STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement (the "Agreement") is entered into as of
December 10, 1997 by and between The MAR Trust (the "Seller") and Nu Skin Asia
Pacific, Inc., a Delaware corporation (the "Purchaser").
WHEREAS, the Seller desires to sell to the Purchaser and the Purchaser
desires to purchase from the Seller an aggregate of Fifty-Four Thousand Seven
Hundred Sixty-Four (54,764) shares of the Class B Common Stock, par value $.001
per share of the Purchaser (the "Purchase Shares") upon the terms and conditions
set forth below;
NOW THEREFORE, in consideration of the premises and the mutual covenants
and undertakings contained herein, and subject to and on the terms and
conditions herein set forth, the parties hereto hereby agree as follows:
1. PURCHASE AND SALE OF SHARES.
1.1 Purchase and Sale. Subject to the terms and conditions set
forth herein, the Seller agrees to sell to the Purchaser, and the Purchaser
agrees to purchase from the Seller, the Purchase Shares at the Closing (as
hereinafter defined) for $14.31 per share (the "Purchase Price Per Share"),
which represents an aggregate Purchase Price of $783,672.84. The Purchaser shall
purchase no less than all of the Purchase Shares pursuant to this Agreement.
1.2 Closing. The Closing of the purchase and sale of the Purchase
Shares (the "Closing") will be held at the office of the Purchaser at such time
and on such date as may be agreed upon by the Seller and the Purchaser provided,
that, the Closing shall not occur later than March 31, 1998 and further provided
that the obligation of the Purchaser to purchase the Purchase Shares shall be
subject to the conditions that the representations and warranties of the Seller
as set forth herein shall be true and correct as of the Closing and that the
Purchaser shall have received a certificate signed by the Seller to that effect.
1.3 Delivery and Payment. At the Closing (i) the Seller shall
deliver to the Purchaser a certificate or certificates representing the Purchase
Shares, properly endorsed or accompanied by stock powers properly endorsed for
transfer, accompanied by payment of any applicable stock transfer taxes with
respect to such Purchase Shares together with a Substitute Form W-9 in the form
attached hereto as Schedule I; (ii) the Purchaser shall deliver to the Seller as
payment for the Purchase Shares sold by the Seller cash in an amount equal to
the product of the Purchase Price Per Share multiplied by the number of Purchase
Shares sold by the Seller; and (iii) the Purchaser and the Seller shall execute
and deliver, each to the other, such other documents and instruments as may
reasonably be required in order to effect the Closing and transfer the Purchase
Shares to the Purchaser. At Closing, the Seller will pay the costs related to
the transactions described herein. Additionally, the Seller shall pay all taxes
payable in connection with the transaction contemplated herein and the Purchaser
may, if required by law, withhold such taxes from the Purchase Price per share
payable to the Seller. The Seller will execute all forms and documents necessary
to effect such withholding.
2. REPRESENTATIONS AND WARRANTIES OF THE SELLERS. The Seller hereby
represents and warrants to the Purchaser as of the date hereof and as of the
Closing as follows:
2.1 Existence and Authority. The Seller has the full right, power
and authority under the relevant trust agreement (a true, correct and complete
copy of which has been delivered to the Purchaser), to
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execute and deliver, and to perform its obligations under, this Agreement and
all other agreements, certificates and documents executed or delivered, or to be
executed or delivered, by the Seller in connection herewith (individually, with
this Agreement, the "Seller's Documents"), and the trustee has taken all
necessary action to authorize, on behalf of the trust, the execution and
delivery of, and performance of its obligations under, the Seller's Documents.
2.2 No Conflict. The execution and delivery of the Seller's
Documents do not, and the consummation of the transactions contemplated hereby
and thereby, will not, violate, conflict with, result in a breach of, constitute
a default under or require any notice, consent, approval or order under (i) any
agreement, certificate, indenture or other instrument to which the Seller is a
party, or by which the Seller or any of its assets may be bound, or (ii) any
statute, rule, regulation or other provision of law, any order, judgment,
decree, arbitration award or other direction of or stipulation with a court or
other tribunal, or any governmental permits, registration, license or
authorization applicable to the Seller or any of its assets; nor will such
execution, delivery and consummation result in the creation of any liens,
pledges, security interests, encumbrances, charges or claims of any kind
whatsoever upon any asset of the Seller.
