EXHIBIT 10.25
AMENDED AND RESTATED STOCKHOLDERS AGREEMENT
This Amended and Restated Stockholders Agreement (this "Agreement"), is
entered into as of November 28, 1997 by and among the persons and entities
listed on the signature pages of this Agreement (individually, an "Initial
Stockholder" and collectively, the "Initial Stockholders"), and Nu Skin Asia
Pacific, Inc., a corporation organized under the laws of the State of Delaware
(the "Company").
RECITALS
A. WHEREAS, the Initial Stockholders own shares of the Class B Common
Stock, $0.001 par value per share ("Class B Common Stock"), of the Company,
which shares of Class B Common Stock are convertible at any time on a
one-for-one basis into shares of the Company's Class A Common Stock, $0.001 par
value per share ("Class A Common Stock") (the shares of the Company's Class A
Common Stock and Class B Common Stock held at any time during the term of this
Agreement by any of the Initial Stockholders, whether now owned or hereafter
acquired, are collectively referred to hereinafter as the "Shares");
B. WHEREAS, the Initial Stockholders entered into that certain
Stockholders Agreement dated as of November 20, 1996 and subsequently entered
into that certain Amendment to Stockholders Agreement dated as of May 29, 1997
(collectively referred to hereinafter as the "Original Stockholders Agreement");
and
C. WHEREAS, the Initial Stockholders desire to amend and restate in its
entirety the Original Stockholders Agreement as provided below;
NOW THEREFORE, in consideration of the premises and the mutual
agreements set forth herein and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
1. DEFINITIONS. For purposes of this Agreement, the following terms
shall have the following meanings:
1.1 "Agreement" shall have the meaning given such term in the
introductory paragraph of this Agreement.
1.2 "Attorney-in-Fact" shall have the meaning given such term in
Section 5.3 hereof except as such term is otherwise used in
Section 3.2.2 hereof.
1.3 "Class A Common Stock" shall have the meaning given such term
in Recital A hereof.
1.4 "Class B Common Stock" shall have the meaning given such term
in Recital A hereof.
1.5 "Company" shall have the meaning given such term in the
introductory paragraph of this Agreement.
1.6 "Cure Notice" shall have the meaning given such term in
Section 3.2.1 hereof.
1.7 "Demand Request" shall have the meaning given such term in
Section 9.3 hereof.
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1.8 "Equity Incentive Shares" shall have the meaning given such
term in Section 5.1 hereof. 1.9 "Exercise Notice" shall have
the meaning given such term in Section 4.2.3 hereof.
1.10 "Extended Lock-up Period" shall have the meaning given such
term in Section 2.2 hereof.
1.11 "Fair Market Value" shall be the average closing price of the
Company's Class A Common Stock as reported on the New York
Stock Exchange for the 20 trading days immediately prior to
the date of the closing of the stock repurchase transaction
described in Section 2.4 hereof or the date of a margin call
or event of default as described in Section 3.2.1 hereof.
1.12 "Fixed CRT Stockholder" shall have the meaning given such term
in Section 2.3.4.
1.13 "Initial Lock-up Period" shall have the meaning given such
term in Section 2.2 hereof.
1.14 "Initial Stockholders" or "Initial Stockholder" shall have the
meaning given such terms in the introductory paragraph of this
Agreement.
1.15 "Institution" shall have the meaning given such term in
Section 3.2.1 hereof.
1.16 "Involuntary Transfer" shall have the meaning given such term
in Section 4.1 hereof.
1.17 "LLG&M" shall have the meaning given such term in Section 7.3
hereof.
1.18 "Makers" shall have the meaning given such term in Section 10
hereof.
1.19 "Merrill" shall have the meaning given such term in Section
2.3.2.
1.20 "NSI" shall have the meaning given such term in Section 2.2
hereof.
1.21 "NSI Acquisition" shall have the meaning given such term in
Section 2.2 hereof.
1.22 "Notice Period" shall have the meaning given such term in
Section 4.2.3 hereof.
1.23 "Offer Notice" shall have the meaning given such term in
Section 4.2.2 hereof.
1.24 "Offered Shares" shall have the meaning given such term in
Section 4.2.1 hereof.
1.25 "Offering Stockholder" shall have the meaning given such term
in Section 4.2.1 hereof.
1.26 "Original Stockholders Agreement" shall have the meaning given
such term in Recital B hereof.
1.27 "Pledge" or any derivation of such term shall have the meaning
given such term in Section 3.2.1 hereof.
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1.28 "Purchase Periods" shall have the meaning given such term in
Section 4.2.4 hereof.
1.29 "Purchasing Stockholder" shall have the meaning given such
term in Section 4.2.3 hereof.
1.30 "Restricted Stock" shall have the meaning given such term in
Section 9.1 hereof.
1.31 "Restricted Resale Period" shall have the meaning given such
term in Section 2.3 hereof.
1.32 "Right of First Offer" shall have the meaning given such term
in Section 4.2.1 hereof.
1.33 "Rule 144 Allotment" shall have the meaning given such term in
Section 2.3 hereof.
1.34 "SEC" shall have the meaning given such term in Section 9.3
hereof.
1.35 "Securities Act" shall have the meaning given such term in
Section 3.1 hereof.
1.36 "Selling Expenses" shall have the meaning given such term in
Section 9.6 hereof.
1.37 "Shares" shall have the meaning given such term in Recital A
hereof.
1.38 "Share Repurchase" shall have the meaning given such term in
Section 2.4 hereof.
1.39 "Stockholder" or "Stockholders" shall mean the following
persons and entities: (i) each Initial Stockholder and his,
her or its assignees hereunder and his, her or its respective
estate, guardian, conservator, committee, trustee, manager,
partner or officer and his, or her spouse; (ii) each person or
entity that becomes a party hereto pursuant to Section 3.3
below; (iii) each descendant of each Initial Stockholder and
his, her or its respective estate, guardian, conservator,
committee, trustee, manager, partner or officer; and (iv) each
Stockholder Controlled Entity.
1.40 "Stockholder Controlled Entity" shall mean the following
entities: (i) any not-for-profit corporation of which an
Initial Stockholder or his or her descendants can elect at
least eighty percent (80%) of its board of directors; (ii) any
other corporation if at least eighty percent (80%) of the
value of its outstanding equity is owned by an Initial
Stockholder or his or her descendants; (iii) any partnership
if at least eighty percent (80%) of the value of its
partnership interests is owned by an Initial Stockholder or
his or her descendants or spouse; (iv) any limited liability
company or similar company if at least eighty percent (80%) of
the value of such company is owned by an Initial Stockholder
or his or her descendants or spouse; and (v) any trust if an
Initial Stockholder is a settlor, trustee or beneficiary of
the trust.
1.41 "Transfer" or any other derivation of such term shall have the
meaning given such term in Section 2.1 hereof.
2. RESTRICTIONS ON TRANSFER; LOCK-UP; STOCK REPURCHASE.
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2.1 Restriction on Transfers. Each of the Stockholders hereby agrees
that he, she or it shall not sell, assign, give, bequeath, transfer, distribute,
pledge, hypothecate or otherwise encumber, convey or dispose of (collectively,
"Transfer") any of the Shares owned by him, her or it (whether now owned or
hereafter acquired) except as otherwise allowed by this Agreement. Any attempted
or purported Transfer of any Shares by any Stockholder in violation or
contravention of the terms of this Agreement shall be void. The Company shall,
and shall instruct its transfer agent to, reject and refuse to transfer on its
books any Shares that may have been Transferred in violation or contravention of
any of the provisions of this Agreement and shall not recognize any person,
estate, executor, administrator, firm, association, corporation or entity
holding any of the Shares as being a stockholder of the Company, and any such
person, estate, executor, administrator, firm, association, corporation or
entity shall not have any rights as a stockholder of the Company. In addition to
any other remedies available to the parties to this Agreement either at law, in
equity or pursuant to this Agreement, no dividends shall be paid on, nor any
distribution made on, any Shares that are Transferred in violation or breach of
this Agreement.
2.2 Lock-up Agreement. Notwithstanding any provision of this Agreement
to the contrary, except for Transfers pursuant to Sections 3 and 5, from and
after the date hereof each Initial Stockholder will not, without the prior
written consent of the Company, jointly or individually, Transfer, offer, make
any short sale of, contract to sell, lend, grant any option for the purchase of,
or otherwise dispose of, directly or indirectly, any Shares owned of record or
beneficially by such Initial Stockholder on the date hereof until November 28,
1998 (the "Initial Lock-up Period"). In the event the Company, on or before
November 28, 1998, effects a registered underwritten secondary offering of
Shares generating proceeds to the Stockholders offering Shares therein (before
deduction of underwriting discounts or commissions) of at least $200,000,000,
allocated among the Stockholders participating in such underwritten secondary
offering in accordance with the "Participation Percentages" listed on Schedule
"A" attached hereto, or acquires all of the outstanding capital stock or
substantially all of the assets of Nu Skin International, Inc. ("NSI") in a
single transaction or series of transactions for aggregate value including at
least $100,000,000 in cash to the NSI Stockholders and on terms approved by a
majority of the members of the NSI Board of Directors and by a majority of the
votes entitled to be cast by the NSI shareholders in connection with such
transaction or series of transactions (the "NSI Acquisition"), the lock-up
agreement described in this Section 2.2 shall automatically be extended until
one year following the closing date of the first to occur of (i) such
underwritten secondary public offering or (ii) the NSI Acquisition (the
"Extended Lock-up Period").
