTRAR. The Transfer Agent and Registrar for the Class
A Common Stock is American Stock Transfer and Trust Company.
LISTING. The Company has made application to list the Class A Common Stock
has been approved for listing on the New York Stock Exchange under the trading
symbol "NUS," subject to official notice of issuance.
PREFERRED STOCK
The Board of Directors is authorized, subject to any limitations prescribed
by the DGCL or the rules of the New York Stock Exchange or other organizations
on whose systems stock of the Company may be quoted or listed, to provide for
the issuance of additional shares of Preferred Stock in one or more series, to
establish from time to time the number of shares to be included in each such
series, to fix the rights, powers, preferences and privileges of the shares of
each wholly unissued series and any qualifications, limitations or
restrictions thereon, and to increase or decrease the number of shares of such
series, without any further vote or action by the stockholders. The approval
of the holders of at least 66 2/3% of the combined voting power of the
outstanding shares of Common Stock, however, is required for the issuance of
shares of Preferred Stock that have the right to vote for the election of
directors under ordinary circumstances or to elect 50% or more of the
directors under any circumstances. Depending upon the terms of the Preferred
Stock established by the Company's Board of Directors, any or all series of
Preferred Stock could have preference over the Common Stock with respect to
dividends and other distributions and upon liquidation of the Company or could
have voting or conversion rights that could adversely affect the holders of
the outstanding Common Stock. In addition, the Preferred Stock could delay,
defer or prevent a change of control of the Company. See "Risk Factors--Anti-
Takeover Effects of Certain Charter, Contractual and Statutory Provisions."
The Company has no present plans to issue any shares of Preferred Stock.
OTHER CHARTER AND BYLAW PROVISIONS
Special meetings of stockholders may be called only by the majority
stockholders, the Company's Board of Directors, the President or the
Secretary. Except as otherwise required by law, stockholders, in their
capacity as such, are not entitled to request or call a special meeting of the
stockholders.
Stockholders of the Company are required to provide advance notice of
nominations of directors to be made at, and of business proposed to be brought
before, a meeting of the stockholders. The failure to deliver proper notice
within the periods specified in the Company's Amended and Restated Bylaws (the
"Bylaws") will result in the denial of the stockholder of the right to make
such nominations or propose such action at the meeting. See "Risk Factors--
Anti-Takeover Effects of Certain Charter, Contractual and Statutory
Provisions."
SECTION 203 OF THE DELAWARE GENERAL CORPORATION LAW
Upon consummation of the Offerings, the Company will be subject to the
provisions of Section 203 of the DGCL (the "Anti-Takeover Law") regulating
corporate takeovers. The Anti-Takeover Law prevents certain Delaware
corporations, including those whose securities are listed on the New York
Stock Exchange, from engaging, under certain circumstances, in a "business
combination" (which includes a merger of not more than 10% of the
corporations' assets) with an "interested stockholder" (a stockholder who,
together with affiliates and associates, within the prior three years did own,
15% or more of the corporation's outstanding voting stock) for three years
following the date that such stockholder became an "interested stockholder,"
unless the "business combination" or "interested stockholder" is approved in a
prescribed manner. See "Risk Factors--Anti-Takeover Effects of Certain
Charter, Contractual and Statutory Provisions."
INDEMNIFICATION AND LIMITATION OF LIABILITY OF DIRECTORS AND OFFICERS
To the fullest extent permitted by the DGCL, the Company's Certificate of
Incorporation and Bylaws provide that the Company shall indemnify and advance
expenses to each of its directors, officers, employees and
78
agents. The Company believes the foregoing provisions are necessary to attract
and retain qualified persons as directors and officers. Prior to the
consummation of the Offerings, the Company intends to enter into separate
indemnification agreements with each of its directors and executive officers
in order to effectuate such provisions. See "Certain Relationships and Related
Transactions." The Company's Certificate of Incorporation also provides for,
to the fullest extent permitted by the DGCL, elimination or limitation of
liability of directors for breach of their fiduciary duty to the Company or
its stockholders.
REGISTRATION RIGHTS
The Existing Stockholders have been granted "piggyback" registration rights
by the Company permitting each of such Existing Stockholders to register his
or her shares of Class A Common Stock, subject to certain restrictions, on any
registration statement filed by the Company until such Existing Stockholder
has sold a specified value of shares of Class A Common Stock. See "Certain
Relationships and Related Transactions."
79
CERTAIN UNITED STATES TAX CONSEQUENCES TO NON-UNITED STATES HOLDERS
The following is a general discussion of certain United States federal
income and estate tax consequences of the ownership and disposition of Class A
Common Stock by a Non-U.S. Holder. For this purpose, a "Non-U.S. Holder" is
any person who is, for United States federal income tax purposes, a foreign
corporation, a non-resident alien individual, a foreign partnership or a
foreign estate or trust. This discussion does not address all aspects of
United States federal income and estate taxes and does not deal with foreign,
state and local consequences that may be relevant to such Non-U.S. Holders in
light of their personal circumstances. Furthermore, this discussion is based
on provisions of the Code, existing and proposed regulations promulgated
thereunder and administrative and judicial interpretations thereof, as of the
date hereof, all of which are subject to change (possibly with retroactive
effect). Each prospective purchaser of Class A Common Stock is advised to
consult a tax advisor with respect to current and possible future tax
consequences of acquiring, holding and disposing of Class A Common Stock as
well as any tax consequences that may arise under the laws of any U.S. state,
municipality or other taxing jurisdiction.
An individual may, subject to certain exceptions, be deemed to be a resident
alien (as opposed to a non-resident alien) by virtue of being present in the
United States on at least 31 days in the calendar year and for an aggregate of
at least 183 days during a three-year period ending in the current calendar
year (counting for such purposes all of the days present in the current year,
one-third of the days present in the immediately preceding year, and one-sixth
of the days present in the second preceding year). Resident aliens are subject
to U.S. federal tax as if they were U.S. citizens.
DIVIDENDS
Dividends paid to a Non-U.S. Holder of Class A Common Stock generally will
be subject to withholding of United States federal income tax either at a rate
of 30% of the gross amount of the dividends or at such lower rate as may be
specified by an applicable income tax treaty. However, dividends that are
effectively connected with the conduct of a trade or business by the Non-U.S.
Holder within the United States and, where a tax treaty applies, are
attributable to a United States permanent establishment of the Non-U.S.
Holder, are not subject to the withholding tax (provided the Non-U.S. Holder
files appropriate documentation, including, under current law, IRS Form 4224,
with the payor of the dividend), but instead are subject to United States
federal income tax on a net income basis at applicable graduated individual or
corporate rates. Any such effectively connected dividends received by a
foreign corporation may, under certain circumstances, be subject to an
additional "branch profits tax" at a 30% rate or such lower rate as may be
specified by an applicable income tax treaty.
Under current law, dividends paid to an address outside the United States
are presumed to be paid to a resident of such country (unless the payer has
knowledge to the contrary) for purposes of the withholding discussed above and
for purposes of determining the applicability of a tax treaty rate. However,
under proposed Treasury regulations not currently in effect, in the case of
dividends paid after December 31, 1997 (December 31, 1999 in the case of
dividends paid to accounts in existence on or before the date that is 60 days
after the proposed regulations are published as final regulations), a Non-U.S.
Holder of Class A Common Stock who wishes to claim the benefit of an
applicable treaty rate would be required to satisfy applicable certification
and other requirements either directly or through an intermediary. In
addition, backup withholding, as discussed below, may apply in certain
circumstances if applicable certification and other requirements are not met.
A Non-U.S. Holder of Class A Common Stock eligible for a reduced rate of
United States withholding tax pursuant to an income tax treaty may obtain a
refund of any excess amounts withheld by filing an appropriate claim for
refund with the Internal Revenue Service (the "IRS").
GAIN ON DISPOSITION OF COMMON STOCK
A Non-U.S. Holder will generally not be subject to United States federal
income tax with respect to gain recognized on a sale or other disposition of
Class A Common Stock unless (i) the gain is effectively connected with a trade
or business of the Non-U.S. Holder in the United States, and, where a tax
treaty applies, is attributable to a United States permanent establishment of
the Non-U.S. Holder, (ii) in the case of a Non-U.S.
80
Holder who is an individual and holds the Class A Common Stock as a capital
asset, such holder is present in the United States for 183 or more days in the
taxable year of the sale or other disposition and certain other conditions are
met, or (iii) the Company is or has been a "U.S. real property holding
corporation" for United States federal income tax purposes. The Company
believes it is not and does not anticipate becoming a "U.S. real property
holding corporation" for United States federal income tax purposes.
If an individual Non-U.S. Holder falls under clause (i) above, he will,
unless an applicable treaty provides otherwise, be taxed on his net gain
derived from the sale under regular graduated United States federal income tax
rates. If an individual Non-U.S. Holder falls under clause (ii) above, he will
be subject to a flat 30% tax on the gain derived from the sale, which may be
offset by certain United States capital losses.
If a Non-U.S. Holder that is a foreign corporation falls under clause (i)
above, it will be taxed on its gain under regular graduated United States
federal income tax rates and may be subject to an additional branch profits
tax at a 30% rate, unless it qualifies for a lower rate under an applicable
income tax treaty.
FEDERAL ESTATE TAX
Class A Common Stock held by an individual Non-U.S. Holder at the time of
death will be included in such holder's gross estate for United States federal
estate tax purposes, unless an applicable estate tax treaty provides
otherwise.
INFORMATION REPORTING AND BACKUP WITHHOLDING TAX
The Company must report annually to the IRS and to each Non-U.S. Holder the
amount of dividends paid to such holder and the tax withheld with respect to
such dividends, regardless of whether withholding was required. Copies of the
information returns reporting such dividends and withholding may also be made
available to the tax authorities in the country in which the Non-U.S. Holder
resides under the provisions of an applicable income tax treaty.
A backup withholding tax is imposed at the rate of 31% on certain payments
to persons that fail to furnish certain identifying information to the payor.
Under current law, backup withholding generally will not apply to dividends
paid to a Non-U.S. Holder at an address outside the United States (unless the
payer has knowledge that the payee is a U.S. person), but generally will apply
to dividends paid on Class A Common Stock at addresses inside the United
States to Non-U.S. Holders that fail to provide certain identifying
information in the manner required. However, under proposed Treasury
regulations not currently in effect, in the case of dividends paid after
December 31, 1997 (December 31, 1999 in the case of dividends paid to accounts
in existence on or before the date that is 60 days after the proposed
regulations are published as final regulations), a Non-U.S. Holder generally
would be subject to backup withholding at a 31% rate, unless certain
certification procedures (or, in the case of payments made outside the United
States with respect to an offshore account, certain documentary evidence
procedures) are complied with, directly or through an intermediary or a Non-
U.S. Holder otherwise establishes an exemption from backup withholding.
Payment of the proceeds of a sale of Class A Common Stock by or through a
United States office of a broker is subject to both backup withholding and
information reporting unless the beneficial owner provides the payor with its
name and address and certifies under penalties of perjury that it is a Non-
U.S. Holder, or otherwise establishes an exemption. In general, backup
withholding and information reporting will not apply to a payment of the
proceeds of a sale of Class A Common Stock by or through a foreign office of a
foreign broker. If, however, such broker is, for United States federal income
tax purposes a U.S. person, a controlled foreign corporation, or a foreign
person that derives 50% or more of its gross income for certain periods from
the conduct of a trade or business in the United States, such payments will be
subject to information reporting, but not backup withholding, unless (i) such
broker has documentary evidence in its records that the beneficial owner is a
Non-U.S. Holder and certain other conditions are met, or (ii) the beneficial
owner otherwise establishes an exemption.
Any amounts withheld under the backup withholding rules generally will be
allowed as a refund or a credit against such holder's U.S. federal income tax
liability provided the required information is furnished in a timely manner to
the IRS.
81
UNDERWRITING
The U.S. Underwriters named below (the "U.S. Underwriters"), acting through
their U.S. representatives, Merrill Lynch, Pierce, Fenner & Smith Incorporated
("Merrill Lynch"), Morgan Stanley & Co. Incorporated, Dean Witter Reynolds
Inc. and Nomura Securities International, Inc. (collectively, the "U.S.
Representatives"), have severally agreed, subject to the terms and conditions
of a U.S. Purchase Agreement with the Company, the Selling Stockholders and Nu
Skin Japan, as guarantor ("Guarantor") (the "U.S. Purchase Agreement"), to
purchase from the Company and the Selling Stockholders the number of shares of
Class A Common Stock set forth opposite their respective names below.
NUMBER OF
U.S. UNDERWRITERS SHARES
----------------- ---------
Merrill Lynch, Pierce, Fenner & Smith
Incorporated.............................................
Morgan Stanley & Co. Incorporated.................................
Dean Witter Reynolds Inc. ........................................
Nomura Securities International, Inc..............................
---------
Total........................................................... 4,600,000
=========
The Company, the Selling Stockholders and the Guarantor have also entered
into an International Purchase Agreement (the "International Purchase
Agreement") with certain underwriters outside the United States, Canada and
Japan (the "International Managers"), for whom Merrill Lynch International,
Morgan Stanley & Co. International Limited, Dean Witter International Ltd. and
Nomura International Plc are acting as representatives (the "Lead
International Managers"). Subject to the terms and conditions set forth in the
International Purchase Agreement, the Company and the Selling Stockholders
have agreed to sell to the International Underwriters, and the International
Underwriters have severally agreed to purchase, an aggregate of 1,330,000
shares of Class A Common Stock pursuant to Regulation S under the Securities
Act.
The Company, the Selling Stockholders and the Guarantor have also entered
into a Japanese Underwriting Agreement (the "Japanese Underwriting Agreement"
and, together with the U.S. Purchase Agreement and the International Purchase
Agreement, the "Purchase Agreements") with The Nomura Securities Co., Ltd.,
Merrill Lynch Japan Incorporated and Morgan Stanley Japan Limited (the
"Japanese Underwriters" and, together with the U.S. Underwriters and the
International Managers, the "Underwriters"). Subject to the terms and
conditions set forth in the Japanese Underwriting Agreement, the Selling
Stockholders have agreed to sell to the Japanese Underwriters, and the
Japanese Underwriters have jointly and severally agreed to purchase, an
aggregate of 1,670,000 shares of Class A Common Stock pursuant to Regulation S
under the Securities Act.
In each Purchase Agreement, the Underwriters named therein have agreed,
subject to the terms and conditions set forth in such Purchase Agreement, to
purchase all of the shares of Class A Common Stock being sold pursuant to such
Purchase Agreement if any of the shares of Class A Common Stock being sold
pursuant to such Purchase Agreement are purchased. Under certain
circumstances, under the U.S. or International Purchase Agreements, the
commitments of non-defaulting Underwriters may be increased. Each Purchase
Agreement provides that the Company and the Selling Stockholders are not
obligated to sell, and the U.S. Underwriters, International Managers and
Japanese Underwriters are not obligated to purchase, the shares of Class A
Common Stock under the terms of each Purchase Agreement unless the shares of
Class A Common Stock to be sold pursuant to the Purchase Agreements are
contemporaneously sold.
82
The initial public offering price per share and the total underwriting
discount per share are identical under the U.S. Purchase Agreement, the
International Purchase Agreement and the Japanese Underwriting Agreement.
All of the shares to be offered in connection with the Offerings have been
registered under the Securities Act. With regards to the Japanese Offering, a
filing of a securities registration statement and amendments thereto under the
Securities and Exchange Laws of Japan has also been made with the Minister of
Finance of Japan. The Japanese Underwriters have agreed that the Japanese
Offering will be a public offering without listing in Japan and will be
governed by the Japanese laws and regulations.
The Company has been informed that the U.S. Underwriters, the International
Managers and the Japanese Underwriters have entered into an Intersyndicate
Agreement dated the date hereof (the "Intersyndicate Agreement") which
provides for the coordination of their activities. Under the terms of the
Intersyndicate Agreement, the U.S. Underwriters, the International Managers
and the Japanese Underwriters are permitted to sell shares of Class A Common
Stock to each other.
The Company has been informed that, under the terms of the Intersyndicate
Agreement (i) the U.S. Underwriters and any dealer to whom they sell shares of
Class A Common Stock will not offer to sell or resell shares of Class A Common
Stock to persons who are non-U.S. or non-Canadian persons or to persons they
believe intend to resell to persons who are non-U.S. or non-Canadian persons,
(ii) the International Managers and any dealer to whom they sell shares of
Class A Common Stock will not offer to sell or resell shares of Class A Common
Stock to U.S., Canadian or Japanese persons, or to persons they believe intend
to resell to persons who are U.S., Canadian or Japanese persons, and (iii) the
Japanese Underwriters and any sub-underwriter to whom they sell shares of
Class A Common Stock will not offer to sell or resell shares of Class A Common
Stock to non-Japanese persons, or to persons they believe intend to resell to
persons who are non-Japanese persons, except in each case for transactions
pursuant to the Intersyndicate Agreement, which, among other things, permits
the Underwriters to purchase from each other and offer for resale such number
of shares of Class A Common Stock as the selling Underwriter or Underwriters
and the purchasing Underwriter or Underwriters may agree. As used in this
section, "United States Person" shall mean any person who is a "United States
Person," as such term is defined in Regulation S ("Regulation S") under the
1933 Act, which includes (i) any natural person resident in the United States,
(ii) any estate or trust of which any executor, administrator or trustee is a
United States Person, with certain exceptions relating to estates governed by
foreign law and trusts of which no beneficiary is a United States Person,
(iii) any agency or branch of a foreign entity located in the United States,
(iv) any non-discretionary account (other than an estate or trust) held by a
dealer or other fiduciary for the benefit or account of a United States
Person, (v) any discretionary account incorporated in the United States, with
certain exceptions relating to accounts held for the benefit or account of
non-United States persons and (vi) any corporation or partnership incorporated
or organized under the laws of any foreign jurisdiction by a United States
Person principally for the purpose of investing in securities not registered
under the 1933 Act, unless it is organized or incorporated, and owned, by
accredited investors (as defined in Rule 501(a) under the 1933 Act) who are
not natural persons, estates or trusts. In accordance with Regulation S,
"United States Person" as used herein does not include (i) any agency or
branch of a United States Person located outside of the United States that is
engaged in the business of banking or insurance and is subject to substantive
banking or insurance regulation in the jurisdiction where located or (ii) any
employee benefit plan established and administered in accordance with the law
and customary practice of a country other than the United States. "Japanese
Person" or "Canadian Person" shall mean, respectively, any individual who is
resident in Japan or Canada or any corporation, pension, profit-sharing or
other trust or entity organized under or governed by the laws of Japan or
Canada or any political subdivision thereof (other than a foreign branch or
office of any Japanese or Canadian Corporation), and shall include,
respectively, any Japanese or Canadian branch or office of a person other than
a Japanese or Canadian Person. "United States" shall mean the United States of
America, its territories, its possessions and all areas subject to its
jurisdiction. "Canada" shall mean the provinces of Canada, its territories,
its possessions and all areas subject to its jurisdiction. Japan shall mean
the country of Japan, its territories, its possessions and all areas subject
to its jurisdiction.
The Selling Stockholders have granted the U.S. Underwriters and the
International Managers (on a pro rata basis in accordance with the number of
shares sold by each such Selling Stockholders in the Offerings) options
83
exercisable for 30 days after the date of this Prospectus to purchase up to
884,317 and 255,683 additional shares of Class A Common Stock, respectively,
to cover over-allotments, if any, at the initial public offering price, less
the underwriting discount. To the extent that the U.S. Underwriters and
International Managers exercise such options, each of the U.S. Underwriters
and International Managers will have a firm commitment, subject to certain
conditions, to purchase approximately the same percentage of the option shares
that the number of shares to be purchased initially by that Underwriter is of
the number of shares of Common Stock initially purchased by the U.S.
Underwriters and International Managers. No over-allotment option has been
granted under the Japanese Underwriting Agreement.
The U.S. Representatives have advised the Company and the Selling
Stockholders that the U.S. Underwriters propose to offer the shares of Class A
Common Stock to the public initially at the public offering price set forth on
the cover page of this Prospectus, and to certain dealers at such price less a
concession not in excess of $ per share. The U.S. Underwriters may allow,
and such dealers may reallow, a discount not in excess of $ per share on
sales to certain other dealers. After the initial public offering of the Class
A Common Stock, the public offering price, concession and discount may be
changed.
The Company and the Selling Stockholders have agreed to indemnify the U.S.
Underwriters, the Japanese Underwriters and the International Managers against
certain liabilities which may be incurred in connection with the offering of
the Class A Common Stock and the exercise of the over-allotment options,
including liabilities under the Securities Act and other applicable securities
laws. In addition, the Company has agreed to reimburse the Japanese
Underwriters for certain out-of-pocket expenses incurred in connection with
the Japanese Offering.
Without the consent of Merrill Lynch, the Company, its executive officers
and the Selling Stockholders have agreed that they will not, for a period of
180 days following the date of this Prospectus, directly or indirectly, offer
to sell, grant any option for the sale of, or otherwise dispose of, any shares
of Class A Common Stock or any securities convertible into or exchangeable or
exercisable for any such shares. The foregoing agreements are subject to
certain exceptions, including the contribution of shares of Class A Common
Stock to the Company and NSI for use in connection with the granting of the
Distributor Options and the employee stock bonus awards. See "Shares Eligible
for Future Sale."
The Class A Common Stock has been approved for listing on the New York Stock
Exchange under the symbol "NUS." In order to meet the requirements for listing
of the Class A Common Stock on the NYSE subject to official notice of
issuance, the U.S. Underwriters have undertaken to sell lots of 100 or more
shares to a minimum of 2,000 beneficial owners. The shares of Class A Common
Stock sold in the Offerings will not be listed on any stock exchange in Japan
and will not be registered with the Japan Securities Dealers Association as
shares to be traded in the Japanese over-the-counter market. Therefore, there
will be no public market in Japan for the trading of such shares. Under the
Securities and Exchange Law of Japan, if the offer of shares of Class A Common
Stock is made to 50 or more persons in Japan on uniform terms and conditions
and the aggregate offering price is (Yen)500 million or more, such offer will
be subject to regulations applicable to secondary public offerings, the
primary requirements of which are the filing of a notification with the MOF
and the distribution of a prospectus.
At the request of the Company, the U.S. Underwriters and the International
Managers have reserved up to 593,000 shares of Class A Common Stock for sale
at the public offering price to certain employees of NSI and the Company and
to certain distributors of NSI and the Company, who have expressed an interest
in purchasing such shares. The number of shares available to the general
public will be reduced to the extent these persons purchase the reserved
shares. Any reserved shares that are not so purchased by such employees or
distributors at the closing of the Offerings will be offered by the U.S.
Underwriters and the International Underwriters to the general public on the
same terms as the other shares offered hereby.
In order to comply with local securities laws in certain jurisdictions
outside the United States, sales to certain employees and distributors will be
made directly by the Company rather than through the Underwriters, and the
total underwriting discount set forth on the cover page of this Prospectus
will be reduced accordingly. In
84
addition, all shares sold to employees and distributors outside the United
States will be shares offered by the Company, rather than by the Selling
Stockholders.
Prior to the Offerings, there has been no established trading market for the
shares of Class A Common Stock. The initial public offering price for the
Class A Common Stock offered hereby has been determined by negotiation among
the Company, the Selling Stockholders and the Underwriters. Among the factors
considered in making such determination were the history of and the prospects
for the industry in which the Company competes, an assessment of the Company's
management, the past and present operations of the Company, the historical
results of operations of the Company and the trend of its revenues and
earnings, the prospects for future earnings of the Company, the general
condition of the securities markets at the time of the Offerings, the prices
of similar securities of generally comparable companies and other relevant
factors. There can be no assurance that an active trading market will develop
for the Class A Common Stock or that the Class A Common Stock will trade in
the public market subsequent to the Offerings at or above the initial public
offering price.
The U.S. Representatives have informed the Company that the U.S.
Underwriters do not intend to confirm sales of Class A Common Stock offered
hereby to any accounts over which they exercise discretionary authority.
85
LEGAL MATTERS
The validity of the issuance of the shares of Class A Common Stock offered
hereby will be passed upon for the Company and the Selling Stockholders by
LeBoeuf, Lamb, Greene & MacRae, L.L.P., a limited liability partnership
including professional corporations, Salt Lake City, Utah. Certain other legal
matters governed by Japanese law will be passed upon for the Company and the
Selling Stockholders by Nagashima & Ohno, Tokyo, Japan. Certain legal matters
will be passed upon for the U.S. and International Underwriters by Shearman &
Sterling, San Francisco, California and for the Japanese Underwriters by
Tomotsune Kimura & Mitomi, Tokyo, Japan.
EXPERTS
The combined financial statements of Nu Skin Asia Pacific, Inc. as of
December 31, 1994 and 1995 and for the fiscal years ended September 30, 1993
and 1994, for the three month period ended December 31, 1994 and for the year
ended December 31, 1995 and balance sheet of Nu Skin Asia Pacific, Inc. as of
September 6, 1996 included in this Prospectus have been so included in
reliance on the reports of Price Waterhouse LLP, independent accountants,
given on the authority of said firm as experts in auditing and accounting.
ADDITIONAL INFORMATION
The Company has filed a Registration Statement on Form S-1, of which this
Prospectus is a part, with the Securities and Exchange Commission (the
"Commission") under the 1933 Act with respect to the shares of Common Stock
offered hereby. This Prospectus does not contain all the information set forth
in the Registration Statement and the exhibits and schedules thereto. For
further information with respect to the Company and the Common Stock offered
hereby, reference is made to the Registration Statement, including the
financial schedules and exhibits filed therewith. Statements made in this
Prospectus as to the contents of any contract, agreement or other documents
are not necessarily complete, and, in each instance, reference is made to the
copy of such document filed as an exhibit to the Registration Statement or
otherwise with the Commission. Each such statement shall be deemed qualified
in its entirety by such reference. Copies of the Registration Statement,
including all exhibits and schedules thereto, may be obtained from the
Commission's principal office at 450 Fifth Street, N.W., Washington, D.C.
20549 upon the payment of the fees prescribed by the Commission, or may be
examined without charge at the public reference facilities maintained at the
principal office of the Commission. The Commission maintains a Web site on the
Internet at http://www.sec.gov that contains registration reports, proxy and
information statements and other information regarding registrants that file
with the Commission.
The Company intends to furnish holders of the Class A Common Stock with
annual reports containing audited consolidated financial statements and a
report thereon by its independent auditors, and quarterly reports containing
unaudited consolidated financial information. Such audited financial
statements and unaudited quarterly financial information will be prepared in
accordance with United States generally accepted accounting principles.
86
NU SKIN ASIA PACIFIC, INC.
INDEX TO FINANCIAL STATEMENTS
PAGE
----
COMBINED FINANCIAL STATEMENTS:
Report of Independent Accountants..................................... F-2
Combined Balance Sheets at December 31, 1994 and 1995, and at
September 30, 1996 (unaudited)....................................... F-3
Combined Statements of Income for the years ended September 30, 1993
and 1994, the three months ended December 31, 1993 (unaudited) and
1994, the year ended December 31, 1995, and the nine months ended
September 30, 1995 (unaudited) and 1996 (unaudited).................. F-4
Combined Statements of Stockholders' Equity for the years ended Sep-
tember 30, 1993 and 1994, the three months ended December 31, 1994,
the year ended December 31, 1995, and the nine months ended September
30, 1996 (unaudited)................................................. F-5
Combined Statements of Cash Flows for the years ended September 30,
1993 and 1994, the three months ended December 31, 1993 (unaudited)
and 1994, the year ended December 31, 1995, and the nine months ended
September 30, 1995 (unaudited) and 1996 (unaudited).................. F-6
Notes to Combined Financial Statements................................ F-7
NU SKIN ASIA PACIFIC, INC.:
Report of Independent Accountants..................................... F-15
Balance Sheet As of September 6, 1996................................. F-16
Notes to Balance Sheet As of September 6, 1996........................ F-17
UNAUDITED PRO FORMA DATA:
Unaudited Pro Forma Consolidated Balance Sheet As of September 30,
1996................................................................. F-20
Unaudited Pro Forma Consolidated Statement of Income For the Year
Ended
December 31, 1995.................................................... F-21
Unaudited Pro Forma Consolidated Statement of Income For the Nine
Months Ended
September 30, 1996................................................... F-22
Notes to Unaudited Pro Forma Consolidated Balance Sheet and Statements
of Income............................................................ F-23
All schedules are omitted because they are not applicable or the required
information is shown in the combined financial statements or notes thereto.
F-1
REPORT OF INDEPENDENT ACCOUNTANTS
To the Board of Directors and Stockholders of
Nu Skin Asia Pacific, Inc.
In our opinion, the accompanying combined balance sheets and the related
combined statements of income, of stockholders' equity and of cash flows
present fairly, in all material respects, the financial position of Nu Skin
Asia Pacific, Inc. at December 31, 1994 and 1995, and the results of its
operations and its cash flows for the years ended September 30, 1993 and 1994,
the three months ended December 31, 1994, and the year ended December 31,
1995, in conformity with generally accepted accounting principles. These
financial statements are the responsibility of the Company's management; our
responsibility is to express an opinion on these financial statements based on
our audits. We did not audit the financial statements of Nu Skin Hong Kong,
Inc.--Hong Kong Branch for the year ended September 30, 1993, which
statements reflect 17% of revenue for the year then ended. Those statements
were audited by other independent accountants whose report dated April 14,
1994 (except for Notes 2 and 8, as to which the date is August 30, 1996)
expressed an unqualified opinion on those statements. Our opinion, as it
relates to data of Nu Skin Hong Kong, Inc. for the year ended September 30,
1993, is based solely on the report of other independent accountants. We
conducted our audits of these statements in accordance with generally accepted
auditing standards which require that we plan and perform the audit to obtain
reasonable assurance about whether the financial statements are free of
material misstatement. An audit includes examining, on a test basis, evidence
supporting the amounts and disclosures in the financial statements, assessing
the accounting principles used and significant estimates made by management,
and evaluating the overall financial statement presentation. We believe that
our audits provide a reasonable basis for the opinion expressed above.
/s/ Price Waterhouse LLP
Price Waterhouse LLP
Salt Lake City, Utah
September 10, 1996
F-2
NU SKIN ASIA PACIFIC, INC.
COMBINED BALANCE SHEETS
(IN THOUSANDS)
PRO FORMA
AMOUNTS
DECEMBER 31, (NOTE 2)
---------------- SEPTEMBER 30, SEPTEMBER 30,
1994 1995 1996 1996
------- -------- ------------- -------------
(UNAUDITED) (UNAUDITED)
ASSETS
Current assets
Cash and cash equivalents...... $16,288 $ 63,213 $ 81,079
Accounts receivable............ 1,068 3,242 8,151
Related parties receivable..... 17,870 1,793 7,840
Inventories, net............... 15,556 32,662 46,379
Prepaid expenses and other..... 3,461 3,410 8,027 $10,636
------- -------- --------
54,243 104,320 151,476
Property and equipment, net...... 3,850 6,904 8,672
Other assets..................... 3,331 7,004 8,759 11,919
------- -------- --------
Total assets................. $61,424 $118,228 $168,907
======= ======== ========
LIABILITIES AND STOCKHOLDERS'
EQUITY
Current liabilities
Accounts payable............... $ 3,630 $ 4,395 $ 5,019
Accrued expenses............... 13,377 23,313 49,514
Related parties payable........ 10,556 28,749 36,115
Notes payable to stockholders.. -- -- -- 81,893
------- -------- --------
27,563 56,457 90,648
------- -------- --------
Commitments and contingencies
(Notes 7 and 10)
Stockholders' equity
Capital stock.................. 1,300 4,550 4,550 80
Cumulative foreign currency
translation adjustment........ 441 (2,940) (3,714) (3,714)
Retained earnings.............. 32,120 60,161 77,423 5,769
------- -------- -------- -------
33,861 61,771 78,259 $ 2,135
------- -------- --------
Total liabilities and stock-
holders' equity............. $61,424 $118,228 $168,907
======= ======== ========
The accompanying notes are an integral part of these combined financial
statements.
F-3
NU SKIN ASIA PACIFIC, INC.
COMBINED STATEMENTS OF INCOME
(IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
THREE
YEAR ENDED MONTHS ENDED YEAR ENDED NINE MONTHS ENDED
SEPTEMBER 30, DECEMBER 31, DECEMBER 31, SEPTEMBER 30,
----------------- ------------------- ------------ -----------------------
1993 1994 1993 1994 1995 1995 1996
-------- -------- ----------- ------- ------------ ----------- -----------
(UNAUDITED) (UNAUDITED) (UNAUDITED)
Revenue................. $110,624 $254,637 $63,759 $73,562 $358,609 $241,412 $471,312
Cost of sales........... 38,842 86,872 24,238 19,607 96,615 64,110 133,592
-------- -------- ------- ------- -------- -------- --------
Gross profit............ 71,782 167,765 39,521 53,955 261,994 177,302 337,720
-------- -------- ------- ------- -------- -------- --------
Operating expenses
Distributor
incentives............ 40,267 95,737 22,315 27,950 135,722 91,893 175,149
Selling, general and
administrative........ 27,150 44,566 9,358 13,545 67,475 44,099 69,970
-------- -------- ------- ------- -------- -------- --------
Total operating
expenses............... 67,417 140,303 31,673 41,495 203,197 135,992 245,119
-------- -------- ------- ------- -------- -------- --------
Operating income........ 4,365 27,462 7,848 12,460 58,797 41,310 92,601
Other income (expense),
net.................... 133 443 24 (813) 511 (408) 1,530
-------- -------- ------- ------- -------- -------- --------
Income before provision
for income taxes....... 4,498 27,905 7,872 11,647 59,308 40,902 94,131
Provision for income
taxes (Note 8)......... 417 10,226 2,885 2,730 19,097 13,170 33,810
-------- -------- ------- ------- -------- -------- --------
Net income.............. $ 4,081 $ 17,679 $ 4,987 $ 8,917 $ 40,211 $ 27,732 $ 60,321
======== ======== ======= ======= ======== ======== ========
Pro forma historical net
income per share (Note
2)..................... $ .47 $ .71
======== ========
Pro forma weighted
average common shares
outstanding (Note 2)... 84,802 84,802
======== ========
Unaudited pro forma
data:
Income before pro forma
provision for income
taxes.................. 4,498 27,905 7,872 11,647 59,308 40,902 94,131
Pro forma provision for
income taxes (Note 8).. 1,511 10,391 2,931 4,041 22,751 15,690 34,196
-------- -------- ------- ------- -------- -------- --------
Income after pro forma
provision for income
taxes.................. $ 2,987 $ 17,514 $ 4,941 $ 7,606 $ 36,557 $ 25,212 $ 59,935
======== ======== ======= ======= ======== ======== ========
Pro forma net income per
share (Note 2)......... $ .43 $ .71
======== ========
The accompanying notes are an integral part of these combined financial
statements.
F-4
NU SKIN ASIA PACIFIC, INC.
COMBINED STATEMENTS OF STOCKHOLDERS' EQUITY
(IN THOUSANDS)
CUMULATIVE
FOREIGN
CURRENCY TOTAL
CAPITAL TRANSLATION RETAINED STOCKHOLDERS'
STOCK ADJUSTMENT EARNINGS EQUITY
------- ----------- -------- -------------
Balance at October 1, 1992........ $1,300 $ 6 $ 1,443 $ 2,749
Net change in cumulative foreign
currency translation adjustment.. -- 96 -- 96
Net income........................ -- -- 4,081 4,081
------ ------- ------- -------
Balance at September 30, 1993..... 1,300 102 5,524 6,926
Net change in cumulative foreign
currency translation adjustment.. -- 329 -- 329
Net income........................ -- -- 17,679 17,679
------ ------- ------- -------
Balance at September 30, 1994..... 1,300 431 23,203 24,934
Net change in cumulative foreign
currency translation adjustment.. -- 10 -- 10
Net income........................ -- -- 8,917 8,917
------ ------- ------- -------
Balance at December 31, 1994...... 1,300 441 32,120 33,861
Contributed capital............... 3,250 -- -- 3,250
Dividends......................... -- -- (12,170) (12,170)
Net change in cumulative foreign
currency translation adjustment.. -- (3,381) -- (3,381)
Net income........................ -- -- 40,211 40,211
------ ------- ------- -------
Balance at December 31, 1995...... 4,550 (2,940) 60,161 61,771
Dividends (unaudited)............. -- -- (43,059) (43,059)
Net change in cumulative foreign
currency translation
adjustment (unaudited)........... -- (774) -- (774)
Net income (unaudited)............ -- -- 60,321 60,321
------ ------- ------- -------
Balance at September 30, 1996
(unaudited)...................... $4,550 $(3,714) $77,423 $78,259
====== ======= ======= =======
The accompanying notes are an integral part of these combined financial
statements.
F-5
NU SKIN ASIA PACIFIC, INC.
COMBINED STATEMENTS OF CASH FLOWS
(IN THOUSANDS)
THREE
YEAR ENDED MONTHS ENDED YEAR ENDED NINE MONTHS ENDED
SEPTEMBER 30, DECEMBER 31, DECEMBER 31, SEPTEMBER 30,
----------------- ------------------- ------------ -----------------------
1993 1994 1993 1994 1995 1995 1996
------- -------- ----------- ------- ------------ ----------- -----------
(UNAUDITED) (UNAUDITED) (UNAUDITED)
Cash flows from
operating activities:
Net income............. $ 4,081 $ 17,679 $ 4,987 $ 8,917 $ 40,211 $27,732 $ 60,321
Adjustments to reconcile
net income to net cash
provided by (used in)
operating activities:
Depreciation........... 813 1,401 466 358 2,012 1,504 2,104
Loss on disposal of
property and
equipment............. 1 90 -- 1,093 12 4 --
Changes in operating
assets and
liabilities:
Accounts receivable.... 36 (1,006) (4,141) 165 (2,174) (2,595) (4,909)
Related parties
receivable............ (3,615) (25,288) 100 11,108 16,077 15,185 (6,047)
Inventories, net....... (9,301) 158 947 (939) (17,106) (6,502) (13,717)
Prepaid expenses and
other................. (587) (890) (3,530) (836) 51 758 (4,617)
Other assets........... (542) 277 195 (20) (2,994) 76 (1,542)
Accounts payable....... 1,544 884 1,928 279 765 3,004 624
Accrued expenses....... 2,216 13,106 3,457 (4,384) 9,936 3,976 26,201
Related parties
payable............... 19,398 3,475 (1,152) (16,442) 18,193 10,201 7,366
------- -------- ------- ------- -------- ------- --------
Net cash provided by
(used in) operating
activities............ 14,044 9,886 3,257 (701) 64,983 53,343 65,784
------- -------- ------- ------- -------- ------- --------
Cash flows from
investing activities:
Purchase of property
and equipment......... (4,061) (1,766) (500) (417) (5,422) (3,405) (3,967)
Proceeds from disposal
of property and equip-
ment.................. 20 25 -- 14 48 3 --
Payments for lease de-
posits................ (1,726) (614) (73) (677) (701) (295) (218)
Receipt of refundable
lease deposits........ 337 153 153 -- 22 3 5
------- -------- ------- ------- -------- ------- --------
Net cash used in
investing activities.. (5,430) (2,202) (420) (1,080) (6,053) (3,694) (4,180)
------- -------- ------- ------- -------- ------- --------
Cash flows from
financing activities:
Proceeds from related
party loans........... 4,350 -- -- -- -- -- --
Payments on related
party loans........... -- (4,350) -- -- -- -- --
Proceeds from capital
contributions......... -- -- -- -- 3,250 -- --
Dividends paid......... -- -- -- -- (12,170) (4,197) (43,059)
------- -------- ------- ------- -------- ------- --------
Net cash provided by
(used in) financing
activities............ 4,350 (4,350) -- -- (8,920) (4,197) (43,059)
------- -------- ------- ------- -------- ------- --------
Effect of exchange rate
changes on cash....... 74 152 (702) (8) (3,085) 963 (679)
------- -------- ------- ------- -------- ------- --------
Net increase (decrease)
in cash and cash
equivalents............ 13,038 3,486 2,135 (1,789) 46,925 46,415 17,866
Cash and cash
equivalents, beginning
of period.............. 1,553 14,591 14,591 18,077 16,288 16,288 63,213
------- -------- ------- ------- -------- ------- --------
Cash and cash
equivalents, end of
period................. $14,591 $ 18,077 $16,726 $16,288 $ 63,213 $62,703 $ 81,079
======= ======== ======= ======= ======== ======= ========
Supplemental cash flow
information:
Interest paid.......... $ 207 $ 81 $ 42 $ 6 $ 119 $ 79 $ 25
======= ======== ======= ======= ======== ======= ========
The accompanying notes are an integral part of these combined financial
statements.
F-6
NU SKIN ASIA PACIFIC, INC.
NOTES TO COMBINED FINANCIAL STATEMENTS
1. THE COMPANY
Nu Skin Asia Pacific, Inc. (the "Company") is a network marketing company
involved in the distribution of premium quality, innovative personal care and
nutritional products in Asia. The Company is the exclusive distribution
vehicle for Nu Skin International, Inc. ("NSI") through the Company's
subsidiaries in the countries of Japan, Taiwan, Hong Kong (including Macau)
and South Korea (collectively referred to as the "Subsidiaries").
Additionally, the Company sells products to NSI affiliates in Australia and
New Zealand. NSI was founded in 1984 and is one of the largest network
marketing companies in the world. NSI owns the Nu Skin trademark and provides
the products and marketing materials to each of its affiliates. Nu Skin
Management Group, Inc. ("NSIMG"), an NSI affiliate, has provided, and will
continue to provide, a high level of support services to the Company,
including product development, marketing, legal, accounting and other
managerial services. The operations of the Company, of NSI, of NSIMG and of
other NSI affiliates are conducted by a variety of individual entities that
are under the control of a group of common stockholders.
Inasmuch as the Subsidiaries are under common control, and in accordance
with the planned reorganization discussed in Note 11, the Subsidiaries'
historical balance sheets and related statements of income, of stockholders'
equity and of cash flows are combined and presented as a single entity after
elimination of intercompany transactions.
2. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
CHANGE IN FISCAL YEAR
In October 1994, the Company's Board of Directors approved a change in the
Company's fiscal year end from September 30 to December 31. The change became
effective as of September 30, 1994.
USE OF ESTIMATES
The preparation of these financial statements in conformity with generally
accepted accounting principles required management to make estimates and
assumptions that affect the reported amounts of assets and liabilities and
disclosure of contingent assets and liabilities at the date of the financial
statements and the reported amounts of revenues and expenses during the
reporting period. Significant estimates include reserves for product returns,
obsolete inventory and taxes. Actual results could differ from these
estimates.
CASH AND CASH EQUIVALENTS
Cash equivalents are short-term, highly liquid instruments with original
maturities of 90 days or less.
INVENTORIES
Inventories consist of merchandise purchased for resale and are stated at
the lower of cost using the first-in, first-out method or market.
PROPERTY AND EQUIPMENT
Property and equipment are recorded at cost and depreciated using the
straight-line method over the following estimated useful lives:
Furniture and fixtures........ 5 - 7 years
Computers and equipment....... 3 - 5 years
Leasehold improvements........ Shorter of estimated useful life or lease term
Vehicles...................... 3 - 5 years
Expenditures for maintenance and repairs are charged to expense as incurred.
F-7
NU SKIN ASIA PACIFIC, INC.
NOTES TO COMBINED FINANCIAL STATEMENTS--(CONTINUED)
OTHER ASSETS
Other assets consist primarily of deposits for noncancelable operating
leases.
REVENUE RECOGNITION
Revenue is recognized when products are shipped and title passes to
independent distributors who are the Company's customers. A reserve for
product returns is accrued based on historical experience. The Company
generally requires cash payment at the point of sale. The Company has
determined that no allowance for doubtful accounts is necessary. Amounts
received prior to shipment to distributors are recorded as deferred revenue.
