Exhibit 4.6
LOCK-UP AND REGISTRATION RIGHTS AGREEMENT
THIS LOCK-UP AND REGISTRATION RIGHTS AGREEMENT (this "Agreement") is
entered into effective as of July ___, 2002 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
Enterprises, 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 A Common
Stock, $0.001 par value per shares ("Class A Common Stock"), and 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 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 Stockholders (as defined below),
whether now owned or hereafter acquired, are collectively referred to
hereinafter as the "Shares");
B. WHEREAS, the Initial Stockholders are parties to that certain Amended
and Restated Stockholders Agreement dated as of November 28, 1997, as amended by
Amendment No. 1 dated as of March 8, 1999 and Amendment No. 2 dated as of May
13, 1999 to the Amended and Restated Stockholders Agreement (collectively
referred to hereinafter as the "Original Stockholders Agreement"); and
C. WHEREAS, in connection with the execution of this Agreement, the
Company has agreed to register with the Securities and Exchange Commission
certain of the Initial Stockholders' Shares on Form S-3 (the "Registration
Statement") in exchange for the Initial Stockholders' agreement to be bound by
the terms hereof, including but not limited to, the restrictions on transfer of
Shares for a period of two years contained in each Initial Stockholder's
agreement with the underwriters identified in the Registration Statement, the
volume limitations on public sales of Shares and each Initial Stockholder's
general release in favor of the Company.
D. WHEREAS, the Initial Stockholders desire to amend and restate the
Original Stockholders Agreement in its entirety and enter into this Agreement on
the terms and conditions 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 "Class A Common Stock" shall have the meaning given such term in
Recital A hereof.
1.3 "Class B Common Stock" shall have the meaning given such term in
Recital A hereof.
1.4 "Company" shall have the meaning given such term in the
introductory paragraph of this Agreement.
1.5 "Cure Notice" shall have the meaning given such term in Section
3.3.1 hereof.
1.6 "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 a margin call or event of
default as described in Section 3.3.1 hereof.
1.7 "Initial Stockholders" or "Initial Stockholder" shall have the
meaning given such terms in the introductory paragraph of this Agreement.
1.8 "Institution" shall have the meaning given such term in Section
3.3.1 hereof.
1.9 "Involuntary Transfer" shall have the meaning given such term in
Section 4.1 hereof.
1.10 "Notice Period" shall have the meaning given such term in
Section 4.2.3 hereof.
1.11 "Offer Notice" shall have the meaning given such term in Section
4.2.2 hereof.
1.12 "Offered Shares" shall have the meaning given such term in
Section 4.2.1 hereof.
1.13 "Offering Stockholder" shall have the meaning given such term in
Section 4.2.1 hereof.
1.14 "Original Stockholders Agreement" shall have the meaning given
such term in Recital B hereof.
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1.15 "Pledge" or any derivation of such term shall have the meaning
given such term in Section 3.3.1 hereof.
1.16 "Principal Stockholder" shall mean each of Xxxxx X. Xxxxx, Xxxxx
X. Xxxxx, Xxxxxx X. Xxxxxxxxx, R. Xxxxx Xxxxxx, Xxxxx X. Xxxxxxxxx, Xxxxxx X.
Xxxx, Xxxxxx X. Xxxxx, Xxxx X. Xxxxx and Xxxx X. Xxxxx.
1.17 "Principal Stockholder Group" shall mean collectively the
individuals and entities listed opposite each Principal Stockholder Group's name
on Schedule A attached hereto, the Principal Stockholder's Controlled Entity and
any transferee that becomes a party to this Agreement pursuant to Section 3.4.
1.18 "Purchase Periods" shall have the meaning given such term in
Section 4.2.4 hereof.
1.19 "Purchasing Stockholder" shall have the meaning given such term
in Section 4.2.3 hereof.
1.20 "Registration Statement" shall have the meaning given in Recital
C hereof.
1.21 "Restricted Stock" shall have the meaning given such term in
Section 7.1 hereof.
1.22 "Right of First Offer" shall have the meaning given such term in
Section 4.2.1 hereof.
1.23 "SEC" shall have the meaning given in Recital C hereof.
1.24 "Securities Act" shall have mean the Securities Act of 1933, as
amended.
1.25 "Selling Expenses" shall have the meaning given such term in
Section 7.5 hereof.
1.26 "Shares" shall have the meaning given such term in Recital A
hereof.