2.3 Validity. This Agreement has been duly executed and delivered
by the Seller, and the Seller's Documents are (or when executed and delivered
will be) legal, valid and binding obligations of the Seller who is a party
hereto and thereto, enforceable against such Seller in accordance with their
respective terms, except as the enforceability thereof may be limited by any
applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent
conveyance or other laws affecting the enforcement of creditors' rights
generally, and by general principles of equity.
2.4 Title and Conveyance. The Seller has the full right, power and
authority to sell, assign, transfer and deliver the Purchase Shares to be sold
by such Seller as provided herein, and such delivery will convey to the
Purchaser lawful, valid, good and marketable title to the Purchase Shares, free
and clear of any and all liens, pledges, security interests, options,
encumbrances, charges, agreements or claims of any kind whatsoever.
2.5 Informed Decision. The Seller is in possession of all reports
and documents filed by the Purchaser with the Securities and Exchange Commission
and has reviewed such filings and such other information regarding the Purchaser
and its business and business plan as the Seller deems relevant to make an
informed decision to sell the Purchase Shares to the Purchaser. The Seller with
its legal, tax and financial advisors has investigated the Purchaser and its
business and has negotiated the transaction contemplated herein and has
independently determined to sell the Purchase Shares to the Purchaser on the
terms described herein. The Seller alone or with the assistance of its legal,
tax and financial advisors is knowledgeable and experienced in financial and
business matters and is capable of making an informed decision to sell the
Purchase Shares to the Purchaser. The Seller acknowledges and agrees that the
Purchaser has not solicited the acquisition of the Purchase Shares; rather the
transaction contemplated herein was solicited by the Seller. No representation
is being or has been made by the Purchaser or its advisors to the Seller
regarding the tax or other effects to the Seller of the transactions
contemplated herein. The transactions contemplated herein are not being effected
through a broker or dealer or on or through any exchange.
2.6 Litigation. There are no actions, suits, proceedings, claims or
governmental investigations pending or, to the best knowledge of the Seller,
threatened against the Seller. The Seller is not subject or a party to any
order, judgment, decree, arbitration award or other direction of or stipulation
with any court or other tribunal, or in violation of any statute, rule,
regulation or other provision of law, or any governmental permit, registration,
license or authorization, and the Seller knows of no reasonable basis for a
claim that such a violation exists.
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3. REPRESENTATIONS AND WARRANTIES OF THE PURCHASER. The Purchaser hereby
represents and warrants as follows:
3.1 Existence and Authority. The Purchaser (i) is a corporation
duly organized, validly existing and in good standing under the laws of the
State of Delaware, (ii) has all requisite corporate power to execute and
deliver, and to perform its obligations under, this Agreement; and (iii) has
taken all necessary corporate action to authorize the execution and delivery,
and performance of its obligations under, this Agreement.
3.2 No Conflict. The execution and delivery of this Agreement do
not, and the consummation of the transactions contemplated hereby will not,
violate, conflict with, result in a breach of, constitute a default under or
require any notice, consent, approval or order under (i) any provision of the
Purchaser's Certificate of Incorporation or Bylaws, (ii) any agreement,
indenture or other instrument to which the Purchaser is a party or by which the
Purchaser or its assets may be bound or (iii) any statute, rule, regulation or
other provision of law, any order, judgment, decree, arbitration award or other
direction of or stipulation with a court or other tribunal, or any governmental
permit, registration, license or authorization applicable to the Purchaser.
3.3 Validity. This Agreement has been duly executed and delivered
by the Purchaser and is a legal, valid and binding obligation of the Purchaser,
enforceable against the Purchaser in accordance with its terms, except as the
enforceability thereof may be limited by any applicable bankruptcy, insolvency,
reorganization, moratorium, fraudulent conveyance or other laws affecting the
enforcement of creditors' rights generally, and by general principles of equity.