INCOME TAXES
Effective October 1, 1993, the Company adopted Statement of Financial
Accounting Standards No. 109 ("SFAS 109"), "Accounting for Income Taxes".
Under SFAS 109, the liability method is used in accounting for income taxes.
Under this method, deferred tax assets and liabilities are determined based on
the differences between financial reporting and tax bases of assets and
liabilities and are measured using the enacted tax rates and laws that will be
in effect when the differences are expected to reverse.
The Company elected to be taxed as an S corporation whereby the U.S. Federal
and state income tax effects of the Company's activities accrue directly to
its stockholders. The cumulative affect of adopting SFAS No. 109 as of
October 1, 1993 was not material to the Company's operations.
FOREIGN CURRENCY TRANSLATION
All business operations of the Company occur outside of the United States.
Each Subsidiary's local currency is considered the functional currency. Since
a substantial portion of the Company's inventories are purchased with U.S.
dollars from the United States and since the Company is incorporated in the
United States, its reporting currency is the U.S. dollar, and assets and
liabilities are translated into U.S. dollars at exchange rates existing at the
balance sheet dates. Revenues and expenses are translated at average exchange
rates and stockholders' equity is recorded at historical exchange rates. The
resulting foreign currency translation adjustments are recorded as a separate
component of stockholders' equity in the combined balance sheets, and
transaction gains and losses are included in other income in the combined
statements of income.
INDUSTRY SEGMENT AND GEOGRAPHIC AREA
The Company operates in a single industry, which is the direct selling of
personal care and nutritional products, and in a single geographic area, which
is the Asia Pacific Region.
FAIR VALUE OF FINANCIAL INSTRUMENTS
The fair value of financial instruments including cash and cash equivalents,
accounts receivable, related parties receivable, accounts payable, accrued
expenses and related parties payable approximate their recorded values.
PRO FORMA AMOUNTS
The pro forma amounts reflect the Company's planned reorganization of the
capital structure and the declaration of S Distribution Notes of $81.9 million
in connection with the Company's conversion from an S corporation to a C
corporation prior to the Company's planned public offerings.
F-8
NU SKIN ASIA PACIFIC, INC.
NOTES TO COMBINED FINANCIAL STATEMENTS--(CONTINUED)
PRO FORMA NET INCOME PER SHARE
Pro forma net income per share is computed based on the weighted average
number of common and common equivalent shares outstanding after the
Reorganization and is calculated as if $81.9 million of the proceeds from the
Company's planned public offerings were used to pay S Distribution Notes
(assuming net proceeds of $19.11 per share). Supplemental pro forma income per
share, calculated as if $25.0 million of the proceeds from the Company's
planned public offerings were used to repay notes payable, have not been
presented as they do not differ materially from pro forma net income per
share.
INTERIM RESULTS (UNAUDITED)
The accompanying balance sheet as of September 30, 1996, the statement of
stockholders' equity for the nine months ended September 30, 1996 and the
statements of income and of cash flows for the three months ended December 31,
1993 and the nine months ended September 30, 1995 and 1996 are unaudited. In
the opinion of management, these statements have been prepared on the same
basis as the audited financial statements and include all normal recurring
adjustments necessary for the fair statement of the results of interim
periods. The data disclosed in these notes to the combined financial
statements at such dates or for such periods are also unaudited.
3. RELATED PARTY TRANSACTIONS
SCOPE OF RELATED PARTY ACTIVITY
The Company has extensive and pervasive transactions with affiliated
entities that are under the control of a group of common stockholders. These
transactions are as follows: (1) The Company purchases virtually all of its
products from NSI through Nu Skin Hong Kong under the terms of the Regional
Distribution Agreement. The Company's purchase prices for NSI products and
commercial materials are governed by a price schedule which is subject to
negotiation between the Company and NSI. (2) The Company sells NSI products to
each of its Subsidiaries and to NSI affiliates in Australia and New Zealand
through Nu Skin Hong Kong under the terms of the Wholesale Distribution
Agreements. (3) The Company pays a royalty to NSI for use of licensed
trademarks and trade names on products and commercial materials not purchased
from NSI, including products and commercial materials manufactured or locally
sourced by each of the Subsidiaries under the terms of the Trademark/Tradename
License Agreements. (4) Distributor agreements are entered into between the
distributor and NSI rather than the Company. The Company pays license fees to
NSI for the right to use NSI's distributor lists, the distribution system and
other intangibles in the countries in which the Company maintains exclusive
distribution rights under the terms of the Licensing and Sales Agreements. (5)
The Company has agreed to incur a commission fee of 42% of commissionable
product sales (with the exception of South Korea, where, due to government
regulations, the Company satisfies this obligation by using a formula based
upon a maximum payout of 35% of commissionable product sales) to fulfill NSI's
obligation under the Global Compensation Plan as outlined in the Licensing and
Sales Agreements. Such payment is compensation to NSI for the commissions
which become payable by NSI to the independent distributors upon the Company's
sales of product and covers the costs of such commissions and the
administration of the Global Compensation Plan. The Company satisfies this
liability by paying directly the commissions owed to distributors resident in
the countries in which it operates and settling the difference with NSI. (6)
The Company pays fees to NSIMG for management and support services under the
terms of the Management Services Agreement. The Company's management believes
that the fees charged by NSI and NSIMG are reasonable. In the event NSI and
NSIMG are unable or unwilling to perform their obligations under the above
agreements, or terminate the agreements as provided therein, the Company's
business and results of operations will be adversely affected.
Total commission fees (including those paid directly to distributors within
the Company's geographic territory) are recorded as distributor incentives in
the combined statements of income. Trademark royalty fees, license fees and
management fees are included in selling, general and administrative expenses
in the combined statements of income.
F-9
NU SKIN ASIA PACIFIC, INC.
NOTES TO COMBINED FINANCIAL STATEMENTS--(CONTINUED)
SUMMARY OF TRANSACTIONS
The following summarizes the Company's transactions with related parties (in
thousands):
Product purchases
YEAR ENDED THREE NINE
SEPTEMBER 30, MONTHS ENDED YEAR ENDED MONTHS ENDED
----------------- DECEMBER 31, DECEMBER 31, SEPTEMBER 30,
1993 1994 1994 1995 1996
------- -------- ------------ ------------ -------------
(UNAUDITED)
Beginning inventories... $ 5,474 $ 14,775 $14,617 $ 15,556 $ 32,662
Inventory purchases from
affiliates............. 29,877 61,409 11,608 69,821 112,324
Other inventory
purchases, import
duties and value added
locally................ 18,266 25,305 8,938 43,900 34,985
------- -------- ------- -------- --------
Total products available
for sale............... 53,617 101,489 35,163 129,277 179,971
Less: Cost of sales..... (38,842) (86,872) (19,607) (96,615) (133,592)
------- -------- ------- -------- --------
Ending inventories...... $14,775 $ 14,617 $15,556 $ 32,662 $ 46,379
======= ======== ======= ======== ========
Related parties payable transactions
YEAR ENDED THREE NINE
SEPTEMBER 30, MONTHS ENDED YEAR ENDED MONTHS ENDED
------------------ DECEMBER 31, DECEMBER 31, SEPTEMBER 30,
1993 1994 1994 1995 1996
-------- -------- ------------ ------------ -------------
(UNAUDITED)
Beginning related
parties payable........ $ 4,125 $ 27,873 $ 26,998 $ 10,556 $ 28,749
Inventory purchases from
affiliates............. 29,877 61,409 11,608 69,821 112,324
Distributor incentives.. 40,267 95,737 27,950 135,722 175,149
Less: Distributor
incentives paid
directly to
distributors........... (13,256) (68,880) (19,837) (105,642) (134,865)
License fees............ 3,574 9,252 2,750 13,158 17,699
Trademark royalty fees.. -- -- 19 2,694 2,089
Management fees......... 794 1,449 499 2,066 2,225
Proceeds from (payments
for) related party
loans.................. 4,350 (4,350) -- -- --
Less: Payments to
related parties........ (41,858) (95,492) (39,431) (99,626) (167,255)
-------- -------- -------- --------- ---------
Ending related parties
payable................ $ 27,873 $ 26,998 $ 10,556 $ 28,749 $ 36,115
======== ======== ======== ========= =========
RELATED PARTIES RECEIVABLE AND PAYABLE BALANCES
The Company has receivable and payable balances with affiliates in Australia
and New Zealand, and with NSI and NSIMG. Related parties balances outstanding
greater than 60 days bear interest at prime plus 2%. Since no significant
balances have been outstanding greater than 60 days, no related parties
interest income or interest expense has been recorded in the combined
financial statements. Sales to related parties were $7,426,000 and $2,288,000
for the years ended September 30, 1993 and 1994, respectively, $855,000 for
the three months ended December 31, 1994, $4,608,000 for the year ended
December 31, 1995 and $3,404,000 (unaudited) for the nine months ended
September 30, 1996.
F-10
NU SKIN ASIA PACIFIC, INC.
NOTES TO COMBINED FINANCIAL STATEMENTS--(CONTINUED)
Related parties receivable includes $15,746,000 due from NSI at December 31,
1994 for excess payments made during 1994 relating to overpayments on
inventory purchased from NSI during 1994. This balance was settled by amounts
due for shipments of inventory from NSI during 1995. The Company has
determined that no allowance is necessary for amounts due from related
parties.
CERTAIN RELATIONSHIPS WITH STOCKHOLDER DISTRIBUTORS
Two major stockholders of the Company have been NSI distributors since 1984.
These stockholders are partners in an entity which receives substantial
commissions from NSI, including commissions relating to sales within the
countries in which the Company operates. By agreement, NSI pays commissions to
this partnership at the highest level of distributor compensation to allow the
stockholders to use their expertise and reputations in network marketing to
further develop NSI's distributor force, rather than focusing solely on their
own distributor organizations. The commissions paid to this partnership
relating to sales within the countries in which the Company operates were
$1,100,000 and $1,100,000 for the years ended September 30, 1993 and 1994,
respectively, $270,000 for the three months ended December 31, 1994,
$1,100,000 for the year ended December 31, 1995 and $1,200,000 (unaudited) for
the nine months ended September 30, 1996.
4. PROPERTY AND EQUIPMENT
Property and equipment are comprised of the following (in thousands):
DECEMBER 31,
---------------- SEPTEMBER 30,
1994 1995 1996
------- ------- -------------
(UNAUDITED)
Furniture and fixtures.......................... $ 982 $ 3,593 $ 4,734
Computers and equipment......................... 3,772 5,060 7,117
Leasehold improvements.......................... 1,240 2,221 2,588
Vehicles........................................ 156 152 223
------- ------- -------
6,150 11,026 14,662
Less: accumulated depreciation.................. (2,300) (4,122) (5,990)
------- ------- -------
$ 3,850 $ 6,904 $ 8,672
======= ======= =======
Depreciation of property and equipment totaled $813,000 and $1,401,000 for
the years ended September 30, 1993 and 1994, respectively, $358,000 for the
three months ended December 31, 1994, $2,012,000 for the year ended December
31, 1995 and $2,104,000 (unaudited) for the nine months ended September 30,
1996.
5. ACCRUED EXPENSES
Accrued expenses consist of the following (in thousands):
DECEMBER 31,
---------------- SEPTEMBER 30,
1994 1995 1996
------- ------- -------------
(UNAUDITED)
Income taxes payable............................ $ 7,577 $17,463 $37,118
Other taxes payable............................. 606 798 3,644
Other accruals.................................. 5,194 5,052 8,752
------- ------- -------
$13,377 $23,313 $49,514
======= ======= =======
F-11
NU SKIN ASIA PACIFIC, INC.
NOTES TO COMBINED FINANCIAL STATEMENTS--(CONTINUED)
6. LINE OF CREDIT
During 1995, the Company entered into an $8,000,000 revolving credit
agreement with a financial institution in South Korea. Advances were available
under the agreement through July 1, 1996. The credit facility bears interest
at an annual rate of 12%. There were no outstanding balances under the credit
facility at December 31, 1995.
7. LEASE OBLIGATIONS
The Company leases office space and computer hardware under noncancelable
long-term operating leases. Most leases include renewal options of up to three
years. Minimum future operating lease obligations at December 31, 1995 are as
follows (in thousands):
Year ending December 31,
1996.............................................................. $ 7,189
1997.............................................................. 2,766
1998.............................................................. 1,088
-------
Total minimum lease payments........................................ $11,043
=======
Rental expense for operating leases totaled $3,941,000 and $5,848,000 for
the years ended September 30, 1993 and 1994, respectively, $1,639,000 for the
three months ended December 31, 1994, $9,470,000 for the year ended December
31, 1995 and $6,165,000 (unaudited) for the nine months ended September 30,
1996.
8. INCOME TAXES
Combined income before provision for income taxes consists of income earned
solely from international operations. The provision for income taxes for the
years ended September 30, 1993 and 1994, for the three months ended December
31, 1994, for the year ended December 31, 1995 and for the nine months ended
September 30, 1996 (unaudited) primarily represents income taxes paid in or
payable to foreign countries.
PRO FORMA PROVISION FOR INCOME TAXES
The combined statements of income include a pro forma presentation for
income taxes which would have been recorded if the Company had not been an S
corporation based upon the U.S. Federal and state tax laws. The unaudited pro
forma provision for income taxes consists of the following (in thousands):
YEAR ENDED THREE NINE
SEPTEMBER 30, MONTHS ENDED YEAR ENDED MONTHS ENDED
--------------- DECEMBER 31, DECEMBER 31, SEPTEMBER 30,
1993 1994 1994 1995 1996
------ ------- ------------ ------------ -------------
(UNAUDITED)
Current:
Federal.......... $1,176 $ 870 $1,505 $ 5,113 $ 2,491
State............ -- -- -- -- --
Foreign.......... 944 11,176 2,779 19,500 37,061
Deferred:
Federal.......... (82) (705) (194) (1,459) (2,105)
State............ -- -- -- -- --
Foreign.......... (527) (950) (49) (403) (3,251)
------ ------- ------ ------- -------
$1,511 $10,391 $4,041 $22,751 $34,196
====== ======= ====== ======= =======
F-12
NU SKIN ASIA PACIFIC, INC.
NOTES TO COMBINED FINANCIAL STATEMENTS--(CONTINUED)
The principal components of U.S. pro forma deferred tax assets are as
follows:
DECEMBER 31,
------------- SEPTEMBER 30,
1994 1995 1996
------ ------ -------------
(UNAUDITED)
Deferred tax assets:
Product return reserve........................ $ 54 $ 115 $ 933
Inventory reserve............................. 14 414 1,464
Depreciation.................................. 979 866 1,128
Exchange gains and losses..................... -- 389 --
Accrued expenses not deductible until paid.... 179 123 212
Uniform capitalization........................ 897 1,696 1,945
Minimum tax credit............................ -- -- 2,005
Valuation allowance........................... -- -- (2,005)
Other......................................... 82 61 87
------ ------ ------
$2,205 $3,664 $5,769
====== ====== ======
A reconciliation of the Company's pro forma effective tax rate compared to
the statutory U.S. Federal tax rate is as follows:
YEAR ENDED THREE NINE
SEPTEMBER 30, MONTHS ENDED YEAR ENDED MONTHS ENDED
-------------- DECEMBER 31, DECEMBER 31, SEPTEMBER 30,
1993 1994 1994 1995 1996
------ ------ ------------ ------------ -------------
(UNAUDITED)
Income taxes at statu-
tory rate.............. 34.00% 35.00% 35.00% 35.00% 35.00%
Foreign tax credit limi-
tation (benefit)....... (0.60) 1.97 (0.42) 2.69 (0.84)
Alternative minimum
tax.................... -- -- -- -- 2.13
Non-deductible ex-
penses................. 0.26 0.27 0.11 0.67 0.04
Other................... (0.05) -- -- -- --
------ ------ ----- ----- -----
33.61% 37.24% 34.69% 38.36% 36.33%
====== ====== ===== ===== =====
9. FINANCIAL INSTRUMENTS
The Subsidiaries enter into significant transactions with each other, NSI
and third parties which may not be denominated in the respective entity's
functional currency. The Company reduces its exposure to fluctuations in
foreign exchange rates by creating offsetting positions through the use of
foreign currency exchange contracts. The Company currently does not use such
financial instruments for trading or speculative purposes. The Company
regularly monitors its foreign currency risks and periodically takes measures
to reduce the impact of foreign exchange fluctuations on the Company's
operating results.
At December 31, 1994 and 1995, and September 30, 1996, the Company held
foreign currency forward contracts with amounts totaling $-0-, $1,000,000 and
$13,150,000 (unaudited), respectively, to hedge certain foreign currency
risks. These contracts all have maturities prior to December 31, 1996. At
December 31, 1995 and September 30, 1996 and for the periods then ended, there
were no significant unrealized gains or losses on these contracts.
F-13
NU SKIN ASIA PACIFIC, INC.
NOTES TO COMBINED FINANCIAL STATEMENTS--(CONTINUED)
10. COMMITMENTS AND CONTINGENCIES
The Company is subject to governmental regulations pertaining to product
formulation, labeling and packaging, product claims and advertising and to the
Company's direct selling system. The Company is also subject to the
jurisdiction of numerous foreign tax authorities. These tax authorities
regulate and restrict various corporate transactions, including intercompany
transfers. The Company believes that the tax authorities in Japan and South
Korea are particularly active in challenging the tax structures and
intercompany transfers of foreign corporations. Any assertions or
determination that either the Company, NSI or any of NSI's distributors is not
in compliance with existing statutes, laws, rules or regulations could
potentially have a material adverse effect on the Company's operations. In
addition, in any country or jurisdiction, the adoption of new statutes, laws,
rules or regulations or changes in the interpretation of existing statutes,
laws, rules or regulations could have a material adverse effect on the Company
and its operations. Although management believes that the Company is in
compliance, in all material respects, with the statutes, laws, rules and
regulations of every jurisdiction in which it operates, no assurance can be
given that the Company's compliance with applicable statutes, laws, rules and
regulations will not be challenged by foreign authorities or that such
challenges will not have a material adverse effect on the Company's financial
position or results of operations or cash flows.
11. SUBSEQUENT EVENTS
PLANNED REORGANIZATION
Prior to or concurrently with the initial public offerings, the stockholders
of the Subsidiaries will effectuate a tax-free reorganization whereby the
stockholders will contribute their shares of capital stock to the Company in
exchange for shares of the Company's Class B Common Stock intended to qualify
as a tax free transfer under Section 351 of the Internal Revenue Code of 1986
(the "Reorganization"). The Reorganization will result in each of the
Subsidiaries becoming a wholly-owned subsidiary of the Company. Prior to the
Reorganization, each Subsidiary elected to be treated as an S corporation. As
part of the Reorganization, each Subsidiary will terminate its S corporation
status.
Inasmuch as the separate entities that will be reorganized to constitute the
Company are under common control, the Reorganization will be accounted for in
a manner similar to a pooling of interests. Accordingly, the individual
Subsidiaries' historical balance sheets and related statements of income, of
stockholders' equity and of cashflows are combined and presented as a single
entity after elimination of intercompany transactions. The unaudited pro forma
statements included elsewhere in this registration statement reflect the
Reorganization and related accounting treatment.
F-14
REPORT OF INDEPENDENT ACCOUNTANTS
To the Board of Directors and Stockholders of
Nu Skin Asia Pacific, Inc.
In our opinion, the accompanying balance sheet presents fairly, in all
material respects, the financial position of Nu Skin Asia Pacific, Inc. at
September 6, 1996, in conformity with generally accepted accounting
principles. This financial statement is the responsibility of the Company's
management; our responsibility is to express an opinion on this financial
statement based on our audit. We conducted our audit of this statement in
accordance with generally accepted auditing standards which require that we
plan and perform the audit to obtain reasonable assurance about whether the
balance sheet is free of material misstatement. An audit includes examining,
on a test basis, evidence supporting the amounts and disclosures in the
balance sheet, assessing the accounting principles used and significant
estimates made by management, and evaluating the overall balance sheet
presentation. We believe that our audit provides a reasonable basis for the
opinion expressed above.
/s/ Price Waterhouse LLP
Price Waterhouse LLP
Salt Lake City, Utah
September 10, 1996
F-15
NU SKIN ASIA PACIFIC, INC.
BALANCE SHEET
AS OF SEPTEMBER 6, 1996
(IN THOUSANDS, EXCEPT SHARE AMOUNTS)
ASSETS
Deferred offering costs.................................................. $1,676
------
Total assets......................................................... $1,676
======
LIABILITIES AND STOCKHOLDERS' EQUITY
Current liabilities
Accrued expenses....................................................... $1,676
------
Total liabilities.................................................... 1,676
------
Stockholders' equity
Preferred Stock--25,000,000 shares authorized, $.001 par value......... --
Class A Common Stock--500,000,000 shares authorized, $.001 par value... --
Class B Common Stock--100,000,000 shares authorized, $.001 par value... --
------
Total stockholders' equity........................................... --
------
Total liabilities and stockholders' equity........................... $1,676
======
The accompanying notes are an integral part of this balance sheet.
F-16
NU SKIN ASIA PACIFIC, INC.
NOTES TO BALANCE SHEET
AS OF SEPTEMBER 6, 1996
NOTE 1--DESCRIPTION OF BUSINESS AND SIGNIFICANT ACCOUNTING POLICIES
Nu Skin Asia Pacific, Inc. (the "Company") is a network marketing company
involved in the marketing, distribution and sale of premium quality,
innovative personal care and nutritional products. The Company is the
exclusive distribution vehicle of products produced by Nu Skin International,
Inc. ("NSI") in Japan, Taiwan, Hong Kong, and South Korea, where the Company
currently has operations, and in Thailand, Indonesia, Malaysia, the
Philippines, the People's Republic of China, Singapore and Vietnam, where
operations have not commenced. The Company belongs to a group of affiliated
entities that are under the control of a group of common stockholders (the "Nu
Skin Group"). The Nu Skin Group's affiliates include various entities that
have exclusive Nu Skin marketing rights, distribution rights and trademark
licenses in each of the markets in which the Company operates.
The Company was organized in September 1996 as a holding company in
anticipation of a tax-free reorganization of the distribution and marketing
entities operating in Japan, Taiwan, Hong Kong, and South Korea (collectively
referred to as the "Subsidiaries"). The Reorganization will be undertaken in
anticipation of the initial public offerings (the "Offerings").
The balance sheet should be read in conjunction with the historical Combined
Financial Statements of Nu Skin Asia Pacific, Inc. included elsewhere in this
registration statement.
USE OF ESTIMATES
The preparation of the balance sheet in conformity with generally accepted
accounting principles required management to make estimates and assumptions
that affect the reported amounts of certain assets and liabilities and
disclosures of contingent assets and liabilities at the date of the balance
sheet. Actual results could differ from those estimates. Management believes
that the estimates are reasonable.
INCOME TAXES
Income taxes are computed using the asset and liability method. Under the
asset and liability method, deferred income tax assets and liabilities are
determined based on the difference between the financial and tax bases of
assets and liabilities and are measured using the currently enacted tax rates
and laws in accordance with Statement of Financial Accounting Standards No.
109, Accounting for Income Taxes.
STOCK-BASED COMPENSATION
The Company will adopt Statement of Financial Accounting Standards No. 123
(SFAS 123), Accounting for Stock-Based Compensation. SFAS 123 becomes
effective during 1996. The Company will measure compensation expense for its
stock-based employee compensation plans using the intrinsic value method
prescribed by Accounting Principles Board Opinion No. 25 ("APB 25"),
Accounting for Stock Issued to Employees, and will provide pro forma
disclosures of net income and net income per share as if the fair value-based
method prescribed by SFAS 123 had been applied in measuring compensation
expense.
NOTE 2--DEFERRED OFFERING COSTS
The Company has incurred costs totaling $1,676,000, as of September 6, 1996,
in connection with the Offerings. These costs have been reflected as deferred
offering costs in the accompanying balance sheet as of September 6, 1996. If
the Offerings are successful, the costs will be deducted from the proceeds
received from the Offerings. If the Offerings are not successful, the costs
will be charged to expense in the period in which a decision is made to
terminate the Offerings. In such event, the costs would be paid by NSI.
F-17
NU SKIN ASIA PACIFIC, INC.
NOTES TO BALANCE SHEET--(CONTINUED)
AS OF SEPTEMBER 6, 1996
NOTE 3--CAPITAL STOCK
The Company's capital stock consists of Preferred Stock, Class A Common
Stock, and Class B Common Stock. The shares of Class A Common Stock and Class
B Common Stock are identical in all respects, except for voting rights and
certain conversion rights and transfer restrictions, as follows: (1) each
share of Class A Common Stock entitles the holder to one vote on matters
submitted to a vote of the Company's stockholders and each share of Class B
Common Stock entitles the holder to ten votes on each such matter; (2) stock
dividends of Class A Common Stock may be paid only to holders of Class A
Common Stock and stock dividends of Class B Common Stock may be paid only to
holders of Class B Common Stock; (3) if a holder of Class B Common Stock
transfers such shares to a person other than a permitted transferee, as
defined in the Company's' Certificate of Incorporation, such shares will be
converted automatically into shares of Class A Common Stock; and (4) Class A
Common Stock has no conversion rights; however, each share of Class B Common
Stock is convertible into one share of Class A Common Stock, in whole or in
part, at any time at the option of the holder.
STOCKHOLDER CONTROL
Subsequent to the Offerings, a group of common stockholders (the "Existing
Stockholders") will own all of the outstanding shares of Class A Common Stock
and Class B Common Stock, which will represent approximately 99% of the
combined voting rights of all outstanding Common Stock. Accordingly, the
Existing Stockholders, acting as a group, will control the election of the
entire Board of Directors and decisions with respect to the Company's dividend
policy, the Company's access to capital, mergers or other business
combinations involving the Company, the acquisition or disposition of assets
by the Company and any change in control of the Company.
CERTAIN RELATIONSHIPS WITH STOCKHOLDERS
Prior to or concurrent with the Offerings of the Company's shares, all of
the Company's current stockholders will enter into a Stockholders' Agreement
with the Company which will contain certain limitations on the transfer of
shares of Class A Common Stock and Class B Common Stock. Additionally, each
Existing Stockholder who is a party to the Stockholders' Agreement will grant
the other parties (subject to certain exceptions) a right of first offer to
purchase a pro rata (based on ownership percentages) portion of shares to be
offered as well as any shares not purchased by the other parties.
DIVIDEND REPATRIATION
The Company will conduct all of its operations through the Subsidiaries.
Accordingly, an important source of the Company's income will be dividends and
other distributions from the Subsidiaries. The Company's ability to obtain
dividends or other distributions is subject to, among other things,
restrictions on dividends under applicable local statutes, laws, rules and
regulations, and foreign currency exchange regulations of the countries in
which the Subsidiaries operate. The Subsidiaries' ability to pay dividends or
make other distributions to the Company is also subject to the Subsidiaries
having sufficient funds from their operations which are legally available for
the payment of such dividends or distributions and which are not required to
fund future operations. Because the Company will be a stockholder of each of
the Subsidiaries, the Company's claims will generally rank junior to all other
creditors. Therefore, in the event of an entity's liquidation, there may not
be assets sufficient for the Company to recoup its investment in such entity.
NOTE 4--EQUITY INCENTIVE PLANS (UNAUDITED)
The Company has reserved 4,000,000 of the outstanding shares of the
Company's Class A Common Stock just prior to the Offerings for issuance as
equity incentives to employees and other eligible participants under the
Company's 1996 Stock Incentive Plan. The Company will account for employee
equity incentives in accordance with APB 25.
F-18
NU SKIN ASIA PACIFIC, INC.
NOTES TO BALANCE SHEET--(CONTINUED)
AS OF SEPTEMBER 6, 1996
Prior to the Offerings, certain existing stockholders of the Company (the
"Selling Stockholders") intend to contribute to the Company an aggregate of up
to 1,605,000 of the outstanding shares of the Company's Class A Common Stock
on the date of such contribution. The Company intends to grant to NSI options
to purchase such shares of Common Stock, and NSI intends to assign these
options (the "Distributor Options") to qualifying distributors of NSI in
connection with the Offerings. The Distributor Options will vest subject to
certain conditions related to distributor performance on December 31, 1997.
The Company will record distributor incentive expense for the Distributor
Options, calculated in accordance with SFAS 123.
In addition, prior to the Offerings, the Selling Stockholders will
contribute to NSI and other members of the Nu Skin Group, shares equal to an
aggregate of up to 1,250,000 of the outstanding shares of the Company's Class
A Common Stock on the date of such contribution for issuance to employees of
NSI and employees of other members of the Nu Skin Group as part of an employee
equity incentive plan. Equity incentives granted or awarded under this plan
will vest over the four year period following the grant or award date.
Compensation expense related to equity incentives granted to employees of NSI
and other members of the Nu Skin Group will be recorded by the entity that
benefits from the employee's services.
In addition, in January 1994, NSI agreed to grant one of the Company's
executives an option to purchase 267,500 of the Company's Class A Common
Stock, to become exercisable upon the Reorganization. The exercise price of
this option was set at the estimated fair market value of this equity interest
in January 1994.
F-19
NU SKIN ASIA PACIFIC, INC.
UNAUDITED PRO FORMA CONSOLIDATED BALANCE SHEET
AS OF SEPTEMBER 30, 1996
(IN THOUSANDS, EXCEPT SHARE AMOUNTS)
PRO FORMA
PRO FORMA PRO FORMA FOR THE
NU SKIN ADJUSTMENTS PRO FORMA ADJUSTMENTS REORGANIZATION
ASIA PACIFIC, COMBINED FOR THE FOR THE FOR THE AND THE
INC. SUBSIDIARIES REORGANIZATION REORGANIZATION OFFERINGS OFFERINGS
------------- ------------ -------------- -------------- ----------- --------------
ASSETS
Current assets
Cash and cash
equivalents.......... $ -- $ 81,079 $ -- $ 81,079 $70,765 (g) $151,844
Accounts receivable... -- 8,151 -- 8,151 -- 8,151
Related parties
receivable........... -- 7,840 -- 7,840 -- 7,840
Inventories, net...... -- 46,379 -- 46,379 -- 46,379
Prepaid expenses and
other................ -- 8,027 2,609 (b) 10,636 -- 10,636
------ -------- ------- -------- ------- --------
-- 151,476 2,609 154,085 70,765 224,850
Property and equipment,
net.................... -- 8,672 -- 8,672 -- 8,672
Deferred offering
costs.................. 1,676 -- -- 1,676 (1,676)(g) --
Deferred tax assets..... -- -- 3,160 (b) 3,160 -- 3,160
Other assets............ -- 8,759 -- 8,759 25,000 (g) 33,759
------ -------- ------- -------- ------- --------
Total assets........ $1,676 $168,907 $ 5,769 $176,352 $94,089 $270,441
====== ======== ======= ======== ======= ========
LIABILITIES AND STOCKHOLDERS' EQUITY
Current liabilities
Accounts payable...... $ -- $ 5,019 $ -- $ 5,019 $ -- $ 5,019
Accrued expenses...... 1,676 49,514 -- 51,190 (1,676)(g) 49,514
Related parties
payable.............. -- 36,115 -- 36,115 -- 36,115
Notes payable to
stockholders......... -- -- 81,893 (d) 81,893 (15,000)(g) 66,893
Note payable to NSI... -- -- -- -- 10,000 (g) 10,000
------ -------- ------- -------- ------- --------
1,676 90,648 81,893 174,217 (6,676) 167,541
------ -------- ------- -------- ------- --------
Note payable to NSI..... -- -- -- -- 10,000 (g) 10,000
------ -------- ------- -------- ------- --------
Stockholders' equity
Capital Stock of
Combined
Subsidiaries.......... -- 4,550 (4,550)(a) -- -- --
Preferred Stock--
25,000,000 shares
authorized, $.001 par
value................ -- -- -- -- -- --
Class A Common Stock--
500,000,000 shares
authorized, $.001 par
value, 8,850,000
shares issued and
outstanding.......... -- -- -- -- 9 (g) 9
Class B Common Stock--
100,000,000 shares
authorized, $.001 par
value, 74,545,000
shares issued and
outstanding.......... -- -- 80 (a) 80 (5)(g) 75
Additional paid-in
capital.............. -- -- -- -- 126,692(g)(h) 126,692
Cumulative foreign
currency translation
adjustment........... -- (3,714) -- (3,714) -- (3,714)
Retained earnings..... -- 77,423 (77,423)(a)(d) 5,769 -- 5,769
5,769(b)
Deferred
compensation......... -- -- -- -- (25,931)(h) (25,931)
Note receivable from
NSI.................. -- -- -- -- (10,000)(f) (10,000)
------ -------- ------- -------- ------- --------
-- 78,259 (76,124) 2,135 90,765 92,900
------ -------- ------- -------- ------- --------
Total liabilities
and stockholders'
equity............. $1,676 $168,907 $ 5,769(b) $176,352 $94,089 $270,441
====== ======== ======= ======== ======= ========
The accompanying notes are an integral part of these unaudited pro forma
consolidated financial statements.
F-20
NU SKIN ASIA PACIFIC, INC.
UNAUDITED PRO FORMA CONSOLIDATED STATEMENT OF INCOME
FOR THE YEAR ENDED DECEMBER 31, 1995
(IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
PRO FORMA
PRO FORMA PRO FORMA FOR THE
NU SKIN ADJUSTMENTS PRO FORMA ADJUSTMENTS REORGANIZATION
ASIA COMBINED FOR THE FOR THE FOR THE AND THE
PACIFIC, INC. SUBSIDIARIES REORGANIZATION REORGANIZATION OFFERINGS OFFERINGS
------------- ------------ -------------- -------------- ----------- --------------
Revenue................. $ -- $358,609 $ -- $358,609 $ -- $358,609
Cost of sales........... -- 96,615 -- 96,615 -- 96,615
---- -------- ------- -------- ------- --------
Gross profit............ -- 261,994 261,994 261,994
---- -------- ------- -------- ------- --------
Operating expenses
Distributor
incentives(f)......... -- 135,722 -- 135,722 -- 135,722
Selling, general and
administrative........ -- 67,475 4,391(c) 71,866 2,452(h) 74,318
---- -------- ------- -------- ------- --------
Total operating
expenses............... -- 203,197 4,391 207,588 2,452 210,040
---- -------- ------- -------- ------- --------
Operating income........ -- 58,797 (4,391) 54,406 (2,452) 51,954
Other income (expense).. -- 511 (2,676)(e) (2,165) (133)(i) (2,298)
---- -------- ------- -------- ------- --------
Income before provision
for income taxes....... -- 59,308 (7,067) 52,241 (2,585) 49,656
Provision for income
taxes.................. -- 19,097 944(b) 20,041 (992)(j) 19,049
---- -------- ------- -------- ------- --------
Net income.............. $ -- $ 40,211 $(8,011) $ 32,200 $(1,593) $ 30,607
==== ======== ======= ======== ======= ========
Net income per share.... $ .40 $ .36
======== ========
Weighted average common
shares outstanding..... 80,518 85,377
======== ========
The accompanying notes are an integral part of these unaudited pro forma
consolidated financial statements.
F-21
NU SKIN ASIA PACIFIC, INC.
UNAUDITED PRO FORMA CONSOLIDATED STATEMENT OF INCOME
FOR THE NINE MONTHS ENDED SEPTEMBER 30, 1996
(IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
PRO FORMA
PRO FORMA PRO FORMA FOR THE
NU SKIN ADJUSTMENTS PRO FORMA ADJUSTMENTS REORGANIZATION
ASIA PACIFIC, COMBINED FOR THE FOR THE FOR THE AND THE
INC. SUBSIDIARIES REORGANIZATION REORGANIZATION OFFERINGS OFFERINGS
------------- ------------ -------------- -------------- ----------- --------------
Revenue................. $ -- $471,312 $ -- $471,312 $ -- $471,312
Cost of sales........... -- 133,592 -- 133,592 -- 133,592
---- -------- ------- -------- ------ --------
Gross profit............ -- 337,720 -- 337,720 -- 337,720
---- -------- ------- -------- ------ --------
Operating expenses
Distributor
incentives (f)........ -- 175,149 -- 175,149 -- 175,149
Selling, general and
administrative........ -- 69,970 3,293(c) 73,263 1,839(h) 75,102
---- -------- ------- -------- ------ --------
Total operating
expenses............... -- 245,119 3,293 248,412 1,839 250,251
---- -------- ------- -------- ------ --------
Operating income........ -- 92,601 (3,293) 89,308 (1,839) 87,469
Other income (expense).. -- 1,530 -- 1,530 467(i) 1,997
---- -------- ------- -------- ------ --------
Income before provision
for income taxes....... -- 94,131 (3,293) 90,838 (1,372) 89,466
Provision for income
taxes.................. -- 33,810 (810)(b) 33,000 (498)(j) 32,502
---- -------- ------- -------- ------ --------
Net income.............. $ -- $ 60,321 $(2,483) $ 57,838 $ (874) $ 56,964
==== ======== ======= ======== ====== ========
Net income per share.... $ .72 $ .67
======== ========
Weighted average common
shares outstanding..... 80,518 85,377
======== ========
The accompanying notes are an integral part of these unaudited pro forma
consolidated financial statements.
F-22
NU SKIN ASIA PACIFIC, INC.
NOTES TO UNAUDITED PRO FORMA
CONSOLIDATED BALANCE SHEET AND STATEMENTS OF INCOME
NOTE 1--BASIS OF PRESENTATION
Prior to or concurrently with the initial public offerings (the
"Offerings"), the stockholders of Nu Skin Japan Company, Limited, Nu Skin
Taiwan, Inc., Nu Skin Hong Kong, Inc. and Nu Skin Korea, Inc. (the
"Subsidiaries") will contribute their shares of capital stock to the capital
of Nu Skin Asia Pacific, Inc. (the "Company") in a reorganization which is a
transaction intended to qualify under Section 351 of the Internal Revenue Code
of 1986 as a tax free transfer in exchange for shares of the Company's Class B
Common Stock (the "Reorganization"). The Reorganization will result in each of
the Subsidiaries becoming a wholly-owned subsidiary of the Company. Prior to
the Reorganization, each of the Subsidiaries elected to be taxed as an S
corporation whereby the income tax effects of the Company's activities accrued
directly to the stockholders.
Inasmuch as the Subsidiaries that will be reorganized are under common
control, the Reorganization will be accounted for in a manner similar to a
pooling of interests. Accordingly, the historical balance sheets and related
statements of income, of stockholders' equity and of cash flows are combined
and presented as a single entity after elimination of intercompany
transactions.
The unaudited pro forma financial data reflect the Reorganization and the
Offerings as if all conditions to these transactions had been completed as of
September 30, 1996 for pro forma combined balance sheet data purposes and as
of January 1, 1995 for pro forma combined statement of income data purposes.
These data do not necessarily reflect the results of operations or financial
position of the Company that would have resulted had such transactions
actually been consummated as of such dates. Also, these data are not
necessarily indicative of the future results of operations of future financial
position of the Company.
NOTE 2--PRO FORMA ADJUSTMENTS
The pro forma adjustments reflect the following:
REORGANIZATION
a) Reflects the contribution by the existing stockholders of their
interest in the Subsidiaries in exchange for all shares of the Class B
Common Stock. As a result, the Company will become the parent company and
the Subsidiaries will become wholly-owned subsidiaries of the Company.
b) Reflects the recognition of a net deferred tax asset of $5.8 million.
In connection with the Reorganization, the Company will make certain
adjustments for U.S. Federal and state income taxes as if the Company had
been taxed as a C corporation rather than as an S corporation since
inception. Additionally, reflects the tax effect of pro forma adjustments
on earnings.
c) Reflects additional management charges of $4.4 million per year
relating to certain support services provided to the Company by NSI and an
NSI affiliate.
d) Reflects the distribution of $81.9 million of notes (the "S
Distribution Notes") to the existing stockholders of the Company in respect
of the earned and undistributed taxable S corporation earnings at September
30, 1996 that would have been distributed had the Subsidiaries' S
corporation status been terminated on September 30, 1996.
The adjustments reflect the distribution and the related issuance of
promissory notes. The Company estimates that, at the Offerings, it will
reserve between $60.0 million and $70.0 million of cash on hand for
repayment of the S Distribution Notes. The balance of the S Distribution
Notes will be repaid from cash generated by operations.
F-23
NU SKIN ASIA PACIFIC, INC.
NOTES TO UNAUDITED PRO FORMA
CONSOLIDATED BALANCE SHEET AND STATEMENTS OF INCOME--(CONTINUED)
e) Reflects the increase in interest expense for the promissory notes
issued in connection with the distribution to the stockholders of the
undistributed S corporation earnings, net of a $15.0 million payment of
such notes from the proceeds of the Offerings. The promissory notes will
bear interest at 8% per annum and are due and payable within six months
from the date of issuance.
OFFERING
f) Reflects an estimated $10.0 million note receivable in connection with
the sale of an option to purchase 481,500 shares of Class A Common Stock to
NSI. The pro forma statements of income do not reflect the estimated
compensation expense of $21.1 million in connection with the one-time grant
of stock options at 25% of the initial public offering price to independent
distributors (non-employees) of the Company immediately prior to the
Offerings. These options will include conditions related to the achievement
of performance goals and will vest on December 31, 1997. The Company will
record distributor stock incentive expense for these non-employee stock
options.
g) Reflects the net proceeds to the Company from the Offerings of
$90,765,000 less a $15.0 million payment of short term notes to the
stockholders, the $25.0 million purchase from NSI of the exclusive rights
to distribute products in Thailand, Indonesia, Malaysia, the Philippines,
the People's Republic of China, Singapore and Vietnam, which purchase
consists of $20.0 million in notes payable to NSI and a $5.0 million
payment to NSI, and the related adjustments to stockholders' equity. Also,
reflects the conversion of 5,705,000 shares of Class B Common Stock into
Class A Common Stock and the sale by the Company of 4,750,000 shares of
Class A Common Stock.
h) The pro forma statements of income reflect the annual amortization of
$1.3 million for the distribution rights acquired from NSI. Amortization
will be recorded on a straight-line basis over the estimated useful life of
twenty years. Also reflects estimated annual compensation expense of $1.2
million related to the employee stock bonus awards granted to employees of
the Company, NSI and its affiliates. The pro forma balance sheet reflects
estimated deferred compensation and additional paid-in capital of $25.9
million, $4.8 million of which represents the estimated compensation
expense related to the employee stock bonus awards granted to employees of
the Company, NSI and its affiliates which vest over a period of four years,
and $21.1 million in connection with the one-time grant of stock options at
25% of the initial public offering price to independent distributors of the
Company immediately prior to the Offerings.
i) Reflects interest expense for the $20.0 million in notes payable to
NSI issued in connection with the purchase of exclusive distribution rights
in certain Asian countries. The notes will bear interest at 8% per annum
and are due and payable within 14 months from the date of issuance. Also
reflects interest income for the estimated $10.0 million note receivable
from NSI issued in connection with the sale of an option to purchase
481,500 shares of Class A Common Stock. The note will bear interest at 8%
per annum and is due and payable ten years from the date of issuance.
j) Reflects tax effect of pro forma adjustments on earnings.
NOTE 3--DEFERRED OFFERING COSTS
The Company has incurred costs totaling $1,676,000 as of September 6, 1996
in connection with the Offerings of the Class A Common Stock. These costs have
been reflected as deferred offering costs in the accompanying pro forma
balance sheet as of September 30, 1996. If the Offerings are successful, the
costs will be deducted from the proceeds received from the Offerings. If the
Offerings are not successful, the costs will be charged to expense in the
period in which a decision is made to terminate the Offerings. In such event,
the costs would be paid by NSI.