1.27 "Stockholder" or "Stockholders" shall mean the following persons
and entities: (i) each Initial Stockholder (and spouse) 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 3.4 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.
1.28 "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
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her descendants or spouse; (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.
1.29 "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.
2.1 Restriction on Transfers. Each of the Stockholders hereby agrees
that he, she or it shall not, directly or indirectly, sell, make any short sale
of, grant any option for the purchase of, 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, or any
distribution made on, any Shares that are Transferred in violation or breach of
this Agreement.
2.2 Two-Year Lock-Up Agreement. Each of the Initial Stockholders
hereby acknowledges and confirms that he, she or it has entered into a separate
two-year lock-up agreement with the underwriters identified in the Registration
Statement (the "Two-Year Lock-Up Agreement") and hereby agrees to comply with
the obligations set forth in such Two-Year Lock-Up Agreement.
3. PERMITTED TRANSFERS. Following the expiration of the Two-Year Lock-Up
Agreement, Stockholders shall be permitted to Transfer Shares only as provided
in this Section 3 and in Section 4 of this Agreement and as otherwise agreed to
in writing by the Company.
3.1 Public Sales. Subject to compliance with the provisions of this
Agreement including the volume limitations set forth in Section 3.1.2 below and
compliance with applicable securities laws, Stockholders may Transfer Shares
through public resales pursuant to Rule 144 or such other exemption under
federal and state securities laws as may allow for a public resale of the
Shares.
3.1.1 Unless the Company in its sole discretion, exercised in
good faith, determines otherwise, all Transfers pursuant to Section 3.1 shall be
made through the Provo, Utah office or a specific office in New York City
(designated by the Company) of Xxxxxxx Xxxxx
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& Co., the Dallas, Texas office (designated by the Company) of Banc of America
Securities LLC, or such other broker or office as may be proposed by a
Stockholder and approved in advance in writing by the Company; provided,
however, the Company may revoke such approval or modify or change the brokers
and offices through which sales pursuant to Section 3.1 may be made at any time
as it determines appropriate in its sole discretion, exercised in good faith.
3.1.2 The number of Shares Transferred by a Stockholder pursuant
to Section 3.1, together with all Transfers of Class A Common Stock pursuant to
Section 3.1 within the preceding three months for the account of (A) such
Stockholder, (B) the other Stockholders who are part of the same Principal
Stockholder Group as such Stockholder, and (C) any transferee of such
Stockholder or other member of such Stockholder's Principal Stockholder Group to
the extent such Transfers are required to be aggregated by Section 3.5, shall
not exceed the greater of: (i) one percent of the shares of Class A Common Stock
outstanding as shown by the most recent Exchange Act report of the Company; and
(ii) the average weekly reported volume of trading in such securities on all
national securities exchanges and/or reported through the automated quotation
system of a registered securities association during the four calendar weeks
preceding the filing of a Form 144, or if no such notice is required, the date
of receipt of the order to execute the transaction by the broker or the date of
execution of the transaction directly with a market maker, provided that, in no
event shall such sales by a Stockholder and other members of the same Principal
Stockholder Group for any such three-month period exceed 350,000 shares of Class
A Common Stock in the aggregate.
3.1.3 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 such registration statement.
3.2 Registered Sales, Private Resales, Gifts, Bequests and
Distributions. Subject to the terms and conditions of this Agreement and
compliance with applicable securities laws, any Stockholder may Transfer shares
of Class A Common Stock (i) pursuant to a public offering of shares of Class A
Common Stock registered by the Company under the Securities Act, pursuant to the
rights granted in Section 7 hereof; (ii) pursuant to an exempt private resale
transaction to a person other than a Stockholder or a Stockholder Controlled
Entity, (iii) to other Stockholders or any Stockholder Controlled Entity, (iv)
by gift or bequest to a person other than a Stockholder or Stockholder
Controlled Entity; or (v) a distribution from a Stockholder Controlled Entity
that is a trust to one or more beneficiaries thereof who are Stockholders.
3.3 Pledges to Institutions.
3.3.1 Any Stockholder may xxxxx x xxxx or security interest in,
pledge, hypothecate or encumber (collectively, a "Pledge") any 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 Principal
Stockholder shall Pledge Shares to secure loans if the aggregate amount of all
such loans to such Principal
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Stockholder's particular Principal Stockholder's Group exceeds the amounts set
forth next to such Stockholder Group's name on Schedule B attached hereto under
the heading "Aggregate 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 3.3.1;
(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%) 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%) 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 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 Principal
Stockholder 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 3.3.1 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.
