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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
-----------------
FORM 10-Q
FOR QUARTERLY AND TRANSITION REPORTS
PURSUANT TO SECTIONS 13 OR 15(D) OF THE
SECURITIES EXCHANGE ACT OF 1934
(Mark One)
|X| QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the quarterly period ended March 31, 1997
OR
| | TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the transition period from ______________ to ______________
Commission file number 333-12073
Nu Skin Asia Pacific, Inc.
(Exact Name of Registrant as Specified in Its Charter)
Delaware 87-0565309
(State or Other Jurisdiction (I.R.S. Employer
of Incorporation or Organization) Identification No.)
75 West Center Street, Provo, Utah 84601
(Address of Principal Executive Offices) (Zip Code)
Registrant's telephone number, including area code (801) 345-6100
Indicate by check mark whether the registrant: (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days. Yes X No
---- -----
As of April 15, 1997, 11,723,011 shares of the Company's Class A Common
Stock, $.001 par value per share, 71,696,675 shares of the Company's Class B
Common Stock, $.001 par value per share, and no shares of the Company's
Preferred Stock, $.001 par value per share, were outstanding.
NU SKIN ASIA PACIFIC, INC.
1997 FORM 10-Q QUARTERLY REPORT - FIRST QUARTER
TABLE OF CONTENTS
Page
PART I. FINANCIAL INFORMATION
ITEM 1. FINANCIAL STATEMENTS:
CONSOLIDATED BALANCE SHEETS.........................2
CONSOLIDATED STATEMENTS OF INCOME...................3
CONSOLIDATED STATEMENTS OF CASH FLOWS...............4
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS .........5
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION AND RESULTS OF OPERATIONS.....................7
PART II. OTHER INFORMATION
ITEM 1. LEGAL PROCEEDINGS....................................10
ITEM 2. CHANGES IN SECURITIES................................10
ITEM 3. DEFAULTS UPON SENIOR SECURITIES......................10
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS..10
ITEM 5. OTHER INFORMATION....................................10
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K.....................10
SIGNATURES.....................................................12
PART I. FINANCIAL INFORMATION
ITEM 1. FINANCIAL STATEMENTS
Nu Skin Asia Pacific, Inc.
Consolidated Balance Sheets (Unaudited)
(in thousands)
December
March 31, 31,
1997 1996
--------- --------
ASSETS
Current assets
Cash and cash equivalents .................... $196,798 $207,106
Accounts receivable .......................... 11,600 8,937
Related parties receivable ................... 7,669 7,974
Inventories, net ............................. 54,749 44,860
Prepaid expenses and other ................... 19,200 11,281
-------- --------
290,016 280,158
Property and equipment, net ....................... 8,725 8,884
Other assets, net ................................. 43,337 42,673
-------- --------
Total assets ............................. $342,078 $331,715
======== ========
LIABILITIES AND STOCKHOLDERS' EQUITY
Current liabilities
Accounts payable ............................. $ 7,211 $ 6,592
Accrued expenses ............................. 53,347 79,518
Related parties payable ...................... 70,035 46,326
Notes payable to stockholders ................ 71,487 71,487
Note payable to NSI, current portion ......... 10,000 10,000
-------- --------
212,080 213,923
-------- --------
Note payable to NSI, less current portion .... -- 10,000
-------- --------
Commitments and contingencies
Stockholders' equity
Preferred stock - 25,000,000 shares
authorized $.001 par value, no shares
issued and outstanding ................... -- --
Class A common stock - 500,000,000 shares
authorized, $.001 par value, 11,723,011
shares issued and outstanding ............ 12 12
Class B common stock - 100,000,000 shares
authorized, $.001 par value, 71,696,675
shares issued and outstanding ............ 72 72
Additional paid-in capital ................... 137,876 137,876
Cumulative foreign currency translation
adjustment ............................... (9,023) (5,963)
Retained earnings ............................ 31,981 11,493
Deferred compensation ........................ (17,781) (22,559)
Note receivable from NSI ..................... (13,139) (13,139)
-------- --------
129,998 107,792
-------- --------
Total liabilities and stockholders' equity... $342,078 $331,715
======== ========
The accompanying notes are an integral part of these consolidated financial
statements.
Nu Skin Asia Pacific, Inc.
Consolidated Statements of Income (Unaudited)
(in thousands, except per share amounts)
Three Three
Months Months
Ended Ended
March March
31, 31,
1997 1996
------- -------
Revenue ......................................... $210,994 $124,185
Cost of sales ................................... 60,741 34,815
------- -------
Gross profit .................................... 150,253 89,370
------- -------
Operating expenses
Distributor incentives ..................... 80,543 46,181
Selling, general and administrative ........ 34,483 20,027
Distributor stock expense .................. 4,477 --
-------- -------
Total operating expenses ........................ 119,503 66,208
------- -------
Operating income ................................ 30,750 23,162
Other income (expense), net ..................... 1,770 274
------- -------
Income before provision for income
taxes ........................................... 32,520 23,436
Provision for income taxes (Note 2) ............. 12,032 8,686
------- -------
Net income ...................................... $20,488 $14,750
======= =======
Net income per share (Note 3) ................... $ .24 $ .18
======= =======
Weighted average common shares
outstanding ..................................... 85,416 80,518
======= =======
Pro forma data:
Income before pro forma provision
for income taxes ......................... $23,436
Pro forma provision for income
taxes (Note 2) ........................... $ 8,207
-------
Income after pro forma provision
for income taxes ......................... $15,229
=======
Pro forma net income per share (Note 3) $ .19
=======
The accompanying notes are an integral part of these consolidated financial
statements.
Nu Skin Asia Pacific, Inc.
Consolidated Statements of Cash Flows (Unaudited)
(in thousands)
Three Three
Months Months
Ended Ended
March March
31, 31,
1997 1996
-------- --------
Cash flows from operating activities:
Net income ......................................... $20,488 $14,750
Adjustments to reconcile net income to net cash
provided by operating activities:
Depreciation and amortization ................... 1,099 334
Amortization of deferred compensation ........... 4,778 --
Changes in operating assets and liabilities:
Accounts receivable ....................... (2,663) (1,027)
Related parties receivable ................ 305 1,331
Inventories, net .......................... (9,889) (2,163)
Prepaid expenses and other ................ (7,919) 958
Other assets .............................. (1,040) 101
Accounts payable .......................... 619 (1,769)
Accrued expenses .......................... (26,171) 8,579
Related parties payable ................... 23,709 (6,057)
-------- --------
Net cash provided by operating activities ....... 3,316 15,037
-------- --------
Cash flows from investing activities:
Purchase of property and equipment ................. (1,122) (1,038)
Payment to NSI for distribution rights ............. (10,000) --
Payments for lease deposits ........................ (58) --
Receipt of refundable lease deposits ............... 122 --
-------- --------
Net cash used in investing activities ........... (11,058) (1,038)
-------- --------
Cash flows from financing activities:
Dividends paid ..................................... -- (9,500)
-------- --------
Net cash provided by (used in)
financing activities .......................... -- (9,500)
-------- --------
Effect of exchange rate changes on cash ............ (2,566) 144
-------- --------
Net increase (decrease) in cash
and cash equivalents ............................. (10,308) 4,643
Cash and cash equivalents, beginning of period ..... 207,106 63,213
-------- --------
Cash and cash equivalents, end of period ........... $196,798 $ 67,856
======== ========
Supplemental cash flow information:
Interest paid ...................................... $ -- $ 23
======== ========
The accompanying notes are an integral part of
these consolidated financial statements.
Nu Skin Asia Pacific, Inc.
Notes to Consolidated Financial Statements
1. THE COMPANY
Nu Skin Asia Pacific, Inc. (the "Company") is a network marketing
company involved in the distribution and sale of premium quality,
innovative personal care and nutritional products. The Company is the
exclusive distribution vehicle for Nu Skin International, Inc. ("NSI")
in the countries of Japan, Taiwan, Hong Kong (including Macau), South
Korea and Thailand, where the Company currently has operations
(collectively referred to as the "Subsidiaries"), and in Indonesia,
Malaysia, the Philippines, the PRC, Singapore and Vietnam, where
operations have not yet commenced. Additionally, the Company sells
products to NSI affiliates in Australia and New Zealand.
The Company was incorporated on September 4, 1996. It was formed as a
holding company and acquired the Subsidiaries through a reorganization
which occurred on November 20, 1996. Prior to the reorganization, each
of the Subsidiaries elected to be treated as an S corporation. In
connection with the reorganization, the Subsidiaries' S corporation
status was terminated on November 19, 1996, and the Company declared a
distribution to the stockholders that included all of the
Subsidiaries' previously earned and undistributed taxable S
corporation earnings totaling $86.5 million (the "S Distribution
Notes").
On November 27, 1996 the Company completed its initial public
offerings of 4,750,000 shares of Class A common stock and received net
proceeds of $98.8 million (the "Offerings").
The accompanying unaudited consolidated financial statements have been
prepared in accordance with generally accepted accounting principles
for interim financial information and with the instructions to Form
10-Q and Rule 10-01 of Regulation S-X. Accordingly, they do not
include all of the information and footnotes required by generally
accepted accounting principles for complete financial statements. In
the opinion of management, the accompanying unaudited consolidated
financial statements contain all adjustments, consisting of normal
recurring adjustments, considered necessary for a fair statement of
the Company's financial information as of March 31, 1997 and 1996 and
for the three months ended March 31, 1997 and 1996. The results of
operations of any interim period are not necessarily indicative of the
results of operations to be expected for the fiscal year. For further
information, refer to the consolidated financial statements and
accompanying footnotes included in the Company's annual report on Form
10-K for the year ended December 31, 1996.
2. INCOME TAXES
As a result of the Company's reorganization described in Note 1, the
Company is no longer treated as an S corporation for U.S. Federal
income tax purposes. The provision for income taxes for the three
months ended March 31, 1996 primarily represents income taxes in
foreign countries as U.S. Federal income taxes were levied at the
stockholder level. The consolidated statements of income include a pro
forma presentation for income taxes which would have been recorded if
the Company had been taxed as a C corporation rather than as an S
corporation for the three months ended March 31, 1996.
3. NET INCOME PER SHARE
Net income per share is computed based on the weighted average number
of common shares and common share equivalents outstanding during the
periods presented assuming that the Company's reorganization and the
resultant issuance of 80.3 million shares of Class B common stock
occurred as of January 1, 1996.
4. NEW ACCOUNTING STANDARDS
The Company is required to adopt Statement of Financial Accounting
Standards No. 128 ("SFAS 128"), Earnings per Share, during the fourth
quarter of 1997. SFAS 128 specifies the computation, presentation and
disclosure requirements for earnings per share. The Company does not
believe that the adoption of SFAS 128 will have a material effect on
the Company's method of calculation or display of earnings per share
amounts.
5. SUBSEQUENT EVENTS
On April 4, 1997, the Company paid the balance on the notes payable to
stockholders of $71,487,000 with the related accrued interest expense
of $1,637,000. As described in Note 1, these notes originated in
connection with the reorganization in which the Subsidiaries' S
corporation status was terminated and the Company declared a
distribution to the stockholders that included all of the
Subsidiaries' previously earned and undistributed taxable S
corporation earnings totaling $86.5 million.
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION
AND RESULTS OF OPERATIONS
1997 compared to 1996
Revenue increased 70% to $211.0 million from $124.2 million for the three
months ended March 31, 1997 compared with the same period in 1996. This increase
is primarily attributable to several factors. First, revenue in Japan increased
by $41.3 million, or 55%. This increase in revenue was primarily a result of
continued growth of the IDN product line as well as increased sales following a
distributor convention held in the first quarter of 1997. Second, revenue in
Taiwan increased by $13.9 million, or 43%, primarily as a result of growth in
IDN sales following the late 1996 introduction of LifePak. Third, revenue in
South Korea increased by $28.9 million, primarily as a result of a full quarter
of operations in 1997 as compared to a partial quarter in 1996 following the
February opening. Fourth, the opening of Thailand in the first quarter of 1997
resulted in an additional $2.7 million in revenue. Revenue in Hong Kong remained
constant at $4.2 million.
Gross profit as a percentage of revenue was 71.2% and 72.0% for the three
months ended March 31, 1997 and 1996, respectively. This decrease reflected the
strengthening of the U.S. dollar and the commencement of operations in South
Korea in 1996. The Company purchases goods in U.S. dollars and recognizes
revenue in local currency and is consequently subjected to exchange rate risks
in its gross margins. The full quarter of operations in South Korea in 1997 also
impacted gross profit as a percentage of revenue due to South Korean regulations
which result in higher prices on imported products as compared to other markets.
Distributor incentives as a percentage of revenue increased to 38.2% for
the three months ended March 31, 1997 from 37.2% for the three months ended
March 31, 1996. The primary reasons for this increase were a more developed
distributor network in Korea in 1997 along with sales of a smaller percentage of
non- commissionable items throughout the Company in 1997.
Selling, general and administrative expenses as a percentage of revenue
increased to 16.3% for the three months ended March 31, 1997 from 16.1% for the
three months ended March 31, 1996. This increase was primarily due to increased
promotion expenses of approximately $2 million resulting from the first quarter
distributor conventions and was offset somewhat by economies of scale gained as
the Company's revenue increased.
Distributor stock expense of $4.5 million reflects the one-time grant of
the distributor stock options at an exercise price of 25% of the initial public
offering price in connection with the Offerings completed on November 27, 1996.
This non-cash expense is non-recurring and will be recorded each quarter in
1997.
Operating income increased 33% to $30.8 million from $23.2 million for the
three months ended March 31, 1997 compared with the same period in 1996. This
increase was caused primarily by an increase in revenue. Operating margin
decreased from 18.7% to 14.6% for the three months ended March 31, 1997 compared
with the same period in 1996. This margin decrease was caused primarily by the
distributor stock expense, increased distributor incentives and lower gross
margins.
Other income increased by $1.5 million for the three months ended March 31,
1997 compared with the same period in 1996. The increase was primarily caused by
an increase in interest income generated through the short-term investment of
cash, along with approximately $.5 million of exchange gains resulting from
forward exchange contracts.
Provision for income taxes increased to $12.0 million from $8.7 million for
the three months ended March 31, 1997 compared with the same period in 1996 due
to increased income. The effective tax rate was 37.0% for the three months ended
March 31, 1997 and 1996.
Net income increased by $5.7 million to $20.5 million from $14.8 million
for the three months ended March 31, 1997 compared with the same period in 1996
due primarily to increased revenue. Net income as a percentage of revenue
decreased to 9.7% for the three months ended March 31, 1997 as compared to 11.9%
for the same period in 1996 due to the reduction in operating margin.
Liquidity and Capital Resources
The Company underwent a reorganization and the Offerings in November 1996.
During the Offerings, the Company raised $98.8 million in net proceeds. As of
the date of the reorganization, the aggregate undistributed taxable S
corporation earnings of the Subsidiaries were $86.5 million. The Subsidiaries'
earned and undistributed S corporation earnings through the date of termination
of the Subsidiaries' S corporation status were distributed in the form of the S
Distribution Notes, promissory notes bearing interest at 6.0% per annum. From
the proceeds of the Offerings, $15.0 million was used to pay a portion of the S
Distribution Notes, leaving an unpaid S Distribution Note balance of $71.5
million at March 31, 1997.
In November 1996, the Company purchased from NSI the distribution rights to
seven new markets in the region. These markets include Thailand, where
operations commenced in March 1997, and Indonesia, Malaysia, the Philippines,
the PRC, Singapore and Vietnam, where operations have not yet commenced. These
rights were purchased for $25.0 million of which $5.0 million was paid from the
proceeds of the Offerings. During the three months ended March 31, 1997 an
additional $10.0 million was paid. At March 31, 1997, the Company had a $10.0
million short term obligation, due January 15, 1998, related to the purchase of
these rights. Interest accrues at a rate of 6.0% per annum on amounts due under
these obligations.
The remaining $78.8 million in net proceeds from the Offerings are to be
used for new market development, introducing new products, enhancing the
Company's technological infrastructure, establishing additional office and
distribution centers and for other general corporate purposes. Management
anticipates using the remaining net proceeds of the Offerings within the next
three years.
The Company generates significant cash flow from operations due to its
significant growth, high margins and minimal capital requirements. Additionally,
the Company does not extend credit to distributors, but requires payment prior
to shipping products. This process eliminates the need for accounts receivable
from distributors. During the three months ended March 31, 1997, the Company
generated $3.3 million from operations compared to $15.0 million during the
three months ended March 31, 1996. This decrease in cash flows from operations
is primarily due to the build up of inventories to support future market demands
and the payment of income taxes during the first quarter of 1997.
As of March 31, 1997, working capital was $77.9 million compared to $66.2
million as of December 31, 1996. Cash and cash equivalents at March 31, 1997
were $196.8 million compared to $207.1 million at December 31, 1996.
Historically, the Company's principal need for funds has been for
distributor incentives, working capital (principally inventory purchases),
capital expenditures and the development of new markets. The Company has
generally relied entirely on cash flow from operations to meet its business
objectives without incurring long term debt to unrelated third parties.
Capital expenditures, primarily for equipment, computer systems and
software, office furniture and leasehold improvements, were $1.1 million and
$1.0 million for the three months ended March 31, 1997 and 1996, respectively.
In addition, the Company anticipates capital expenditures through 1998 of an
additional $23.9 million to further enhance its infrastructure, including
computer systems and software, warehousing facilities and walk-in distributor
centers in order to accommodate future growth.
As a part of the Company's and NSI's strategy to motivate distributors with
equity incentives, the Company sold to NSI an option to purchase 1.6 million
shares of the Company's Class A Common Stock. NSI purchased the option with a
$13.1 million 10-year note payable to the Company bearing interest at 6.0% per
annum. It is anticipated that the note will be repaid as distributors begin to
exercise their options beginning in 1998.
Under its operating agreements with NSI, the Company incurs related party
payables. The Company had related party payables of $70.0 million and $46.3
million at March 31, 1997 and December 31, 1996, respectively. In addition, the
Company had related party receivables of $7.7 million and $8.0 million,
respectively, at those dates. Related party balances outstanding in excess of 60
days bear interest at a rate of 2% above the U.S. prime rate. As of March 31,
1997, no material related party payables or receivables had been outstanding for
more than 60 days.
