AMENDMENT NO. 1 TO AMENDED AND RESTATED STOCKHOLDERS AGREEMENT This Amendment No. 1 to the Amended and Restated Stockholders Agreement (this "Amendment Agreement") is entered into as of March 8, 1999 by and among the Stockholders who have executed the...
AMENDMENT NO. 1 TO
AMENDED AND RESTATED STOCKHOLDERS AGREEMENT
This Amendment No. 1 to the Amended and Restated Stockholders Agreement
(this "Amendment Agreement") is entered into as of March 8, 1999 by and among
the Stockholders who have executed the signature pages of this Agreement and Nu
Skin Enterprises, Inc., a corporation organized under the laws of the State of
Delaware (the "Company"). This Amendment Agreement shall be binding upon each
person who executes this Amendment Agreement notwithstanding the fact that any
other Stockholders fail or refuse to execute this Amendment Agreement. The
capitalized terms used in this Amendment Agreement and not otherwise defined
herein shall have the meanings given such terms in the Amended and Restated
Stockholders Agreement dated November 28, 1997 (the "Amended and Restated
Stockholders Agreement").
RECITALS
A. WHEREAS, the Company has entered into a letter of intent with Nu Skin
USA, Inc., Big Planet, Inc., certain shareholders of Big Planet, Inc. and
certain of the Initial Stockholders with respect to the potential acquisition by
the Company or its affiliates of Big Planet, Inc., Nu Skin Canada, Inc., Nu Skin
Mexico S.A. de C.V., a Mexico corporation domesticated in the State of Delaware
under the name Nu Skin Mexico, Inc., and Nu Skin Guatemala, S.A., a Guatemala
corporation domesticated in the State of Delaware under the name Nu Skin
Guatemala, Inc. and further regarding the termination of various agreements
between Nu Skin International, Inc., a subsidiary of the Company, and Nu Skin
USA, Inc. in consideration for the payment to Nu Skin USA, Inc. of certain
consideration and the acquisition of certain assets by the Company from Nu Skin
USA, Inc. (all of the foregoing proposed transactions being referred to herein
collectively as the "Proposed Transactions"); and
B. WHEREAS, in connection with the Proposed Transactions and the
Company's efforts to pursue certain liquidity events for those Stockholders
executing this Amendment Agreement, the Company has requested that the
Stockholders execute this Amendment Agreement and extend certain resale
restrictions set forth therein;
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
irrevocably agree as follows:
1. Section 2.2 Lock-up Agreement is hereby amended to provide that the
Extended Lock-up Period for all Stockholders who execute this Agreement (other
than the trusts identified on Schedule B to the Amended and Restated
Stockholders Agreement) is extended until and shall terminate on December 31,
1999. All other terms and conditions of Section 2.2 of the Amended and Restated
Stockholders Agreement shall remain in full force and effect. The trusts
identified on Schedule B to the Amended and Restated Stockholders Agreement and
those Stockholders who elect not to execute this Amendment Agreement shall
remain subject to the original Extended Lock-up Period, and following the
expiration of such original Extended Lock-up Period shall remain subject to the
limitations on resale as set forth in the Amended and Restated Stockholders
Agreement during the Restricted Resale Period.
2. Section 2.3 Post Lock-up Selling Restrictions is hereby amended to
provide that the Restricted Resale Period for all Stockholders (including the
trusts identified on Schedule B to the Amended
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and Restated Stockholders Agreement and those Stockholders who do not execute
this Agreement) shall expire on March 26, 2000. All other terms and conditions
of Section 2.3 of the Amended and Restated Stockholders Agreement shall remain
in full force and effect.
3. Section 3.4 Application of Agreement to Transfers in Private Resale
Transactions is hereby amended by adding the following sentence at the end of
such Section:
"Notwithstanding the foregoing, upon request to the Company, the Company
may authorize, which authorization may be granted or withheld in its
sole discretion exercised in good faith, a donee that is a non-profit
entity that is qualified under Section 501(c)(3) of the Internal Revenue
Code and is unaffiliated with any Stockholder to sell shares and not
have such shares aggregated with any shares transferred by the
Transferring Stockholder for purposes of the Rule 144 Allotment provided
that such donee sells the shares in accordance with the requirements
specified by the Company such as selling such shares through Xxxxxxx
Xxxxx'x Provo office, over such time period as may be required by the
Company, and in such manner and during such time period as will not
adversely affect the price or market of the Company's Class A Common
Stock.