2.3 Post Lock-up Selling Restrictions. Except as otherwise provided
herein, for one year following the last to expire of (i) the Initial Lock-up
Period, and (ii) the Extended Lock-up Period (the "Restricted Resale Period"),
all sales of Shares in a public resale pursuant to Section 4(1) of the
Securities Act or Rule 144 promulgated thereunder or pursuant to any other
exempt transaction under the Securities Act, shall not exceed in any calendar
quarter the Stockholder's specified Rule 144 Allotment (as defined below). Each
Stockholder's Rule 144 Allotment shall be determined by multiplying (x) the
percentage listed next to the Stockholder's name on Schedule A attached hereto
under the heading "Percent Allocation of Total Rule 144 Volume" by (y) the
average weekly trading volume for the Company's Class A shares on the New York
Stock Exchange during the calendar quater immediately preceding any transfer
permitted during the Restricted Resale Period (the "Rule 144 Allotment"). In no
event, however, shall any Stockholder's Rule 144 Allotment, when aggregated with
the Rule 144 Allotment of all such Stockholder's Stockholder Controlled
Entities, be less than 20,000 shares per calendar quarter, with the exception of
those Stockholders identified on Schedule B, whose Rule 144 Allotment is
established in Section 2.3.5 below.
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2.3.1 Within the first ten days of each calendar quarter during the term
hereof, the Company will provide to each Stockholder a schedule listing such
Stockholder's Rule 144 Allotment for such calendar quarter. All Stockholders
desiring to sell Shares pursuant to Rule 144 during the Restricted Resale Period
shall give the Company's Secretary written notice of such Stockholder's
intention to sell no less than five business days prior to the proposed
transaction date.
2.3.2 Unless otherwise agreed by Stockholders holding at least forty
percent (40%) of the Shares subject to this Agreement, all dispositions under
Rule 144 shall be made exclusively through the Provo, Utah office or a specific
office in New York City (designated by the Company) of Xxxxxxx Xxxxx & Co.
("Merrill"). If a Stockholder determines that Xxxxxxx'x commission rate for
dispositions of Shares pursuant to Rule 144 is unreasonable in light of all
relevant facts, such Stockholder may effect sales of Shares pursuant to Rule 144
through another market-maker if approved in advance in writing by fifty percent
(50%) of the Shares subject to this Agreement. Nevertheless, if Shares are sold
under Rule 144 by an Institution who has received Shares through foreclosure of
a loan to a Stockholder or in satisfaction of a margin call, and the Company has
not exercised its right to purchase such Shares, such Institution shall be
entitled to sell such Shares through a market-maker of its choice.
2.3.3 If any Stockholder elects to sell in any calendar quarter in a
single transaction or series of transactions more than twenty-five percent (25%)
of his Rule 144 Allotment for such quarter, Merrill shall be given at least four
weeks to effect such transactions to minimize the impact on the market caused by
such selling.
2.3.4 Each Stockholder that is a Fixed Charitable Trust, as listed on
Schedule C attached hereto (the "Fixed CRT Stockholders"), agrees to use cash
currently held by such Stockholder to make the required minimum distributions to
beneficiaries. Each Fixed CRT Stockholder further agrees to participate in and
sell Shares through a registered secondary offering of Shares following the date
hereof to the extent possible and necessary to infuse additional cash into each
Fixed CRT Stockholder sufficient to make cash distributions to beneficiaries
prior to the expiration of the Restricted Resale Period. In the event there is
no registered secondary offering until expiration of the Restricted Resale
Period, each Fixed CRT Stockholder agrees to distribute Shares in lieu of cash
to the minimum extent required to the beneficiaries of such trust. With respect
to Stockholders who are also recipients of Shares distributed by Fixed CRT
Stockholders, the Rule 144 Allotment as defined above in Section 2.3 shall be
increased by that number of Shares required to be sold to satisfy any income tax
liability incurred by the recipient of the Shares as a result of the
distribution of such Shares from the Fixed CRT Stockholder. All Stockholders
agree not to transfer any Shares to a fixed charitable trust until after the
expiration of the Restricted Resale Period.
2.3.5 Notwithstanding anything herein to the contrary, the Rule 144
Allotment for any calendar quarter for those Stockholders listed on Schedule B
attached hereto shall be equal to five percent (5%) of the Shares held by such
Stockholder on the date hereof.
2.3.6 Notwithstanding anything herein to the contrary, in the event the
Company notifies Stockholders of its intent to file a registration statement
under the Securities Act for the public distribution of securities, on either a
primary or secondary basis, the Stockholders agree not to effect any sales of
Shares under Section 4(1) or Rule 144 of the Securities Act during a period
commencing on the date of such notice and ending ninety days after the
effectiveness of the registration statement.
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2.3.7 For purposes of calculating the Rule 144 volume limitations
applicable to Stockholders following the Restricted Resale Period, each
Stockholder agrees to be subject, following the Restricted Resale Period, to the
volume limitations of Rule 144(e) (or any successor rule) notwithstanding the
applicability of Rule 144(k) to such Stockholder.
2.4 Share Repurchase. Notwithstanding anything herein to the contrary,
the Initial Stockholders acknowledge and agree that the Company shall repurchase
Shares from certain Initial Stockholders and various donees of certain Initial
Stockholders in a transaction scheduled to close simultaneously with the
effectiveness of this Agreement (the "Share Repurchase"). The Share Repurchase
shall be effected with those persons or entities listed on Schedule D attached
hereto with respect to the number of Shares set forth opposite the name of each
person or entity (unless modified by the Company in an agreement with the person
or entity with whom the Share Repurchase is to be effected). The terms,
structure and conditions of the Share Repurchase shall be confirmed in written
instruments and documents required by the Company.
3. PERMITTED TRANSFERS. Notwithstanding anything herein to the contrary,
the Stockholders shall be permitted to Transfer Shares as provided in this
Section 3 and in Sections 4 and 5 of this Agreement and as otherwise agreed to
in writing by the Company and the holders of a majority of the Shares.
3.1 Public Sales, Private Resales, Gifts, Bequests and Distributions.
Subject to the terms and conditions of this Agreement, any Stockholder may
Transfer shares of Class A Common Stock (i) pursuant to a widely distributed
public offering of shares of Class A Common Stock registered by the Company
under the Securities Act of 1933, as amended (the "Securities Act"), pursuant to
the rights granted in Section 9 hereof; (ii) pursuant to an exempt private
resale transaction, (iii) to Initial Stockholders and spouses of Initial
Stockholders or to Stockholder Controlled Entities by sale, gift or bequest; and
(iv) by distribution from a Stockholder Controlled Entity that is a trust to one
or more beneficiaries thereof who are Stockholders.
3.2 Pledges to Institutions.
3.2.1 Any Stockholder may xxxxx x xxxx or security interest in, pledge,
hypothecate or encumber (collectively, a "Pledge") any Shares, other than the
Equity Incentive Shares beneficially owned by him, her or it to a nationally or
internationally recognized financial or lending institution with assets of not
less than $10,000,000,000 (an "Institution"); provided, however, that (i) no
Stockholder shall Pledge Shares to secure loans exceeding in the aggregate the
amounts set forth next to such Stockholder's name on Schedule E attached hereto
under the heading "Indebtedness Limit"; (ii) each Stockholder is required to
give the Secretary of the Company five day's prior written notice that he, she
or it intends to Pledge Shares to an Institution pursuant to this Section 3.2.1;
(iii) the Institution must agree in writing at or prior to the time such Pledge
is made that the Company shall have the right to satisfy any margin call or cure
any event of default by a Stockholder in connection with a loan by purchasing
any or all Shares Pledged at a price equal to fifty percent (50%) (except as
otherwise noted on Schedule E) of the Fair Market Value of the Shares subject to
the Pledge on the date of the margin call or event of default; (iv) the
Institution must agree in writing at or prior to any Pledge that it will give
written notice to the Company of any event of default or margin call with
respect to a Pledge at the same time notice is given to the Stockholder who
Pledged the Shares and that it will give the Company five business days to cure
the default or satisfy the margin call by purchasing any or all Shares Pledged
at a price equal to fifty percent (50%) (except as otherwise noted on Schedule
E) of the Fair Market Value of the Shares subject to the Pledge on the date of
the margin call or event of default; (v) the Institution must agree in writing
at or prior to the time of such Pledge that the Company may elect to satisfy
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any margin call or cure any event of default with respect to any
Pledge by (a) giving written notice (the "Cure Notice") to the Institution of
the Company's election to satisfy any margin call or cure any event of default
and listing in such Cure Notice the number of Shares to be purchased by the
Company from the Institution and (b) paying to the Institution by wire transfer
the purchase price for the Shares to be purchased by the Company; (vi) the
Institution must agree in writing at or prior to the Pledge that upon the
receipt of the Cure Notice and the payment for the Shares to be purchased, the
purchased Shares shall be immediately transferred and conveyed to the Company as
indicated in the Cure Notice; (vii) the Institution must agree in writing at or
prior to the time such Pledge is made that, in the event the amount paid by the
Company for Shares subject to the Pledge upon the occurrence of margin call or
event of default shall exceed the amount of the indebtedness due to the
Institution, the excess funds shall be paid by the Institution to the
Stockholder who pledged such Shares; and (viii) the Institution must acknowledge
to the Company in writing prior to the time the Pledge is made that it is aware
of this Agreement and agrees to be bound by the terms hereof. If both the
Company and the Stockholders who Pledged the Shares give notice of their
election or intent to cure the event of default or satisfy any margin call, the
first of them to make payment of the required amounts to the Institution shall
be deemed to have cured the event of default or satisfied the margin call, as
applicable. The parties hereto agree that the right given to the Company in this
Section 3.2.1 to purchase Shares in the event of a default or margin call with
respect to a Pledge will be exercisable only to satisfy a margin call or an
event of default under a Pledge, with no such right being exercisable in any
other event. Notwithstanding anything herein to the contrary, the loan to Xxxxx
X. Xxxxx of $5,000,000 made by the Company contemporaneously herewith shall not
be prohibited by this Agreement and said $5,000,000 amount shall not count
against the Indebtedness Limit of $20,000,000 for Xxxxx X. Xxxxx listed in
Schedule E.