Management considers the Company to be liquid and able to meet its
obligations on both a short and long-term basis. Management believes existing
cash balances together with future cash flows from operations will be adequate
to fund cash needs relating to the implementation of the Company's strategic
plans, including opening new markets, funding the payment of the S Distribution
Notes and the note payable to NSI related to the purchase of the distribution
rights.
Currency Fluctuation and Exchange Rate Information
The Company's revenues and most of its expenses are recognized primarily
outside of the United States. Each entity's local currency is considered the
functional currency. All revenue and expenses are translated at weighted average
exchange rates for the periods reported. Therefore, the Company's reported sales
and earnings will be positively impacted by a weakening of the U.S. dollar and
will be negatively impacted by a strengthening of the U.S. dollar.
The Company purchases inventory from NSI in U.S. dollars and assumes
currency exchange rate risk with respect to such purchases. Local currency in
Japan, Taiwan, Hong Kong, South Korea and Thailand is generally used to settle
non-inventory transactions with NSI. Given the uncertainty of exchange rate
fluctuations, the Company cannot estimate the effect of these fluctuations on
its future business, product pricing, results of operations or financial
condition. However, because nearly all of the Company's revenue is realized in
local currencies and the majority of its cost of sales is denominated in U.S.
dollars, the Company's gross profits will be positively affected by a weakening
in the U.S. dollar and will be negatively affected by a strengthening in the
U.S. dollar. The Company reduces its exposure to fluctuations in foreign
exchange rates by creating offsetting positions through the use of foreign
currency exchange contracts. The Company does not use such financial instruments
for trading or speculative purposes. The Company regularly monitors its foreign
currency risks and periodically takes measures to reduce the impact of foreign
exchange fluctuations on the Company's operating results.
Following are the weighted average currency exchange rates of $1 into
local currency for each of the Company's markets for the quarters listed:
NSHK - NSPCT
WHOLESALE DISTRIBUTION AGREEMENT
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS.............................................2
1.1 "Agreement".............................................2
1.2 "NSI Independent Distributor"...........................2
1.3 "NSI"...................................................2
1.4 "Products"..............................................2
1.5 "Territory".............................................2
1.6 "Sales Aids"............................................3
1.7 "Trademarks"............................................3
ARTICLE II APPOINTMENT AS EXCLUSIVE WHOLESALE DISTRIBUTOR..........3
2.1 Scope...................................................3
2.2 Sub-distributors........................................3
2.3 Sales of Products and Sales Aids........................3
2.4 NSHK Sales in the Territory.............................4
2.5 Sales Outside the Territory.............................4
2.6 Territory Orders and Inquiries..........................4
ARTICLE III GOVERNMENTAL APPROVALS AND REGISTRATIONS................5
ARTICLE IV OBLIGATIONS OF NSPCT AS EXCLUSIVE WHOLESALE DISTRIBUTOR
IN THE TERRITORY........................................5
4.1 Marketing and Distribution..............................6
4.2 NSPCT Operations........................................6
4.3 Pricing Information.....................................7
4.4 NSPCT Claims and Representations........................7
4.5 Capitalization..........................................7
4.6 Customer Support........................................7
4.7 Allocation of Expenses..................................8
ARTICLE V PURCHASE, SALE AND DELIVERY OF PRODUCTS AND SALES AIDS..9
5.1 Agreement to Purchase...................................9
5.2 Payment Due Date.......................................10
5.3 Passage of Title and Risk of Loss......................10
5.4 Inspection.............................................10
5.5 Inventory Obsolescence.................................11
ARTICLE VI PRODUCT AND SALES AIDS PURCHASE PRICES AND TERMS OF
PAYMENT................................................11
6.1 Product Availability and Pricing.......................11
6.2 Payment Method.........................................12
ARTICLE VII OBLIGATIONS OF NSPCT AS SUPPLIER OF PRODUCTS AND SALES
AIDS...................................................12
7.1 Product Formulation....................................12
7.2 Warranty...............................................12
7.3 Delivery...............................................13
7.4 Allocation of Expenses.................................13
ARTICLE VIII SALE AND MANUFACTURE OF PRODUCTS.......................14
8.1 Non-Competing Products.................................14
8.2 Competing Products.....................................14
8.3 Discontinued Products..................................14
ARTICLE IX NATURE OF RELATIONSHIP.................................15
ARTICLE X TERM...................................................15
ARTICLE XI TERMINATION............................................16
ARTICLE XII EFFECT OF TERMINATION..................................17
ARTICLE XIII CONFIDENTIALITY........................................18
ARTICLE XIV INDEMNIFICATION AND INSURANCE..........................19
ARTICLE XV MISCELLANEOUS..........................................20
15.1 Assignment.............................................20
15.2 Notices................................................20
15.3 Waiver and Delay.......................................21
15.4 Force Majeure..........................................22
15.5 Governing Law and Dispute Resolution...................22
15.6 Applicability of Post-Effective Laws...................23
15.7 Integrated Contract....................................23
15.8 Modifications and Amendments...........................23
15.9 Severability...........................................23
15.10 Counterparts and Headings..............................24
WHOLESALE DISTRIBUTION AGREEMENT
THIS WHOLESALE DISTRIBUTION AGREEMENT (hereinafter "Agreement") is made and
entered this 12th day of March, 1997, by and between Nu Skin Personal Care
(Thailand) Ltd., a corporation organized under the laws of Thailand and the
State of Delaware, U.S.A., (hereinafter "NSPCT"), and Nu Skin Hong Kong, Inc., a
corporation organized under the laws the State of Utah, U.S.A., (hereinafter
"NSHK"). Hereinafter, NSPCT and NSHK collectively shall be referred to as the
"Parties."
W I T N E S S E T H
WHEREAS, NSI (as hereinafter defined) is engaged in the design, production
and marketing of Products and Sales Aids (as hereinafter defined) for
distribution in international markets through a network of independent
distributors; and,
WHEREAS, NSI has authorized and appointed NSHK as its exclusive regional
distributor of Products and Sales Aids in certain countries in the Asia/Pacific
region (including the Territory (as hereinafter defined)) and desires to appoint
subdistributors in certain of such countries pursuant to Section 2.2 of its
Regional Distribution Agreement with NSI, dated as of November 21, 1996 (the
"Regional Distribution Agreement"); and,
WHEREAS, NSPCT desires, on the terms and conditions hereinafter set forth,
to act as the exclusive distributor of NSHK of Products and Sales Aids in the
Territory; and,
WHEREAS, NSHK is willing, on the terms and conditions hereinafter set
forth, to grant to NSPCT the exclusive right to so distribute Products and Sales
Aids; and,
WHEREAS, the Parties wish to enter into a Wholesale Distribution Agreement
as set forth herein;
NOW, THEREFORE, in consideration of the premises, the mutual covenants
herein contained and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
ARTICLE I
DEFINITIONS
For the purposes of this Agreement the following words, terms, and
phrases shall have the meaning assigned to them in this Article I, unless the
context otherwise requires or the parties otherwise agree within the terms of
this Agreement:
1.1 "Agreement" shall mean this Wholesale Distribution Agreement between
NSHK and NSPCT (together with any exhibits and schedules hereto), as the same
may be modified, amended or supplemented from time to time.
1.2 "NSI Independent Distributor" shall mean a person or business entity
authorized by contract with NSI to distribute, as an independent contractor, the
Products and Sales Aids in accordance with the terms of such distribution
contract.
1.3 "NSI" shall mean Nu Skin International, Inc., a corporation, duly
organized and existing under the laws of the State of Utah, U.S.A.
1.4 "Products" shall mean those products, including without limitation,
cosmetics, nutritional products, dietary supplements, vitamins, over-the-counter
drugs, quasi-drugs, drugs and pharmaceutical products that are produced,
manufactured or purchased by NSI for sale or resale, subject to unavailability
due to local regulatory requirements in the Territory.
1.5 "Territory" shall mean the country of Thailand.
1.6 "Sales Aids" shall mean materials, in whatever form, designed, approved
and produced by NSPCT to assist in the marketing of the Products in the
Territory.
1.7 "Trademarks" shall mean those words, symbols, devices, logos, trade
names and company names or combinations thereof owned by NSI and used in
relation to or on Products and Sales Aids, whether or not registered.
ARTICLE II
APPOINTMENT AS EXCLUSIVE WHOLESALE DISTRIBUTOR
2.1 Scope. NSHK hereby appoints NSPCT as NSHK's exclusive distributor,
during the term of this Agreement, for the sale and distribution of Products and
Sales Aids in the Territory, under the Products' names, logos, and Trademarks,
subject to all terms and conditions of this Agreement, and NSPCT hereby accepts
such appointment and authorization.
2.2 Sub-distributors. Except for the sale of Products and Sales Aids to NSI
Independent Distributors, NSPCT shall not, without the prior written approval of
NSHK, appoint sub-distributors or agents to promote or distribute Products or
Sales Aids inside or outside the Territory.
2.3 Sales of Products and Sales Aids.
2.3(a) NSPCT agrees that any distribution of Products or Sales Aids in the
Territory shall be made only to NSI Independent Distributors.
2.3(b) To facilitate sales to NSI Independent Distributors, NSPCT shall
have the right to access information regarding such NSI Independent
Distributors in the Territory as provided by NSI to NSHK pursuant to the
Regional Distribution Agreement.
2.4 NSHK Sales in the Territory. NSHK agrees not to sell Products or Sales
Aids to any party within the Territory or to any party outside the Territory for
delivery within the Territory, except to NSPCT pursuant to the terms and
conditions of this Agreement, unless NSHK has received the written consent of
NSPCT.
2.5 Sales Outside the Territory. NSPCT agrees that it will not sell
Products or Sales Aids outside the Territory. Further, NSPCT shall not promote
or solicit customers for Product or Sales Aids sales outside the Territory.
NSPCT shall not establish any facility outside the Territory through which
orders are solicited or in which inventories of Products or Sales Aids are
stored without NSHK's written consent.
2.6 Territory Orders and Inquiries. The Parties acknowledge that from time
to time inquiries and orders concerning the Territory will arise. If NSHK
receives any order or inquiry concerning the sale of Products or Sales Aids in
the Territory, NSHK agrees to give prompt notice of such inquiry or order to
NSPCT, such notice to include the name and address of the person making the
order or inquiry as well as any other relevant details regarding such order or
inquiry that NSPCT shall reasonably request. If NSPCT receives any order or
inquiry concerning the sale of Products or Sales Aids outside the Territory,
NSPCT agrees to give NSHK prompt notice of such inquiry or order, such notice to
include the name and address of the person making the order or inquiry, as well
as any other relevant details regarding such order or inquiry that NSHK shall
reasonably request.
ARTICLE III
GOVERNMENTAL APPROVALS AND REGISTRATIONS
NSPCT agrees to obtain, or cause to be obtained, at its sole cost and
expense, any governmental approval and make, or cause to be made, any filings or
notifications required under all applicable laws, regulations and ordinances of
the Territory to enable this Agreement to become effective, to enable the
Products or Sales Aids to be sold in the Territory (except as otherwise provided
herein) or to enable any payment pursuant to the provisions of this Agreement to
be made. NSPCT agrees to keep NSHK informed of the progress in obtaining all
such government approvals.
ARTICLE IV
OBLIGATIONS OF NSPCT AS EXCLUSIVE WHOLESALE DISTRIBUTOR IN THE
TERRITORY
4.1 Marketing and Distribution. NSPCT shall have the following
obligations with respect to marketing and distribution of the Products and Sales
Aids:
4.1(a) To use its best efforts to further the promotion, marketing, sales
and other distribution of the Products and Sales Aids in the Territory.
4.1(b) To maintain, or cause to be maintained, an adequate and balanced
inventory of Products, Sales Aids, supplies and necessary materials to
promote, market, sell and distribute the Products and Sales Aids within the
Territory.
4.1(c) To ensure that all inquiries by NSI Independent Distributors and
customers, including complaints are responded to promptly. To ensure that
all orders are processed and all shipments of Products and Sales Aids are
made within the Territory in a timely fashion.
4.1(d) To diligently investigate or cause to be investigated all leads with
potential customers referred to it by NSHK or NSI, or their affiliates.
4.1(e) To permit NSHK to visit NSPCT and to visit NSPCT's place of business
and inspect its inventories, service records, financial records and other
relevant documents.
4.1(f) To maintain, cause to be maintained, or contract to maintain,
adequate personnel, distribution and laboratory facilities dedicated on a
full-time or part-time basis to the quality control and sale of Products,
in compliance with and to the extent required by all laws, ordinances and
regulations applicable within the Territory.
4.1(g) To provide, at the request of NSHK, a business plan for the term and
in the form and detail reasonably requested by NSHK and to update such
business plan as reasonably requested by NSHK.
4.1(h) To provide, at the request of NSHK, reports of its activities and
sales respecting the Products and Sales Aids in the Territory in a form and
in such detail and for such time period as NSHK may reasonably require.
4.2 NSPCT Operations. NSPCT agrees to maintain, or cause to be
maintained, such facilities and other places of business within the Territory
necessary to effect the purposes and intentions of this Agreement. NSPCT further
agrees to bear all costs and expenses it incurs in the negotiation,
memorialization, execution and performance of all leases, rentals, equipment,
salaries, taxes, licenses, insurance, permits, telephone, telegraph,
promotional, advertising, travel, accounting and legal expenses, relating to
such facilities.
4.3 Pricing Information. At the request of NSHK, NSPCT agrees to advise
NSHK of the distribution prices of the Products or Sales Aids to be sold to NSI
Independent Distributors within the Territory.
4.4 NSPCT Claims and Representations. NSPCT shall not make any
promises, representations, warranties or guarantees respecting the Products,
Sales Aids or the NSI distributor sales and compensation plan, except in
accordance with those representations, warranties or guarantees as provided by
NSI with respect thereto and in accordance and compliance with the applicable
laws of the Territory.
4.5 Capitalization. NSPCT agrees to capitalize itself adequately and
maintain its operations both on a financially sound basis and in compliance with
all applicable laws, regulations or ordinances covering the operations of such a
business entity within any country in which it may conduct business.
4.6 Customer Support. NSPCT agrees to cooperate with NSHK in dealing with
any NSI Independent Distributor or customer complaints concerning the Products
and the Sales Aids and to take any action requested by NSHK to solve such
complaints. NSPCT also agrees to assist NSHK in arranging for any customer
warranty service required by law or required pursuant to the judgment of NSHK.
4.7 Allocation of Expenses.
4.7(a) Import Licenses. To the extent import licenses are required for the
importation of the Products or Sales Aids into the Territory, NSPCT hereby
agrees that it will be responsible for securing and maintaining such import
licenses and payment of all costs and expenses associated therewith.
4.7(b) Import Expenses. NSPCT agrees that it will be responsible for
payment of all customs duties, excise taxes, similar governmental charges
and levies, and any other charges or expenses related to any Products or
Sales Aids imported into the Territory.
4.7(c) Freight. NSPCT shall be liable for all freight charges not allocated
to NSHK pursuant to Section 7.4(c) hereof.
4.7(d) Other Expenses. In addition to the costs and expenses described in
clauses (a), (b) and (c) above, NSPCT agrees that it will be responsible
for payments of the following expenses, fees and costs, related to the
development and maintenance of the Nu Skin business in the Territory: (a)
fees and expenses to incorporate operating entities; (b) fees and expenses
for obtaining business licenses and permits; (c) fees, costs and expenses
incurred in drafting and producing required company documentation, Sales
Aids, and other literature such as product catalogs as well as contracts
such as local product purchase agreements; (d) fees and costs incurred in
determining the requirements for registering Products, including
ascertaining and complying with labeling and custom\import requirements;
(e) expenses and costs related to locating and establishing office,
warehouse and other physical facilities, including build out, furnishings
and equipment, as well as negotiation and securing of necessary leases and
permits; (f) all costs and expenses related to hiring a general manager and
staff, and compliance with local labor laws and requirements; provided that
fees, costs or expenses are not allocated NSHK.
ARTICLE V
PURCHASE, SALE AND DELIVERY OF PRODUCTS AND SALES AIDS
5.1 Agreement to Purchase. NSPCT shall order such quantities of Products
and Sales Aids as it deems necessary to meet its sales requirements within the
Territory.
5.1(a) Each order shall be in the form of a written and signed purchase
order appearing on the official letterhead of NSPCT. Each purchase order
shall be forwarded directly to NSI with a copy to be forwarded
simultaneously therewith to NSHK. NSHK shall review such purchase order for
compliance with the terms of the Regional Distribution Agreement and for
reasonableness of the quantities ordered with forecasted sales of Products
by NSPCT. Unless earlier waived, NSHK shall have the right, within ten (10)
days after placement of such purchase order, to rescind such purchase order
and shall notify NSPCT and NSI in writing of its decision to exercise such
rescission rights prior to the expiration of such ten-day period.
5.1(b) Each purchase order shall identify the Product(s) or Sales Aids to
be purchased, the country to which such Products or Sales Aids shall be
distributed to ensure shipment and receipt of Products or Sales Aids which
comply with such country's laws and regulations, the quantities thereof,
and the shipment dates therefor.
5.1(c) NSHK shall use its best efforts to cause NSI to accept each Purchase
Order for Products or Sales Aids placed by NSPCT pursuant to this Article
and subject to:
5.1(c)(i) The availability in NSI's current inventory of the
Product(s) or Sales Aid(s) ordered by NSPCT; and,
5.1(c)(ii) The inability of NSI to perform by reason of force majeure
as defined in Section 15.4 hereof; and,
5.2 Payment Due Date. NSPCT shall pay for each shipment of Products and
Sales Aids within sixty (60) days after the date of arrival or the date of
dispatch of a commercial shipping invoice, whichever is later, and shall make
payment for such Products and Sales Aids as provided in Section 6.2 of this
Agreement.
5.3 Passage of Title and Risk of Loss. Title to and risk of loss for any
Product(s) or Sales Aid(s) ordered and shipped pursuant to the terms of this
Article shall remain with NSHK delivery of the Products or Sales Aid(s) to NSPCT
or its designated agent at the port designated in the purchase order or at some
point in transit as the parties may agree in writing, at which time title and
risk of loss passes to NSPCT. Shipments shall be made in a commercially
reasonable manner in accordance with standards applicable in the trade and
industry.