3.3.2 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 3.3.1 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 3.3.1. 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
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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 3.3.1
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 3.3.2.
3.4 Application of Agreement to Shares After Transfers. Unless the
Company shall agree otherwise in writing, all Shares that are Transferred in
accordance with Section 3 hereof, other than (i) Transfers pursuant to Section
3.1, (ii) Transfers pursuant to a registered public offering in which
Shareholders exercise their rights to participate pursuant to Section 7, (iii)
Transfers by Institutions to satisfy a margin call or upon an event of default
as provided in Section 3.3.1, (iv) Transfers to the Company, and (v) except as
provided in Section 3.5, Transfers to a person who is not a Stockholder
Controlled Entity or an existing Stockholder pursuant to an exempt private
resale transaction or gift, shall be subject to the terms, obligations,
conditions and restrictions set forth in this Agreement, and any person or
entities 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 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
to the extent provided herein. 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 or agreeing to be bound by the
resale limitations.
3.5 Application of Agreement to Transferees. Unless the Company
otherwise agrees in writing, any person to whom Shares are transferred (other
than Transfers (i) pursuant to Section 3.1, (ii) pursuant to a registered public
offering in which Shareholder's exercise their rights to participate pursuant to
Section 7, (iii) by Institutions to satisfy a margin call or upon an event of
default as provided in Section 3.3.1, (iv) to the Company or (iv) Transfers by
gift to 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
by a Stockholder in an aggregate amount not to exceed $100,000 per Principal
Stockholder Group in any calendar year) shall be subject to and bound by the
provisions of Section 3.1 with respect to the sale of such Transferred Shares,
including, without limitation, the volume limitations set forth in Section
3.1.2. For purposes of calculating the volume limitation applicable to the
resale of such Transferred Shares by the transferee and Transfers pursuant to
Section 3.1 by the Principal Stockholder Group of the transferor, all public
sales of the transferred Shares shall be aggregated with all Transfers pursuant
to Section 3.1 by the Principal Stockholder Group of the transferor, and the
aggregate number of the Transferred Shares sold by the transferee together with
any Shares sold by the Principal Stockholder Group of the transferor shall not
exceed the volume limitations set forth in Section 3.1. Notwithstanding the
foregoing, upon request of the Company, the Company may authorize, which
authorization may be granted or withheld in its sole discretion, 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 provided that such donee sells such Shares in accordance with the
requirements specified by the Company such as selling such Shares through a
designated broker and over such time period as may be required by the Company.
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Notwithstanding the foregoing, Xxxx X. Xxxxx and Xxxxxxx X. Xxxxx shall be
permitted to sell up to an aggregate of 150,000 Shares per calendar quarter
received from Xxxxx X. Xxxxx as payment on that certain promissory note, dated
June 26, 2001 in the principal amount $12,399,150, without aggregating the sale
of such Shares with sales of Xxxxx X. Xxxxx'x Principal Stockholder Group for
purposes of calculating the volume limitation applicable to Xxxxx X. Xxxxx'x
Principal Stockholder Group or Xxxx X. Xxxxx'x Principal Stockholder Group under
Section 3.1, and in consideration of this exclusion from the aggregation
requirements, Xxxx X. Xxxxx, Xxxxxxx X. Xxxxx and each of their Stockholder
Controlled Entities agrees not to Transfer more than an aggregate of 150,000 of
the Shares received from Xxxxx X. Xxxxx in any calendar quarter.
3.6 Transfers to the Company. None of the Transfer restrictions set
forth in this Agreement shall limit the ability the Company to repurchase Shares
from a Stockholder.
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 Principal 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
Principal 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 Involuntary Transfer (the "Offered Shares") to all Principal Stockholders
who are then parties to this Agreement as provided below (the "Right of First
Offer"). Each Principal Stockholder shall have the right to allocate the
purchase amount among the members of his or her Principal Stockholder Group,
provided however, that such Principal Stockholder shall act as the agent on
behalf of the Principal Stockholder Group.
4.2.2 As soon as practicable, the Offering Stockholder shall give
written notice (an "Offer Notice") of the proposed Involuntary Transfer to all
Principal 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
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known), and any other material terms and conditions of the proposed Transfer to
the extent then known.
