FIRST AMENDMENT TO AGREEMENT AND PLAN OF MERGER AND REORGANIZATION
This First Amendment to Agreement and Plan of Merger and Reorganization
(the "First Amendment") is entered into as of July __, 1999, between and among
Nu Skin Enterprises, Inc., a Delaware corporation ("Nu Skin Enterprises"), Big
Planet Holdings, Inc., a Delaware corporation ("BP Holdings"), Big Planet, Inc.,
a Utah corporation ("Big Planet"), Maple Hills Investment, Inc., a Delaware
corporation formerly known as Nu Skin USA, Inc., ("Nu Skin USA"), Xxxxxxx X.
Xxxx, an individual ("King"), Xxxxx X. Xxxxx, an individual ("Xxxxx"), and
Xxxxxx X. Xxxxx, an individual ("Xxxxx"). Nu Skin Enterprises, BP Holdings, Big
Planet, Nu Skin USA, King, Doman, and Xxxxx are referred to herein,
collectively, as the "Parties" and, individually, as a "Party." Capitalized
terms used but not otherwise defined in this First Amendment shall be deemed to
have the meanings ascribed to them in the Agreement (as that term is defined in
Recital A below).
RECITALS
A. WHEREAS, the Parties entered into an Agreement and Plan of Merger and
Reorganization dated May 3, 1999 regarding the merger of Big Planet with and
into BP Holdings (the "Agreement");
B. WHEREAS, Big Planet has not procured all of the third-party consents
and approvals required to be obtained pursuant to Section 7 of the Agreement
prior to the Closing;
C. WHEREAS, prior to the Closing and pursuant to Section 2.1 of the
Agreement, Big Planet accelerated and redeemed all of the options held by the
Redeemed Employees (as that term is defined below) and issued pursuant to the
Plan, without requiring a release or any investor representations from such
option holders;
D. WHEREAS, the Indemnified Party requires that the Indemnifying Parties
indemnify, defend, and hold it harmless from and against any and all Losses
arising out of or relating in any way to the acceleration and redemption by Big
Planet of the options held by the Redeemed Employees; and
E. WHEREAS, the Parties now desire to amend the Agreement as set forth
in this First Amendment.
NOW, THEREFORE, in consideration of the premises and mutual agreements
set forth herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Parties agree as follows:
1. Amendment of Section 2.2.2 to Agreement. Section 2.2.2 to the Agreement is
amended to delete Xxxxx'x option to defer the repayment of the debt owed to
either Big Planet or Nu Skin Enterprises, which new Section 2.2.2 shall read in
its entirety as follows:
"2.2.2 Xxxxx Redemption Shares; Debt Repayment. Immediately prior to the
Effective Time, the vesting of all shares of Big Planet Common
underlying the restricted stock award currently held by Xxxxx (the
"Xxxxx Redemption Shares") will be accelerated and the Xxxxx Redemption
Shares will be redeemed by Big Planet for a redemption price equal to
(a) $0.50 per share, (b) less any amount required to be withheld by Big
Planet for applicable tax withholdings. The redemption price for the
Xxxxx Redemption Shares will be paid by wire transfer or other
immediately available funds."
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2. Addition of New Section 8.1.16 to Agreement. A new Section 8.1.16 is added to
the Agreement, reading in its entirety as follows:
"8.1.16 Big Planet shall obtain from each of its employees and
consultants listed on Schedules 1, 2, 3, and 4 to Exhibit "G" attached
hereto who is an employee or consultant of Big Planet at the Effective
Time a release in a form reasonably acceptable to Nu Skin Enterprises
and BP Holdings."
3. Amendment of Section 10.8 to Agreement. Section 10.8 to the Agreement is
amended to delete the reference to Xxxxx being one of the Indemnifying Parties,
which new Section 10.8 shall read in its entirety as follows:
"10.8 Indemnification. As an inducement for Nu Skin Enterprises to enter
into this Agreement, each of Nu Skin USA, King, and Xxxxx (collectively,
the "Indemnifying Parties") shall:"
4. Addition of New Section 10.8.1.1 to Agreement. A new Section 10.8.1.1 is
added to the Agreement, reading in its entirety as follows:
"10.8.1.1 The Parties understand and agree that Big Planet has not
procured all of the third-party consents and approvals specified in
Section 7 above, as it was required to do prior to the Closing pursuant
to Section 8.1.3 above. The Parties further understand and agree, in
spite of Big Planet not having procured all of such consents and
approvals, that Nu Skin Enterprises has nevertheless waived such
condition as to all such third-party consents and approvals except for
the consents and approvals required from the parties set forth on
Exhibit "A" attached hereto (the "Unwaived Matters"), and, upon receipt
of consents and approvals from each of the appropriate parties to the
Unwaived Matters, Nu Skin Enterprises has agreed to proceed with the
Closing in the interest of closing the Merger and the transactions
contemplated by this Agreement; provided, however, that Big Planet
hereby agrees to use its best efforts to obtain as soon as possible
after the Closing Date all consents and approvals that were not obtained
prior thereto and that were waived by Nu Skin Enterprises (the "Waived
Matters"). Notwithstanding the waiver by Nu Skin Enterprises of such
closing condition with respect to the Waived Matters, subject to the
Indemnification Limitation Agreement, as amended by the First Amendment
to Indemnification Limitation Agreement, the Indemnifying Parties shall
nevertheless agree to indemnify, defend, and hold each Indemnified Party
harmless from and against any and all Losses arising out of or relating
in any way to the Unwaived Matters prior to the Closing, as well as all
Waived Matters prior to the Closing, and Nu Skin Enterprises' waiver of
such closing condition with respect to all such third-party consents and
approvals shall in no way be deemed to undermine, or in any way to
constitute a waiver of, the Indemnifying Parties' indemnification
obligation to the Indemnified Party pursuant to Section 10.8.1 above."