4. Limited Resales. Each of Xxxxx X. Halls, or affiliates he designates,
Xxxx Xxxxxxx Halls, or affiliates she designates, Xxxx X. Xxxxx, Xxxxx X. Xxxxx,
Park X. Xxxxx, and the MAR Trust, if they execute this Amendment Agreement, may
(A) sell to the Company in 1999 20,000 shares of their Class A or Class B Common
Stock at a purchase price equal to 80% of the fair market value of such shares
based on the lower of the closing price of the Company's Class A Common Stock on
the New York Stock Exchange on the date prior to the announcement of the
execution of the letter of intent regarding the Proposed Transactions or the day
immediately prior to the date of the purchase of such shares by the Company, and
(B) notwithstanding their agreement to extend the Extended Lock-Up Period, sell
20,000 shares between September 1, 1999 and December 31, 1999 if such
Stockholder does not (i) sell any shares to the Company during 1999, and (ii)
does not sell any shares in a private placement or a secondary offering prior to
September 1, 1999. Any such sales shall be made through Xxxxxxx Xxxxx in
accordance with the provisions of 2.3.2 and 2.3.3, and for purposes of Section
2.3.3, the Stockholder's Rule 144 Allotment for the period from September 1,
1999 through December 31, 1999 shall be deemed to be 20,000 shares.
5. Liquidity Events. As additional consideration to the Stockholders
who, together with all of their Stockholder Controlled Entities, execute this
Amendment Agreement and agree to the extension of the Extended Lock-up Period
prior to March 15, 1999, the Company will endeavor to pursue other liquidity
alternatives for such Stockholders, market conditions permitting. Any of the
Stockholders who elect not to execute this Amendment Agreement prior to March
15, 1999 shall not have any right to participate in any such liquidity
alternative or event except for such limited rights that they may have with
respect to any registered, underwritten offering commenced by the Company under
the piggy-back registration rights provisions of the Amended and Restated
Stockholders Agreement.
6. Counterparts. This Agreement may be executed by facsimile and by any
number of counterparts, each of which shall be deemed to be an original, but all
of which together shall constitute one agreement. Each counterpart may consist
of a number of copies each signed by less than all, but together signed by all
of the Parties hereto.
7. Effect of Amendment. This Amendment Agreement amends the Amended and
Restated Stockholders Agreement only to the extent expressly provided herein.
Pursuant to Section 12.5 of the Amended and Restated Stockholders Agreement,
this Amendment Agreement shall be binding upon each
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of the Stockholders who elect to execute this Amendment Agreement even if one or
more of the Stockholders fail or refuse to execute this Amendment Agreement. To
the extent provisions of the Amended and Restated Stockholders Agreement are not
expressly modified or amended by this Agreement, such unamended provisions shall
continue in full force and effect and shall be construed together with the
amendments set forth herein as the entire agreement of the parties hereto. The
Amendment Agreement shall not apply to any Stockholder who does not execute this
Amendment Agreement, but such Stockholder shall remain subject to and obligated
under the terms of the Amended and Restated Stockholders Agreement, without
giving effect to this Amendment, and this Amendment shall in no way be
interpreted as limiting the obligations or restrictions in the Amended and
Restated Stockholders Agreement with respect to any Stockholder who does not
execute this Amendment Agreement. In the event the Company or one of its
subsidiaries has not entered into a definitive agreement with respect to the
Proposed Transactions by May 15 1999, the amendments referred to in Sections 1,
2 and 4 hereof shall expire and no longer be of any force or effect from the
date of such written notice.