3.2.2 Power of Attorney. Each Stockholder hereby appoints and
constitutes each of Xxxxx X. Xxxxx and Xxxxxx X. Xxxx, with full power of
substitution, as attorneys-in-fact to act in their name, place and xxxxx, to
transfer and convey to the Company all Shares purchased by the Company pursuant
to Section 3.2.1 and to execute and deliver all stock powers, endorse all stock
certificates and execute and deliver any and all instruments, documents and
agreements necessary to transfer all Shares purchased by the Company pursuant to
Section 3.2.1. The foregoing power of attorney is coupled with an interest and
is irrevocable. Each Stockholder agrees to indemnify and hold the Company and
Messrs. Xxxxx X. Xxxxx and Xxxxxx X. Xxxx, or their appointees, harmless from
and against any and all liabilities, claims, damages and expenses (including
attorney's fees, expert and court costs) incurred by the Company or Messrs.
Xxxxx X. Xxxxx or Xxxxxx X. Xxxx, or their appointees, in connection with the
exercise by the Company of its rights under Section 3.2.1 and the performance by
Messrs. Xxxxx X. Xxxxx and Xxxxxx X. Xxxx, or their appointees, of their duties
and responsibilities as attorneys-in-fact under this Section 3.2.2.
3.3 Application of Agreement to Shares After Transfers. All the
provisions of this Agreement shall apply to all of the Shares of the Company
owned beneficially or of record by a person or entity at the time he, she or it
is or becomes a party hereto or that may be issued hereafter or thereafter to a
Stockholder as a result of any additional issuance, purchase, exchange or
reclassification of Shares, corporate reorganization or any other form of
recapitalization, consolidation, merger, share split or share dividend or that
are acquired by a Stockholder in any other manner except by means of a purchase
on the open market. Unless the Company and the holders of a majority of the
Shares shall agree otherwise in writing, all Shares that are Transferred in
accordance with Section 3 hereof, other than (i) Transfers pursuant to a widely
distributed public offering, (ii) transfers pursuant to Rule 144, as provided by
this Agreement, (iii) Transfers by Institutions to satisfy a margin call or upon
an event of default, and (iv) except as provided in Section 3.4, Transfers
pursuant to an exempt private resale transaction, shall be subject to the terms,
obligations, conditions and restrictions set forth in this Agreement, and any
person or entity to whom or to which such Shares have been Transferred shall
automatically become a party to this Agreement upon such Transfer and shall be
subject
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to the provisions of this Agreement without the need for such person to sign
this Agreement or the other parties hereto to re-execute this Agreement or
otherwise acknowledge such person as a party hereto. All persons to whom Shares
are Transferred pursuant to this Agreement, by taking receipt of the Transferred
Shares, agree to be bound by all of the terms and conditions of this Agreement
including, without limitation, the terms and conditions of Sections 2.2 and 2.3
hereof. As a condition to any Transfer of Shares pursuant to this Agreement, the
Company may (but shall not be obligated to) require any transferee to execute
and deliver a copy of this Agreement and any other documentation necessary, in
the Company's judgment, in connection with such transferee becoming a party to
this Agreement. Unless the Company and the holders of a majority of the Shares
otherwise agree in writing, any person to whom Shares are Transferred other than
pursuant to a registered public resale or sales under Rule 144 or sales by
Institutions in connection with the foreclosure of a Pledge shall receive and be
subject to his, her or its pro rata portion of the Transferring Stockholder's
Rule 144 Allotment, and the Transferring Stockholder's Rule 144 Allotment shall
be reduced by such pro rata portion effective immediately upon such Transfer. If
the person or entity to whom Shares have been Transferred refuses to execute and
deliver to the Company any such documentation or fails to acknowledge or abide
by the terms of this Agreement, the Company may invalidate the Transfer and
refuse to acknowledge the person or entity as a stockholder of the Company. If,
and as often as, there is any change in the Shares, by way of a stock split,
stock dividend, combination or reclassification, or through a merger,
consolidation, reorganization or recapitalization, or by any other means,
appropriate adjustment shall be made in the provisions of this Agreement so that
the rights and privileges granted hereby shall continue with respect to the
Shares as so changed.
3.4 Application of Agreement to Transferees in Private Resale
Transactions. Unless the Company and the Stockholders owning of record a
majority of the Shares otherwise agree in writing, any person to whom Shares are
transferred in an exempt private resale transaction shall (i) receive and be
subject to his, her or its pro rata portion of the Transferring Stockholder's
144 Allotment and the Transferring Stockholder's Rule 144 Allotment shall be
reduced by such pro rata portion effective immediately upon such Transfer, and
(ii) any Transfer pursuant to Rule 144 by him, her or it shall be aggregated
with all Transfers by the Transferring Stockholder pursuant to Rule 144 for
purposes of calculating the volume limitation applicable to both him, her or it
and such Transferring Stockholder under Rule 144.
4. INVOLUNTARY TRANSFERS.
4.1 By Operation of Law. If Shares owned of record or beneficially by a
Stockholder are Transferred by operation of law to any person or entity other
than a Stockholder, including, without limitation, to the bankruptcy estate or
to the trustee in bankruptcy of a Stockholder or to a purchaser at any
creditor's or judicial sale or for the benefit of creditors of a Stockholder
(but not including (a) any Transfer to the Company or pursuant to a foreclosure
of a Pledge by an Institution or the Company, (b) any Transfer to the guardian,
conservator or committee of an incompetent Stockholder, (c) any Transfer in a
bankruptcy proceeding of Shares that are Pledged to an Institution or the
Company, or (d) any Transfer upon the death of a Stockholder), (an "Involuntary
Transfer") then, in each such case, such Stockholder shall be deemed to have
offered all of his, her or its Shares to all Stockholders who are then parties
to this Agreement prior to such Involuntary Transfer in the manner described in
Section 4.2 hereof. The Company shall notify the appropriate Stockholders of the
occurrence of such Involuntary Transfer as soon as practicable after it is
notified of the same.
4.2 Right of First Offer.
4.2.1 All Involuntary Transfers pursuant to Section 4.1 above shall be
subject to this Section 4.2. The Stockholder who owns the Shares subject to the
Involuntary Transfer (the "Offering Stockholder") shall be deemed, prior to the
Involuntary Transfer, to have offered the Shares subject to the
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Involuntary Transfer (the "Offered Shares") to all Stockholders who are then
parties to this Agreement as provided below (the "Right of First Offer").
4.2.2 The Offering Stockholder shall give written notice (an "Offer
Notice") of the proposed Involuntary Transfer to all Stockholders who then are
parties to this Agreement and to the Secretary of the Company setting forth, in
reasonable detail, the facts and circumstances of such proposed Involuntary
Transfer, the number of Offered Shares, the proposed date of consummation of
such proposed Involuntary Transfer (if known), and any other material terms and
conditions of the proposed Transfer to the extent then known.
4.2.3 Each Stockholder who is then a party to this Agreement shall then
have the irrevocable right, exercisable within thirty (30) days after the Offer
Notice is given in accordance with the requirements of Section 4.2.2 hereof (the
"Notice Period"), to purchase all (but not part) of his, her or its share (as
determined below) of the Offered Shares at a price per Share equal to the lesser
of (i) the price proposed to be paid in any bankruptcy, creditor's or judicial
sale or (ii) the closing sale price per share of the Company's Class A Common
Stock on the last trading day (as reported on the New York Stock Exchange) prior
to the date of purchase multiplied by a factor of .50 (50%). Each Offering
Stockholder shall pay his, her or its own commissions and advisory fees in
connection with any sale of Shares pursuant to this Section 4.2. Each
Stockholder who is a party to this Agreement may exercise his, her or its Right
of First Offer by delivering to the Offering Stockholder in care of the
Secretary of the Company a notice of such exercise (the "Exercise Notice")
within the Notice Period. Each Stockholder who elects to purchase Offered Shares
pursuant to this Section 4.2 shall be entitled to purchase an equal portion of
such Offered Shares with all other Stockholders who also elect to purchase such
Offered Shares hereunder.
4.2.4 The closing of the purchase and sale of the Offered Shares shall
occur on a date not later than fifteen days after the expiration of the Notice
Period (or such later date as is the earliest date on which the purchase may be
completed in compliance with all applicable laws, rules and regulations) (the
"Purchase Period"), and at the time and place provided for in the Offer Notice.
In the event any of the Purchasing Stockholders is unable to close his, her or
its purchase of the Offered Shares within the Purchase Period, the remaining
Purchasing Stockholder(s) shall have the right to purchase its or their pro rata
portion (determined by multiplying the Offered Shares that cannot be so
purchased by a fraction, the numerator of which is the Offered Shares that
cannot be so purchased and the denominator of which is the Offered Shares being
purchased by the remaining Purchasing Stockholders) of such Purchasing
Stockholder's Offered Shares, provided the sale of such Offered Shares can be
effected within the Purchase Period. The determination of any prorations under
Section 4.2 shall be made by the Company and shall be final and binding on the
Stockholders.
