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As filed with the Securities and Exchange Commission on March 24, 1998
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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NU SKIN ASIA PACIFIC, INC.
(Exact Name of Registrant as Specified in Its Charter)
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Delaware 5122 87-0565309
(State or Jurisdiction of (Primary Standard Industrial (I.R.S. Employer
Incorporation or Organization) Classification Code Number) Identification No.)
75 West Center Street
Provo, Utah 84601
(801) 345-6100
(Address, including zip code, and telephone number,
including area code, of registrant's principal
executive offices)
Amended and Restated Nu Skin Asia Pacific, Inc.
1996 Stock Incentive Plan
(Full Title of Plan)
Steven J. Lund, President
Nu Skin Asia Pacific, Inc.
75 West Center Street
Provo, Utah 84601
(801) 345-6100
(Name, and address, including zip code, and telephone number,
including area code, of agent for service)
Copies to:
Nolan S. Taylor, Esq. M. Truman Hunt, Esq.
LeBoeuf, Lamb, Greene & MacRae, L.L.P. Nu Skin Asia Pacific, Inc.
1000 Kearns Building 75 West Center Street
136 South Main Street Provo, Utah 84601
Salt Lake City, Utah 84101-1685 (801) 345-6100
(801) 320-6700
CALCULATION OF REGISTRATION FEE
AMENDED AND RESTATED
NU SKIN ASIA PACIFIC, INC.
1996 STOCK INCENTIVE PLAN
TABLE OF CONTENTS
PAGE
1. PURPOSE.............................................................. 1
2. DEFINITIONS.......................................................... 1
3. ADMINISTRATION....................................................... 4
4. SHARES SUBJECT TO THE PLAN........................................... 5
5. PARTICIPANTS......................................................... 5
6. AWARDS UNDER THE PLAN................................................ 5
7. STOCK OPTIONS........................................................ 5
8. STOCK APPRECIATION RIGHTS............................................ 8
9. CONTINGENT STOCK AWARDS.............................................. 9
10. RESTRICTED STOCK AWARDS.............................................. 10
11. GENERAL RESTRICTIONS................................................. 11
12. RIGHTS OF A SHAREHOLDER.............................................. 11
13. RIGHTS TO TERMINATE EMPLOYMENT....................................... 11
14. WITHHOLDING OF TAXES................................................. 11
15. NON-ASSIGNABILITY.................................................... 11
16. NON-UNIFORM DETERMINATIONS........................................... 12
17. ADJUSTMENTS.......................................................... 12
18. AMENDMENT............................................................ 13
19. EFFECT ON OTHER PLAN................................................. 13
20. DURATION OF PLAN..................................................... 13
21. FUNDING OF THE PLAN.................................................. 13
22. PLAN STATUS.......................................................... 14
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23. GOVERNING LAW........................................................ 14
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AMENDED AND RESTATED
NU SKIN ASIA PACIFIC, INC.
1996 STOCK INCENTIVE PLAN
1. PURPOSE
1.1 The purpose of the Amended and Restated Nu Skin Asia Pacific, Inc.
1996 Stock Incentive Plan (the "Plan") is to provide incentives to specified
individuals whose performance, contributions and skills add to the value of Nu
Skin Asia Pacific, Inc. (the "Company") and its affiliated companies. The
Company also believes that the Plan will facilitate attracting, retaining and
motivating employees, directors and consultants of high caliber and potential.
This Amended and Restated Nu Skin Asia Pacific, Inc. 1996 Stock Incentive Plan
amends and restates the Nu Skin Asia Pacific, Inc. 1996 Stock Incentive Plan
dated November 21, 1996.
1.2 Plan participants shall include those officers, directors, employees
and consultants of the Company and subsidiaries who, in the opinion of the
Committee, are making or are in a position to make substantial contributions to
the Company by their ability and efforts.
2. DEFINITIONS
2.1 For purposes of the Plan, the following terms shall have the
following meanings, unless the context clearly indicates to the contrary.
