EX-10.55 25 nuskin_ex1055.txt EX-10.55 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 -1- 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 Merrill Lynch's 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 Keith R. Halls, or affiliates he designates, Anna Massaro Halls, or affiliates she designates, Rick A. Roney, Burke F. Roney, Park R. Roney, 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 Merrill Lynch 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 -2- 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] -3- 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/ Truman Hunt Its: Vice President By: /s/ Blake M. Roney Blake M. Roney, individually By: /s/ Nancy l. Roney Nancy L. Roney, individually THE ALL R'S TRUST By: /s/ L. S. McCullough L. S. McCullough Its: Trustee THE B & N RONEY TRUST By: /s/ L. S. McCullough L. S. McCullough Its: Trustee THE WFA TRUST By: /s/ L. S. McCullough L. S. McCullough Its: Trustee S-1 SIGNATURE PAGE OF AMENDMENT NO. 1 TO AMENDED AND RESTATED STOCKHOLDERS AGREEMENT BNASIA, LTD. By: /s/ Blake M. Roney Blake M. Roney Its: General Partner By: /s/ Nancy L. Roney Nancy L. Roney Its: General Partner THE BLAKE M. AND NANCY L. RONEY FOUNDATION By: /s/ Blake M. Roney Blake M. Roney Its: Trustee By: /s/ Nancy L. Roney Nancy L. Roney Its: Trustee THE ONE FOUNDATION By: /s/ Blake M. Roney Blake M. Roney Its: Trustee By: /s/ Nancy L. Roney Nancy L. Roney Its: Trustee By: /s/ Keith R. Halls Keith R. Halls Its: Trustee S-2 SIGNATURE PAGE OF AMENDMENT NO. 1 TO AMENDED AND RESTATED STOCKHOLDERS AGREEMENT B & N RHINO COMPANY, L.C. By: /s/ Craig F. McCullough Craig F. McCullough Its: Manager /s/ Nedra D. Roney Nedra D. Roney, individually Rick A. Roney, individually /s/ Burke F. Roney Burke F. Roney, individually /s/ Park R. Roney Park R. Roney, individually THE MAR TRUST By: /s/ Tom D. Branch Tom D. Branch Its: Trustee THE NR TRUST By: /s/ Tom D. Branch Tom D. Branch Its: Trustee S-3 SIGNATURE PAGE OF AMENDMENT NO. 1 TO AMENDED AND RESTATED STOCKHOLDERS AGREEMENT THE ROSE FOUNDATION By: /s/ Nedra D. Roney Nedra D. Roney Its: Trustee By: /s/ Tom D. Branch Tom D. Branch Its: Trustee THE NEDRA RONEY FIXED CHARITABLE TRUST By: /s/ Tom D. Branch Tom D. Branch Its: Trustee NR RHINO COMPANY, L.C. By: /s/ Craig F. McCullough Craig F. McCullough Its: Manager /s/ Sandra N. Tillotson Sandra N. Tillotson, individually THE SNT TRUST By: /s/ Lee M. Brower Lee M. Brower Its: Trustee THE DVNM TRUST By: /s/ Lee M. Brower Lee M. Brower Its: Trustee S-4 SIGNATURE PAGE OF AMENDMENT NO. 1 TO AMENDED AND RESTATED STOCKHOLDERS AGREEMENT THE CWN TRUST By: /s/ Lee M. Brower Lee M. Brower Its: Trustee THE DPN TRUST By: /s/ Craig S. Tillotson Craig S. Tillotson Its: Trustee By: /s/ Lee M. Brower Lee M. Brower Its: Trustee THE GNT TRUST By: /s/ Craig S. Tillotson Craig S. Tillotson Its: Trustee By: /s/ Lee M. Brower Lee M. Brower Its: Trustee THE LMB TRUST By: /s/ Lee M. Brower Lee M. Brower Its: Trustee S-5 SIGNATURE PAGE OF AMENDMENT NO. 1 TO AMENDED AND RESTATED STOCKHOLDERS AGREEMENT