5. AGREEMENT TO FUND EQUITY INCENTIVE PROGRAMS.
5.1 Each Initial Stockholder hereby covenants and agrees for the period
between the date hereof and ending December 31, 1999 to make available to the
Company or its designees up to six percent (6%) of each such Initial
Stockholder's shares of Class B Common Stock owned immediately following the
Reorganization (the "Equity Incentive Shares"), for the purpose of funding any
distributor or employee equity incentive program or programs sponsored by the
Company or NSI or their affiliates. Any Transfer of shares of Class B Common
Stock by the Initial Stockholders for this purpose shall be made pro rata by the
Stockholders in accordance with their ownership interests in the Company
immediately following the Reorganization and the determination of such proration
by the Company's Secretary shall be conclusive and binding on the Initial
Stockholders. The Shares already contributed by the Initial Stockholders in
connection with the Company's initial public offering shall be counted towards
the above referenced six percent (6%) figure.
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5.2 The Company shall give to all Stockholders who then are parties to
this Agreement thirty (30) days written notice of a proposed Transfer of Equity
Incentive Shares under Section 5.1 above to the Company or NSI or any of their
affiliates setting forth, in reasonable detail, the Company's intent to make
such proposed Transfer, the number of Shares to be Transferred, the proposed
date of consummation of such Transfer (if known) and any other material terms
and conditions of the proposed Transfer to the extent then known. The portion of
the Equity Incentive Shares to be transferred will then be transferred at the
end of such thirty (30) day period by the attorneys-in-fact identified in
Section 5.3 hereof.
5.3 In connection with the agreement of the Stockholders to participate
in the funding of any distributor or employee equity incentive program or
programs sponsored by the Company or NSI, as set forth in Section 5 hereof, each
of the Stockholders hereby makes, constitutes and appoints each of Xxxxx X.
Halls and his successors, and M. Xxxxxx Xxxx and his successors, with power of
substitution, the true and lawful attorney-in-fact of the Stockholder (each said
person or his successors being hereinafter referred to as the
"Attorney-in-Fact"), with full power and authority to act in the name and on
behalf of the Stockholder for the following purposes:
5.3.1 to Transfer the Equity Incentive Shares to NSI, any affiliate of
NSI, or the Company;
5.3.2 to endorse, transfer and deliver certificates for the Equity
Incentive Shares to or on the order of the appropriate party, and to give such
orders and instructions as the Attorney-in-Fact may in his, her or its sole
discretion determine with respect to (i) the transfer of the Equity Incentive
Shares on the books of the Company in order to effect such Transfer (including
the names in which new certificates for the Equity Incentive Shares are to be
issued and the denominations thereof), (ii) the delivery to or for the account
of the appropriate party of the certificates for the Equity Incentive Shares
against receipt in the name of the Stockholders of the purchase price to be paid
therefor, if any, and (iii) the remittance to the Stockholders of the proceeds,
if any, after payment of expenses hereinafter described, from the Transfer of
the Equity Incentive Shares; if requested by or on behalf of the Stockholders,
funds to be remitted to the Stockholders shall be remitted by wire transfer (in
accordance with instructions provided by or on behalf of the Stockholders)
promptly upon such funds becoming available for transfer;
5.3.3 if necessary, to endorse (in blank or otherwise) on behalf of the
Stockholders the certificate or certificates representing the Equity Incentive
Shares or a stock power or powers attached to such certificate or certificates;
5.3.4 to incur any necessary or appropriate expense in connection with
the Transfer of the Equity Incentive Shares; and
5.3.5 to otherwise take all actions, including the execution and
delivery of all documents, deemed advisable by each Attorney-in-Fact in his sole
discretion, with respect to the Transfer of the Equity Incentive Shares as fully
as the Stockholders could if the Stockholders were present and acting.
Each Attorney-in-Fact shall be entitled to act and rely upon any written
statement, request, notice or instruction from any of the Initial Stockholders,
not only as to the authorization, validity and effectiveness thereof, but also
as to the truth and acceptability of information therein contained. The parties
to this Agreement agree to indemnify and hold harmless each Attorney-in-Fact
from and against any and all losses, liabilities, damages or expenses (including
reasonable attorney's fees and court costs) incurred by either of them arising
out of or in connection with their acting as an attorney-in-fact under the
foregoing power of attorney, as well as any and all costs and expenses of
defending against any claim of liability in the premises. Each Attorney-in-Fact
may consult with counsel of his choice (who may be counsel for the Company) and
each
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Attorney-in-Fact shall have full and complete authorization and protection for
any action taken or suffered by them hereunder in good faith and in accordance
with the opinion of such counsel.
6. CONTRIBUTION OF DIVIDENDS. In the event that a majority in interest
of the Initial Stockholders who are also shareholders of NSI shall so decide and
shall notify all of such Initial Stockholders and the Company in writing, any
dividends (net of any taxes payable thereon) on the Shares to be paid by the
Company to such Initial Stockholders shall be contributed to NSI pro rata based
upon each such Initial Stockholder's ownership of shares of NSI common stock.
Notice of such contribution of dividends must be made in accordance with Section
12.2 hereof at least ten business days before the payment of such dividends by
the Company to the Initial Stockholders. In its sole discretion, the Company
may, upon receipt of notice of such contribution of dividends, pay such
dividends directly to NSI. In the discretion of a majority in interest of the
Initial Stockholders who are also shareholders of NSI, the above-referenced
dividend payments may be made to NSI in cash or by any of such Initial
Stockholder's tender to NSI of shares of NSI common stock. For purposes of
calculating the value of shares of NSI common stock Transferred hereunder, the
value of each share of NSI common stock shall be determined by multiplying NSI's
net income for the four (4) most recently completed quarters prior to the
calculation date (as reported on NSI's financial statements prepared in
accordance with generally accepted accounting principles) by a factor of three
and one-half (3.5) and dividing such figure by the total number of shares of NSI
common stock then outstanding.
7. WAIVERS AND TERMINATION.
7.1 Effect of Agreement. This Agreement amends and restates in its
entirety the Original Stockholders Agreement and is effective as of the date
hereof. From and after the date hereof, the Original Stockholders Agreement
shall be replaced in its entirety by this Agreement.
7.2 Waivers. All waivers made and agreed to by the Initial Stockholders
in the Original Stockholders Agreement are hereby ratified, approved and remade
in this Agreement as if set forth herein in their entirety. In addition, each
Initial Stockholder hereby irrevocably waives any and all known or unknown
claims and rights, whether direct or indirect, fixed or contingent, that such
Initial Stockholder may now have or that may hereafter arise against the Company
or any of its affiliates, NSI or any of its affiliates, or any of their
respective officers, directors, stockholders, employees, agents or advisors
arising out of the negotiation, documentation or operation of the Original
Stockholders Agreement or any other agreement among any of the Initial
Stockholders and the Company existing prior to the Original Stockholders
Agreement or arising out of the negotiation and documentation of this Agreement.
7.3 Acknowledgment of Representation. Each of the Initial Stockholders
represents and warrants to the Company and each of the other Initial
Stockholders that each Initial Stockholder was or had the opportunity to be
represented by legal counsel and other advisors selected by such Initial
Stockholder in connection with the Original Stockholders Agreement and has been
represented by legal counsel and other advisors selected by such Initial
Stockholder in connection with this Agreement. Each of the Initial Stockholders
has reviewed this Agreement with his, her or its legal counsel and other
advisors and understands the terms and conditions hereof. Each Initial
Stockholder understands, acknowledges and confirms that M. Xxxxxx Xxxx and the
law firm of LeBoeuf, Lamb, Xxxxxx & XxxXxx, L.L.P. ("LLG&M") have represented
only the Company in connection with the Original Stockholders Agreement and this
Agreement and did not and do not act as legal counsel for any of the Initial
Stockholders in connection with the Original Stockholders Agreement or this
Agreement. As previously acknowledged and agreed to by the Initial Stockholders,
the representation by LLG&M of certain of the Initial Stockholders in connection
with the Company's initial public offering was limited solely to negotiating the
representations and warranties and the limitations on the indemnification and
contribution obligations of certain of the Initial Stockholders under the U.S.
and International Purchase Agreements executed by such Initial Stockholders in
connection with the Company's
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initial public offering and negotiating the delivery mechanisms for the Shares.
The Initial Stockholders hereby confirm their waiver of any conflict of interest
that may exist as a result of the limited representation by LLG&M of certain
Initial Stockholders as described above and the concurrent representation by
LLG&M of the Company. The Initial Stockholders further confirm their consent to
the prior limited representation by LLG&M of those Initial Stockholders who
signed the U.S. and International Purchase Agreements entered into in connection
with the Company's initial public offering.
8. LEGENDS ON CERTIFICATES.
8.1 Legends on Certificates. All Shares now or hereafter owned by the
Stockholders shall be subject to the provisions of this Agreement and the
certificates representing such Shares shall bear the following legends:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"ACT"), OR ANY STATE SECURITIES LAWS. THEY MAY NOT BE SOLD,
ASSIGNED, PLEDGED OR OTHERWISE TRANSFERRED FOR VALUE UNLESS
THEY ARE REGISTERED UNDER THE ACT AND ANY APPLICABLE STATE
SECURITIES LAWS OR UNLESS THE CORPORATION RECEIVES AN OPINION
OF COUNSEL SATISFACTORY TO IT, OR OTHERWISE SATISFIES ITSELF,
THAT AN EXEMPTION FROM REGISTRATION IS AVAILABLE.
THE SALE, ASSIGNMENT, GIFT, BEQUEST, TRANSFER, DISTRIBUTION,
PLEDGE, HYPOTHECATION OR OTHER ENCUMBRANCE OR DISPOSITION OF
THE SHARES REPRESENTED BY THIS CERTIFICATE IS RESTRICTED BY
AND MAY BE MADE ONLY IN ACCORDANCE WITH THE TERMS OF AN
AMENDED AND RESTATED STOCKHOLDERS AGREEMENT AMONG CERTAIN
INDIVIDUALS AND PERSONS REFERRED TO IN SUCH AMENDED AND
RESTATED STOCKHOLDERS AGREEMENT, A COPY OF WHICH MAY BE
EXAMINED AT THE OFFICE OF THE CORPORATION.