5.4 Inspection. Within forty-five (45) days following actual receipt of a
shipment of Products or Sales Aids by NSPCT, NSPCT shall inspect, or cause to be
inspected, the Products and Sales Aids and shall notify NSHK and NSI in writing,
in accordance with Section 15.2, of any defects in such shipment of Products or
Sales Aids. In the event of such notification, NSHK shall make appropriate
arrangements, acceptable to NSPCT, to replace any such defective Products or
Sales Aids at NSHK's sole cost and expense or, failing such replacement, shall,
at the option of NSHK, either credit the purchase price of the defective
Products or Sales Aids to NSPCT's account or promptly grant NSPCT a cash refund
for such purchase price. If NSHK is not notified of any defect in a shipment of
Products or Sales Aids within forty-five (45) days after actual receipt thereof
by NSPCT, then NSPCT shall be deemed to have waived its right to claim any
defect in the Products or Sales Aids contained in such shipment; provided that
for any latent or other defect not reasonably discernable upon inspection of the
Products or Sales Aids under the prevailing circumstances NSPCT shall have until
forty-five (45) days after discovery of such defect to exercise its rights under
this Section 5.4.
5.5 Inventory Obsolescence. In the event and to the extent that Products or
Sales Aids in the possession of NSPCT shall, due to the expiration, change in
market conditions, or other reasons not within the control of NSPCT, become
nonsaleable, NSHK agreed to credit the original purchase price of such Products
or Sales Aids to NSPCT. The ultimate cost and method of disposal of any such
Products and Sales Aids shall be the responsibility of NSHK.
ARTICLE VI
PRODUCT AND SALES AIDS PURCHASE PRICES AND TERMS OF PAYMENT
6.1 Product Availability and Pricing. Prices to be paid by NSPCT to NSHK
for Products and Sales Aids purchased hereunder shall be negotiated and
determined on an arm's length basis and be adjusted from time to time as agreed
by the Parties in writing.
6.2 Payment Method. NSPCT shall pay the commercial invoices for Products
and Sales Aids shipped under this Agreement in immediately available funds by
wire transfer to a bank or banks designated by NSHK, or by such other means of
payment agreed to by NSHK from time to time. All purchases of Products and Sales
Aids will be payable in Thailand Baht with any exchange rate risk to be borne by
NSHK. Without limiting any of NSHK's other rights and remedies pursuant to this
Agreement, amounts not paid within the time period set forth in the payment
provisions herein shall bear interest at the prime interest rate as reported in
The Wall Street Journal plus two percent (2%) for the full period outstanding.
ARTICLE VII
OBLIGATIONS OF NSPCT AS SUPPLIER OF PRODUCTS AND SALES AIDS
7.1 Product Formulation. In consultation with NSI, NSHK and NSPCT agree to
cooperate to mutually determine the formulae or ingredients to be used for
Products in the Territory based on local market regulations and consumer
preferences.
7.2 Warranty. NSHK warrants that the Products and Sales Aids supplied
hereunder shall be merchantable under (and will comply with) the laws and
regulations of the jurisdiction in which distribution of such Product or Sales
Aid is intended; that it will deliver good title thereto and that Products and
Sales Aids will be delivered free from any lawful security interest or other
lien or encumbrance.
7.2(a) NSHK's liability for any breach of such warranties shall not exceed
in amount the price of the Products or Sales Aids in respect of which any
breach is claimed. NSHK'S WARRANTY STATED HEREIN IS EXPRESSLY IN LIEU OF
ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF
FITNESS FOR A PARTICULAR PURPOSE.
7.2(b) NSHK neither assumes nor authorizes any person or entity to assume
for it any other liability in connection with the Products or Sales Aids
supplied hereunder, and there are no oral contracts or warranties
collateral to or affecting this Agreement. NSHK shall not be liable to
NSPCT or any third parties for consequential, special or incidental
damages.
7.3 Delivery. NSHK shall promptly, in accordance with normal and
commercially reasonable delivery schedules in the trade, deliver to NSPCT those
Products or Sales Aids for which NSPCT places orders in accordance with Article
V hereof.
7.4 Allocation of Expenses.
7.4(a) Export Licenses. To the extent NSHK is required to obtain any United
States, Hong Kong or other export licenses to export the Products or Sales
Aids to the Territory, NSHK shall pay all costs and expenses associated
therewith.
7.4(b) Export Expenses. NSHK agrees that it will be responsible for
payments of all customs duties, excise taxes and similar governmental
charges and levies related to the export of the Products or Sales Aids from
the United States of America, Hong Kong or any other jurisdiction.
7.4(c) Freight. NSHK shall be liable for reasonable ocean freight and
insurance costs and expenses related to the export of the Products and
Sales Aids from the United States, Hong Kong or any other jurisdiction and
delivery of the Products and Sales Aids to the Territory as designated in
the purchase order.
ARTICLE VIII
SALE AND MANUFACTURE OF PRODUCTS
8.1 Non-Competing Products. Nothing contained herein, shall restrict or
prohibit NSPCT from selling, distributing, manufacturing or causing to be
manufactured products or materials which do not compete directly or indirectly
with the Products and Sales Aids, provided that such other products do not
infringe upon any patent, name, Trademark, emblem, trade name, design right,
model or other commercial or industrial property right of NSI.
8.2 Competing Products. During the term of this Agreement, NSPCT shall not,
and shall not authorize a third party to, manufacture, cause to be manufactured,
distribute or sell (i) any products or materials which directly or indirectly
compete with the Products or the Sales Aids or (ii) copies of the Products,
Sales Aids, or other products that might reasonably be deemed under U.S. or
foreign law to be confusingly similar to the Products or Sales Aids, in each
case without the prior written consent of NSHK.
8.3 Discontinued Products. Notwithstanding the foregoing, in the event NSHK
receives notice from NSI of the discontinuance of the sale of any Product, NSHK
shall promptly notify NSPCT of such discontinuance and thereafter NSPCT may
elect to manufacture or cause to be manufactured such Product; provided that, if
such discontinued Product competes directly or indirectly with any other NSI
Product, the prior written consent of NSI shall be required. If NSPCT elects to
so manufacture or cause to be manufactured such discontinued Product, NSHK
shall, pursuant to the terms of the Regional Distribution Agreement, request
that NSI license the formula to such discontinued Product to NSPCT on
substantially the same terms as set forth in the Trademark/Tradename License
Agreement, dated as of the date hereof, by and between NSI and NSPCT.
ARTICLE IX
NATURE OF RELATIONSHIP
The relationship of NSPCT and NSHK shall be and at all times remain,
respectively, that of independent contractor and contracting party. Nothing
contained or implied in this Agreement shall be construed to constitute either
party as the legal representative or agent of the other or to constitute or
construe the Parties as partners, joint venturers, co-owners or otherwise as
participants in a joint or common undertaking. Neither Party is authorized to
conclude any contract or agreement or make any commitment, representation or
warranty that binds the other or otherwise act in the name of or on behalf of
the other.
ARTICLE X
TERM
Subject to Article XI hereof, this Agreement shall be for a term ending on
December 31, 2016 or the termination of the Regional Distribution Agreement in
accordance with its terms provided, however, that this Agreement is subject to
renegotiation after December 31, 2001 in the event that (i) Blake M. Roney,
Nedra D. Roney, Sandie N. Tillotson, Craig Tillotson, Craig Bryson, Steven J.
Lund, Brooke B. Roney, Kirk V. Roney and Keith R. Halls (the "NSI
Stockholders"), or members of their families, or trusts or foundations
established by or for the benefit of the NSI Stockholders or members of their
families on a combined basis no longer beneficially own a majority of the voting
stock of Nu Skin Asia Pacific, Inc ("Nu Skin Asia Pacific"), or (ii) the NSI
Stockholders, or members of their families, or trusts or foundations established
by or for the benefit of the NSI Stockholders or members of their families on a
combined basis no longer beneficially own a majority of the voting stock of NSI.
ARTICLE XI
TERMINATION
11.1 This Agreement may be terminated by either Party in the following
circumstances immediately or at any time after the occurrence of any of the
following events:
(a) the other Party shall commence any case, proceeding or other action (i)
under any existing or future law of any jurisdiction, domestic or foreign,
relating to bankruptcy, insolvency, reorganization or relief of debtors,
seeking to have an order for relief entered with respect to it, or seeking
to adjudicate it a bankrupt or insolvent, or seeking reorganization,
arrangement, adjustment, winding-up, liquidation, dissolution, compensation
or other relief with respect to it or its debts, or (ii) seeking
appointment of a receiver, trustee, custodian or other similar action; or
(b) there shall be commenced against the other Party any case, proceeding
or other action of a nature referred to in clause (a) above which (i)
results in the entry of an order for relief or any such adjudication or
appointment or (ii) remains undismissed, undischarged or unbonded for a
period of 90 days. Events described in clauses (a) and (b) of this Section
11.1 shall be referred to as a "Bankruptcy Event". If a Bankruptcy Event
occurs, all amounts owing under this Agreement shall become immediately due
and payable, without any notice thereof; or
(c) if the other Party causes or allows a judgment in excess of twenty-five
million dollars ($25,000,000) to be entered against it or voluntarily
allows a lien, security interest, or other encumbrance to attach to its
assets which secures an amount in excess of twenty-five million dollars
($25,000,000).
11.2 This Agreement may be terminated by either Party, if the other Party
is in default in the performance of any material obligation under this Agreement
and such default has not been cured within sixty (60) days after receipt of
written notice of such default by the defaulting party.
ARTICLE XII
EFFECT OF TERMINATION
12.1 Upon termination of this Agreement, all rights and licenses herein
granted to NSPCT shall cease and shall revert to NSHK and NSPCT shall
immediately cease holding itself out to the public as NSHK's exclusive wholesale
distributor in the Territory or otherwise represent that it is associated in any
manner with NSHK.
12.2 Upon termination of this Agreement, NSHK may either (a) deliver, and
NSPCT shall pay for, all Products and Sales Aids ordered by NSPCT prior to such
termination or (b) cancel, without cost or liability, the order of such Products
or Sales Aids.
12.3 Upon termination of this Agreement, neither party shall be released
from its obligations to pay monies due or to become due to the other party or to
complete any unfulfilled obligations under this Agreement, and each party shall
immediately pay, perform and discharge all debts, obligations and liabilities
hereunder.
12.4 Upon termination of this Agreement for any reason, neither party shall
be liable for any special, indirect, incidental, punitive or consequential
damages, regarding such termination, irrespective of whether such obligations or
liabilities may be contemplated in any law applicable within the Territory and
or elsewhere, and, except as otherwise provided by applicable law, each party
hereby waives and relinquishes any rights, pursuant to law or otherwise, to any
such damages. The remedies contained herein shall be exclusive.
12.5 The provisions of Article XII, Article XIII and Article XIV, as well
as any other provisions that by their terms so provide, shall survive
termination of this Agreement and continue in full force and effect thereafter.
ARTICLE XIII
CONFIDENTIALITY
13.1 All trade secrets, proprietary technology, know-how or other
non-public or proprietary business or technical information owned or used by
NSHK or NSPCT and supplied to or acquired by the other whether in oral or
documentary form (the "Confidential Information") shall be supplied and acquired
in confidence and shall be solely for the use of the receiving party pursuant to
this Agreement and such party shall keep the Confidential Information
confidential and shall not disclose the same, at any time during the term of
this Agreement or after its termination, except to its employees, or its
affiliates, or its affiliates' employees for the purposes of its business in
accordance with this Agreement and except as may be required by law; provided
that if the receiving party determines that a disclosure is required by law, the
receiving party shall notify the disclosing party in order to give the
disclosing party an opportunity to seek an injunction or otherwise attempt to
keep the Confidential Information confidential. The receiving party shall, at
the request of the disclosing party, destroy or return the Confidential
Information without retaining copies if, as and when this Agreement is
terminated or expires. For purposes of this Agreement, the term "Confidential
Information" shall not include information or documents that (i) become
generally available to the public other than as a result of a disclosure by the
receiving party, (ii) was otherwise lawfully available to the receiving party,
or (iii) was generated independently by the receiving party. The provisions of
this Article shall survive termination of this Agreement.
ARTICLE XIV
INDEMNIFICATION AND INSURANCE
14.1 NSHK agrees during and after the term of this Agreement to indemnify
and hold harmless NSPCT from liability, loss, cost or damage, (including
reasonable attorney's fees) which NSPCT may incur as a result of claims, demands
or judgments, of any kind or nature, by anyone whomsoever, arising out of (i) an
alleged or actual defect in the design, manufacture or content of, or any harm
caused by any Products or Sales Aids or the failure of any Product to comply
with all applicable regulatory requirements in the Territory; or (ii) a claim
that NSI's proprietary information infringes any patent, copyright, trade secret
or other intellectual property right of a third party; provided that NSPCT
provides NSHK with prompt notice in writing of any such claim or demand and
NSPCT cooperates with NSHK in the defense or settlement of any such claim or
action.
14.2 At all times during and following the terms of this Agreement, NSHK
shall maintain insurance (or cause that NSPCT to be added as an additional
insured to any policy not maintained by NSHK) with one or more reputable
insurers reasonable in coverage and amount in direct proportion and
corresponding to the business to be conducted by NSPCT pursuant to this
Agreement.
14.3 NSPCT shall at all times remain fully liable for the performance of
its sub-distributors and/or agents and NSPCT hereby agrees to indemnify and hold
harmless NSHK from all damages, losses, cost or expenses arising in any manner
from any act or omission on the part of its sub- distributors or agents.
ARTICLE XV
MISCELLANEOUS
15.1 Assignment. This Agreement shall be binding on and inure to the
benefit of the heirs, successors, assigns and beneficiaries of the Parties;
provided that neither Party may assign this Agreement or any rights or
obligations hereunder, whether by operation of law or otherwise, without the
prior written consent of the other party's authorized representative. Any such
attempted assignment, without the written consent provided herein, shall be void
and unenforceable.
15.2 Notices. All notices, requests and other communications hereunder
shall be in writing and shall be deemed to have been duly given, if delivered by
hand, or if communicated by facsimile, cable or similar electronic means to the
facsimile number or cable identification number as previously provided by each
party to the other, at the time that receipt thereof has been confirmed by
return electronic communication or signal that the message has been received, or
if mailed, ten (10) days after dispatch by registered airmail, postage prepaid,
from any post office addressed as follows:
If to NSHK: Attn.: Regional Legal Counsel
Nu Skin Hong Kong, Inc.
25th Floor, Windsor House
311 Gloucester Road
Causeway Bay, Hong Kong
Facsimile No.: 852-882-7809
If to NSPCT: Attn.: General Manager
Nu Skin Personal Care (Thailand) Ltd.
15th Floor Building III
SCB Park Plaza East
19 Ratchadapisek Road
Ladyao, Jatujak
Bangkok, Thailand 10900
Facsimile No.: 662-937-9939
Either party may change its facsimile number, cable identification number
or address by a notice given to the other party in the manner set forth above.
15.3 Waiver and Delay. No waiver by either party of any breach or default
in performance by the other party, and no failure, refusal or neglect of either
party to exercise any right, power or option given to it hereunder or to insist
upon strict compliance with or performance of the other party's obligations
under this Agreement, shall constitute a waiver of the provisions of this
Agreement with respect to any subsequent breach thereof or a waiver by either
party of its right at any time thereafter to require exact and strict compliance
with the provisions thereof.
15.4 Force Majeure. The Parties shall not be responsible for failure to
perform hereunder due to force majeure, which shall include, but not be limited
to: fires, floods, riots, strikes, labor disputes, freight embargoes or
transportation delays, shortage of labor, inability to secure fuel, material,
supplies, equipment or power at reasonable prices or on account of shortage
thereof, acts of God or of the public enemy, war or civil disturbances, any
existing or future laws, rules, regulations or acts of any government (including
any orders, rules or regulations issued by any official or agency or such
government) affecting a party that would delay or prohibit performance
hereunder, or any cause beyond the reasonable control of a party. If an event of
force majeure should occur, the affected party shall promptly give notice
thereof to the other party and such affected party shall use its reasonable best
efforts to cure or correct any such event of force majeure. 15.5 Governing Law
and Dispute Resolution. This Agreement shall be governed by and construed in
accordance with the laws of the State of Utah, applicable to contracts made and
to be wholly performed within such State. Any dispute arising out of this
Agreement, if not resolved by mutual agreement of NSHK and NSPCT within 30 days
after written notice of such dispute is given by NSHK or NSPCT, as the case may
be, shall be resolved through arbitration with the Utah office and division of
the American Arbitration Association ("AAA"). If the dispute is not resolved
within such 30-day period, the Parties shall petition the AAA to promptly
appoint a competent, disinterested person to act as such arbitrator. Within 30
days after the designation or appointment of such arbitrator, such arbitrator
shall be required to commence the arbitration proceeding in the State of Utah at
a time and place to be fixed by the arbitrator, who shall so notify NSHK and
NSPCT. Such arbitration proceeding shall be conducted in accordance with the
applicable rules and procedures of the AAA, and/or as otherwise may be agreed by
NSHK and NSPCT. The decision of the arbitrator shall be final and binding upon
NSHK and NSPCT and may be enforced in any court of competent jurisdiction. The
expenses and costs of such arbitration shall be divided and borne equally by
NSHK and NSPCT; provided, that each of NSHK and NSPCT shall pay all fees and
expenses incurred by it in presenting or defending against such claim, right or
cause of action.
15.6 Applicability of Post-Effective Laws. The Parties agree that neither
the Vienna Convention on the International Sale of Goods nor any such similar
law, treaty or act that becomes effective during the term of this Agreement
shall be applicable to this Agreement or the transactions contemplated
hereunder.
15.7 Integrated Contract. This Agreement constitutes the entire agreement
between the Parties relating to the subject matter hereof and supersedes all
prior or contemporaneous negotiations, representations, agreements and
understandings (both oral and written) of the Parties.
15.8 Modifications and Amendments. No supplement, modification or amendment
of this Agreement shall be binding unless it is in writing and executed by both
of the Parties.