THE SANDRA N. TILLOTSON FOUNDATION By: /s/ Sandra N. Tillotson Sandra N. Tillotson Its: Trustee By: /s/ Lee M. Brower Lee M. Brower Its: Trustee THE SANDRA N. TILLOTSON FIXED CHARITABLE TRUST By: /s/ Sandra N. Tillotson Sandra N. Tillotson Its: Trustee By: /s/ L. S. McCullough L. S. McCullough Its: Independent Trustee SNT RHINO COMPANY, L.C. By: /s/ Craig S. Tillotson Craig S. Tillotson Its: Manager /s/ Steven J. Lund Steven J. Lund, individually /s/ Kalleen Lund Kalleen Lund, individually SKASIA, LTD. By: /s/ Steven J. Lund Steven J. Lund Its: General Partner S-6 SIGNATURE PAGE OF AMENDMENT NO. 1 TO AMENDED AND RESTATED STOCKHOLDERS AGREEMENT By: /s/ Kalleen Lund Kalleen Lund Its: General Partner THE S AND K LUND TRUST By: /s/ Blake M. Roney Blake M. Roney Its: Trustee THE STEVEN J. AND KALLEEN LUND FOUNDATION By: /s/ Steven J. Lund Steven J. Lund Its: Trustee By: /s/ Kalleen Lund Kalleen Lund Its: Trustee THE STEVEN AND KALLEEN LUND FIXED CHARITABLE TRUST By: /s/ Steven J. Lund Steven J. Lund Its: Trustee By: /s/ Steven J. Lund Kalleen Lund Its: Trustee By: /s/ L. S. McCullough L. S. McCullough Its: Independent Trustee S & K RHINO COMPANY, L.C. By: /s/ Craig F. McCullough Craig F. McCullough Its: Manager S-7 SIGNATURE PAGE OF AMENDMENT NO. 1 TO AMENDED AND RESTATED STOCKHOLDERS AGREEMENT /s/ Brooke B. Roney Brooke B. Roney, individually /s/ Denice R. Roney Denice R. Roney, individually BDASIA, LTD. By: /s/ Brooke B. Roney Brooke B. Roney Its: General Partner By: /ss Denice R. Roney Denice R. Roney Its: General Partner THE B AND D RONEY TRUST By: /s/ Blake M. Roney Blake M. Roney Its: Trustee THE BROOKE BRENNAN AND DENICE RENEE RONEY FOUNDATION By: /s/ Brooke B. Roney Brooke B. Roney Its: Trustee By: /s/ Denice R. Roney Denice R. Roney Its: Trustee Kirk V. Roney, individually S-8 SIGNATURE PAGE OF AMENDMENT NO. 1 TO AMENDED AND RESTATED STOCKHOLDERS AGREEMENT Melanie K. Roney, individually KMASIA, LTD. By: Kirk V. Roney Its: General Partner By: Melanie K. Roney Its: General Partner THE K AND M RONEY TRUST By: Rick A. Roney Its: Trustee THE KIRK V. AND MELANIE K. RONEY FOUNDATION By: Kirk V. Roney Its: Trustee By: Melanie K. Roney Its: Trustee THE KIRK AND MELANIE RONEY FIXED CHARITABLE TRUST By: Kirk V. Roney Its: Trustee S-9 SIGNATURE PAGE OF AMENDMENT NO. 1 TO AMENDED AND RESTATED STOCKHOLDERS AGREEMENT By: Melanie K. Roney Its: Trustee By: L. S. McCullough Its: Trustee K & M RHINO COMPANY, L.C. By: Craig F. McCullough Its: Manager /s/ Keith R. Halls Keith R. Halls, individually /s/ Anna Lisa Massaro Halls Anna Lisa Massaro Halls, individually KAASIA, LTD. By: /s/ Keith R. Halls Keith R. Halls Its: General Partner By: /s/ Anna Lisa Halls Anna Lisa Halls Its: General Partner THE K AND A HALLS TRUST By: /s/ Michael Lee Halls Michael Lee Halls Its: Trustee S-10 SIGNATURE PAGE OF AMENDMENT NO. 1 TO AMENDED AND RESTATED STOCKHOLDERS AGREEMENT By: /s/ Dennis Morgan Dennis Morgan Its: Trustee THE HALLS FAMILY TRUST By: /s/ Michael Lee Halls Michael Lee Halls Its: Trustee By: /s/ Dennis Morgan Dennis Morgan