[SIGNATURE PAGES BEGIN ON NEXT PAGE]
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SIGNATURE PAGE OF AMENDMENT NO. 1
TO AMENDED AND RESTATED STOCKHOLDERS AGREEMENT
IN WITNESS WHEREOF, this Agreement has been signed by duly authorized
signatories of the Parties hereto and is binding upon the Parties hereto as of
the date first above written.
NU SKIN ENTERPRISES, INC.,
a Delaware Corporation
By: /s/ Xxxxxx Xxxx
Its: Vice President
By: /s/ Xxxxx X. Xxxxx
Xxxxx X. Xxxxx, individually
By: /s/ Xxxxx x. Xxxxx
Xxxxx X. Xxxxx, individually
THE ALL R'S TRUST
By: /s/ X. X. XxXxxxxxxx
X. X. XxXxxxxxxx
Its: Trustee
THE B & N XXXXX TRUST
By: /s/ X. X. XxXxxxxxxx
X. X. XxXxxxxxxx
Its: Trustee
THE WFA TRUST
By: /s/ X. X. XxXxxxxxxx
X. X. XxXxxxxxxx
Its: Trustee
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SIGNATURE PAGE OF AMENDMENT NO. 1
TO AMENDED AND RESTATED STOCKHOLDERS AGREEMENT
BNASIA, LTD.
By: /s/ Xxxxx X. Xxxxx
Xxxxx X. Xxxxx
Its: General Partner
By: /s/ Xxxxx X. Xxxxx
Xxxxx X. Xxxxx
Its: General Partner
THE XXXXX X. AND XXXXX X. XXXXX
FOUNDATION
By: /s/ Xxxxx X. Xxxxx
Xxxxx X. Xxxxx
Its: Trustee
By: /s/ Xxxxx X. Xxxxx
Xxxxx X. Xxxxx
Its: Trustee
THE ONE FOUNDATION
By: /s/ Xxxxx X. Xxxxx
Xxxxx X. Xxxxx
Its: Trustee
By: /s/ Xxxxx X. Xxxxx
Xxxxx X. Xxxxx
Its: Trustee
By: /s/ Xxxxx X. Halls
Xxxxx X. Halls
Its: Trustee
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SIGNATURE PAGE OF AMENDMENT NO. 1
TO AMENDED AND RESTATED STOCKHOLDERS AGREEMENT
B & N RHINO COMPANY, L.C.
By: /s/ Xxxxx X. XxXxxxxxxx
Xxxxx X. XxXxxxxxxx
Its: Manager
/s/ Xxxxx X. Xxxxx
Xxxxx X. Xxxxx, individually
Xxxx X. Xxxxx, individually
/s/ Xxxxx F. Xxxxx
Xxxxx X. Xxxxx, individually
/s/ Park X. Xxxxx
Park X. Xxxxx, individually
THE MAR TRUST
By: /s/ Xxx X. Xxxxxx
Xxx X. Xxxxxx
Its: Trustee
THE NR TRUST
By: /s/ Xxx X. Xxxxxx
Xxx X. Xxxxxx
Its: Trustee
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SIGNATURE PAGE OF AMENDMENT NO. 1
TO AMENDED AND RESTATED STOCKHOLDERS AGREEMENT
THE ROSE FOUNDATION
By: /s/ Xxxxx X. Xxxxx
Xxxxx X. Xxxxx
Its: Trustee
By: /s/ Xxx X. Xxxxxx
Xxx X. Xxxxxx
Its: Trustee
THE XXXXX XXXXX FIXED CHARITABLE TRUST
By: /s/ Xxx X. Xxxxxx
Xxx X. Xxxxxx
Its: Trustee
NR RHINO COMPANY, L.C.