15.9 Severability. To the extent that any provision of this Agreement is
(or, in the opinion of counsel mutually acceptable to both parties, would be)
prohibited, judicially invalidated or otherwise rendered unenforceable in any
jurisdiction, such provision shall be deemed ineffective only to the extent of
such prohibition, invalidation or unenforceability in that jurisdiction, and
only within that jurisdiction. Any prohibited, judicially invalidated or
unenforceable provision of this Agreement will not invalidate or render
unenforceable any other provision of this Agreement, nor will such provision of
this Agreement be invalidated or rendered unenforceable in any other
jurisdiction.
15.10 Counterparts and Headings. This Agreement may be executed in one or
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument. All headings and captions
are inserted for convenience of reference only and shall not affect the meaning
or interpretation of any provision hereof.
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed
by their respective duly authorized representatives in the United States of
America as of the day and the year first above written.
NU SKIN HONG KONG, INC. NU SKIN PERSONAL CARE (THAILAND) LTD.
BY: BY:
Steven J. Lund Truman Hunt
ITS: Executive Vice President ITS: Secretary
MANAGEMENT SERVICES AGREEMENT
between
NU SKIN INTERNATIONAL MANAGEMENT GROUP, INC.
and
NU SKIN PERSONAL CARE (THAILAND) LTD.
TABLE OF CONTENTS
Page
ARTICLE 1 DEFINITIONS.................................................1
"Agreement".................................................1
"Consulting Personnel"......................................1
"Direct Expenses"...........................................2
"Expatriate Personnel"......................................2
"Allocable Expenses" .......................................2
"Management and Consulting Services" .......................2
"NSI" ......................................................2
ARTICLE 2 MANAGEMENT AND CONSULTING SERVICES..........................2
Services....................................................2
Performance of Services. ...................................2
Expatriate Employees........................................2
Approval of Services........................................3
ARTICLE 3 COMPENSATION OF SERVICE PROVIDER...........................3
3.1(a) Compensation for Services by Consulting Personnel....3
3.1(b) Reimbursement of Cost of Expatriate Personnel........3
Determination of Allocable Expenses. ......................3
Currency. .................................................3
Payment and Invoicing.......................................3
Due Date....................................................3
Delinquent Payments.........................................4
ARTICLE 4 PREPARATION AND SHARING OF REPORTS AND INFORMATION
Periodic Reports on Management and Consulting Services......4
Time Allocation Study.......................................4
Sharing of Information and Witnesses........................4
ARTICLE 5 NON-DISCLOSURE OF CONFIDENTIAL INFORMATION.................5
ARTICLE 6 TERM........................................................5
ARTICLE 7 TERMINATION................................................6
ARTICLE 8 EFFECT OF TERMINATION......................................7
Cessation of Rights.........................................7
ARTICLE 9 COMPLIANCE WITH APPLICABLE LAWS.............................7
Compliance Generally........................................7
Authorizations..............................................8
Business Practices..........................................8
ARTICLE 10 GENERAL PROVISIONS..........................................8
Assignment..................................................8
Notices.....................................................8
Waiver and Delay............................................9
Force Majeure...............................................9
Governing Law and Dispute Resolution........................9
Applicability of Post-Effective Laws.......................10
Integrated Contract........................................10
Modifications and Amendments...............................10
Severability...............................................10
Counterparts and Headings..................................10
MANAGEMENT SERVICES AGREEMENT
THIS MANAGEMENT SERVICES AGREEMENT is made and entered into effective March
12, 1997 between Nu Skin International Management Group, Inc., a corporation
organized under the laws of the State of Delaware, U.S.A. (hereinafter referred
to as "NSIMG"), and Nu Skin Personal Care Ltd., a corporation organized under
the laws of Thailand and the State of Delaware, U.S.A. (hereinafter referred to
as "NSPCT"). NSIMG and NSPCT shall hereinafter be collectively referred to as
the "Parties" and each shall be individually referred to as a "Party."
W I T N E S S E T H
WHEREAS, NSIMG desires to provide Management and Consulting Services (as
hereinafter defined) to NSPCT, and NSPCT desires to obtain such Management and
Consulting Services from NSIMG;
NOW, THEREFORE, in consideration of the premises, the mutual promises and
covenants hereinafter set forth and for other good and valuable consideration,
the sufficiency of which is hereby acknowledged, the Parties agree as follows:
ARTICLE 1
DEFINITIONS
For purposes of this Agreement, the following terms shall have the meaning
set out below:
1.1 "Agreement" shall mean this Management Services Agreement between
NSIMG and NSPCT, as the same may be modified, amended or supplemented
from time to time.
1.2 "Allocable Expenses" shall mean all expenses incurred by NSIMG in
providing Management and Consulting Services other than Direct
Expenses including without limitation, the following: rents,
utilities, telephone, equipment, recruitment, office supplies, and
other overhead expenses, certain salary costs and expenses related to
conventions, travel and accommodations at anniversary events, the
permitted use and appropriation of the names and likeness of
directors, and executive officials of NSPCT or NSIMG, telephone calls
and counseling and conferences and meetings with NSPCT managers and
NSI independent distributors. Allocable Expenses shall be calculated
in accordance with Sections 3.2 and 4.2.
1.3 "Consulting Personnel" shall mean employees of NSIMG or, with the
consent of NSPCT, such other persons or entities as NSIMG may retain,
hire, or otherwise contract with for the provision of Management and
Consulting Services on behalf of, or in conjunction with, NSIMG.
1.4 "Direct Expenses" shall mean all expenses incurred in the
provision of Management and Consulting Services for NSPCT, which
expenses are measured solely for the benefit of NSPCT, including,
without limitation, certain salary costs, benefits and business
expenses, convention expenses and travel expenses.
1.5 "Expatriate Personnel" shall mean Consulting Personnel who reside
in Thailand and are used by NSPCT for a definite or indefinite period
of time to perform Management and Consulting Services.
1.6 "Management and Consulting Services" shall mean the following
services provided by Consulting Personnel: management, legal,
financial, marketing and distribution support/training, public
relations, international expansion, human resources, strategic
planning, product development and operations administration and such
other services as the Parties may agree to from time to time.
1.7 "NSI" shall mean Nu Skin International, Inc., a corporation duly
organized and existing under the laws of the state of Utah.
ARTICLE 2
MANAGEMENT AND CONSULTING SERVICES
2.1 Services. NSIMG hereby agrees to provide Management and Consulting
Services to NSPCT as NSPCT may request from time to time, until
termination of this Agreement. NSPCT agrees to reimburse and
compensate NSIMG for Management and Consulting Services rendered
pursuant to this Agreement in accordance with the applicable
compensation and invoicing provisions hereof.
2.2 Performance of Services. Unless otherwise agreed between the
Parties, the Management and Consulting Services shall be provided
through Consulting Personnel, as requested by NSPCT.
2.3 Expatriate Employees. The Parties shall agree to the terms and
circumstances pursuant to which a Consulting Employee may be assigned
as an Expatriate Employee to work with NSPCT; provided that nothing in
this Agreement shall be interpreted to mean that NSIMG must make
available any Consulting Employee to work at NSPCT as an Expatriate
Employee.
2.4 Approval of Services. NSPCT hereby agrees that, by accepting and
paying invoices as provided in Article 3 herein, NSPCT will be deemed
to have approved the nature and extent the Management and Consulting
Services so invoiced.
ARTICLE 3
COMPENSATION OF SERVICE PROVIDER
3.1 3.1(a) Compensation for Services by Consulting Personnel. NSPCT
agrees to compensate NSIMG for Management and Consulting Services that
it provides to NSPCT (other than Expatriate Personnel) in the form of
a fee equal to the Direct Expenses plus Allocable Expenses incurred by
NSIMG for Management and Consulting Services provided to NSPCT plus
three percent (3%) of such Direct Expenses and Allocable Expenses, as
such fee may be adjusted from time to time by mutual agreement of the
Parties; provided that, unless otherwise agreed between the Parties,
Allocable Expenses shall not, for any period, exceed one and one-half
percent (1 1/2%) of NSPCT's revenues for such period.
3.1(b) Reimbursement of Cost of Expatriate Personnel. NSPCT agrees to
reimburse NSIMG for any direct costs of Expatriate Personnel incurred
by NSIMG attributable to such Expatriate Personnel seconded to NSI.
3.2 Determination of Allocable Expenses. Allocable Expenses for any
period shall be equal to the total Allocable Expenses incurred by NSI
or NSIMG's internal departments for such period multiplied by the
percentage of such Allocable Expenses allocable to NSPCT pursuant to
the then applicable time allocation study prepared pursuant to Section
4.2 hereof.
3.3 Currency. Any compensation to be paid to NSIMG for Management and
Consulting Services rendered pursuant to this Agreement shall be paid
in United States Dollars.
3.4 Payment and Invoicing. Within thirty (30) days after the end of
each month, NSIMG shall prepare and deliver an invoice to NSPCT
setting forth the fees payable hereunder for Management and Consulting
Services rendered pursuant to this Agreement during such month.
3.5 Due Date. Payments due under this Agreement shall be due and
payable within sixty (60) days after the date of dispatch of the
invoice for such payments.
3.6 Delinquent Payments. Without limiting any of Parties' other rights
and remedies under this Agreement, amounts outstanding under the terms
of this Agreement not paid within sixty (60) days from the date due
and payable, and as set forth in the payment provisions herein, shall
bear interest at the prime interest rate as reported in the Wall
Street Journal plus two percent (2%) for the full period outstanding.
Whether or not interest charges are actually levied is at the
discretion of the Party to whom payment is due and payable.
ARTICLE 4
PREPARATION AND SHARING OF REPORTS AND INFORMATION
4.1 Periodic Reports on Management and Consulting Services. NSPCT may,
upon thirty (30) days' written notice, request operations reports of
NSIMG setting forth such information regarding the Management and
Consulting Services provided under this Agreement and for such time
periods as NSPCT shall reasonably request.
4.2 Time Allocation Study. NSIMG has prepared a study accurately
reflecting the allocation of time spent by NSI's or NSIMG's internal
department and consulting personnel on the services provided to NSPCT
under this Agreement. The study shall be updated on a quarterly basis.
NSPCT may request a copy of the then applicable time allocation study
from NSIMG upon thirty (30) days' written notice.
4.3 Sharing of Information and Witnesses. At all times during the term
of this Agreement and for a period of three years thereafter, each of
the Parties shall maintain at its principal place of business full,
complete and accurate books of account and records with regard to its
activities under this Agreement. In addition to books and records,
NSIMG and NSPCT may from time to time have in their possession or
under their control (or the control of persons or entities which have
rendered services) additional books, records, contracts, instruments,
data and other information (together with the books and records
referred to in the first sentence of this Section 4.3, the
"Information") which may prove necessary or desirable to the other in
connection with the other's business. Accordingly, (i) NSIMG shall
provide to NSPCT, and NSPCT shall provide to NSIMG upon the other's
request, at all reasonable times, full and complete access to
(including access to persons with respect to, and all Information as
the other may reasonably request and require in the conduct of its
business, and (ii) NSIMG shall make available to NSPCT and NSPCT shall
make available to NSIMG, upon the other's request, such persons as may
reasonably be required to assist with any legal, administrative or
other proceedings in which NSPCT or NSIMG, as the case may be, may
from time to time be involved. The Information shall include, without
limitation, information sought for audit, accounting, claims,
litigation and tax purposes as well as for, in the case of NSPCT,
purposes of fulfilling disclosure and reporting obligations under the
United States securities laws. The Party providing Information or
making available witnesses shall be entitled to receive from the other
Party, upon the presentation of invoices therefor, payment for its
reasonable out-of-pocket expenses incurred in connection therewith
(but not the labor costs thereof), but shall not be entitled to
receive any other payment with respect thereto. Nothing in this
Agreement shall require either Party to reveal to the other any
information if to do so would violate such Party's written and
enforceable duty of confidence to a third party from whom or which
such information was obtained; under such circumstances, however, the
parties shall work together to obtain a release of such information
without violation of such duty of confidence.
ARTICLE 5
NON-DISCLOSURE OF CONFIDENTIAL INFORMATION
All trade secrets, proprietary technology, know-how or other non-public or
proprietary business or technical information owned or used by NSIMG or NSPCT
and supplied to or acquired by the other whether in oral or documentary form
(the "Confidential Information") shall be supplied and acquired in confidence
and shall be solely for the use of the receiving party pursuant to this
Agreement and such party shall keep the Confidential Information confidential
and shall not disclose the same, at any time during the term of this Agreement
or after its termination, except to its employees for the purposes of its
business in accordance with this Agreement and except as may be required by law;
provided that if the receiving party determines that a disclosure is required by
law, the receiving party shall notify the disclosing party in order to give the
disclosing party an opportunity to seek an injunction or otherwise attempt to
keep the Confidential Information confidential. The receiving party shall, at
the request of the disclosing party, destroy or return the Confidential
Information without retaining copies if, as and when this Agreement is
terminated or expires. For purposes of this Agreement, the term "Confidential
Information" shall not include information or documents that (i) become
generally available to the public other than as a result of a disclosure by the
receiving party, (ii) was otherwise lawfully available to the receiving party,
or (iii) was generated independently by the receiving party. The provisions of
this Article shall survive termination of this Agreement.
ARTICLE 6
TERM
Subject to Article VII hereof, this Agreement shall be for a term ending on
December 31, 2016; provided, however, that this Agreement is subject to
renegotiation after December 31, 2001 in the event that (i) Blake M. Roney,
Nedra D. Roney, Sandie N. Tillotson, Craig Tillotson, Craig Bryson, Steven J.
Lund, Brooke B. Roney, Kirk V. Roney and Keith R. Halls (the "NSI
Stockholders"), or members of their families, or trusts or foundations
established by or for the benefit of the NSI Stockholders or members of their
families on a combined basis no longer beneficially own a majority of the voting
stock of Nu Skin Asia Pacific, Inc ("Nu Skin Asia Pacific"), or (ii) the NSI
Stockholders, or members of their families, or trusts or foundations established
by or for the benefit of the NSI Stockholders or members of their families on a
combined basis no longer beneficially own a majority of the voting stock of NSI.
ARTICLE 7
TERMINATION
7.1 This Agreement may be terminated by either Party immediately or at
any time after the occurrence of any of the following events:
(a) the other Party shall commence any case, proceeding or other
action (i) under any existing or future law of any jurisdiction,
domestic or foreign, relating to bankruptcy, insolvency,
reorganization or relief of debtors, seeking to have an order for
relief entered with respect to it, or seeking to adjudicate it as
bankrupt or insolvent, or seeking reorganization, arrangement,
adjustment, winding-up, liquidation, dissolution, compensation or
other relief with respect to it or its debts, or (ii) seeking
appointment of a receiver, trustee, custodian or other similar action;
or
(b) there shall be commenced against the other Party any case,
proceeding or other action of a nature referred to in clause (a) above
which (A) results in the entry of an order for relief or any such
adjudication or appointment or (B) remains undismissed, undischarged
or unbonded for a period of 90 days. Events described in clauses (a)
and (b) of this Section 7.1(a) shall be referred to as a "Bankruptcy
Event". If a Bankruptcy Event occurs, all amounts owing under this
Agreement shall become immediately due and payable, without any notice
thereof; or
(c) if the other Party causes or allows a judgment in excess of
twenty-five million dollars ($25,000,000) to be entered against it or
involuntarily allows a lien, security interest, or other encumbrance
to attach to its assets which secures an amount in excess of
twenty-five million dollars ($25,000,000).
7.2 This Agreement may be terminated by either Party, if the other
Party is in default in the performance of any material obligation
under this Agreement and such default has not been cured within sixty
(60) days after receipt of written notice of such default by the
defaulting Party; or
7.3 This Agreement may be terminated by NSIMG if Nu Skin Asia Pacific
shall no longer own or control a majority of the voting interest in
NSPCT, with such termination to take effect thirty (30) days after NSI
gives written notice to NSPCT of the occurrence of a change in control
and its intention to terminate this Agreement based thereon.
7.4 NSPCT may terminate any specific Management and Consulting Service
provided pursuant to this Agreement by providing written notice
thereof to NSIMG not less than sixty (60) days prior to the desired
termination date. NSIMG may discontinue providing any specific
Management and Consulting Service provided pursuant to this Agreement
by providing written notice thereof to the NSPCT not less than sixty
(60) days prior to the desired termination date; provided, however,
that NSIMG shall not deliver any such notice in respect of any service
to the extent that NSIMG continues to provide such service to any
other international affiliate of NSIMG.
ARTICLE 8
EFFECT OF TERMINATION
8.1 Cessation of Rights. Upon expiration or termination (collectively,
the "Termination") of this Agreement for any reason whatsoever, all
rights and obligations of the Parties hereunder shall cease; provided,
however, that upon Termination of this Agreement, no
Party shall be released from its obligations to pay monies due or to
become due or to complete any unfulfilled obligations under this
Agreement, and the provisions of Article 5 shall service such
Termination.
8.2 Damages. Upon the Termination of this Agreement for any reason, no
Party shall be liable or obligated to the other Party with respect to
any payments, future profits, exemplary, special or consequential
damages, indemnifications or other compensation regarding such
Termination, and, except as otherwise required by applicable law, each
Party hereby waives and relinquishes any rights, pursuant to law or
otherwise, to any such payments, indemnifications or compensation.
ARTICLE 9
COMPLIANCE WITH APPLICABLE LAWS
9.1 Compliance Generally. In the performance of its obligations under
this Agreement, the Parties shall, at all times, strictly comply with
all applicable laws, regulations and orders of the countries and
jurisdictions in which they operate and such United States laws as
outlined in paragraph 9.3 of this Article.
9.2 Authorizations. Each Party shall, at its own expense, make, obtain
and maintain in force at all times during the term of this Agreement,
all filings, registrations, reports, licenses, permits and
authorizations required under applicable law, regulations or orders in
order for it to perform its obligations under this Agreement.