(a) "Award" means a grant of Restricted Stock, Contingent
Stock, an Option, or an SAR.
(b) "Award Agreement" means the agreement approved by the
Committee evidencing an Award to a Grantee.
(c) "Board" means the Company's Board of Directors.
(d) "Code" means the Internal Revenue Code of 1986, as
amended.
(e) "Committee" means the members of the Board until the
Compensation Committee of the Board is appointed, and
after the Compensation Committee is appointed means the
members of the Compensation Committee of the Board, who
are "outside directors" (within the meaning of Section
162(m) of the Code and any regulations or rulings
promulgated thereunder) to the extent required for
purposes of compliance with such Code Section, and
"disinterested persons" (within the meaning of Rule 16b- 3
of the Exchange Act), to the extent required for
compliance with such Rule.
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(f) "Company" means Nu Skin Asia Pacific, Inc.
(g) "Consultant" means any individual who provides services to
the Company as an independent contractor and not as an
Employee or Director.
(h) "Contingent Stock" means stock which will be issued to a
Grantee upon the attainment of certain conditions pursuant
to Section 9 hereof.
(i) "Director(s)" means a member or the members of the Board.
(j) "Employee" means any individual who is an employee of the
Company, a Parent or Subsidiary.
(k) "Exchange Act" means the Securities Exchange Act of 1934,
as amended.
(l) "Fair Market Value" of a Share means on, or with respect
to, any given date:
(i) If the Shares are listed on a national stock
exchange, the closing market price of such Shares
as reported on the composite tape for issues
listed on such exchange on such date or, if no
trade shall have been reported for such date, on
the next preceding date on which there were trades
reported; provided, that if no such quotation
shall have been made within the ten business days
preceding such date, Fair Market Value shall be
determined under (iii) below.
(ii) If the Shares are not listed on a national stock
exchange but are traded on the over-the-counter
market, the mean between the closing dealer bid
and asked price of such Shares as reported by the
National Association of Securities Dealers through
their Automated Quotation System for such date, or
if no quotations shall have been made on such
date, on the next preceding date on which there
were quotations; provided, that, if such
quotations shall have been made within the ten
business days preceding such date, Fair Market
Value shall be determined under (iii) below.
(iii) If (i) and (ii) do not apply, the Fair Market Value
of a Share shall be determined without regard to
any control premium or discount for lack of control
(except as otherwise required by Section 422 of the
Code) by the Committee in good faith consistent
with the valuation of the Company as provided by a
third party appraiser for other corporate purposes
before adjustments or any discounts applied due to
lack of marketability. The Committee may rely upon
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the most recent valuation (if it is based on a date
within 3 months of the valuation date) and there
shall be no requirement to cause a more recent
valuation to be made (except as may be required for
purposes of Section 422 of the Code). If no such
valuation exists, the Committee may engage a third
party appraiser to prepare the valuation.
(m) "Grantee" means an Employee, Director of the Company, a
Parent or any Subsidiary or Consultant who has received an
Award.
(n) "Incentive Stock Option" shall have the same meaning as
given to the term by Section 422 of the Code and any
regulations or rulings promulgated thereunder.
(o) "Non-qualified Stock Option" means any Option granted
pursuant to Section 7 which when awarded by the Committee
was not intended to be, or does not qualify as, an
Incentive Stock Option.
(p) "Option" means the right to purchase from the Company a
stated number of Shares at a specified Option Price. The
Option may be granted to an Employee, Director or
Consultant subject to the terms of this Plan, and such
other conditions and restrictions as the Committee deems
appropriate. Each Option shall be designated by the
Committee to be either an Incentive Stock Option or a
Non-qualified Stock Option. Only Employees may be granted
Incentive Stock Options.
(q) "Option Agreement" means the Award Agreement pursuant to
which an Option is granted under Section 7.
(r) "Option Price" means the purchase price per Share under an
Option, as described in Section 7.
