OFF-SHORE SECURITIES SUBSCRIPTION AGREEMENT
Nu Skin Asia Pacific, Inc.
00 Xxxx Xxxxxx Xxxxxx
Xxxxx, Xxxx 00000
XXX
Ladies and Gentlemen:
This Offshore Securities Subscription Agreement (the
"Subscription Agreement") is one of a limited number of such
subscriptions for shares of Class A Common Stock, $0.001 par
value per share (the "Class A Common Stock"), of Nu Skin Asia
Pacific, Inc., a Delaware corporation (the "Company"). Execution
of this Subscription Agreement by the undersigned purchaser (the
"Purchaser") shall constitute an offer by the Purchaser to
subscribe for the Shares specified in paragraph 1 below. The
Company shall have the right in its sole and absolute discretion
to reject such offer for any reason whatsoever, or by executing a
copy of this Subscription Agreement, to accept the Purchaser's
offer. If such offer is accepted, the Company will return an
executed copy of this Subscription Agreement to the Purchaser.
1. Subscription. The Purchaser hereby tenders this
Subscription Agreement and applies for the purchase of Three
Thousand One Hundred Forty-Nine (3,149) shares of the Company s
Class A Common Stock (the "Shares"). The Purchaser encloses
payment for the full amount of the purchase price for the Shares
made payable to "Nu Skin Asia Pacific, Inc." The purchase price
for each Share shall be U.S. Twenty-Three Dollars and no/100
(U.S. $23.00), for an aggregate purchase price for the Shares of
U.S. Seventy Two Thousand Four Hundred Twenty-Seven (U.S.
$72,427).
2. Representations and Warranties of the Purchaser.
In order to induce the Company to accept this Subscription
Agreement, the Purchaser hereby represents and warrants to, and
covenants with, the Company as follows:
A. The Purchaser is not a U.S. Person
(as that term is defined under Regulation S promulgated under the
Securities Act of 1933, as amended (the "1933 Act")).
____________________
See Appendix "A" attached hereto for the definitions of
"Distributor", "U.S. Person" and "United States" under
Regulation S.
B. At the time the buy order for the Shares was
originated, the Purchaser was outside the United States and is
outside of the United States as of the date of the execution and
delivery of this Subscription Agreement. In addition, at the
time the buy order for the Shares was originated, the Purchaser
was outside of the Country of Taiwan and the Purchaser did not
make the offer for the Shares from the Country of Taiwan and this
transaction did not take place in and was not negotiated from or
within the Country of Taiwan. Moreover, this Subscription
Agreement was not delivered to the Purchaser or executed by the
Purchaser in the Country of Taiwan.
C. The Purchaser is purchasing the Shares for
the Purchaser's own account and not on behalf of any U.S. Person,
and the sale of the Shares has not been pre-arranged with the
Purchaser in the United States or in the Country of Taiwan.
D. To the best knowledge of the Purchaser, each
Distributor (as that term is defined in Regulation S) that is
participating in the offering of the Shares, if any, has agreed
that all offers and sales of the Shares prior to the expiration
of a period commencing on the date of the closing of the offering
(the "Closing") and ending forty (40) days thereafter shall only
be made in compliance with the safe harbor provisions contained
in Regulation S, or pursuant to registration of the Shares under
the 1933 Act or pursuant to an applicable exemption from
registration under the 1933 Act.
E. The Purchaser represents and warrants and
hereby agrees that all offers and sales of the Shares prior to
the expiration of a period commencing on the Closing and ending
forty (40) days thereafter shall only be made in compliance with
the safe harbor provisions contained in Regulation S or pursuant
to registration of the Shares under the 1933 Act or pursuant to
an exemption from registration or to such an exemption from
registration under the 1933 Act and that thereafter all offers
and sales in the United States or to U.S. Persons shall be made
only pursuant to such a registration or pursuant to an exemption
from registration.
F. The Purchaser acknowledges and understands
that the Shares have not been registered under the 1933 Act and
may not be offered or sold in the United States or to U.S.
Persons during a period commencing on the Closing and ending
forty (40) days thereafter unless the Shares are registered under
the 1933 Act or an exemption from the registration requirements
of the 1933 Act is available.
G. The Purchaser is not an officer, director or
"Affiliate" (as that term is defined in Rule 405 under the 0000
Xxx) of the Company.