9.3 Business Practices. In conformity with the United States Foreign
Corrupt Practice Act and with the Parties' established corporate
policies regarding business practices, the Parties and their
respective employees shall not directly or indirectly make an offer,
payment, promise to pay, or authorize payment, or offer a gift,
promise to give, or authorize the giving of anything of value for the
purpose of influencing an act or decision (including a decision not to
act) of an official of any government or of an employee or any company
or including such a person to use his influence to effect any such act
or decision in order to assist any of the Parties in obtaining,
retaining or directing any business.
ARTICLE 10
GENERAL PROVISIONS
10.1 Assignment. This Agreement shall be binding on and inure to the
benefit of the heirs, successors, assigns and beneficiaries of the
Parties; provided that no Party may assign this Agreement or any
rights or obligations hereunder, whether by operation of law or
otherwise, without the prior written consent of all the other Party's
authorized representatives (which consent may be granted or withheld).
Any attempted assignment by any Party without the prior written
consent of the other Party shall be void and unenforceable.
10.2 Notices. All notices, requests and other communications hereunder
shall be in writing and shall be deemed to have been duly given, if
delivered by hand, or if communicated by facsimile to the facsimile
number as may be provided from time to time by each Party to the
other, at the time that receipt thereof has been confirmed by return
electronic communication signal that the message has been received, or
if sent by reputable international courier service three (3) days
after dispatch addressed to the Parties at the addresses outlined
hereafter. Either Party may change its facsimile number or address by
a notice given to the other Party in the manner set forth as follows:
If to NSIMG: Attn.: General Manager
75 West Center, Provo, Utah 84601 USA
(801) 345-5500
(801) 345-5999 Fax
If to NSPCT: Attn.: General Manager
Nu Skin Personal Care (Thailand) Ltd.
15th Floor Building III
SCB Park Plaza East
19 Ratchadapisek Road
Ladyao, Jatujak
Bangkok, Thailand 10900
662-937-9900
Facsimile No.: 662-937-9939
10.3 Waiver and Delay. No waiver by any Party of any breach or default
in performance by any other Party, and no failure, refusal or neglect
of any Party to exercise any right, power or option given to it
hereunder or to insist upon strict compliance with or performance of
the other Party's obligations under this Agreement, shall constitute a
waiver of the provisions of this Agreement with respect to any
subsequent breach thereof or a waiver by any Party of its right at any
time thereafter to require exact and strict compliance with the
provisions thereof.
10.4 Force Majeure. The Parties shall not be responsible for failure
to perform hereunder due to force majeure, which shall include, but
not be limited to: fires, floods, riots, strikes, labor disputes,
freight embargoes or transportation delays, shortage of labor,
inability to secure fuel, material, supplies, equipment or power at
reasonable prices or on account of shortage thereof, acts of God or of
the public enemy, war or civil disturbances, any existing or future
laws, rules, regulations or acts of any government (including any
orders, rules or regulations issued by any official or agency or such
government) affecting a Party that would delay or prohibit performance
hereunder, or any cause beyond the reasonable control of a Party. If
an event of force majeure should occur, the affected Party shall
promptly give notice thereof to the other Party and such affected
Party shall use its reasonable best efforts to cure or correct any
such event of force majeure.
10.5 Governing Law and Dispute Resolution. This Agreement shall be
governed by and construed in accordance with the laws of the State of
Utah, applicable to contracts made and to be wholly performed within
such State. Any dispute arising out of this Agreement, if not resolved
by mutual agreement of NSIMG and NSPCT within 30 days after written
notice of such dispute is given by NSIMG or NSPCT, as the case may be,
shall be resolved through arbitration with the Utah office and
division of the American Arbitration Association ("AAA"). If the
dispute is not resolved within such 30-day period, the Parties shall
petition the AAA to promptly appoint a competent, disinterested person
to act as such arbitrator. Within 30 days after the designation or
appointment of such arbitrator, such arbitrator shall be required to
commence the arbitration proceeding in the state of Utah at a time and
place to be fixed by the arbitrator, who shall so notify NSIMG and
NSPCT. Such arbitration proceeding shall be conducted in accordance
with the applicable rules and procedures of the AAA, and/or as
otherwise may be agreed by NSIMG and NSPCT and may be enforced in any
court of competent jurisdiction. The expenses and costs of such
arbitration shall be divided and borne equally by NSIMG and NSPCT;
provided, that such of NSIMG and NSPCT shall pay all fees and expenses
incurred by it in presenting or defending against such claim, right or
cause of action.
10.6 Applicability of Post-Effective Laws. The Parties agree that
neither the Vienna Convention on the International Sale of Goods nor
any such similar law, treaty or act that becomes effective during the
term of this Agreement shall be applicable to this Agreement or the
transactions contemplated hereunder.
10.7 Integrated Contract. This Agreement constitutes the entire
agreement between the Parties relating to the subject matter hereof
and supersedes all prior or contemporaneous negotiations,
representations, agreements and understanding (both oral and written)
of the Parties.
10.8 Modifications and Amendments. No supplement, modification or
amendment of this Agreement shall be binding unless it is in writing
and executed by all Parties.
10.9 Severability. To the extent that any provision of this Agreement
is (or, in the opinion of counsel mutually acceptable to all Parties,
would be) prohibited, judicially invalidated or otherwise rendered
unenforceable in any jurisdiction relevant to the Parties, such
provision shall be deemed ineffective only to the extent of such
prohibition, invalidation or unenforceability in that jurisdiction,
and only within that jurisdiction. Any prohibited, judicially
invalidated or unenforceable provision of this Agreement will not
invalidate or render unenforceable any other provision of this
Agreement, nor will such provision of this Agreement be invalidated or
rendered unenforceable in any other jurisdiction.
10.10 Counterparts and Headings. This Agreement may be executed in one
or more counterparts, each of which shall be deemed an original, but
all of which together shall constitute one and the same instrument.
All headings and captions are inserted for convenience of reference
only and shall not affect the meaning or interpretation of any
provision hereof.
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed
by their authorized representatives.
NU SKIN INTERNATIONAL MANAGEMENT GROUP, INC.
By:
Name: Blake M. Roney
Title: President
NU SKIN PERSONAL CARE (THAILAND) LTD.
By:
Name: Truman Hunt
Title: Secretary
NSI - NSPCT
TRADEMARK\TRADENAME LICENSING AGREEMENT
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS.......................................2
1.1 "Agreement".......................................2
1.2 "Commercial Materials"............................2
1.3 "Independent Distributor Network".................3
1.4 "Introductory Kit"................................3
1.5 "Know-How"........................................3
1.6 "Licensed Marks and Names"........................3
1.7 "Net Sales".......................................3
1.8 "NSI Independent Distributor".....................4
1.9 "NSI Trademark"...................................4
1.10 "NSI Tradename"..................................4
1.11 "Product"........................................4
1.12 "Proprietary Information"........................4
1.13 "Sales Aid"......................................5
1.14 "Territory"......................................5
ARTICLE II GRANT OF EXCLUSIVE LICENSE; ROYALTIES.............5
2.1 Grant of Exclusive License........................5
2.2 NSI's Interest in Licensed Marks and Names........5
2.3 Recitals of Value of Licensed Marks and Names.....6
2.4 Warranty of Title.................................6
2.5 Royalties.........................................6
ARTICLE III COMPUTATION AND PAYMENT TERMS.....................7
3.1 Royalty Payments..................................7
3.2 Records...........................................7
3.3 Payment Terms.....................................7
3.4 Default Rate......................................7
ARTICLE IV CERTAIN COVENANTS.................................8
4.1 Use of Licensed Marks and Names...................8
4.2 Modifications.....................................8
4.3 Prejudicial Use...................................9
4.4 Labels............................................9
4.5 Goodwill..........................................9
4.6 Export of Products................................9
ARTICLE V TERM............................................. 9
ARTICLE VI TERMINATION......................................10
ARTICLE VII EFFECT OF TERMINATION............................11
7.1 Obligation of NSPCT Upon Termination.............11
7.2 Survival of Obligations..........................11
7.3 Reversion of Rights..............................12
ARTICLE VIII GOVERNMENTAL APPROVALS, LAWS AND REGULATIONS......12
ARTICLE IX INFRINGEMENT; INDEMNIFICATION.....................12
ARTICLE X CONFIDENTIALITY...................................13
ARTICLE XI NATURE OF RELATIONSHIP............................14
ARTICLE XII MAINTENANCE OF TRADEMARKS; RECORDING; REGISTRA-
TION OF TRADEMARK.................................15
ARTICLE XIII MISCELLANEOUS.....................................16
13.1 Assignment......................................16
13.2 Force Majeure...................................16
13.3 Governing Law and Dispute Resolution............16
13.4 Applicability of Post-Effective Laws............17
13.5 Waiver and Delay................................17
13.6 Notices.........................................18
13.7 Integrated Contract.............................18
13.8 Modification and Amendment......................19
13.9 Severability....................................19
13.10 Counterparts and Headings......................19
TRADEMARK \ TRADENAME LICENSING AGREEMENT
THIS TRADEMARK \ TRADENAME LICENSING AGREEMENT (hereinafter the
"Agreement") is made and entered into this 12th day of March, 1997, between Nu
Skin International, Inc., a corporation organized under the laws of the State of
Utah, U.S.A., (hereinafter referred to as "NSI"), and Nu Skin Personal Care
(Thailand) Ltd., a corporation organized under the laws of Thailand and the
State of Delaware, U.S.A., (hereinafter "NSPCT"). Hereinafter, NSI and NSPCT
shall collectively be referred to as the "Parties."
W I T N E S S E T H
WHEREAS, NSI is engaged in the design, production and marketing of Products
(as defined below) and related Sales Aids (as defined below) for distribution in
the international markets of the Asia-Pacific region through a network of
independent distributors; and,
WHEREAS, NSPCT acts as the exclusive wholesale distributor of Products in
Thailand, having entered into a separate Wholesale Distribution Agreement with
Nu Skin Hong Kong, Inc., ("NSHK") dated as of the date hereof, the exclusive
regional distributor of Products and Sales Aids in the Asia-Pacific region; and,
WHEREAS, NSPCT has investigated the marketing potential for Products and
Commercial Materials (as defined below) it intends to design, manufacture,
produce and distribute to enhance further its competitiveness in the Territory
(as defined below); and,
WHEREAS, NSPCT is in compliance with the requirements of its distribution
arrangement with NSHK and received appropriate consent in accordance with the
provisions of the agreement governing their relationship pertaining to
distribution of Products and the manufacture of non- competing Products in the
Territory; and,
WHEREAS, NSPCT desires to affix NSI Trademarks (as defined below) to the
Products and to affix NSI Tradenames (as defined below) to Commercial Materials
it envisions for the Territory thereby deriving benefit from the goodwill, value
and reputation such marks and names shall lend when used to identify such
Products and Commercial Materials; and,
WHEREAS, the Parties desire to enter into a trademark and tradename
licensing agreement as set forth herein;
NOW THEREFORE, in consideration of the premises, the mutual promises,
covenants, and warranties hereinafter set forth and for other valuable
consideration, the sufficiency of which is hereby acknowledged, the Parties
agree as follows:
ARTICLE I
DEFINITIONS
For the purposes of this Agreement, the following words and terms shall
have the meaning assigned to them in this Article I:
1.1 "Agreement" shall mean this Trademark\Tradename Licensing Agreement
(together with any exhibits and schedules hereto), as the same may be modified,
amended or supplemented from time to time.
1.2 "Commercial Materials" shall mean, without limitation, any business
marquis, sign, letterhead, business card, pamphlet, brochure, magazine, flyer,
newsletter, Sales Aid, advertisement or other associated tangible materials
NSPCT uses in its activities with the Independent Distributor Network or the
public to enhance its image and competitiveness in the Territory that NSPCT has
not purchased from NSI or NSHK. Commercial Materials shall not, for the purposes
of this Agreement, include Introductory Kits (as defined below).
1.3 "Independent Distributor Network" shall mean the network of all NSI
Independent Distributors.
1.4 "Introductory Kit" shall mean those materials approved by NSI and
not purchased from NSI or NSHK that are intended for sale in conjunction with
the execution of a distributor contract to NSI Independent Distributors in the
Territory explaining the Nu Skin independent business opportunity, the
contractual relationship with NSI and the marketing support programs for the
Territory.
1.5 "Know-How" shall mean any information, including, without
limitation, any commercial or business information, lists, marketing methods,
marketing surveys, processes, specifications, quality control reports, drawings,
photographs, or any other information owned by NSI, whether or not considered
proprietary, relating to the Independent Distributor Network, NSI Independent
Distributors, the NSI distributor lists, and the NSI sales compensation plan.
1.6 "Licensed Marks and Names" shall mean any NSI Trademark,
including those affixed to any Product for purposes of identifying, promoting or
selling such Product in the Territory to any NSI Independent Distributor, and
any NSI Tradename, including those affixed to or used in connection with any
Commercial Materials produced to further NSPCT's commercial activities in the
Territory and any product formula as agreed to by the Parties from time to time.
1.7 "Net Sales" shall mean, for any period, the number of Products,
Commercial Materials and Introductory Kits (or any part thereof) sold by NSPCT
during such period, multiplied by NSPCT's then current selling price to NSI
Independent Distributors for each such Product, Commercial Material and
Introductory Kits, less applicable consumption taxes and returns or refunds
reasonably accepted and credited by NSPCT during such period.
1.8 "NSI Independent Distributor" shall mean a person or business
entity authorized by contract with NSI to distribute, as an independent
contractor Products and Sales Aids.
1.9 "NSI Trademark" shall mean any NSI service mark, trademark, logo
or device (or combination thereof) used or for which NSI has a bonafide intent
to use, registered or otherwise.
1.10 "NSI Tradename" shall mean any commercially valuable "mark,"
"name," or "device" or combination thereof whether or not similar in appearance
to any NSI Trademark of which NSI is the owner, registered or otherwise.
1.11 "Product" shall mean any of the following bearing an NSI
Trademark: any product, including, without limitation, cosmetics, nutritional
products, dietary supplements, vitamins, over-the-counter drugs, quasi-drugs,
drugs and pharmaceutical products, and other products, which NSPCT designs,
manufactures, produces and/or distributes or causes to be designed,
manufactured, produced or distributed in the Territory, that NSPCT has not
purchased from NSI or NSHK Products shall not, for the purposes of this
Agreement, include Introductory Kits.
1.12 "Proprietary Information" shall mean, without limitation, all
information other than information in published form or expressly designated by
either party in writing as non-confidential, which is directly or indirectly
disclosed to the other party, regardless of the form in which it is disclosed,
relating in any way to the following property owned by the Parties or which the
Parties have been licensed to use or sub-license: (1) proprietary technical
information related to the Licensed Marks and Names and the Introductory Kit;
(2) information respecting actual or potential customers or customer contacts
and customer sales strategies, names, addresses, phone numbers, identification
numbers, database information and its organization, unique business methods; (3)
market studies, penetration data, customers, products, contracts, copyrights,
computer programs, applications, technical data, licensed technology, patents,
inventions, procedures, methods, designs, strategies, plans, liabilities,
assets, cost revenues, sales costs, production costs, raw material sources and
other market information; (4) other sales and marketing plans, programs and
strategies; (5) trade secrets, Know-How, designs and proprietary commercial and
technical information, methods, practices, procedures, processes, formulae with
respect to manufacturing, assembly, design or processing products subject to
this Agreement and any component, part or manufacture thereof; (6) profits,
organization, employees, agents, distributors, suppliers, trademarks, tradenames
and services; (7) other business and commercial practices in general relating
directly or indirectly to the foregoing; (8) computer disks or other records or
documents, originals or copies, containing in whole or in part any of the
foregoing; and (9) tax information, returns and other financial information.
1.13 "Sales Aid" shall mean materials, in whatever form and/or design
produced to assist in the marketing of Products or the Nu Skin independent
business opportunity in the Territory.
1.14 "Territory" shall mean the country of Thailand.
ARTICLE II
GRANT OF EXCLUSIVE LICENSE; ROYALTIES
2.1 Grant of Exclusive License. NSI hereby grants to NSPCT an exclusive
license and right to use, and, with the prior written consent of NSI, to
sublicense the use of, the Licensed Marks and Names in the Territory, provided
that all such uses shall comply in all material respects with the terms of this
Agreement.
2.2 NSI's Interest in Licensed Marks and Names. NSI hereby retains legal
title to the Licensed Marks and Names for all purposes, including but not
limited to, the bringing or defending of any legal action in the Territory which
it deems reasonable to protect its rights therein. NSPCT agrees to assist NSI in
any manner to protect NSI's rights in the Licensed Marks and Names which NSI may
reasonably request. NSI shall reimburse NSPCT for any third party costs incurred
by NSPCT in providing such assistance.
2.3 Recitals of Value of Licensed Marks and Names. NSPCT recognizes and
agrees that NSI has expended considerable time, effort and resources to develop,
register, apply for registrations, maintain and enhance the value and reputation
of the Licensed Marks and Names. NSPCT further agrees it will derive a
considerable benefit from its use of the Licensed Marks and Names in the
Territory and from NSI's efforts and expenditures respecting the Licensed Marks
and Names.
2.4 Warranty of Title. NSI hereby represents and warrants that it is the
sole and exclusive owner of the Licensed Marks and Names and that to the best of
its knowledge and information no claim exists or has been made contesting the
ownership and title of said Licensed Marks and Names. 2.5 Royalties. As
compensation for the exclusive licenses granted pursuant to the terms of this
Agreement, NSPCT shall pay to NSI a royalty equal to five percent (5%) (or as
otherwise mutually agreed upon by the Parties) of its Net Sales in the Territory
during the entire term of this Agreement. If NSPCT elects to produce and/or
purchase any Products from a third party rather than through or from NSI, and
such Product is based on or contains NSI proprietary information, formulas or
ingredients, and such Product bears Licensed Marks and Names, the applicable
royalty shall be eight percent (8%) of Net Sales, or as otherwise mutually
agreed upon by the Parties.
ARTICLE III
COMPUTATION AND PAYMENT TERMS
3.1 Royalty Payments.
3.1(a) Within 30 days following the close of each month, NSPCT shall
deliver to NSI, by electronic transmission or such other medium as the
parties shall agree from time to time, a statement of its Net Sales
during such month in the Territory and a computation of the royalties
payable hereunder. NSPCT shall make payment of such royalties in
accordance with Section 3.3 hereof concurrently with the delivery of
such statement.