F-24
NU SKIN ASIA PACIFIC, INC.
NOTES TO UNAUDITED PRO FORMA
CONSOLIDATED BALANCE SHEET AND STATEMENTS OF INCOME--(CONTINUED)
NOTE 4--PRO FORMA NET INCOME PER SHARE
For the Reorganization, pro forma per share data is computed based on
80,250,000 shares of Common Stock outstanding and Common Stock equivalents
after giving effect to the Reorganization and an option granted to an
executive officer of the Company to purchase 267,500 shares of Common Stock.
For the Offerings, shares of Common Stock outstanding and Common Stock
equivalents are increased by the sale of 4,750,000 shares of Common Stock
assuming an offering price of $21 per share and by the award of 109,000 shares
of Common Stock to employees of the Company. Supplemental income per share,
calculated as if $25.0 million of the proceeds from the Offerings were used to
pay down a note payable, had a dilutive effect of less than 2%, and therefore,
is not presented.
F-25
[COMPANY LOGO WITH THE WORDS "BEAUTY, HEALTH & OPPORTUNITY" AND "BEAUTY,"
"HEALTH" AND "OPPORTUNITY."]
[PICTURE OF A WOMAN USING A NU SKIN NAIL CARE KIT.]
[PICTURE OF A COUPLE WALKING IN A FIELD.]
[PICTURE OF A MAN AND WOMAN BRUSHING A CHILD'S HAIR.]
[PICTURE OF CHRISTY BRINKLEY, A SPOKESPERSON FOR NU SKIN PRODUCTS, WITH A
HORSE.]
[PICTURE OF A NU SKIN DISTRIBUTOR ON THE TELEPHONE AND CONSUMING A NU SKIN
BEVERAGE PRODUCT.]
[PICTURE OF A MAN AND A WOMAN WHO IS APPLYING NU SKIN COSMETICS.]
[PICTURE OF A NU SKIN DISTRIBUTOR DEMONSTRATING PRODUCTS TO A CUSTOMER.]
[PICTURE OF CHRISTY BRINKLEY, A SPOKESPERSON FOR NU SKIN PRODUCTS, WITH A
HORSE,
CONTINUED FROM PREVIOUS PAGE.]
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
NO OTHER DEALER, SALESPERSON OR OTHER INDIVIDUAL HAS BEEN AUTHORIZED TO GIVE
ANY INFORMATION OR TO MAKE ANY REPRESENTATIONS NOT CONTAINED IN THE PROSPECTUS.
IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATIONS MUST NOT BE RELIED UPON
AS HAVING BEEN AUTHORIZED BY THE COMPANY, THE SELLING STOCKHOLDERS OR THE
UNDERWRITERS. THIS PROSPECTUS DOES NOT CONSTITUTE AN OFFER TO SELL, OR A
SOLICITATION OF AN OFFER TO BUY, THE CLASS A COMMON STOCK IN ANY JURISDICTION
WHERE, OR TO ANY PERSON TO WHOM, IT IS UNLAWFUL TO MAKE SUCH OFFER OR
SOLICITATION. NEITHER THE DELIVERY OF THIS PROSPECTUS NOR ANY SALE MADE
HEREUNDER SHALL, UNDER ANY CIRCUMSTANCES, CREATE AN IMPLICATION THAT THERE HAS
NOT BEEN ANY CHANGE IN THE FACTS SET FORTH IN THIS PROSPECTUS OR IN THE AFFAIRS
OF THE COMPANY SINCE THE DATE HEREOF.
-----------
TABLE OF CONTENTS
PAGE
----
Prospectus Summary....................................................... 3
Risk Factors............................................................. 11
The Reorganization and S Corporation Distribution........................ 24
Use of Proceeds.......................................................... 26
Dividend Policy.......................................................... 26
Capitalization........................................................... 27
Dilution................................................................. 28
Selected Combined Financial and Other Information........................ 29
Management's Discussion and Analysis of Financial Condition and Results
of Operations........................................................... 31
Business................................................................. 40
Management............................................................... 63
Certain Relationships and Related Transactions........................... 70
Principal and Selling Stockholders....................................... 72
Shares Eligible for Future Sale.......................................... 74
Description of Capital Stock............................................. 76
Certain United States Tax Consequences to Non-United States Holders...... 80
Underwriting............................................................. 82
Legal Matters............................................................ 86
Experts.................................................................. 86
Additional Information................................................... 86
Index to Financial Statements............................................ F-1
UNTIL , 1996 (25 DAYS AFTER THE DATE OF THIS PROSPECTUS), ALL DEALERS
EFFECTING TRANSACTIONS IN THE CLASS A COMMON STOCK, WHETHER OR NOT
PARTICIPATING IN THIS DISTRIBUTION, MAY BE REQUIRED TO DELIVER A PROSPECTUS.
THIS IS IN ADDITION TO THE OBLIGATION OF DEALERS TO DELIVER A PROSPECTUS WHEN
ACTING AS UNDERWRITERS AND WITH RESPECT TO THEIR UNSOLD ALLOTMENTS OR
SUBSCRIPTIONS.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
7,600,000 SHARES
LOGO
CLASS A COMMON STOCK
---------------
PROSPECTUS
---------------
MERRILL LYNCH & CO.
MORGAN STANLEY & CO.
INCORPORATED
DEAN WITTER REYNOLDS INC.
NOMURA SECURITIES INTERNATIONAL, INC.
, 1996
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
+INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A +
+REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE +
+SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY +
+OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT +
+BECOMES EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR +
+THE SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE +
+SECURITIES IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE +
+UNLAWFUL PRIOR TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF +
+ANY SUCH STATE. +
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
SUBJECT TO COMPLETION [ALTERNATE PAGE FOR RULE 415]
PRELIMINARY PROSPECTUS DATED OCTOBER , 1996
PROSPECTUS
OPTIONS TO PURCHASE 1,605,000 SHARES OF CLASS A COMMON STOCK
2,964,000 SHARES OF CLASS A COMMON STOCK
NU SKIN LOGO
--------------
This Prospectus relates to the offering by Nu Skin International, Inc.,
("NSI") of options (the "Distributor Options") to purchase 1,605,000 shares of
Class A Common Stock of Nu Skin Asia Pacific, Inc. (the "Company"), the
offering by the Company of 1,605,000 shares of Class A Common Stock to be
issued upon the exercise of the Distributor Options, the offering by the
Company to its employees of 109,000 shares of Class A Common Stock in
connection with the awarding of employee stock bonus awards, and the offering
by NSI and its affiliates (other than the Company) (the "Rule 415 Selling
Stockholders") of 1,250,000 shares of Class A Common Stock to their employees
as employee stock bonus awards. The offering of the Distributor Options, the
underlying shares of Class A Common Stock underlying the Distributor Options
and the employee stock bonus awards are collectively referred to as the "Rule
415 Offerings." See "Rule 415 Selling Stockholders" and "Plan of Distribution".
The Company will not receive any of the proceeds from the distribution of
shares by the Rule 415 Selling Stockholders in connection with the employee
stock bonus awards. The Company will receive the proceeds from the issuance of
shares in connection with the exercise of the Distributor Options.
Each share of Class A Common Stock entitles its holder to one vote, and each
share of Class B Common Stock (the "Class B Common Stock", together with the
Class A Common Stock, the "Common Stock") of the Company entitles its holder to
ten votes. All of the shares of Class B Common Stock are held by the existing
stockholders (the "Existing Stockholders") of the Company prior to the
consummation of the Offerings (the "Rule 415 Offerings"). Each share of Class B
Common Stock is convertible into one share of Class A Common Stock at the
option of the holder of Class B Common Stock and in certain other instances.
See "Description of Capital Stock--Common Stock--Conversion."
In addition to the shares underlying the Distributor Options and the employee
stock bonus awards, the Company has registered 7,600,000 shares of Class A
Common Stock, including 4,750,000 shares being offered by the Company and
2,850,000 shares being offered by certain selling stockholders (the "Selling
Stockholders"), for issuance and sale in connection with underwritten offerings
(the "Offerings") of such shares of Class A Common Stock and 884,317 shares and
255,683 shares of Class A Common Stock which the U.S. Underwriters and the
International Managers, respectively, have the option to purchase from the
Selling Stockholders to cover over-allotments, if any. After consummation of
the Rule 415 Offerings and the Offerings, the Existing Stockholders will
beneficially own shares of Common Stock having approximately 98.8% of the
combined voting power of the outstanding shares of Common Stock.
Prior to the Offerings, there has been no public market for the Class A
Common Stock.
The Class A Common Stock has been approved for listing on the New York Stock
Exchange under the symbol "NUS," subject to official notice of issuance.
SEE "RISK FACTORS," BEGINNING ON PAGE 11, FOR A DISCUSSION OF CERTAIN FACTORS
WHICH SHOULD BE CONSIDERED BY PROSPECTIVE PURCHASERS OF THE SECURITIES OFFERED
HEREBY.
--------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION, NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION
PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
PRICE TO UNDERWRITING PROCEEDS TO PROCEEDS TO
PUBLIC DISCOUNT(1) COMPANY(2)(3) SELLING STOCKHOLDERS
- -------------------------------------------------------------------------------
Per Option(4).........
- -------------------------------------------------------------------------------
Per Share............. $ $ $ $
- -------------------------------------------------------------------------------
Total................. $ $ $ $
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(1) The Rule 415 Offerings are being made by the Rule 415 Selling Stockholders
and by the Company from time to time pursuant to Rule 415 under the
Securities Act of 1933 and are not being made in connection with an
underwritten distribution. Therefore, no underwriting commissions or
discounts will be paid in connection with the Rule 415 Offerings. See "Rule
415 Selling Stockholders" and "Plan of Distribution."
(2) Before deducting expenses payable by the Company, which, together with the
expenses of the Offerings, are estimated to be $3,000,000.
(3) Includes proceeds from the exercise of the Distributor Options to purchase
shares of Class A Common Stock. See "Rule 415 Selling Stockholders" and
"Plan of Distribution."
(4) No consideration is being paid upon the issuance and grant of the
Distributor Options and the awarding of employee stock bonus awards by the
Rule 415 Selling Stockholders. See "Rule 415 Selling Stockholders" and
"Plan of Distribution."
--------------
The date of this Prospectus is , 1996.
[ALTERNATE PAGE FOR RULE 415]
THE RULE 415 OFFERINGS
DISTRIBUTOR OPTIONS. Prior to the date of this Prospectus, the Existing
Stockholders will contribute to the Company 1,605,000 shares of the Company's
Class A Common Stock for use in implementing a distributor equity incentive
program. Also prior to the date of this Prospectus, the Company will grant to
NSI 1,605,000 options to purchase such shares (the "Distributor Options"). Each
Distributor Option entitles the holder to purchase one share of Class A Common
Stock.
NSI intends to initially allocate the Distributor Options to executive
distributors who have achieved gold or higher executive distributor levels
under the Global Compensation Plan on the date of this Prospectus in each
country where NSI conducts business and where local laws permit the issuance of
options hereunder and in a manner similar to that described below. From
December 1, 1996 until August 31, 1997 (the "Qualification Period"), existing
and new distributors will have the opportunity to qualify for a reallocation of
the Distributor Options from NSI by achieving gold or higher executive
distributor levels under the Global Compensation Plan as of August 31, 1997
(such qualifying distributors are hereinafter referred to as "Eligible
Distributors"). At the end of the Qualification Period, each Eligible
Distributor will receive Distributor Options based upon a reallocation of the
Distributor Options determined by multiplying the total number of Distributor
Options by the quotient obtained by dividing (x) the Eligible Distributor's
weighted total compensation (determined in the manner set forth below) under
the Global Compensation Plan during the Qualification Period (the "Weighted
Individual Compensation") by (y) the sum of the Weighted Individual
Compensation earned by all Eligible Distributors under the Global Compensation
Plan during the Qualification Period (the "Weighted Total Compensation"). For
purposes of calculating such quotient, the following weighting factors will be
applied to an Eligible Distributor's compensation to calculate "Weighted
Individual Compensation" according to executive distributor levels:
EXECUTIVE
DISTRIBUTOR
LEVEL
EXECUTIVE DISTRIBUTOR LEVEL WEIGHTING FACTOR
--------------------------- ----------------
Hawaiian Blue Diamond..................................... 100%
Blue Diamond.............................................. 94%
Diamond................................................... 86%
Emerald................................................... 82%
Ruby...................................................... 78%
Lapis..................................................... 74%
Gold...................................................... 72%
In addition, for each 1% increase in average monthly
commissions earned during the Qualification Period that is
greater than actual commission earnings during September 1996
(the "Base Month"), the Executive Distributor Level Weighting
Factors will increase by one third ( 1/3) of 1% up to a
maximum increase of 100% (such increase is referred to as the
"Growth Weighting Factor").
For purposes of illustration, for the nine-month period ended on August 31,
1996 (the "Illustrative Qualification Period"), the Weighted Total Compensation
will be assumed to have been $200,000,000. An Emerald level distributor who
earned total commissions of $40,000 (or average monthly commissions of $4,444)
during the Illustrative Qualification Period and who had previously earned
commissions of $1,000 during the Base Month would apply a weighting factor of
182% to such commissions (computed using the 82% Executive Distributor Level
Weighting Factor for an Emerald level distributor plus a 100% Growth Weighting
Factor based on the 344% increase in average commissions during the
Illustrative Qualification Period over commissions earned during the Base
Month), resulting in Weighted Individual Compensation of $72,800. Such
distributor's
6
[ALTERNATE PAGE FOR RULE 415]
allotment of the Distributor Options would be equal to the quotient of his or
her Weighted Individual Compensation ($72,800) divided by the Weighted Total
Compensation ($200,000,000), multiplied by the total number of Distributor
Options (1,605,000). Such distributor would therefore be allocated 584 of the
Distributor Options.
The foregoing example is presented for illustrative purposes only. There can
be no assurance that the number of Eligible Distributors will remain constant
during the Qualification Period. Given the fixed number of Distributor Options
available, the number of Distributor Options allocable to an Eligible
Distributor will decrease as the total number of Eligible Distributors
increases and conversely will increase as the total number of Eligible
Distributors decreases. NSI has historically experienced periods of significant
fluctuations in its total number of executive distributors and may experience
such fluctuations in the future. An increase in the total number of Eligible
Distributors during the Qualification Period could result in a material
reduction in the number of Distributor Options allocable to an individual
Eligible Distributor. The number of Distributor Options allocable to an
Eligible Distributor will also decrease as the number of Eligible Distributors
at higher executive distributor levels increases as a proportion of all
Eligible Distributors and conversely will increase as the number of Eligible
6--1
[ALTERNATE PAGE FOR RULE 415]
Distributors at higher executive distributor levels decreases as a proportion
of all Eligible Distributors. There can be no assurance that the proportion of
Eligible Distributors at each executive distributor level will remain constant
during the Qualification Period. In addition, the number of Distributor Options
allocable to an Eligible Distributor will decrease as such Eligible
Distributor's compensation decreases as a proportion of total compensation paid
to all Eligible Distributors and conversely will increase as such Eligible
Distributor's compensation increases as a proportion of total compensation paid
to all Eligible Distributors. There can be no assurance that an Eligible
Distributor's compensation will remain constant as a percentage of total
Eligible Distributor compensation during the Qualification Period. Further,
there can be no assurance that an Eligible Distributor will be able to earn
particular compensation amounts during the Qualification Period.
For Distributor Options to vest, an Eligible Distributor will generally be
required to maintain, during the period from September 1, 1997, through
December 31, 1997 (the "Vesting Period"), the executive level he or she
achieved by the end of the Qualification Period (the "Qualifying Executive
Level"). If an Eligible Distributor fails to maintain the Qualifying Executive
Level for any month during the Vesting Period, the number of Distributor
Options vested in such Eligible Distributor will be recalculated at the end of
the Vesting Period to be that number of Distributor Options such Eligible
Distributor would have been allocated had he or she achieved the lowest
executive distributor level held by him or her during the Vesting Period as of
August 31, 1997 (the "Recalculated Distributor Options"). For example, if an
Eligible Distributor ends the Qualification Period as a Diamond executive
distributor with an Executive Distributor Level Weighting Factor of 86% and a
Growth Weighting Factor of 15%, resulting in a combined weighting factor of
101%, but during the Vesting Period the lowest level to which the distributor
falls is Ruby level, which carries an Executive Distributor Level Weighting
Factor of 78% (the Growth Weighting Factor would remain unchanged) the combined
weighting factor would be reduced to 93%. Therefore, the difference between the
number of Distributor Options allocated to an Eligible Distributor at the end
of the Qualification Period and the Recalculated Distributor Options, if the
amount of Recalculated Distributor Options is lower, will be forfeited by such
Eligible Distributor. If an Eligible Distributor ceases to be an executive
distributor at any time during the Vesting Period, all Distributor Options held
such Eligible Distributor will be immediately forfeited. Forfeited options will
not vest but will revert to NSI.
Distributor Options vested in an Eligible Distributor will become exercisable
on December 31, 1997, and will remain exercisable for a four-year period
following such date provided the Eligible Distributor remains an executive
distributor until the date of exercise. No distributor options will be
exercisable after December 31, 2001. By exercising any portion of the
Distributor Options, each Eligible Distributor who is granted more than 3,000
Distributor Options will agree not to resell in any given six-month period more
than 33% of the shares of Class A Common Stock issuable upon exercise of the
Distributor Options originally granted to such Eligible Distributor. Upon
vesting, Distributor Options will be exercisable at 25% of the initial price
per share to the public in the Offerings (the "Exercise Price").
By receiving an allocation of Distributor Options at the end of the
Qualification Period, each Eligible Distributor confirms his or her agreement
to continue to resell or personally consume at least 80% of all products
purchased by such distributor per month. In addition, product returns during
the Qualification or Vesting Periods will reduce commission levels and may
affect distributor levels, consequently impacting the number of Distributor
Options received by an individual distributor. In the event of product returns
occurring after the Qualification or Vesting Periods which would have affected
distributor levels, qualification for or vesting of Distributor Options had
such product returns been made during the Qualification or Vesting Periods, NSI
reserves the right to use any mechanism available to it under the NSI
distributor policies and procedures, as may be amended from time to time, to
recoup the value of the Distributor Options received by an individual
distributor on the Vesting Date in excess of the value of Distributor Options
which would have vested had such returns been made prior to the Vesting Date.
The Distributor Option program is not intended to be an executive
distributor's primary source of income. Even though the exact number of
Distributor Options initially allocated to an individual distributor may
fluctuate materially during the Qualification Period due to increases and
decreases in overall executive distributor activity, an executive distributor's
primary income source, i.e., product sales and commissions, will continue to be
based on the efforts of the executive distributor and leadership of his or her
downline organization.
7
[ALTERNATE PAGE FOR RULE 415]
EMPLOYEE STOCK BONUS AWARDS. Prior to the date of this Prospectus, the
Existing Stockholders will also contribute an aggregate of 1,250,000 shares of
the Company's Class A Common Stock (the "Employee Shares") to NSI and its
affiliates (other than the Company) for use in connection with the employee
stock bonus awards to be made by NSI and its affiliates (other than the
Company) to their respective employees in connection with the 415 Offerings.
The shares of Class A Common Stock underlying each such employee stock bonus
award will be issued to the employee recipient at a rate of 25% per year
commencing one year following the date of the award, provided the employee
recipient is still employed by NSI or one of its affiliates (other than the
Company). The Company also intends to issue 109,000 shares of Class A Common
Stock to its employees in connection with employee stock bonus awards to be
made to the Company's employees on the same terms as described above pursuant
to the Nu Skin Asia Pacific, Inc. 1996 Stock Incentive Plan.
REGULATORY AND TAX ISSUES. The availability of Distributor Options and
employee stock bonus awards in each country in which NSI distributors and/or
employees reside is entirely dependent upon and subject to NSI's ability to
secure any necessary regulatory approvals or qualifications in each such
country. There can be no assurance that such qualifications will be secured.
The receipt of Distributor Options and employee stock bonus awards will also
subject the recipient to potentially material income tax and capital gains tax
implications. See "Rule 415 Selling Stockholders--Certain U.S. Tax Consequences
to Recipients of Distributor Options and Employee Stock Bonus Awards" and "--
Non-U.S. Regulatory and Tax Consequences."
The Distributor Options, the shares of Class A Common Stock underlying the
Distributor Options and the employee stock bonus awards are included in this
Prospectus pursuant to Rule 415 under the Securities Act of 1933, as amended
(the "1933 Act"). The Distributor Options will be issued pursuant to this
Prospectus upon the grant of the Distributor Options. The shares of Class A
Common Stock will be issued by the Company or sold by the Rule 415 Selling
Stockholders, as applicable, upon the exercise of the Distributor Options and
upon the grant of the employee stock bonus awards. See "Rule 415 Selling
Stockholders."
Distributor Options offered by
NSI(1)........................... 1,605,000 Distributor Options
Class A Common Stock underlying
the Distributor Options(2) ...... 1,605,000 shares
Employee stock bonus awards
offered by the Rule 415 Selling
Stockholders(3).................. 1,250,000 shares
Employee stock bonus awards
offered by the Company........... 109,000 shares
Common Stock to be outstanding
after the Rule 415 Offerings:
Class A Common
Stock(4)(6)(7)(8).............. 10,564,000 shares
Class B Common Stock(5)(8)...... 74,545,000 shares
Total Common Stock............ 85,109,000 shares
New York Stock Exchange symbol.... "NUS"
Voting rights..................... The Class A Common Stock and Class B Common
Stock vote as a single class on all mat-
ters, except as otherwise required by law,
with each share of Class A Common Stock en-
titling its holder to one vote and each
share of Class B Common Stock entitling its
holder to ten votes. In all other respects
the holders of Class A Common Stock and the
holders of Class B Common Stock have equal
rights. All of the shares of Class B Common
Stock are owned by the Existing
[ALTERNATE PAGE FOR RULE 415]
Stockholders. After consummation of the Un-
derwritten Offerings, the Existing Stock-
holders will beneficially own shares of
Common Stock having approximately 98.8% of
the combined voting power of the outstand-
ing shares of Common Stock (approximately
98.7% if the Underwriters' over-allotment
options are exercised in full).
- --------
(1) Includes options granted by the Company to NSI to purchase shares of Class
A Common Stock contributed to the Company by the existing stockholders of
the Company prior to the Rule 415 Offerings.
(2) Consists of shares of Class A Common Stock issuable upon the exercise of
the Distributor Options at an exercise price equal to 25% of the initial
public offering price in the Offerings.
(3) Includes shares of Class A Common Stock contributed to the Rule 415 Selling
Stockholders prior to the Rule 415 Offerings by certain existing
stockholders of the Company.
(4) Includes (a) 2,964,000 shares of Class A Common Stock to be offered in the
Rule 415 Offerings (assuming exercise of all 1,605,000 Distributor
Options); and (b) 7,600,000 shares of Class A Common Stock being offered in
the Offerings by the Company and the Selling Stockholders.
(5) Gives effect to the conversion by the existing stockholders of the Company
prior to the Rule 415 Offerings of (a) 1,605,000 shares of Class B Common
Stock into shares of Class A Common Stock for issuance upon the exercise of
the Distributor Options; and (b) 1,250,000 shares of Class B Common Stock
into shares of Class A Common Stock for issuance pursuant to employee stock
bonus awards.
(6) Does not include: (i) 3,891,000 shares of Class A Common Stock reserved for
issuance pursuant to the 1996 Stock Incentive Plan; and (ii) 267,500 shares
of Class A Common Stock subject to a stock option which was granted to an
executive officer of the Company. See "Management--1996 Stock Incentive
Plan," "Certain Relationships and Related Transactions" and "Shares
Eligible for Future Sales."
(7) Assumes no exercise of the Underwriters' over-allotment options aggregating
1,140,000 shares of Class A Common Stock, which have been granted by the
Selling Stockholders in connection with the offerings.
(8) All shares of Class B Common Stock are currently held by the Existing
Stockholders and each such share is convertible at any time into one share
of Class A Common Stock and converts automatically into one share of Class
A Common Stock (i) upon a transfer to a person other than an Existing
Stockholder, and (ii) if the number of shares of Class B Common Stock
becomes less than 10% of the aggregate number of shares of Common Stock
outstanding. See "Description of Capital Stock--Common Stock--Conversion."
[ALTERNATE PAGE FOR RULE 415]
RULE 415 SELLING STOCKHOLDERS
DISTRIBUTOR OPTIONS. Prior to the date of this Prospectus, the Existing
Stockholders will contribute to the Company 1,605,000 shares of the Company's
Class A Common Stock for use in implementing a distributor equity incentive
program. Also prior to the date of this Prospectus, the Company will grant to
NSI 1,605,000 options to purchase such shares (the "Distributor Options").
Each Distributor Option entitles the holder to purchase one share of Class A
Common Stock.
NSI intends to initially allocate the Distributor Options to executive
distributors who have achieved gold or higher executive distributor levels
under the Global Compensation Plan on the date of this Prospectus in each
country where NSI conducts business and where local laws permit the issuance
of options hereunder and in a manner similar to that described below. From
December 1, 1996 the date of this Prospectus until August 31, 1997 (the
"Qualification Period"), existing and new distributors will have the
opportunity to qualify for a reallocation of the Distributor Options from NSI
by achieving gold or higher executive distributor levels under the Global
Compensation Plan as of August 31, 1997 (such qualifying distributors are
hereinafter referred to as "Eligible Distributors"). At the end of the
Qualification Period, each Eligible Distributor will receive Distributor
Options based upon a reallocation of the Distributor Options determined by
multiplying the total number of Distributor Options by the quotient obtained
by dividing (x) the Eligible Distributor's weighted total compensation
(determined in the manner set forth below) under the Global Compensation Plan
during the Qualification Period (the "Weighted Individual Compensation") by
(y) the sum of the Weighted Individual Compensation earned by all Eligible
Distributors under the Global Compensation Plan during the Qualification
Period (the "Weighted Total Compensation"). For purposes of calculating such
quotient, the following weighting factors will be applied to an Eligible
Distributor's compensation to calculate "Weighted Individual Compensation"
according to executive distributor levels:
EXECUTIVE LEVEL
DISTRIBUTOR
EXECUTIVE DISTRIBUTOR LEVEL WEIGHTING FACTOR
--------------------------- ----------------
Hawaiian Blue Diamond..................................... 100%
Blue Diamond.............................................. 94%
Diamond................................................... 86%
Emerald................................................... 82%
Ruby...................................................... 78%
Lapis..................................................... 74%
Gold...................................................... 72%
In addition, for each 1% increase in average monthly
commissions earned during the Qualification Period that is
greater than actual commission earnings during September 1996
(the "Base Month"), the above referenced Weighting Factors will
increase by one third ( 1/3) of 1% up to a maximum increase of
100% (such increase is referred to as the "Growth Weighting
Factor").
For purposes of illustration, for the nine-month period ended on August 31,
1996 (the "Illustrative Qualification Period"), the Weighted Total
Compensation will be assumed to have been $200,000,000. An Emerald level
distributor who earned total commissions of $40,000 (or average monthly
commission of $4,444) during the Illustrative Qualification Period and who had
previously earned commissions of $1,000 during the Base Month, would apply a
weighting factor of 182% to such commissions (computed using the 82% Executive
Distributor Level Weighting Factor for an Emerald level distributor plus a
100% Growth Weighting Factor for the 344% increase in average commissions
during the Illustrative Qualification Period over commissions earned during
the Base Month), resulting in Weighted Individual Compensation of $72,800.
Such distributor's allotment of the Distributor Options would be equal to the
quotient of his or her Weighted Individual Compensation ($72,800) divided by
the Weighted Total Compensation ($200,000,000), multiplied by the total number
of Distributor Options (1,605,000). Such distributor would therefore be
allocated 584 of the Distributor Options.
66
[ALTERNATE PAGE FOR RULE 415]
The foregoing example is presented for illustrative purposes only. There can
be no assurance that the number of Eligible Distributors will remain constant
during the Qualification Period. Given the fixed number of Distributor Options
available, the number of Distributor Options allocable to an Eligible
Distributor will decrease as the total number of Eligible Distributors
increases and conversely will increase as the total number of Eligible
Distributors decreases. NSI has historically experienced periods of
significant fluctuations in its total number of executive distributors and may
experience such fluctuations in the future. An increase in the total number of
Eligible Distributors during the Qualification Period could result in a
material reduction in the number of Distributor Options allocable to an
individual Eligible Distributor. The number of Distributor Options allocable
to an Eligible Distributor will also decrease as the number of Eligible
Distributors at higher executive distributor levels increases as a proportion
of all Eligible Distributors and conversely will increase as the number of
Eligible Distributors at higher executive distributor levels decreases as a
proportion of all Eligible Distributors. There can be no assurance that the
proportion of Eligible Distributors at each executive distributor level will
remain constant during the Qualification Period. In addition, the number of
Distributor Options allocable to an Eligible Distributor will decrease as such
Eligible Distributor's compensation decreases as a proportion of total
compensation paid to all Eligible Distributors and conversely will increase as
such Eligible Distributor's compensation increases as a proportion of total
compensation paid to all Eligible Distributors. There can be no assurance that
an Eligible Distributor's compensation will remain constant as a percentage of
total Eligible Distributor compensation during the Qualification Period.
Further, there can be no assurance that an Eligible Distributor will be able
to earn particular compensation amounts during the Qualification Period.
For Distributor Options to vest, an Eligible Distributor will generally be
required to maintain, during the period from September 1, 1997, through
December 31, 1997 (the "Vesting Period"), the executive level he or she
achieved by the end of the Qualification Period (the "Qualifying Executive
Level"). If an Eligible Distributor fails to maintain the Qualifying Executive
Level for any month during the Vesting Period, the number of Distributor
Options vested in such Eligible Distributor will be recalculated at the end of
the Vesting Period to be that number of Distributor Options such Eligible
Distributor would have been allocated had he or she achieved the lowest
executive distributor level held by him or her during the Vesting Period as of
August 31, 1997 (the "Recalculated Distributor Options"). For example, if an
Eligible Distributor ends the Qualification Period as a Diamond executive
distributor with an Executive Distributor Level Weighting Factor of 86% and a
Growth Weighting Factor of 15%, resulting in a combined weighting factor of
101%, but during the Vesting Period the lowest level to which the distributor
falls is Ruby level, which carries an Executive Distributor Level Weighting
Factor of 78% (the Growth Weighting Factor would remain unchanged) the
combined weighting factor would be reduced to 93%. Therefore, the difference
between the number of Distributor Options allocated to an Eligible Distributor
at the end of the Qualification Period and the Recalculated Distributor
Options, if the amount of Recalculated Distributor Options is lower, will be
forfeited by such Eligible Distributor. If an Eligible Distributor ceases to
be an executive distributor at any time during the Vesting Period, all
Distributor Options held such Eligible Distributor will be immediately
forfeited. Forfeited options will not vest but will revert to NSI.
Distributor Options vested in an Eligible Distributor will become
exercisable on December 31, 1997, and will remain exercisable for a four-year
period following such date provided the Eligible Distributor remains an
executive distributor until the date of exercise. No distributor options will
be exercisable after December 31, 2001. By exercising any portion of the
Distributor Options, each Eligible Distributor who is granted more than 3,000
Distributor Options will agree not to resell in any given six month period
more than 33% of the shares of Class A Common Stock issuable upon exercise of
the Distributor Options originally granted to such Eligible Distributor. Upon
vesting, Distributor Options will be exercisable at 25% of the initial price
per share to the public in the Underwritten Offerings (the "Exercise Price").
By receiving an allocation of Distributor Options at the end of the
Qualification Period, each Eligible Distributor confirms his or her agreement
to continue to resell or consume at least 80% of all products purchased by
such distributor per month. In addition, product returns during the
Qualification or Vesting Periods will reduce commission levels and may affect
distributor levels, consequently impacting the number of Distributor Options
received by an individual distributor. In the event of product returns
occurring after the Qualification or Vesting
66--1
[ALTERNATE PAGE FOR RULE 415]
Periods which would have affected distributor levels, qualification for or
vesting of Distributor Options had such product returns been made during the
Qualification or Vesting Periods, NSI reserves the right to use any mechanism
available to it under the NSI distributor policies and procedures, as may be
amended from time to time, to recoup the value of the Distributor Options
received by an individual distributor on the Vesting Date in excess of the
value of Distributor Options which would have vested had such returns been
made prior to the Vesting Date.
The Distributor Option program is not intended to be an executive
distributor's primary source of income. Even though the exact number of
Distributor Options initially allocated to an individual distributor may
fluctuate materially during the Qualification Period due to increases and
decreases in overall executive distributor activity, an executive
distributor's primary income source, i.e., product sales and commissions, will
continue to be based on the efforts of the executive distributor and
leadership of his or her downline organization.
EMPLOYEE STOCK BONUS AWARDS. Prior to the date of this Prospectus, the
Existing Stockholders will also contribute an aggregate of 1,250,000 shares of
the Company's Class A Common Stock (the "Employee Shares") to NSI and its
affiliates (other than the Company) for use in connection with the employee
stock bonus awards to be made by NSI and its affiliates (other than the
Company) to their respective employees in connection with the 415 Offerings.
The shares of Class A Common Stock underlying each such employee stock bonus
award will be issued to the employee recipient at a rate of 25% per year
commencing one year following the date of the award, provided the employee
recipient is still employed by NSI or one of its affiliates (other than the
Company). The Company also intends to issue 109,000 shares of Class A Common
Stock to its employees in connection with employee stock bonus awards to be
made to the Company's employees on the same terms as described above pursuant
to the Nu Skin Asia Pacific, Inc. 1996 Stock Incentive Plan.
The following table sets forth the names of the Rule 415 Selling
Stockholders for whom Distributor Options and shares of Class A Common Stock
are being registered pursuant to Rule 415 under the 1933 Act, the number of
Distributor Options owned prior to and to be offered in the Rule 415
Offerings, the number of shares of Class A Common Stock owned and to be sold
in the Rule 415 Offerings and the total voting power of such Rule 415 Selling
Stockholders after the Rule 415 Offerings.
CLASS A
COMMON STOCK
-------------------------
TO BE
OWNED AND OWNED
DISTRIBUTOR DISTRIBUTOR TO BE SOLD IN AFTER THE
OPTIONS OPTIONS TO THE RULE 415 RULE 415
PRIOR TO BE OFFERED OFFERINGS(/3/) OFFERINGS
THE RULE 415 IN THE RULE 415 -------------- ----------
RULE 415 SELLING STOCKHOLDERS(/1/) OFFERINGS(/2/) OFFERINGS(/2/) NUMBER NUMBER %
- ---------------------------------- -------------- --------------- -------------- ------ ---
Nu Skin International,
Inc....................
Nu Skin Personal Care
Australia, Inc. .......
Nu Skin New Zealand,
Inc. ..................
Nu Skin Mexico, Inc. ...
Nu Skin Guatemala,
Inc. ..................
Nu Skin Europe, Inc. ...
Nu Skin Netherlands,
B.V. ..................
Nu Skin U.K., Inc. .....
Nu Skin Germany, Inc. ..
Nu Skin Belgium, Inc. ..
Nu Skin France, Inc. ...
Nu Skin Italy, Inc. ....
Nu Skin Spain, Inc. ....
- --------
(1) Each of the Rule 415 Selling Stockholders is an affiliate of the Company
in that each Rule 415 Selling Stockholder is owned by the same individuals
who will own 100% of the Common Stock of the Company following
consummation of the Reorganization and prior to the Rule 415 Offerings.
(2) Consists of options that have been granted by the Company to NSI to
purchase 1,605,000 shares of the Company's Class A Common Stock.
(3) Includes 1,250,000 shares of Class A Common Stock to be awarded by the
Rule 415 Selling Stockholders as employee stock bonus awards.
66--2
[ALTERNATE PAGE FOR RULE 415]
CERTAIN U.S. TAX CONSEQUENCES TO RECIPIENTS OF DISTRIBUTOR OPTIONS AND
EMPLOYEE STOCK BONUS AWARDS. For purposes of the Internal Revenue Code of
1986, as amended, (the "Code"), the Distributor Options will be considered
non-qualified stock options. A recipient (an "Option Recipient") of a non-
qualified stock option recognizes no taxable income and NSI and its
affiliates, other than the Company (the "Option Grantors"), receive no
deduction when a non-qualified stock option is granted. Upon exercise of a
non-qualified stock option, the Option Recipient recognizes ordinary income
and the Option Grantor is entitled to a deduction equal to the difference
between the exercise price and the fair market value of the shares on the date
of exercise. The Option Recipient recognizes as capital gain or loss any
subsequent profit or loss recognized on the sale or exchange of any shares
disposed of or sold. A recipient (an "Employee Stock Bonus Award Recipient")
of restricted stock or contingent stock is not required to include the value
of such shares in income until the first time such Employee Stock Bonus Award
Recipient's rights in the shares are transferable or not subject to
substantial risk of forfeiture, whichever occurs earlier. In the case of
restricted stock or contingent stock, the amount of such ordinary income will
be equal to the excess of the fair market value of the shares at the time the
income is recognized over the amount (if any) paid for the shares. The Company
and NSI and its affiliates, other than the Company (the "Employee Stock Bonus
Award Grantors") are entitled to a deduction, in the amount of the ordinary
income recognized by the Employee Stock Bonus Award Recipient, for the tax
year of the employee in which the Employee Stock Bonus Award Recipient
recognizes such income. Recipients of Distributor Options and employee stock
bonus awards should consult their own tax advisers regarding the U.S. tax
consequences of being awarded a Distributor Option or an employee stock bonus
award. Non-U.S. recipients of Distributor Options and employee stock bonus
awards should consult with their tax advisers regarding the application of the
tax laws of their respective countries to the Distributor Options and employee
stock bonus awards.
NON-U.S. REGULATORY AND TAX CONSIDERATIONS. The Company and its affiliates
anticipate that the Distributor Options, the shares of Class A Common Stock
underlying the Distributor Options and the employee stock bonus awards will be
qualified in same form pursuant to the securities laws of each jurisdiction in
which the Company and its affiliates operate. There can be no assurance,
however, that the Company will be able to qualify the Distribution Options and
the employee stock bonus awards in each jurisdiction or that, if qualified,
the governmental authorities in such jurisdictions will not require material
modifications to the terms of the programs as they are currently contemplated
to be implemented. In addition, there can be no assurance that the laws and
relevant regulations and judicial and administrative interpretations in such
jurisdictions will not change in a manner that has a material impact on the
ability of the Company to adopt or maintain such programs in such
jurisdictions.
Receipt of the Distributor Options, exercise of such options and sale of the
shares of Class A Common Stock underlying such shares of Class A Common Stock
by NSI or its distributors, and receipt of employee stock bonus awards and the
sale of the shares of Class A Common Stock underlying such stock bonus awards,
will have certain material income tax and capital gains tax implications for
the distributors of NSI and the employees of the Company and NSI. Although
this prospectus and related documentation contains certain tax information
relevant to distributors of NSI and employees of the Company and NSI, such
information is only intended to be a summary of certain relevant provisions
and does not address all aspects of tax law that may be relevant to each
distributor and employee based on the individual circumstances of such
distributor and employee in each jurisdiction in which they operate.
Distributors and employees are urged to consult their own tax advisors with
respect to the particular tax consequences to them of the exercise of the
Distribution Options and the purchase, ownership and disposition of the Class
A Common Stock, including the applicability of any federal, state, provincial
or foreign tax laws to which they may be subject as well as with respect to
the possible effects of changes in tax laws in each jurisdiction, including
changes which may be applied retroactively in a manner that could adversely
affect holders of the Class A Common Stock.
66--3
[ALTERNATE PAGE FOR RULE 415]
PLAN OF DISTRIBUTION
DISTRIBUTOR OPTIONS. Prior to the date of this Prospectus, the Company's
Existing Stockholders will contribute to the Company 1,605,000 shares of the
Company's Class A Common Stock for use in implementing a distributor equity
incentive program. Also prior to the date of this Prospectus, the Company will
grant to NSI 1,605,000 options to purchase such shares (the "Distributor
Options"). Each Distributor Option entitles the holder to purchase one share
of Class A Common Stock.
NSI intends to initially allocate the Distributor Options to executive
distributors who have achieved gold or higher executive distributor levels
under the Global Compensation Plan on the date of this Prospectus in each
country where NSI conducts business and where local laws permit the issuance
of options hereunder and in a manner similar to that described below. From
December 1, 1996 until August 31, 1997 (the "Qualification Period"), existing
and new distributors will have the opportunity to qualify for a reallocation
of the Distributor Options from NSI by achieving gold or higher executive
distributor levels under the Global Compensation Plan as of August 31, 1997
(such qualifying distributors are hereinafter referred to as "Eligible
Distributors"). At the end of the Qualification Period, each Eligible
Distributor will receive Distributor Options based upon a reallocation of the
Distributor Options determined by multiplying the total number of Distributor
Options by the quotient obtained by dividing (x) the Eligible Distributor's
weighted total compensation (determined in the manner set forth below) under
the Global Compensation Plan during the Qualification Period (the "Weighted
Individual Compensation") by (y) the sum of the Weighted Individual
Compensation earned by all Eligible Distributors under the Global Compensation
Plan during the Qualification Period (the "Weighted Total Compensation"). For
purposes of calculating such quotient, the following weighting factors (the
"Weighting Factors") will be applied to an Eligible Distributor's compensation
to calculate "Weighted Individual Compensation" according to executive
distributor levels:
EXECUTIVE
DISTRIBUTOR
LEVEL
EXECUTIVE DISTRIBUTOR LEVEL WEIGHTING FACTOR
--------------------------- ----------------
Hawaiian Blue Diamond..................................... 100%
Blue Diamond.............................................. 94%
Diamond................................................... 86%
Emerald................................................... 82%
Ruby...................................................... 78%
Lapis..................................................... 74%
Gold...................................................... 72%
In addition, for each 1% increase in average monthly
commissions earned during the Qualification Period that is
greater than actual commission earnings during September 1996
(the "Base Month"), the above referenced Executive Distributor
Level Weighting Factors will increase by one third ( 1/3) of 1%
up to a maximum increase of 100% (such increase is referred to as
the "Growth Weighting Factor").
For purposes of illustration, for the nine-month period ended on August 31,
1996 (the "Illustrative Qualification Period"), the Weighted Total
Compensation will be assumed to have been $200,000,000. An Emerald level
distributor who earned total commissions of $40,000 (on average monthly
commissions of $4,444) during the Illustrative Qualification Period and who
had previously earned commissions of $1,000 during the Base Month would apply
a weighting factor of 182% to such commissions (computed using the 82%
Executive Distributor Level weighting factor for an Emerald level distributor
plus a 100% Growth Weighting Factor for the 344% increase in average
commissions during the Illustrative Qualification Period over commissions
earned during the Base Month), resulting in Weighted Individual Compensation
of $72,800. Such distributor's allotment of the Distributor Options would be
equal to the quotient of his or her Weighted Individual Compensation ($72,800)
divided by the Weighted Total Compensation ($200,000,000), multiplied by the
total number of Distributor Options (1,605,000). Such distributor would
therefore be allocated 584 of the Distributor Options.
