EX-10.49
DEFERRED COMPENSATION PLAN
(New Participant Form)
THIS DEFERRED COMPENSATION PLAN (hereinafter referred to as "Plan") is
entered into effective this ____ day of ____, 19__ , by and between NU SKIN
INTERNATIONAL, INC., a Utah corporation, hereinafter called "Company" and by
[Name of Employee], hereinafter called "Employee".
WITNESSETH:
FOR AND IN CONSIDERATION of the mutual covenants, promises and
conditions herein contained, the parties agree as follows:
1. TERM OF PLAN. This Plan shall become effective as of the above date
and shall remain in effect until the entire amount of the Deferred Compensation
Trust (hereinafter referred to as "Compensation Trust") has been distributed to
the Employee or his designated beneficiary, or forfeited to the Company pursuant
to the terms of this Plan. Employee hereby accepts this Plan and agrees to serve
at the discretion of the Company and to devote his full time and talents to the
business conducted by the Company.
2. OTHER AGREEMENTS, SUPERSEDURE. This Plan shall not supersede any
other contract of employment, whether written or oral, between the Company and
Employee. However, any article or clause of any other contract which may be in
conflict with this Plan shall be deemed amended by this Plan as herein provided.
3. COMPENSATION ACCOUNTS AND TRUST. Upon the execution of this Plan, the
Company will establish an Account on the Company's books for the benefit of
Employee (the "Compensation Account"). The Compensation Account will contain two
sub-accounts; the "Employee Compensation Sub-Account" and the "Company
Compensation Sub-Account." In addition, the Company shall establish the
Compensation Trust to facilitate the performance of its deferred compensation
obligation. The Compensation Trust may be amended as convenient or required to
permit the inclusion therein of plans similar to the Plan as a "Plan" as defined
in the Compensation Trust agreement.
4. EMPLOYEE CONTRIBUTIONS. Prior to the beginning of each fiscal year of
the Company during which the Employee is employed, the Employee may elect to
defer a portion of the compensation to be paid to the Employee for the coming
year ("Employee Contribution"). The Employee Contribution shall be credited by
the Company to the Employee Compensation Sub-Account at the times at which the
compensation would have been paid except for the deferral election (i.e., if the
Employee elects to defer a
portion of his normal bi-weekly compensation then the deferred portion shall be
credited to the Employee Compensation Sub-Account on a bi-weekly basis). For
purposes of the fiscal year in which this Plan is first implemented, the
election by the Employee shall be made within thirty (30) days after this Plan
is effective.
5. COMPANY CONTRIBUTIONS. Until this Plan is terminated as provided for
herein, the Company will make a contribution ("Company Contributions") to the
Company Compensation Sub-Account, subject to and based upon the continued
profitability of the Company and the continued employment and performance of the
Employee, which Company Contributions shall be as follows: On or before the end
of each fiscal year of the Company during which the Employee works, the Board of
Directors of the Company shall determine in their sole discretion an amount to
be credited to the Company Compensation Sub-Account for the fiscal year, which
amount shall not be less than ten percent (10%) of the Base Salary of the
Employee for the fiscal year, determined prior to the deferral of any
compensation pursuant to this Plan, and exclusive of all bonuses, commissions
and other compensation paid to the Employee. For purposes of this paragraph 5,
there shall be included as a year in which the Employee works, any year in which
the Employee is on leave of absence from the Company and is serving as a
full-time missionary for any legally recognized ecclesiastical organization, and
there shall be credited to the Company Compensation Sub-Account for any such
year an amount not less than ten percent (10%) of the Base Salary of the
Employee for the most recent preceding fiscal year in which the Employee was
employed throughout the year by the Company.
For all purposes of this Agreement, the term Company Contributions will
include all contributions to the Company Compensation Sub-Account by the Company
or by any Affiliate of the Company. Further, the term Base Salary shall include
the Base Salary received by Employee from the Company or by an Affiliate of the
Company. An Affiliate of the Company is a company that directly or indirectly,
through one or more intermediaries, controls, or is controlled by, or is under
common control with the Company.
6. CONTRIBUTIONS TO COMPENSATION TRUST. On at least a
annual basis, the amount in the Compensation Account shall be
contributed to the Compensation Trust.