3.1(b) For purposes of computing the royalty, Products and Commercial
Materials shall be considered sold when recognized for accounting
purposes as a sale by NSPCT as per U.S. GAAP.
3.1(c) The Parties agree that the royalty shall remain competitive
within the Territory and shall be negotiated and determined on an
arm's length basis and may be adjusted from time to time as agreed by
the Parties in writing. 3.2 Records. Each Party shall keep complete
and accurate records of its activities under this Agreement which
shall be open to inspection by authorized representatives of the other
party at any reasonable time.
3.3 Payment Terms. Payments made by NSPCT to NSI under this Agreement shall
be payable in Thailand Baht. Payments shall be made either directly to NSI in
immediately available funds by wire transfer to an account designated by NSI, or
by such other means of payment acceptable to NSI from time to time.
3.4 Default Rate. Without limiting any of NSI's other rights and remedies
under this Agreement, amounts outstanding under the terms of this Agreement not
paid within ninety (90) days from the date due and payable, and as set forth in
the payment provisions herein, shall bear interest at the prime interest rate as
reported in the Wall Street Journal plus two percent (2%) for the full period
outstanding. Whether or not interest charges are actually levied is at the
discretion of NSI.
ARTICLE IV
CERTAIN COVENANTS
4.1 Use of Licensed Marks and Names. NSPCT may use the Licensed
Marks and Names only in accordance with the terms of this Agreement.
4.1(a) The quality and performance of all Products and Commercial
Materials bearing the Licensed Marks and Names shall be in accordance
with the standards, specifications and instructions approved by NSI;
and,
4.1(b) NSI shall have the right to inspect the premises of NSPCT and
those of any of NSPCT's subcontractors at which Product(s) are being
manufactured, at reasonable times, and also to receive samples of such
Product(s), in accordance with a reasonable schedule to be established
promptly between NSI and NSPCT; and,
4.1(c) NSPCT agrees to correct, as promptly as possible, any defects
in the Product(s) and/or manufacturing thereof brought to NSPCT's
attention by NSI or otherwise; and, 4.1(d) NSPCT agrees to submit to
NSI for prior approval, which approval will not be unreasonably
withheld, labels, packaging, advertising and promotional materials, in
relation to which any of the Licensed Marks and Names are proposed to
be used, including the marking legends intended to be used in relation
thereto.
4.2 Modifications. NSPCT shall make no modification to the Licensed Marks
and Names without the express, prior written consent of NSI.
4.3 Prejudicial Use. NSPCT shall not use the Licensed Marks and Names in
any way that will prejudice NSI's rights therein.
4.4 Labels. At the request of NSI, labels or packaging which bear any of
the Licensed Marks and Names shall also bear an asterisk placed immediately
above the end of the mark to reference a statement which shall appear underneath
the mark and shall contain the words "*TM Registered - Licensed by Nu Skin
International, Inc." (where the mark is registered) or "*TM Licensed by Nu Skin
International, Inc." (where the mark is not registered).
4.5 Goodwill. All goodwill generated by use of the Licensed Marks and Names
shall inure to NSI, and, upon termination of this Agreement, NSPCT shall not
have any claim against NSI for compensation for loss of distribution rights,
loss of goodwill or any similar loss.
4.6 Export of Products. The Licensee shall not export any product on which
any Licensed Mark or Name is affixed to any country outside the Territory
without the prior written consent of NSI.
ARTICLE V
TERM
Subject to Article VI hereof, this Agreement shall be for a term ending on
December 31, 2016 provided, however, that this Agreement is subject to
renegotiation after December 31, 2001 in the event that (i) Blake M. Roney,
Nedra D. Roney, Sandie N. Tillotson, Craig Tillotson, Craig Bryson, Steven J.
Lund, Brooke B. Roney, Kirk V. Roney and Keith R. Halls (the "NSI
Stockholders"), or members of their families, or trusts or foundations
established by or for the benefit of the NSI Stockholders or members of their
families on a combined basis no longer beneficially own a majority of the voting
stock of Nu Skin Asia Pacific, Inc. ("Nu Skin Asia Pacific"), or (ii) the NSI
Stockholders, or members of their families, or trusts or foundations established
by or for the benefit of the NSI Stockholders or members of their families on a
combined basis no longer beneficially own a majority of the voting stock of NSI.
ARTICLE VI
TERMINATION
6.1 This Agreement may be terminated by either Party immediately or at any
time after the occurrence of any of the following events:
(a) the other Party shall commence any case, proceeding or other
action (i) under any existing or future law of any jurisdiction,
domestic or foreign, relating to bankruptcy, insolvency,
reorganization or relief of debtors, seeking to have an order for
relief entered with respect to it, or seeking to adjudicate it a
bankrupt or insolvent, or seeking reorganization, arrangement,
adjustment, winding-up, liquidation, dissolution, compensation or
other relief with respect to it or its debts, or (ii) seeking
appointment of a receiver, trustee, custodian or other similar action;
or (b) there shall be commenced against the other Party any case,
proceeding or other action of a nature referred to in clause (a) above
which (A) results in the entry of an order for relief or any such
adjudication or appointment or (B) remains undismissed, undischarged
or unbonded for a period of 90 days. Events described in clauses (a)
and (b) of this Section 12.1(a) shall be referred to as a "Bankruptcy
Event". If a Bankruptcy Event occurs, all amounts owing under this
Agreement shall become immediately due and payable, without any notice
thereof; or (c) if the other Party causes or allows a judgment in
excess of twenty-five million dollars ($25,000,000) to be entered
against involuntarily or allows a lien, security interest, or other
encumbrance to attach to its assets which secures an amount in excess
of twenty-five million dollars ($25,000,000); or
6.2 This Agreement may be terminated by either Party, if the other Party is
in default in the performance of any material obligation under this Agreement
and such default has not been cured within sixty (60) days after receipt of
written notice of such default by the defaulting Party; or
6.3 This Agreement may be terminated by NSI if Nu Skin Asia Pacific shall
no longer own or control a majority of the voting interest in NSPCT, with such
termination to take effect thirty (30) days after NSI gives written notice to
NSPCT of the occurrence of a change in control and its intention to terminate
this Agreement based thereon.
ARTICLE VII
EFFECT OF TERMINATION
7.1 Obligation of NSPCT Upon Termination. Upon termination of this
Agreement by either Party, NSPCT agrees to (a) sell, destroy or otherwise
dispose of all Products and Commercial Materials bearing the Licensed Marks and
Names within 45 days after such termination; (b) immediately discontinue use of
the Licensed Marks and Name in any form and not adopt in place thereof any word
or design that is confusingly similar thereto; and (c) return to NSI all
manuals, drawings, and standards or any other documents provided by NSI to NSPCT
relating to the use of the Licensed Marks and Names.
7.2 Survival of Obligations. The obligations of the Parties to pay any sums
which are due and payable as of the expiration or termination of this Agreement
and their obligations under Section 2.2, Article IX and Article X hereof shall
survive the expiration or termination of this Agreement.
7.3 Reversion of Rights. Upon termination of this Agreement, all rights and
licenses herein granted to NSPCT shall immediately cease and shall revert to
NSI, and NSPCT shall cease representing to any third party that it has any right
to use, assign, convey or otherwise transfer the Licensed Marks and Names.
ARTICLE VIII
GOVERNMENTAL APPROVALS, LAWS AND REGULATIONS
8.1 NSPCT agrees to obtain, or cause to be obtained, at its sole cost
and expense, any governmental approval and make, or cause to be made, any
filings or notifications required under all applicable laws, regulations and
ordinances of the Territory to enable this Agreement to become effective or to
enable any payment pursuant to the provisions of this Agreement to be made.
NSPCT agrees to keep NSI informed of the progress in obtaining all such
government approvals.
8.2 Each party agrees to refrain from any action that will cause the other
party to be in violation of any applicable law, regulation, or ordinance of the
Territory or the United States or elsewhere or any international convention or
bilateral or multilateral treaty to which the Territory or the United States is
a signatory, including, without limitation, the U.S. Foreign Corrupt Practices
Act of 1977, the U.S. Export Control Laws, and the U.S. Anti-Boycott laws.
ARTICLE IX
INFRINGEMENT; INDEMNIFICATION
NSI hereby represents and warrants that, as of the date hereof, there are
no infringement or misappropriation suits pending or filed or, to its knowledge,
threatened against NSI within the Territory that relate to the Licensed Marks
and Names and NSI is not presently aware of any such infringement or
misappropriation. NSI shall indemnify and hold NSPCT harmless from and against
all claims, actions, suits, proceedings, losses, liabilities, costs, damages and
attorneys' fees in respect of a third party claim alleging infringement or
misappropriation by NSPCT in respect of its use of the Licensed Marks and Names
in the Territory; provided that NSPCT shall give NSI prompt written notice of
any such claim, action, suit or proceeding and, without limiting the generality
of Section 2.2 hereof, shall cooperate with NSI in the defense of any such
claim, action, suit or proceeding. NSI shall have the right to select counsel in
any such claim, action, suit or proceeding. In the event that any such claim,
action, suit or proceeding is successful, NSI shall use reasonable efforts to
make such changes in the Licensed Marks and Names to permit NSPCT to continue to
use of the Licensed Marks and Names free and clear of all infringement and
misappropriation. NSPCT shall give NSI prompt written notice of any infringement
or misappropriation of the Licensed Marks and Names by any third party. NSI
shall have the sole right to initiate any and all legal proceedings against any
such third party and, without limiting the generality of Section 2.2 hereof,
NSPCT shall cooperate with NSI in the pursuit of any such proceeding. NSI shall
retain any damage award obtained from such third party.
ARTICLE X
CONFIDENTIALITY
All Proprietary Information or other non-public or proprietary business or
technical information owned or used by NSI or NSPCT and supplied to or acquired
by the other whether in oral or documentary form (the "Confidential
Information") shall be supplied and acquired in confidence and shall be solely
for the use of the receiving party pursuant to this Agreement and such party
shall keep the Confidential Information confidential and shall not disclose the
same, at any time during the term of this Agreement or after its termination,
except to its employees, or its affiliates, or its affiliates' employees for the
purposes of its business in accordance with this Agreement and except as may be
required by law; provided that if the receiving party determines that a
disclosure is required by law, the receiving party shall notify the disclosing
party in order to give the disclosing party an opportunity to seek an injunction
or otherwise attempt to keep the Confidential Information confidential. The
receiving party shall, at the request of the disclosing party, destroy or return
the Confidential Information without retaining copies if, as and when this
Agreement is terminated or expires. For purposes of this Agreement, the term
"Confidential Information" shall not include information or documents that (i)
become generally available to the public other than as a result of a disclosure
by the receiving party, (ii) was otherwise lawfully available to the receiving
party, or (iii) was generated independently by the receiving party. The
provisions of this Article shall survive termination of this Agreement.
ARTICLE XI
NATURE OF RELATIONSHIP
The relationship of NSPCT and NSI shall be and at all times remain,
respectively, that of Licensee and Licensor. Nothing contained or implied in
this Agreement shall be construed to constitute either party as the legal
representative or agent of the other or to constitute or construe the Parties as
partners, joint venturers, co-owners or otherwise as participants in a joint or
common undertaking. Neither party is authorized to conclude any contract or
agreement or make any commitment, representation or warranty that binds the
other or otherwise act in the name of or on behalf of the other.
ARTICLE XII
MAINTENANCE OF TRADEMARKS; RECORDING; REGISTRATION OF
TRADEMARK
NSI covenants to use its best efforts to maintain the registrations of the
NSI Trademarks currently registered in the Territory as set forth in Exhibit A
hereto. NSI, in its sole discretion, shall have the right to record this
Agreement or proof thereof, or to enter NSPCT as a registered user in the
Territory. NSPCT agrees to cooperate, as reasonably requested by NSI, in
arranging for such recordings or entries, or in bearing or canceling such
recordings or entries in the event of amendments to or termination of this
Agreement for any reason. Upon termination of this Agreement for any reason, the
Parties agree to do everything necessary to effect cancellation of the record of
NSPCT as a registered user of the NSI Trademarks in the Territory.
At the request of NSPCT, NSI shall file applications in the Territory for
the registration of all new NSI Trademarks that NSPCT intends to use in the
Territory. If any mark used by NSI in the United States of America with respect
to certain products is used by NSPCT in the Territory in relation to similar
products, then, whether or not the mark is registered in the Territory, NSPCT
shall not claim any proprietary interest in such mark. If any of such marks are
immediately registrable in the Territory, NSPCT will cooperate with NSI in
filing an application for registration of the marks in the name of NSI. If any
such marks are not immediately capable of registration because they lack
distinctiveness, then at any time when in the opinion of legal counsel for NSI
the use of the marks by NSPCT has conferred on them sufficient distinctiveness
to permit registration in the Territory, NSPCT shall, when requested by NSI, do
all things necessary and execute all documents required to register such marks
in the Territory and assign the eventual registrations to NSI who shall
reimburse NSPCT for the cost of registration and assignment, but shall not be
obligated to make any other payment in consideration for the assignment.
ARTICLE XIII
MISCELLANEOUS
13.1 Assignment. This Agreement shall be binding on and inure to the
benefit of the heirs, successors, assigns and beneficiaries of the Parties;
provided that neither party may assign this Agreement or any rights or
obligations hereunder, whether by operation of law or otherwise, without the
prior written consent of the other party through its authorized representative.
Any such attempted assignment without the written consent provided herein shall
be void and unenforceable.
13.2 Force Majeure. The Parties shall not be responsible for failure
to perform hereunder due to force majeure, which shall include, but not be
limited to: fires, floods, riots, strikes, labor disputes, freight embargoes or
transportation delays, shortage of labor, inability to secure fuel, material,
supplies, equipment or power at reasonable prices or on account of shortage
thereof, acts of God or of the public enemy, war or civil disturbances, any
existing or future laws, rules, regulations or acts of any government (including
any orders, rules or regulations issued by any official or agency or such
government) affecting a party that would delay or prohibit performance
hereunder, or any cause beyond the reasonable control of a party. If an event of
force majeure should occur, the affected party shall promptly give notice
thereof to the other party and such affected party shall use its reasonable best
efforts to cure or correct any such event of force majeure.
13.3 Governing Law and Dispute Resolution. This Agreement shall be governed
by and construed in accordance with the laws of the State of Utah, applicable to
contracts made and to be wholly performed within such State. Any dispute arising
out of this Agreement, if not resolved by mutual agreement of NSI and NSPCT
within 30 days after written notice of such dispute is given by NSPCT or NSI, as
the case may be, shall be resolved through arbitration with the Utah office and
division of the American Arbitration Association ("AAA"). If the dispute is not
resolved within such 30-day period, the Parties shall petition the AAA to
promptly appoint a competent, disinterested person to act as such arbitrator.
Within 30 days after the designation or appointment of such arbitrator, such
arbitrator shall be required to commence the arbitration proceeding in the state
of Utah at a time and place to be fixed by the arbitrator, who shall so notify
NSI and NSPCT. Such arbitration proceeding shall be conducted in accordance with
the applicable rules and procedures of the AAA, and/or as otherwise may be
agreed by NSI and NSPCT. The decision of the arbitrator shall be final and
binding upon NSI and NSPCT and may be enforced in any court of competent
jurisdiction. The expenses and costs of such arbitration shall be divided and
borne equally by NSI and NSPCT; provided, that each of NSI and NSPCT shall pay
all fees and expenses incurred by it in presenting or defending against such
claim, right or cause of action.
13.4 Applicability of Post-Effective Laws. The Parties agree that neither
the Vienna Convention on the International Sale of Goods nor any such similar
law, treaty or act that becomes effective during the term of this Agreement
shall be applicable to this Agreement or the transactions contemplated
hereunder.
13.5 Waiver and Delay. No waiver by either party of any breach or default
in performance by the other party, and no failure, refusal or neglect of either
party to exercise any right, power or option given to it hereunder or to insist
upon strict compliance with or performance of the other party's obligations
under this Agreement, shall constitute a waiver of the provisions of this
Agreement with respect to any subsequent breach thereof or a waiver by either
party of its right at any time thereafter to require exact and strict compliance
with the provisions thereof.
13.6 Notices. All notices, requests and other communications hereunder
shall be in writing and shall be deemed to have been duly given, if delivered by
hand, or if communicated by facsimile, cable or similar electronic means to the
facsimile number or cable identification number as previously provided by each
party to the other, at the time that receipt thereof has been confirmed by
return electronic communication or signal that the message has been received, or
if mailed, ten (10) days after dispatch by registered airmail, postage prepaid,
from any post office addressed as follows:
If to NSPCT: General Manager
Nu Skin Personal Care (Thailand) Ltd.
15th Floor Building III
SCB Park Plaza East
19 Ratchadapisek Road
Ladyao, Jatujak
Bangkok, Thailand 10900
Facsimile Number: 662-937-9939
If to NSI: General Manager
Nu Skin International, Inc.
75 West Center Street
Provo, Utah 84601, U.S.A.
Facsimile Number: (801) 345-5999
Either party may change its facsimile number, cable identification number
or address by a notice given to the other party in the manner set forth above.
13.7 Integrated Contract. This Agreement constitutes the entire agreement
between the Parties relating to the subject matter hereof and supersedes all
prior or contemporaneous negotiations, representations, agreements and
understandings (both oral and written) of the Parties.
13.8 Modification and Amendment. No supplement, modification or amendment
of this Agreement shall be binding unless it is in writing and executed by both
of the Parties.
13.9 Severability. To the extent that any provision of this Agreement is
(or in the opinion of counsel mutually acceptable to both Parties would be)
prohibited, judicially invalidated or otherwise rendered unenforceable in any
jurisdiction, such provision shall be deemed ineffective only to the extent of
such prohibition, invalidation or unenforceability in that jurisdiction, and
only within that jurisdiction. Any prohibited, judicially invalidated or
unenforceable provision of this Agreement will not invalidate or render
unenforceable any other provision of this Agreement, nor will such provision of
this Agreement be invalidated or rendered unenforceable in any other
jurisdiction.
13.10 Counterparts and Headings. This Agreement may be executed in one or
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument. All headings and captions
are inserted for convenience of reference only and shall not affect the meaning
or interpretation of any provision hereof.