8.2 Deposit of Certificates. Each Initial Stockholder hereby agrees to
deposit and leave on deposit with the Secretary of the Company or his designee
until December 31, 1999 all certificates representing Shares, including, without
limitation, the Equity Incentive Shares, and all certificates representing
additional Shares that may be used under Section 5 above for additional
distributor and employee equity incentive plans.
9. REGISTRATION RIGHTS. The Company hereby covenants and agrees as
follows:
9.1 Definitions. For purposes of this Section 9, the following terms
have the following meanings:
"Restricted Stock" shall mean all Shares held by the Initial
Stockholders listed on Schedule "A" under the caption "Name of Stockholder"
excluding Shares (i) that have been registered under the
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Securities Act pursuant to an effective registration statement filed thereunder
and disposed of in accordance with such registration statement, and (ii) that
have been publicly sold pursuant to Rule 144, (iii) that have been Transferred
by Institutions to satisfy a margin call or event of default as provided in
Section 3.2.1 and (iv) that have been Transferred pursuant to an exempt private
resale transaction.
"Selling Expenses" shall mean the expenses described in Section 9.6
below.
9.2 Incidental Registration. If the Company at any time proposes to
register any of its securities under the Securities Act for sale to the public,
whether for its own account or for the account of other security holders or both
(except with respect to registration statements on Form X-0, Xxxx X-0 or another
Form not available for registering the Restricted Stock for sale to the public
and except with respect to any public offering if the net proceeds of such
public offering will be paid directly or indirectly to any Initial Stockholders
in connection with such public offering or a related transaction), each such
time it will give written notice to all holders hereunder of outstanding
Restricted Stock of its intention so to do. Upon the written request of any such
holder, received by the Company within 10 days following the date of the
Company's registration notice, to register such holder's Restricted Stock, the
Company will use its best efforts to cause such Restricted Stock to be included
in the registration statement proposed to be filed by the Company. The holders
of Restricted Stock to be registered pursuant to this Section 9.2 shall execute
such documentation (including any underwriting or purchase agreement) as may be
reasonably necessary to effect the registration and sale of the Restricted Stock
proposed to be included in such registration upon the exercise of the
"piggyback" or "incidental" registration rights described in this Section 9.2.
Except as provided below, the number of shares of Restricted Stock that may be
requested to be registered upon exercise of "piggyback" or "incidental"
registration rights may be reduced (pro rata among the requesting holders of all
such Restricted Stock based upon the number of shares of Restricted Stock
requested to be registered by such holders) if and to the extent that the
Company or the managing underwriter shall be of the opinion that such inclusion
would adversely affect the marketing of the securities to be sold by the Company
therein. No such reduction shall be made with respect to any securities offered
by the Company for its own account. Notwithstanding the foregoing provisions,
the Company may postpone any such registration or withdraw any registration
statement referred to in this Section 9.2 for any reason without thereby
incurring any liability to the holders of Restricted Stock.
9.3 Demand Registration. Provided by November 28, 1998 (i) the Company
has not effected a registered secondary offering or registered secondary
offerings yielding aggregate gross proceeds (before underwriting discounts and
commissions) of at least $200,000,000 to the holders of Restricted Stock, or
(ii) the Company has not consummated the NSI Acquisition, from and after
November 28, 1998 until the earlier of (a) November 28, 2000, or (b) the holders
of Restricted Stock have received, as a group, an aggregate of $200,000,000 of
gross offering proceeds (before underwriting discounts and commissions) pursuant
to registered public offerings effected prior to November 28, 2000, or (c)
consummation of the NSI Acquisition after November 28, 1998, or (d) two
registration statements have been declared effective and the related offerings
have closed pursuant to the exercise of demand registration rights under this
Section 9.3, if the Company shall receive a written request from Initial
Stockholders who collectively hold forty percent (40%) or more of the voting
power of the Shares of Restricted Stock then outstanding (a "Demand Request")
that the Company effect a registration under the Securities Act, the Company
will, within 10 days of receipt of that Demand Request, give written notice of
the Demand Request to all holders of Restricted Stock and shall within 120 days
after its receipt of the Demand Request, file with the Securities and Exchange
Commission ("SEC") a registration statement on a Form deemed appropriate by the
Company and its counsel registering up to $200,000,000 of the Company's Class A
Common Stock allocated among the holders of Restricted Stock in accordance with
the percentages listed on Schedule "A" under the caption "Participation
Percentage." The Company shall use its commercially reasonable best efforts to
cause such registration statement to become effective.
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9.4 Restrictions on Registration Rights.
9.4.1 In the event of a registration of any shares of Restricted Stock
under the Securities Act pursuant to Sections 9.2 or 9.3 hereof, the maximum
number of shares that each holder of Restricted Stock is entitled to have
registered in each such registration shall be equal to the product of (i) the
aggregate number of shares of Restricted Stock to be registered and (ii) a
fraction, the numerator of which shall be the percentage set forth opposite such
holder's name on Schedule "A" attached hereto under the caption "Participation
Percentage," and the denominator of which shall be the sum of all of such
percentages for all holders of Restricted Stock electing to exercise their
registration rights pursuant to Sections 9.2 or 9.3 hereof. To the extent a
holder of Restricted Stock elects not to participate in any registered offering
pursuant to this Section 9, the "Participation Percentages" of the holders of
Restricted Stock participating in such registered offering will be adjusted pro
rata.
9.4.2 The right of each holder of Restricted Stock to participate in
registrations of Restricted Stock pursuant to Section 9.2 shall terminate upon
(i) receipt by such holder pursuant to any registered public offerings, of the
amount listed next to such holder's name on Schedule "E" hereto under the
caption "Gross Offering Proceeds," or (ii) the date such holder is no longer a
record owner of shares of Restricted Stock.
9.4.3 The Company shall not be obligated to effect a registration
pursuant to Section 9.3 if at the time it receives a Demand Request (i) the
Company's investment banker advises against a registered offering in light of
market conditions and other relevant factors, or (ii) the Company would be
required to prepare any financial statements other than those it customarily
prepares or (iii) the Company determines in its reasonable judgment that the
registration and offering would interfere with any material financing,
acquisition, transaction, corporate reorganization or material corporate
transaction or development involving the Company that is pending or contemplated
at the time and promptly gives Initial Stockholders written notice of that
determination (in which case the Company shall have the right to defer such
filing for a period of not more than 180 days after receipt of the Demand
Request), or (iv) the Company has effected a registration pursuant to Section
9.3 within 12 months prior to such Demand Request. Any registration statement
filed pursuant to a Demand Request may include other securities of the Company
for its own account or securities held by past or present employees, officers or
directors of the Company or persons or entities who, by virtue of agreements
with the Company are entitled to include their securities in any such
registration.
9.4.4. If the holders of Restricted Stock desire to distribute
Restricted Stock pursuant to a Demand Request by means of an underwritten public
offering, they shall so advise the Company as part of the Demand Request. If the
Company approves that request, the Company and a majority in interest of the
holders of Restricted Stock making such Demand Request shall jointly approve
(such approval not to be unreasonably withheld) an investment banking firm or
firms as underwriter or underwriters of the requested registration. The right of
any holder of Restricted Stock to registration pursuant to Section 9.3 shall be
conditioned upon that Initial Stockholder's participation in the underwriting
and the inclusion of that Initial Stockholder's Restricted Stock in the
underwriting to the extent provided in this Section 9. The holders of Restricted
Stock shall (together with the Company and other persons proposing to distribute
securities through such underwriting) enter into an underwriting agreement in
customary form with the representative of the underwriter or underwriters
selected by the Company for such underwriting, but the Company shall not be
required to pay any commission or underwriting discount to any underwriter with
respect to the sale of Restricted Stock. If the representative of the
underwriters determines that a limitation on the number of shares to be
underwritten is required in order to effect the underwriting in an orderly
manner, the number of shares of Restricted Stock that may be included in the
registration and underwriting shall be reduced in accordance
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with the underwriter's recommendations and the remaining shares of Restricted
Stock to be registered shall be allocated among the holders of Restricted Stock
in accordance with the formula set forth in Section 9.4.1.
9.4.5 In connection with any registration statement filed pursuant to
Sections 9.2 or 9.3 above, each of the holders of Restricted Stock agrees, if
requested by the Company or an underwriter in connection with such registration,
not to sell or otherwise transfer or dispose of any Shares or any derivative
security relating to any Shares held by such holder of Restricted during the 180
day period following the date of any registration statement prepared and filed
under the Securities Act pursuant to Sections 9.2 or 9.3 above. If requested by
the underwriters, the holders of Restricted Stock shall execute a separate
agreement to the foregoing effect. The Company may impose stop transfer
instructions with respect to all Shares or related derivative securities subject
to the foregoing restriction until the end of said 180 day period. The Company
shall use its commercially reasonable best efforts to cause such registration
statement to become effective. In the event a registered offering is initiated
pursuant to Section 9.3 and subsequently closes, the holders of Restricted Stock
participating in such registered offering may not effect sales of Shares
pursuant to Section 4(1) or Rule 144 under the Securities Act for six months
year following the closing date of such registered offering.
9.4.6 No holder of Restricted Stock shall have any right to take any
action to restrain, enjoin or otherwise delay any registration as the result of
any controversy that may arise with respect to the interpretation or
implementation of this Agreement. The rights granted under Sections 9.2 and 9.3
are not transferable by the holders of Restricted Stock.