70
[ALTERNATE PAGE FOR RULE 415]
The foregoing example is presented for illustrative purposes only. There can
be no assurance that the number of Eligible Distributors will remain constant
during the Qualification Period. Given the fixed number of Distributor Options
available, the number of Distributor Options allocable to an Eligible
Distributor will decrease as the total number of Eligible Distributors
increases and conversely will increase as the total number of Eligible
Distributors decreases. NSI has historically experienced periods of
significant fluctuations in its total number of executive distributors and may
experience such fluctuations in the future. An increase in the total number of
Eligible Distributors during the Qualification Period could result in a
material reduction in the number of Distributor Options allocable to an
individual Eligible Distributor. The number of Distributor Options allocable
to an Eligible Distributor will also decrease as the number of Eligible
Distributors at higher executive distributor levels increases as a proportion
of all Eligible Distributors and conversely will increase as the number of
Eligible Distributors at higher executive distributor levels decreases as a
proportion of all Eligible Distributors. There can be no assurance that the
proportion of Eligible Distributors at each executive distributor level will
remain constant during the Qualification Period. In addition, the number of
Distributor Options allocable to an Eligible Distributor will decrease as such
Eligible Distributor's compensation decreases as a proportion of total
compensation paid to all Eligible Distributors and conversely will increase as
such Eligible Distributor's compensation increases as a proportion of total
compensation paid to all Eligible Distributors. There can be no assurance that
an Eligible Distributor's compensation will remain constant as a percentage of
total Eligible Distributor compensation during the Qualification Period.
Further, there can be no assurance that an Eligible Distributor will be able
to earn particular compensation amounts during the Qualification Period.
For Distributor Options to vest, an Eligible Distributor will generally be
required to maintain, during the period from September 1, 1997, through
December 31, 1997 (the "Vesting Period"), the executive level he or she
achieved by the end of the Qualification Period (the "Qualifying Executive
Level"). If an Eligible Distributor fails to maintain the Qualifying Executive
Level for any month during the Vesting Period, the number of Distributor
Options vested in such Eligible Distributor will be recalculated at the end of
the Vesting Period to be that number of Distributor Options such Eligible
Distributor would have been allocated had he or she achieved the lowest
executive distributor level held by him or her during the Vesting Period as of
August 31, 1997 (the "Recalculated Distributor Options"). For example, if an
Eligible Distributor ends the Qualification Period as a Diamond executive
distributor with an Executive Distributor Level Weighting Factor of 86% and a
Growth Weighting Factor of 15%, resulting in a combined weighting factor of
101%, but during the Vesting Period the lowest level to which the distributor
falls is Ruby level, which carries an Executive Distributor Level Weighting
Factor of 78% (the Growth Weighting Factor would remain unchanged) the
combined weighting factor would be reduced to 93%. Therefore, the difference
between the number of Distributor Options allocated to an Eligible Distributor
at the end of the Qualification Period and the Recalculated Distributor
Options, if the amount of Recalculated Distributor Options is lower, will be
forfeited by such Eligible Distributor. If an Eligible Distributor ceases to
be an executive distributor at any time during the Vesting Period, all
Distributor Options held such Eligible Distributor will be immediately
forfeited. Forfeited options will not vest but will revert to NSI.
Distributor Options vested in an Eligible Distributor will become
exercisable on December 31, 1997, and will remain exercisable for a four-year
period following such date provided the Eligible Distributor remains an
executive distributor until the date of exercise. No distributor options will
be exercisable after December 31, 2001. By exercising any portion of the
Distributor Options, each Eligible Distributor who is granted more than 3,000
Distributor Options will agree not to resell in any given six-month period
more than 33% of the shares of Class A Common Stock issuable upon exercise of
the Distributor Options originally granted to such Eligible Distributor. Upon
vesting, Distributor Options will be exercisable at 25% of the initial price
per share to the public in the Underwritten Offerings (the "Exercise Price").
By receiving an allocation of Distributor Options at the end of the
Qualification Period, each Eligible Distributor confirms his or her agreement
to continue to resell or consume at least 80% of all products purchased by
such distributor per month. In addition, product returns during the
Qualification or Vesting Periods will reduce commission levels and may affect
pin levels, consequently impacting the number of Distributor Options received
[ALTERNATE PAGE FOR RULE 415]
by an individual distributor. In the event of product returns occurring after
the Qualification or Vesting Periods which would have affected distribution
levels, qualification for or vesting of Distributor Options had such product
returns been made during the Qualification or Vesting Periods, NSI reserves
the right to use any mechanism available to it under the NSI distributor
policies and procedures, as may be amended from time to time, to recoup the
value of the Distributor Options received by an individual distributor on the
Vesting Date in excess of the value of Distributor Options which would have
vested had such returns been made prior to the Vesting Date. If, within one
year after the Vesting Date, the dollar volume of product returns from an
Eligible Distributor and his or her downline distributors exceeds 2% of the
total dollar volume of products purchased by such Eligible Distributor and his
or her downline distributors during the Qualification Period and Vesting
Period, NSI shall have the right (i) to withhold from future commission
payments the aggregate economic value of the Distributor Options received by
the Eligible Distributor as of the Vesting Date (as determined by multiplying
(x) the number of Distributor Options vested in such Eligible Distributor by
(y) the remainder of the fair market value [the closing price of the Company's
Class A Common Stock on the Vesting Date as reported in the Wall Street
Journal] of the shares underlying the Distributor Options less the Exercise
Price) and (ii) to impose any penalties or remedies otherwise available to
NSI, including termination of a distributorship.
The Distributor Option program is not intended to be an executive
distributor's primary source of income. Even though the exact number of
Distributor Options initially allocated to an individual distributor may
fluctuate materially during the Qualification Period due to increases and
decreases in overall executive distributor activity, an executive
distributor's primary income source, i.e., product sales and commissions, will
continue to be based on the efforts of the executive distributor and
leadership of his or her downline organization.
EMPLOYEE STOCK BONUS AWARDS. Prior to the date of this Prospectus, the
Existing Stockholders will also contribute an aggregate of 1,250,000 shares of
the Company's Class A Common Stock (the "Employee Shares") to NSI and its
affiliates (other than the Company) for use in connection with the employee
stock bonus awards to be made by NSI and its affiliates (other than the
Company) to their respective employees in connection with the 415 Offerings.
The shares of Class A Common Stock underlying each such employee stock bonus
award will be issued to the employee recipient at a rate of 25% per year
commencing one year following the date of the award, provided the employee
recipient is still employed by NSI or one of its affiliates (other than the
Company). The Company also intends to issue 109,000 shares of Class A Common
Stock to its employees in connection with employee stock bonus awards to be
made to the Company's employees on the same terms as described above pursuant
to the Nu Skin Asia Pacific, Inc. 1996 Stock Incentive Plan.
The Distributor Options, the shares of Class A Common Stock underlying the
Distributor Options and the employee stock bonus awards are included in this
Prospectus pursuant to Rule 415 under the 1933 Act. The Distributor Options
will be issued pursuant to this Prospectus upon the grant of the Distributor
Options. The shares of Class A Common Stock will be distributed upon exercise
of the Distributor Options and upon grant of the employee stock bonus awards.
See "Rule 415 Selling Stockholders."
This Prospectus may be used from time to time by the holders who offer the
securities registered hereby pursuant to Rule 415 under the 1933 Act for sale
in connection with the Distributor Options and underlying Class A Common
Stock, the employee stock bonus awards or in transactions in which they are or
may be deemed to be underwriters within the meaning of the 1933 Act. The Class
A Common Stock may be sold from time to time directly by the holders or
pledgees, donees, transferees or other successors in interest. Alternatively,
the Class A Common Stock may be offered from time to time by the holders to or
through brokers or dealers who may act solely as agents, or may acquire shares
as principals. The distribution of the Class A Common Stock may be effected in
one or more transactions that may take place on the New York Stock Exchange,
including block trades, ordinary broker's transactions, privately negotiated
transactions or through sales to one or more broker/dealers for resale of such
securities as principals, at market prices prevailing at the time of sale, at
prices related to such prevailing market prices or at negotiated prices. Usual
and customary or specifically negotiated
brokerage fees or commissions may be paid by these holders in connection with
such sales. In connection with such sales, the holders and any participating
brokers or dealers may be deemed "underwriters" as such term is defined in the
1933 Act. The Company has agreed to bear, except as hereinafter set forth, all
expenses (other than underwriting discounts and selling commissions, state and
local transfer taxes, and fees and expenses of counsel or other advisors to
the Selling Stockholders) in connection with the registration of the offered
securities. The Registration Statement of which this Prospectus forms a part
must be current at any time during which a Selling Stockholder sells Class A
Common Stock.
70--3
[ALTERNATE PAGE FOR RULE 415]
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
NO DISTRIBUTOR, DEALER, SALESPERSON OR OTHER INDIVIDUAL HAS BEEN AUTHORIZED TO
GIVE ANY INFORMATION OR TO MAKE ANY REPRESENTATIONS, OTHER THAN THOSE CONTAINED
IN THE PROSPECTUS, IN CONNECTION WITH THE OFFERING DESCRIBED HEREIN, AND, IF
GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATIONS MUST NOT BE RELIED UPON AS
HAVING BEEN AUTHORIZED BY THE COMPANY OR THE RULE 415 SELLING STOCKHOLDERS.
THIS PROSPECTUS DOES NOT CONSTITUTE AN OFFER TO SELL, OR A SOLICITATION OF AN
OFFER TO BUY, THE CLASS A COMMON STOCK IN ANY JURISDICTION WHERE, OR TO ANY
PERSON TO WHOM, IT IS UNLAWFUL TO MAKE SUCH OFFER OR SOLICITATION. NEITHER THE
DELIVERY OF THIS PROSPECTUS NOR ANY SALE MADE HEREUNDER SHALL, UNDER ANY
CIRCUMSTANCES, CREATE AN IMPLICATION THAT THERE HAS NOT BEEN ANY CHANGE IN THE
FACTS SET FORTH IN THIS PROSPECTUS OR IN THE AFFAIRS OF THE COMPANY SINCE THE
DATE HEREOF.
-----------
TABLE OF CONTENTS
PAGE
----
Prospectus Summary.......................................................
Risk Factors.............................................................
The Reorganization and S Corporation Distribution........................
Use of Proceeds..........................................................
Dividend Policy..........................................................
Capitalization...........................................................
Dilution.................................................................
Selected Combined Financial and other Information........................
Management's Discussion and Analysis of Financial Condition and Results
of Operations...........................................................
Business.................................................................
Management...............................................................
Certain Relationships and Related Transactions...........................
Rule 415 Selling Stockholders............................................
Shares Eligible for Future Sale..........................................
Plan of Distribution.....................................................
Description of Capital Stock.............................................
Certain United States Tax Consequences to Non-United States Holders......
Underwriting.............................................................
Legal Matters............................................................
Experts..................................................................
Additional Information...................................................
Index to Financial Statements............................................
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
1,605,000 OPTIONS
2,964,000 SHARES
[NU SKIN LOGO]
OPTIONS TO PURCHASE
CLASS A COMMON STOCK
CLASS A COMMON STOCK
---------------
PROSPECTUS
---------------
, 1996
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 13. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The estimated expenses of the issuance and distribution, all of which are
payable by the Registrant, are as follows.
SEC Registration Fee............................................. $ 80,406
NASD Fee......................................................... 27,117
Stock Exchange Listing........................................... 109,000
Printing and Engraving........................................... 700,000
Accounting Fees and Expenses..................................... 900,000
Legal Fees and Expenses.......................................... 1,100,000
Blue Sky Fees and Expenses....................................... 15,000
Transfer Agent's Fees and Expenses............................... 10,000
Custodian's Fees and Expenses.................................... 25,000
Miscellaneous Expenses........................................... 39,976
----------
Total........................................................ $3,000,000
==========
- --------
*To be supplied by amendment.
ITEM 14. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Article 10 of the Company's Certificate of Incorporation and Article 5 of
the Company's Bylaws require indemnification to the fullest extent permitted
by Section 145 of DGCL. Section 145 of the DGCL provides that a corporation
may indemnify directors and officers as well as other employees and
individuals against expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred in connection with
specified actions, suits or proceedings, whether civil, criminal,
administrative, or investigative (other than action by or in the right of the
corporation a "derivative action"), if they acted in good faith and in a
manner they reasonably believed to be in or not opposed to the best interests
of the corporation and, with respect to any criminal action or proceeding, had
no reasonable cause to believe their conduct was unlawful. A similar standard
is applicable in the case of derivative actions, except that indemnification
only extends to expenses (including attorneys' fees) incurred in connection
with the defense or settlement of such actions, and the statute requires court
approval before there can be any indemnification where the person seeking
indemnification has been found liable to the corporation. Indemnification
provided by or granted pursuant to Section 145 of the DGCL is not exclusive of
other indemnification that may be granted by a corporation's bylaws, any
agreement, any vote of stockholders or disinterested directors or otherwise.
Article 5 of the Company's Bylaws provides for indemnification consistent with
the requirements of Section 145 of the DGCL. Reference is made to Exhibits 3.1
and 3.2 to this Registration Statement for the complete text of, respectively,
Article 10 of the Company's Certificate of Incorporation and Article 5 of the
Company's Bylaws.
Section 145 of the DGCL also permits a corporation to purchase and maintain
insurance on behalf of directors and officers. Article 10 of the Certificate
of Incorporation and Article 5 of the Company's Bylaws permits it to purchase
such insurance on behalf of its directors and officers.
Article 7 of the Company's Certificate of Incorporation provides for, to the
fullest extent permitted by the DGCL, elimination or limitation of liability
of directors to the Company or its stockholders for breach of fiduciary duty
as a director. Section 102(b)(7) of the DGCL permits a corporation to provide
in its certificate of incorporation that a director of the corporation shall
not be personally liable to the corporation or its stockholders for monetary
damages for breach of fiduciary duties as a director, except for liability (i)
for any breach of a
II-1
director's duty of loyalty to the corporation or its stockholders; (ii) for
acts or omissions not in good faith or which involve international misconduct
or a knowing violation of law; (iii) for improper payment of dividends or
redemptions of shares; or (iv) for any transaction from which the director
derives an improper personal benefit. Reference is made to Exhibit 3.1 to this
Registration Statement for the complete text of Article 7 of the Company's
Certificate of Incorporation.
Reference is made to the form of Purchase Agreement filed as Exhibit 1.1 to
this Registration Statement which provides for the indemnification of the
directors and officers of the Company signing this Registration Statement and
certain controlling persons of the Company against certain liabilities,
including those arising under the 1933 Act, in certain instances by the
Underwriters.
Prior to the consummation of the Offerings, the Company intends to enter
into separate indemnification agreements with each of its directors and
executive officers in order to effectuate the provisions of Article 10 of the
Company's Certificate of Incorporation and Article 5 of the Company's Bylaws.
ITEM 15. RECENT SALES OF UNREGISTERED SECURITIES.
Pursuant to the Reorganization, prior to the Offerings, the shareholders of
Nu Skin Japan, Nu Skin Korea, Nu Skin Taiwan, Nu Skin Hong Kong and Nu Skin
Thailand will contribute their shares of capital stock to the capital of the
Company in a transaction intended to qualify under Section 351 of the Code in
exchange for shares of the Company's Class B Common Stock. This sale is exempt
from registration under Section 4(2) of the 1933 Act. Prior to the
Reorganization, all of the outstanding shares of capital stock of the
Subsidiaries were held by the Selling Stockholders. The Reorganization will
result in each of the Subsidiaries becoming a wholly-owned subsidiary of the
Company.
ITEM 16. EXHIBITS AND FINANCIAL STATEMENTS SCHEDULES.
(a) Exhibits
**1.1 Form of U.S. Purchase Agreement
2.1 Form of Contribution Agreement
*3.1 Amended and Restated Certificate of Incorporation of the Company
*3.2 Amended and Restated Bylaws of the Company
*4.1 Specimen Form of Stock Certificate for Class A Common Stock
*4.2 Specimen Form of Stock Certificate for Class B Common Stock
5.1 Opinion of LeBoeuf, Lamb, Greene & MacRae, L.L.P. regarding legality
of the securities covered by this Registration Statement
*10.1 Form of Indemnification Agreement to be entered into by and among the
Company and certain of its officers and directors
*10.2 Form of Stockholders' Agreement by and among the initial stockholders
of the Company
*10.3 Employment Contract, dated December 12, 1991, by and between Nu Skin
Taiwan and John Chou
*10.4 Employment Agreement, dated May 1, 1993, by and between Nu Skin Japan
and Takashi Bamba
*10.5 Service Agreement, dated January 1, 1996, by and between Nu Skin Korea
and Sung-Tae Han
10.6 Form of Purchase and Sale Agreement between Nu Skin Hong Kong and NSI
+*10.7 Form of Licensing and Sales Agreement between NSI and each Subsidiary
(other than Nu Skin Korea)
10.8 Form of Regional Distribution Agreement between NSI and Nu Skin Hong
Kong
10.9 Form of Wholesale Distribution Agreement between NSI and each
Subsidiary (other than Nu Skin Hong Kong)
10.10 Form of Trademark/Tradename License Agreement between NSI and each
Subsidiary
10.11 Form of Management Services Agreement between NSIMG and each
Subsidiary
+*10.12 Form of Licensing and Sales Agreement between NSI and Nu Skin Korea
*10.13 Form of Independent Distributor Agreement by and between NSI and
Independent Distributors in Hong Kong/Macau
II-2
*10.14 Form of Independent Distributor Agreement by and between NSI and Independent Distributors in Japan
*10.15 Form of Independent Distributor Agreement by and between NSI and Independent Distributors in South
Korea
*10.16 Form of Independent Distributor Agreement by and between NSI and Independent Distributors in Taiwan
*10.17 Nu Skin Asia Pacific, Inc. 1996 Stock Incentive Plan
**10.18 Form of Bonus Incentive Plan for Subsidiary Presidents
10.19 Option Agreement by and between the Company and M. Truman Hunt
*10.20 Form of Mutual Indemnification Agreement by and between the Company and NSI
10.21 Manufacturing Sublicense Agreement, dated July 27, 1995, by and between NSI and Nu Skin Japan
**10.22 Option Agreement by and between the Company and NSI.
**11.1 Statement Regarding Computation of Shares
21.1 Subsidiaries of the Company
23.1 Consent of Price Waterhouse LLP, independent accountants
23.2 Consent of Price Waterhouse LLP, independent accountants
*23.3 Report of Grant Thornton, independent certified public accountants
23.4 Consent of Grant Thornton, independent certified public accountants
23.5 Consent of LeBoeuf, Lamb, Greene & MacRae, L.L.P. (contained in their Opinion filed as exhibit 5.1)
*24 Power of Attorney (included with the signatures in Part II of this Registration Statement)
- --------
*Previously filed.
**To be filed by amendment.
+ Confidential treatment has been requested. The copy filed as an exhibit
omits the information subject to the confidentiality request.
(b) FINANCIAL STATEMENT SCHEDULES
Schedules have been omitted because the information required to be set forth
therein is not applicable or is shown in the financial statements or notes
thereto.
ITEM 17. UNDERTAKINGS
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement;
(i) To include any prospectus required by Section 10(a)(3) of the
1933 Act;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the registration statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high and of the estimated
maximum offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than 20 percent change in
the maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration statement.
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or
any material change to such information in the registration statement;
(2) That, for the purpose of determining any liability under the 1933
Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
II-3
The undersigned Registrant hereby undertakes to provide to the Underwriters
at the closing specified in the Underwriting Agreements, certificates in such
denominations and registered in such names as required by the Underwriters to
permit prompt delivery to each purchaser.
(b) Insofar as indemnification for liabilities arising under the 1933 Act
may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the foregoing provisions, or otherwise, the Registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the 1933 Act and
is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Registrant of expenses
incurred or paid by a director, officer or controlling person of the
Registrant in the successful defense of any action, suit or proceeding) is
asserted by such director, officer or controlling person in connection with
the securities being registered, the Registrant will, unless in the opinion of
its counsel the matter has been settled by controlling precedent, submit to a
court of appropriate jurisdiction on the question whether such indemnification
by it is against public policy as expressed in the 1933 Act and will be
governed by the final adjudication of such issue.
(c) The undersigned Registrant hereby undertakes that:
(1) For purposes of determining any liability under the 1933 Act, the
information omitted from the form of prospectus filed as a part of this
Registration Statement in reliance upon Rule 430A and contained in a form
of prospectus filed by the Registrant pursuant to Rules 424(b)(1) or (4) or
497(h) under the 1933 Act shall be deemed to be part of this Registration
Statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the 1933 Act, each
post-effective amendment that contains a form of prospectus shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
II-4
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
Registrant has duly caused this Amendment No. 2 to the Registration Statement
to be signed on its behalf by the undersigned, thereunto duly authorized, in
the City of Provo, State of Utah on October 24, 1996.
NU SKIN ASIA PACIFIC, INC.
/s/ Steven J. Lund
By: ___________________________
Steven J. Lund
President and Chief
Executive Officer
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Amendment No. 2 to the Registration Statement has been signed below on October
24, 1996 by the following persons in the capacities indicated.
SIGNATURE TITLE DATE
* Chairman of the
- ------------------------------------ Board of Directors October 24,
Blake M. Roney 1996
/s/ Steven J. Lund President and Chief
- ------------------------------------ Executive Officer October 24,
Steven J. Lund and Director 1996
(Principal
Executive Officer)
* Vice President
- ------------------------------------ Finance (Principal October 24,
Corey B. Lindley Financial and 1996
Accounting Officer)
* Director
- ------------------------------------ October 24,
Sandie N. Tillotson 1996
* Director
- ------------------------------------ October 24,
Keith R. Halls 1996
* Director
- ------------------------------------ October 24,
Brooke B. Roney 1996
* Director
- ------------------------------------ October 24,
Kirk V. Roney 1996
II-5
SIGNATURE TITLE DATE
* Director
- ------------------------------------- October 24,
Max E. Esplin 1996
* Director
- ------------------------------------- October 24,
Max L. Pinegar 1996
/s/ Steven J. Lund
*By: ________________________________
Steven J. Lund as
attorney-in-fact for each
of the persons indicated
II-6
INDEX TO EXHIBITS
PAGINATION
BY
SEQUENTIAL
EXHIBIT NUMBERING
NUMBER EXHIBIT DESCRIPTION SYSTEM
------- ------------------- ----------
**1.1 Form of U.S. Purchase Agreement
2.1 Form of Contribution Agreement
*3.1 Amended and Restated Certificate of Incorporation of the
Company
*3.2 Amended and Restated Bylaws of the Company
*4.1 Specimen Form of Stock Certificate for Class A Common
Stock
*4.2 Specimen Form of Stock Certificate for Class B Common
Stock
5.1 Opinion of LeBoeuf, Lamb, Greene & MacRae, L.L.P.
regarding legality of the securities covered by this
Registration Statement
*10.1 Form of Indemnification Agreement to be entered into by
and among the Company and certain of its officers and
directors
*10.2 Form of Stockholders' Agreement by and among the initial
stockholders of the Company
*10.3 Employment Contract, dated December 12, 1991, by and
between Nu Skin Taiwan and John Chou
*10.4 Employment Agreement, dated May 1, 1993, by and between
Nu Skin Japan and Takashi Bamba
*10.5 Service Agreement, dated January 1, 1996, by and between
Nu Skin Korea and Sung-Tae Han
10.6 Form of Purchase and Sale Agreement between Nu Skin Hong
Kong and NSI
+*10.7 Form of Licensing and Sales Agreement between NSI and
each Subsidiary (other than Nu Skin Korea)
10.8 Form of Regional Distribution Agreement between NSI and
Nu Skin Hong Kong
10.9 Form of Wholesale Distribution Agreement between NSI and
each Subsidiary (other than Nu Skin Hong Kong)
10.10 Form of Trademark/Tradename License Agreement between NSI
and each Subsidiary
10.11 Form of Management Services Agreement between NSIMG and
each Subsidiary
+*10.12 Form of Licensing and Sales Agreement between NSI and Nu
Skin Korea
*10.13 Form of Independent Distributor Agreement by and between
NSI and Independent Distributors in Hong Kong/Macau
*10.14 Form of Independent Distributor Agreement by and between
NSI and Independent Distributors in Japan
*10.15 Form of Independent Distributor Agreement by and between
NSI and Independent Distributors in South Korea
*10.16 Form of Independent Distributor Agreement by and between
NSI and Independent Distributors in Taiwan
*10.17 Nu Skin Asia Pacific, Inc. 1996 Stock Incentive Plan
**10.18 Form of Bonus Incentive Plan for Subsidiary Presidents
10.19 Option Agreement, by and between the Company and M.
Truman Hunt
*10.20 Form of Mutual Indemnification Agreement by and between
the Company and NSI
10.21 Manufacturing Sublicense Agreement, dated July 27, 1995,
by and between NSI and Nu Skin Japan
**10.22 Option Agreement by and between the Company and NSI
**11.1 Statement Regarding Computation of Shares
21.1 Subsidiaries of the Company
PAGINATION
BY
SEQUENTIAL
EXHIBIT NUMBERING
NUMBER EXHIBIT DESCRIPTION SYSTEM
------- ------------------- ----------
23.1 Consent of Price Waterhouse LLP, independent accountants
23.2 Consent of Price Waterhouse LLP, independent accountants
*23.3 Report of Grant Thornton, independent certified public
accountants
23.4 Consent of Grant Thornton, independent certified public
accountants
23.5 Consent of LeBoeuf, Lamb, Greene & MacRae, L.L.P.
(contained in their Opinion filed as exhibit 5.1)
*24 Power of Attorney (included with the signatures in Part
II of this Registration Statement)
- --------
* Previously Filed.
**To be filed by amendment.
+ Confidential treatment has been requested. The copy filed as an exhibit omits
the information subject to the confidentiality request.
EXHIBIT 2.1
FORM OF CONTRIBUTION AGREEMENT
================================================================================
CONTRIBUTION AGREEMENT
by and among
NU SKIN ASIA PACIFIC, INC.
and
EACH OF THE PERSONS LISTED ON THE SIGNATURE PAGES HEREOF
Dated ___________, 1996
================================================================================
TABLE OF CONTENTS
Page
----
ARTICLE I DEFINITIONS.................................................................2
ARTICLE II CONTRIBUTION OF THE ASIAN ENTITY SHARES AND
SUBSCRIPTION AND PURCHASE OF THE HOLDING COMPANY SHARES.....................3
2.1 Contribution of the Asian Entity Shares and Subscription and Purchase of the
Holding Company Shares......................................................3
2.2 Closing.....................................................................3
2.3 Delivery of Holding Company Shares..........................................4
2.4 Delivery of Asian Entity Shares.............................................4
ARTICLE III TAX TREATMENT OF THE CONTRIBUTION...........................................4
3.1 Federal Income Tax Treatment of Contributing Stockholders and IPO Public
Stockholders................................................................4
3.2 Federal Income Tax Treatment of the Holding Company and Asian Entities......5
3.3 Obligations of the Holding Company, Contributing Stockholders and IPO Public
Stockholders................................................................5
3.4 Termination of "S" Corporation Status.......................................5
ARTICLE IV REPRESENTATIONS AND WARRANTIES..............................................5
4.1 Representations and Warranties of Contributing Stockholders.................5
4.1.1 Title to Shares.............................................................5
4.1.2 Conflicts, Consents, etc....................................................6
4.1.3 Intent to Transfer..........................................................6
4.1.4 Not an Investment Company...................................................6
4.2 Representations and Warranties of the Holding Company.......................6
ARTICLE V CONDITIONS PRECEDENT........................................................7
5.1 Conditions to Obligations of Contributing Stockholders and the Holding
Company.....................................................................7
Stockholders and the........................................................7
5.1.1 Representations and Performance by the Contributing Stockholders............7
5.1.2 No Injunction, etc..........................................................7
5.1.3 IPO.........................................................................7
-i-
Page
----
ARTICLE VI MISCELLANEOUS...............................................................7
6.1 Stock Transfer Taxes........................................................7
6.2 Modification; Waiver........................................................7
6.3 Further Actions.............................................................8
6.4 Notices.....................................................................8
6.5 Assignment..................................................................8
6.6 Counterparts................................................................8
6.7 Governing Law...............................................................8
-ii-
CONTRIBUTION AGREEMENT, dated ____________, 1996 (this "Agreement"),
by and among Nu Skin Asia Pacific, Inc., a Delaware corporation (the "Holding
Company"), and each of the persons listed on the signature pages hereof
(collectively, the "Contributing Stockholders").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Contributing Stockholders are, as of the date of this
Agreement, the record and beneficial owners of all of the issued and outstanding
shares of capital stock of each of Nu Skin Hong Kong, Inc., a corporation
organized under the laws of the State of Utah, Nu Skin Japan Company, Limited, a
corporation organized under the laws of Japan and the State of Delaware, Nu Skin
Korea, Inc. a corporation organized under the laws of South Korea and the State
of Delaware, Nu Skin Taiwan, Inc., a corporation organized under the laws of the
State of Utah and Nu Skin Personal Care (Thailand) Limited, a corporation
organized under the laws of Thailand and the State of Delaware (each, an "Asian
Entity" and collectively, the "Asian Entities") as listed in Schedule A hereto
for each Contribution Stockholder;
WHEREAS, the aggregate number of shares of common stock issued and
outstanding of each Asian Entity (collectively, the "Asian Entity Shares") are
as listed in Schedule A hereto;
WHEREAS, the Holding Company was incorporated to become the holding
company for the Asian Entities;
WHEREAS, the Contributing Stockholders wish to contribute the Asian
Entity Shares to the Holding Company solely in exchange for shares of Class B
common stock, par value $.001 per share, of the Holding Company ("Class B Common
Stock"), to effect such holding company structure (the "Contribution");
WHEREAS, immediately after the Contribution, the Contributing
Stockholders will own all of the issued and outstanding shares of Class B Common
Stock of the Holding Company;
WHEREAS, substantially simultaneously with the Contribution, the
Holding Company plans to offer and sell shares of Class A common stock, par
value $.001 per share of the Holding Company ("Class A Common Stock") to the
public through an initial public offering pursuant to an effective registration
statement on Form S-1 (the "IPO") subsequent to the Contribution, which will
constitute a qualified underwriting transaction within the meaning of Treas.
Reg. Section 1.351-1(a)(3); and
WHEREAS, immediately after the Contribution and the IPO, the
Contributing Stockholders and the Persons purchasing Class A common stock
pursuant to the IPO (the
"IPO Public Stockholders") will be treated as a group being in control of the
Holding Company for purposes of Section 351 of the Code;
NOW, THEREFORE, in consideration of the premises and the
representations, warranties and agreements herein contained, the parties hereto
agree as follows:
ARTICLE I
DEFINITIONS
As used herein and in the Schedules hereto, the terms set forth in
this Article I have the respective meanings indicated. Terms defined in the
singular or plural, as the case may be, shall have the same respective meaning
when used in the plural or singular, as the case may be.
Asian Entities: the meaning specified in the first WHEREAS clause of
--------------
this Agreement.
Asian Entity Shares: the meaning specified in the second WHEREAS
-------------------
clause of this Agreement.
Class A Common Stock: the meaning specified in the sixth WHEREAS
--------------------
clause of this Agreement.
Class B Common Stock: the meaning specified in the fourth WHEREAS
--------------------
clause of this Agreement.
Closing: the meaning specified in Section 2.2.
-------
Closing Date: the meaning specified in Section 2.2.
------------
Code: the Internal Revenue Code of 1986, as amended.
----
Commission: the U.S. Securities and Exchange Commission.
----------
Consents: the meaning specified in Section 4.1.2(b).
--------
Contributing Stockholder: the meaning specified in the introductory
------------------------
paragraph of this Agreement.
Contribution: the meaning specified in the fourth WHEREAS clause of
------------
this Agreement.
-2-
Control: the ownership of stock possessing at least 80 percent of the
-------
total combined voting power of all classes of stock entitled to vote and at
least 80 percent of the total number of shares of all other classes of the
corporation.
Holding Company Shares: the Class B Common Stock issued and delivered
----------------------
to the Contributing Stockholders pursuant to this Agreement.
IPO: the meaning specified in the sixth WHEREAS clause of this
---
Agreement.
IPO Public Stockholders: the meaning specified in the seventh WHEREAS
-----------------------
clause of this Agreement.
Lien: the meaning specified in Section 4.1.7.
----
Person: any individual, corporation, partnership, firm, joint venture,
------
unincorporated organization, governmental or regulatory authority or other
entity.
Securities Act: the Securities Act of 1933, as amended.
--------------
ARTICLE II
CONTRIBUTION OF THE ASIAN ENTITY SHARES
AND SUBSCRIPTION AND PURCHASE
OF THE HOLDING COMPANY SHARES
Section 2.1 Contribution of the Asian Entity Shares and Subscription
--------------------------------------------------------
and Purchase of the Holding Company Shares. Subject to all of the terms and
- ------------------------------------------
conditions of this Agreement and in reliance upon the representations and
warranties contained herein, at the Closing provided for in Section 2.2, (i)
each Contributing Stockholder agrees to contribute and transfer, and the Holding
Company agrees to acquire, the number of Asian Entity Shares as set forth
opposite such Contributing Stockholder's name on Schedule A hereto under the
heading "Asian Entity Shares to be Contributed" and (ii) each Contributing
Stockholder agrees to subscribe for and purchase, and the Holding Company agrees
to issue, the number of Holding Company Shares set forth opposite such
Contributing Stockholder's name on Schedule A hereto under the heading "Holding
Company Shares to be Received." The Holding Company shall deliver to each
Contributing Stockholder the certificates for Holding Company Shares as provided
in Section 2.3 and each Contributing Stockholder shall deliver to the Holding
Company certificates for its Asian Entity Shares as provided in Section 2.4.
Section 2.2 Closing. (a) The Closing of the purchase and sale of the
-------
Holding Company Shares contemplated hereby (the "Closing") shall be held at a
time and location to be designated by the Holding Company on the Closing Date.
The "Closing Date" shall be, if the conditions set forth in Article VI have been
satisfied or waived, (i) the date on which the
-3-
IPO closes or (ii) such other date prior to the closing of the IPO as the
Contributing Stockholders and the Holding Company shall mutually agree. The
Closing shall be deemed to have occurred at 12:01 a.m., New York time, on the
Closing Date.
(b) Anything contained in this Agreement to the contrary
notwithstanding, this Agreement may be terminated at any time prior to the
Closing Date:
(i) by the mutual written consent of the Holding Company and
each of the Contributing Stockholders; or
(ii) by the Holding Company if the Closing has not occurred on or
before February 15, 1997.
In the event this Agreement shall be terminated pursuant to this
Section 2.2(b), all further obligations of the parties under this Agreement
(other than Section 6.7) shall terminate without further liability of any party
to this Agreement; provided, however, that nothing herein shall relieve any
-------- -------
party from liability for its willful breach of this Agreement.
Section 2.3 Delivery of Holding Company Shares. At the Closing, the
----------------------------------
Holding Company shall deliver to each Contributing Stockholder, against delivery
of certificates for the Asian Entity Shares to be delivered to the Holding
Company by such Contributing Stockholder hereunder, stock certificates
registered in the name of such Contributing Stockholder and representing the
Holding Company Shares to be issued to such Contributing Stockholder, which
certificates shall bear such legends as are determined to be appropriate by
counsel to the Holding Company.
Section 2.4 Delivery of Asian Entity Shares. At the Closing, each
-------------------------------
Contributing Stockholder shall deliver to the Holding Company, against delivery
of certificates for the Holding Company Shares to be delivered to such
Contributing Stockholder by the Holding Company hereunder, stock certificates
representing the number of Asian Entity Shares as set forth opposite such
Contributing Stockholder's name on Schedule A hereto under the heading "Asian
Entity Shares to be Contributed," duly endorsed in proper form for transfer and
with such other instruments as shall reasonably be required by the Holding
Company to vest fully in the Holding Company all right, title and interest in
and to such Asian Entity Shares free and clear of any Liens.
ARTICLE III
TAX TREATMENT OF THE CONTRIBUTION
Section 3.1 Federal Income Tax Treatment of Contributing Stockholders
---------------------------------------------------------
and IPO Public Stockholders. For Federal income tax purposes, the Contribution
- ---------------------------
and the IPO shall be treated as part of a single integrated transaction
qualifying under Section 351 of the Code, pursuant to which neither the
Contributing Stockholders nor the IPO Public
-4-
Stockholders acquiring their shares of Class A Common Stock through the IPO will
recognize any gain or loss. Under Section 358 of the Code, the basis in the
Class B Common Stock received by the Contributing Stockholders will be equal to
their basis in the stock of the Asian Entities contributed to the Holding
Company, and the basis of the Class A Common Stock in the hands of the IPO
Public Stockholders will be the same as the price paid pursuant to the IPO.
Section 3.2 Federal Income Tax Treatment of the Holding Company and
-------------------------------------------------------
Asian Entities. Neither the Holding Company nor the Asian Entities shall
- --------------
recognize any gain or loss as a result of the Contribution and IPO. No
liabilities will be assumed by the Holding Company under Section 357 of the
Code. The basis of the property transferred to the Holding Company shall be
equal to the basis of such property in the hands of the Contributing
Stockholders and the IPO Public Stockholders immediately prior to the transfer
to the Holding Company.
Section 3.3 Obligations of the Holding Company, Contributing
------------------------------------------------
Stockholders and IPO Public Stockholders. The Contributing Stockholders and the
- ----------------------------------------
IPO Public Stockholders agree to file the information required by Treas. Reg.
Section 1.351-3 for his Federal income tax return for the taxable year in which
the Contribution and IPO occur, and the Holding Company agrees to furnish to
each Contributing Stockholder and each IPO Public Stockholder information
necessary to enable such stockholder to comply with the information reporting
requirements of Treas. Reg. Section 1.351-3.
Section 3.4 Termination of "S" Corporation Status. As a result of
-------------------------------------
the Contribution, the Asian Entities will cease to qualify as "S" corporations
within the meaning of Section 1361(a) of the Code and will become "C"
corporations within the meaning of Section 1361(a)(2) of the Code, which will
join in filing consolidated Federal income tax returns with the Holding Company
as the common parent.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
Section 4.1 Representations and Warranties of Contributing
----------------------------------------------
Stockholders. Each Contributing Stockholder, severally and not jointly,
- ------------
represents and warrants to, and acknowledges and agrees with, the Holding
Company as follows:
Section 4.1.1 Title to Shares. As of the date hereof, such
---------------
Contributing Stockholder is, and as of the Closing Date such Contributing
Stockholder shall be, the record and beneficial owner of and have good and valid
title to the Asian Entity Shares identified on Schedule A hereto as being owned
by such Contributing Stockholder, free and clear of any lien, pledge, charge,
security interest, encumbrance, option or other right or claim with respect
thereto (collectively, "Liens"), except for Liens created by virtue of entering
into this Agreement. Upon the exchange of the Asian Entity Shares for the
Holding Company Shares,
-5-
such Contributing Stockholder shall transfer to the Holding Company good and
valid title to such Asian Entity Shares, free and clear of any Lien.
Section 4.1.2 Conflicts, Consents, etc. (a) Conflicts. The
------------------------- ---------
execution and delivery of this Agreement by such Contributing Stockholder, and
the consummation by such Contributing Stockholder of the transactions
contemplated hereby in the manner contemplated hereby, will not conflict with,
require any consent or other action by any Person under or result in any
violation of, or default under (or any event that, with notice or lapse of time
or both, would constitute a default under) or give rise to any right of
termination, cancellation or acceleration under any provision of (i) any
mortgage, indenture, loan agreement, note, bond, deed of trust, other agreement,
commitment or obligation for the borrowing of money or the obtaining of credit,
lease or other agreement, contract, license, franchise, permit or instrument to
which such Contributing Stockholder is a party or by which it is bound or (ii)
any judgment, order, decree, law, statute, rule or regulation applicable to such
Contributing Stockholder.
(b) Consents. No consent, waiver, approval, authorization, permit,
--------
order, filing, registration or qualification of or with any court, governmental
authority or third party (collectively, "Consents") is required to be obtained
or made by such Contributing Stockholder in connection with the execution and
delivery of this Agreement by such Contributing Stockholder or the consummation
by such Contributing Stockholder of the transactions contemplated hereby in the
manner contemplated hereby.
Section 4.1.3 Intent to Transfer. No Contributing Stockholder has
------------------
any intention or plan, formally or informally, on the date hereof, to transfer
any shares of the Holding Company received in exchange for the Contribution,
except for the transfer of shares of Class A Common Stock pro rata by the
Contributing Stockholders to the Holding Company, Nu Skin International, Inc
and/or their affiliates for use in employee and distributor incentive
plans.
Section 4.1.4 Not an Investment Company. None of the Asian Entities
-------------------------
is an investment company within the meaning of Section 351(e) of the Code and
the Treasury regulations promulgated thereunder.
Section 4.2 Representations and Warranties of the Holding Company.
-----------------------------------------------------
The Holding Company represents and warrants that it is not an investment company
within the meaning of Section 351(e) of the Code and Treasury regulations
promulgated thereunder and that it has no current plan or intention to dispose
of any of the assets contributed to it by the Contributing Stockholders and the
IPO Public Stockholders and intends to cause the Asian Entities to carry on
their active trade or businesses. No liabilities will be assumed by the Holding
Company as part of the Contribution or IPO.
-6-
ARTICLE V
CONDITIONS PRECEDENT
Section 5.1 Conditions to Obligations of Contributing Stockholders
------------------------------------------------------
and the Holding Company. The obligations of each Contributing Stockholder and
- -----------------------
of the Holding Company, as the case may be, under this Agreement to consummate
the transactions contemplated hereby is subject to the fulfillment, at or prior
to the Closing, of the following conditions, any one or more of which may be
waived by such Contributing Stockholder or the Holding Company, as the case may
be, at its sole discretion:
Section 5.1.1 Representations and Performance by the Contributing
---------------------------------------------------
Stockholders. The representations and warranties of each Contributing
- ------------
Stockholder contained in Section 4.1 shall be true and correct as of the date
made and as of the Closing Date as though made at and as of the Closing Date or
as of the date specified therein as though made at and as of such date.
Contributing Stockholders shall have duly performed and complied in all material
respects with all agreements, covenants and conditions required by this
Agreement to be performed or complied with by Contributing Stockholders prior to
or at the Closing.
Section 5.1.2 No Injunction, etc. No injunction, judgment or
-------------------
provision of applicable law or regulation or other order restraining or
prohibiting the consummation of the transactions contemplated by this Agreement
or seeking to prohibit, alter, prevent or materially delay the Closing, shall be
threatened or pending or in effect.
Section 5.1.3 IPO. A registration statement on Form S-1 for the IPO
---
shall have been declared effective by the Commission and the Holding Company and
the underwriters of the IPO shall have agreed on the terms of pricing.
ARTICLE VI
MISCELLANEOUS
Section 6.1 Stock Transfer Taxes. All stock, stamp, transfer
--------------------
registration or similar taxes or duties, if any, resulting from (i) the transfer
of the Holding Company Shares shall be paid by the Holding Company and (ii)
resulting from the transfer of the Asian Entity Shares shall be paid by the
Contributing Stockholders.
Section 6.2 Modification; Waiver. This Agreement may be modified
--------------------
only by a written instrument executed by the parties to this Agreement. Any of
the terms and conditions of this Agreement may be waived in writing at any time
on or prior to the Closing Date by the party entitled to the benefits of such
terms and conditions.
-7-
Section 6.3 Further Actions. Each party shall execute and deliver
---------------
such certificates and other documents and take such other actions as may
reasonably be requested by the other parties in order to consummate or implement
the transactions contemplated by this Agreement.
Section 6.4 Notices. All notices, requests, demands and other
-------
communications under this Agreement shall be in writing and shall be deemed to
have been duly given if delivered, telecopied or mailed, certified or registered
mail, first-class postage paid, return receipt requested, or any other delivery
service with proof of delivery:
if to the Holding Company:
Nu Skin Asia Pacific, Inc.
75 West Center Street
Provo, UT 84601
Attention: Steven J. Lund, President
with a copy to:
LeBoeuf, Lamb, Greene & MacRae, L.L.P.
136 South Main Street
Salt Lake City, UT 84101-1685
Attention: Nolan S. Taylor, Esq.
If to Contributing Stockholders, at their respective addresses set
forth on Schedule A.
or to such other address or to such other person as any party shall have last
designated by notice to the other parties.