(s) "Parent" means any corporation (other than the Company) in
an unbroken chain of corporations ending with the Company
if, at the time of the granting of an Option, each of the
corporations (other than the Company) owns stock
possessing 50% or more of the total combined voting power
of all classes of stock in one of the other corporations
in such chain within the meaning of Section 424(e) of the
Code and any regulations or rulings promulgated
thereunder.
(t) "Plan" means Amended and Restated Nu Skin Asia Pacific,
Inc. 1996 Stock Incentive Plan, as evidenced herein and as
amended from time to time.
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(u) "Restricted Stock" means Shares issued, subject to
restrictions, to a Grantee pursuant to Section 10.
(v) "SAR" means a stock appreciation right which provides a
Grantee a potential right to a payment based on the
appreciation in the fair market value of a Share granted
pursuant to Section 8.
(w) "SEC" means the U.S. Securities and Exchange Commission.
(x) "Section 16 Person" means a person who is an "insider"
within the meaning of Section 16(b) of the Exchange Act
with respect to transactions involving equity securities
of the Company, including the Shares.
(y) "Share" means one share of the Company's Class A common
stock, $.001 par value.
(z) "Subsidiary" means any corporation in an unbroken chain of
corporations beginning with the Company if, at the time of
the granting of the Option, each of the corporations
(other than the last corporation) in the unbroken chain
owns stock possessing 50% or more of the total combined
voting power of all classes of stock in one of the other
corporations in such chain, within the meaning of Section
424(f) of the Code and any regulations or rulings
promulgated thereunder.
3. ADMINISTRATION
3.1 The Plan shall be administered by the Committee. The Committee shall
have full and final authority in its discretion to:
(a) conclusively interpret the provisions of the Plan and to
decide all questions of fact arising in its application;
(b) determine the individuals to whom Awards shall be made
under the Plan;
(c) determine the type of Award to be made to such
individuals and the amount, size and terms of each
Award;
(d) determine the time when Awards will be granted to such
individuals; and
(e) make all other determinations necessary or advisable for
the administration of the Plan.
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4. SHARES SUBJECT TO THE PLAN
4.1 The Shares subject to Awards under the Plan shall not exceed in the
aggregate 4,000,000 Shares.
4.2 Shares may be authorized and unissued Shares or treasury Shares.
4.3 Except as provided herein, any Shares subject to an Award, which
Award for any reason expires or is terminated unexercised as to such Shares
shall again be available under the Plan.
5. PARTICIPANTS
5.1 Awards permitted pursuant to this Plan which are Incentive Stock
Options may only be made to Employees (including Directors who are also
Employees). All other Awards permitted pursuant to the Plan may only be made to
Employees, Directors or Consultants.
6. AWARDS UNDER THE PLAN
6.1 Awards under the Plan may be in the form of Options (both
Non-qualified Stock Options and Incentive Stock Options), Contingent Stock,
Restricted Stock, and SARs and any combination of the above.
6.2 The maximum number of Awards that may be awarded to any one
Employee, Director or Consultant during the life of the Plan shall be 10% of the
total Shares reserved for issuance under the Plan.
7. STOCK OPTIONS
7.1 The Committee in its sole discretion shall designate whether an
Option is to be an Incentive Stock Option or a Non-qualified Stock Option. The
Committee may grant both Incentive Stock Options and Non-qualified Stock Options
to the same individual. However, where both an Incentive Stock Option and a
Non-qualified Stock Option are awarded at one time, such Options shall be deemed
to have been awarded in separate grants, shall be clearly identified, and in no
event will the exercise of one such Option affect the right to exercise the
other such Option except to the extent so provided in the Award Agreement as
determined by the Committee.
7.2 Options granted pursuant to the Plan shall be authorized by the
Committee under terms and conditions approved by the Committee, not inconsistent
with this Plan or Exchange Act Rule 16b-3(c), and shall be evidenced by Option
Agreements in such form as the Committee shall from time to time approve, which
Option Agreements shall contain or shall be subject to the following terms and
conditions, whether or not such terms and conditions are specifically included
therein:
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(a) The Option Price of an Incentive Stock Option shall not be
less than 100% of the Fair Market Value of a Share on the
day the Option is granted, as determined by the Committee.