Its: Trustee THE KEITH AND ANNA LISA HALLS FIXED CHARITABLE TRUST By: /s/ Keith R. Halls Keith R. Halls Its: Trustee By: /s/ Anna Lisa Halls Anna Lisa Halls Its: Trustee By: /s/ L. S. McCullough L. S. McCullough Its: Independent Trustee THE KEITH RAY AND ANNA LISA MASSARO HALLS FOUNDATION By: /s/ Keith R. Halls Keith R. Halls Its: Trustee By: /s/ Anna Lisa Halls Anna Lisa Halls Its: Trustee S-11 SIGNATURE PAGE OF AMENDMENT NO. 1 TO AMENDED AND RESTATED STOCKHOLDERS AGREEMENT K & A RHINO COMPANY, L.C. By: /s/ Craig F McCullough Craig F. McCullough Its: Manager /s/ Craig S. Tillotson Craig S. Tillotson, individually THE CST TRUST By: /s/ Robert L. Stayner Robert L. Stayner Its: Trustee THE JS TRUST By: /s/ Lee M. Brower Lee M. Brower Its: Trustee THE JT TRUST By: /s/ Lee M. Brower Lee M. Brower Its: Trustee THE CB TRUST By: /s/ Lee M. Brower Lee M. Brower Its: Trustee S-12 SIGNATURE PAGE OF AMENDMENT NO. 1 TO AMENDED AND RESTATED STOCKHOLDERS AGREEMENT THE CM TRUST By: /s/ Lee M. Brower Lee M. Brower Its: Trustee THE BCT TRUST By: /s/ Lee M. Brower Lee M. Brower Its: Trustee THE ST TRUST By: /s/ Lee M. Brower Lee M. Brower Its: Trustee THE NJR TRUST By: /s/ Lee M. Brower Lee M. Brower Its: Trustee THE RLS TRUST By: /s/ Lee M. Brower Lee M. Brower Its: Trustee THE RBZ TRUST By: /s/ Lee M. Brower Lee M. Brower Its: Trustee S-13 SIGNATURE PAGE OF AMENDMENT NO. 1 TO AMENDED AND RESTATED STOCKHOLDERS AGREEMENT THE LB TRUST By: /s/ Lee M. Brower Lee M. Brower Its: Trustee THE CRAIG S. TILLOTSON FOUNDATION By: /s/ Craig S. Tilotson Craig S. Tillotson Its: Trustee By: /s/ Lee M. Brower Lee M. Brower Its: Trustee THE CRAIG S. TILLOTSON FIXED CHARITABLE TRUST By: /s/ Craig S. Tillotson Craig S. Tillotson Its: Trustee By: /s/ Lee M. Brower Lee M. Brower Its: Independent Trustee CST RHINO COMPANY, L.C. By: /s/ Sandra N. Tillotson Sandra N. Tillotson Its: Manager /s/ R. Craig Bryson R. Craig Bryson, individually /s/ Kathleen D. Bryson Kathleen D. Bryson, individually S-14 SIGNATURE PAGE OF AMENDMENT NO. 1 TO AMENDED AND RESTATED STOCKHOLDERS AGREEMENT RCKASIA, LTD. By: /s/ R. Craig Bryson R. Craig Bryson Its: General Partner By: /s/ Kathleen D. Bryson Kathleen D. Bryson Its: General Partner THE C AND K TRUST By: /s/ Steven J. Lund Steven J. Lund Its: Trustee THE BRYSON FOUNDATION By: /s/ R. Craig Bryson R. Craig Bryson Its: Trustee By: /s/ Kathleen D. Bryson Kathleen D. Bryson Its: Trustee THE BRYSON FIXED CHARITABLE TRUST By: /s/ R. Craig Bryson R. Craig Bryson Its: Trustee By: /s/ Kathleen D. Bryson Kathleen D. Bryson Its: Trustee By: /s/ Robert L. Stayner Robert L. Stayner Its: Independent Trustee S-15 SIGNATURE PAGE OF AMENDMENT NO. 1 TO AMENDED AND RESTATED STOCKHOLDERS AGREEMENT CKB RHINO COMPANY, L.C. By: /s/ Keith R. Halls Keith R. Halls Its: Manager THE RICK AND KIMBERLY RONEY VARIABLE CHARITABLE REMAINDER UNITRUST By: James Blaylock Its: Trustee THE RICK AND KIMBERLY RONEY FIXED CHARITABLE UNITRUST By: Rick A. Roney Its: Trustee By: Kimberly Roney Its: Trustee By: L.S. McCullough Its: Independent Trustee S-16