4.2.3 Each Principal 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 Entitled Amount (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, if then known, 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 and each
Purchasing Stockholder (as defined below) shall pay his, her or its own
commissions and advisory fees (including legal cost and expenses) in connection
with any sale of Shares pursuant to this Section 4.2. Each Principal 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 Principal Stockholder who elects to purchase Offered Shares
pursuant to this Section 4.2 (each a "Purchasing Stockholder") shall be entitled
to purchase an equal portion of such Offered Shares with all other Principal
Stockholders who also elect to purchase such Offered Shares hereunder (each
Purchasing Stockholder's "Entitled Amount").
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. In the event the Purchasing Stockholders
elect not to exercise this right, in whole or in part, the transferor may
complete the transfer upon the terms previously provided to the Purchasing
Stockholders. 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. WAIVERS AND TERMINATION.
5.1 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.
5.2 Waivers. Each Initial Stockholder hereby irrevocably waives any
and all known or unknown claims and rights, whether direct or indirect, fixed or
contingent, that such
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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.
5.3 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 Xxxx
Xxxxx and Xxxxxxx Xxxxxxx & Xxxxxxxx represented only the Company in connection
with this Agreement.
6. LEGENDS ON CERTIFICATES.
6.1 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 A LOCK-UP AND REGISTRATION RIGHTS
AGREEMENT AMONG CERTAIN INDIVIDUALS AND PERSONS REFERRED TO IN SUCH A
LOCK-UP AND REGISTRATION RIGHTS AGREEMENT, A COPY OF WHICH MAY BE
EXAMINED AT THE OFFICE OF THE CORPORATION.
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7. REGISTRATION RIGHTS. The Company hereby covenants and agrees as
follows:
7.1 Definitions. For purposes of this Section 7, the following terms
have the following meanings:
"Restricted Stock" shall mean all Shares held by the Initial
Stockholders excluding Shares (i) that have been registered under the 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 resold on the open market (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
7.5 below.
7.2 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 all of 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. Such written notice
shall indicate the maximum number of shares of Restricted Stock that each
Principal Stockholder Group is entitled to include in such registration
statement as determined by the Company on a pro-rata basis based on each
Principal Stockholder Group's then-existing ownership (and including any other
holders of securities to be included in such registration pursuant to
registration rights granted by the Company). Shares to be registered shall be
allocated among the Principal Stockholder Group in accordance with instructions
from the Principal Stockholder to the Company. 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 commercially reasonable best efforts to cause such
Restricted Stock to be included in the registration statement proposed to be
filed by the Company. To the extent a holder does not elect to register his, her
or its full entitlement of Restricted Stock as indicated in the Company's
notice, such excess shall be allocated by the Company on a pro rata basis to
holders who have so elected to register their full entitlement of Restricted
Stock based on the total number of shares elected to be registered. The holders
of Restricted Stock to be registered pursuant to this Section 7.2 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 7.2.
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
11
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 7.2 for any reason without thereby
incurring any liability to the holders of Restricted Stock.
7.3 Restrictions on Registration Rights.
7.3.1 The right of each holder of Restricted Stock to
participate in registrations of Restricted Stock pursuant to Section 7.2 shall
terminate (i) with respect to a particular holder, when such holder is eligible
to sell all of his, her or its Restricted Stock within any 90 day period in
reliance on Rule 144 and pursuant to the terms of this Agreement or (ii) the
date such holder is no longer a record owner of shares of Restricted Stock.
7.3.2 In connection with any registration statement filed
pursuant to Section 7.2 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 Section 7.2 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.
7.3.3 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 Section 7.2 are not
transferable by the holders of Restricted Stock.
7.3.4 As a condition to the Company's obligations under this
Section 7 to cause 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 7 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.
7.4 Registration Procedures. If and whenever the Company is
required by the provisions of Section 7.2 above to use its commercially
reasonable best efforts to effect the inclusion of any Restricted Stock in any
registration under the Securities Act, the Company will, as expeditiously as
possible:
12
7.4.1 Prepare and file with the SEC on a registration statement
(which, in the case of an underwritten public offering pursuant to Section 7.2
above, shall be on a 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);
7.4.2 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 7.4.1 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;
7.4.3 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
7.4.4 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.
7.5 Expenses. All expenses incurred in connection with a registration
pursuant to Section 7.2 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 Section 7.2 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 pro rata on the basis of the number of Restricted
Shares so withdrawn). Notwithstanding the foregoing, all of the expenses
incurred in connection with a registration pursuant to Section 7.2 above solely
of shares of Restricted Stock, including, without limitation, all the expenses
referenced above in this Section 7.5, shall be paid
13
by the participating holders of the Restricted Stock pro rata on the basis of
the number of Restricted Shares so registered.