7. ACCOUNTING. At the end of each fiscal year the Company shall notify
the Employee in writing as to the amount, if any, that has been credited to the
Employee Compensation Sub-Account, the Company Compensation Sub-Account and
contributed to the Compensation Trust for the past fiscal year and the total
amount held in the Compensation Trust for the benefit of the Employee with the
earnings thereon. The accounting shall specify the vested portion of amounts
held pursuant to the Plan.
8. NATURE OF COMPANY'S OBLIGATION. The Company's obligations under this
Plan shall be an unfunded and unsecured promise to pay. The Company shall not be
obligated under any circumstances to fund its financial obligations under this
Plan. Any assets which the Company may acquire to help cover its financial
liabilities are and remain general assets of the Company subject to the claims
of its creditors. Neither the Company nor the Plan created hereby gives the
Employee any beneficial ownership interest in any asset of the Company. All
rights of ownership in any such assets are and remain in the Company. All assets
in the Compensation Account and in the Compensation Trust shall always be deemed
to be assets of the Company subject to the general creditors of the Company. The
Employee shall have no vested right in the Compensation Account or the
Compensation Trust. The assets in the Compensation Account and Compensation
Trust shall be held pursuant to this Plan and shall remain the sole and
exclusive property of the Company and shall be subject to corporate general
creditors.
9. EMPLOYEE RIGHT TO ASSETS.
a. The rights of the Employee, any Designated Beneficiary of the
Employee, or any other person claiming through the Employee under this
Plan, shall be solely those of an unsecured general creditor of the
Company. The Employee, the Designated Beneficiary of the Employee, or
any other person claiming through the Employee, shall have the right to
receive those payments specified under this Plan only from the Company,
and has no right to look to any specific or special property separate
from the Company to satisfy a claim for benefit payments, including but
not limited to the Compensation Trust.
b. The Employee agrees that he, his Designated Beneficiary, or
any other person claiming through him shall have no rights or beneficial
ownership interest whatsoever in any general asset that the Company may
acquire or use to help support its financial obligations under this
Plan, including but not limited to the Compensation Trust. Any such
general asset used or acquired by the Company in connection with the
liabilities it has assumed under this Plan, shall not be deemed to be
held under any trust for the benefit of the Employee or his Designated
Beneficiary. Nor shall any such general asset be considered security for
the performance of the obligations of the Company. Any such asset shall
remain a general, unpledged, and unrestricted asset of the Company.
c. The Employee also understands and agrees that his
participation in the acquisition of any such general asset for the
Company shall not constitute a representation to the Employee, his
Designated Beneficiary, or any person claiming through the Employee that
any of them has a special or
beneficial interest in such general asset.
10. RETIREMENT BENEFITS. At such time as Employee terminates employment
with the Company (which time shall hereafter be referred to as "Retirement
Date") the Company will pay a deferred compensation benefit ("Retirement
Benefit") to Employee. The amount of the Retirement Benefit shall be equal to
the vested portion of the amount contributed to the Compensation Trust from the
Compensation Account together with any earnings thereon as of the Retirement
Date of the Employee. The Retirement Benefit shall be paid to Employee in 60
equal monthly installments, with the first payment commencing 30 days after the
Employee reaches his Retirement Date. The Company may, in its discretion,
accelerate any payments to the Employee and may accelerate vesting of the
benefits under the plan. In addition, the Company in its discretion may pay the
Retirement Benefit prior to termination of Employee's employment with the
Company. The Company may, in its discretion, accelerate any payments to the
Employee and may accelerate vesting of the benefits under the plan.
11. DISABILITY BENEFITS. If it is determined using social security
standards that the Employee is permanently and totally disabled and unable to
continue to perform his duties in the Company, and on the express condition that
the Employee has satisfied all of the covenants, conditions and promises
contained in this Plan (to the extent applicable) the Company shall pay to the
Employee the vested portion of the amount contributed to the Compensation Trust
from the Compensation Account together with any earnings thereon as of the date
that disability is determined ("Disability Benefit"). The Disability Benefit
shall be paid to the Employee in 60 equal monthly installments to commence 30
days after disability is established to the satisfaction of the Company. The
Company may, in its discretion, accelerate any payments to the Employee and may
accelerate vesting of the benefits under the plan.