The Option Price of a Non-qualified Stock Option shall not
be less than 85% of the Fair Market Value of a Share on the
day the Option is granted, as determined by the Committee.
Notwithstanding the immediately preceding sentence, the
Award Agreement for a Non-qualified Stock Option at the
Committee's sole discretion, may, but need not, provide for
a reduction of the Option Price by dividends paid on a Share
during the period the Option is outstanding and unexercised,
but in no event shall the Option Price be less than the par
value of such Share.
(b) Each Option Agreement shall state the period or periods of
time, as determined by the Committee, within which the
Option may be exercised by the Grantee, in whole or in part,
provided such period shall not commence earlier than six
months after the date of the grant of the Option and not
later than ten years after the date of the grant of the
Option. The Committee shall have the power to permit in its
discretion an acceleration of previously determined exercise
terms, subject to the terms of this Plan, to the extent
permitted by Exchange Act Rule 16b-3(c), and under such
circumstances and upon such terms and conditions as deemed
appropriate and which are not inconsistent with Exchange Act
Rule 16b-3(c)(1).
(c) Shares purchased pursuant to an Option Agreement shall be
paid for in full at the time of purchase, either in the form
of cash, common stock of the Company at Fair Market Value,
or a combination thereof, as the Committee shall determine.
(d) Notwithstanding anything herein to the contrary, the
aggregate Fair Market Value (determined as of the time the
Option is granted) of Incentive Stock Options for any
Employee which may become first exercisable in any calendar
year shall not exceed $100,000.
(e) Notwithstanding anything herein to the contrary, no
Incentive Stock Option shall be granted to any individual
if, at the time the Option is to be granted, the individual
owns stock possessing more than 10% of the total combined
voting power of all classes of stock of the Company unless
at the time such Option is granted the Option Price is at
least 110% of the Fair Market Value of the stock subject to
the Option and such Option by its terms is not exercisable
after the expiration of five years from the date such Option
is granted.
(f) Each Option Agreement for an Incentive Stock Option shall
contain such other terms, conditions and provisions as the
Committee may determine to
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be necessary or desirable in order to qualify such Option as
an incentive stock option within the meaning of Section 422
of the Code, or any amendment thereof, substitute therefor,
or regulation thereunder. Subject to the limitations of
Section 18, and without limiting any provisions hereof, the
Committee shall have the power without further approval to
amend the terms of any Option for Grantees.
7.3 If any Option is not granted, exercised, or held pursuant to the
provisions of the Plan or Section 422 of the Code applicable to an Incentive
Stock Option, it will be considered to be a Non-qualified Stock Option to the
extent that any or all of the grant is in conflict with such provisions.
7.4 An Option may be terminated (subject to any shorter periods set
forth in an individual Option Agreement by the Committee, in its sole
discretion) as follows:
(a) During the period of continuous employment or service as a
Consultant with the Company or Subsidiary, an Option will be
terminated only if it has been fully exercised or it has
expired by its terms.
(b) In the event of termination of employment as an Employee or
service as a Director or Consultant for any reason, the
Option will terminate upon the earlier of (i) the full
exercise of the Option, (ii) the expiration of the Option by
its terms, or (iii) except as provided in Section 7.4(c), no
more than one year (three months for Incentive Stock
Options) following the date of employment termination (or
termination of service as a Director or Consultant) for
Non-qualified Stock Options. For purposes of the Plan, a
leave of absence approved by the Company shall not be deemed
to be termination of employment except with respect to an
Incentive Stock Option as required to comply with Section
422 of the Code and the regulations issued thereunder.