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed
in the United States of America by their respective duly authorized
representatives as of the day and year first-above written.
NU SKIN INTERNATIONAL, INC. NU SKIN PERSONAL CARE (THAILAND) LTD.
BY: BY:
Blake M. Roney Truman Hunt
ITS: President ITS: Secretary
NSI - NSPCT
LICENSING AND SALES AGREEMENT
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS........................................2
1.1 "Agreement"........................................2
1.2 "Bonus Payments"...................................2
1.3 "Commission Expense................................2
1.4 "Copyrights" ......................................2
1.5 "Distributor Contract".............................3
1.6 "Distributor Lists"................................3
1.7 "Fixed Commission Expense".........................3
1.8 "Independent Distributor Network"..................3
1.9 "Introductory Kit".................................3
1.10 "Know-How".........................................3
1.11 "Licensed Property"................................3
1.12 "Net Sales"........................................3
1.13 "NSI Independent Distributor"......................4
1.14 "Products".........................................4
1.15 "Proprietary Information"..........................4
1.16 "Resident NSI Independent Distributor".............5
1.17 "Sales Compensation Plan"..........................5
1.18 "Sales Aids".......................................5
1.19 "Territory".......................................5
ARTICLE II GRANT OF LICENSE AND PARTIAL ASSIGNMENT OF
OBLIGATIONS; LICENSE FEES..........................5
2.1 Grant of License...................................5
2.2 Assignment of Obligations..........................5
2.3 NSI's Interest in Licensed Property................5
2.4 Recitals of Value of Licensed Property.............6
2.5 Warranty of Title..................................6
2.6 Modifications......................................6
2.7 License Fee........................................6
ARTICLE III COMPUTATION AND PAYMENT TERMS......................6
3.1 Bonus Payments.....................................6
3.2 License Fee........................................8
3.3 Records............................................9
3.4 Payments to NSI....................................9
3.5 Payments to NSPCT..................................9
3.6 Default Rate.......................................9
ARTICLE IV CERTAIN OBLIGATIONS OF THE PARTIES UNDER
THE AGREEMENT......................................9
4.1 Certain Obligations, Rights and Duties of NSI......9
4.2 Certain Obligations, Rights and Duties of NSPCT...10
ARTICLE V INTRODUCTORY KIT SALES............................11
5.1 Agreement to Purchase Introductory Kits...........11
5.2 Pricing...........................................12
5.3 Payment Method....................................12
5.4 Quantities........................................12
5.5 Quality of Introductory Kits......................12
5.6 Merchantability...................................12
ARTICLE VI GOVERNMENTAL APPROVALS, LAWS AND REGULATIONS......12
6.1 Government Approvals..............................12
6.2 Compliance with Laws..............................13
6.3 Compliance of Licensed Property...................13
ARTICLE VII TERM AND TERMINATION...................................13
7.1 Term..................................................13
7.2 Termination...........................................14
7.3 Termination on Default................................15
7.4 Termination on Change of Control......................15
7.5 Survival of Obligations...............................15
7.6 Reversion of Rights...................................15
ARTICLE VIII INFRINGEMENT; INDEMNIFICATION...................15
ARTICLE IX NATURE OF RELATIONSHIP..........................16
ARTICLE X CONFIDENTIALITY.................................17
ARTICLE XI MAINTENANCE OF LICENSED PROPERTY; RECORDING.....18
ARTICLE XII MISCELLANEOUS...................................18
12.1 Assignment......................................18
12.2 Force Majeure...................................18
12.3 Governing Law and Dispute Resolution............19
12.4 Applicability of Post-Effective Law.............19
12.5 Waiver and Delay................................20
12.6 Notices.........................................20
12.7 Integrated Contract.............................21
12.8 Modifications and Amendments....................21
12.9 Severability....................................21
12.10 Counterparts and Headings.......................21
LICENSING AND SALES AGREEMENT
THIS LICENSING AND SALES AGREEMENT (hereinafter the "Agreement") is made
and entered into this 12th day of March, 1997, between Nu Skin International,
Inc., a corporation organized under the laws of the State of Utah, U.S.A.
(hereinafter referred to as "NSI"), and Nu Skin Personal Care (Thailand) Ltd., a
corporation organized under the laws of Thailand and the State of Delaware,
U.S.A. (hereinafter "NSPCT"). Hereinafter, NSI and NSPCT shall collectively be
referred to as the "Parties."
W I T N E S S E T H
WHEREAS, NSI is engaged in the design, production and marketing of products
and related sales aids, for multi-national distribution through a network of
independent distributors; and
WHEREAS, NSPCT desires to act as the exclusive wholesale distributor of NSI
products in Thailand, having entered a separate written Wholesale Distribution
Agreement with Nu Skin Hong Kong, Inc., the exclusive regional distributor of
such products and sales aids in the Asia-Pacific region; and
WHEREAS, NSI and NSPCT desire to implement NSI's Independent Distributor
Network (as defined below) to promote sales of products and sales aids; and
WHEREAS, NSI desires to further develop and enlarge its Independent
Distributor Network in the country of Thailand with the assistance of NSPCT, for
their mutual benefit, in accordance with the terms and conditions hereinafter
provided; and
WHEREAS, NSPCT recognizes and agrees that NSI has expended considerable
time, effort and resources to develop and maintain the Licensed Property (as
hereafter defined) and NSPCT further agrees it will derive a considerable
benefit from its use of the Licensed Property in the Territory and from NSI's
efforts and expenditures respecting the Licensed Property; and
WHEREAS, the Parties wish to enter into a Licensing and Sales Agreement as
set forth herein;
NOW THEREFORE, in consideration of the premises, the mutual promises,
covenants, and warranties hereinafter set forth and for other valuable
consideration, the sufficiency of which is hereby acknowledged, the Parties
agree as follows:
ARTICLE I
DEFINITIONS
For the purposes of this Agreement, the following words and terms shall
have the meaning assigned to them in this Article I:
1.1 "Agreement" shall mean this Licensing and Sales Agreement (together
with any exhibits and schedules hereto), as the same may be modified, amended or
supplemented from time to time.
1.2 "Bonus Payments" shall mean, for any NSI Independent Distributor, all
monetary obligations due to such Distributor accrued under the terms of the
Sales Compensation Plan and such Distributor's Distributor Contract with NSI.
1.3 "Commission Expense" shall mean all direct expenses of NSI incurred in
operating, managing, and executing the Sales Compensation Plan. These expenses
include, but are not limited to amounts paid to NSI Independent Distributors as
Bonus Payments as well as NSI's operational costs associated with the
calculation of these monthly payments.
1.4 "Copyrights" shall mean any and all protectable software, programs,
databases, source codes and applications owned by NSI or which NSI has a right
to use, license or sub-license, relating directly or indirectly to the
Independent Distributor Network, Distribution Lists or the Sales Compensation
Plan.
1.5 "Distributor Contract" shall mean, for any NSI Independent Distributor,
its contract with NSI pursuant to which NSI authorizes it to distribute NSI's
Products and Sales Aids.
1.6 "Distributor Lists" shall mean any and all individual or accumulated
name, address, identification number, sponsor name and/or similar lists of all
present or future NSI Independent Distributors expressed in any medium.
1.7 "Fixed Commission Expense" shall mean, for any period, forty-two
percent (42%) of the aggregate amount (in Baht) of Net Sales of Products by
NSPCT during such period.
1.8 "Independent Distributor Network" shall mean the network of all NSI
Independent Distributors.
1.9 "Introductory Kit" shall mean those materials purchased by an NSI
Independent Distributor upon the execution of a Distributor Contract which
explains the Sales Compensation Plan and other NSI policies, procedures and
programs, the contractual relationship with NSI and the marketing support
programs for the Territory.
1.10 "Know-How" shall mean any information, including, without limitation,
any commercial or business information, lists, marketing methods, marketing
surveys, processes, specifications, quality control reports, drawings,
photographs, or any other information owned by NSI, whether or not considered
proprietary, relating to the Independent Distributor Network, the Distributor
Lists, and the Sales Compensation Plan.
1.11 "Licensed Property" shall mean the Independent Distributor Network,
the Distributor Lists, the Sales Compensation Plan, the Copyrights, and the
associated Know-How.
1.12 "Net Sales" shall mean, for any period, the number of Products and
Sales Aids sold by NSPCT to NSI Independent Distributors during such period,
multiplied by NSPCT's then current selling price to NSI Independent Distributors
for each such Product or Sales Aids less applicable value added taxes and
returns or refunds reasonably accepted and credited by NSPCT during such period.
1.13 "NSI Independent Distributor" shall mean a person or business entity
who has entered into a Distributor Contract.
1.14 "Products" shall mean those goods sold by NSI or NSPCT which carry a
point value within the Sales Compensation Plan.
1.15 "Proprietary Information" shall mean, without limitation, all
information other than information in published form or expressly designated by
either party in writing as non-confidential, which is directly or indirectly
disclosed to the other party, regardless of the form in which it is disclosed,
relating in any way to the following property owned by the Parties or which the
Parties have been licensed to use or sub-license: (1) proprietary technical
information related to the Licensed Property and the Introductory Kit; (2)
information respecting actual or potential customers or customer contacts and
customer sales strategies, names, addresses, phone numbers, identification
numbers, database information and its organization, unique business methods; (3)
market studies, penetration data, customers, products, contracts, copyrights,
computer programs, applications, technical data, licensed technology, patents,
inventions, procedures, methods, designs, strategies, plans, liabilities,
assets, cost revenues, sales costs, production costs, raw material sources and
other market information; (4) other sales and marketing plans, programs and
strategies; (5) trade secrets, Know-How, designs and proprietary commercial and
technical information, methods, practices, procedures, processes, formulae with
respect to manufacturing, assembly, design or processing products subject to
this Agreement and any component, part or manufacture thereof; (6) profits,
organization, employees, agents, distributors, suppliers, trade marks, trade
names and services; (7) other business and commercial practices in general
relating directly or indirectly to the foregoing; and, (8) computer disks or
other records or documents, originals or copies, containing in whole or in part
any of the foregoing.
1.16 "Resident NSI Independent Distributor" shall mean any NSI Independent
Distributor whose country of residence as shown on the records of NSI is in the
Territory.
1.17 "Sales Compensation Plan" shall mean the method employed by NSI to
calculate Bonus Payments paid to the Independent Distributor Network upon the
sale of Products.
1.18 "Sales Aids" shall mean materials, in whatever form and/or design
produced to assist in the marketing of Products.
1.19 "Territory" shall mean the country of Thailand.
ARTICLE II
GRANT OF LICENSE AND PARTIAL
ASSIGNMENT OF OBLIGATIONS; LICENSE FEES
2.1 Grant of License. Subject to the terms and conditions of this
Agreement, NSI hereby grants to NSPCT an exclusive license to use the Licensed
Property in the Territory; provided that all such uses shall comply in all
material respects with the terms of this Agreement and; provided further that
NSPCT shall not have the right to grant any right, title, use or sublicense for
the Licensed Property.
2.2 Assignment of Obligations. NSI hereby transfers and assigns to NSPCT
its obligations to make Bonus Payments to Resident Independent Distributors
under their Distributor Contracts and the Sales Compensation Plan and NSPCT
hereby accepts such transfer and assignment and assumes such obligations.
2.3 NSI's Interest in Licensed Property. NSI hereby retains legal title to
the Licensed Property for all purposes, including but not limited to, the
bringing or defending of any legal action in the Territory which it deems
reasonable to protect its rights therein. NSPCT agrees to assist NSI in any
manner to protect NSI's rights in the Licensed Property which NSI may reasonably
request. NSI shall reimburse NSPCT for any third party costs incurred by NSPCT
in providing such assistance.
2.4 Recitals of Value of Licensed Property. NSPCT recognizes and agrees
that NSI has expended considerable time, effort and resources to develop,
maintain and enhance the Licensed Property. NSPCT further agrees it will derive
a considerable benefit from its use of the Licensed Property in the Territory
and from NSI's efforts and expenditures respecting the Licensed Property.
2.5 Warranty of Title. NSI hereby warrants and represents that it is the
sole and exclusive owner of the Licensed Property and that to the best of its
knowledge and information no claim exists or has been made contesting the
ownership and title of said Licensed Property.
2.6 Modifications. NSPCT shall make no modification to the Licensed
Property without the express, prior written consent of NSI.
2.7 License Fee. As compensation for the exclusive licenses granted
pursuant to the terms of this Agreement, NSPCT shall pay to NSI a license fee
equal to four percent (4%) of its Net Sales of Products, Sales Aids and other
items (exclusive of Introductory Kits and goods sold on consignment) sold to NSI
Independent Distributors (the "License Fee").
ARTICLE III
COMPUTATION AND PAYMENT TERMS
3.1 Bonus Payments. Pursuant to Section 2.2 hereof, NSPCT agrees to make
Bonus Payments to Resident Independent Distributors to which they are entitled
pursuant to their Distributor Contracts. The Parties further agree to settle the
difference between the amount of such Bonus Payments paid by NSPCT in each month
and the Fixed Commission Expense in such month. The procedures for such payment
and settlement are as follows:
3.1(a) Within eight (8) days following the close of each month, NSPCT shall
deliver to NSI, by electronic transmission or such other medium as the
Parties shall agree to from time to time, a statement of NSPCT's Net Sales
during such month (including a detail of sales to each NSI Independent
Distributor to which sales were made during such month) and of such other
items as NSI shall reasonably request from time to time (the "Detailed
Sales Report").
3.1(b) By the later of twelve (12) days after receipt of the Detailed Sales
Report or twenty (20) days after the end of such month, NSI shall deliver
to NSPCT, by electronic transmission or such other medium as the parties
shall agree to from time to time, a calculation of the Bonus Payments due
to Resident Independent Distributors under their Distributor Contracts for
such month (the "Monthly Bonus Amount"), a calculation of the Fixed
Commission Expense for such month and such other items as NSPCT shall
reasonably request from time to time (the "Bonus Statement").
3.1(c) By the later of ten (10) days after receipt of the Bonus Statement
or thirty (30) days after the end of such month, NSPCT shall pay Bonus
Payments due to the Resident Independent Distributors. Concurrently with or
promptly after such payment NSPCT shall deliver to NSI (i) if the aggregate
Monthly Bonus Amounts paid to all Resident Independent Distributors is less
than the Fixed Commission Expense for such month, payment of the deficiency
in accordance with the procedures set forth in Section 3.4 hereof, or (ii)
if the aggregate Monthly Bonus Amounts paid to all Resident Independent
Distributors exceeds the Fixed Commission Expense for such month, an
invoice to NSI for reimbursement of such excess amount. In the event NSPCT
shall have given NSI an invoice for reimbursement of excess Bonus Payments
as set forth in clause (ii) above, NSI shall pay the amount so invoiced to
NSPCT pursuant to the procedures set forth in this Section 3.1 and Section
3.5 below within 10 days after receipt thereof.
3.1(d) The Parties acknowledge that the percentage used in calculating the
Fixed Commission Expense has been set on the basis of NSI's historical
experience. The Parties agree that the percentage used in calculating the
Fixed Commission Expense shall remain consistent with actual Commission
Expense as a percentage of sales of Products to NSI Independent
Distributors, shall be negotiated and determined on an arm's length basis,
and may be adjusted from time to time as agreed by the Parties in writing
based upon an annual review thereof.
3.2 License Fee. The procedures for payment of the License Fee payable
hereunder are as follows:
3.2(a) Within 30 days following the close of each month, NSPCT shall
deliver to NSI, by electronic transmission or such other medium as the
parties shall agree to from time to time, a statement of its Net Sales
during such month in the Territory and a computation of the License Fee
payable under Section 2.7 hereof. NSPCT shall make payment of such License
Fee in accordance with Section 3.4 hereof concurrently with delivery of
such statement.
3.2(b) For purposes of computing the License Fee, Products and Sales Aids
shall be considered sold when recognized for accounting purposes as a sale
by NSPCT as per U.S. GAAP.
3.2(c) The Parties agree that the License Fee shall remain competitive
within the market and shall be negotiated and determined on an arm's length
basis and may be adjusted from time to time as agreed by the Parties in
writing. 3.3 Records. Each Party shall keep complete and accurate records
of its compliance with its obligations under this Agreement which shall be
open to inspection by authorized representatives of the other Party at any
reasonable time.
3.4 Payments to NSI. Payments made by NSPCT to NSI under this Agreement
shall be payable in Thailand Baht. Payments shall be made either directly to NSI
in immediately available funds by wire transfer to an account designated by NSI
or by such other means of payment acceptable to NSI from time to time.
3.5 Payments to NSPCT. Payments made by NSI to NSPCT under this Agreement
shall be payable in Thailand Baht. Payments shall be made either directly to
NSPCT in immediately available funds by wire transfer to an account designated
by NSPCT or by such other means of payment acceptable to NSPCT from time to
time.
3.6 Default Rate. Without limiting any of NSI's other rights and remedies
under this Agreement, amounts outstanding under the terms of this Agreement not
paid within 60 days from the date due and payable, and as set forth in the
payment provisions herein, shall bear interest at the prime interest rate as
reported in the Wall Street Journal plus two percent (2%) for the full period
outstanding.
ARTICLE IV
CERTAIN OBLIGATIONS OF THE PARTIES UNDER THE AGREEMENT
4.1 Certain Obligations, Rights and Duties of NSI. NSI agrees that, in
addition to its other obligations under this Agreement, NSI will maintain and
provide support for the Sales Compensation Plan. NSI agrees, among other things:
(1) to maintain a computer system, including hardware, software, data links,
computer peripherals, printers, etc. to adequately fulfill NSI's obligations
under the Sales Compensation Plan; (2) to provide necessary training and support
to NSPCT relating to the Resident Independent Distributors, including
information relating to training methods, motivational strategies, convention
and event planning, technical policies and procedure knowledge, etc; (3) to
receive and use NSPCT's sales information to compute the correct and appropriate
payments to the Resident Independent Distributors as set forth in Section 3.1(b)
hereof; (4) in consultation with NSPCT, to discipline NSI Independent
Distributors as it deems necessary to help insure the reputation of NSI; (5) to
maintain a record of the Distributor Contracts and provide such information to
NSPCT, as reasonably requested; and (6) to perform any other function or provide
the necessary support to comply with the terms of this Agreement and to
otherwise support and maintain the Independent Distributor Network within the
Territory.