Section 6.5 Assignment. This Agreement shall be binding upon and
----------
inure to the benefit of the parties and their respective successors and
permitted assigns, but shall not be assignable, by operation of law or
otherwise, by any party without the prior written consent of the other parties.
Section 6.6 Counterparts. This Agreement may be executed in
------------
counterparts, all of which shall constitute one and the same instrument.
Section 6.7 Governing Law. This Agreement shall be governed by and
-------------
construed in accordance with the internal laws of the State of Utah applicable
to agreements made and to be performed entirely within such State, without
regard to the conflicts of law principles of such State except that, to the
extent applicable, all matters relating specifically to the Holding Company
Shares shall be governed by the laws of Delaware.
-8-
IN WITNESS WHEREOF, this Agreement has been signed by each of the
parties hereto as of the date first above written.
NU SKIN ASIA PACIFIC, INC.
CONTRIBUTING STOCKHOLDERS
By:___________________________ ______________________________
Name: Blake M. Roney
Title:
______________________________
Nedra D. Roney
______________________________
Sandie N. Tillotson
______________________________
Craig S. Tillotson
______________________________
Craig Bryson
______________________________
Steven J. Lund
______________________________
Brooke B. Roney
______________________________
Kirk V. Roney
______________________________
Keith R. Halls
-9-
EXHIBIT 5.1
[Letterhead of LeBoeuf, Lamb, Greene & MacRae]
October 24, 1996
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Re: Registration Statement on Form S-1 (File 333-12073)
of Nu Skin Asia Pacific, Inc. (the "Registration Statement")
------------------------------------------------------------
Dear Ladies and Gentlemen:
We are acting as counsel to Nu Skin Asia Pacific, Inc., a Delaware
corporation the ("Company"), in connection with the proposed issuance and sale
of 12,099,000 shares of the Company's Class A Common Stock, par value $.001 per
share (the "Class A Common Stock"), and 2,000,000 options to purchase shares of
Class A Common Stock pursuant to Amendment No. 2 to the Registration Statement
to be filed with the Securities and Exchange Commission (the "Commission") on
October 24, 1996, as so amended (the "Registration Statement"). Capitalized
terms not otherwise defined herein have the meaning set forth in Amendment No. 2
to the Registration Statement.
We have examined such corporate records, certificates and other documents
as we have considered necessary for the purposes hereof. In such examination,
we have assumed the genuineness of all signatures, the authenticity of all
documents submitted to us as originals, the conformity to the original documents
of all documents submitted to us as copies and the authenticity of the originals
of such copies. As to any facts material to our opinion, we have, when relevant
facts were not independently established, relied upon the aforesaid records,
certificates and documents.
Securities and Exchange Commission
October 24, 1996
Page 2
Based on the foregoing, we are of the opinion that upon the issuance and
delivery of the Class A Common Stock and payment therefor in the manner
described in the Registration Statement and in accordance with the terms of the
U.S. Purchase Agreement (the form of which is filed as Exhibit 1.1 to the
Registration Statement), the International Purchase Agreement and the Japanese
Underwriting Agreement, the Class A Common Stock will be duly authorized,
validly issued, fully paid and nonassessable.
Our opinion set forth herein is limited in all cases to matters arising
under the Delaware General Corporation Law. We consent to the use of this
opinion as an Exhibit to the Registration Statement and to the reference to our
firm under the caption "Legal Matters" in the Prospectus that is a part of the
Registration Statement. In giving such consent, we do not thereby concede that
we are within the category of persons whose consent is required under Section 7
of the Securities Act of 1933, as amended, or the rules and regulations of the
Commission thereunder.
Very truly yours,
/s/ LeBoeuf, Lamb, Greene & MacRae, L.L.P.
------------------------------------------
EXHIBIT 10.6
PURCHASE AND SALE AGREEMENT
BY AND BETWEEN
NU SKIN INTERNATIONAL, INC.
AND
NU SKIN HONG KONG, INC.
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS................................................ 1
1.1 "Agreement"................................................ 1
1.2 "Amended and Restated Distribution Agreement".............. 1
1.3 "AP Region"................................................ 2
1.4 "Closing Date"............................................. 2
1.5 "Existing Distribution Agreement".......................... 2
1.6 "Extended AP Region"....................................... 2
1.7 "NSAP"..................................................... 2
1.8 "Products"................................................. 2
1.9 "Sales Aids"............................................... 2
ARTICLE II PURCHASE AND SALE.......................................... 2
2.1 Grant of License........................................... 2
2.2 License Price.............................................. 2
2.3 Scope of Sale.............................................. 3
2.4 Representations and Warranties of NSI...................... 3
2.5 Limitations on Representations and Warranties.............. 3
ARTICLE III CONDITIONS TO CLOSING...................................... 3
3.1 Conditions to Obligations of NSI........................... 3
(a) License Price.......................................... 3
(b) Amended and Restated Distribution Agreement............ 3
(c) Indemnification Agreement.............................. 3
3.2 Conditions to Obligations of NSHK.......................... 4
(a) Representations and Warranties of NSI.................. 4
(b) Amended and Restated Distribution Agreement............ 4
(c) Indemnification Agreement.............................. 4
(d) Receipt for License Price.............................. 4
ARTICLE IV TERMINATION................................................ 4
4.1 Termination................................................ 4
4.2 Effects of Termination..................................... 4
ARTICLE V CONFIDENTIALITY............................................ 5
ARTICLE VI MISCELLANEOUS.............................................. 5
6.1 Assignment................................................. 5
6.2 Notices.................................................... 5
6.3 Waiver and Delay........................................... 6
6.4 Governing Law and Dispute Resolution....................... 6
6.5 Integrated Contract........................................ 6
i
6.6 Modifications and Amendments............................... 7
6.7 Severability............................................... 7
6.8 Counterparts and Headings.................................. 7
6.9 Specific Performance....................................... 7
ii
This PURCHASE AND SALE AGREEMENT is made this___ day of November, 1996
between Nu Skin International, Inc., a corporation organized under the laws of
the State of Utah, U.S.A. (hereinafter "NSI"), and Nu Skin Hong Kong, Inc., a
corporation organized under the laws of the State of Utah, U.S.A. (hereinafter
"NSHK"). NSI and NSHK shall hereinafter be collectively referred to as the
"Parties."
WITNESSETH
----------
WHEREAS, NSI owns the exclusive right to distribute Products and Sales Aids
(each as hereinafter defined) in the countries of Japan, the Republic of Korea
(Korea), the Republic of China (Taiwan) and Hong Kong (including Macau),
(hereinafter the "AP Region"), which right it licenses to NSHK pursuant to a
Regional Distribution Agreement dated October 1, 1993 and amended on July 12,
1994 (the "Existing Distribution Agreement"); and
WHEREAS, NSI also owns the exclusive right to distribute Products and Sales Aids
in the countries of Thailand, the Philippines, Malaysia, the People's Republic
of China (China), Indonesia, Vietnam and Singapore (hereinafter the "Extended AP
Region"); and
WHEREAS, NSI is willing to sell, and NSHK is willing to purchase, said exclusive
rights to distribute Products and Sales Aids in the Extended AP Region;
NOW THEREFORE, in consideration of the premises, the mutual covenants herein
contained and other good and valuable consideration, the Parties hereto agree as
follows:
ARTICLE I
DEFINITIONS
-----------
As used in this Agreement, the following terms shall have the following
meanings (such meanings to be equally applicable to the singular and plural
forms of the terms defined):
1.1 "AGREEMENT" shall mean this Purchase and Sale Agreement between NSI
and NSHK, as the same may be modified, amended or supplemented from time to
time.
1.2 "AMENDED AND RESTATED DISTRIBUTION AGREEMENT" shall mean the Existing
Distribution Agreement, as amended and restated to reflect the increase in
territory for which
NSHK is granted exclusive rights to distribute Products and Sales Aids to
include the Extended AP Region and to incorporate such other matters to which
the Parties may agree.
1.3 "AP REGION" shall have the meaning assigned thereto in the recitals to
this Agreement.
1.4 "CLOSING DATE" shall mean such date as shall be mutually agreed upon
by NSI and NSHK following the satisfaction or waiver of all conditions to the
obligations of the parties set forth in Article III.
1.5 "EXISTING DISTRIBUTION AGREEMENT" shall have the meaning assigned
thereto in the recitals to this Agreement.
1.6 "EXTENDED AP REGION" shall have the meaning assigned thereto in the
recitals to this Agreement.
1.7 "NSAP" shall mean Nu Skin Asia Pacific, Inc., a Delaware corporation
and the sole stockholder of NSHK.
1.8 "PRODUCTS" shall mean those products, including without limitation,
cosmetics, nutritional products, dietary supplements, vitamins, over-the-counter
drugs, quasi-drugs, drugs and pharmaceutical products that are produced,
manufactured or purchased by NSI for sale or resale, subject to unavailability
due to local regulatory requirements.
1.9 "SALES AIDS" shall mean materials, in whatever form, designed,
approved and produced by NSI to assist in the marketing of the Products.
ARTICLE II
PURCHASE AND SALE
-----------------
2.1 GRANT OF LICENSE. Upon the terms and subject to the conditions
contained in this Agreement, on the Closing Date, NSI shall grant to NSHK, and
NSHK shall accept from NSI, a license (the "License") to act as the exclusive
distributor of products and Sales Aids in the Extended AP Region, on the terms
and conditions, for the term and together with the associated rights and
obligations as set forth in the Amended and Restated Distribution Agreement.
2.2 LICENSE PRICE. NSHK hereby agrees to pay to NSI, and NSI agrees to
accept as payment and consideration for the License, the amount of TWENTY-FIVE
MILLION DOLLARS ($25,000,000) which consists of a $5 million cash payment on the
Closing Date (the "Initial Cash Payment"), a $10 million payment pursuant to a
short-term note due on January 15, 1997 (the "Short Term Note") and a $10
million payment pursuant to a long-term note due on January 15, 1998 (the "Long
Term Note").
-2-
2.3 SCOPE OF SALE. The Parties further understand and agree that by this
grant and acceptance NSHK does not acquire any claim to, or interest in, NSI's
network of independent distributors, distributor lists, sales compensation plan,
copyrights, trademarks, associated know-how, or any other right or interest
owned by NSI and/or which NSI licenses to NSHK, Nu Skin Japan Company, Limited,
Nu Skin Taiwan, Inc. and Nu Skin Korea, Inc. under its Licensing and Sales
Agreements and Trademark/Tradename License Agreement with such entities.
2.4 REPRESENTATIONS AND WARRANTIES OF NSI. As an inducement to NSHK to
enter into this Agreement, NSI hereby represents and warrants to NSHK that it
has not granted, sold conveyed or otherwise transferred to any party any rights
to distribute Products or Sales Aids in the Extended AP Region, except to NSHK
as contemplated by this Agreement and the Amended and Restated Distribution
Agreement. The representations and warranties of NSI contained in this Section
2.4 shall survive the termination of the Agreement.
2.5 LIMITATIONS ON REPRESENTATIONS AND WARRANTIES. Nothing in this
Agreement shall be construed as a representation or warranty by NSI as to the
ability of NSHK to operate in or to otherwise exercise its rights under this
Agreement or the Amended and Restated Distribution Agreement in any country in
the Extended AP Region, pursuant to the laws, regulations and ordinances of such
country.
ARTICLE III
CONDITIONS TO CLOSING
---------------------
3.1 CONDITIONS TO OBLIGATIONS OF NSI. The obligation of NSI to consummate
the transactions contemplated by this Agreement shall be subject to the
fulfillment, at or prior to the Closing Date, of each of the following
conditions:
(a) License Price. NSHK shall have paid, or caused to be paid, the
-------------
Initial Cash Payment and shall have executed and delivered the Short Term
Note and the Long Term Note, each of which shall be in form and substance
satisfactory to NSI.
(b) Amended and Restated Distribution Agreement. NSHK shall have
-------------------------------------------
entered into the Amended and Restated Distribution Agreement with NSI,
which shall be in form and substance satisfactory to NSI.
(c) Indemnification Agreement. NSA shall have entered into a mutual
-------------------------
indemnification agreement with NSI, which shall be in form in substance
satisfactory NSI.
-3-
3.2 CONDITIONS TO OBLIGATIONS OF NSHK. The obligations of NSHK to
consummate the transactions contemplated by this Agreement shall be subject to
the fulfillment, at or prior to the Closing Date, of each of the following
conditions:
(a) Representations and Warranties of NSI. The representations and
-------------------------------------
warranties of NSI contained in Section 2.4 of this Agreement shall have
been true and correct when made and shall be true and correct as of the
Closing Date with the same force and effect as if made as of the Closing
Date.
(b) Amended and Restated Distribution Agreement. NSI shall have
-------------------------------------------
entered into the Amended and Restated Distribution Agreement with NSHK,
which shall be in form and substance satisfactory to NSHK.
(c) Indemnification Agreement. NSI shall have entered into a mutual
-------------------------
indemnification agreement with NSA, which shall be in form and substance
satisfactory to NSHK.
(d) Receipt for License Price. NSHK shall have received a receipt
-------------------------
from NSI for payment of the Initial Cash Payment.
ARTICLE IV
TERMINATION
-----------
4.1 TERMINATION. This Agreement may be terminated at any time prior to
the Closing Date:
(a) by either NSI or NSHK if an initial public offering by NSA of
shares of its Class A Common Stock shall not have occurred by December 31,
1996; or
(b) by the mutual written consent of NSI and NSHK.
4.2 EFFECTS OF TERMINATION. In the event of termination of this Agreement
as provided in Section 4.1, this Agreement shall forthwith become void and there
shall be no liability on the part of either party hereto except (a) as set forth
in Section 2.4 and Article V and (b) that nothing in this Section 4.2 shall
relieve a Party from liability for any breach of this Agreement.
-4-
ARTICLE V
CONFIDENTIALITY
---------------
All trade secrets, proprietary technology, know-how or other non-public or
proprietary business or technical information owned or used by NSI or NSHK and
supplied to or acquired by the other whether in oral or documentary form (the
"Confidential Information") shall be supplied and acquired in confidence and
shall be solely for the use of the receiving party pursuant to this Agreement
and such party shall keep the Confidential Information confidential and shall
not disclose the same, at any time during the term of this Agreement or after
its termination, except to its employees, or to its affiliates, or its
affiliates' employees for the purposes of its business in accordance with this
Agreement and except as may be required by law; provided that if the receiving
party determines that a disclosure is required by law, the receiving party shall
notify the disclosing party in order to give the disclosing party an opportunity
to seek an injunction or otherwise attempt to keep the Confidential Information
confidential. The receiving party shall, at the request of the disclosing party,
destroy or return the Confidential Information without retaining copies if, as
and when this Agreement is terminated or expires. For purposes of this
Agreement, the term "Confidential Information" shall not include information or
documents that (i) become generally available to the public other than as a
result of a disclosure by the receiving party, (ii) was otherwise lawfully
available to the receiving party, or (iii) was generated independently by the
receiving party. The provisions of this Article shall survive termination of
this Agreement.
ARTICLE VI
MISCELLANEOUS
-------------
6.1 ASSIGNMENT. This Agreement shall be binding on and inure to the
benefit of the heirs, successors, assigns and beneficiaries of the Parties;
provided that neither Party may assign this Agreement or any rights or
obligations hereunder, whether by operation of law or otherwise, without the
prior written consent of the other Party's authorized representative. Any such
attempted assignment, without the written consent provided herein, shall be void
and unenforceable.
6.2 NOTICES. All notices, requests and other communications hereunder
shall be in writing and shall be deemed to have been duly given, if delivered by
hand, or if communicated by facsimile, cable or similar electronic means to the
facsimile number or cable identification number as previously provided by each
party to the other, at the time that receipt thereof has been confirmed by
return electronic communication or signal that the message has been received, or
if mailed, ten (10) days after dispatch by registered airmail, postage prepaid,
from any post office addressed as follows:
-5-
If to NSI: Attn: Chief Operating Officer
Nu Skin International, Inc.
75 West Center Street
Provo, Utah 84601
Facsimile No.: (801) 345-5999
If to NSHK: Attn: Regional Legal Counsel
Nu Skin Hong Kong, Inc.
25th Floor, Windsor House
311 Gloucester Road
Causeway Bay, Hong Kong
Facsimile No.: 852-882-7809
Either party may change its facsimile number, cable identification number
or address by a notice given to the other party in the manner set forth above.
6.3 WAIVER AND DELAY. No waiver by either party of any breach or default
in performance by the other party, and no failure, refusal or neglect of either
party to exercise any right, power or option given to it hereunder or to insist
upon strict compliance with or performance of the other party's obligations
under this Agreement, shall constitute a waiver of the provisions of this
Agreement with respect to any subsequent breach thereof or a waiver by either
party of its right at any time thereafter to require exact and strict compliance
with the provisions thereof.
6.4 GOVERNING LAW AND DISPUTE RESOLUTION. This Agreement shall be
governed by and construed in accordance with the laws of the State of Utah,
applicable to contracts made and to be wholly performed within such State. Any
dispute arising out of this Agreement, if not resolved by mutual agreement of
NSI and NSHK within 30 days after written notice of such dispute is given by
NSHK or NSI, as the case may be, shall be resolved through arbitration with the
Utah office and division of the American Arbitration Association ("AAA"). If the
dispute is not resolved within such 30-day period, the Parties shall petition
the AAA to promptly appoint a competent, disinterested person to act as such
arbitrator. Within 30 days after the designation or appointment of such
arbitrator, such arbitrator shall be required to commence the arbitration
proceeding in the state of Utah at a time and place to be fixed by the
arbitrator, who shall so notify NSI and NSHK. Such arbitration proceeding shall
be conducted in accordance with the applicable rules and procedures of the AAA,
and/or as otherwise may be agreed by NSI and NSHK. The decision of the
arbitrator shall be final and binding upon NSI and NSHK and may be enforced in
any court of competent jurisdiction. The expenses and costs of such arbitration
shall be divided and borne equally by NSI and NSHK; provided, that each of NSI
and NSHK shall pay all fees and expenses incurred by it in presenting or
defending against such claim, right or cause of action.
6.5 INTEGRATED CONTRACT. This Agreement constitutes the entire agreement
between the Parties relating to the subject matter hereof and supersedes all
prior or
-6-
contemporaneous negotiations, representations, agreements and understandings
(both oral and written) of the Parties.
6.6 MODIFICATIONS AND AMENDMENTS. No supplement, modification or
amendment of this Agreement shall be binding unless it is in writing and
executed by both of the Parties.
6.7 SEVERABILITY. To the extent that any provision of this Agreement is
(or, in the opinion of counsel mutually acceptable to both parties, would be)
prohibited, judicially invalidated or otherwise rendered unenforceable in any
jurisdiction, such provision shall be deemed ineffective only to the extent of
such prohibition, invalidation or unenforceability in that jurisdiction, and
only within that jurisdiction. Any prohibited, judicially invalidated or
unenforceable provision of this Agreement will not invalidate or render
unenforceable any other provision of this Agreement, nor will such provision of
this Agreement be invalidated or rendered unenforceable in any other
jurisdiction.
6.8 COUNTERPARTS AND HEADINGS. This Agreement may be executed in one or
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument. All headings and captions
are inserted for convenience of reference only and shall not affect the meaning
or interpretation of any provision hereof.
6.9 SPECIFIC PERFORMANCE. The parties acknowledge that it will be
impossible to measure in money the damages to the parties of any failure to
comply with any of the restrictions or obligations imposed by this Agreement,
that every such restriction and obligation is material, an that in the event of
any such failure, the parties will not have an adequate remedy at law or in
damages. Therefore, each party consents to the issuance of an injunction or the
enforcement of other equitable remedies against it at the suit of an aggrieved
party, to compel performance of all the terms of this Agreement, and waives any
defenses to an equitable remedy, including without limitation the defenses of
failure of consideration, breach of any other provision of this Agreement, and
availability of relief in damages.
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed
by their authorized representatives.
NU SKIN INTERNATIONAL, INC. NU SKIN HONG KONG, INC.
_________________________ _________________________
Name: Name:
Title: Title:
-7-
Exhibit 10.8
NSI
NSHK
AMENDED AND RESTATED
REGIONAL DISTRIBUTION AGREEMENT
TABLE OF CONTENTS
-----------------
PAGE
----
ARTICLE I DEFINITIONS........................................................ 2
1.1 "AP Region"........................................................ 2
1.2 "Agreement"........................................................ 2
1.4 "NSAP Authorized Affiliate"........................................ 3
1.5 "NSI Authorized Affiliate"......................................... 3
1.6 "NSI Independent Distributor"...................................... 3
1.7 "NSI".............................................................. 3
1.8 "Products"......................................................... 3
1.9 "Sales Aids"....................................................... 4
1.10 "Trademarks"....................................................... 4
ARTICLE II APPOINTMENT AS EXCLUSIVE WHOLESALE DISTRIBUTOR..................... 4
2.1 Scope.............................................................. 4
2.2 Sub-distributors................................................... 4
2.3 Sales of Products and Sales Aids................................... 5
2.4 NSI Sales in the AP Region......................................... 5
2.5 Sales Outside the AP Region........................................ 5
2.6 AP Region Orders and Inquiries..................................... 5
ARTICLE III GOVERNMENTAL APPROVALS AND REGISTRATIONS........................... 6
ARTICLE IV OBLIGATIONS OF NSHK AS EXCLUSIVE WHOLESALE DISTRIBUTOR IN THE
AP REGION.......................................................... 7
4.1 Marketing and Distribution......................................... 7
4.2 NSHK Operations.................................................... 8
4.3 Management Planning................................................ 9
4.4 NSHK Claims and Representations.................................... 9
4.5 Capitalization..................................................... 9
4.6 Customer Support................................................... 9
ARTICLE V PURCHASE, SALE AND DELIVERY OF PRODUCTS AND SALES AIDS............. 11
5.1 Agreement to Purchase.............................................. 11
5.2 Product Shipment................................................... 12
5.3 Payment Due Date................................................... 12
5.4 Passage of Title and Risk of Loss.................................. 12
5.5 Inspection......................................................... 13
ARTICLE VI PRODUCT AND SALES AIDS PURCHASE PRICES AND TERMS OF PAYMENT........ 14
6.1 Product Availability and Pricing................................... 14
6.2 Payment Method..................................................... 14
ARTICLE VII OBLIGATIONS OF NSI AS SUPPLIER OF PRODUCTS AND SALES AIDS.......... 15
7.1 Product Quality.................................................... 15
7.2 Warranty........................................................... 15
7.3 Delivery........................................................... 16
7.4 Allocation of Expenses............................................. 16
ARTICLE VIII SALE AND MANUFACTURE OF PRODUCTS................................... 17
8.1 Non-Competing Products............................................. 17
8.2 Competing Products................................................. 18
8.3 Discontinued Products.............................................. 18
ARTICLE IX NATURE OF RELATIONSHIP............................................. 19
ARTICLE X TERM............................................................... 19
ARTICLE XI TERMINATION........................................................ 20
ARTICLE XII EFFECT OF TERMINATION.............................................. 21
ARTICLE XIII CONFIDENTIALITY.................................................... 23
ARTICLE XIV INDEMNIFICATION AND INSURANCE...................................... 24
ARTICLE XV NEW COUNTRIES...................................................... 25
ARTICLE XVI MISCELLANEOUS...................................................... 26
16.1 Assignment......................................................... 26
16.2 Notices............................................................ 26
16.3 Waiver and Delay................................................... 27
16.4 Force Majeure...................................................... 27
16.5 Governing Law and Dispute Resolution............................... 28
16.6 Applicability of Post-Effective Laws............................... 29
16.7 Integrated Contract................................................ 29
16.8 Modifications and Amendments....................................... 29
16.9 Severability....................................................... 29
16.10 Counterparts and Headings.......................................... 30
-ii-
AMENDED AND RESTATED REGIONAL DISTRIBUTION AGREEMENT
THIS AMENDED AND RESTATED REGIONAL DISTRIBUTION AGREEMENT is made and
entered this ____ day of November, 1996, by and between Nu Skin International,
Inc., a corporation organized under the laws of the State of Utah, U.S.A.,
(hereinafter "NSI") and Nu Skin Hong Kong, Inc., a corporation organized under
the laws of the State of Utah, U.S.A., (hereinafter "NSHK"). Hereinafter, NSI
and NSHK collectively shall be referred to as the "Parties."
W I T N E S S E T H
- - - - - - - - - -
WHEREAS, NSI is engaged in the design, production and marketing of Products
and Sales Aids (as hereinafter defined) for distribution in international
markets in the AP Region (as hereinafter defined) through a network of
independent distributors; and,
WHEREAS, NSI believes that such activity in the AP Region (as hereinafter
defined) can best be accomplished through the contractual appointment of an
exclusive regional distributor to distribute such Products and Sales Aids in the
AP Region; and,
WHEREAS, NSHK desires, on the terms and conditions hereinafter set forth,
to act as the exclusive regional distributor of Products and Sales Aids in the
AP Region; and,
WHEREAS, NSI is willing, on the terms and conditions hereinafter set forth,
to grant to NSHK the exclusive right to so distribute Products and Sales Aids;
and,
WHEREAS, the Parties entered into a Regional Distribution Agreement on
October 1, 1993 and an Amendment to said agreement on July 12, 1994 (the "Prior
Distribution Agreement"); and,
WHEREAS, the Parties wish to amend and restate the Prior Regional
Distribution Agreement as set forth herein;
NOW, THEREFORE, in consideration of the premises, the mutual covenants
herein contained and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
ARTICLE I
DEFINITIONS
-----------
For the purposes of this Agreement the following words, terms, and phrases
shall have the meaning assigned to them in this Article I, unless the context
otherwise requires or the parties otherwise agree within the terms of this
Agreement:
1.1 "AP REGION" shall mean the countries and regions of Japan, Republic
of China (Taiwan), Hong Kong and Macau, the Republic of Korea (South Korea),
Thailand, Philippines, Malaysia, the People's Republic of China (China),
Indonesia, Vietnam and Singapore.
1.2 "AGREEMENT" shall mean this Amended and Restated Regional
Distribution Agreement between NSI and NSHK (together with any
-2-
exhibits and schedules hereto), as the same may be modified, amended or
supplemented from time to time).
1.3 "EXISTING NSA AFFILIATES" shall mean (i) Nu Skin Japan Company,
Limited, a company duly organized and existing under the laws of Japan and the
state of Delaware, U.S.A.; (ii) Nu Skin Korea, Inc., a company duly organized
and existing under the laws of the Republic of Korea and the state of Delaware,
U.S.A.; (iii) Nu Skin Taiwan, Inc., a company organized and existing under the
laws of the state of Utah, U.S.A. and (iv) NSHK.
1.4 "NSAP AUTHORIZED AFFILIATE" shall mean (1) the Existing NSA
Affiliates; (ii) any current or future affiliate or subsidiary of Nu Skin Asia
Pacific, Inc. ("Nu Skin Asia"); provided that such subsidiary or affiliate shall
--------
enter into a Wholesale Distribution Agreement substantially similar to the
Wholesale Distribution Agreements between (A) each of the existing NSAP
Affiliates and (B) NSHK, each dated as of the date hereof.
1.5 "NSI AUTHORIZED AFFILIATE" shall mean Nu Skin Personal Care
Australia, Inc. and Nu Skin New Zealand, Inc.
1.6 "NSI INDEPENDENT DISTRIBUTOR" shall mean a person or business
entity authorized by contract with NSI to distribute, as an independent
contractor, the Products and Sales Aids in accordance with the terms of such
distribution contract.
1.7 "NSI" shall mean Nu Skin International, Inc., a U.S. corporation,
duly organized and existing under the laws of the State of Utah, U.S.A.
1.8 "PRODUCTS" shall mean those products, including without
limitation, cosmetics, nutritional products, dietary supplements,
-3-
vitamins, over-the-counter drugs, quasi-drugs, drugs and pharmaceutical products
that are produced, manufactured or purchased by NSI for sale or resale, subject
to unavailability due to local regulatory requirements in the AP Region.
1.9 "SALES AIDS" shall mean materials, in whatever form, designed,
approved and produced by NSI to assist in the marketing of the Products in the
AP Region.
1.10 "TRADEMARKS" shall mean those words, symbols, devices, logos, trade
names and company names or a combination thereof used in relation to all
Products and Sales Aids covered by the existing or eventual registrations
thereof in the AP Region.
ARTICLE II
APPOINTMENT AS EXCLUSIVE WHOLESALE DISTRIBUTOR
----------------------------------------------
2.1 SCOPE. NSI hereby appoints and authorizes NSHK as NSI's exclusive
regional distributor, during the term of this Agreement, for the sale and
distribution of Products and Sales Aids in the AP Region, under the Products'
names, logos, and Trademarks, subject to all terms and conditions of this
Agreement, and NSHK hereby accepts such appointment and authorization.
2.2 SUB-DISTRIBUTORS. Except as set forth below, NSHK shall not,
without the prior written approval of NSI, appoint sub-distributors or agents to
promote or distribute Products or Sales Aids inside or outside the AP Region.
NSHK may, without the prior written approval of NSI, appoint an NSA Authorized
Affiliate as a sub-distributor or agent to promote or distribute Products or
Sales Aids in the AP Region; provided that no such appointment of a sub-
--------
-4-
distributor or agent shall relieve NSHK of its obligations hereunder.
2.3 SALES OF PRODUCTS AND SALES AIDS.
2.3(A) NSHK agrees that any distribution of Products or Sales Aids in the
AP Region shall be made only to an NSI Independent Distributor or an NSA
Authorized Affiliate. In addition, NSHK may distribute Products or Sales
Aids outside the AP Region to NSI Authorized Affiliate.
2.3(B) To facilitate sales to NSI Independent Distributors, NSHK shall
have the right to access information regarding such NSI Independent
Distributors in the AP Region on NSI's computer system or as otherwise
recorded or maintained by NSI.
2.4 NSI SALES IN THE AP REGION. NSI agrees not to sell Products or
Sales Aids to any party within the AP Region or to any party outside the AP
Region for delivery within the AP Region, except to NSHK pursuant to the terms
and conditions of this Agreement, unless NSI has received the written consent of
NSHK.
2.5 SALES OUTSIDE THE AP REGION. NSHK agrees that it will not sell
Products or Sales Aids outside the AP Region except as provided in Section
2.3(a) hereof. Further, NSHK shall not promote or solicit customers for Product
or Sales Aids sales outside the AP Region. NSHK shall not establish any facility
outside the AP Region through which orders are solicited or in which inventories
of Products or Sales Aids are stored without NSI's written consent.
2.6 AP REGION ORDERS AND INQUIRIES. The Parties acknowledge that from
time to time inquiries and orders concerning the AP Region will arise. If NSI
receives any order or inquiry concerning
-5-
the sale of Products or Sales Aids in the AP Region, NSI agrees to give prompt
notice of such inquiry or order to NSHK, such notice to include the name and
address of the person making the order or inquiry as well as any other relevant
details regarding such order or inquiry that NSHK shall reasonably request. If
NSHK receives any order or inquiry concerning the sale of Products or Sales Aids
outside the AP Region, NSHK agrees to give NSI prompt notice of such inquiry or
order, such notice to include the name and address of the person making the
order or inquiry, as well as any other relevant details regarding such order or
inquiry that NSI shall reasonably request.
ARTICLE III
GOVERNMENTAL APPROVALS AND REGISTRATIONS
----------------------------------------
3.1 NSHK agrees to obtain, or cause to be obtained, at its sole cost and
expense, any governmental approval and make, or cause to be made, any filings or
notifications required under all applicable laws, regulations and ordinances of
each country in the AP Region to enable this Agreement to become effective, to
enable the Products or Sales Aids to be sold in the AP Region (except as
otherwise provided herein) or to enable any payment pursuant to the provisions
of this Agreement to be made. NSHK agrees to keep NSI informed of the progress
in obtaining all such government approvals.
3.2 Each party agrees to refrain from any action that will cause the
other party to be in violation of any applicable law, regulation, or ordinance
of any jurisdiction in the AP Region or
-6-
the United States or elsewhere or any international convention or bilateral or
multilateral treaty to which any jurisdiction in the AP Region or the United
States is a signatory, including, without limitation, the U.S. Foreign Corrupt
Practices Act of 1977, the U.S. Export Control Laws, and the U.S. Anti-Boycott
laws.
ARTICLE IV
OBLIGATIONS OF NSHK AS EXCLUSIVE WHOLESALE DISTRIBUTOR IN THE
--------------------------------------------------------------
AP REGION
---------
4.1 MARKETING AND DISTRIBUTION. NSHK shall have the following
obligations with respect to marketing and distribution of the Products and Sales
Aids:
4.1(A) To use its best efforts to further the promotion, marketing, sales
and other distribution of the Products and Sales Aids in the AP Region.
4.1(B) To maintain, or cause to be maintained, an adequate and balanced
inventory of Products, Sales Aids, supplies and necessary materials to
promote, market, sell and distribute the Products and Sales Aids in each
country within the AP Region.
4.1(C) To ensure that all inquiries by sub-distributors, NSI Independent
Distributors and customers, including complaints are responded to promptly.
To ensure that all orders are processed and all shipments of Products and
Sales Aids are made within each country in the AP Region in a timely
fashion.
4.1(D) To diligently investigate or cause to be investigated all leads
with potential customers referred to it by NSI.
-7-
4.1(E) To permit NSI to visit NSHK and its sub-distributors and to visit
NSHK's place of business and inspect its inventories, service records,
financial records and other relevant documents.
4.1(F) To maintain, cause to be maintained, or contract to maintain,
adequate personnel, distribution and laboratory facilities dedicated on a
full-time or part-time basis to the quality control and sale of Products,
in compliance with all laws, ordinances and regulations applicable within
each country comprising the AP Region.
4.1(G) To provide, at the request of NSI, a business plan for the term and
in the form and detail reasonably requested by NSI and to update such
business plan as reasonably requested by NSI.
4.1(H) To provide, at the request of NSI, reports of its activities and
sales respecting the Products and Sales Aids in the AP Region in a form and
in such detail and time period as NSI may reasonably require.
4.2 NSHK OPERATIONS. NSHK agrees to maintain, or cause to be
maintained, such facilities and other places of business within each country of
the AP Region necessary to effect the purposes and intentions of this Agreement.
NSHK further agrees to bear all costs and expenses it incurs in the negotiation,
memorialization, execution and performance of all leases, rentals, equipment,
salaries, taxes, licenses, insurance, permits, telephone, telegraph,
promotional, advertising, travel, accounting and legal expenses, relating to
such facilities.
-8-
4.3 MANAGEMENT PLANNING. In order to allow NSI to design and carry out
necessary and reasonable managerial planning for its worldwide business NSHK
shall, in accordance with the schedule required by NSI, advise NSI of the
distribution prices of the Products or Sales Aids to be sold to NSI Independent
Distributors within the AP Region.
4.4 NSHK CLAIMS AND REPRESENTATIONS. NSHK shall not make any promises,
representations, warranties or guarantees respecting the Products, Sales Aids or
the Sales and Compensation Plan, except in accordance with those
representations, warranties or guarantees provided by NSI with respect thereto
and in accordance and compliance with the applicable laws of the countries in
which NSHK distributes Products and Sales Aids.
4.5 CAPITALIZATION. NSHK agrees to capitalize itself adequately and
maintain its operations both on a financially sound basis and in compliance with
all applicable laws, regulations or ordinances covering the operations of such a
business entity within any country in which it may conduct business.
4.6 CUSTOMER SUPPORT. NSHK agrees to cooperate with NSI in dealing
with any NSI Independent Distributor or customer complaints concerning the
Products and Sales Aids and to take any action requested by NSI to solve such
complaints. NSHK also agrees to assist NSI in arranging for any customer
warranty service required by law or required pursuant to the judgment of NSI.
4.7 ALLOCATION OF EXPENSES.
4.7(A) IMPORT LICENSES. To the extent import licenses are required for
the importation of the Products or Sales Aids
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into the countries within the AP Region, NSHK hereby agrees that it will be
responsible for securing and maintaining such import licenses and payment
of all costs and expenses associated therewith.
4.7(B) IMPORT EXPENSES. NSHK agrees that it will be responsible for
payment of all customs duties, excise taxes, similar governmental charges
and levies, and any other charges or expenses related to any Products or
Sales Aids imported into the countries in the AP Region.
4.7(C) FREIGHT. NSHK shall be liable for all freight charges not allocated
to NSI pursuant to Section 7.4(c) hereof.
4.7(D) OTHER EXPENSES. In addition to the costs and expenses described in
clauses (a), (b) and (c) above, NSHK agrees that it will be responsible for
payments of the following expenses, fees and costs, related to the
development and maintenance of the Nu Skin business in the AP Region: (a)
fees and expenses to incorporate operating entities; (b) fees and expenses
for obtaining business licenses and permits; (c) fees, costs and expenses
incurred in drafting and producing required company documentation, Sales
Aids, and other literature such as product catalogs as well as contracts
such as local product purchase agreements; (d) fees and costs incurred in
determining the requirements for, and in actually formulating, and
registering Products, including ascertaining and complying with labeling
and custom\import requirements; (e) expenses and costs related to locating
and establishing office, warehouse and other physical facilities, including
build out,
-10-
furnishings and equipment, as well as negotiation and securing of necessary
leases and permits; (f) all costs and expenses related to hiring a general
manager and staff, and compliance with local labor laws and requirements;
(g) expenses of monitoring, supervising and disciplining NSI Independent
Distributors; provided that such fees, costs or expenses are not allocated
--------
to NSI under Section 7.4(d) herein.
ARTICLE V
PURCHASE, SALE AND DELIVERY OF PRODUCTS AND SALES AIDS
------------------------------------------------------
5.1 AGREEMENT TO PURCHASE. NSHK shall order such quantities of Products
and Sales Aids as it deems necessary to meet its sales requirements within the
AP Region.
5.1(A) Each order shall be in the form of a written and signed Purchase
Order appearing on the official letterhead of NSHK and forwarded directly
to NSI.
5.1(B) Each Purchase Order shall identify the Product(s) or Sales Aids to
be purchased, the country to which such Products or Sales Aids shall be
distributed to ensure shipment and receipt of Products or Sales Aids which
comply with such country's laws and regulation, the quantities thereof, and
the shipment dates therefor.
5.1(C) NSI agrees to accept each Purchase Order for Products or Sales Aids
placed by NSHK pursuant to this Article or placed by an NSAP Authorized
Affiliate or an NSI Authorized Affiliate in each case pursuant to its
Wholesale Distribution Agreement with NSHK and subject to:
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5.1.(C).(I) The availability in NSI's current inventory of the
Product(s) or Sales Aid(s) ordered; and,
5.1.(C).(II) The inability of NSI to perform by reason of force
majeure as defined in Section 16.4 hereof. NSI shall have up to ten
(10) days after receipt of any Purchase Order to accept such Purchase
Order.
Acceptance by NSI shall be in writing, signed by a duly authorized
representative of NSI, and effective upon execution.
5.1(D) NSI agrees that, in determining whether it has sufficient inventory
to fill each Purchase Order, it will treat such Purchase Order on a parity
basis with the orders of all other NSI affiliates.
5.2 PRODUCT SHIPMENT. NSI shall ship all Product(s) and Sales Aids sold
by NSI to NSHK hereunder as NSHK may designate in writing on the Purchase Order.
NSI shall transmit all commercial invoices for the Products and Sales Aids
directly to NSHK by registered airmail, postage prepaid, or any other method
mutually acceptable to the Parties.
5.3 PAYMENT DUE DATE. NSHK shall pay for each shipment of Products and
Sales Aids within sixty (60) days after the date of shipment or the date of
dispatch of a commercial shipping invoice, whichever is later, and shall make
payment for such Products and Sales Aids as provided in Section 6.2 of this
Agreement.
5.4 PASSAGE OF TITLE AND RISK OF LOSS. Title to and risk of loss for
any Product(s) or Sales Aids ordered and shipped pursuant to the terms of this
Article shall remain with NSI until such time
-12-
that the shipment has moved 50 miles into international airspace or waters or at
some point in transit as the parties may agree to in writing, at which time
title and risk of loss passes to NSHK. Shipment shall be made in a commercially
reasonable manner in accordance with standards applicable in the trade and
industry.
5.5 INSPECTION. Within forty-five (45) days following actual receipt of
a shipment of Products or Sales Aids by NSHK or other NSA Authorized Affiliates,
NSHK shall inspect, or cause to be inspected, the Products and Sales Aids and
shall notify NSI in writing, in accordance with Section 16.2, of any defects in
such shipment of Products or Sales Aids. In the event of such notification, NSI
shall make appropriate arrangements, acceptable to NSHK, to replace any such
defective Products or Sales Aids at NSI's sole cost and expense or, failing such
replacement, shall, at the option of NSI, either credit the purchase price of
the defective Products or Sales Aids to NSHK's account or promptly grant NSHK a
cash refund for such purchase price. If NSI is not notified of any defect in a
shipment of Products or Sales Aids within forty-five (45) days after actual
receipt thereof by NSHK or other country of final destination within the AP
Region, then NSHK shall be deemed to have waived its right to claim any defect
in the Products or Sales Aids contained in such shipment; provided that for any
--------
latent or other defect not reasonably discernable upon inspection of the
Products or Sales Aids under the prevailing circumstances NSHK shall have until
forty-five (45) days after discovery of such defect to exercise its rights under
this Section 5.5.
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ARTICLE VI
PRODUCT AND SALES AIDS PURCHASE PRICES AND TERMS OF PAYMENT
-----------------------------------------------------------
6.1 PRODUCT AVAILABILITY AND PRICING. Concurrent with the execution of
this Agreement, NSI has provided NSHK with a listing of the current Products and
Sales Aids and applicable pricing for said Products and Sales Aids (the "Price
List"). NSI reserves the right, from time to time, in its sole discretion to
change the price of all Products and Sales Aids identified on the Price List, or
to remove Products and Sales Aids from and/or add new Products and Sales Aids to
the Price List; provided however, that (i) NSI shall give NSHK at least thirty
-------- -------
(30) days prior written notice of any price change or removal or addition of
Products or Sales Aids; (ii) Product Pricing shall be based on good faith
negotiations and pricing available to other comparably situated NSI affiliates,
subject to local market variances; and (iii) NSI shall thereafter provide NSHK
with a revised Exhibit B incorporating such change.
6.2 PAYMENT METHOD. NSHK shall pay the commercial invoices for Products
and Sales Aids shipped under this Agreement in immediately available funds by
wire transfer to a bank or banks designated by NSI, or by such other means of
payment agreed to by NSI from time to time. All purchases of Products and Sales
Aids will be payable in United States Dollars. Without limiting any of NSI's
other rights and remedies pursuant to this Agreement, amounts not paid within
the time period set forth in the payment provisions herein, shall bear interest
at the prime interest rate as reported in the Wall Street Journal plus two
-------------------
percent (2%) for the full period outstanding.
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ARTICLE VII
OBLIGATIONS OF NSI AS SUPPLIER OF PRODUCTS AND SALES AIDS
---------------------------------------------------------
7.1 PRODUCT QUALITY. NSI shall use its best efforts to maintain and
augment the quality, image and goodwill of the Products and Sales Aids and to
sell to NSHK for resale in the AP Region only Products and Sales Aids that are
consistent with the quality of Products and Sales Aids sold in the United States
of America. NSI and NSHK agree to cooperate to mutually determine the formulae
or ingredients to be used for Products in each market in the AP Region based on
local market regulations and consumer preferences.
7.2 WARRANTY. NSI warrants that the Products and Sales Aids supplied
hereunder shall be merchantable under (and will comply with) the laws and
regulations of the jurisdiction in which distribution of such Product or Sales
Aid is intended; that it will deliver good title thereto and that Products and
Sales Aids will be delivered free from any lawful security interest or other
lien or encumbrance.