(c) If a Grantee's employment as an Employee, or service as a
Director or Consultant, terminates by reason of death or
disability prior to the termination of an Option, such
Option may be exercised to the extent that the Grantee shall
have been entitled to exercise it at the time of death or
disability, as the case may be, by the Grantee, the estate
of the Grantee or the person or persons to whom the Option
may have been transferred by will or by the laws of descent
and distribution for the period set forth in the Option
Agreement, but no more than three years following the date
of such death or disability, provided, however, with respect
to an Incentive Stock Option, such right must be exercised,
if at all, within one year after the date of such death or
disability.
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8. STOCK APPRECIATION RIGHTS
8.1 SARs shall be evidenced by Award Agreements for SARs in such form,
and not inconsistent with this Plan or Exchange Act Rule 16b-3(c)(1), as the
Committee shall approve from time to time, which Award Agreements shall contain
in substance the following terms and conditions as discussed in Sections 8.2
through 8.4.
8.2 An SAR may be, but is not required to be, granted in connection with
an Option. An SAR shall entitle the Grantee, subject to such terms and
conditions determined by the Committee, to receive, upon surrender of the SAR,
all or a portion of the excess of (i) the Fair Market Value of a specified
number of Shares at the time of the surrender, as determined by the Committee,
over (ii) 100% of the Fair Market Value of such Shares at the time the SAR was
granted less any dividends paid on such Shares while the SAR was outstanding but
unexercised.
8.3 SARs shall be granted for a period of not less than one year nor
more than ten years, and shall be exercisable in whole or in part, at such time
or times and subject to such other terms and conditions as shall be prescribed
by the Committee at the time of grant, subject to the following:
(a) No SAR shall be exercisable, in whole or in part, during the
one year period starting with the date of grant; and
(b) SARs will be exercisable only during a Grantee's employment
by, or service as a Consultant for, the Company or a
Subsidiary, except that in the discretion of the Committee
an SAR may be made exercisable for up to three months after
the Grantee's employment, or service as a Director or
Consultant, is terminated for any reason other than death,
retirement or disability. In the event that a Grantee's
employment as an Employee, or service as a Director or
Consultant, is terminated as a result of death, retirement
or disability without having fully exercised such Grantee's
SARs, the Grantee or such Grantee's beneficiary may have the
right to exercise the SARs during their term within a period
of 6 months after the date of such termination to the extent
that the right was exercisable at the date of such
termination, or during such other period and subject to such
terms as may be determined by the Committee. Subject to the
limitations of Section 18, the Committee in its sole
discretion may reserve the right to accelerate previously
determined exercised terms, within the terms of the Plan,
under such circumstances and upon such terms and conditions
as it deems appropriate.
(c) The Committee shall establish such additional terms and
conditions, without limiting the foregoing, as it determines
to be necessary or desirable to avoid
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"short-swing" trading liability in connection with an SAR
within the meaning of Section 16(b) of the Exchange Act.
(d) The Committee, in its sole discretion, may establish
different time periods than specified above for any
individual or group of individual Awards.
8.4 Upon exercise of an SAR, payment shall be made within ninety days in
the form of common stock of the Company (at Fair Market Value on the date of
exercise), cash, or a combination thereof, as the Committee may determine.
9. CONTINGENT STOCK AWARDS
9.1 Contingent Stock Awards under the Plan shall be evidenced by Award
Agreements for Contingent Stock in such form and not inconsistent with this Plan
as the Committee shall approve from time to time, which Award Agreements shall
contain in substance the terms and conditions described in Sections 9.2 through
9.5.
9.2 The Committee shall determine the number of Shares subject to a
Contingent Stock Award to be granted to an Employee, Director or Consultant
based on the past or expected impact the Employee, Director or Consultant has
had or can have on the financial well-being of the Company and other factors
deemed by the Committee to be appropriate.