9.4.7 As a condition to the Company's obligations under this Section 9
to cause a registration statement to be filed or Restricted Stock to be included
in a registration statement, each holder of Restricted Stock shall provide such
information and execute such documents as may reasonably be required in
connection with such registration by the Company or any underwriter. In
addition, no holder of Restricted Stock may participate in any registration
under this Section 9 which is underwritten unless such holder of Restricted
Stock agrees to sell his, her or its securities on the basis provided in any
such underwriting arrangements and completes and executes all questionnaires,
powers of attorney, indemnities, contribution agreements, underwriting
agreements, or other documents required under the terms of such underwriting
arrangements.
9.5 Registration Procedures. If and whenever the Company is required by
the provisions of Sections 9.2 or 9.3 above to use its commercially reasonable
best efforts to effect the registration of any Restricted Stock under the
Securities Act, the Company will, as expeditiously as possible:
9.5.1 prepare and file with the SEC on a registration statement (which,
in the case of an underwritten public offering pursuant to Sections 9.2 or 9.3
above, shall be on Form S-1, Form S-3 or such other Form of general
applicability satisfactory to the managing underwriter selected) with respect to
such securities and use its commercially reasonable best efforts to cause such
registration statement to become and remain effective for the period of the
distribution contemplated thereby (determined as hereinafter provided);
9.5.2 prepare and file with the SEC such amendments and supplements to
such registration statement and the prospectus used in connection therewith as
may be necessary to keep such registration statement effective for the period
specified in Section 9.5.1 above and comply with the provisions of the
Securities Act with respect to the disposition of all Restricted Stock covered
by such registration statement in accordance with the intended method of
disposition set forth in such registration statement for such period;
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9.5.3 furnish to each holder of Restricted Stock covered by such
registration statement and to each underwriter such number of copies of the
registration statement and the printed prospectus included therein (including
each preliminary prospectus) as such persons or entities reasonably may request
in order to facilitate the public sale or other disposition of the Restricted
Stock covered by such registration statement; and
9.5.4 in connection with each registration hereunder, the holders of
Restricted Stock participating in such registration will furnish to the Company
in writing such information with respect to themselves and the proposed
distribution by them as reasonably shall be necessary in order to effect the
transaction and assure compliance with all applicable federal and state
securities or "blue sky" laws, as well as any documentation customarily required
by underwriters of such transactions.
9.6 Expenses. All expenses incurred in connection with a registration
pursuant to Sections 9.2 or 9.3 above in which shares of capital stock of the
Company are to be offered by the Company in addition to shares of Restricted
Stock to be offered by the holders of Restricted Stock, or any of them
(excluding underwriters' discounts and commissions), including, without
limitation, all registration and filing fees, printing expenses, fees and
disbursements of counsel and independent public accountants for the Company,
fees and expenses (including counsel fees) incurred in connection with state
securities or "blue sky" laws, fees of the National Association of Securities
Dealers, Inc., transfer taxes, fees of transfer agents and registrars, costs of
insurance and the reasonable fees and disbursements of one counsel for all of
the participating holders of Restricted Stock (which counsel fees and
disbursements shall not exceed $15,000) shall be borne by the Company
(collectively "Selling Expenses"); provided, however, that if one or more
participating holders of Restricted Stock shall withdraw his, her, its or their
request for registration pursuant to Sections 9.2 or 9.3 hereof, the Company
shall not be required to pay such withdrawing holder's or holders' pro rata
portion or portions of the costs or the pro rata portion of fees and
disbursements of counsel payable on behalf of the participating holders of
Restricted Stock in connection with such registration (and such portion of such
costs, fees or disbursement shall be paid by the withdrawing holders on a pro
rata basis). Notwithstanding the foregoing, all of the expenses incurred in
connection with a registration pursuant to Sections 9.2 or 9.3 above solely of
shares of Restricted Stock, including, without limitation, all the expenses
referenced above in this Section 9.6, shall be paid by the participating holders
of the Restricted Stock registered in connection with any such registration.
10.SATISFACTION OF INSTALLMENT NOTES. The Initial Stockholders
acknowledge that certain of them are holders of installment notes issued by
certain other Initial Stockholders in connection with purchases of Shares. The
Initial Stockholders who are the makers of such installment notes (the "Makers")
may satisfy such installment notes using Shares provided the Initial
Stockholders who are the holders of such installment notes will not incur
liability under Section 16(b) of the Securities Exchange Act of 1934, as
amended, as the result of their receipt of such Shares.
11.TERMINATION. The rights and obligations under this Agreement shall
terminate automatically with respect to each Stockholder upon the earliest to
occur of (a) the execution of a written instrument to that effect by the Company
and each Stockholder who then owns Shares, (b) the merger or consolidation of
the Company with a corporation or other entity upon consummation of which all
Stockholders immediately thereafter own in the aggregate less than twenty-five
percent (25%) of the total voting power of the surviving or resulting
corporation, and (c) the Transfer of Shares by any Stockholder that causes all
Stockholders immediately after such Transfer to own in the aggregate less than
ten percent (10%) of the total voting power of the Company.
12.GENERAL PROVISIONS.
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12.1 Governing Law. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of Utah.
12.2 Notices. Any notices and other communications given pursuant to
this Agreement shall be in writing and shall be effective upon delivery by hand
or on the fifth (5th) day after deposit in the mail if sent by certified or
registered mail (postage prepaid and return receipt requested) or on the next
business day if sent by a nationally recognized overnight courier service
(appropriately marked for overnight delivery) or upon transmission if sent by
facsimile (with immediate electronic confirmation of receipt in a manner
customary for communications of such type). Notices are to be addressed as
follows:
If to the Company:
Nu Skin Asia Pacific, Inc.
00 Xxxx Xxxxxx Xxxxxx,
Xxxxx 000
Xxxxx, Xxxx 00000
Attention: Xxxxxx X. Xxxx, President
Telecopy: (000) 000-0000
If to a Stockholder, to the address of the Stockholder as indicated in
the Company's records.
All notices to a party hereto shall be deemed to have been duly given
for all purposes under this Agreement if given to such party in accordance with
the first sentence of this Section 12.2 until notice is given pursuant to this
Section 12.2 of a different address from the address provided above or, in the
case of any person or entity that hereafter becomes a Stockholder, the address
specified by such person or entity provided in any documentation provided
pursuant to this Agreement, or (b) after notice has been given pursuant to this
Section 12.2 of a different address, the address specified in such notice. No
notices hereunder shall be required to be given to any Stockholder that
hereafter becomes a Stockholder until notice of such Stockholder becoming a
Stockholder is given to the Company and to each Stockholder pursuant to this
Section 12.2.
12.3 Headings. The headings of the various Sections of this Agreement
have been inserted for convenience only and shall not be deemed to be part of
this Agreement.
12.4 Binding Effect. This Agreement will be binding upon and inure to
the benefit of the Company, its successors and assigns and to the Stockholders
and their respective permitted heirs, personal representatives, successors and
assigns. In particular, this Agreement may be assigned to any successor to the
Company's interest in connection with the NSI Acquisition without further
approval of any party and shall thereafter remain in full force and effect.
12.5 No Oral Change. This Agreement may not be changed orally, but may
only be changed by an agreement in writing signed by the party against whom
enforcement of any waiver, change, modification or discharge is sought.
12.6 Entire Understanding. This Agreement sets forth the entire
agreement and understanding of the parties hereto in respect of the subject
matter hereof and the transactions contemplated hereby and supersedes all prior
written and oral agreements, arrangements and understandings relating to the
subject matter hereof. The above Recitals and all Schedules and Exhibits
attached hereto are deemed to be incorporated herein by reference.
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12.7 Remedies.
12.7.1 The parties hereto acknowledge that money damages are not an
adequate remedy for violations of this Agreement and that any party may, in such
party's sole discretion, apply to any court of competent jurisdiction for
specific performance or injunctive relief 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 hereto waives
any objection to the imposition of such relief.
12.7.2 All rights, powers and remedies provided under this Agreement or
otherwise available in respect hereof, whether at law or in equity, shall be
cumulative and not alternative, and the exercise or beginning of the exercise of
any thereof by any party hereto shall not preclude the simultaneous or later
exercise of any other such right, power or remedy by such party.
12.8 Counterparts. This Agreement may be executed by facsimile and in
any number of counterparts, each of which shall be deemed to 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, of the parties hereto.
12.9 Consent of Company. Whenever the consent of the Company is required
herein, such consent may only be given by the Company if and when approved by a
majority of the Company's then disinterested directors.
[SIGNATURES BEGIN ON FOLLOWING PAGE]
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SIGNATURE PAGE OF AMENDED AND RESTATED STOCKHOLDERS AGREEMENT
IN WITNESS WHEREOF, this Agreement has been signed as of the date first
above written.
NU SKIN ASIA PACIFIC, INC.,
a Delaware Corporation
By: _____________________________
Its: _____________________________
------------------------------------
Xxxxx X. Xxxxx, individually
THE ALL R'S TRUST
By: _____________________________
Xxxxxx X. Xxxx
Its: Trustee
THE B & N XXXXX TRUST
By: _____________________________
Xxxxxx X. Xxxx
Its: Trustee
THE WFA TRUST
By: _____________________________
Xxxxxx X. Xxxx
Its: Trustee
BNASIA, LTD.