4.2 Certain Obligations, Rights and Duties of NSPCT. In addition to its
other obligations under this Agreement NSPCT agrees, among other things: (1) to
maintain, at its sole cost and expense, such facilities and other places of
business within the Territory necessary to effect the purposes and intentions of
this Agreement and to bear all costs and expenses it incurs in the negotiation,
memorialization, execution and performance of all leases, rentals, equipment,
salaries, taxes, licenses, insurance, permits, telephone, telegraph,
promotional, advertising, travel, accounting, legal and such similar expenses,
relating to the business of NSPCT under the terms and conditions of this
Agreement, unless otherwise agreed in writing by the Parties; (2) to manage its
business affairs in such a manner that the reputation of NSI is not damaged; (3)
to sell Introductory Kits to potential NSI Independent Distributors in
accordance with all applicable laws and industry standards; (4) to collect
requests for Distributor Contracts from potential NSI Independent Distributors
and forward these contracts to NSI in a timely fashion (provided that all such
requests for Distributor Contracts shall be reviewed for acceptance or rejection
by NSI in the United States and in no instance shall NSPCT accept such requests
for Distributor Contracts,); (5) to train and lend assistance to NSI Independent
Distributors in the Territory; (6) to transmit information regarding Net Sales
to NSI Independent Distributors and such other information as NSI may reasonably
request; (7) to pay Bonus Payments to Resident NSI Independent Distributors as
set forth in Section 3.1 hereof; (8) to use its best efforts to monitor and
supervise the activities of Resident NSI Distributors; (9) to use its best
efforts to cause the enforcement of the Distributor Contracts to ensure
compliance therewith and with NSI's policies and procedures and to any action
against Resident NSI Independent Distributors for violation of the terms and
conditions of a Distributor Contract, NSI's policies and procedures, or any
other rules and regulations of NSI or NSPCT as NSI shall reasonably request; and
(10) to perform any other function or provide support as NSI shall reasonably
request to enable NSI to fully perform its obligations to NSI Independent
Distributors under the Sales Compensation Plan and their Distributor Contracts.
ARTICLE V
INTRODUCTORY KIT SALES
5.1 Agreement to Purchase Introductory Kits. The Parties acknowledge that,
pursuant to this Agreement, NSPCT is being granted an exclusive license to use
the Licensed Property, including the Independent Distributor Network, in the
Territory. NSPCT agrees to use its best efforts in supporting the development of
the Independent Distributor Network in the Territory by selling to potential NSI
Independent Distributors in the Territory Introductory Kits which NSI has either
(i) purchased from NSI, or (ii) has sourced and priced locally, or any part
thereof, subject to review, approval and oversight of NSI and in accordance with
instructions and specifications given by NSI.
5.2 Pricing. The Parties agree that the price of Introductory Kits shall be
negotiated and determined on an arm's length basis and may be adjusted from time
to time as agreed by the Parties in writing.
5.3 Payment Method. NSPCT shall pay the commercial invoices for
Introductory Kits shipped under this Agreement in the manner set forth in
Section 3.4.
5.4 Quantities. NSPCT agrees to purchase sufficient quantities of the
Introductory Kits from NSI to fill orders, in a timely fashion, received from
potential NSI Independent Distributors in the Territory.
5.5 Quality of Introductory Kits. NSI shall use its best efforts to
maintain and augment the quality, image and value of the Introductory Kits such
that Introductory Kits sold in the Territory are consistent with the quality of
those sold in the United States of America.
5.6 Merchantability. NSI warrants that Introductory Kits sold to NSPCT
pursuant to this Agreement will be merchantable and of sufficient quality for
sales within the Territory. If NSPCT determines that certain Introductory Kits
supplied under this Agreement are not merchantable, a claim for a refund of the
price paid can be made within 45 days from the day the Introductory Kits are
received in the Territory. NSI agrees to refund, or credit the account of NSPCT,
for the purchase price of such non-merchantable Introductory Kits.
ARTICLE VI
GOVERNMENTAL APPROVALS, LAWS AND REGULATIONS
6.1 Government Approvals. NSPCT agrees to obtain, or cause to be obtained,
at its sole cost and expense, any governmental approval and make, or cause to be
made, any filings or notifications required under all applicable laws,
regulations and ordinances in the Territory to enable this Agreement to become
effective or to enable any payment pursuant to the provisions of this Agreement
to be made. NSPCT agrees to keep NSI informed of its progress in obtaining all
such government approvals.
6.2 Compliance with Laws. Each party agrees to refrain from any action that
will cause the other party to be in violation of any applicable law, regulation,
or ordinance of any jurisdiction in the Territory or the United States or
elsewhere or any international convention or bilateral or multilateral treaty to
which any jurisdiction in the Territory or the United States is a signatory,
including, without limitation, the U.S. Foreign Corrupt Practices Act of 1977,
the U.S. Export Control Laws, and the U.S. Anti-Boycott laws.
6.3 Compliance of Licensed Property. NSI agrees to take, or cause to be
taken, at its sole cost and expense, all actions necessary to ensure the
compliance of the Licensed Property with applicable laws, regulations and
ordinances in the Territory (including, without limitation, direct selling
laws). NSI agrees to keep NSPCT informed of its progress in obtaining all such
government approvals.
ARTICLE VII
TERM AND TERMINATION
7.1 Term. Subject to Section 7.2 hereof, this Agreement shall be for a term
ending on December 31, 2016 provided, however, that this Agreement is subject to
renegotiation after December 31, 2001 in the event that (i) Blake M. Roney,
Nedra D. Roney, Sandie N. Tillotson, Craig Tillotson, Craig Bryson, Steven J.
Lund, Brooke B. Roney, Kirk V. Roney and Keith R. Halls (the "NSI
Stockholders"), or members of their families, or trusts or foundations
established by or for the benefit of the NSI Stockholders or members of their
families on a combined basis no longer beneficially own a majority of the voting
stock of Nu Skin Asia Pacific, Inc. ("Nu Skin Asia Pacific"), or (ii) the NSI
Stockholders, or members of their families, or trusts or foundations established
by or for the benefit of the NSI Stockholders or members of their families on a
combined basis no longer beneficially own a majority of the voting stock of NSI.
7.2 Termination. This Agreement may be terminated by either party
immediately or at any time after the occurrence of any of the following events:
(a) the other Party shall commence any case, proceeding or other action (i)
under any existing or future law of any jurisdiction, domestic or foreign,
relating to bankruptcy, insolvency, reorganization or relief of debtors,
seeking to have an order for relief entered with respect to it, or seeking
to adjudicate it a bankrupt or insolvent, or seeking reorganization,
arrangement, adjustment, winding-up, liquidation, dissolution, compensation
or other relief with respect to it or its debts, or (ii) seeking
appointment of a receiver, trustee, custodian or other similar action; or
(b) there shall be commenced against the other Party any case, proceeding
or other action of a nature referred to in clause (a) above which (A)
results in the entry of an order for relief or any such adjudication or
appointment or (B) remains undismissed, undischarged or unbonded for a
period of 90 days. Events described in clauses (a) and (b) of this Section
7.2 shall be referred to as a "Bankruptcy Event". If a Bankruptcy Event
occurs, all amounts owing under this Agreement shall become immediately due
and payable, without any notice thereof; or
(c) if the other Party causes or allows a judgment in excess of twenty-five
million dollars ($25,000,000) to be entered against it or involuntarily
allows a lien, security interest, or other encumbrance to attach to its
assets which secures an amount in excess of twenty-five million dollars
($25,000,000) to be placed upon its assets.
7.3 Termination on Default. This Agreement may be terminated by either
party, if the other party is in default in the performance of any material
obligation under this Agreement and such default has not been cured within sixty
(60) days after receipt of written notice of such default by the defaulting
party.
7.4 Termination on Change of Control. This Agreement may be terminated by
NSI if Nu Skin Asia Pacific shall no longer own or control a majority of the
voting interest in NSPCT with such termination to take effect thirty (30) days
after delivery of written notice by one party to the other of the occurrence of
a change in control and its intention to terminate this Agreement based thereon.
7.5 Survival of Obligations. The obligations of the Parties to pay any sums
which are due and payable as of the expiration or termination of this Agreement
and their obligation under Section 2.3, Article VIII and Article X hereof shall
survive the expiration or termination of this Agreement.
7.6 Reversion of Rights. Upon termination of this Agreement, all rights and
licenses herein granted to NSPCT shall immediately cease and shall revert to
NSI, and NSPCT shall cease representing to any third party that it has any right
to use, assign, convey or otherwise transfer the Licensed Property.
ARTICLE VIII
INFRINGEMENT; INDEMNIFICATION
NSI hereby represents and warrants that, as of the date hereof, there are
no infringement or misappropriation suits pending or filed or, to its knowledge,
threatened against NSI within the Territory that relate to the Licensed Property
and NSI is not presently aware of any such infringement or misappropriation. NSI
shall indemnify and hold NSPCT harmless from and against all claims, actions,
suits, proceedings, losses, liabilities, costs, damages and attorneys' fees in
respect of a third party claim alleging infringement or misappropriation by
NSPCT in respect of its use of the Licensed Property in the Territory; provided
that NSPCT shall give NSI prompt written notice of any claim, action, suit or
proceeding and without limiting the generality of Section 2.3 hereof, shall
cooperate with NSI in the defense of any such claim, action, suit or proceeding.
NSI shall have the right to select counsel in any such claim, action, suit or
proceeding. In the event that any such claim, action or proceeding is
successful, NSI shall use reasonable efforts to make such changes in the
Licensed Property to permit NSPCT to continue to make use of the Licensed
Property free and clear of all infringement and misappropriation. NSI shall give
NSI prompt written notice of any infringement or misappropriation of the
Licensed Property by any third party. NSI shall have the sole right to initiate
any and all legal proceedings against any such third party and, without limiting
the generality of Section 2.3 hereof, NSPCT shall cooperate with NSI in the
pursuit of any such proceeding. NSI shall retain any damage award obtained from
such third party. If NSI elects not to pursue any infringement, NSPCT shall have
the right to do so at its own expense and shall retain any damage award obtained
from any third party.
ARTICLE IX
NATURE OF RELATIONSHIP
The relationship of NSPCT and NSI shall be and at all times remain,
respectively, that of Licensee and Licensor. Nothing contained or implied in
this Agreement shall be construed to constitute either party as the legal
representative or agent of the other or to constitute or construe the Parties as
partners, joint venturers, co-owners or otherwise as participants in a joint or
common undertaking. Neither party is authorized to conclude any contract or
agreement or make any commitment, representation or warranty that binds the
other or otherwise act in the name of or on behalf of the other.
ARTICLE X
CONFIDENTIALITY
All Proprietary Information or other non-public or proprietary business or
technical information owned or used by NSI or NSPCT and supplied to or acquired
by the other whether in oral or documentary form (the "Confidential
Information") shall be supplied and acquired in confidence and shall be solely
for the use of the receiving party pursuant to this Agreement and such party
shall keep the Confidential Information confidential and shall not disclose the
same, at any time during the term of this Agreement or after its termination,
except to its employees, or its affiliates or its affiliates' employees for the
purposes of its business in accordance with this Agreement and except as may be
required by law; provided that if the receiving party determines that a
disclosure is required by law, the receiving party shall notify the disclosing
party in order to give the disclosing party an opportunity to seek an injunction
or otherwise attempt to keep the Confidential Information confidential. The
receiving party shall, at the request of the disclosing party, destroy or return
the Confidential Information without retaining copies if, as and when this
Agreement is terminated or expires. For purposes of this Agreement, the term
"Confidential Information" shall not include information or documents that (i)
become generally available to the public other than as a result of a disclosure
by the receiving party, (ii) were otherwise lawfully available to the receiving
party, or (iii) were generated independently by the receiving party. The
provisions of this Article shall survive termination of this Agreement.
ARTICLE XI
MAINTENANCE OF LICENSED PROPERTY; RECORDING
NSI shall use its best efforts and take all reasonable steps consistent
with its existing internal policies and procedures and with this Agreement to
maintain the Licensed Property in the Territory. In no event shall this clause
be construed to require NSI to establish or maintain a branch office, subsidiary
corporation or fixed place of business or similar permanent establishment in the
Territory. NSI, in its sole discretion, shall have the right to record this
Agreement or proof thereof, or to enter NSPCT as a registered user in the
Territory. NSPCT agrees to cooperate, as reasonably requested by NSI, in
arranging for such recordings or entries, or in bearing or canceling such
recordings or entries in the event of amendments to or termination of this
Agreement for any reason.
ARTICLE XII
MISCELLANEOUS
12.1 Assignment. This Agreement shall be binding on and inure to the
benefit of the heirs, successors, assigns and beneficiaries of the Parties;
provided that neither party may assign this Agreement or any rights or
obligations hereunder, whether by operation of law or otherwise, without the
prior written consent of the other party's authorized representative. Any such
attempted assignment, without the written consent provided herein, shall be void
and unenforceable.
12.2 Force Majeure. The Parties shall not be responsible for failure to
perform hereunder due to force majeure, which shall include, but not be limited
to: fires, floods, riots, strikes, labor disputes, freight embargoes or
transportation delays, shortage of labor, inability to secure fuel, material,
supplies, equipment or power at reasonable prices or on account of shortage
thereof, acts of God or of the public enemy, war or civil disturbances, any
existing or future laws, rules, regulations or acts of any government (including
any orders, rules or regulations issued by any official or agency or such
government) affecting a party that would delay or prohibit performance
hereunder, or any cause beyond the reasonable control of a party. If an event of
force majeure should occur, the affected party shall promptly give notice
thereof to the other party and such affected party shall use its reasonable best
efforts to cure or correct any such event of force majeure.
12.3 Governing Law and Dispute Resolution. This Agreement shall be governed
by and construed in accordance with the laws of the State of Utah, applicable to
contracts made and to be wholly performed within such State. Any dispute arising
out of this Agreement, if not resolved by mutual agreement of NSI and NSPCT
within 30 days after written notice of such dispute is given by NSPCT or NSI, as
the case may be, shall be resolved through arbitration with the Utah office and
division of the American Arbitration Association ("AAA"). If the dispute is not
resolved within such 30-day period, the Parties shall petition the AAA to
promptly appoint a competent, disinterested person to act as such arbitrator.
Within 30 days after the designation or appointment of such arbitrator, such
arbitrator shall be required to commence the arbitration proceeding in the state
of Utah at a time and place to be fixed by the arbitrator, who shall so notify
NSI and NSPCT. Such arbitration proceeding shall be conducted in accordance with
the applicable rules and procedures of the AAA, and/or as otherwise may be
agreed by NSI and NSPCT. The decision of the arbitrator shall be final and
binding upon NSI and NSPCT and may be enforced in any court of competent
jurisdiction. The expenses and costs of such arbitration shall be divided and
borne equally by NSI and NSPCT; provided, that each of NSI and NSPCT shall pay
all fees and expenses incurred by it in presenting or defending against such
claim, right or cause of action.
12.4 Applicability of Post-Effective Law. The parties agree that neither
the Vienna Convention on the International Sale of Goods nor any such similar
law, treaty or act that becomes effective during the term of this Agreement
shall be applicable to this Agreement or the transactions contemplated
hereunder.
12.5 Waiver and Delay. No waiver by either party of any breach or default
in performance by the other party, and no failure, refusal or neglect of either
party to exercise any right, power or option given to it hereunder or to insist
upon strict compliance with or performance of the other party's obligations
under this Agreement, shall constitute a waiver of the provisions of this
Agreement with respect to any subsequent breach thereof or a waiver by either
party of its right at any time thereafter to require exact and strict compliance
with the provisions thereof.
12.6 Notices. All notices, requests and other communications hereunder
shall be in writing and shall be deemed to have been duly given, if delivered by
hand, or if communicated by facsimile, cable or similar electronic means to the
facsimile number or cable identification number as previously provided by each
party to the other, at the time that receipt thereof has been confirmed by
return electronic communication or signal that the message has been received, or
if mailed, ten (10) days after dispatch by registered airmail, postage prepaid,
from any post office addressed as follows:
If to NSPCT: General Manager
Nu Skin Personal Care (Thailand) Ltd.
15th Floor Building III
SCB Park Plaza East
19 Ratchadapisek Road
Ladyao, Jatujak
Bangkok, Thailand 10900
Facsimile Number: 662-937-9939
If to NSI: General Manager
Nu Skin International, Inc.
75 West Center Street,
Provo, Utah 84601, U.S.A.
Facsimile No.: (801) 345-5999
Either party may change its facsimile number, cable identification number
or address by a notice given to the other party in the manner set forth above.
12.7 Integrated Contract. This Agreement constitutes the entire agreement
between the Parties relating to the subject matter hereof and supersedes all
prior or contemporaneous negotiations, representations, agreements and
understandings (both oral and written) of the Parties.
12.8 Modifications and Amendments. No supplement, modification or amendment
of this Agreement shall be binding unless it is in writing and executed by both
of the Parties.
12.9 Severability. To the extent that any provision of this Agreement is
(or in the opinion of counsel mutually acceptable to both Parties would be)
prohibited, judicially invalidated or otherwise rendered unenforceable in any
jurisdiction, such provision shall be deemed ineffective only to the extent of
such prohibition, invalidation or unenforceability in that jurisdiction, and
only within that jurisdiction. Any prohibited, judicially invalidated or
unenforceable provision of this Agreement will not invalidate or render
unenforceable any other provision of this Agreement, nor will such provision of
this Agreement be invalidated or rendered unenforceable in any other
jurisdiction.
12.10 Counterparts and Headings. This Agreement may be executed in one or
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument. All headings and captions
are inserted for convenience of reference only and shall not affect the meaning
or interpretation of any provision hereof.
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed
in the United States of America by their respective duly authorized
representatives as of the day and year first-above written.
NU SKIN INTERNATIONAL, INC. NU SKIN PERSONAL CARE (THAILAND) LTD.
BY: BY:
Blake M. Roney Truman Hunt
ITS: President ITS: Secretary