9.3 Contingent Stock Awards made pursuant to this Plan shall be subject
to such terms, conditions, and restrictions, including without limitation,
substantial risks of forfeiture and/or attainment of performance objectives, and
for such period or periods as shall be set forth in the Award Agreement as
determined by the Committee at the time of grant. The Committee shall have the
power to permit, in its discretion, an acceleration of the expiration of the
applicable restriction period with respect to any part or all of the Award to
any Grantee. The Committee shall have the power to make a Contingent Stock Award
that is not subject to vesting or any other contingencies in recognition of an
Employee's, Director's or Consultant's prior service and financial impact on the
Company. During the restriction period, the Grantee shall not have the rights of
a shareholder.
9.4 The Award Agreement for the Contingent Stock Award shall specify the
terms and conditions upon which any restrictions on the right to receive Shares
representing Contingent Stock Awards under the Plan shall lapse, as determined
by the Committee. Upon the lapse of such restrictions, Shares shall be issued to
the Grantee or such Grantee's legal representative.
9.5 In the event of a Grantee's termination of employment as an
Employee, or service as a Director or Consultant, whichever is applicable, for
any reason prior to the lapse of restrictions applicable to a Contingent Stock
Award made to such Grantee and unless otherwise provided for herein by this Plan
or as provided for in the Award Agreement for Contingent Stock, all rights to
Shares as to which there still remain unlapsed restrictions shall be forfeited
by such
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Grantee to the Company without payment or any consideration by the Company, and
neither the Grantee nor any successors, heirs, assigns or personal
representatives of such Grantees shall thereafter have any further rights or
interest in such Shares.
10. RESTRICTED STOCK AWARDS
10.1 Restricted Stock Awards under the Plan shall be evidenced by Award
Agreements for Restricted Stock in such form, and not inconsistent with this
Plan, as the Committee shall approve from time to time, which Award Agreements
shall contain in substance the terms and conditions described in Sections 10.2
through 10.6.
10.2 The Committee shall determine the number of Shares subject to a
Restricted Stock Award to be granted to an Employee, Director or Consultant
based on the past or expected impact the Employee, Director or Consultant has
had or can have on the financial well-being of the Company and other factors
deemed by the Committee to be appropriate.
10.3 Restricted Stock Awards made pursuant to this Plan shall be subject
to such terms, conditions, and restrictions, including without limitation,
substantial risks of forfeiture and/or attainment of performance objectives, and
for such period or periods as set forth in the Award Agreement as determined by
the Committee at the time of grant. The Committee shall have the power to
permit, in its discretion, an acceleration of the expiration of the applicable
restriction period with respect to any part or all of the Award to any Grantee.
Upon issuance of a Restricted Stock Award, Shares will be issued in the name of
the Grantee. During the restriction period, Grantee shall have the rights of a
shareholder for all such Shares of Restricted Stock, including the right to vote
and the right to receive dividends thereon as paid.
10.4 Each certificate evidencing stock subject to Restricted Stock
Awards shall bear an appropriate legend referring to the terms, conditions and
restrictions applicable to such Shares. Any attempt to dispose of Shares of
Restricted Stock in contravention of such terms, conditions and restrictions
shall be ineffective. The Committee may adopt rules which provide that the
certificates evidencing such Shares may be held in custody by a bank or other
institution, or that the Company may itself hold such Shares in custody, until
the restrictions thereon shall have lapsed and may require as a condition of any
Award that the Grantee shall have delivered a stock power endorsed in blank
relating to the Shares of Restricted Stock covered by such Award.
10.5 The Award Agreement for Restricted Stock shall specify the terms
and conditions upon which any restrictions on the right to receive shares
representing Restricted Stock awarded under the Plan shall lapse as determined
by the Committee. Upon the lapse of such restrictions, Shares which have not
been delivered to the Grantee or such Grantee's legal representative shall be
delivered to such Grantee or such Grantee's legal representative.
10.6 In the event of a Grantee's termination of employment as an
Employee, or service as a Director or Consultant, whichever is applicable, for
any reason prior to the lapse of
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restrictions applicable to a Restricted Stock Award made to such Grantee and
unless otherwise provided for herein by this Plan or as provided for in the
Award Agreement for Restricted Stock, all rights to Shares as to which there
remain unlapsed restrictions shall be forfeited by such Grantee to the Company
without payment or any consideration by the Company, and neither the Grantee nor
any successors, heirs, assigns or personal representatives of such Grantee shall
thereafter have any further rights or interest in such Shares.