5. Addition of New Section 10.8.1.2 to Agreement. A new Section 10.8.1.2 is
added to the Agreement, reading in its entirety as follows:
"10.8.1.2 The Parties acknowledge that prior to the Closing and pursuant
to Section 2.1 of the Agreement, Big Planet accelerated and redeemed all
of the options held by Big
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Planet employees and issued pursuant to the Plan (the "Redeemed
Employees"), without obtaining a release from such Redeemed Employees.
The Parties further acknowledge that the Indemnified Party requires that
the Indemnifying Parties indemnify, defend, and hold it harmless from
and against any and all Losses arising out of or relating in any way to
(a) any equity incentives or restricted stock awards previously granted
by Big Planet to any employee or consultant of Big Planet, (b) the grant
to and the acceleration and redemption of any options or equity
incentives held by any employee or consultant of Big Planet, (c) the
Merger, (d) this Agreement, and (e) any employee or consultant employed
or engaged by Big Planet, including, but not limited to, Losses arising
from the violation by Big Planet of any securities, corporate,
fiduciary, or employment law, statute, rule, or regulation. Accordingly,
the Indemnifying Parties shall, subject to the Indemnification
Agreement, as amended by the First Amendment to Indemnification
Limitation Agreement, indemnify, defend, and hold the Indemnified Party
harmless from and against any and all such Losses."
6. Amendment of Section 10.10 to Agreement. Section 10.10 of the Agreement is
amended to read in its entirety as follows:
"10.10 Equity and Other Incentives. In consideration of the covenants
and agreements of King, Doman, and Xxxxx contained herein, and as a
further inducement to cause King, Doman, and Xxxxx to enter into this
Agreement, Nu Skin Enterprises agrees at the Closing to comply with the
requirements of Exhibit "G" attached hereto; provided, however, that Nu
Skin Enterprises shall only be obligated to issue the awards and options
contemplated being issued by Exhibit "G" attached hereto (a) to the
individuals listed in Exhibit "G" who continue to be and are employees
or consultants of Big Planet at the Effective Time and (b) to those
individuals listed in Exhibit "G" who execute a release in a form
reasonably acceptable to Nu Skin Enterprises and BP Holdings."
7. Amendment to Exhibit "G" to Agreement. Schedules 1, 2, 3 and 4 to Exhibit "G"
to the Agreement are amended to delete all references to Xxxxx, so as to provide
that Xxxxx will not be entitled to be issued any awards or options under Exhibit
"G".
8. Miscellaneous.
8.1 No Other Amendments. The Agreement shall remain in full force and
effect except as otherwise specifically provided by this First Amendment, and no
other amendments, modifications, or changes shall be deemed to have been made to
the Agreement except for those set forth in this First Amendment.
8.2 Counterparts. This First Amendment may be executed by facsimile and
in counterparts, each of which shall be deemed an original, but all of which,
when taken together, shall constitute one and the same instrument.
8.3 Incorporation of Recitals. The above Recitals are deemed to be
incorporated herein by reference and made a part hereof.
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IN WITNESS WHEREOF, the Parties have caused this First Amendment to
Agreement and Plan of Merger and Reorganization to be signed as of the day and
year first above written.
NU SKIN ENTERPRISES, INC.
By: -------------------------------------
M. Xxxxxx Xxxx
Its: Vice President and General Counsel
BIG PLANET HOLDINGS, INC.
By: -------------------------------------
M. Xxxxxx Xxxx
Its: Secretary
BIG PLANET, INC.
By: -------------------------------------
Xxxxxxx X. Xxxx
Its: President
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Xxxxxxx X. Xxxx
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Xxxxx X. Xxxxx
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Xxxxxx X. Xxxxx
MAPLE HILLS INVESTMENT, INC.
(formerly known as Nu Skin USA, Inc.)
By: -------------------------------------
Xxxxxx X. Xxxx
Its: President and Chief Executive Officer
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The Compnay will furnish supplementally a copy of any omitted schedule to the
Commission upon request.