7.2(A) NSI's liability for any breach of such warranties shall not exceed
in amount the price of the Products or Sales Aids in respect of which any
breach is claimed. NSI'S WARRANTY STATED HEREIN IS EXPRESSLY IN LIEU OF
ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF
FITNESS FOR A PARTICULAR PURPOSE.
7.2(B) NSI neither assumes nor authorizes any person or entity to assume
for it any other liability in connection with the Products or Sales Aids
supplied hereunder, and there are
-15-
no oral contracts or warranties collateral to or affecting this Agreement.
NSI shall not be liable to NSHK or any third parties for consequential,
special or incidental damages.
7.3 DELIVERY. NSI shall promptly, in accordance with normal and
commercially reasonable delivery schedules in the trade, deliver to NSHK those
Products or Sales Aids for which NSHK places orders in accordance with Article V
hereof.
7.4 ALLOCATION OF EXPENSES.
7.4(A) EXPORT LICENSES. To the extent NSI is required to obtain any
United States or other export licenses to export the Products or Sales Aids
to the AP Region, NSI agrees that it will be responsible for securing and
maintaining all such export licenses and payment of all costs and expenses
associated therewith.
7.4(B) EXPORT EXPENSES. NSI agrees that it will be responsible for
payments of for all customs duties, excise taxes and similar governmental
charges and levies related to the export of the Products or Sales Aids from
the United States of America, or any other jurisdiction.
7.4(C) FREIGHT. NSI shall be liable for reasonable ocean freight and
insurance costs and expenses related to the export of the Products and
Sales Aids from the United States, or any other jurisdiction and delivery
of the Products and Sales Aids to the AP Region as designated in the
purchase order.
7.4(D) OTHER EXPENSES. In addition to the costs and expenses described in
clauses (a), (b) and (c) above, NSI shall pay the following additional
expenses, fees and costs: (a) fees and
-16-
expenses of registering, renewing and protecting Nu Skin trademarks; (b)
fees, costs and expenses incurred in drafting and producing NSI contracts
and literature used in the AP Region such as distributor agreements, sales
compensation plan, policies and procedures, corporate brochures,
introductory booklets or starter kits and international sponsor agreements;
(c) fees, costs and expenses of negotiating and drafting intercompany
agreements relating to NSI's relationship with NSHK; (d) fees, costs and
expenses related to drafting, negotiating and obtaining approval of NSI's
marketing plan as used in the AP Region; (e) costs and expenses incurred in
monitoring and supervising the pre-market activities of distributors, if
any, including any resulting disciplinary actions; (f) the fees, costs and
expenses incurred in drafting, preparing, negotiating, obtaining approval
for any and all property licensed to NSHK under its Licensing and Sales
Agreement with NSI; provided that such fees, costs and expenses are not
--------
allocated to NSHK under Section 4.7 herein.
ARTICLE VIII
SALE AND MANUFACTURE OF PRODUCTS
--------------------------------
8.1 NON-COMPETING PRODUCTS. Nothing contained herein, however, shall
restrict or prohibit NSHK from selling, distributing, manufacturing or causing
to be manufactured products or materials which do not compete directly or
indirectly with the Products and Sales Aids, provided that such other products
do not
-17-
infringe upon any patent, name, Trademark, emblem, trade name, design right,
model or other commercial or industrial property right of NSI.
8.2 COMPETING PRODUCTS. During the term of this Agreement, NSHK shall
not, and shall not authorize a third party to, manufacture, cause to be
manufactured, distribute or sell (i) any products or materials which directly or
indirectly compete with the Products or the Sales Aids or (ii) copies of the
Products, Sales Aids, or other products that might reasonably be deemed under
U.S. or foreign law to be confusingly similar to the Products or Sales Aids, in
each case without the prior written consent of NSI, which consent shall not be
unreasonably withheld.
8.3 DISCONTINUED PRODUCTS. Notwithstanding the foregoing, in the event
NSI shall discontinue the sale of any Product, NSI shall promptly notify NSHK of
such discontinuance and thereafter NSHK or an NSAP Authorized Affiliate may
elect to manufacture or cause to be manufactured such Product; provided that, if
-------------
such discontinued Product competes directly or indirectly with any Product, the
prior written consent of NSI shall be required. If NSHK or an NSAP Authorized
Affiliate elects to so manufacture or cause to be manufactured such discontinued
Product, NSI shall license the formula to such discontinued Product to NSHK or
such NSA Authorized Affiliate on substantially the same terms as set forth in
the Trademark/Tradename License Agreement, dated as of the date hereof, by and
between NSI and NSHK.
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ARTICLE IX
NATURE OF RELATIONSHIP
----------------------
The relationship of NSHK and NSI shall be and at all times remain,
respectively, that of independent contractor and contracting party. Nothing
contained or implied in this Agreement shall be construed to constitute either
party as the legal representative or agent of the other or to constitute or
construe the Parties as partners, joint venturers, co-owners or otherwise as
participants in a joint or common undertaking. Neither Party is authorized to
conclude any contract or agreement or make any commitment, representation or
warranty that binds the other or otherwise act in the name of or on behalf of
the other. The Parties understand and agree that NSI will refrain from
conducting business or engaging in any activity in the AP Region which could be
construed, under the applicable laws and tax regulations, as carrying on or
conducting business in the AP Region.
ARTICLE X
TERM
----
Subject to Article XI hereof, this Agreement shall be for a term ending on
December 31, 2016 provided, however, that this Agreement is subject to
renegotiation after December 31, 2001 in the event that (i) Blake M. Roney,
Nedra D. Roney, Sandie N. Tillotson, Craig Tillotson, Craig Bryson, Steven J.
Lund, Brooke B. Roney, Kirk V. Roney and Keith R. Halls (the "Existing
Stockholders"), or members of their families or trusts or foundations
established by or for the benefit of the Existing
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Stockholders or members of their families on a combined basis no longer
beneficially own a majority of the voting stock of Nu Skin Asia or (ii) the
Existing Stockholders or members of their families, or trusts or foundations
established for the benefit of the Existing Stockholders or members of their
families on a continued basis no longer beneficially own a majority of the
voting stock of NSI.
ARTICLE XI
TERMINATION
-----------
11.1 This Agreement may be terminated by either Party in the following
circumstances immediately or at any time after the occurrence of any of the
following events:
(a) the other Party shall commence any case, proceeding or other action
(i) under any existing or future law of any jurisdiction, domestic or
foreign, relating to bankruptcy, insolvency, reorganization or relief of
debtors, seeking to have an order for relief entered with respect to it, or
seeking to adjudicate it a bankrupt or insolvent, or seeking
reorganization, arrangement, adjustment, winding-up, liquidation,
dissolution, compensation or other relief with respect to it or its debts,
or (b) seeking appointment of a receiver, trustee, custodian or other
similar action; or
(2) there shall be commenced against the other Party any case,
proceeding or other action of a nature referred to in clause (a) above
which (i) results in the entry of an order for relief or any such
adjudication or appointment or (ii) remains
-20-
undismissed, undischarged or unbonded for a period of 90 days. Events
described in clauses (a) and (b) of this Section 11.1 shall be referred to
as a Bankruptcy Event. If a Bankruptcy Event occurs, all amounts owing
under this Agreement shall become immediately due and payable, without any
notice thereof; or
(3) if the other Party causes or allows a judgment in excess of twenty-
five million dollars ($25,000,000) to be entered against it or
involuntarily allows a lien, security interest, or other encumbrance to
attach to its assets which secures an amount in excess of twenty-five
million dollars ($25,000,000).
11.2 This Agreement may be terminated by either Party, if the other Party
is in default in the performance of any material obligation under this Agreement
and such default has not been cured within sixty (60) days after receipt of
written notice of such default by the defaulting party; or
11.3 This Agreement may be terminated by NSI if Nu Skin Asia Pacific
shall no longer own or control a majority of the voting interest in NSJ, with
such termination to take effect thirty (30) days after NSI gives written notice
to NSJ of the occurrence of a change in control and its intention to terminate
this Agreement based thereon.
ARTICLE XII
EFFECT OF TERMINATION
---------------------
12.1 Upon termination of this Agreement, all rights and licenses herein
granted to NSHK shall cease and shall revert to NSI and NSHK shall immediately
cease holding itself out to the public
-21-
as NSI's exclusive wholesale distributor in the AP Region or otherwise represent
that it is associated in any manner with NSI.
12.2 Upon termination of this Agreement, NSI may either (a) deliver, and
NSHK shall pay for, all Products and Sales Aids ordered by NSHK prior to such
termination or (b) cancel, without cost or liability, the order of such Products
or Sales Aids.
12.3 Upon termination of this Agreement, neither party shall be released
from its obligations to pay monies due or to become due to the other party or to
complete any unfulfilled obligations under this Agreement, and each party shall
immediately pay, perform and discharge all debts, obligations and liabilities
hereunder.
12.4 Upon termination of this Agreement for any reason, neither party
shall be liable for any special, indirect, incidental, punitive or consequential
damages, regarding such termination, irrespective of whether such obligations or
liabilities may be contemplated in any law applicable within the AP Region and
or elsewhere, and, except as otherwise provided by applicable law, each party
hereby waives and relinquishes any rights, pursuant to law or otherwise, to any
such damages. The remedies contained herein shall be exclusive.
12.5 The provisions of Article XII, Article XIII and Article XIV, as well
as any other provisions that by their terms so provide, shall survive
termination of this Agreement and continue in full force and effect thereafter.
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ARTICLE XIII
CONFIDENTIALITY
---------------
13.1 All trade secrets, proprietary technology, know-how or other non-
public or proprietary business or technical information owned or used by NSI or
NSHK and supplied to or acquired by the other whether in oral or documentary
form (the "Confidential Information") shall be supplied and acquired in
confidence and shall be solely for the use of the receiving party pursuant to
this Agreement and such party shall keep the Confidential Information
confidential and shall not disclose the same, at any time during the term of
this Agreement or after its termination, except to its employees and to NSA
Authorized Affiliates and to their employees for the purposes of its business in
accordance with this Agreement and except as may be required by law; provided
that if the receiving party determines that a disclosure is required by law, the
receiving party shall notify the disclosing party in order to give the
disclosing party an opportunity to seek an injunction or otherwise attempt to
keep the Confidential Information confidential. The receiving party shall, at
the request of the disclosing party, destroy or return the Confidential
Information without retaining copies if, as and when this Agreement is
terminated or expires. For purposes of this Agreement, the term "Confidential
Information" shall not include information or documents that (i) become
generally available to the public other than as a result of a disclosure by the
receiving party, (ii) was otherwise lawfully available to the receiving party,
or (iii) was
-23-
generated independently by the receiving party. The provisions of this Article
shall survive termination of this Agreement.
ARTICLE XIV
INDEMNIFICATION AND INSURANCE
-----------------------------
14.1 NSI agrees during and after the term of this Agreement to indemnify
and hold harmless NSHK from liability, loss, cost or damage, (including
reasonable attorney's fees) which NSHK may incur as a result of claims, demands
or judgments, of any kind or nature, by anyone whomsoever, arising out of (i) an
alleged or actual defect in the design, manufacture or content of, or any harm
caused by any Products or Sales Aids or the failure of any Product to comply
with all applicable regulatory requirements in the AP Region; or (ii) a claim
that NSI's proprietary information infringes any patent, copyright, trade secret
or other intellectual property right of a third party; provided that NSHK
provides NSI with prompt notice in writing of any such claim or demand and NSHK
cooperates with NSI in the defense or settlement of any such claim or action.
14.2 NSI, at its sole cost and expense, shall obtain and keep in force
during the term of this Agreement, a policy or policies of comprehensive product
liability insurance insuring NSI and NSHK against any liability arising out of
the manufacture, packaging and sale of the Products issued by recognized
insurers. The limits of said insurance shall not, however, limit the liability
of NSI hereunder. Within thirty (30) days following the execution of this
Agreement, NSI shall provide, if requested by NSHK, a certificate
-24-
of insurance, in form and substance satisfactory to NSHK which certificate shall
evidence NSHK as an additional insured under such policy on the same terms and
conditions as NSI is insured. Thereafter, and from time to time, NSI shall
provide to NSHK such assurance of coverage of NSHK with respect to such
insurance policy or policies as NSHK may reasonably request. NSI shall not do or
permit to be done anything which shall invalidate the insurance policy or
policies obtained in accordance with the provisions of this Section 14.2. NSHK
shall also maintain, or cause to be maintained, insurance with one or more
recognized insurers reasonable in coverage and amount in direct proportion and
corresponding to the business to be conducted by NSHK pursuant to this
Agreement. At NSI's request NSHK shall provide NSI with certificates evidencing
such insurance coverage.
14.3 NSHK shall at all times remain fully liable for the performance of
its sub-distributors and/or agents and NSHK hereby agrees to indemnify and hold
harmless NSI from all damages, losses, cost or expenses arising in any manner
from any act or omission on the part of its sub-distributors or agents.
ARTICLE XV
NEW COUNTRIES
-------------
In the event Nu Skin Asia decides to commence operations in any country in
the AP Region in which it is not operating on the date hereof, NSI agrees to
enter into Trademark/Tradename License Agreements and Licensing and Sales
Agreements, and to cause Nu Skin International Management Group, Inc.("NSMG") to
enter into
-25-
management services agreements, with Nu Skin Asia or any NSAP Authorized
Affiliate operating in such country, which agreements shall be substantially
similar to the Trademark/ Tradename License Agreements and Licensing and Sales
Agreements between (a) each of the Existing NSAP Affiliates and (b) NSI and the
management services agreements between (a) each of the Existing NSAP affiliates
and (b) NSMG, each dated as of the date hereof.
ARTICLE XVI
MISCELLANEOUS
-------------
16.1 ASSIGNMENT. This Agreement shall be binding on and inure to the
benefit of the heirs, successors, assigns and beneficiaries of the Parties;
provided that neither Party may assign this Agreement or any rights or
obligations hereunder, whether by operation of law or otherwise, without the
prior written consent of the other Party's authorized representative. Any such
attempted assignment, without the written consent provided herein, shall be void
and unenforceable.
16.2 NOTICES. All notices, requests and other communications hereunder
shall be in writing and shall be deemed to have been duly given, if delivered by
hand, or if communicated by facsimile, cable or similar electronic means to the
facsimile number or cable identification number as previously provided by each
party to the other, at the time that receipt thereof has been confirmed by
return electronic communication or signal that the message has been received, or
if mailed, ten (10) days after dispatch by registered
-26-
airmail, postage prepaid, from any post office addressed as follows:
If to NSI: Attn: Chief Operating Officer
Nu Skin International, Inc.
75 West Center Street
Provo, Utah 84601
Facsimile No.: (801) 345-5999
If to NSHK: Attn: Regional Legal Counsel
Nu Skin Hong Kong, Inc.
25th Floor, Windsor House
311 Gloucester Road
Causeway Bay, Hong Kong
Facsimile No.: 852-882-7809
Either party may change its facsimile number, cable identification number
or address by a notice given to the other party in the manner set forth above.
16.3 WAIVER AND DELAY. No waiver by either party of any breach or
default in performance by the other party, and no failure, refusal or neglect of
either party to exercise any right, power or option given to it hereunder or to
insist upon strict compliance with or performance of the other party's
obligations under this Agreement, shall constitute a waiver of the provisions of
this Agreement with respect to any subsequent breach thereof or a waiver by
either party of its right at any time thereafter to require exact and strict
compliance with the provisions thereof.
16.4 FORCE MAJEURE. The Parties shall not be responsible for failure to
perform hereunder due to force majeure, which shall include, but not be limited
to: fires, floods, riots, strikes, labor disputes, freight embargoes or
transportation delays, shortage of labor, inability to secure fuel, material,
supplies, equipment or power at reasonable prices or on account of shortage
thereof, acts of God or of the public enemy, war or civil
-27-
disturbances, any existing or future laws, rules, regulations or acts of any
government (including any orders, rules or regulations issued by any official or
agency or such government) affecting a party that would delay or prohibit
performance hereunder, or any cause beyond the reasonable control of a party. If
an event of force majeure should occur, the affected party shall promptly give
notice thereof to the other party and such affected party shall use its
reasonable best efforts to cure or correct any such event of force majeure.
16.5 GOVERNING LAW AND DISPUTE RESOLUTION. This Agreement shall be
governed by and construed in accordance with the laws of the State of Utah,
applicable to contracts made and to be wholly performed within such State. Any
dispute arising out of this Agreement, if not resolved by mutual agreement of
NSI and NSHK within 30 days after written notice of such dispute is given by
NSHK or NSI, as the case may be, shall be resolved through arbitration with the
Utah office and division of the American Arbitration Association ("AAA"). If the
dispute is not resolved within such 30-day period, the Parties shall petition
the AAA to promptly appoint a competent, disinterested person to act as such
arbitrator. Within 30 days after the designation or appointment of such
arbitrator, such arbitrator shall be required to commence the arbitration
proceeding in the state of Utah at a time and place to be fixed by the
arbitrator, who shall so notify NSI and NSHK. Such arbitration proceeding shall
be conducted in accordance with the applicable rules and procedures of the AAA,
and/or as otherwise may be agreed by NSI and NSHK. The decision of the
arbitrator shall be
-28-
final and binding upon NSI and NSHK and may be enforced in any court of
competent jurisdiction. The expenses and costs of such arbitration shall be
divided and borne equally by NSI and NSHK; provided, that each of NSI and NSHK
shall pay all fees and expenses incurred by it in presenting or defending
against such claim, right or cause of action.
16.6 APPLICABILITY OF POST-EFFECTIVE LAWS. The Parties agree that
neither the Vienna Convention on the International Sale of Goods nor any such
similar law, treaty or act that becomes effective during the term of this
Agreement shall be applicable to this Agreement or the transactions contemplated
hereunder.
16.7 INTEGRATED CONTRACT. This Agreement constitutes the entire
agreement between the Parties relating to the subject matter hereof and
supersedes all prior or contemporaneous negotiations, representations,
agreements and understandings (both oral and written) of the Parties.
16.8 MODIFICATIONS AND AMENDMENTS. No supplement, modification or
amendment of this Agreement shall be binding unless it is in writing and
executed by both of the Parties.
16.9 SEVERABILITY. To the extent that any provision of this Agreement is
(or, in the opinion of counsel mutually acceptable to both parties, would be)
prohibited, judicially invalidated or otherwise rendered unenforceable in any
jurisdiction, such provision shall be deemed ineffective only to the extent of
such prohibition, invalidation or unenforceability in that jurisdiction, and
only within that jurisdiction. Any prohibited, judicially invalidated or
unenforceable provision of this Agreement will not
-29-
invalidate or render unenforceable any other provision of this Agreement, nor
will such provision of this Agreement be invalidated or rendered unenforceable
in any other jurisdiction.
16.10 COUNTERPARTS AND HEADINGS. This Agreement may be executed in one or
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument. All headings and captions
are inserted for convenience of reference only and shall not affect the meaning
or interpretation of any provision hereof.
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed
by their respective duly authorized representatives in the United States of
America as of the day and the year first above written.
NU SKIN HONG KONG, INC. NU SKIN INTERNATIONAL, INC.
BY:__________________________ BY:__________________________
BLAKE M. RONEY MAX L. PINEGAR
PRESIDENT AND CEO GENERAL MANAGER
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EXHIBIT 10.9
NSHK
NSJ
AMENDED AND RESTATED
WHOLESALE DISTRIBUTION AGREEMENT
TABLE OF CONTENTS
-----------------
PAGE
----
ARTICLE I DEFINITIONS....................................................... 1
1.1 "Agreement"....................................................... 1
1.2 "NSI Independent Distributor"..................................... 1
1.3 "NSI"1
1.4 "Products"........................................................ 2
1.5 "Territory"....................................................... 2
1.6 "Sales Aids"...................................................... 2
1.7 "Trademarks"...................................................... 2
ARTICLE II APPOINTMENT AS EXCLUSIVE WHOLESALE DISTRIBUTOR.................... 2
2.1 Scope............................................................. 2
2.2 Sub-distributors.................................................. 2
2.3 Sales of Products and Sales Aids.................................. 2
2.4 NSHK Sales in the Territory....................................... 3
2.5 Sales Outside the Territory....................................... 3
2.6 Territory Orders and Inquiries.................................... 3
ARTICLE III GOVERNMENTAL APPROVALS AND REGISTRATIONS.......................... 4
ARTICLE IV OBLIGATIONS OF NSJ AS EXCLUSIVE WHOLESALE DISTRIBUTOR
IN THE TERRITORY.................................................. 4
4.1 Marketing and Distribution........................................ 4
4.2 NSJ Operations.................................................... 5
4.3 Pricing Information............................................... 5
4.4 NSJ Claims and Representations.................................... 6
4.5 Capitalization.................................................... 6
4.6 Customer Support.................................................. 6
4.7 Allocation of Expenses............................................ 6
ARTICLE V PURCHASE, SALE AND DELIVERY OF PRODUCTS AND SALES AIDS............ 7
5.1 Agreement to Purchase............................................. 7
5.2 Payment Due Date.................................................. 8
5.3 Passage of Title and Risk of Loss................................. 8
5.4 Inspection........................................................ 9
5.5 Inventory Obsolescence............................................ 9
ARTICLE VI
PRODUCT AND SALES AIDS PURCHASE PRICES AND TERMS OF PAYMENT.................. 10
6.1 Product Availability and Pricing.................................. 10
6.2 Payment Method.................................................... 10
ARTICLE VII OBLIGATIONS OF NSJ AS SUPPLIER OF PRODUCTS AND SALES AIDS......... 10
7.1 Product Formulation............................................... 10
7.2 Warranty.......................................................... 10
7.3 Delivery.......................................................... 11
7.4 Allocation of Expenses............................................ 11
ARTICLE VIII SALE AND MANUFACTURE OF PRODUCTS.................................. 12
8.1 Non-Competing Products............................................ 12
8.2 Competing Products................................................ 12
8.3 Discontinued Products............................................. 12
ARTICLE IX NATURE OF RELATIONSHIP............................................ 13
ARTICLE X TERM.............................................................. 13
ARTICLE XI TERMINATION....................................................... 13
ARTICLE XII EFFECT OF TERMINATION............................................. 15
ARTICLE XIII CONFIDENTIALITY................................................... 16
ARTICLE XIV INDEMNIFICATION AND INSURANCE..................................... 16
ARTICLE XV MISCELLANEOUS..................................................... 17
15.1 Assignment........................................................ 17
15.2 Notices........................................................... 18
15.3 Waiver and Delay.................................................. 18
15.4 Force Majeure..................................................... 19
15.5 Governing Law and Dispute Resolution.............................. 19
15.6 Applicability of Post-Effective Laws.............................. 20
15.7 Integrated Contract............................................... 20
15.8 Modifications and Amendments...................................... 20
15.9 Severability...................................................... 20
15.10 Counterparts and Headings......................................... 21
AMENDED AND RESTATED WHOLESALE DISTRIBUTION AGREEMENT
THIS AMENDED AND RESTATED WHOLESALE DISTRIBUTION AGREEMENT is made and
entered this ____ day of November, 1996, by and between Nu Skin Japan Company,
Limited, a corporation organized under the laws of Japan and the State of
Delaware, U.S.A., (hereinafter "NSJ") and Nu Skin Hong Kong, Inc., a corporation
organized under the laws the State of Utah, U.S.A., (hereinafter "NSHK").
Hereinafter, NSJ and NSHK collectively shall be referred to as the
"Parties."
W I T N E S S E T H
- - - - - - - - - -
WHEREAS, NSI (as hereinafter defined) is engaged in the design, production
and marketing of Products and Sales Aids (as hereinafter defined) for
distribution in international markets through a network of independent
distributors; and,
WHEREAS, NSI has authorized and appointed NSHK as its exclusive regional
distributor of Products and Sales Aids in certain countries in the Asia/Pacific
region (including the Territory (as hereinafter defined)) and desires to appoint
subdistributors in certain of such countries pursuant to Section 2.2 of its
Regional Distribution Agreement with NSI, dated as of the date hereof (the
"Regional Distribution Agreement"); and,
WHEREAS, NSJ desires, on the terms and conditions hereinafter set forth, to
act as the exclusive distributor of NSHK of Products and Sales Aids in the
Territory; and,
WHEREAS, NSHK is willing, on the terms and conditions hereinafter set
forth, to grant to NSJ the exclusive right to so distribute Products and Sales
Aids; and,
WHEREAS, the Parties entered into a Wholesale Distribution Agreement on
November 11, 1993 and an Amendment to said agreement on July 12, 1993 (the
"Prior Distribution Agreement"); and,
WHEREAS, the Parties wish to amend and restate the Prior Wholesale
Distribution Agreement as set forth herein;
NOW, THEREFORE, in consideration of the premises, the mutual covenants
herein contained and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
ARTICLE I
DEFINITIONS
-----------
For the purposes of this Agreement the following words, terms, and phrases
shall have the meaning assigned to them in this Article I, unless the context
otherwise requires or the parties otherwise agree within the terms of this
Agreement:
1.1 "AGREEMENT" shall mean this Amended and Restated Wholesale
Distribution Agreement between NSHK and NSJ (together with any exhibits and
schedules hereto), as the same may be modified, amended or supplemented from
time to time).
1.2 "NSI INDEPENDENT DISTRIBUTOR" shall mean a person or business entity
authorized by contract with NSI to distribute, as an independent contractor, the
Products and Sales Aids in accordance with the terms of such distribution
contract.
1.3 "NSI" shall mean Nu Skin International, Inc., a U.S. corporation,
duly organized and existing under the laws of the State of Utah, U.S.A.
-2-
1.4 "PRODUCTS" shall mean those products, including without limitation,
cosmetics, nutritional products, dietary supplements, vitamins, over-the-counter
drugs, quasi-drugs, drugs and pharmaceutical products that are produced,
manufactured or purchased by NSI for sale or resale, subject to unavailability
due to local regulatory requirements in the Territory.
1.5 "TERRITORY" shall mean the country of Japan.
1.6 "SALES AIDS" shall mean materials, in whatever form, designed,
approved and produced by NSJ to assist in the marketing of the Products in the
Territory.
1.7 "TRADEMARKS" shall mean those words, symbols, devices, logos, trade
names and company names or a combination thereof used in relation to all
Products and Sales Aids covered by the existing or eventual registrations
thereof in the Territory.
ARTICLE II
APPOINTMENT AS EXCLUSIVE WHOLESALE DISTRIBUTOR
----------------------------------------------
2.1 SCOPE. NSHK hereby appoints and authorizes NSJ as NSHK's exclusive
distributor, during the term of this Agreement, for the sale and distribution of
Products and Sales Aids in the Territory, under the Products' names, logos, and
Trademarks, subject to all terms and conditions of this Agreement, and NSJ
hereby accepts such appointment and authorization.
2.2 SUB-DISTRIBUTORS. NSJ shall not, without the prior written approval
of NSHK, appoint sub-distributors or agents to promote or distribute Products or
Sales Aids inside or outside the Territory.
2.3 SALES OF PRODUCTS AND SALES AIDS.
2.3(a) NSJ agrees that any distribution of Products or Sales Aids in the
Territory shall be made only to an NSI Independent Distributor.
-3-
2.3(b) To facilitate sales to NSI Independent Distributors, NSJ shall
have the right to access information regarding such NSI Independent
Distributors in the Territory as provided by NSI to NSHK pursuant to the
Regional Distribution Agreement.
2.4 NSHK SALES IN THE TERRITORY. NSHK agrees not to sell Products or
Sales Aids to any party within the Territory or to any party outside the
Territory for delivery within the Territory, except to NSJ pursuant to the terms
and conditions of this Agreement, unless NSHK has received the written consent
of NSJ.
2.5 SALES OUTSIDE THE TERRITORY. NSJ agrees that it will not sell
Products or Sales Aids outside the Territory. Further, NSJ shall not promote or
solicit customers for Product or Sales Aids sales outside the Territory. NSJ
shall not establish any facility outside the Territory through which orders are
solicited or in which inventories of Products or Sales Aids are stored without
NSHK's written consent.
2.6 TERRITORY ORDERS AND INQUIRIES. The Parties acknowledge that from
time to time inquiries and orders concerning the Territory will arise. If NSHK
receives any order or inquiry concerning the sale of Products or Sales Aids in
the Territory, NSHK agrees to give prompt notice of such inquiry or order to
NSJ, such notice to include the name and address of the person making the order
or inquiry as well as any other relevant details regarding such order or inquiry
that NSJ shall reasonably request. If NSJ receives any order or inquiry
concerning the sale of Products or Sales Aids outside the Territory, NSJ agrees
to give NSHK prompt notice of such inquiry or order, such notice to include the
name and address of the person making the order or inquiry, as well as any other
relevant details regarding such order or inquiry that NSHK shall reasonably
request.
-4-
ARTICLE III
GOVERNMENTAL APPROVALS AND REGISTRATIONS
----------------------------------------
NSJ agrees to obtain, or cause to be obtained, at its sole cost and
expense, any governmental approval and make, or cause to be made, any filings or
notifications required under all applicable laws, regulations and ordinances of
the Territory to enable this Agreement to become effective, to enable the
Products or Sales Aids to be sold in the Territory (except as otherwise provided
herein) or to enable any payment pursuant to the provisions of this Agreement to
be made. NSJ agrees to keep NSHK informed of the progress in obtaining all such
government approvals.
ARTICLE IV
OBLIGATIONS OF NSJ AS EXCLUSIVE WHOLESALE DISTRIBUTOR IN THE
------------------------------------------------------------
TERRITORY
---------
4.1 MARKETING AND DISTRIBUTION. NSJ shall have the following
obligations with respect to marketing and distribution of the Products and Sales
Aids:
4.1(a) To use its best efforts to further the promotion, marketing, sales
and other distribution of the Products and Sales Aids in the Territory.
4.1(b) To maintain, or cause to be maintained, an adequate and balanced
inventory of Products, Sales Aids, supplies and necessary materials to
promote, market, sell and distribute the Products and Sales Aids in each
country within the Territory.
4.1(c) To ensure that all inquiries by sub-distributors, NSI Independent
Distributors and customers, including complaints are responded to promptly.
To ensure that all orders are processed and all shipments of Products and
Sales Aids are made within the Territory in a timely fashion.
-5-
4.1(d) To diligently investigate or cause to be investigated all leads
with potential customers referred to it by NSHK.
4.1(e) To permit NSHK to visit NSJ and its sub-distributors and to visit
NSJ's place of business and inspect its inventories, service records,
financial records and other relevant documents.
4.1(f) To maintain, cause to be maintained, or contract to maintain,
adequate personnel, distribution and laboratory facilities dedicated on a
full-time or part-time basis to the quality control and sale of Products,
in compliance with all laws, ordinances and regulations applicable within
the Territory.
4.1(g) To provide, at the request of NSHK, a business plan for the term
and in the form and detail reasonably requested by NSHK and to update such
business plan as reasonably requested by NSHK.
4.1(h) To provide, at the request of NSHK, reports of its activities and
sales respecting the Products and Sales Aids in the Territory in a form and
in such detail and for such time period as NSHK may reasonably require.
4.2 NSJ OPERATIONS. NSJ agrees to maintain, or cause to be maintained,
such facilities and other places of business within the Territory necessary to
effect the purposes and intentions of this Agreement. NSJ further agrees to
bear all costs and expenses it incurs in the negotiation, memorialization,
execution and performance of all leases, rentals, equipment, salaries, taxes,
licenses, insurance, permits, telephone, telegraph, promotional, advertising,
travel, accounting and legal expenses, relating to such facilities.
4.3 PRICING INFORMATION. At the request of NSHK, NSJ agrees to advise
NSHK of the distribution prices of the Products or Sales Aids to be sold to NSI
Independent Distributors within the Territory.
-6-
4.4 NSJ CLAIMS AND REPRESENTATIONS. NSJ shall not make any promises,
representations, warranties or guarantees respecting the Products, Sales Aids or
the Sales and Compensation Plan, except in accordance with those
representations, warranties or guarantees as provided by NSI with respect
thereto and in accordance and compliance with the applicable laws of the
Territory.
4.5 CAPITALIZATION. NSJ agrees to capitalize itself adequately and
maintain its operations both on a financially sound basis and in compliance with
all applicable laws, regulations or ordinances covering the operations of such a
business entity within any country in which it may conduct business.
4.6 CUSTOMER SUPPORT. NSJ agrees to cooperate with NSHK in dealing with
any NSI Independent Distributor or customer complaints concerning the Products
and the Sales Aids and to take any action requested by NSHK to solve such
complaints. NSJ also agrees to assist NSHK in arranging for any customer
warranty service required by law or required pursuant to the judgment of NSHK.
4.7 ALLOCATION OF EXPENSES.
4.7(a) IMPORT LICENSES. To the extent import licenses are required for
the importation of the Products or Sales Aids into the Territory, NSJ
hereby agrees that it will be responsible for securing and maintaining such
import licenses and payment of all costs and expenses associated therewith.
4.7(b) IMPORT EXPENSES. NSJ agrees that it will be responsible for
payment of all customs duties, excise taxes, similar governmental charges
and levies, and any other charges or expenses related to any Products or
Sales Aids imported into the Territory.
4.7(c) FREIGHT. NSJ shall be liable for all freight charges not
allocated to NSHK pursuant to Section 7.4(c) hereof.
-7-
4.7(d) OTHER EXPENSES. In addition to the costs and expenses described
in clauses (a), (b) and (c) above, NSJ agrees that it will be responsible
for payments of the following expenses, fees and costs, related to the
development and maintenance of the Nu Skin business in the Territory: (a)
fees and expenses to incorporate operating entities; (b) fees and expenses
for obtaining business licenses and permits; (c) fees, costs and expenses
incurred in drafting and producing required company documentation, Sales
Aids, and other literature such as product catalogs as well as contracts
such as local product purchase agreements; (d) fees and costs incurred in
determining the requirements for registering Products, including
ascertaining and complying with labeling and custom\import requirements;
(e) expenses and costs related to locating and establishing office,
warehouse and other physical facilities, including build out, furnishings
and equipment, as well as negotiation and securing of necessary leases and
permits; (f) all costs and expenses related to hiring a general manager and
staff, and compliance with local labor laws and requirements; provided that
--------
fees, costs or expenses are not allocated NSHK.
ARTICLE V
PURCHASE, SALE AND DELIVERY OF PRODUCTS AND SALES AIDS
------------------------------------------------------
5.1 AGREEMENT TO PURCHASE. NSJ shall order such quantities of Products
and Sales Aids as it deems necessary to meet its sales requirements within the
Territory.
5.1(a) Each order shall be in the form of a written and signed Purchase
Order appearing on the official letterhead of NSJ. Each Purchase order
shall be forwarded directly to NSI with a copy to be forwarded
simultaneously therewith to NSHK. NSHK shall review such Purchase Order
-8-
for compliance with the terms of the Regional Distribution Agreement and
for reasonableness of the quantities ordered with forecasted sales of
Products by NSJ. Unless earlier waived, NSHK shall have the right, within
ten (10) days after placement of such Purchase Order, to rescind such
Purchase Order and shall notify NSJ and NSI in writing of its decision to
exercise such rescission rights prior to the expiration of such ten-day
period.
5.1(b) Each Purchase Order shall identify the Product(s) or Sales Aids to
be purchased, the country to which such Products or Sales Aids shall be
distributed to ensure shipment and receipt of Products or Sales Aids which
comply with such country's laws and regulation, the quantities thereof, and
the shipment dates therefor.
5.1(c) NSHK shall use its best efforts to cause NSI to shall accept each
Purchase Order for Products or Sales Aids placed by NSJ pursuant to this
Article and subject to:
5.1.(c).(i) The availability in NSI's current inventory of the
Product(s) or Sales Aid(s) ordered by NSJ; and,
5.1.(c).(ii) The inability of NSI to perform by reason of force
majeure as defined in Section 15.4 hereof; and,
5.2 PAYMENT DUE DATE. NSJ shall pay for each shipment of Products and
Sales Aids within sixty (60) days after the date of arrival or the date of
dispatch of a commercial shipping invoice, whichever is later, and shall make
payment for such Products and Sales Aids as provided in Section 6.2 of this
Agreement.
5.3 PASSAGE OF TITLE AND RISK OF LOSS. Title to and risk of loss for
any Product(s) or Sales Aids ordered and shipped pursuant to the terms of this
Article shall remain with NSHK until their actual delivery to NSJ or its
designed
-9-
agent at the port designated in the Purchase Order or at some point in transit
as the parties may agree to in writing, at which time title and risk of loss
passes to NSJ. Shipment shall be made in a commercially reasonable manner in
accordance with standards applicable in the trade and industry.
5.4 INSPECTION. Within forty-five (45) days following actual receipt of
a shipment of Products or Sales Aids by NSJ, NSJ shall inspect, or cause to be
inspected, the Products and Sales Aids and shall notify NSHK and NSI in writing,
in accordance with Section 15.2, of any defects in such shipment of Products or
Sales Aids. In the event of such notification, NSHK shall make appropriate
arrangements, acceptable to NSJ, to replace any such defective Products or Sales
Aids at NSHK's sole cost and expense or, failing such replacement, shall, at the
option of NSHK, either credit the purchase price of the defective Products or
Sales Aids to NSJ's account or promptly grant NSJ a cash refund for such
purchase price. If NSHK is not notified of any defect in a shipment of Products
or Sales Aids within forty-five (45) days after actual receipt thereof by NSJ,
then NSJ shall be deemed to have waived its right to claim any defect in the
Products or Sales Aids contained in such shipment; provided that for any latent
--------
or other defect not reasonably discernable upon inspection of the Products or
Sales Aids under the prevailing circumstances NSJ shall have until forty-five
(45) days after discovery of such defect to exercise its rights under this
Section 5.5.
5.5 INVENTORY OBSOLESCENCE. In the event and to the extent that
Products or Sales Aids in the possession of NSJ shall, due to the expiration,
change in market conditions, or other reasons not within the control of NSJ,
become nonsaleable, NSHK agreed to credit the original purchase price of such
Products or Sales Aids to NSJ. The ultimate cost and method of disposal of any
such Products and Sales Aids shall be the reseponsibility of NSHK.
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ARTICLE VI
PRODUCT AND SALES AIDS PURCHASE PRICES AND TERMS OF PAYMENT
-----------------------------------------------------------
6.1 PRODUCT AVAILABILITY AND PRICING. Prices to be paid by NSJ to NSHK
for Products and Sales Aids purchased hereunder shall be negotiated and
determined on an arm's length basis and be adjusted from time to time as agreed
by the Parties in writing.
6.2 PAYMENT METHOD. NSJ shall pay the commercial invoices for Products
and Sales Aids shipped under this Agreement in immediately available funds by
wire transfer to a bank or banks designated by NSHK, or by such other means of
payment agreed to by NSHK from time to time. All purchases of Products and
Sales Aids will be payable in Japanese Yen with any exchange rate risk to be
borne by NSHK. Without limiting any of NSHK's other rights and remedies
pursuant to this Agreement, amounts not paid within the time period set forth in
the payment provisions herein shall, bear interest at the prime interest rate as
reported in the Wall Street Journal plus two percent (2%) for the full period
-------------------
outstanding.
ARTICLE VII
OBLIGATIONS OF NSJ AS SUPPLIER OF PRODUCTS AND SALES AIDS
---------------------------------------------------------
7.1 PRODUCT FORMULATION. In consultation with NSI, NSHK and NSJ agree
to cooperate to mutually determine the formulae or ingredients to be used for
Products in the Territory based on local market regulations and consumer
preferences.
7.2 WARRANTY. NSHK warrants that the Products and Sales Aids supplied
hereunder shall be merchantable under (and will comply with) the laws and
regulations of the jurisdiction in which distribution of such Product or Sales
Aid is intended; that it will deliver good title thereto and that Products and
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Sales Aids will be delivered free from any lawful security interest or other
lien or encumbrance.
7.2(a) NSHK's liability for any breach of such warranties shall not
exceed in amount the price of the Products or Sales Aids in respect of
which any breach is claimed. NSHK'S WARRANTY STATED HEREIN IS EXPRESSLY IN
LIEU OF ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED
WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE.
7.2(b) NSHK neither assumes nor authorizes any person or entity to assume
for it any other liability in connection with the Products or Sales Aids
supplied hereunder, and there are no oral contracts or warranties
collateral to or affecting this Agreement. NSHK shall not be liable to NSJ
or any third parties for consequential, special or incidental damages.
7.3 DELIVERY. NSHK shall promptly, in accordance with normal and
commercially reasonable delivery schedules in the trade, deliver to NSJ those
Products or Sales Aids for which NSJ places orders in accordance with Article V
hereof.
7.4 ALLOCATION OF EXPENSES.
7.4(a) EXPORT LICENSES. To the extent NSHK is required to obtain any
United States, Hong Kong or other export licenses to export the Products or
Sales Aids to the Territory, NSHK shall pay all costs and expenses
associated therewith.
7.4(b) EXPORT EXPENSES. NSHK agrees that it will be responsible for
payments of all customs duties, excise taxes and similar governmental
charges and levies related to the export of the Products or Sales Aids from
the United States of America, Hong Kong or any other jurisdiction.
7.4(c) FREIGHT. NSHK shall be liable for reasonable ocean freight and
insurance costs and expenses related to the export of the Products and
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Sales Aids from the United States, Hong Kong or any other jurisdiction and
delivery of the Products and Sales Aids to the Territory as designated in
the purchase order.
ARTICLE VIII
SALE AND MANUFACTURE OF PRODUCTS
--------------------------------
8.1 NON-COMPETING PRODUCTS. Nothing contained herein, however, shall
restrict or prohibit NSJ from selling, distributing, manufacturing or causing to
be manufactured products or materials which do not compete directly or
indirectly with the Products and Sales Aids, provided that such other products
do not infringe upon any patent, name, Trademark, emblem, trade name, design
right, model or other commercial or industrial property right of NSI.
8.2 COMPETING PRODUCTS. During the term of this Agreement, NSJ shall
not, and shall not authorize a third party to, manufacture, cause to be
manufactured, distribute or sell (i) any products or materials which directly or
indirectly compete with the Products or the Sales Aids or (ii) copies of the
Products, Sales Aids, or other products that might reasonably be deemed under
U.S. or foreign law to be confusingly similar to the Products or Sales Aids, in
each case without the prior written consent of NSHK.
8.3 DISCONTINUED PRODUCTS. Notwithstanding the foregoing, in the event
NSHK receives notice from NSI of the discontinuance of the sale of any Product,
NSHK shall promptly notify NSJ of such discontinuance and thereafter NSJ may
elect to manufacture or cause to be manufactured such Product; provided that, if
--------
such discontinued Product competes directly or indirectly with any Product, the
prior written consent of NSI shall be required. If NSJ elects to so manufacture
or cause to be manufactured such discontinued Product, NSHK shall, pursuant to
the terms of the Regional Distribution Agreement, request that NSI license the
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formula to such discontinued Product to NSJ on substantially the same terms as
set forth in the Trademark/Tradename License Agreement, dated as of the date
hereof, by and between NSI and NSJ.
ARTICLE IX
NATURE OF RELATIONSHIP
----------------------
The relationship of NSJ and NSHK shall be and at all times remain,
respectively, that of independent contractor and contracting party. Nothing
contained or implied in this Agreement shall be construed to constitute either
party as the legal representative or agent of the other or to constitute or
construe the Parties as partners, joint venturers, co-owners or otherwise as
participants in a joint or common undertaking. Neither Party is authorized to
conclude any contract or agreement or make any commitment, representation or
warranty that binds the other or otherwise act in the name of or on behalf of
the other.
ARTICLE X
TERM
----
Subject to Article XI hereof, this Agreement shall be for a term ending on
the earlier of December 31, 2016 or the termination of the Regional Distribution
Agreement in accordance with its terms.