By: _____________________________
Xxxxx X. Xxxxx
Its: General Partner
S-1
SIGNATURE PAGE OF AMENDED AND RESTATED STOCKHOLDERS AGREEMENT
By: _____________________________
Xxxxx X. Xxxxx
Its: General Partner
THE XXXXX X. AND XXXXX X. XXXXX
FOUNDATION
By: _____________________________
Xxxxx X. Xxxxx
Its: Trustee
By: _____________________________
Xxxxx X. Xxxxx
Its: Trustee
B & N RHINO COMPANY, L.C.
By: _____________________________
Xxxxx X. XxXxxxxxxx
Its: Manager
------------------------------------
Xxxxx X. Xxxxx, individually
------------------------------------
Xxxx X. Xxxxx, individually
------------------------------------
Xxxxx X. Xxxxx, individually
------------------------------------
Park X. Xxxxx, individually
S-2
SIGNATURE PAGE OF AMENDED AND RESTATED STOCKHOLDERS AGREEMENT
THE MAR TRUST
By: _____________________________
Xxxxx X. Halls
Its: Trustee
THE NR TRUST
By: _____________________________
Xxxxx X. Halls
Its: Trustee
THE XXXXX XXXXX FOUNDATION
By: _____________________________
Xxxxx X. Xxxxx
Its: Trustee
By: _____________________________
Xxxx X. Xxxxxxx
Its: Trustee
THE XXXXX XXXXX FIXED CHARITABLE
TRUST
By: _____________________________
Xxxxx X. Halls
Its: Trustee
By: _____________________________
Xxxx X. Xxxxxxx
Its: Independent Trustee
S-3
SIGNATURE PAGE OF AMENDED AND RESTATED STOCKHOLDERS AGREEMENT
NR RHINO COMPANY, L.C.
By: _____________________________
Xxxxx X. XxXxxxxxxx
Its: Manager
------------------------------------
Xxxxxx X. Xxxxxxxxx, individually
THE SNT TRUST
By: _____________________________
Xxx X. Xxxxxx
Its: Trustee
THE DVNM TRUST
By: _____________________________
Xxx X. Xxxxxx
Its: Trustee
THE CWN TRUST
By: _____________________________
Xxx X. Xxxxxx
Its: Trustee
THE DPN TRUST
By: _____________________________
Xxxxx X. Xxxxxxxxx
Its: Trustee
By: _____________________________
S-4
SIGNATURE PAGE OF AMENDED AND RESTATED STOCKHOLDERS AGREEMENT
Xxx X. Xxxxxx
Its: Trustee
THE GNT TRUST
By: _____________________________
Xxxxx X. Xxxxxxxxx
Its: Trustee
By: _____________________________
Xxx X. Xxxxxx
Its: Trustee
THE LMB TRUST
By: _____________________________
Xxxxxxx X. Xxxxxxx
Its: Trustee
THE XXXXXX X. XXXXXXXXX FOUNDATION
By: _____________________________
Xxxxxx X. Xxxxxxxxx
Its: Trustee
By: _____________________________
Xxx X. Xxxxxx
Its: Trustee
THE XXXXXX X. XXXXXXXXX FIXED
CHARITABLE TRUST
By: _____________________________
Xxxxxx X. Xxxxxxxxx
Its: Trustee
S-5
SIGNATURE PAGE OF AMENDED AND RESTATED STOCKHOLDERS AGREEMENT
By: _____________________________
X. X. XxXxxxxxxx
Its: Independent Trustee
SNT RHINO COMPANY, L.C.
By: _____________________________
Xxxxx X. Xxxxxxxxx
Its: Manager
------------------------------------
Xxxxxx X. Xxxx, individually
SKASIA, LTD.
By: _____________________________
Xxxxxx X. Xxxx
Its: General Partner
By: _____________________________
Xxxxxxx Xxxx
Its: General Partner
THE S AND K XXXX TRUST
By: _____________________________
Xxxxx X. Xxxxx
Its: Trustee
THE XXXXXX X. AND XXXXXXX XXXX
FOUNDATION
By: _____________________________
Xxxxxx X. Xxxx
Its: Trustee
S-6
SIGNATURE PAGE OF AMENDED AND RESTATED STOCKHOLDERS AGREEMENT
By: _____________________________
Xxxxxxx Xxxx
Its: Trustee
THE XXXXXX AND XXXXXXX XXXX FIXED
CHARITABLE TRUST
By: _____________________________
Xxxxxx X. Xxxx
Its: Trustee
By: _____________________________
Xxxxxxx Xxxx
Its: Trustee
By: _____________________________
X. X. XxXxxxxxxx
Its: Independent Trustee
S & K RHINO COMPANY, L.C.
By: _____________________________
Xxxxx X. XxXxxxxxxx
Its: Manager
------------------------------------
Xxxxxx X. Xxxxx, individually
S-7
SIGNATURE PAGE OF AMENDED AND RESTATED STOCKHOLDERS AGREEMENT
BDASIA, LTD.
By: _____________________________
Xxxxxx X. Xxxxx
Its: General Partner
By: _____________________________
Xxxxxx X. Xxxxx
Its: General Partner
THE B AND X XXXXX TRUST
By: _____________________________
Xxxxx X. Xxxxx
Its: Trustee
THE XXXXXX XXXXXXX AND XXXXXX XXXXX
XXXXX FOUNDATION
By: _____________________________
Xxxxxx X. Xxxxx
Its: Trustee
By: _____________________________
Xxxxxx X. Xxxxx
Its: Trustee
------------------------------------
Xxxx X. Xxxxx, individually
S-8
SIGNATURE PAGE OF AMENDED AND RESTATED STOCKHOLDERS AGREEMENT
KMASIA, LTD.
By: _____________________________
Xxxx X. Xxxxx
Its: General Partner
By: _____________________________
Xxxxxxx X. Xxxxx
Its: General Partner
THE K AND M XXXXX TRUST
By: _____________________________
Xxxx X. Xxxxx
Its: Trustee
THE XXXX X. AND XXXXXXX X. XXXXX
FOUNDATION
By: _____________________________
Xxxx X. Xxxxx
Its: Trustee
By: _____________________________
Xxxxxxx X. Xxxxx
Its: Trustee
S-9
SIGNATURE PAGE OF AMENDED AND RESTATED STOCKHOLDERS AGREEMENT
THE XXXX AND XXXXXXX XXXXX FIXED
CHARITABLE TRUST
By: _____________________________
Xxxx X. Xxxxx
Its: Trustee
By: _____________________________
Xxxxxxx X. Xxxxx
Its: Trustee
By: _____________________________
X. X. XxXxxxxxxx
Its: Trustee
K & M RHINO COMPANY, L.C.
By: _____________________________
Xxxxx X. XxXxxxxxxx
Its: Manager
------------------------------------
Xxxxx X. Halls, individually
KAASIA, LTD.
By: _____________________________
Xxxxx X. Halls
Its: General Partner
By: _____________________________
Xxxx Xxxx Halls
Its: General Partner
THE K AND A HALLS TRUST
S-10
SIGNATURE PAGE OF AMENDED AND RESTATED STOCKHOLDERS AGREEMENT
By: _____________________________
Xxxxxxx X. Halls
Its: Trustee
THE HALLS FAMILY TRUST
By: _____________________________
Xxxxxxx X. Halls
Its: Trustee
THE XXXXX AND XXXX XXXX HALLS FIXED
CHARITABLE TRUST
By: _____________________________
Xxxxx X. Halls
Its: Trustee
By: _____________________________
Xxxx Xxxx Halls
Its: Trustee
By: _____________________________
X. X. XxXxxxxxxx
Its: Independent Trustee
00779
3/9/98 5:40 pm
S-11
SIGNATURE PAGE OF AMENDED AND RESTATED STOCKHOLDERS AGREEMENT
THE XXXXX XXX AND XXXX XXXX XXXXXXX
HALLS FOUNDATION
By: _____________________________
Xxxxx X. Halls
Its: Trustee
By: _____________________________
Xxxx Xxxx Halls
Its: Trustee
K & A RHINO COMPANY, L.C.
By: _____________________________
Xxxxx X. XxXxxxxxxx
Its: Manager
------------------------------------
Xxxxx X. Xxxxxxxxx, individually
THE CST TRUST
By: _____________________________
Xxxxxx X. Xxxxxxxxx
Its: Trustee
THE JS TRUST
By: _____________________________
Xxx X. Xxxxxx
Its: Trustee
THE JT TRUST
S-12
SIGNATURE PAGE OF AMENDED AND RESTATED STOCKHOLDERS AGREEMENT
By: _____________________________
Xxx X. Xxxxxx
Its: Trustee
THE CB TRUST
By: _____________________________
Xxx X. Xxxxxx
Its: Trustee
THE CM TRUST
By: _____________________________
Xxx X. Xxxxxx
Its: Trustee
THE BCT TRUST
By: _____________________________
Xxx X. Xxxxxx
Its: Trustee
THE ST TRUST
By: _____________________________
Xxx X. Xxxxxx
Its: Trustee
THE NJR TRUST
By: _____________________________
Xxx X. Xxxxxx
Its: Trustee
S-13
SIGNATURE PAGE OF AMENDED AND RESTATED STOCKHOLDERS AGREEMENT
THE RLS TRUST
By: _____________________________
Xxx X. Xxxxxx
Its: Trustee
THE RBZ TRUST
By: _____________________________
Xxx X. Xxxxxx
Its: Trustee
THE LB TRUST
By: _____________________________
Xxxxxxx X. Xxxxxxx
Its: Trustee
THE XXXXX X. XXXXXXXXX FOUNDATION
By: _____________________________
Xxxxx X. Xxxxxxxxx
Its: Trustee
By: _____________________________
Xxx X. Xxxxxx
Its: Trustee
THE XXXXX X. XXXXXXXXX FIXED
CHARITABLE TRUST
By: _____________________________
Xxxxx X. Xxxxxxxxx
Its: Trustee
S-14
SIGNATURE PAGE OF AMENDED AND RESTATED STOCKHOLDERS AGREEMENT
By: _____________________________
Xxx X. Xxxxxx
Its: Independent Trustee
CST RHINO COMPANY, L.C.