11. GENERAL RESTRICTIONS
11.1 The Plan and each Award under the Plan shall be subject to the
requirement that, if at any time the Committee shall determine that (i) the
listing, registration or qualification of the Shares subject or related thereto
upon any securities exchange or under any state or federal law, (ii) the consent
or approval of any government regulatory body, or (iii) an agreement by the
Grantee of an Award with respect to the disposition of Shares, is necessary or
desirable as a condition of, or in connection with the Plan or the granting of
such Award or the issue or purchase of Shares thereunder, the Plan will not be
effective and/or the Award may not be consummated in whole or in part unless
such listing, registration, qualification, consent, approval or agreement shall
have been effected or obtained free of any conditions not acceptable to the
Committee.
12. RIGHTS OF A SHAREHOLDER
12.1 The Grantee of any Award under the Plan shall have no rights as a
shareholder with respect thereto unless and until certificates for Shares of
common stock are issued to such Grantee, except for the rights provided in
Section 10 as it pertains to Restricted Stock Awards.
13. RIGHTS TO TERMINATE EMPLOYMENT
13.1 Nothing in the Plan or in any agreement entered into pursuant to
the Plan shall confer upon any Grantee the right to continue in the employment
as an Employee, or service as a Director or Consultant, of the Company or a
Subsidiary or affect any right which the Company or its Subsidiary may have to
terminate the employment, or service as a Director or Consultant, of such
Grantee.
14. WITHHOLDING OF TAXES
14.1 Whenever the Company proposes, or is required, to issue or transfer
Shares under the Plan, the Company shall have the right to require the Grantee
to remit to the Company an amount, or a number of shares, sufficient to satisfy
any federal, state and/or local withholding tax requirements prior to the
delivery of any certificate or certificates for such Shares. Whenever under the
Plan payments are to be made in cash, such payments shall be net of an amount
sufficient to satisfy any federal, state and/or local withholding tax
requirements.
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15. NON-ASSIGNABILITY
15.1 No Award or benefit under the Plan shall be assignable or
transferable by the Grantee thereof except by will or by the laws of descent and
distribution. During the life of the Grantee, such Award shall be exercisable
only by such person or by such person's guardian or legal representative.
16. NON-UNIFORM DETERMINATIONS
16.1 The Committee's determination under the Plan (including, without
limitation, determinations of the persons to receive Awards, the form, amount
and timing of such Awards, the terms and conditions of such Awards and the Award
Agreements evidencing same, and the establishment of values and performance
targets) need not be uniform and may be made by the Committee selectively among
persons who receive, or are eligible to receive, Awards under the Plan, whether
or not such persons are similarly situated.
17. ADJUSTMENTS
17.1 If the Class A Common Stock of the Company is subdivided or
combined into a greater or smaller number of shares or if the Company shall
issue any shares of Class A Common Stock as a stock dividend on its outstanding
Class A Common Stock, the number of shares deliverable upon the exercise or
vesting of any Awards granted hereunder shall be appropriately increased or
decreased proportionately, and appropriate adjustments shall be made in the
purchase price per share to reflect such subdivision, combination or stock
dividend.