By: /s/ Xxxxx X. XxXxxxxxxx
Xxxxx X. XxXxxxxxxx
Its: Manager
/s/ Xxxxxx X. Xxxxxxxxx
Xxxxxx X. Xxxxxxxxx, individually
THE SNT TRUST
By: /s/ Xxx X. Xxxxxx
Xxx X. Xxxxxx
Its: Trustee
THE DVNM TRUST
By: /s/ Xxx X. Xxxxxx
Xxx X. Xxxxxx
Its: Trustee
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SIGNATURE PAGE OF AMENDMENT NO. 1
TO AMENDED AND RESTATED STOCKHOLDERS AGREEMENT
THE CWN TRUST
By: /s/ Xxx X. Xxxxxx
Xxx X. Xxxxxx
Its: Trustee
THE DPN TRUST
By: /s/ Xxxxx X. Xxxxxxxxx
Xxxxx X. Xxxxxxxxx
Its: Trustee
By: /s/ Xxx X. Xxxxxx
Xxx X. Xxxxxx
Its: Trustee
THE GNT TRUST
By: /s/ Xxxxx X. Xxxxxxxxx
Xxxxx X. Xxxxxxxxx
Its: Trustee
By: /s/ Xxx X. Xxxxxx
Xxx X. Xxxxxx
Its: Trustee
THE LMB TRUST
By: /s/ Xxx X. Xxxxxx
Xxx X. Xxxxxx
Its: Trustee
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SIGNATURE PAGE OF AMENDMENT NO. 1
TO AMENDED AND RESTATED STOCKHOLDERS AGREEMENT
THE XXXXXX X. XXXXXXXXX FOUNDATION
By: /s/ Xxxxxx X. Xxxxxxxxx
Xxxxxx X. Xxxxxxxxx
Its: Trustee
By: /s/ Xxx X. Xxxxxx
Xxx X. Xxxxxx
Its: Trustee
THE XXXXXX X. XXXXXXXXX FIXED
CHARITABLE TRUST
By: /s/ Xxxxxx X. Xxxxxxxxx
Xxxxxx X. Xxxxxxxxx
Its: Trustee
By: /s/ X. X. XxXxxxxxxx
X. X. XxXxxxxxxx
Its: Independent Trustee
SNT RHINO COMPANY, L.C.
By: /s/ Xxxxx X. Xxxxxxxxx
Xxxxx X. Xxxxxxxxx
Its: Manager
/s/ Xxxxxx X. Xxxx
Xxxxxx X. Xxxx, individually
/s/ Xxxxxxx Xxxx
Xxxxxxx Xxxx, individually
SKASIA, LTD.
By: /s/ Xxxxxx X. Xxxx
Xxxxxx X. Xxxx
Its: General Partner
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SIGNATURE PAGE OF AMENDMENT NO. 1
TO AMENDED AND RESTATED STOCKHOLDERS AGREEMENT
By: /s/ Xxxxxxx Xxxx
Xxxxxxx Xxxx
Its: General Partner
THE S AND K XXXX TRUST
By: /s/ Xxxxx X. Xxxxx
Xxxxx X. Xxxxx
Its: Trustee
THE XXXXXX X. AND XXXXXXX XXXX
FOUNDATION
By: /s/ Xxxxxx X. Xxxx
Xxxxxx X. Xxxx
Its: Trustee
By: /s/ Xxxxxxx Xxxx
Xxxxxxx Xxxx
Its: Trustee
THE XXXXXX AND XXXXXXX XXXX FIXED
CHARITABLE TRUST
By: /s/ Xxxxxx X. Xxxx
Xxxxxx X. Xxxx
Its: Trustee
By: /s/ Xxxxxx X. Xxxx
Xxxxxxx Xxxx
Its: Trustee
By: /s/ X. X. XxXxxxxxxx
X. X. XxXxxxxxxx
Its: Independent Trustee
S & K RHINO COMPANY, L.C.
By: /s/ Xxxxx X. XxXxxxxxxx
Xxxxx X. XxXxxxxxxx
Its: Manager
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SIGNATURE PAGE OF AMENDMENT NO. 1
TO AMENDED AND RESTATED STOCKHOLDERS AGREEMENT
/s/ Xxxxxx X. Xxxxx
Xxxxxx X. Xxxxx, individually
/s/ Xxxxxx X. Xxxxx
Xxxxxx X. Xxxxx, individually
BDASIA, LTD.