By: _____________________________
Xxxxxx X. Xxxxxxxxx
Its: Manager
------------------------------------
R. Xxxxx Xxxxxx, individually
RCKASIA, LTD.
By: _____________________________
R. Xxxxx Xxxxxx
Its: General Partner
By: _____________________________
Xxxxxxxx X. Xxxxxx
Its: General Partner
THE C AND K TRUST
By: _____________________________
Xxxxxx X. Xxxx
Its: Trustee
S-15
SIGNATURE PAGE OF AMENDED AND RESTATED STOCKHOLDERS AGREEMENT
THE XXXXXX FOUNDATION
By: _____________________________
R. Xxxxx Xxxxxx
Its: Trustee
By: _____________________________
Xxxxxxxx X. Xxxxxx
Its: Trustee
THE XXXXXX FIXED CHARITABLE TRUST
By: _____________________________
R. Xxxxx Xxxxxx
Its: Trustee
By: _____________________________
Xxxxxxxx X. Xxxxxx
Its: Trustee
By: _____________________________
Xxxxxx X. Xxxxxxx
Its: Independent Trustee
S-16
SIGNATURE PAGE OF AMENDED AND RESTATED STOCKHOLDERS AGREEMENT
CKB RHINO COMPANY, L.C.
By: _____________________________
Xxxxx X. Halls
Its: Manager
THE XXXX AND XXXXXXXX XXXXX VARIABLE
CHARITABLE REMAINDER UNITRUST
By: _____________________________
Xxxxx Xxxxxxxx
Its: Trustee
THE XXXX AND XXXXXXXX XXXXX FIXED
CHARITABLE UNITRUST
By: _____________________________
Xxxx X. Xxxxx
Its: Trustee
By: _____________________________
Xxxxxxxx Xxxxx
Its: Trustee
S-17
SIGNATURE PAGE OF AMENDED AND RESTATED STOCKHOLDERS AGREEMENT
S-18
SCHEDULE "A"
PARTICIPATION PERCENT ALLOCATION OF
NAME OF STOCKHOLDER PERCENTAGE TOTAL RULE 144 VOLUME
------------------- ---------------- ----------------------
Xxxxx X. Xxxxx and his spouse and all of his
Stockholder Controlled Entities and defective
trusts, considered together as a group 15.3% 15.3%
Xxxxx X. Xxxxx and her spouse and all of
her Stockholder Controlled Entities and
defective trusts, considered together as a
group 13.86% 13.86%
Xxxxxx X. Xxxxxxxxx and her spouse and all of
her Stockholder Controlled Entities and
defective trusts, considered together as a
group 12.28% 12.28%
Xxxxx X. Xxxxxxxxx and his spouse and all of
his Stockholder Controlled Entities and
defective trusts, considered together as a
group 9.2% 9.2%
R. Xxxxx Xxxxxx and his spouse and all of his
Stockholder Controlled Entities and defective
trusts, considered together as a group 9.2% 9.2%
Xxxxxx X. Xxxx and his spouse and all of his
Stockholder Controlled Entities and defective
trusts, considered together as a group 7.72% 7.72%
Xxxxxx X. Xxxxx and his spouse and all of
his Stockholder Controlled Entities and
defective trusts, considered together as a
group 7.72% 7.72%
Xxxx X. Xxxxx and his spouse and all of his
Stockholder Controlled Entities and defective
trusts, considered together as a group 7.72% 7.72%
Xxxxx X. Halls and his spouse and all of his
Stockholder Controlled Entities and defective
trusts, considered together as a group 4.65% 4.65%
Xxxx X. Xxxxx and his spouse and all of his
Stockholder Controlled Entities and defective
trusts, considered together as a group 3.86% 3.86%
Xxxxx X. Xxxxx and his spouse and all of his
Stockholder Controlled Entities and defective
trusts, considered together as a group 3.86% 3.86%
Park X. Xxxxx and his spouse and all of his
Stockholder Controlled Entities and defective
trusts, considered together as a group 3.86% 3.86%
Xxxx X. Xxxxx and his spouse and all of his
Stockholder Controlled Entities and defective
trusts, considered together as a group 1.00% 1.00%
[CONTINUED ON FOLLOWING PAGE]
S-19
SCHEDULE "A" cont'd.
EXAMPLES
If the average weekly trading volume for the last calendar quarter were
400,000 shares, the total number of Shares that could be sold by the Initial
Stockholders as a group pursuant to Section 4(1), Rule 144 thereunder or any
other exempt transaction in the subsequent calendar quarter would be 400,000.
After multiplying the Percent Allocation of Total Rule 144 Volume by the 400,000
Shares, the following Rule 144 Allotments would be achieved:
NAME OF SHAREHOLDER(1) RULE 144 ALLOTMENT(1)
Xxxxx X. Xxxxx 61,200
Xxxxx X. Xxxxx 55,440
Xxxxxx X. Xxxxxxxxx 49,120
R. Xxxxx Xxxxxx 36,800
Xxxxx X. Xxxxxxxxx 36,800
Xxxxxx X. Xxxx 30,880
Xxxxxx X. Xxxxx 30,880
Xxxx X. Xxxxx 30,880
Xxxxx X. Halls 20,000
Xxxx X. Xxxxx 20,000
Xxxxx X. Xxxxx 20,000
Park X. Xxxxx 20,000
Xxxx X. Xxxxx 20,000
-------------------
(1) Includes the spouse and all Stockholder Controlled Entities and
defective trusts of the listed individuals respectively considered with
them as a group and, in the case of Xxxx X. Xxxxx, the trust for which
he is a beneficiary. Notwithstanding anything herein to the contrary,
each listed Stockholder, together with his or her spouse, Stockholder
Controlled Entities and defective trusts considered together as a group,
will be entitled to a minimum Rule 144 Allotment per calendar quarter of
20,000 Shares. Consequently, each of Xxxxx X. Halls, Xxxx X. Xxxxx,
Xxxxx X. Xxxxx, Park X. Xxxxx and Xxxx X. Xxxxx considered together with
their respective spouses, Stockholder Controlled Entities and defective
trusts, are entitled to a minimum Rule 144 Allotment of 20,000 Shares
per calendar quarter, even though their respective Rule 144 Allotments
would have been 18,600, 15,400, 15,400, 15,400 and 4,000 had their
respective "Participation Percentages" been strictly applied in the
absence of such minimum.
S-20
SCHEDULE "B"
NAME OF STOCKHOLDER The LMB Trust The LB Trust The CWN Trust The DPN Trust The
GNT Trust The JS Trust The JT Trust The CB Trust The CM Trust The BCT Trust The
ST Trust The NJR Trust The RLS Trust The RBZ Trust
S-21
SCHEDULE "C"
NAME OF STOCKHOLDER
The Xxxxx Xxxxx Fixed Charitable Trust
The Xxxxxx X. Xxxxxxxxx Fixed Charitable Trust
The Xxxxxx and Xxxxxxx Xxxx Fixed Charitable Trust
The Xxxx and Xxxxxxx Xxxxx Fixed Charitable Trust
The Xxxxx and Xxxx Xxxx Halls Fixed Charitable Trust
The Xxxxx X. Xxxxxxxxx Fixed Charitable Trust
The Xxxxxx Fixed Charitable Trust
S-22
SCHEDULE "D"
NUMBER OF SHARES
NAME OF STOCKHOLDER TO BE REPURCHASED
Xxxx X. Xxxxx 281,615
Xxxxxxx X. Xxxxx 281,614
Xxxx X. Xxxxx 214,286
Xxxxx X. Xxxxx 214,286
Park X. Xxxxx 285,714
THE MAR TRUST 71,429
The Corporation of the President of
The Church of Xxxxx Xxxxxx of Latter-Day Saints(1) 342,673
The United Way(1) 714
The Foundation of Seacological Conservation(1) 5,000
----------------------
(1) Shares were gifted to the listed entity by various individual and/or
Foundation Initial Stockholders
S-23
SCHEDULE "E"
NAME OF STOCKHOLDER(1) INDEBTEDNESS LIMIT GROSS OFFERING PROCEEDS
Xxxxx X. Xxxxx $ 15 million $50,000,000
Xxxxx X. Xxxxx $ 20 million $50,000,000
Xxxxxx X. Xxxxxxxxx $ 8 million $40,000,000
Xxxxx X. Xxxxxxxxx $ 5 million $25,000,000
R. Xxxxx Xxxxxx $ 5 million $25,000,000
Xxxxxx X. Xxxx $ 4 million $20,000,000
Xxxxxx X. Xxxxx $ 4 million $20,000,000
Xxxx X. Xxxxx $ 4 million $20,000,000
Xxxxx X. Halls $2.5 million $10,000,000
Xxxx X. Xxxxx $2.5 million $10,000,000
Xxxxx X. Xxxxx $3.5 million $10,000,000
Park X. Xxxxx $3.5 million $10,000,000
----------------
(1) As used in this Schedule A, the term "Stockholder" shall include the
listed individual and the listed individual's spouse and all of such
individual's Stockholder Controlled Entities and defective trusts
considered together. Therefore, the Indebtedness Limit amount and the
Gross Offering proceeds amount shall apply in the aggregate to the
listed individual and to such individual's spouse, Stockholder
Controlled Entities and defective trusts considered together as a group.
S-24