H. The Purchaser (and/or the Purchaser's
purchaser representative, if any) has had a reasonable
opportunity to ask questions of and receive answers from the
Company, or a person or persons acting on its behalf, concerning
the Company and the terms and conditions of this offering, and
all such questions, if any, have been answered to the full
satisfaction of the Purchaser, none of which answers is in any
way inconsistent with the Prospectus dated November 21, 1996 (the
"Prospectus") that was delivered to the Purchaser in connection
with this transaction; and the Purchaser understands that the
Company shall provide the Purchaser with an opportunity to ask
additional questions of and receive answers (all of which
information shall be limited to information in the public realm)
from the Company concerning the Company during the period that
the Purchaser owns any of the Shares;
I. The Purchaser has such knowledge and
expertise in financial and business matters that the Purchaser is
capable of evaluating the merits and risks involved in an
investment in the Shares and is purchasing the Shares for
investment, for the Purchaser's own account and not with a view
towards resale or distribution.
J. Except as set forth in the Prospectus, a copy
of which the Purchaser acknowledges has been received and
carefully read and understood, no representations or warranties,
oral or otherwise, have been made to the Purchaser by the Company
or any officer, director, agent, employee or affiliate of the
Company, and in entering into this transaction the Purchaser is
not relying upon any information, other than the Prospectus and
the results of the Purchaser's independent investigation of the
Company and its operations.
K. The Purchaser understands that the Shares are
being offered and sold to the Purchaser in reliance upon specific
exemptions from the registration requirements of the United
States federal and state securities laws and that the Company is
relying upon the truth and accuracy of the representations,
warranties, covenants, agreements, acknowledgments and
understandings of the Purchaser set forth herein in order to
determine the applicability of such exemptions and the
suitability of the Purchaser to purchase and acquire the Shares.
L. The Purchaser has full power and authority to
execute and deliver this Subscription Agreement and to perform
the obligations of the Purchaser hereunder; this Subscription
Agreement is a legally binding obligation of the Purchaser in
accordance with its terms and conditions.
M. The Purchaser hereby acknowledges receipt of
a copy of the Prospectus, which Prospectus has been carefully
read and understood by the Purchaser.
N. All of the representations and warranties
provided by the Purchaser to the Company herein, as well as all
other information provided to the Company in connection with this
transaction, are true and correct in all respects as of the date
hereof.
O. The Purchaser does not intend or anticipate
that this investment be a source of income and the Purchaser is
able to bear the substantial economic risks of an investment in
the Shares and at the present time can afford a complete loss of
such investment.
P. The address set forth below is the true and
correct residence of the Purchaser, and the Purchaser has no
present intention of becoming a resident of the United States or
of any other jurisdiction.
Q. The Purchaser understands that the Company
will have full access to the monies paid for the Shares upon
acceptance of this Subscription Agreement and the execution
hereof by the Company. The purchase price for the Shares will
not be escrowed and no events or conditions need to be satisfied
or met before the Company can accept and close on the Purchaser's
subscription.
3. Non-Binding Until Accepted. The Purchaser
understands that this Subscription Agreement is not binding upon
the Company until the Company accepts it, which acceptance is at
the sole and absolute discretion of the Company and will be
evidenced by the Company's execution of this Subscription
Agreement where indicated below. This Subscription Agreement
shall be null and void if the Company does not timely accept it
as aforesaid.
4. Indemnification. The Purchaser agrees to
indemnify the Company and its officers, directors and agents
(collectively, the "Indemnitees"), and to hold the Indemnitees
harmless from and against any and all losses, damages,
liabilities, costs and expenses that they or any of them may
sustain or incur in connection with the breach by the Purchaser
of any representation, warranty, covenant or acknowledgment made
by the Purchaser herein.
5. Miscellaneous. This Subscription Agreement:
(i) may only be modified by a written instrument executed by the
Purchaser and the Company; (ii) sets forth the entire agreement
of the Purchaser and the Company with respect to the subject
matter hereof and the Shares; (iii) shall be governed by the laws
of the State of Utah applicable to contracts made in and to be
wholly-performed therein notwithstanding that it was executed by
the Purchaser outside of the United States; and (iv) shall inure
to the benefit of, and be binding upon, the Company and the
Purchaser and their respective heirs, legal representatives,
successors and assigns.
