ASSIGNMENT OF LEASEHOLD IMPROVEMENTS
This Assignment of Leasehold Improvements (the "ASSIGNMENT") is made
and entered into effective as of July 13, 1999, by and between Maple Hills
Investment, Inc., a Delaware corporation formerly known as Nu Skin USA, Inc.
("NU SKIN USA"), and Big Planet, Inc., a Utah corporation ("BIG PLANET"). Nu
Skin USA and Big Planet are sometimes referred to herein collectively as the
"PARTIES" and individually as a "PARTY." All capitalized terms used but not
otherwise defined herein shall be deemed to have the meanings ascribed to them
in the Asset Purchase Agreement (as that term is defined in Recital A below).
RECITALS
A. WHEREAS, Nu Skin Enterprises, Inc., a Delaware corporation ("NU SKIN
ENTERPRISES"), Nu Skin USA, and Nu Skin United States, Inc., a Delaware
corporation, entered into an Asset Purchase Agreement dated effective as of
March 8, 1999 (the "ASSET PURCHASE AGREEMENT");
B. WHEREAS, pursuant to the Asset Purchase Agreement, Nu Skin Enterprises
purchased the Non-Securities Acquired Assets and the Class A Shares (which
assets are collectively defined in the Asset Purchase Agreement as the "Acquired
Assets"), but did not purchase the Excluded Assets (as that term is defined in
the Asset Purchase Agreement and as the same are listed on Exhibit "A" attached
to the Asset Purchase Agreement);
C. WHEREAS, included among the Excluded Assets are certain leasehold
improvements relating to Big Planet's operations center located at 000 Xxxx 0000
Xxxxx (xxx "LEASEHOLD IMPROVEMENTS"), which Leasehold Improvements were funded
by Nu Skin USA for the benefit of Big Planet;
D. WHEREAS, pursuant to an Agreement and Plan of Merger and Reorganization
entered into as of May 3, 1999 between and among Nu Skin Enterprises, Big Planet
Holdings, Inc., a Delaware corporation and wholly-owned subsidiary of Nu Skin
Enterprises, Big Planet, Nu Skin USA, Xxxxxxx X. Xxxx, an individual, Xxxxx X.
Xxxxx, an individual, and Xxxxxx X. Xxxxx, an individual, as amended by First
Amendment to Agreement and Plan of Merger and Reorganization dated as of July 9,
1999, it is contemplated that Big Planet will be merged with and into Big Planet
Holdings, Inc. and become a wholly-owned subsidiary of Nu Skin Enterprises to be
operated under the name "Big Planet, Inc.;" and
E. WHEREAS, Nu Skin USA now desires to sell the Leaseholder Improvements to
Big Planet on the terms and conditions and for the consideration set forth in
this Assignment.
NOW, THEREFORE, in consideration of the premises and the mutual
promises herein made, and for other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties hereby agree as
follows.
1. CONTRIBUTION OF LEASEHOLD IMPROVEMENTS. Nu Skin USA hereby sells to Big
Planet all of its right, title, and interest in, to, and under the Leasehold
Improvements in exchange for the Purchase Price (as that term is defined in
Section 2 below).
2. PURCHASE PRICE. Big Planet shall deliver to Nu Skin USA cash in the amount of
Three Million Two Hundred Thousand Dollars ($3,200,000) in exchange for, and as
the total consideration for, the Leasehold Improvements (the "PURCHASE PRICE"),
which Purchase Price shall be delivered either in cash or paid by wire transfer,
at Big Planet's option, upon the execution of this Assignment by the parties.
3. REPRESENTATIONS AND WARRANTIES OF NU SKIN USA. Nu Skin USA hereby represents
and warrants to Big Planet, as of the date of this Assignment, as follows:
3.1 Description. Attached hereto as Schedule 3.1 is a true and compete
description of the Leasehold Improvements and the current net book value of the
Leasehold Improvements (as shown on Nu Skin USA's most recently prepared
financial statements) as of the date of this Assignment.
3.2 Title. Nu Skin USA owns the Leasehold Improvements free and clear of
any liens or encumbrances, and Nu Skin USA has not assigned, transferred,
conveyed, mortgaged, deeded in trust, or in any other way encumbered the
Leasehold Improvements or any interest therein in any manner whatsoever.
3.3 No Disputes. There are no disputes related to the Leasehold
Improvements or the ownership thereof.
4. GOVERNING LAW; JURISDICTION AND VENUE. This Assignment shall be governed by
and construed in accordance with the laws of the State of Utah applicable to
contracts entered into and to be performed entirely within such State, and no
action involving this Assignment may be brought except in the state and federal
courts residing in Salt Lake City, Salt Lake County, Utah.
5. MISCELLANEOUS. The above Recitals and all Schedules attached hereto are
deemed to be incorporated herein by reference and to be made a part hereof. Each
of the parties shall take all actions necessary after the execution of this
Assignment to consummate the assignment of the Leasehold Improvements to Big
Planet as contemplated herein.
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IN WITNESS WHEREOF, the parties have executed this Assignment of
Leasehold Improvements effective as of the date first set forth above.
MAPLE HILLS INVESTMENT, INC.
By: /s/ Xxxxxx X. Xxxx
Its: President
BIG PLANET, INC.
By: /s/ Xxxxxxx X. Xxxx
Its: President
ATTACHED SCHEDULE:
SCHEDULE 3.1 -- DESCRIPTION OF LEASEHOLD IMPROVEMENTS