ARTICLE XI
TERMINATION
-----------
11.1 This Agreement may be terminated by either Party in the following
circumstances immediately or at any time after the occurrence of any of the
following events:
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(a) the other Party shall commence any case, proceeding or other action
(i) under any existing or future law of any jurisdiction, domestic or
foreign, relating to bankruptcy, insolvency, reorganization or relief of
debtors, seeking to have an order for relief entered with respect to it, or
seeking to adjudicate it a bankrupt or insolvent, or seeking
reorganization, arrangement, adjustment, winding-up, liquidation,
dissolution, compensation or other relief with respect to it or its debts,
or (ii) seeking appointment of a receiver, trustee, custodian or other
similar action; or
(b) there shall be commenced against the other Party any case, proceeding
or other action of a nature referred to in clause (a) above which (i)
results in the entry of an order for relief or any such adjudication or
appointment or (ii) remains undismissed, undischarged or unbonded for a
period of 90 days. Events described in clauses (a) and (b) of this Section
11.1 shall be referred to as a Bankruptcy Event. If a Bankruptcy Event
occurs, all amounts owing under this Agreement shall become immediately due
and payable, without any notice thereof; or
(c) if the other Party causes or allows a judgment in excess of twenty-
five million dollars ($25,000,000) to be entered against it or voluntarily
allows a lien, security interest, or other encumbrance to attach to its
assets which secures an amount in excess of twenty-five million dollars
($25,000,000).
11.2 This Agreement may be terminated by either Party, if the other Party
is in default in the performance of any material obligation under this
Agreement and such default has not been cured within sixty (60) days after
receipt of written notice of such default by the defaulting party.
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ARTICLE XII
EFFECT OF TERMINATION
---------------------
12.1 Upon termination of this Agreement, all rights and licenses herein
granted to NSJ shall cease and shall revert to NSHK and NSJ shall immediately
cease holding itself out to the public as NSHK's exclusive wholesale distributor
in the Territory or otherwise represent that it is associated in any manner with
NSHK.
12.2 Upon termination of this Agreement, NSHK may either (a) deliver, and
NSJ shall pay for, all Products and Sales Aids ordered by NSJ prior to such
termination or (b) cancel, without cost or liability, the order of such Products
or Sales Aids.
12.3 Upon termination of this Agreement, neither party shall be released
from its obligations to pay monies due or to become due to the other party or to
complete any unfulfilled obligations under this Agreement, and each party shall
immediately pay, perform and discharge all debts, obligations and liabilities
hereunder.
12.4 Upon termination of this Agreement for any reason, neither party
shall be liable for any special, indirect, incidental, punitive or consequential
damages, regarding such termination, irrespective of whether such obligations or
liabilities may be contemplated in any law applicable within the Territory and
or elsewhere, and, except as otherwise provided by applicable law, each party
hereby waives and relinquishes any rights, pursuant to law or otherwise, to any
such damages. The remedies contained herein shall be exclusive.
12.5 The provisions of Article XII, Article XIII and Article XIV, as well
as any other provisions that by their terms so provide, shall survive
termination of this Agreement and continue in full force and effect thereafter.
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ARTICLE XIII
CONFIDENTIALITY
---------------
13.1 All trade secrets, proprietary technology, know-how or other
non-public or proprietary business or technical information owned or used by
NSHK or NSJ and supplied to or acquired by the other whether in oral or
documentary form (the "Confidential Information") shall be supplied and acquired
in confidence and shall be solely for the use of the receiving party pursuant to
this Agreement and such party shall keep the Confidential Information
confidential and shall not disclose the same, at any time during the term of
this Agreement or after its termination, except to its employees, or its
affiliates, or its affiliates' employees for the purposes of its business in
accordance with this Agreement and except as may be required by law; provided
that if the receiving party determines that a disclosure is required by law, the
receiving party shall notify the disclosing party in order to give the
disclosing party an opportunity to seek an injunction or otherwise attempt to
keep the Confidential Information confidential. The receiving party shall, at
the request of the disclosing party, destroy or return the Confidential
Information without retaining copies if, as and when this Agreement is
terminated or expires. For purposes of this Agreement, the term "Confidential
Information" shall not include information or documents that (i) become
generally available to the public other than as a result of a disclosure by the
receiving party, (ii) was otherwise lawfully available to the receiving party,
or (iii) was generated independently
-17-
by the receiving party. The provisions of this Article shall survive
termination of this Agreement.
ARTICLE XIV
INDEMNIFICATION AND INSURANCE
-----------------------------
14.1 NSHK agrees during and after the term of this Agreement to indemnify
and hold harmless NSJ from liability, loss, cost or damage, (including
reasonable attorney's fees) which NSJ may incur as a result of claims, demands
or judgments, of any kind or nature, by anyone whomsoever, arising out of (i) an
alleged or actual defect in the design, manufacture or content of, or any harm
caused by any Products or Sales Aids or the failure of any Product to comply
with all applicable regulatory requirements in the Territory; or (ii) a claim
that NSI's proprietary information infringes any patent, copyright, trade secret
or other intellectual property right of a third party; provided that NSJ
provides NSHK with prompt notice in writing of any such claim or demand and NSJ
cooperates with NSHK in the defense or settlement of any such claim or action.
14.2 At all times during and following the terms of this Agreement, NSHK
shall maintain insurance with one or more reputable insurers reasonable in
coverage and amount in direct proportion and corresponding to the business to be
conducted by NSJ pursuant to this Agreement.
14.3 NSJ shall at all times remain fully liable for the performance of
its sub-distributors and/or agents and NSJ hereby agrees to indemnify and hold
harmless NSHK from all damages, losses, cost or expenses arising in any manner
from any act or omission on the part of its sub-distributors or agents.
-18-
ARTICLE XV
MISCELLANEOUS
-------------
15.1 ASSIGNMENT. This Agreement shall be binding on and inure to the
benefit of the heirs, successors, assigns and beneficiaries of the Parties;
provided that neither Party may assign this Agreement or any rights or
obligations hereunder, whether by operation of law or otherwise, without the
prior written consent of the other Party's authorized representative. Any such
attempted assignment, without the written consent provided herein, shall be void
and unenforceable.
15.2 NOTICES. All notices, requests and other communications hereunder
shall be in writing and shall be deemed to have been duly given, if delivered by
hand, or if communicated by facsimile, cable or similar electronic means to the
facsimile number or cable identification number as previously provided by each
party to the other, at the time that receipt thereof has been confirmed by
return electronic communication or signal that the message has been received, or
if mailed, ten (10) days after dispatch by registered airmail, postage prepaid,
from any post office addressed as follows:
If to NSHK: Attn.: Regional Legal Counsel
NuSkin Hong Kong, Inc.
25th Floor, Windsor House
311 Gloucester Road
Causeway Bay, Hong Kong
Facsimile No.: 852-882-7809
If to NSJ: Attn.: General Manager
Nu Skin Japan Company, Limited
Shinjuku I-Land Tower, 23rd Floor
6-5-1 Nishishinjuku, Shinjuku-ku
Tokyo, Japan, 163-13
Facsimile No.: 813-5321-3799
Either party may change its facsimile number, cable identification number
or address by a notice given to the other party in the manner set forth above.
-19-
15.3 WAIVER AND DELAY. No waiver by either party of any breach or
default in performance by the other party, and no failure, refusal or neglect of
either party to exercise any right, power or option given to it hereunder or to
insist upon strict compliance with or performance of the other party's
obligations under this Agreement, shall constitute a waiver of the provisions of
this Agreement with respect to any subsequent breach thereof or a waiver by
either party of its right at any time thereafter to require exact and strict
compliance with the provisions thereof.
15.4 FORCE MAJEURE. The Parties shall not be responsible for failure to
perform hereunder due to force majeure, which shall include, but not be limited
to: fires, floods, riots, strikes, labor disputes, freight embargoes or
transportation delays, shortage of labor, inability to secure fuel, material,
supplies, equipment or power at reasonable prices or on account of shortage
thereof, acts of God or of the public enemy, war or civil disturbances, any
existing or future laws, rules, regulations or acts of any government (including
any orders, rules or regulations issued by any official or agency or such
government) affecting a party that would delay or prohibit performance
hereunder, or any cause beyond the reasonable control of a party. If an event of
force majeure should occur, the affected party shall promptly give notice
thereof to the other party and such affected party shall use its reasonable best
efforts to cure or correct any such event of force majeure.
15.5 GOVERNING LAW AND DISPUTE RESOLUTION. This Agreement shall be
governed by and construed in accordance with the laws of the State of Utah,
applicable to contracts made and to be wholly performed within such State. Any
dispute arising out of this Agreement, if not resolved by mutual agreement of
NSHK and NSJ within 30 days after written notice of such dispute is given by
NSHK or NSJ, as the case may be, shall be resolved through arbitration with the
Utah
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office and division of the American Arbitration Association ("AAA"). If the
dispute is not resolved within such 30-day period, the Parties shall petition
the AAA to promptly appoint a competent, disinterested person to act as such
arbitrator. Within 30 days after the designation or appointment of such
arbitrator, such arbitrator shall be required to commence the arbitration
proceeding in the state of Utah at a time and place to be fixed by the
arbitrator, who shall so notify NSHK and NSJ. Such arbitration proceeding shall
be conducted in accordance with the applicable rules and procedures of the AAA,
and/or as otherwise may be agreed by NSHK and NSJ. The decision of the
arbitrator shall be final and binding upon NSHK and NSJ and may be enforced in
any court of competent jurisdiction. The expenses and costs of such arbitration
shall be divided and borne equally by NSHK and NSJ; provided, that each of NSHK
and NSJ shall pay all fees and expenses incurred by it in presenting or
defending against such claim, right or cause of action.
15.6 APPLICABILITY OF POST-EFFECTIVE LAWS. The Parties agree that
neither the Vienna Convention on the International Sale of Goods nor any such
similar law, treaty or act that becomes effective during the term of this
Agreement shall be applicable to this Agreement or the transactions contemplated
hereunder.
15.7 INTEGRATED CONTRACT. This Agreement constitutes the entire
agreement between the Parties relating to the subject matter hereof and
supersedes all prior or contemporaneous negotiations, representations,
agreements and understandings (both oral and written) of the Parties.
15.8 MODIFICATIONS AND AMENDMENTS. No supplement, modification or
amendment of this Agreement shall be binding unless it is in writing and
executed by both of the Parties.
15.9 SEVERABILITY. To the extent that any provision of this Agreement is
(or, in the opinion of counsel mutually acceptable to both parties, would be)
-21-
prohibited, judicially invalidated or otherwise rendered unenforceable in any
jurisdiction, such provision shall be deemed ineffective only to the extent of
such prohibition, invalidation or unenforceability in that jurisdiction, and
only within that jurisdiction. Any prohibited, judicially invalidated or
unenforceable provision of this Agreement will not invalidate or render
unenforceable any other provision of this Agreement, nor will such provision of
this Agreement be invalidated or rendered unenforceable in any other
jurisdiction.
15.10 COUNTERPARTS AND HEADINGS. This Agreement may be executed in one or
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument. All headings and captions
are inserted for convenience of reference only and shall not affect the meaning
or interpretation of any provision hereof.
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed
by their respective duly authorized representatives in the United States of
America as of the day and the year first above written.
NU SKIN HONG KONG, INC. NU SKIN JAPAN COMPANY, LIMITED
BY:__________________________ BY:__________________________
BLAKE M. RONEY TAKASHI BAMBA
PRESIDENT AND CEO GENERAL MANAGER
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EXHIBIT 10.10
NSI
NSJ
AMENDED AND RESTATED
TRADEMARK\TRADENAME LICENSING AGREEMENT
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS.................................................. 3
1.1 "Agreement".................................................. 3
1.2 "Commercial Materials"....................................... 4
1.3 "Know-How"................................................... 4
1.4 "Licensed Marks and Names"................................... 4
1.5 "Net Sales".................................................. 4
1.6 "NSI Independent Distributor"................................ 5
1.7 "NSI Trademark".............................................. 5
1.8 "NSI Tradename".............................................. 5
1.9 "Product".................................................... 5
1.10 "Proprietary Information".................................... 5
1.11 "Sales Aid".................................................. 7
1.12 "Starter Kit"................................................ 7
1.13 "Territory".................................................. 7
ARTICLE II GRANT OF EXCLUSIVE LICENSE; ROYALTIES........................ 7
2.1 Grant of Exclusive License................................... 7
2.2 NSI's Interest in Licensed Marks and Names................... 7
2.3 Recitals of Value of Licensed Marks and Names................ 8
2.4 Warranty of Title............................................ 8
2.5 Royalties.................................................... 8
ARTICLE III COMPUTATION AND PAYMENT TERMS................................ 9
3.1 Royalty Payments............................................. 9
3.2 Records...................................................... 9
3.3 Payment Terms................................................ 9
3.4 Default Rate................................................. 10
ARTICLE IV CERTAIN COVENANTS............................................ 10
4.1 Use of Licensed Marks and Names.............................. 10
4.2 Modifications................................................ 11
4.3 Prejudicial Use.............................................. 11
4.4 Labels....................................................... 11
4.5 Goodwill..................................................... 11
4.6 Export of Products........................................... 12
ARTICLE V TERM......................................................... 12
ARTICLE VI TERMINATION.................................................. 12
ARTICLE VII EFFECT OF TERMINATION........................................ 14
7.1 Obligation of NSJ Upon Termination........................... 14
7.2 Survival of Obligations...................................... 15
7.3 Reversion of Rights.......................................... 15
ARTICLE VIII GOVERNMENTAL APPROVALS, LAWS AND REGULATIONS................. 15
ARTICLE IX INFRINGEMENT; INDEMNIFICATION................................ 16
ARTICLE X CONFIDENTIALITY.............................................. 17
ARTICLE XI NATURE OF RELATIONSHIP....................................... 18
ARTICLE XII MAINTENANCE OF TRADEMARKS; RECORDING; REGISTRATION
OF TRADEMARK................................................. 18
ARTICLE XIII MISCELLANEOUS................................................ 20
13.1 Assignment................................................... 20
13.2 Force Majeure................................................ 20
13.3 Governing Law and Dispute Resolution......................... 21
13.4 Applicability of Post-Effective Laws......................... 21
13.5 Waiver and Delay............................................. 22
13.6 Notices...................................................... 22
ARTICLE XIV INTEGRATED CONTRACT.......................................... 23
14.1 Integrated Contract.......................................... 23
14.2 Modification and Amendment................................... 23
14.3 Severability................................................. 23
14.4 Counterparts and Headings.................................... 24
(ii)
TRADEMARK \ TRADENAME LICENSING AGREEMENT
THIS AMENDED AND RESTATED TRADEMARK \ TRADENAME LICENSING AGREEMENT is
made and entered into this ____ day of November, 1996, between Nu Skin
International, Inc. a corporation organized under the laws of the State of
Utah, U.S.A., (hereinafter referred to as "NSI") and Nu Skin Japan Company
Limited, a corporation organized under the laws of Japan and the State of
Delaware, U.S.A.,(hereinafter "NSJ"). Hereinafter, NSI and NSJ shall
collectively be referred to as the "Parties."
W I T N E S S E T H
- - - - - - - - - -
WHEREAS, NSI is engaged in the design, production and marketing of
Products and related Sales Aids for distribution in the international markets of
the Asia-Pacific Region through a network of independent distributors; and,
WHEREAS, NSJ acts as the exclusive wholesale distributor of NSI
products in Japan, having entered a separate written Amended and Restated
Wholesale Distribution Agreement with Nu Skin Hong Kong, Inc. ("NSHK") dated as
of the date hereof, the exclusive regional distributor of such products and
sales aids in the Asia-Pacific region; and,
WHEREAS, NSJ has investigated the marketing potential for Products and
Commercial Materials, as defined in this Agreement, it intends to design,
manufacture, produce and distribute to enhance further its competitiveness in
the Territory; and,
WHEREAS, NSJ has complied with the requirements of its distribution
arrangement with NSHK and received appropriate consent
in accordance with the provisions of the agreement governing their
relationship pertaining to distribution of NSI products and the manufacture of
non-competing Products in the Territory; and,
WHEREAS, NSJ desires to affix NSI Trademarks, as defined herein, to
the Products and to affix NSI Tradenames, as defined herein, to Commercial
Materials it envisions for the Territory thereby deriving benefit from the
goodwill, value and reputation such marks and names shall lend when used to
identify such Products and Commercial Materials; and,
WHEREAS, NSI and NSJ (as assignee of Nu Skin Japan, Inc.) entered into
a Trademark\Tradename License Agreement on March 15, 1995 (the "Prior Trademark
Agreement"); and
WHEREAS, the Parties desire to amend and restate the Prior Trademark
Agreement as set forth herein;
NOW THEREFORE, in consideration of the premises, the mutual promises,
covenants, and warranties hereinafter set forth and for other valuable
consideration, the sufficiency of which is hereby acknowledged, the Parties
agree as follows:
ARTICLE I
DEFINITIONS
-----------
For the purposes of this Agreement, the following words and terms
shall have the meaning assigned to them in this Article I:
1.1 "AGREEMENT" shall mean this Amended and Restated
Trademark\Tradename Licensing Agreement (together with any exhibits and
schedules hereto), as the same may be modified, amended or supplemented from
time to time.
2
1.2 "COMMERCIAL MATERIALS" shall mean, without limitation, any
business marquis, sign, letterhead, business card, pamphlet, brochure, magazine,
flyer, newsletter, Sales Aid, advertisement or other associated tangible
materials NSJ uses in its activities with the Independent Distributor Network or
the public to enhance its image and competitiveness in the Territory that NSJ
has not purchased from NSI or NSJ. Commercial Materials shall not, for the
purposes of this Agreement, include Starter Kits, as defined herein.
1.3 "KNOW-HOW" shall mean any information, including, without
limitation, any commercial or business information, lists, marketing methods,
marketing surveys, processes, specifications, quality control reports, drawings,
photographs, or any other information owned by NSI, whether or not considered
proprietary, relating to the network all NSI Independent Distributors, the NSI
distributor lists, and the NSI sales compensation plan.
1.4 "LICENSED MARKS AND NAMES" shall mean any NSI Trademark,
including those affixed to any Product for purposes of identifying, promoting or
selling such Product in the Territory to any NSI Independent Distributor, and
any NSI Tradename, including those affixed to or used in connection with any
Commercial Materials produced to further NSJ's commercial activities in the
Territory and any product formula as agreed to by the Parties from time to time.
1.5 "NET SALES" shall mean, for any period, the number of Products,
Commercial Materials and Starter Kits (or any part thereof) sold by NSJ during
such period, multiplied by NSJ's then
3
current selling price to its distributors for each such Product or Commercial
Material, less applicable consumption taxes and returns or refunds reasonably
accepted and credited by NSJ during such period.
1.6 "NSI INDEPENDENT DISTRIBUTOR" shall mean a person or business
entity authorized by contract with NSI to distribute, as an independent
contractor NSI products and sales aids.
1.7 "NSI TRADEMARK" shall mean any service mark, trademark, logo or
device (or combination thereof) used or for which NSI has a bonafide intent to
use or registered or under application by NSI.
1.8 "NSI TRADENAME" shall mean any commercially valuable "mark,"
"name," or "device" or combination thereof whether or not similar in appearance
to any NSI Trademark of which NSI is the owner, registered or otherwise.
1.9 "PRODUCT" shall mean any of the following bearing an NSI
Trademark: any product, including, without limitation, cosmetics, nutritional
products, dietary supplements, vitamins, over-the-counter drugs, quasi-drugs,
drugs and pharmaceutical products, and other products, which NSJ designs,
manufactures, produces and/or distributes or causes to be designed,
manufactured, produced or distributed in the Territory, that NSJ has not
purchased from NSI or NSJ. Products shall not, for the purposes of this
Agreement, include Starter Kits.
1.10 "PROPRIETARY INFORMATION" shall mean, without limitation, all
information other than information in published form or expressly designated by
either party in writing as non-confidential, which is directly or indirectly
disclosed to the
4
other party, regardless of the form in which it is disclosed, relating in any
way to the following property owned by the Parties or which the Parties have
been licensed to use or sub-license: (1) proprietary technical information
related to the Licensed Marks and Names and the Starter Kit; (2) information
respecting actual or potential customers or customer contacts and customer sales
strategies, names, addresses, phone numbers, identification numbers, database
information and its organization, unique business methods; (3) market studies,
penetration data, customers, products, contracts, copyrights, computer programs,
applications, technical data, licensed technology, patents, inventions,
procedures, methods, designs, strategies, plans, liabilities, assets, cost
revenues, sales costs, production costs, raw material sources and other market
information; (4) other sales and marketing plans, programs and strategies; (5)
trade secrets, Know-How, designs and proprietary commercial and technical
information, methods, practices, procedures, processes, formulae with respect to
manufacturing, assembly, design or processing products subject to this Agreement
and any component, part or manufacture thereof; (7) profits, organization,
employees, agents, distributors, suppliers, trademarks, tradenames and services;
(8) other business and commercial practices in general relating directly or
indirectly to the foregoing; (9) computer disks or other records or documents ,
originals or copies, containing in whole or in part any of the foregoing; and,
(10) tax information, returns and other financial information.
5
1.11 "SALES AID" shall mean materials, in whatever form and/or design
produced for the Territory to assist in the marketing of products or the Nu Skin
independent business opportunity in the Territory.
1.12 "STARTER KIT" shall mean those materials approved by NSI and
intended for sale in conjunction with the execution of the distribution contract
to NSI Independent Distributors in the Territory explaining the Nu Skin
independent business opportunity, the contractual relationship with NSI and the
marketing support programs for the Territory.
1.13 "TERRITORY" shall mean the country of Japan.
ARTICLE II
GRANT OF EXCLUSIVE LICENSE; ROYALTIES
-------------------------------------
2.1 GRANT OF EXCLUSIVE LICENSE. NSI hereby grants to NSJ an
exclusive license and right to use, and, with the prior written consent of NSI,
to sublicense the use of, the Licensed Marks and Names in the Territory,
provided that all such uses shall comply in all material respects with the terms
of this Agreement.
2.2 NSI'S INTEREST IN LICENSED MARKS AND NAMES. NSI hereby retains
legal title to the Licensed Marks and Names for all purposes, including but not
limited to, the bringing or defending of any legal action in the Territory which
it deems reasonable to protect its rights therein. NSJ agrees to assist NSI in
any manner to protect NSI's rights in the Licensed Marks and Names which NSI may
reasonably request. NSI shall reimburse NSJ for any third party costs incurred
by NSJ in providing such assistance.
6
2.3 RECITALS OF VALUE OF LICENSED MARKS AND NAMES. NSJ recognizes
and agrees that NSI has expended considerable time, effort and resources to
develop, register, apply for registrations, maintain and enhance the value and
reputation of the Licensed Marks and Names. NSJ further agrees it will derive a
considerable benefit from its use of the Licensed Marks and Names in the
Territory and from NSI's efforts and expenditures respecting the Licensed Marks
and Names.
2.4 WARRANTY OF TITLE. NSI hereby represents and warrants that it is
the sole and exclusive owner of the Licensed Marks and Names and that to the
best of its knowledge and information no claim exists or has been made
contesting the ownership and title of said Licensed Marks and Names.
2.5 ROYALTIES. As compensation for the exclusive licenses granted
pursuant to the terms of this Agreement, NSJ shall pay to NSI a royalty equal to
five percent (5%) (or as otherwise mutually agreed upon by the Parties) of its
Net Sales of all products, commercial materials or starter kits (or any part
thereof) sold in the territory during the entire term of this Agreement. Where
NSI owns the formulae or has exclusive rights in the Territory to the Product,
Commercial Material, or Starter Kit (or any part thereof), the applicable
royalty shall be eight percent (8%) of Net Sales, or as otherwise mutually
agreed upon by the Parties.
7
ARTICLE III
COMPUTATION AND PAYMENT TERMS
-----------------------------
3.1 ROYALTY PAYMENTS.
3.1(A) Within 30 days following the close of each month, NSJ shall
deliver to NSI, by electronic transmission or such other medium as the
parties shall agree from time to time, a statement of its Net Sales during
such month in the Territory and a computation of the royalties payable
hereunder. NSJ shall make payment of such royalties in accordance with
Section 3.3 hereof concurrently with the delivery of such statement.
3.1(B) For purposes of computing the royalty, Products and Commercial
Materials shall be considered sold when recognized for accounting
purposes as a sale by NSJ AS PER U.S. GAAP.
3.1(C) The Parties agree that the royalty shall remain competitive within
the market and shall be negotiated and determined on an arm's length basis
and may be adjusted from time to time as agreed by the Parties in writing.
3.2 RECORDS. Each Party shall keep complete and accurate records of
its activities under this Agreement which shall be open to inspection by
authorized representatives of the other Party at any reasonable time.
3.3 PAYMENT TERMS. Payments made by NSJ to NSI under this Agreement
shall be payable in Japanese Yen. Payments shall be made either directly to NSI
in immediately available funds by wire
8
transfer to an account designated by NSI, or by such other means of payment
acceptable to NSI from time to time.
3.4 DEFAULT RATE. Without limiting any of NSI's other rights and remedies
under this Agreement, amounts outstanding under the terms of this Agreement not
paid within ninety (90) days from the date due and payable, and as set forth in
the payment provisions herein, shall bear interest at the prime interest rate as
reported in the Wall Street Journal plus two percent (2%) for the full period
-------------------
outstanding. Whether or not interest charges are actually levied is at the
discretion of NSI.
ARTICLE IV
CERTAIN COVENANTS
-----------------
4.1 USE OF LICENSED MARKS AND NAMES. NSJ may use the Licensed Marks
and Names only in accordance with the terms of this Agreement.
4.1(A) The quality and performance of all Products and Commercial Materials
bearing the Licensed Marks and Names shall be in accordance with the
standards, specifications and instructions approved by NSI; and,
4.1(B) NSI shall have the right to inspect the premises of NSJ and those of
any of NSJ's subcontractors at which Product(s) are being manufactured, at
reasonable times, and also to receive samples of such Product(s), in
accordance with a reasonable schedule to be established promptly between
NSI and NSJ; and,
9
4.1(C) NSJ agrees to correct, as promptly as possible, any defects in the
Product(s) and/or manufacturing thereof brought to NSJ's attention by NSI
or otherwise; and,
4.1(D) NSJ agrees to submit to NSI for prior approval, which approval will
not be unreasonably withheld, labels, packaging, advertising and
promotional materials, in relation to which any of the NSI Trademarks are
proposed to be used, including the marking legends intended to be used in
relation thereto.
4.2 MODIFICATIONS. NSJ shall make no modification to the Licensed
Marks and Names without the express, prior written consent of NSI.
4.3 PREJUDICIAL USE. NSJ SHALL not use the Licensed Marks and Names in any
way that will prejudice NSI's rights therein.
4.4 LABELS. At the request of NSI, labels or packaging which bear the NSI
Trademarks shall also bear an asterisk placed immediately above the end of the
mark to reference a statement which shall appear underneath the mark and shall
contain the words "*TM Registered - Registered by Nu Skin International" (where
the mark is registered) or "*TM - Licensed by Nu Skin International" (where the
mark is not registered).
4.5 GOODWILL. All goodwill generated by use of the Licensed Marks and Names
shall inure to NSI, and, upon termination of this Agreement, NSJ shall not have
any claim against NSI for compensation for loss of distribution rights, loss of
goodwill or any similar loss.
10
4.6 EXPORT OF PRODUCTS. The Licensee shall not export any product on
which any Licensed Mark or Name is affixed to any country outside the Territory
without the prior written consent of NSI, which consent shall not be
unreasonably withheld or delayed.
ARTICLE V
TERM
----
Subject to Article VI hereof, this Agreement shall be for a term ending on
December 31, 2016 provided, however, that this Agreement is subject to
renegotiation after December 31, 2001 in the event that (i) Blake M. Roney,
Nedra D. Roney, Sandie N. Tillotson, Craig Tillotson, Craig Bryson, Steven J.
Lund, Brooke B. Roney, Kirk V. Roney and Keith R. Halls (the "Existing
stockholders"), or members of their families, or trusts or foundations
established by or for the benefit of the Existing Stockholders or members of
their families on a combined basis no longer beneficially own a majority of the
voting stock of Nu Skin Asia Pacific, Inc. ("Nu Skin Asia"), or (ii) the
existing stockholders, or members of their families, or trusts or foundations
established by or for the benefit of the Existing Stockholders or members of
their families on a combined basis no longer beneficially own a majority of the
voting stock of NSI.
ARTICLE VI
TERMINATION
-----------
11
6.1 This Agreement may be terminated by either Party immediately or at
any time after the occurrence of any of the following events:
(a) the other Party shall commence any case, proceeding or other action (i)
under any existing or future law of any jurisdiction, domestic or foreign,
relating to bankruptcy, insolvency, reorganization or relief of debtors,
seeking to have an order for relief entered with respect to it, or seeking
to adjudicate it a bankrupt or insolvent, or seeking reorganization,
arrangement, adjustment, winding-up, liquidation, dissolution, compensation
or other relief with respect to it or its debts, or (ii) seeking
appointment of a receiver, trustee, custodian or other similar action;
or
(b) there shall be commenced against the other Party any case, proceeding
or other action of a nature referred to in clause (a) above which (A)
results in the entry of an order for relief or any such adjudication or
appointment or (B) remains undismissed, undischarged or unbonded for a
period of 90 days. Events described in clauses (a) and (b) of this Section
12.1(a) shall be referred to as a Bankruptcy Event. If a Bankruptcy Event
occurs, all amounts owing under this Agreement shall become immediately due
and payable, without any notice thereof; or (c) if the other Party causes
or allows a judgment in excess of twenty-five million dollars ($25,000,000)
to be entered against involuntary or allows a lien, security interest, or
other encumbrance to attach to
12
its assets which secures an amount in excess of twenty-five million
dollars ($25,000,000); or
6.2 This Agreement may be terminated by either Party, if the other Party
is in default in the performance of any material obligation under this Agreement
and such default has not been cured within sixty (60) days after receipt of
written notice of such default by the defaulting Party; or
6.3 This Agreement may be terminated by NSI if Nu Skin Asia shall no
longer own or control a majority of the voting interest in NSJ, with such
termination to take effect thirty (30) days after NSI gives written notice to
NSJ of the occurrence of a change in control and its intention to terminate this
Agreement based thereon.
ARTICLE VII
EFFECT OF TERMINATION
---------------------
7.1 OBLIGATION OF NSJ UPON TERMINATION. Upon termination of this
Agreement by either Party, NSJ agrees to (a) sell, destroy or otherwise dispose
of all Products and Commercial Materials bearing the Licensed Marks and Names
within 45 days after such termination; (b) immediately discontinue use of the
Licensed Marks and Name in any form and not adopt in place thereof any word or
design that is confusingly similar thereto; and (c) return to NSI all manuals,
drawings, and standards or any other documents provided by NSI to NSJ relating
to the use of the Licensed Marks and Names.
13
7.2 SURVIVAL OF OBLIGATIONS. The obligations of the Parties to pay any
sums which are due and payable as of the expiration or termination of this
Agreement and their obligations under Section 2.2, Article IX and Article X
hereof shall survive the expiration or termination of this Agreement.
7.3 REVERSION OF RIGHTS. Upon termination of this Agreement, all rights
and licenses herein granted to NSJ shall immediately cease and shall revert to
NSI, and NSJ shall cease representing to any third party that it has any right
to use, assign, convey or otherwise transfer the Licensed Marks and Names.
ARTICLE VIII
GOVERNMENTAL APPROVALS, LAWS AND REGULATIONS
--------------------------------------------
8.1 NSJ agrees to obtain, or cause to be obtained, at its sole cost and
expense, any governmental approval and make, or cause to be made, any filings or
notifications required under all applicable laws, regulations and ordinances of
each country in the Territory to enable this Agreement to become effective or to
enable any payment pursuant to the provisions of this Agreement to be made. NSJ
agrees to keep NSI informed of the progress in obtaining all such government
approvals.
8.2 Each party agrees to refrain from any action that will cause the
other party to be in violation of any applicable law, regulation, or ordinance
of any jurisdiction in the Territory or the United States or elsewhere or any
international convention or bilateral or multilateral treaty to which any
jurisdiction in the Territory or the United States is a signatory, including,
without
14
limitation, the U.S. Foreign Corrupt Practices Act of 1977, the U.S. Export
Control Laws, and the U.S. Anti-Boycott laws.
ARTICLE IX
INFRINGEMENT; INDEMNIFICATION
-----------------------------
NSI hereby represents and warrants that, as of the date hereof, there are
no infringement or misappropriation suits pending or filed or, to its knowledge,
threatened against NSI within the Territory that relate to the Licensed Marks
and Names and NSI is not presently aware of any such infringement or
misappropriation. NSI shall indemnify and hold NSJ harmless from and against all
claims, actions, suits, proceedings, losses, liabilities, costs, damages and
attorneys' fees in respect of a third party claim alleging infringement or
misappropriation by NSJ in respect of its use of the Licensed Marks and Names in
the Territory; provided that NSJ shall give NSI prompt written notice of any
--------
such claim, action, suit or proceeding and, without limiting the generality of
Section 2.2 hereof, shall cooperate with NSI in the defense of any such claim,
action, suit or proceeding. NSI shall have the right to select counsel in any
such claim, action, suit or proceeding. In the event that any such claim,
action, suit or proceeding is successful, NSI shall use reasonable efforts to
make such changes in the Licensed Marks and Names to permit NSJ to continue to
use of the Licensed Marks and Names free and clear of all infringement and
misappropriation. NSJ shall give NSI prompt written notice of any infringement
or misappropriation of the Licensed Marks and Names by any third party. NSI
shall have the sole right to initiate any and
15
all legal proceedings against any such third party and, without limiting the
generality of Section 2.2 hereof, NSJ shall cooperate with NSI in the pursuit of
any such proceeding. NSI shall retain any damage award obtained from such third
party.
ARTICLE X
CONFIDENTIALITY
---------------
All Proprietary Information or other non-public or proprietary business or
technical information owned or used by NSI or NSJ and supplied to or acquired by
the other whether in oral or documentary form (the "Confidential Information")
shall be supplied and acquired in confidence and shall be solely for the use of
the receiving party pursuant to this Agreement and such party shall keep the
Confidential Information confidential and shall not disclose the same, at any
time during the term of this Agreement or after its termination, except to its
employees, or its affiliates, or its affiliates' employees for the purposes of
its business in accordance with this Agreement and except as may be required by
law; provided that if the receiving party determines that a disclosure is
--------
required by law, the receiving party shall notify the disclosing party in order
to give the disclosing party an opportunity to seek an injunction or otherwise
attempt to keep the Confidential Information confidential. The receiving party
shall, at the request of the disclosing party, destroy or return the
Confidential Information without retaining copies if, as and when this Agreement
is terminated or expires. For purposes of this Agreement, the term "Confidential
Information" shall not include
16
information or documents that (i) become generally available to the public other
than as a result of a disclosure by the receiving party, (ii) was otherwise
lawfully available to the receiving party, or (iii) was generated independently
by the receiving party. The provisions of this Article shall survive termination
of this Agreement.
ARTICLE XI
NATURE OF RELATIONSHIP
----------------------
The relationship of NSJ and NSI shall be and at all times remain,
respectively, that of independent contractor and contracting party. Nothing
contained or implied in this Agreement shall be construed to constitute either
party as the legal representative or agent of the other or to constitute or
construe the Parties as partners, joint venturers, co-owners or otherwise as
participants in a joint or common undertaking. Neither Party is authorized to
conclude any contract or agreement or make any commitment, representation or
warranty that binds the other or otherwise act in the name of or on behalf of
the other.
ARTICLE XII
MAINTENANCE OF TRADEMARKS; RECORDING; REGISTRATION OF TRADEMARK
---------------------------------------------------------------
NSI covenants to use its best efforts to maintain the registrations of the
NSI trademarks currently registered in the Territory as set forth in Exhibit A
hereto. NSI, in its sole discretion, shall have the right to record this
Agreement or proof thereof, or to enter NSJ as a registered user in the
Territory.
17
NSJ agrees to cooperate, as reasonably requested by NSI, in arranging for such
recordings or entries, or in bearing or canceling such recordings or entries in
the event of amendments to or termination of this Agreement for any reason. Upon
termination of this agreement for any reason, the parties agree to do everything
necessary to effect cancellation of the record of NSJ as a registered user of
the NSI Trademarks in the Territory.
At the request of NSJ, NSI shall file applications in the Territory for the
registration of all new NSI Trademarks that NSJ presently intends to use in the
Territory. If any mark used by NSI in the United States of America with respect
to certain products is used by NSI in the Territory in relation to similar
products, then, whether or not the mark is registered in the Territory, NSJ
shall not claim any proprietary interest in such mark. If any of such marks are
immediately registrable in the Territory, NSJ will cooperate with NSI in filing
an application for registration of the marks in the name of NSI. If any such
marks are not immediately capable of registration because they lack
distinctiveness, then at any time when in the opinion of legal counsel for NSI
the use of the marks by NSJ has conferred on them sufficient distinctiveness to
permit registration in the Territory, NSJ shall, when requested by NSI, do all
things necessary and execute all documents required to register such marks in
the Territory and assign the eventual registrations to NSI who shall reimburse
NSJ for the cost of registration and assignment, but shall not be obligated to
make any other payment in consideration for the assignment.
18
ARTICLE XIII
MISCELLANEOUS
-------------
13.1 ASSIGNMENT. This Agreement shall be binding on and inure to the
benefit of the heirs, successors, assigns and beneficiaries of the Parties;
provided that neither party may assign this Agreement or any rights or
obligations hereunder, whether by operation of law or otherwise, without the
prior written consent of the other party through its authorized representative.
Any such attempted assignment without the written consent provided herein shall
be void and unenforceable.
13.2 FORCE MAJEURE. The Parties shall not be responsible for failure to
perform hereunder due to force majeure, which shall include, but not be limited
to: fires, floods, riots, strikes, labor disputes, freight embargoes or
transportation delays, shortage of labor, inability to secure fuel, material,
supplies, equipment or power at reasonable prices or on account of shortage
thereof, acts of God or of the public enemy, war or civil disturbances, any
existing or future laws, rules, regulations or acts of any government (including
any orders, rules or regulations issued by any official or agency or such
government) affecting a party that would delay or prohibit performance
hereunder, or any cause beyond the reasonable control of a party. If an event of
force majeure should occur, the affected party shall promptly give notice
thereof to the other party and such affected party shall use its reasonable best
efforts to cure or correct any such event of force majeure.
19
13.3 GOVERNING LAW AND DISPUTE RESOLUTION. This Agreement shall be
governed by and construed in accordance with the laws of the State of Utah,
applicable to contracts made and to be wholly performed within such State. Any
dispute arising out of this Agreement, if not resolved by mutual agreement of
NSI and NSJ within 30 days after written notice of such dispute is given by NSJ
or NSI, as the case may be, shall be resolved through arbitration with the Utah
office and division of the American Arbitration Association ("AAA"). If the
dispute is not resolved within such 30-day period, the Parties shall petition
the AAA to promptly appoint a competent, disinterested person to act as such
arbitrator. Within 30 days after the designation or appointment of such
arbitrator, such arbitrator shall be required to commence the arbitration
proceeding in the state of Utah at a time and place to be fixed by the
arbitrator, who shall so notify NSI and NSJ. Such arbitration proceeding shall
be conducted in accordance with the applicable rules and procedures of the AAA,
and/or as otherwise may be agreed by NSI and NSJ. The decision of the arbitrator
shall be final and binding upon NSI and NSJ and may be enforced in any court of
competent jurisdiction. The expenses and costs of such arbitration shall be
divided and borne equally by NSI and NSJ; provided, that each of NSI
--------
and NSJ shall pay all fees and expenses incurred by it in presenting or
defending against such claim, right or cause of action.
13.4 APPLICABILITY OF POST-EFFECTIVE LAWS. The Parties agree that neither
the Vienna Convention on the International Sale of Goods nor any such similar
law, treaty or act that becomes
20
effective during the term of this Agreement shall be applicable to this
Agreement or the transactions contemplated hereunder.
13.5 WAIVER AND DELAY. No waiver by either party of any breach or default
in performance by the other party, and no failure, refusal or neglect of either
party to exercise any right, power or option given to it hereunder or to insist
upon strict compliance with or performance of the other party's obligations
under this Agreement, shall constitute a waiver of the provisions of this
Agreement with respect to any subsequent breach thereof or a waiver by either
party of its right at any time thereafter to require exact and strict compliance
with the provisions thereof.
13.6 NOTICES. All notices, requests and other communications hereunder
shall be in writing and shall be deemed to have been duly given, if delivered by
hand, or if communicated by facsimile, cable or similar electronic means to the
facsimile number or cable identification number as previously provided by each
party to the other, at the time that receipt thereof has been confirmed by
return electronic communication or signal that the message has been received, or
if mailed, ten (10) days after dispatch by registered airmail, postage prepaid,
from any post office addressed as follows:
If to NSJ:
Takashi Bamba, General Manager
Nu Skin Japan Company limited
Shinjuku I-Land Tower, 23rd Floor
6-5-1 Nishishinjuku, Shinjuku - ku
Tokyo, Japan, 163-13
Facsimile Number: 813-5321-3799
If to NSI:
Max L. Pinegar, General Manager
Nu Skin International, Inc.
75 West Center Street
21
Provo, Utah 84601, U.S.A.
Facsimile Number: (801) 345-5999
Either party may change its facsimile number, cable identification number
or address by a notice given to the other party in the manner set forth above.
ARTICLE XIV
INTEGRATED CONTRACT
-------------------
14.1 INTEGRATED CONTRACT. This Agreement constitutes the entire agreement
between the Parties relating to the subject matter hereof and supersedes all
prior or contemporaneous negotiations, representations, agreements and
understandings (both oral and written) of the Parties.
14.2 MODIFICATION AND AMENDMENT. No supplement, modification or
amendment of this Agreement shall be binding unless it is in writing and
executed by both of the Parties.
14.3 SEVERABILITY. To the extent that any provision of this Agreement is
(or in the opinion of counsel mutually acceptable to both Parties would be)
prohibited, judicially invalidated or otherwise rendered unenforceable in any
jurisdiction, such provision shall be deemed ineffective only to the extent of
such prohibition, invalidation or unenforceability in that jurisdiction, and
only within that jurisdiction. Any prohibited, judicially invalidated or
unenforceable provision of this Agreement will not invalidate or render
unenforceable any other provision of this Agreement, nor will such provision of
this Agreement be invalidated or rendered unenforceable in any other
jurisdiction.
22
14.4 COUNTERPARTS AND HEADINGS. This Agreement may be executed in one or
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument. All headings and captions
are inserted for convenience of reference only and shall not affect the meaning
or interpretation of any provision hereof.
23
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed
in the United States of America by their respective duly authorized
representatives as of the day and year first-above written.
NU SKIN INTERNATIONAL, INC. NU SKIN JAPAN COMPANY, LIMITED
BY:__________________________ BY:_________________________
BLAKE M. RONEY TAKASHI BAMBA
PRESIDENT AND CEO GENERAL MANAGER
24
Exhibit 10.11
MANAGEMENT SERVICES AGREEMENT
BETWEEN
NU SKIN INTERNATIONAL MANAGEMENT GROUP, INC.
AND
NU SKIN JAPAN COMPANY LTD.