8. 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 a majority of the Stockholders 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.
9. GENERAL PROVISIONS.
9.1 Governing Law. This Agreement shall be governed by and construed
in accordance with the internal laws of the State of Utah.
9.2 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 Enterprises, 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 9.2 until notice is given pursuant to this
Section 9.2 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 9.2 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
14
notice of such Stockholder becoming a Stockholder is given to the Company and to
each Stockholder pursuant to this Section 9.2.
9.3 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.
9.4 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.
9.5 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.
9.6 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.
9.7 Remedies.
9.7.1 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.
9.7.2 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.
9.8 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.
9.9 Consent or Approval of Company. Whenever the consent or approval
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 independent directors.
[SIGNATURES BEGIN ON FOLLOWING PAGE]
15
IN WITNESS WHEREOF, this Agreement has been signed as of the date first
above written.
NU SKIN ENTERPRISES, INC.,
a Delaware Corporation
By: ____________________________________
Its: ____________________________________
__________________________________________
Xxxxx X. Xxxxx, individually
__________________________________________
Xxxxx X. Xxxxx, individually
BMR NS-HOLDINGS, LLC
By: ____________________________________
Xxxxx X. Xxxxx
Its: Manager
By: ____________________________________
Xxxxx X. Xxxxx
Its: Manager
THE B & N XXXXX TRUST
By: ____________________________________
X.X. XxXxxxxxxx
Its: Trustee
THE ONE 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
THE NR TRUST
By: ____________________________________
Xxx Xxxxxx
Its: Trustee
THE ROSE FOUNDATION
By: ____________________________________
Xxxxx X. Xxxxx
Its: Trustee
By: ____________________________________
Xxx Xxxxxx
Its: Trustee
THE XXXXX XXXXX FIXED CHARITABLE TRUST
By: _____________________________________
Xxx Xxxxxx
Its: Trustee
NR RHINO COMPANY, L.C.
By: _____________________________________
Xxxxx X. XxXxxxxxxx
Its: Manager
______________________________________________
Xxxxxx X. Xxxxxxxxx, individually
THE XXXXXX X. XXXXXXXXX FAMILY TRUST
By: _________________________________________
Xxxxxx X. Xxxxxxxxx
Its: Trustee
THE SNT TRUST
By: ____________________________________
Xxx X. Xxxxxx
Its: Trustee
THE DVNM TRUST
By: ____________________________________
Xxx X. Xxxxxx
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
By: _____________________________________
X. X. XxXxxxxxxx
Its: Independent Trustee
SNT RHINO COMPANY, L.C.
By: _____________________________________
Xxxxx X. Xxxxxxxxx
Its: Manager
______________________________________________
Xxxxxx X. Xxxx, individually
______________________________________________
Xxxxxxx Xxxx, individually
SJL NS-HOLDINGS, LLC
By: _____________________________________
Xxxxxx X. Xxxx
Its: Manager
By: _____________________________________
Xxxxxxx Xxxx
Its: Manager
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
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
______________________________________________
Xxxxxx X. Xxxxx, individually
BBR NS-HOLDINGS, LLC
By: _____________________________________
Xxxxxx X. Xxxxx
Its: Manager
By: _____________________________________
Xxxxxx X. Xxxxx
Its: Manager
THE B AND X XXXXX TRUST
By: _____________________________________
Xxxxx X. Xxxxx
Its: Trustee
THE XXXXXX XXXXXXX AND XXXXXX
XXXXX FOUNDATION
By: _____________________________________
Xxxxxx X. Xxxxx
Its: Trustee
By: _____________________________________
Xxxxxx X. Xxxxx
Its: Trustee
______________________________________________
Xxxx X. Xxxxx, individually
______________________________________________
Xxxxxxx X. Xxxxx, individually
THE XXXXXXX X. XXXXX TRUST
By: _____________________________________
Xxxxxxx X. Xxxxx
Its: Trustee
By: _____________________________________
Xxxx X. Xxxxx
Its: Trustee
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
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. Xxxxxxxxx, individually
THE XXXXX X. XXXXXXXXX FAMILY TRUST
By: __________________________________
Xxxxx X. Xxxxxxxxx
Its: Trustee
THE CST TRUST
By: __________________________________
Xxxxxx X. Xxxxxxxxx
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
By: __________________________________
Xxx X. Xxxxxx
Its: Independent Trustee
CST RHINO COMPANY, L.C.