6. Jurisdiction and Venue; Governing Law. The
Purchaser: (a) agrees that any suit, action or proceeding
arising out of or relating to this Subscription Agreement shall
be instituted exclusively in the Utah District Court, Third
Judicial District, or in the United States District Court for the
District of Utah; (b) waives any objection that the Purchaser may
now have or may hereafter have to the venue of any such suit,
action or proceeding; and (c) irrevocably consents to the
jurisdiction of the Utah District Court. Third Judicial
District, and the United States District Court for the District
of Utah, in any such suit, action or proceeding arising out of or
related to this Subscription Agreement or the Purchaser's
subscription for and purchase and acquisition of the Shares. The
Purchaser further agrees to accept and acknowledge service of any
and all process that may be served in any such suit, action or
proceeding hereunder in the Utah District Court, Third Judicial
District, or in the United States District Court for the District
of Utah, and also agrees that service of process upon the
Purchaser mailed by certified or registered mail to the Purchaser
shall be deemed in every respect effective service of process
upon the Purchaser. In any suit, action or proceeding hereunder.
7. Further Assurances. All of the parties hereto,
both before and after the Closing, upon the request from time to
time by any party hereto and without further consideration, will
do each and every act and thing as may be necessary or reasonably
requested to consummate the transaction contemplated hereby.
8. Pronouns. Unless the context requires otherwise,
all personal pronouns used in this Subscription Agreement,
whether in the masculine, feminine or neuter gender, shall
include all other genders.
9. Notices. All notices or other communications
hereunder shall be in writing and shall be deemed to have been
duly given if delivered personally or mailed by certified or
registered mail, return receipt requested, postage prepaid, as
follows: (a) if to the Purchaser, to the address set forth on
page 5 of this Subscription Agreement and (b) if to the Company,
to Nu Skin Asia Pacific, Inc., 00 Xxxx Xxxxxx Xxxxxx, Xxxxx, Xxxx
00000 XXX, Attention: M. Xxxxxx Xxxx, Esq., Vice President of
Legal Affairs and Investor Relations, or to such other address as
the Company or the Purchaser shall have designated to the other
by like notice.
10. Legend. The Purchaser consents to the placement
of a legend on the certificate(s) representing the Shares
purchased by the Purchaser, which legend shall be in form
substantially as follows:
THE SECURITIES EVIDENCED BY THIS CERTIFICATE MAY NOT BE
OFFERED OR SOLD WITHIN THE UNITED STATES OR TO, OR FOR THE
ACCOUNT OR BENEFIT OF, U.S. PERSONS (i) AS PART OF THEIR
DISTRIBUTION AT ANY TIME OR (ii) OTHERWISE UNTIL FORTY (40)
DAYS AFTER THE LATER OF THE COMMENCEMENT OF THE OFFERING AND
THE CLOSING DATE, EXCEPT IN EITHER CASE IN ACCORDANCE WITH
REGULATION S (OR RULE 144A, IF AVAILABLE) UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR PURSUANT TO
REGISTRATION OF THE SECURITIES OR AN EXEMPTION FROM
REGISTRATION. THE TERMS USED IN THIS LEGEND HAVE THE
MEANING GIVEN TO THEM BY REGULATION S. THE SALE OR OTHER
DISPOSITION OF THE SECURITIES EVIDENCED BY THIS CERTIFICATE
IS RESTRICTED AND IN ANY EVENT IS PROHIBITED UNLESS THE
COMPANY RECEIVES AN OPINION OF COUNSEL, SATISFACTORY TO THE
COMPANY AND ITS COUNSEL THAT SUCH SALE OR OTHER DISPOSITION
CAN BE MADE WITHOUT REGISTRATION UNDER THE SECURITIES ACT OF
1933, AS AMENDED.
11. Counterparts. This Subscription Agreement may be
executed in counterparts and by facsimile and each of such
counterparts shall constitute an original and all of which
together shall constitute one and the same document.
IN WITNESS WHEREOF, the Purchaser has executed this
Subscription Agreement this 13th day of January, 1997.
THE PURCHASER:
/s/ Xxxx Xxxx Li
Signature
Xxxx Xxxx Li
Printed Name
Number of Shares Subscribed For: 3,149
(Please print information below exactly
as you wish it to appear on the Company's records)
Xxxx Xxxx Li 02-84399812
____________________ _____________________
Name and capacity in which Identification Number
subscription is made--see
below for particular
requirements.