TABLE OF CONTENTS
ARTICLE 1
DEFINITIONS..................................................1
-----------
"Agreement"..................................................1
"Consulting Personnel".......................................1
"Direct Expenses"............................................1
"Expatriate Personnel".......................................2
"Allocable Expenses".........................................2
"Management and Consulting Services".........................2
ARTICLE 2
MANAGEMENT AND CONSULTING SERVICES...........................2
----------------------------------
Services.....................................................2
Performance of Services......................................2
Expatriate Employees.........................................3
Approval of Services.........................................3
ARTICLE 3
COMPENSATION OF SERVICE PROVIDER.............................3
--------------------------------
3.1(a) Compensation for Services by Consulting Personnel.....3
Determination of Allocable Expenses..........................3
Currency.....................................................3
Payment and Invoicing........................................4
ARTICLE 4
PREPARATION AND SHARING OF REPORTS AND INFORMATION
--------------------------------------------------
Periodic Reports on Management and Consulting Services.......4
Time Allocation Study........................................4
Sharing of Information and Witnesses.........................4
ARTICLE 5
NON-DISCLOSURE OF CONFIDENTIAL INFORMATION...................6
------------------------------------------
ARTICLE 6
TERM.........................................................6
----
ARTICLE 7
TERMINATION..................................................7
-----------
ARTICLE 8
EFFECT OF TERMINATION........................................8
---------------------
Cessation of Rights..........................................8
-i-
ARTICLE 9
COMPLIANCE WITH APPLICABLE LAWS..............................9
-------------------------------
Compliance Generally.........................................9
Authorizations...............................................9
Business Practices...........................................9
ARTICLE 10
GENERAL PROVISIONS...........................................9
------------------
Assignment...................................................9
Notices.....................................................10
Waiver and Delay............................................10
Force Majeure...............................................10
Governing Law and Dispute Resolution........................11
Applicability of Post-Effective Laws........................11
Integrated Contract.........................................12
Modifications and Amendments................................12
Severability................................................12
Counterparts and Headings...................................12
-ii-
MANAGEMENT SERVICES AGREEMENT
-----------------------------
This MANAGEMENT SERVICES AGREEMENT is made and entered into effective
August 15, 1996 between Nu Skin International Management Group, Inc., a
corporation organized under the laws of the State of Delaware, U.S.A.
(hereinafter referred to as "NSIMG") and Nu Skin Japan Company, Limited, a
corporation organized under the laws of Japan and the State of Delaware, U.S.A.
(hereinafter referred to as "NSJ"). NSIMG and NSJ shall hereinafter be
collectively referred to as the "Parties" and each shall be individually
referred to as a "Party."
W I T N E S S E T H
-------------------
WHEREAS, NSIMG desires to provide Management and Consulting Services (as
hereinafter defined) to NSJ and NSJ desires to obtain such Management and
Consulting Services from NSIMG;
NOW, THEREFORE, in consideration of the premises, the mutual promises and
covenants hereinafter set forth and for other good and valuable consideration,
the sufficiency of which is hereby acknowledged, the Parties agree as follows:
ARTICLE 1
DEFINITIONS
-----------
For purposes of this Agreement, the following terms shall have the meaning
set out below:
1.1 "AGREEMENT" shall mean this Management Services Agreement between
NSIMG and NSJ, as the same may be modified, amended or
supplemented from time to time.
1.2 "CONSULTING PERSONNEL" shall mean employees of NSIMG or, with the
consent of NSJ, such other persons or entities as NSIMG may
retain, hire, or otherwise contract with for the provision of
Management and Consulting Services on behalf of, or in
conjunction with, NSIMG.
1.3 "DIRECT EXPENSES" shall mean all expenses incurred in the
provision of Management and Consulting Services for NSJ, which
expenses are measured solely for the benefit of NSJ, including,
without limitation, certain salary costs, benefits and
-1-
business expenses, convention expenses and travel expenses.
1.4 "EXPATRIATE PERSONNEL" shall mean Consulting Personnel who reside
in Japan and are seconded to NSJ for a definite or indefinite
period of time to perform Management and Consulting
Services.
1.5 "ALLOCABLE EXPENSES" shall mean all expenses other than Direct
Expenses including without limitation, the following: rents,
utilities, telephone, equipment, recruitment, office supplies,
and other overhead expenses, certain salary costs and expenses
related to conventions, travel and accommodations at anniversary
events, the permitted use and appropriation of the names and
likeness of directors, and executive officials of NSJ or NSIMG,
telephone calls and counseling and conferences and meetings with
country managers and distributor leaders.
1.6 "MANAGEMENT AND CONSULTING SERVICES" shall mean the following
services: management, legal, financial, marketing and
distribution support/training, public relations, international
expansion, human resources, strategic planning, product
development and operations administration and such other services
as the Parties may agree to from time to time.
1.7 "NSI" shall mean Nu Skin International, Inc., a corporation duly
organized and existing under the laws of the state of Utah.
ARTICLE 2
MANAGEMENT AND CONSULTING SERVICES
----------------------------------
2.1 SERVICES. NSIMG hereby agrees to provide Management and
Consulting Services to NSJ as NSJ may request from time to time,
until termination of this Agreement. NSJ agrees to reimburse and
compensate NSIMG for Management and Consulting Services rendered
pursuant to this Agreement in accordance with the applicable
compensation and invoicing provisions hereof.
2.2 PERFORMANCE OF SERVICES. Unless otherwise agreed between the
Parties, the Management and Consulting Services shall be provided
through Consulting Personnel, as requested by NSJ.
-2-
2.3 EXPATRIATE EMPLOYEES. The Parties shall agree to the terms and
circumstances pursuant to which a Consulting Employee may be
assigned as an Expatriate Employee to work at NSJ; provided that
--------
nothing in this Agreement shall be interpreted to mean that NSIMG
must make available any Consulting Employee to work at NSJ as an
Expatriate Employee.
2.4 APPROVAL OF SERVICES. NSJ hereby agrees that, by accepting and
paying invoices as provided in Article 3 herein, NSJ will be
deemed to have approved the nature and extent the Management and
Consulting Services so invoiced.
ARTICLE 3
COMPENSATION OF SERVICE PROVIDER
--------------------------------
3.1 3.1(A) COMPENSATION FOR SERVICES BY CONSULTING PERSONNEL. NSJ
agrees to compensate NSIMG for Management and Consulting Services
that it provides to NSJ through Consulting Personnel (other than
Expatriate Personnel) in the form of a fee equal to the Direct
Expenses and Allocable Expenses incurred by NSIMG for Management
and Consulting Services provided to NSJ by Consulting Personnel
plus three percent (3%) of such Direct Expenses and Allocable
Expenses, as such feemay be adjusted from time to time by mutual
agreement of the Parties; provided that unless, otherwise agreed
--------
between the Parties, Allocable Expenses shall not, for any
period, exceed one and one-half percent (1 1/2%) of NSJ's
revenues for such period.
3.1(B) REIMBURSEMENT OF COST OF EXPATRIATE PERSONNEL. NSJ agrees
to reimburse NSIMG for any direct costs of Expatriate Personnel
incurred by NSIMG attributable to such Expatriate Personnel
seconded to NSI.
3.2 DETERMINATION OF ALLOCABLE EXPENSES. Allocable Expenses for any
period shall be equal to the total Allocable Expenses incurred by
NSI or NSIMG's internal departments for such period multiplied by
the percentage of such Allocable Expenses allocable to NSJ
pursuant to the then applicable time allocation study prepared
pursuant to Section 4.2 hereof.
3.3 CURRENCY. Any compensation to be paid to NSIMG for Management
and Consulting Services rendered pursuant to this Agreement shall
be paid in United States Dollars.
-3-
3.4 PAYMENT AND INVOICING. Within thirty (30) days after the end of
each month, NSIMG shall prepare and deliver an invoice to the NSJ
setting forth the fees payable hereunder for Management and
Consulting Services rendered pursuant to this Agreement during
such month.
3.5 Payments due under this Agreement shall be due and payable within
sixty (60) days after the date of dispatch of the invoice for
such payments.
3.6 Without limiting any of Parties' other rights and remedies under
this Agreement, amounts outstanding under the terms of this
Agreement not paid within sixty (60) days from the date due and
payable, and as set forth in the payment provisions herein, shall
bear interest at the prime interest rate as reported in the Wall
----
Street Journal plus two percent (2%) for the full period
--------------
outstanding. Whether or not interest charges are actually levied
is at the discretion of the Party to whom payment is due and
payable.
ARTICLE 4
PREPARATION AND SHARING OF REPORTS AND INFORMATION
--------------------------------------------------
4.1 PERIODIC REPORTS ON MANAGEMENT AND CONSULTING SERVICES. NSJ may,
upon thirty (30) days' written notice, request operations reports
of NSIMG setting forth such information regarding the Management
and Consulting Services provided under this Agreement and for
such time periods as NSJ shall reasonably request.
4.2 TIME ALLOCATION STUDY. NSIMG has prepared a study accurately
reflecting the allocation of time spent by NSIMG's internal
department and consulting personnel on the services provided to
NSJ under this Agreement. The study shall be updated on a
quarterly basis. NSJ may request a copy of the then applicable
such time allocation study from NSIMG upon thirty (30) days'
written notice.
4.3 SHARING OF INFORMATION AND WITNESSES. At all times during the
term of this Agreement and for a period of three years
thereafter, each of the Parties shall maintain at its principal
place of business full, complete and accurate books of account
and records with regard to its activities under this Agreement.
In addition to the books and records pursuant to Section 4.3,
NSIMG and NSJ
-4-
may from time to time have in their possession or under their
control (or the control of persons or entities which have
rendered services to time) additional books, records, contracts,
instruments, data and other information (together with the books
and records referred to in the first sentence of this Section
4.3, the "Information") which may prove necessary or desirable to
the other in connection with the other's business. Accordingly,
(i) NSIMG shall provide to NSJ, and NSJ shall provide to NSIMG
upon the other's request, at all reasonable times, full and
complete access to (including access to persons with respect to,
and all Information as the other may reasonably request and
require in the conduct of its business, and (ii) NSIMG shall make
available to NSJ and NSJ shall make available to NSIMG, upon the
other's request, such persons as may reasonably be required to
assist with any legal, administrative or other proceedings in
which NSJ or NSIMG, as the case may be, may from time to time be
involved. The Information shall include, without limitation,
information sought for audit, accounting, claims, litigation and
tax purposes as well as for, in the case of NSJ, purposes of
fulfilling disclosure and reporting obligations under the United
States securities laws. The party providing Information or making
available witnesses shall be entitled to receive from the other
party, upon the presentation of invoices therefor, payment for
its reasonable out-of-pocket expenses incurred in connection
therewith (but not the labor costs thereof), but shall not be
entitled to receive any other payment with respect thereto.
Nothing in this Agreement shall require either party to reveal to
the other any information if to do so would violate such party's
written and enforceable duty of confidence to a third party from
whom or which such information was obtained; under such
circumstances, however, the parties shall work together to obtain
a release of such information without violation of such duty of
confidence.
-5-
ARTICLE 5
NON-DISCLOSURE OF CONFIDENTIAL INFORMATION
------------------------------------------
All trade secrets, proprietary technology, know-how or other non-public or
proprietary business or technical information owned or used by NSIMG or NSJ and
supplied to or acquired by the other whether in oral or documentary form (the
"Confidential Information") shall be supplied and acquired in confidence and
shall be solely for the use of the receiving party pursuant to this Agreement
and such party shall keep the Confidential Information confidential and shall
not disclose the same, at any time during the term of this Agreement or after
its termination, except to its employees for the purposes of its business in
accordance with this Agreement and except as may be required by law; provided
that if the receiving party determines that a disclosure is required by law, the
receiving party shall notify the disclosing party in order to give the
disclosing party an opportunity to seek an injunction or otherwise attempt to
keep the Confidential Information confidential. The receiving party shall, at
the request of the disclosing party, destroy or return the Confidential
Information without retaining copies if, as and when this Agreement is
terminated or expires. For purposes of this Agreement, the term "Confidential
Information" shall not include information or documents that (i) become
generally available to the public other than as a result of a disclosure by the
receiving party, (ii) was otherwise lawfully available to the receiving party,
or (iii) was generated independently by the receiving party. The provisions of
this Article shall survive termination of this Agreement.
ARTICLE 6
TERM
----
Subject to Article VII hereof, this Agreement shall be for a term ending on
December 31, 2016; provided, however, that (i) Blake M. Roney, Nedra D. Roney,
Sandie N. Tillotson, Craig Tillotson, Craig Bryson, Steven J. Lund, Brooke B.
Roney, Kirk V. Roney and Keith R. Halls (the "Existing Stockholders"), or
members of their families, or trusts or foundations established by or for the
benefit of the Existing Stockholders or members of their families on a combined
basis no longer beneficially own a majority of the voting stock of Nu Skin Asia
Pacific, Inc ("Nu Skin Asia"), or (ii) the Existing Stockholders, or members of
their families, or trusts or foundations established by or for the benefit of
the Existing Stockholders or members of their families on a combined basis no
longer beneficially own a majority of the voting stock of NSI.
-6-
ARTICLE 7
TERMINATION
-----------
7.1 This Agreement may be terminated by either Party immediately or
at any time after the occurrence of any of the following events:
(a) the other Party shall commence any case, proceeding or other
action (i) under any existing or future law of any jurisdiction,
domestic or foreign, relating to bankruptcy, insolvency,
reorganization or relief of debtors, seeking to have an order for
relief entered with respect to it, or seeking to adjudicate it as
bankrupt or insolvent, or seeking reorganization, arrangement,
adjustment, winding-up, liquidation, dissolution, compensation or
other relief with respect to it or its debts, or (ii) seeking
appointment of a receiver, trustee, custodian or other similar
action; or
(b) there shall be commenced against the other Party any case,
proceeding or other action of a nature referred to in clause (a)
above which (A) results in the entry of an order for relief or
any such adjudication or appointment or (B) remains undismissed,
undischarged or unbonded for a period of 90 days. Events
described in clauses (a) and (b) of this Section 7.1(a) shall be
referred to as a Bankruptcy Event. If a Bankruptcy Event occurs,
all amounts owing under this Agreement shall become immediately
due and payable, without any notice thereof; or
(c) if the other Party causes or allows a judgment in excess of
twenty-five million dollars ($25,000,000) to be entered against
it or involuntarily allows a lien, security interest, or other
encumbrance to attach to its assets which secures an amount in
excess of twenty-five million dollars ($25,000,000).
7.2 This Agreement may be terminated by either Party, if the other
Party is in default in the performance of any material obligation
under this Agreement and such default has not been cured within
sixty (60) days after receipt of written notice of such default
by the defaulting Party; or
7.3 This Agreement may be terminated by NSIMG if Nu Skin Asia
Pacific, Inc. shall no longer own or control a majority of the
voting interest in NSJ,
-7-
with such termination to take effect thirty (30) days after NSI
gives written notice to NSJ of the occurrence of a change in
control and its intention to terminate this Agreement based
thereon.
7.4 NSJ may terminate any specific Management and Consulting Service
provided pursuant to this Agreement by providing written noticed
thereof to NSIMG not less than sixty (60) days prior to the
desired termination date. NSIMG may discontinue providing any
specific Management and Consulting Service provided pursuant to
this Agreement by providing written notice thereof to the NSJ not
less than sixty (60) days prior to the desired termination date;
provided, however, that NSIMG shall not deliver any such notice
-------- -------
in respect of any service to the extent that NSIMG continues to
provide such service to any other international affiliate of
NSIMG.
ARTICLE 8
EFFECT OF TERMINATION
8.1 CESSATION OF RIGHTS. Upon expiration or termination
(collectively, the "Termination") of this Agreement for any
reason whatsoever, all rights and obligations of the Parties
hereunder shall cease; provided, however, that upon Termination
-------- -------
of this Agreement, no Party shall be released from its
obligations to pay monies due or to become due or to complete any
unfulfilled obligations under this Agreement, and the provisions
of Article 5 shall service such Termination.
8.2 DAMAGES. Upon the Termination of this Agreement for any reason,
no Party shall be liable or obligated to the other Party with
respect to any payments, future profits, exemplary, special or
consequential damages, indemnifications or other compensation
regarding such Termination, and, except as otherwise required by
applicable law, each Party hereby waives and relinquishes any
rights, pursuant to law or otherwise, to any such payments,
indemnifications or compensation.
-8-
ARTICLE 9
COMPLIANCE WITH APPLICABLE LAWS
-------------------------------
9.1 COMPLIANCE GENERALLY. In the performance of its obligations
under this Agreement, the Parties shall, at all times, strictly
comply with all applicable laws, regulations and orders of the
countries and jurisdictions in which they operate and such United
States laws as outlined in paragraph 9.3 of this Article.
9.2 AUTHORIZATIONS. Each Party shall, at its own expense, make,
obtain and maintain in force at all times during the term of this
Agreement, all filings, registrations, reports, licenses, permits
and authorizations required under applicable law, regulations or
orders in order for it to perform its obligations under this
Agreement.
9.3 BUSINESS PRACTICES. In conformity with the United States Foreign
Corrupt Practice Act and with the Parties' established corporate
policies regarding business practices, the Parties and their
respective employees shall not directly or indirectly make an
offer, payment, promise to pay, or authorize payment, or offer a
gift, promise to give, or authorize the giving of anything of
value for the purpose of influencing an act or decision
(including a decision not to act) of an official of any
Government or of an employee or any company or including such a
person to use his influence to effect any such act or decision in
order to assist any of the Parties in obtaining, retaining or
directing any business.
ARTICLE 10
GENERAL PROVISIONS
------------------
10.1 ASSIGNMENT. This Agreement shall be binding on and inure to the
benefit of the heirs, successors, assigns and beneficiaries of
the Parties; provided that no Party may assign this Agreement or
any rights or obligations hereunder, whether by operation of law
or otherwise, without the prior written consent of all the other
Party's authorized representatives (which consent may be granted
or withheld). Any attempted assignment by any Party without the
prior written consent of the other Party shall be void and
unenforceable.
-9-
10.2 NOTICES. All notices, requests and other communications
hereunder shall be in writing and shall be deemed to have been
duly given, if delivered by hand, or if communicated by facsimile
to the facsimile number as may be provided from time to time by
each Party to the other, at the time that receipt thereof has
been confirmed by return electronic communication signal that the
message has been received, or if sent by reputable international
courier service three (3) days after dispatch addressed to the
Parties at the addresses outlined hereafter. Either Party may
change its facsimile number or address by a notice given to the
other Party in the manner set forth as follows:
If to NSIMG:
Attn: Chief Operating Officer
75 West Center, Provo, Utah 84601 USA
(801) 345-5500
(801) 345-5999 Fax
If to NSJ:
Attn: General Manager
Shinjuku I-Land Tower, 23rd Floor
6-5-1 Nishishinju-ku, Shinjuku-ku
Tokyo, Japan 163-13
(813) 5321-3600
(813) 5321-3799 Fax
10.3 WAIVER AND DELAY. No waiver by any Party of any breach or
default in performance by any other Party, and no failure,
refusal or neglect of any Party to exercise any right, power or
option given to it hereunder or to insist upon strict compliance
with or performance of the other Party's obligations under this
Agreement, shall constitute a waiver of the provisions of this
Agreement with respect to any subsequent breach thereof or a
waiver by any Party of its right at any time thereafter to
require exact and strict compliance with the provisions thereof.
10.4 FORCE MAJEURE. The Parties shall not be responsible for failure
to perform hereunder due to force majeure, which shall include,
but not be limited to: fires, floods, riots, strikes, labour
disputes, freight embargoes or transportation delays, shortage of
labour, inability to secure fuel, material, supplies, equipment
or power at reasonable prices or on account of shortage
-10-
thereof, acts of God or of the public enemy, war or civil
disturbances, any existing or future laws, rules, regulations or
acts of any government (including any orders, rules or
regulations issued by any official or agency or such government)
affecting a Party that would delay or prohibit performance
hereunder, or any cause beyond the reasonable control of a Party.
If an event of force majeure should occur, the affected Party
shall promptly give notice thereof to the other Party and such
affected Party shall use its reasonable best efforts to cure or
correct any such event of force majeure.
10.5 GOVERNING LAW AND DISPUTE RESOLUTION. This Agreement shall be
governed by and construed in accordance with the laws of the
State of Utah, applicable to contracts made and to be wholly
performed within such State. Any dispute arising out of this
Agreement, if not resolved by mutual agreement of NSIMG and NSJ
within 30 days after written notice of such dispute is given by
NSIMG or NSJ, as the case may be, shall be resolved through
arbitration with the Utah office and division of the American
Arbitration Association ("AAA"). If the dispute is not resolved
within such 30-day period, the Parties shall petition the AAA to
promptly appoint a competent, disinterested person to act as such
arbitrator. Within 30 days after the designation or appointment
of such arbitrator, such arbitrator shall be required to commence
the arbitration proceeding in the state of Utah at a time and
place to be fixed by the arbitrator, who shall so notify NSIMG
and NSJ. Such arbitration proceeding shall be conducted in
accordance with the applicable rules and procedures of the AAA,
and/or as otherwise may be agreed by NSIMG and NSJ and may be
enforced in any court of competent jurisdiction. The expenses and
costs of such arbitration shall be divided and borne equally by
NSIMG and NSJ; provided, that such of NSIMG and NSJ shall pay all
fees and expenses incurred by it in presenting or defending
against such claim, right or cause of action.
10.6 APPLICABILITY OF POST-EFFECTIVE LAWS. The Parties agree that
neither the Vienna Convention on the International Sale of Goods
nor any such similar law, treaty or act that becomes effective
during the term of this Agreement shall be applicable to this
Agreement or the transactions contemplated hereunder.
-11-
10.7 INTEGRATED CONTRACT. This Agreement constitutes the entire
agreement between the Parties relating to the subject matter
hereof and supersedes all prior or contemporaneous negotiations,
representations, agreements and understanding (both oral and
written) of the Parties.
10.8 MODIFICATIONS AND AMENDMENTS. No supplement, modification or
amendment of this Agreement shall be binding unless it is in
writing and executed by all Parties.
10.9 SEVERABILITY. To the extent that any provision of this Agreement
is (or, in the opinion of counsel mutually acceptable to all
Parties, would be) prohibited, judicially invalidated or
otherwise rendered unenforceable in any jurisdiction relevant to
the Parties, such provision shall be deemed ineffective only to
the extent of such prohibition, invalidation or unenforceability
in that jurisdiction, and only within that jurisdiction. Any
prohibited, judicially invalidated or unenforceable provision of
this Agreement will not invalidate or render unenforceable any
other provision of this Agreement, nor will such provision of
this Agreement be invalidated or rendered unenforceable in any
other jurisdiction.
10.10 COUNTERPARTS AND HEADINGS. This Agreement may be executed in one
or more counterparts, each of which shall be deemed an original,
but all of which together shall constitute one and the same
instrument. All headings and captions are inserted for
convenience of reference only and shall not affect the meaning or
interpretation of any provision hereof.
-12-
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed
by their authorized representatives.
NU SKIN INTERNATIONAL MANAGEMENT GROUP, INC.
By: ___________________________________
Name:
Title:
NU SKIN JAPAN COMPANY, LIMITED
By: ___________________________________
Name:
Title:
-13-
EXHIBIT 10.19
OPTION AGREEMENT
----------------
THIS OPTION AGREEMENT (the "Agreement") is made and entered into as of
this 5th day of September, 1996, and is effective as of the 1st day of January,
1994, by and between Nu Skin Asia Pacific, Inc., a Delaware corporation (the
"Company"), and M. Truman Hunt (the "Option Holder").
Recitals
--------
The parties hereto desire to enter into this written agreement to
confirm the terms of an agreement entered into between the shareholders of Nu
Skin International, Inc. ("NSI") and the Option Holder on January 1, 1994
providing for the grant of an option to the Option Holder to purchase shares of
the authorized and unissued Common Stock of the Company, upon the formation of
the Company by the shareholders of NSI as a holding company for all of NSI's
Asian operations, in connection with services rendered by the Option Holder to
the Company, the shareholders of NSI, and NSI.
Agreement
---------
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, and in consideration of the
foregoing recitals, the parties hereby agree as follows:
1. Grant of Option. The Company hereby grants to the Option Holder
---------------
the right and option (the "Option") to purchase from the Company, upon the terms
and conditions set forth herein, that number of shares of the Company's Class A
Common Stock as would, when issued, represent one-third of one percent (.333%)
of the Company's outstanding shares of Common Stock, as determined on a fully
diluted basis immediately following the consummation of the reorganization
whereby the Company becomes the holding company of Nu Skin Hong Kong, Inc., Nu
Skin Taiwan, Inc., Nu Skin Japan Company Limited, and Nu Skin Korea, Inc. (the
"Shares").
2. Exercise Price. The Shares may be purchased upon the exercise of
--------------
the Option at a price per share equal to the quotient obtained by dividing Five
Hundred Thousand Dollars ($500,000) by the number of Shares (the "Exercise
Price"). The parties acknowledge and represent that the Exercise Price
represents the fair market value for the Shares as of January 1, 1994, the date
of the original agreement between the Option Holder and the shareholders of NSI
and is based on the fair
market value of NSI's Asian operations as January 1, 1994. In the Option
Holder's discretion, the Exercise Price may be satisfied (i) by cancellation of
indebtedness to the Option Holder, or (ii) by cash or check.
3. Term of Option. The Option shall be exercisable at the discretion
--------------
of the Option Holder at any time prior to January 1, 2004, the tenth anniversary
of the date of the original agreement between NSI's shareholders and the Option
Holder.
4. Rule 701. The parties agree and acknowledge that the grant and
--------
exercise of the Option and the issuance of the Shares hereunder is intended to
qualify, to the fullest extent possible, as the grant of an option and an
issuance of shares of Class A Common Stock pursuant to Rule 701 promulgated
under the Securities Act of 1933, as amended, or any successor rule thereto. The
parties acknowledge that this Agreement is entered into for the purpose of
compensating the Option Holder, who, since 1991, has rendered and will continue
to render valuable services to the benefit of NSI and to the Company.
5. Manner of Exercise. The Option may be exercised in whole or in
------------------
part at any time after the date hereof and prior to the expiration of the term
of the Option. The Option Holder may exercise the Option by delivering written
notice thereof to the Company at the offices of the Company together with
payment of the Exercise Price. Upon and as of receipt by the Company of a notice
of exercise of the Option accompanied by payment as herein provided, the Option
Holder shall be deemed to be the holder of record of the Shares issuable upon
such exercise, notwithstanding that the stock transfer books of the Company
shall then be closed or that certificates representing such Shares shall not
then be actually delivered to the Option Holder.
6. Authorization; Reservation of Shares. The Company hereby
------------------------------------
represents and warrants that it is authorized to enter into this Agreement and
covenants and agrees that at all times during the period the Option is
exercisable it shall reserve from the Company's authorized and unissued Class A
Common Stock for issuance and delivery upon exercise of the Option such number
of shares of its Class A Common Stock as shall be required for issuance and
delivery upon exercise of the Option. The Company agrees that its issuance of
the Option shall constitute full authority to its officers who are charged with
the duty of executing stock certificates to execute and issue the necessary
certificates for shares of Class A Common Stock upon the exercise of the Option.
7. Fractional Shares. No fractional shares or stock representing
-----------------
fractional shares shall be issued upon the exercise of the Option. In lieu of
any fractional shares which would otherwise be issuable, the Company shall pay
cash equal to the product of such fraction multiplied by the fair market value
of one share of Common Stock on the date of exercise, as determined in good
faith by the Company's Board of Directors.
8. Transfer, Exchange or Assignment of Option. The Option may be
------------------------------------------
assigned or transferred only in accordance with and subject to the provisions of
the Securities Act of 1933 and the Rules and Regulations promulgated thereunder
(said Act and such Rules and Regulations being
2
hereinafter collectively referred to as the "Act"). Any assignment made
hereunder shall be made by delivery of a copy of a duly executed assignment to
the Company at the Company's principal office.
9. Adjustment of Exercise Price and Number of Shares.
-------------------------------------------------
(a) Adjustment for Dividends in Stock. In case at any time or from
---------------------------------
time to time, on or after the date hereof, the holders of the Common Stock of
the Company shall have received, or, on or after the record date fixed for the
determination of eligible stockholders, shall have become entitled to receive,
without payment therefor, other or additional capital stock of the Company by
way of dividend, then and in each case, the Option holder shall, upon the
exercise of the Option, be entitled to receive, in addition to the number of
shares of Class A Common Stock receivable thereupon, and without payment of any
additional consideration therefor, the amount of such other or additional
capital stock of the Company which the Option Holder would hold on the date of
such exercise had it been the holder of record of such Class A Common Stock on
the date hereof and had thereafter, during the period from the date hereof to
and including the date of such exercise, retained such shares and/or all other
additional capital stock receivable by it as called for during such period by
paragraphs (a) and (b) of this paragraph 9.
(b) Adjustment for Reclassification, Reorganization or Merger. In
---------------------------------------------------------
case of any reclassification or change of the outstanding securities of the
Company or of any reorganization of the Company on or after the date hereof, or
in case, after such date, the Company (or any such other corporation) shall
merge with or into another corporation or convey all or substantially all of its
assets to another corporation, then and in each such case the Option Holder,
upon exercise hereof at any time after the consummation of such
reclassification, change, reorganization, merger or conveyance, shall be
entitled to receive, in lieu of the stock or other securities and property
receivable upon the exercise hereof prior to such consummation, the capital
stock or other securities or property to which the Option Holder would have been
entitled upon such consummation if the Option Holder had exercised the Option
immediately prior thereto, all subject to further adjustment as provided in
paragraphs (a) and (c); in each such case, the terms of this paragraph 9 shall
be applicable to the shares of capital stock or other securities properly
receivable upon the exercise of the Option after such consummation.
(c) Stock Splits and Reverse Stock Splits. If at any time after the
-------------------------------------
initial formation of the Company, the Company shall subdivide its outstanding
shares of Common Stock into a greater number of shares, the Exercise Price in
effect immediately prior to such subdivision shall thereby be proportionately
reduced and the number of Shares receivable upon exercise of the Option shall
thereby be proportionately increased; and, conversely, if at any time after the
formation of the Company the outstanding number of shares of Common Stock shall
be combined into a smaller number of shares, the Exercise Price in effect
immediately prior to such combination shall thereby be proportionately increased
and the number of Shares receivable upon the exercise of the Option shall
thereby be proportionately decreased.
3
10. Officer's Certificate. Whenever the Exercise Price or the Option
---------------------
or Shares issuable on exercise of the Option shall be adjusted as required by
the provisions of paragraph 9 hereof, The Company shall forthwith file with its
Secretary or an Assistant Secretary at its principal office, and with its stock
transfer agent, if any, an officer's certificate showing the adjusted Exercise
Price and Shares determined as herein provided and setting forth in reasonable
detail the facts requiring such adjustment. Each such officer's certificate
shall be made available at all reasonable times for inspection by the Option
Holder, and the Company shall, forthwith after each such adjustment, deliver a
copy of such certificate to the Option Holder.
11. Notices to Option Holder. So long as the Option shall be
------------------------
outstanding and unexercised in whole or in part (i) if the Company shall pay any
dividend or make any distribution upon the Common Stock, or (ii) if the Company
shall offer to the holders of Common Stock for subscription or purchase by them
any shares of stock of any class or any other rights, or (iii) in the event of
any capital reorganization of the Company, reclassification of the capital stock
of the Company, consolidation, sale, lease or transfer of all or substantially
all of the property and assets of The Company to another corporation, or
voluntary or involuntary dissolution, the Company shall cause to be delivered to
the Option Holder, at least ten days prior to the date specified in (a) or (b)
below, as the case may be, a notice containing a brief description of the
proposed action and stating the date on which (a) a record is to be taken for
the purpose of such dividend, distribution or rights, or (b) such
reclassification, reorganization, consolidation, merger, conveyance, lease,
dissolution, liquidation or winding up is to take place and the date, if any, is
to be fixed, as of which holders of Common Stock of record shall be entitled to
exchange their shares of Common Stock for securities or other property
deliverable upon such reclassification, reorganization, consolidation, merger,
conveyance, dissolution, liquidation or winding up.
12. Governing Law. This Agreement shall be governed by, and construed
-------------
in accordance with, the laws of the State of Utah applicable to contracts
entered into and to be performed wholly within such State.
13. Notices. Notices and other communications to be given to the
-------
Option Holder shall be delivered by hand or mailed, postage prepaid, to 4892
South Rebecca Circle, Salt Lake City, Utah 84117, or such other address as the
Option Holder shall have designated by written notice to the Company and to the
Company as provided herein. Notices or other communications to the Company shall
be deemed to have been sufficiently given if delivered by hand or mailed postage
prepaid to the Company at 75 West Center Street, Provo, Utah 84601, or such
other address as the Company shall have designated by written notice to such
registered owner as herein provided. Notice by mail shall be deemed given when
deposited in the United States mail, postage prepaid, as herein provided.
14. Successors and Assigns. This Agreement shall be binding upon and
----------------------
inure to the benefit of each party's successors, heirs or assigns.
4
IN WITNESS WHEREOF, the Company and the Option Holder have executed this
Agreement as of the 5th day of September 1996, but this Agreement shall be
effective as of January 1, 1994.
NU SKIN ASIA PACIFIC, INC.
By: /s/ Blake M. Roney
------------------------
Blake M. Roney, Chairman
OPTION HOLDER
/s/ M. Truman Hunt
----------------------------
M. Truman Hunt
5
EXHIBIT 10.21
MANUFACTURING SUB-LICENSE AGREEMENT
This Manufacturing Sub-License Agreement ("Agreement") is made this 27th day of
July, 1995 and effective as of the date of that Agreement entitled Exclusive
World Wide Product License and Purchase Option entered between Nu Skin
International, Inc. and the Millot Cosmetic Corporation.
Parties
- -------
This Agreement is made between Nu Skin International, Inc. a U.S. corporation
duly registered under the laws of the State of Utah ("NSI") and Nu Skin Japan,
Inc. a U.S. corporation duly registered under the laws of the State of Utah
("NSJ").
WITNESSETH
WHEREAS, NSI is the exclusive licensee of Product defined herein at Article 1.1
respecting their manufacture, distribution, use, sales and an exclusive right to
sub-license such Products; and,
WHEREAS, NSJ desires to secure an exclusive sub-license to distribute, make, use
and sell the Products, in the Territory as defined herein in Article 1.2, and
NSI is willing to grant such an exclusive sub-license upon the terms and
conditions set forth in this Agreement; and,
WHEREAS, NSJ is suited to manufacture and distribute the Products under
sub-license in the Territory by virtue of its know how and expertise surrounding
distribution of such Products; and,
WHEREAS, the parties desire to memorialize their agreement effective as of the
Effective Date.
NOW THEREFORE, in consideration of the premises and undertakings set forth in
this Agreement the parties agree as follows:
Article 1 (Definitions)
- -----------------------
1.1 The term "Product(s)" shall mean the products individually and collectively
set forth in Attachment "1" and their formulae, mixing processes and
associating manufacturing technology and know how.
1.2 The term "Territory" shall mean the entire area and jurisdiction comprising
the country of Japan. The Territory defined in this Agreement may be
modified from time to time by written amendment, signed by the parties.
1.3 The term "Confidential Information" shall mean, without limitation, all
information, materials, and other commercially valuable information
provided by or to emanating from NSI to NSJ or NSJ to NSI relating to the
subject matter of this Agreement
1.4 The terms "Effective Date" shall mean the date of execution of the
Exclusive World Wide Product License and Purchase Option between NSI and
the Millot Cosmetic Corporation, which was the 3rd day of October 1994.
Article 2 (Grant of Exclusive Sub-License)
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2.1 NSI hereby grants to NSJ the sole and exclusive right and sub-license to
distribute, make, have made, use and sell the Product(s) in the Territory.
NSJ shall have the right to prevent all third parties from infringing any
NSJ rights to any third party. NSI shall not sell, make or distribute the
Product(s) in the Territory, nor shall NSI disclose any Confidential
Information regarding the Product(s) without written consent from NSJ.
2.2 The sub-license granted in this Agreement shall remain in force until the
termination of this Agreement in accordance with its terms.
2.3 NSI represents and warrants that no right granted under this Agreement
infringes upon the right of any third party. NSI shall indemnify NSJ in
the event of any third party litigation arising from the terms of this
Agreement. NSJ shall have the right to manufacture, have manufactured or
distribute any of the Products in the Territory which may be in its
business judgement, profitable for its operations in the Territory.
2.4 As compensation for the exclusive sub-license granted pursuant to the
terms of this Agreement NSJ shall pay to NSI a royalty equivalent to
three percent (3%) (or as otherwise mutually agreed upon by the parties)
of its sales, net consumption tax, of all Products sold in the Territory
during the entire term of this Agreement.
2.5 NSJ shall give NSI a written statement of the sales volume of Products
achieved during such period in the Territory, this statement shall be
certified as to its correctness by NSJ's Principal Financial Office and
dispatched to NSI within thirty (30) days following the close of each such
period.
2.6 Amounts due and payable are to be made thirty (30) days after the last day
of each quarter based upon sales to the last day of each such period. For
the purpose of computing the
royalty, Products shall be considered sold when recognized for accounting
purposes as a sale by NSJ to NSI Independent Distributors in the
Territory.
2.7 The parties hereto agree that the royalty shall remain competitive in the
market and shall be determined by negotiated arms length standard and may
be amended from time to time as agreed upon by the parties in writing.
2.8 NSJ shall keep complete and accurate records of its activities under this
Agreement which shall be open to inspection by authorized representatives
of NSI at any reasonable time. NSI may also appoint a CPA or equivalent of
NSI's choice in the Territory for the purpose of auditing NSJ's relevant
records.
2.9 Payment made by NSJ to NSI under this Agreement and shall be payable in
Japanese YEN. Payment shall be made either directly to NSI in immediately
available funds by wire transfer to Zion's First National Bank, Provo
Branch, Provo, Utah, U.S.A. - account number 32927931, or by such other
means of payment as designated by NSI.
2.10 Without limiting any of NSI's other rights and remedies under this
Agreement, amounts outstanding under the terms of this Agreement not paid
within ninety (90) days from the date due and payable, as set forth in the
payment provisions herein, shall bear interest at the prime rate as
reported in the Wall Street Journal plus two percent (2%) for the period
outstanding. Whether or not interest charges are actually levied is at the
discretion of NSI.
Article 3 (Disclosure and Confidentiality)
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3.1 During the term of this Agreement, NSI hereby agrees to transmit and
disclose to NSJ any technical information as is reasonably sufficient for NSJ to
evaluate the Product(s) under the terms of this Agreement.
3.2 NSJ and NSI hereby agree to keep secret and confidential from any third
party any Confidential Information relating to the Product(s) or other
valuable commercial information disseminated to the other party.
Article 4 (Trademarks and Tradenames)
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4.1 NSJ agrees that NSI is the owner of all right, title and interest in or
the sole authorized licensee to any trademark or tradename applied to or
associated with the Products. NSJ agrees not to contest NSI's ownership or
interest in any legal proceedings or otherwise. NSJ and NSI have entered a
separate Trademark/Tradename Licensing Agreement respecting the Territory.
The parties agreed that this Agreement will not
3
affect the terms of the Trademark/Tradename Licensing Agreement; the terms
of this Agreement shall be interpreted consistently with the terms of the
Trademark/Tradename Licensing Agreement between the parties.
Article 5 (Duration and Termination)
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5.1 The term of this Agreement shall be three (3) years from the date of its
effective date, and this Agreement shall be renewed for an additional successive
terms of three (3) years, unless either party gives the other three (3) months
prior written notice of intention to terminate this Agreement.
5.2 In the event that either party defaults or breaches any provisions in this
Agreement, the other party will have the right to terminate this Agreement by
giving written notice to the defaulting party, provided that however, if the
defaulting party cures the default of breach within sixty (60) days after notice
is given this Agreement will continue in force.
5.3 Upon termination of this Agreement NSJ may notify NSI of the amount of
Product(s) NSJ has on hand and NSJ shall have a license to sell the amounts on
hand in the Territory.
Article 6 (Governing Law)
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This agreement shall be interpreted according to the law of the State of Utah,
U.S.A.
Article 7 (Notices)
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Any notice under this Agreement will be deemed sufficient if given by registered
mail to the party receiving the notice at the address hereafter provided by the
parties to the other.
Article 8 (Modification and Assignment)
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This Agreement may not be transferred, amended or otherwise assigned without the
written consent of both parties.
Article 9 (Severability)
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If any provision of this Agreement is judged by a court in any jurisdiction to
be invalid or unenforceable, the remaining terms and conditions will be
unaffected and fully enforceable at law.
Article 10 (Entire Agreement)
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This Agreement represents the entire understanding between the parties
concerning the subjects covered herein and supersedes all other agreements,
negotiations and understandings, expressed or implied, between the parties.
Article 11 (Governing Language)
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If there are any differences between the English language text of the terms and
conditions of this Agreement and any prepared Japanese language text
translation, for all purposes the English language text shall be conclusive.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day first
written above, with the intention that it be effective upon the Effective Date.
NU SKIN INTERNATIONAL, INC.
By: /s/ Blake M. Roney
-----------------------------
Name: Blake M. Roney
Title: President & C.E.O.
NU SKIN JAPAN, INC.
By: /s/ Michael D. Smith
-----------------------------
Name: Michael D. Smith.
Title: General Counsel, Vice President and Assistant Secretary
ATTACHMENT #1
PRODUCT(S):
1- White Skin Lotion C
2- White Milk Lotion C
3- White Cream C
4- White Essence C
5- Extra Mild Skin Lotion
6- Extra Mild Milk Lotion
7- Extra Mild Cream
8- Extra Mild Essence
9- UV Make-up Base
10- Face Cleansing Gel
11- Finishing Pressed Powder
EXHIBIT 21.1
List of Subsidiaries
NU SKIN JAPAN COMPANY, LIMITED - a domesticated Delaware corporation with dual
residence in the United States and Japan.
NU SKIN TAIWAN, INC. - a Utah corporation operating in Taiwan through a branch.
NU SKIN KOREA, INC. - a domesticated Delaware corporation with dual residence in
the United States and South Korea.
NU SKIN HONG KONG, INC. - a Utah corporation operating in Hong Kong through a
branch.
NU SKIN PERSONAL CARE (THAILAND) LIMITED - a domesticated Delaware corporation
with dual residence in the United States and Thailand.
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the use in the Prospectus constituting part of this
Registration Statement (Amendment No.2) on Form S-1 (No. 333-12073) of our
report dated September 10, 1996 relating to the combined financial statements of
Nu Skin Asia Pacific, Inc., which appears in such Prospectus. We also consent to
the references to us under the headings "Experts" and "Selected Combined
Financial and Other Information" in such Prospectus. However, it should be noted
that Price Waterhouse LLP has not prepared or certified such "Selected Combined
Financial and Other Information".
/s/ Price Waterhouse LLP
Price Waterhouse LLP
Salt Lake City, Utah
October 23, 1996
EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the use in the Prospectus constituting part of this
Registration Statement (Amendment No.2) on Form S-1 (No. 333-12073) of our
report dated September 10, 1996 relating to the balance sheet of Nu Skin Asia
Pacific, Inc., which appears in such Prospectus.
/s/ Price Waterhouse LLP
Price Waterhouse LLP
Salt Lake City, Utah
October 23, 1996
Exhibit 23.4
[LETTERHEAD OF GRANT THORNTON HONG KONG]
October 23, 1996
Board of Directors
Nu Skin Hong Kong, Inc.
Room 2503 Windsor House
311 Gloucester Road
Causeway Bay
Hong Kong
Gentlemen
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
We refer to our audit report, dated April 14, 1994 on the financial statements
of Nu Skin Hong Kong, Inc. - Hong Kong Branch as of September 30, 1993 and for
the year then ended, except for notes 2 and 8 to these financial statements as
to which the date is August 30, 1996.
We consent to the use of the aforementioned report in the Registration Statement
(Amendment No.2) on Form S-1 (333-12073) and Prospectus of Nu Skin Asia Pacific,
Inc.
Very truly yours
/s/ Grant Thornton
GRANT THORNTON