By: /s/ Xxxxxx X. Xxxxx
Xxxxxx X. Xxxxx
Its: General Partner
By: /ss Xxxxxx X. Xxxxx
Xxxxxx X. Xxxxx
Its: General Partner
THE B AND X XXXXX TRUST
By: /s/ Xxxxx X. Xxxxx
Xxxxx X. Xxxxx
Its: Trustee
THE XXXXXX XXXXXXX AND XXXXXX XXXXX
XXXXX FOUNDATION
By: /s/ Xxxxxx X. Xxxxx
Xxxxxx X. Xxxxx
Its: Trustee
By: /s/ Xxxxxx X. Xxxxx
Xxxxxx X. Xxxxx
Its: Trustee
Xxxx X. Xxxxx, individually
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SIGNATURE PAGE OF AMENDMENT NO. 1
TO AMENDED AND RESTATED STOCKHOLDERS AGREEMENT
Xxxxxxx X. Xxxxx, individually
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
THE XXXX AND XXXXXXX XXXXX FIXED
CHARITABLE TRUST
By:
Xxxx X. Xxxxx
Its: Trustee
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SIGNATURE PAGE OF AMENDMENT NO. 1
TO AMENDED AND RESTATED STOCKHOLDERS AGREEMENT
By:
Xxxxxxx X. Xxxxx
Its: Trustee
By:
X. X. XxXxxxxxxx
Its: Trustee
K & M RHINO COMPANY, L.C.
By:
Xxxxx X. XxXxxxxxxx
Its: Manager
/s/ Xxxxx X. Halls
Xxxxx X. Halls, individually
/s/ Xxxx Xxxx Xxxxxxx Halls
Xxxx Xxxx Xxxxxxx Halls, individually
KAASIA, LTD.
By: /s/ Xxxxx X. Halls
Xxxxx X. Halls
Its: General Partner
By: /s/ Xxxx Xxxx Halls
Xxxx Xxxx Halls
Its: General Partner
THE K AND A HALLS TRUST
By: /s/ Xxxxxxx Xxx Halls
Xxxxxxx Xxx Halls
Its: Trustee
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SIGNATURE PAGE OF AMENDMENT NO. 1
TO AMENDED AND RESTATED STOCKHOLDERS AGREEMENT
By: /s/ Xxxxxx Xxxxxx
Xxxxxx Xxxxxx
Its: Trustee
THE HALLS FAMILY TRUST
By: /s/ Xxxxxxx Xxx Halls
Xxxxxxx Xxx Halls
Its: Trustee
By: /s/ Xxxxxx Xxxxxx
Xxxxxx Xxxxxx
Its: Trustee
THE XXXXX AND XXXX XXXX HALLS FIXED
CHARITABLE TRUST
By: /s/ Xxxxx X. Halls
Xxxxx X. Halls
Its: Trustee
By: /s/ Xxxx Xxxx Halls
Xxxx Xxxx Halls
Its: Trustee
By: /s/ X. X. XxXxxxxxxx
X. X. XxXxxxxxxx
Its: Independent Trustee
THE XXXXX XXX AND XXXX XXXX XXXXXXX
HALLS FOUNDATION
By: /s/ Xxxxx X. Halls
Xxxxx X. Halls
Its: Trustee
By: /s/ Xxxx Xxxx Halls
Xxxx Xxxx Halls
Its: Trustee
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SIGNATURE PAGE OF AMENDMENT NO. 1
TO AMENDED AND RESTATED STOCKHOLDERS AGREEMENT
K & A RHINO COMPANY, L.C.