4. INDEMNIFICATION. The Seller agrees (i) to indemnify and hold harmless
the Purchaser and its affiliates and their respective directors, officers,
employees, agents and controlling persons (the Purchaser and each such person
being an "Indemnified Party") from and against any and all losses, claims,
damages and liabilities, joint or several, to which such Indemnified Party may
become subject under any applicable federal or state law or otherwise, relating
to or arising out of any breach, nonperformance or the violation (including but
not limited to the failure of any of the representations and warranties of the
Seller set forth in Section 2 hereof to be true and correct as of the applicable
date) by the Seller or any provision of the Seller's Documents and (ii) to
reimburse any Indemnified party for all expenses (including but not limited to
counsel fees and expenses) as they are incurred in connection with the
investigation of, preparation for or defense of any pending or threatened claim
or any action or proceeding arising therefrom, whether or not such Indemnified
Party is a party and whether or not such claim, action or proceeding is
initiated or brought by or on behalf of the Seller. The Seller will not be
liable under the foregoing indemnification provision to the extent that any
loss, claim, damage, liability or expense is found in a final judgment by a
court to have resulted from the Purchaser's bad faith or gross negligence.
5. MISCELLANEOUS.
5.1 Specific Performance. The parties acknowledge that money
damages are not an adequate remedy for violations of this Agreement and that any
party may, in its sole discretion, apply to a court of competent jurisdiction
for specific performance or injunctive or such other relief as such court may
deem just and proper in order to enforce this Agreement or prevent any violation
hereof and, to the extent permitted by applicable law, each party waives any
objection to the imposition of such relief.
5.2 Successors and Assigns. The provisions of this Agreement shall
be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns; provided, that no party
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may assign, delegate or otherwise transfer any of its rights or obligations
under this Agreement without the consent of each other party hereto.
5.3 No Third-Party Beneficiaries. No provision of this Agreement is
intended to confer upon any person or entity other than the parties hereto any
rights or remedies hereunder, except for the indemnification provisions
contained in Section 4, which provisions may be enforced by the parties to be
indemnified thereunder.
5.4 Survival. The provisions of Section 4 and the representations
and warranties of the Seller set forth in Section 2 hereof shall survive the
Closing. Except as provided in the immediately preceding sentence, the
covenants, agreements, representations and warranties of the parties hereto
contained in this Agreement shall not survive the Closing; provided, that the
covenants and agreements that, by their terms, are to have effect or be
performed after the Closing date shall survive in accordance with their terms.
5.5 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Utah without regard to the
laws that might otherwise govern under applicable principles of conflicts of
laws.
5.6 Counterparts. This Agreement may be signed in any number of
counterparts, each of which shall be an original, but all of which together
shall constitute one and the same instrument. Each counterpart may consist of a
number of copies each signed by less than all, but together signed by all, the
parties hereto.
5.7 Further Assurances. The Seller agrees to execute and deliver to
the Company all documents and instructions necessary to effect the transaction
contemplated herein.
IN WITNESS WHEREOF, the undersigned have duly executed this Agreement as
of the date first above written.
NU SKIN ASIA PACIFIC, INC. THE MAR TRUST
By: ___________________________ By:
Its: ___________________________ Xxxxx X. Halls
Its:Trustee
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SCHEDULE I
Each Seller is required to give the Purchaser his or her social security
number or the employer identification number of the record owner of shares of
Class B Common Stock tendered pursuant to this Agreement.
Social Security Number
or Employer
Part 1: Please provide your TIN in the box at Identification Number
Substitute Form W-9 right and certify by signing and dating below ____________
Department of the Treasury Part 3: Certification. Part 2: Awaiting TIN
Internal Revenue Service 1. Under penalties of perjury, I certify that the
information provided on this form is true,
Payor's Request for Taxpayer's correct and complete.
Identification Number (TIN) 2. Under penalties of perjury, I certify that I am
not subject to backup withholding because:
(a) I am exempt from backup withholding,
(b) I have not been notified that I am subject
to backup withholding as a result of my
failure to report all interest or dividends, or
(c) the Internal Revenue Service has notified
me that I am no longer subject to backup
withholding.
The Internal Revenue Service does not require your consent to any provision of
this document other than the certifications required to avoid backup
withholding.
SIGNATURE___________________________________ DATE ___________________
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