Address: Address for notices, if
different:
#7, Xxxx 00, Xxxxxxxxxxx Xxxxxx
Xxxxx Xxxxx Xxxx
_______________________________ _________________________
Number and Xxxxxx Xxxxxx xxx Xxxxxx
Xxxxxxxx 000
______________________________ _________________________
City Zip Code City Zip Code
Taiwan
______________________________ _________________________
Country Country
Please indicate form of ownership (if applicable):
/s/ Xxxx Xxxx Li
______________________________ _________________________
TENANTS-IN-COMMON JOINT TENANTS WITH RIGHT OF
(Both parties must sign above) SURVIVORSHIP
(Both parties must sign above)
ACCEPTANCE OF SUBSCRIPTION
NU SKIN ASIA PACIFIC, INC.
The foregoing Subscription Agreement submitted by Xxxx Xxxx
Li is hereby accepted by the Company this 13th day of January,
1997 for Three Thousand One-Hundred Forty-Nine (3,149) shares of
the Company s Class A Common Stock as indicated herein.
THE COMPANY:
NU SKIN ASIA PACIFIC, INC.,
a Delaware corporation
By: /s/ M. Xxxxxx Xxxx
M. Xxxxxx Xxxx
Its: Vice President of Legal
Affairs and Investor
Relations
APPENDIX "A"
Pursuant to Rule 902(c), (o) and (p) of Regulation S,
the terms "Distributor", "U.S. Person" and "United States" are
defined as follows:
(c) Distributor. "Distributor" means any
underwriter, dealer, or other person who participates, pursuant
to a contractual arrangement, in the distribution of the
securities offered or sold in reliance on this Regulation S.
(o) U.S. Person. (1) "U.S. person" means:
(i) Any natural person resident in the United
States;
(ii) Any partnership or corporation organized or
incorporated under the laws of the United States;
(iii) An estate of which any executor or administrator
is a U.S. person;
(iv) Any trust of which any trustee is a U.S. person;
(v) Any agency or branch of a foreign entity located
in the United States;
(vi) Any non-discretionary account or similar account
other than an estate or trust held by a dealer or other fiduciary
for the benefit or account of a U.S. person;
(vii) Any discretionary account or similar account
(other than an estate or trust) held by a dealer or other
fiduciary organized, incorporated or (if an individual) resident
in the United States; and
(viii) Any partnership or corporation if: (A) organized
or incorporated under the laws of any foreign jurisdiction; and
(B) formed by a U.S. person principally for the purpose of
investing in securities not registered under the [Securities Act
of 1933, as amended], unless it is organized or incorporated, and
owned, by accredited investors (as defined in Rule 501 (a) under
the [Securities Act of 1933, as amended]) who are not natural
persons, estates or trusts.
(2) Notwithstanding paragraph (o)(1) of this
section, any discretionary account or similar account (other than
any estate or trust) held for the benefit or account of a non-
U.S. person by a dealer or other professional fiduciary
organized, incorporated or (if an individual) resident in the
United States shall not be deemed a "U.S. person".
(3) Notwithstanding paragraph (o)(1) of this
section, any estate of which any professional fiduciary acting as
executor or administrator is a U.S. person shall not be deemed a
U.S. person if:
(i) An executor or administrator of the estate who is
not a U.S. person has sole or shared investment discretion with
respect to the assets of the estate; and
(ii) The estate is governed by foreign law.
(4) Notwithstanding paragraph (o)(1) of this
section, any trust of which a professional fiduciary acting as
trustee is a U.S. person shall not be deemed a U.S. person if a
trustee who is not a U.S. person has sole or shared investment
discretion with respect to the trust assets, and no beneficiary
of the trust (and no settlor if the trust revocable) is a U.S.
person.
(5) Notwithstanding paragraph (o)(1) of this
section, an employee benefit plan established and administered in
accordance with the law of a country other than the United States
and customary practices and documentation of such country shall
not be deemed a U.S. person.
(6) Notwithstanding paragraph (o)(1) of this
section, any agency or branch a U.S. person located outside the
United States shall not be deemed a "U.S. person".
(i) The agency or branch operates for valid business
reasons; and
(ii) The agency or branch is engaged in the business of
insurance or banking and is subject to substantive insurance or
banking regulation, respectively, in the jurisdiction where
located.
(7) The International Monetary Fund, the
International Bank for Reconstruction and Development, the Inter-
American Development Bank, the Asia Development Bank, the African
Development Bank, the United Nations, and their agencies,
affiliates and pension plans, any other similar international
organizations, their agencies; affiliates and pension plans shall
not be deemed "U.S. persons".
(p) United States. "United States" means the
United States of America, its territories and possessions, any
state of the United States, and the District of Columbia.