By: /s/ Xxxxx X XxXxxxxxxx
Xxxxx X. XxXxxxxxxx
Its: Manager
/s/ Xxxxx X. Xxxxxxxxx
Xxxxx X. Xxxxxxxxx, individually
THE CST TRUST
By: /s/ Xxxxxx X. Xxxxxxx
Xxxxxx X. Xxxxxxx
Its: Trustee
THE JS TRUST
By: /s/ Xxx X. Xxxxxx
Xxx X. Xxxxxx
Its: Trustee
THE JT TRUST
By: /s/ Xxx X. Xxxxxx
Xxx X. Xxxxxx
Its: Trustee
THE CB TRUST
By: /s/ Xxx X. Xxxxxx
Xxx X. Xxxxxx
Its: Trustee
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SIGNATURE PAGE OF AMENDMENT NO. 1
TO AMENDED AND RESTATED STOCKHOLDERS AGREEMENT
THE CM TRUST
By: /s/ Xxx X. Xxxxxx
Xxx X. Xxxxxx
Its: Trustee
THE BCT TRUST
By: /s/ Xxx X. Xxxxxx
Xxx X. Xxxxxx
Its: Trustee
THE ST TRUST
By: /s/ Xxx X. Xxxxxx
Xxx X. Xxxxxx
Its: Trustee
THE NJR TRUST
By: /s/ Xxx X. Xxxxxx
Xxx X. Xxxxxx
Its: Trustee
THE RLS TRUST
By: /s/ Xxx X. Xxxxxx
Xxx X. Xxxxxx
Its: Trustee
THE RBZ TRUST
By: /s/ Xxx X. Xxxxxx
Xxx X. Xxxxxx
Its: Trustee
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SIGNATURE PAGE OF AMENDMENT NO. 1
TO AMENDED AND RESTATED STOCKHOLDERS AGREEMENT
THE LB TRUST
By: /s/ Xxx X. Xxxxxx
Xxx X. Xxxxxx
Its: Trustee
THE XXXXX X. XXXXXXXXX FOUNDATION
By: /s/ Xxxxx X. Xxxxxxxx
Xxxxx X. Xxxxxxxxx
Its: Trustee
By: /s/ Xxx X. Xxxxxx
Xxx X. Xxxxxx
Its: Trustee
THE XXXXX X. XXXXXXXXX FIXED CHARITABLE
TRUST
By: /s/ Xxxxx X. Xxxxxxxxx
Xxxxx X. Xxxxxxxxx
Its: Trustee
By: /s/ Xxx X. Xxxxxx
Xxx X. Xxxxxx
Its: Independent Trustee
CST RHINO COMPANY, L.C.
By: /s/ Xxxxxx X. Xxxxxxxxx
Xxxxxx X. Xxxxxxxxx
Its: Manager
/s/ R. Xxxxx Xxxxxx
R. Xxxxx Xxxxxx, individually
/s/ Xxxxxxxx X. Xxxxxx
Xxxxxxxx X. Xxxxxx, individually
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SIGNATURE PAGE OF AMENDMENT NO. 1
TO AMENDED AND RESTATED STOCKHOLDERS AGREEMENT
RCKASIA, LTD.
By: /s/ R. Xxxxx Xxxxxx
R. Xxxxx Xxxxxx
Its: General Partner
By: /s/ Xxxxxxxx X. Xxxxxx
Xxxxxxxx X. Xxxxxx
Its: General Partner
THE C AND K TRUST
By: /s/ Xxxxxx X. Xxxx
Xxxxxx X. Xxxx
Its: Trustee
THE XXXXXX FOUNDATION
By: /s/ R. Xxxxx Xxxxxx
R. Xxxxx Xxxxxx
Its: Trustee
By: /s/ Xxxxxxxx X. Xxxxxx
Xxxxxxxx X. Xxxxxx
Its: Trustee
THE XXXXXX FIXED CHARITABLE TRUST
By: /s/ R. Xxxxx Xxxxxx
R. Xxxxx Xxxxxx
Its: Trustee
By: /s/ Xxxxxxxx X. Xxxxxx
Xxxxxxxx X. Xxxxxx
Its: Trustee
By: /s/ Xxxxxx X. Xxxxxxx
Xxxxxx X. Xxxxxxx
Its: Independent Trustee
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SIGNATURE PAGE OF AMENDMENT NO. 1
TO AMENDED AND RESTATED STOCKHOLDERS AGREEMENT
CKB RHINO COMPANY, L.C.
By: /s/ Xxxxx X. Halls
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
By:
X.X. XxXxxxxxxx
Its: Independent Trustee
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