12. DEATH BENEFITS.
a. Pre-retirement death benefit. Upon the death of Employee prior
to his Retirement Date, a Death Benefit shall be paid to Employee's
estate (or his designated beneficiary) in an amount equal to sum of the
following ("Death Benefit"):
(i) The amount contributed to the Compensation Trust from
the Employee Compensation Sub-Account together with any
earnings thereon as of the date of the Employee's death;
and
(ii) the greater of (a) the vested portion of the amount
contributed to the Compensation Trust from the
Compensation Account together with any
earnings thereon as of the date of the Employee's death;
or (b) an amount equal to five times the average of the
Employee's Base Salary for the three most recent years.
The Death Benefit shall be paid in 60 equal monthly installments
to commence 30 days after the death of Employee. The Company may, in its
discretion, accelerate any payments due and may accelerate vesting of
the benefits under the plan.
b. Post-retirement death benefit. If Employee dies after his
Retirement Date, the Employee's estate (or his designated beneficiary)
shall be entitled to receive the remaining unpaid vested portion of the
Retirement Benefit. The remaining Retirement Benefit shall be paid to
the Employee's estate (or his Designated Beneficiary) on the same basis
as it was being paid to the Employee as of Employee's Retirement Date.
The Company may, in its discretion, accelerate any payments due and may
accelerate vesting of the benefits under the plan.
c. For the purposes of this Section 12, the Employee shall be
deemed employed by the Company at any time during which the Employee is
on leave of absence from the Company and is serving as a full-time
missionary for any legally recognized ecclesiastical organization, at
the Base Salary of the employee in effect immediately prior to the
commencement of such leave of absence.
13. VESTING. Employee's right to receive the Benefits hereunder shall
vest as follows:
1. The Employee shall be 100% vested in all amounts contributed
to the Employee Compensation Sub-Account.
2. The Employee shall vest 100% in amounts contributed to the
Company Compensation Sub-Account if the Employee has been continuously
employed with the Company from the date of the Plan until the earlier of
the following events:
(a) The Employee attains 60 years of age; or
(b) The Employee has been continuously employed by the
Company for a period of twenty (20) years.
(c) The Employee's death or disability as defined in the
Plan.
3. No amounts contributed to the Company Compensation Sub-Account
shall vest unless the employee has been continuously employed by the
Company from the date of the
Plan until the events specified in paragraph 13.2 above.
4. Notwithstanding paragraphs 13.1, 13.2 and 13.3 above, Employee
shall forfeit all benefits accruing under this Plan if at any time
during his employment with the Company, Employee (1) directly or
indirectly enters into the employment of or owns any interest in any
other company, business or corporation which competes directly or
indirectly with the business of the Company, or (2) the Employee allows
the association of his name with or renders any service or assistance or
advice, whether or not for consideration, to any other corporation,
company or business which company, business or corporation is in
competition with the Company.
5. For purposes of this paragraph 13, there shall be included in
the time the Employee is deemed continuously employed by the Company any
time in which the Employee is on leave of absence from the Company and
is serving as a full-time missionary for any legally recognized
ecclesiastical organization.
14. NATURE OF BENEFITS. It is expressly understood that when Benefits
provided for herein are payable, they are payable on account of the past
services of Employee and are not payable on account of services to be rendered
after the date the Employee retires or terminates. Further, all amounts to be
paid hereunder do not depend on Employee serving as a consultant or the Employee
serving in any capacity for the Company after the Employee's Retirement.
Benefits payable hereunder are specifically meant to be paid upon the
termination, retirement, death or disability of the Employee as deferred
compensation.
15. INVESTMENT DISCRETION. All amounts contributed to the Contribution
Account under this Plan, and any and all earnings thereon may be invested or
utilized by the Company as the Company, in its sole and absolute discretion, may
determine, including, without limitation, in any aspect of the business or
operations of the Company. The Company may exercise this discretion to determine
the amount of earnings on any amounts contributed to the Contribution Account
for any period.
16. NONASSIGNABILITY. It is expressly understood and agreed hereunder
that the Benefits derived from this Plan are not subject to attachment for
payment of any debts or judgments of Employee and neither Employee nor the
Employee's spouse or heirs shall have any right to transfer, modify, anticipate,
encumber, or assign any of the Benefits or rights hereunder. None of the
payments which may be due to the Employee shall be transferrable by operation of
law in the event the Employee becomes insolvent or bankrupt.