By: _______________________________
Xxxxxx X. Xxxxxxxxx
Its: Manager
_____________________________________
R. Xxxxx Xxxxxx, individually
_____________________________________
Xxxxxxxx X. Xxxxxx, individually
RCB NS-HOLDINGS, LLC
By: _______________________________
R. Xxxxx Xxxxxx
Its: Manager
By: _______________________________
Xxxxxxxx X. Xxxxxx
Its: Manager
THE C & K TRUST
By: _______________________________
Xxxxxx X. Xxxx
Its: Trustee
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
CKB RHINO COMPANY, L.C.
By: _______________________________
Xxxxx X. Halls
Its: Manager
_____________________________________
Xxxx X. Xxxxx, individually
_____________________________________
Xxxxxxxx Xxxxx, individually
ALL R'S TRUST--XXXX XXXXX
By: _______________________________
Xxxx X. Xxxxx
Its: Trustee
SCHEDULE A
PRINCIPAL STOCKHOLDER GROUPS
Principal Stockholder Members of Principal Stockholder Group
Xxxxx X. Xxxxx Xxxxx X. Xxxxx, Xxxxx X. Xxxxx, BMR NS-Holdings, LLC,
The B & N Xxxxx Trust, The One Foundation, B & N Rhino
Company, L.C.
Xxxxx Xxxxx Xxxxx Xxxxx, The NR Trust, The Rose Foundation, The
Xxxxx Xxxxx Fixed Charitable Trust, NR Rhino Company,
L.C.
Xxxxxx X. Xxxxxxxxx Xxxxxx X.Xxxxxxxxx, The Xxxxxx X. Xxxxxxxxx Family
Trust, The SNT Trust, The DVNM Trust, The Xxxxxx X.
Xxxxxxxxx Foundation, The Xxxxxx X. Xxxxxxxxx Fixed
Charitable Trust, SNT Rhino Company, L.C.
Xxxxxx X. Xxxx Xxxxxx X. Xxxx, Xxxxxxx Xxxx, SJL NS-Holdings, LLC,
The S and K Trust, The Xxxxxx and Xxxxxxx Xxxx
Foundation, The Xxxxxx and Xxxxxxx Xxxx Fixed
Charitable Trust, S & K Rhino Company, L.C.
Xxxxxx X.Xxxxx Xxxxxx X. Xxxxx, Xxxxxx X. Xxxxx, BBR NS-Holdings,
LLC, The B and X Xxxxx Trust, The Brooke and Xxxxxx
Xxxxx Foundation
Xxxx Xxxxx Xxxx Xxxxx, Xxxxxxx Xxxxx, The Xxxxxxx X. Xxxxx Trust,
The K and M Xxxxx Trust, The Xxxx and Xxxxxxx Xxxxx
Foundation, The Xxxx and Xxxxxxx Xxxxx Fixed
Charitable Trust, K & M Rhino Company
Xxxxx X. Xxxxxxxxx Xxxxx Xxxxxxxxx, The Xxxxx X. Xxxxxxxxx Family Trust,
The CST Trust, The Xxxxx X. Xxxxxxxxx Foundation, The
Xxxxx X. Xxxxxxxxx Fixed Charitable Trust, CST Rhino
Company, L.C.
R. Xxxxx Xxxxxx R. Xxxxx Xxxxxx, Xxxxxxxx X. Xxxxxx, RCB NS-Holdings,
LLC, The C & K Trust, The Xxxxxx Foundation, The
Xxxxxx Fixed Charitable Trust, CKB Rhino Company, L.C.
Xxxx X. Xxxxx Xxxx X. Xxxxx, Xxxxxxxx Xxxxx, The All R's Trust--Xxxx
Xxxxx
SCHEDULE B
Principal Stockholder Group Indebtedness Limit
Xxxxx X. Xxxxx $15 million
Xxxxx X. Xxxxx $20 million
Xxxxxx X. Xxxxxxxxx $ 8 million
Xxxxx X. Xxxxxxxxx $ 5 million
R. Xxxxx Xxxxxx $ 5 million
Xxxxxx X. Xxxx $ 4 million
Xxxxxx X. Xxxxx $ 4 million
Xxxx X. Xxxxx $ 4 million
Xxxx X. Xxxxx $ 4 million