17. MERGER OR CONSOLIDATION. In the event the Company shall reorganize,
consolidate or merge with any other company this Plan shall become an obligation
of the new company or of any company taking over the duties and responsibilities
of the Company. The Company agrees that if any of these events occur, Employee
may request that a Rabbi trust be established to hold the Benefits.
18. LIQUIDATION AND INSOLVENCY. In the event the Company must liquidate
due to insolvency or events resulting in an act of bankruptcy, or in the event
the Company becomes insolvent and is incapable of paying its bills and
obligations, then this Agreement shall terminate and shall be considered as
fully and completely discharged.
19. PAYMENTS TO OTHER PERSONS. If the Company shall find that any person
to whom any payment is to be made under this Plan is unable to care for his
affairs because of illness or accident, or is a minor, any Benefit due (unless a
prior claim therefor shall have been made by a duly appointed guardian,
committee or other legal representative) may be paid to the spouse, a child, a
parent, or a brother or sister, or to any person deemed by the Company to have
incurred expenses for such person otherwise entitled to payment, in such manner
and proportions as the Company may determine. Any such payment shall be a
complete discharge of the liabilities of the Company under this Plan.
20. LIMITATIONS OF THIS PLAN. Nothing contained herein shall be
construed as conferring upon the Employee the right to continue in the employ of
the Company in any capacity.
21. OTHER BENEFITS DETERMINED BY COMPENSATION. All amounts credited to
the Account under this Plan shall not be deemed to be part of the Employee's
regular annual compensation for the purpose of computing benefits to which he
may be entitled under any pension, profit sharing, 401(k) plan or other
arrangement of the Company for the benefit of its employees.
22. BOARD OF DIRECTORS AUTHORITY. The Board of Directors of the Company
shall have full power and authority to interpret, construe and administer and
amend prospectively this Plan and the Board's interpretations and construction
hereof and actions hereunder shall be binding and conclusive on all persons for
all purposes. No Employee, representative or agent of the Company shall be
liable to any person for any action taken or omitted in connection with the
interpretation and administration of this Plan unless attributable to his own
willful misconduct or lack of good faith.
23. AMENDMENT. During the lifetime of the employee, this Plan may be
amended or revoked at any time, in whole or part, by the mutual written
agreement of the parties.
24. BINDING EFFECT. This Plan shall be binding upon the parties hereto,
their heirs, assigns, successors, executors, administrators and they shall agree
to execute any and all instruments necessary for the fulfillment of the terms of
this Plan.
25. APPLICABLE LAW. This Plan shall be construed in accordance with and
governed by the laws of the State of Utah.
26. COMPENSATION TRUST. The Company may effect such amendments to the
Compensation Trust Agreement dated September 23, 1993 as convenient or required
to be consistent with this Amended Agreement and/or is required to make or
continue to make the Compensation Trust Agreement in compliance with Internal
Revenue Service Revenue Procedure 92-64 or any amendments or replacements
thereto.
IN WITNESS WHEREOF the parties hereto have set their hands the day and
year first above written.
COMPANY:
NU SKIN INTERNATIONAL, INC.
By ______________________________
Its___________________________
EMPLOYEE:
______________________________
[Name of Employee]
BENEFICIARY DESIGNATION
ENDORSEMENT:
The Employee pursuant to that certain Deferred Compensation Plan entered
into on the day of , 19 , by and between NU SKIN INTERNATIONAL, INC. and
Employee, does hereby designate the following beneficiary:
EMPLOYEE:
______________________________
[Name of Employee]
DEFERRED COMPENSATION CONTRIBUTION RECONCILIATION
TO: [Name of Employee]
DATE:
The amounts which have been credited pursuant to the Deferred
Compensation Plan for your benefit are as follows:
DEFERRED COMPENSATION PLAN CONTRIBUTION RECONCILIATION
================================================================================
NAME OF ACCOUNT AMOUNT ACCUMULATED VESTED
CONTRIBUTED VALUE PERCENTAGE
TO DATE
========================= ==================== ================== ==============
Employee 100%
Compensation Sub
Account
Company
Compensation Sub
Account 1998
Company
Compensation Sub
Account 1999
Company
Compensation Sub
Account 2000
Company
Compensation Sub
Account 2001
This reconciliation reflects the amounts as set forth on the books and
records of the Company as of the date set forth above and does not guarantee the
amount or availability of any benefit under the Plan. The amount or availability
of any benefit under the Plan must be determined by reference to the terms and
conditions of the Plan.