17.2 In the event of a consolidation of the Company, a merger in which
the Company is not the surviving entity, or the sale of all or substantially all
of the Company assets, the exercisability of any or all outstanding Awards shall
automatically be accelerated so that such Awards would be exercisable or vested
in full immediately prior to the effective date of such consolidation, merger or
asset sale. However, no such acceleration shall occur if and to the extent any
outstanding Awards are, in connection with such consolidation, merger, or asset
sale, either to be assumed by the successor corporation (or parent thereof or to
be replaced with a comparable Award to purchase shares of the capital stock of
the successor corporation (or a parent thereof). The determination of such Award
comparability shall be made by the Committee, and such determination shall be
final, binding and conclusive. Immediately following any such consolidation,
merger or asset, sale, the Awards, to the extent not previously exercised or
vested, shall terminate and cease to be outstanding, except to the extent
assumed by the successor corporation (or parent thereof) in connection with such
consolidation, merger or asset sale. If any outstanding Award hereunder is
assumed in connection with any such consolidation, merger or asset sale, then
such Award shall be appropriately adjusted, immediately after such
consolidation, merger or asset sale, to apply to the number and class of
securities which would have been issuable to the Grantee upon consummation of
such consolidation, merger, or asset sale if the Awards had been exercised or
vested immediately prior to any such transaction, and appropriate adjustment
shall also be made to the exercise price for such Awards, as applicable,
provided the
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aggregate exercise price shall remain the same. This Plan shall not in any way
affect the right of the Company to adjust, reclassify, reorganize or otherwise
change its capital or business structure or to merge, consolidate, dissolve,
liquidate, or sell or transfer any part of its business or assets.
17.3 In the event of a recapitalization or reorganization of the Company
(other than a consolidation, merger or asset sale described in Section 17.2
above) pursuant to which securities of the Company or of another entity are
issued with respect to the outstanding shares of the Company's Class A Common
Stock, a Grantee, upon exercising an Award or an Award becoming vested, shall be
entitled to receive for the purchase price paid upon such exercise the
securities the Grantee would have received if the Grantee had exercised the
Award or the Award had vested prior to such recapitalization or reorganization.
18. AMENDMENT
18.1 The Plan may be amended by the Board, without Shareholder approval,
at any time in any respect, unless Shareholder approval of the amendment in
question is required under Delaware law, the Code, any exemption from Section 16
of the Exchange Act (including without limitation SEC Rule 16b-3) for which the
Company intends Section 16 Persons to qualify, any national securities exchange
system on which the Shares are then listed or reported, by any regulatory body
having jurisdiction with respect to the Plan, or any other applicable laws,
rules or regulations.
18.2 The termination or modification or amendment of the Plan shall not,
without the consent of a Grantee, affect a Grantee's rights under an Award
previously granted. Notwithstanding the foregoing, however, the Company reserves
the right to terminate the Plan in whole or in part, at any time and for any
reason, provided that appropriate compensation, as determined in the sole and
absolute discretion of the Committee, is made to Grantees with respect to Awards
previously granted.
19. EFFECT ON OTHER PLAN
19.1 Participation in this Plan shall not affect a Grantee's eligibility
to participate in any other benefit or incentive plan of the Company, and any
Awards made pursuant to this Plan shall not be used in determining the benefits
provided under any other plan of the Company unless specifically provided.
20. DURATION OF PLAN
20.1 The Plan shall remain in effect until all Awards under the Plan
have been satisfied by the issuance of Shares or the payment of cash, but no
Awards shall be granted more than ten years after the date the Plan is adopted
by the Company.
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21. FUNDING OF THE PLAN
21.1 This Plan shall be unfunded. The Company shall not be required to
establish any special or separate fund or to make any other segregation of
assets to assure the payment of any Award under this Plan, and payment of Awards
shall be on the same basis as the claims of the Company's general creditors. In
no event shall interest be paid or accrued on any Award including unpaid
installments of Awards.
22. PLAN STATUS
22.1 This Plan is intended to satisfy the requirements of a 16b-3 plan
under the Exchange Act.
22.2 This Plan is intended to qualify as a plan under Rule 701 issued
pursuant to The Securities Act of 1933, as amended.
23. GOVERNING LAW
23.1 The laws of the State of Delaware shall govern, control and
determine all questions arising with respect to the Plan and the interpretation
and validity of its respective provisions.
This Plan is effective as of December 9, 1996.
NU SKIN ASIA PACIFIC, INC.
By: /s/ Steven J. Lund
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Its: President
ATTEST:
/s/ Keith R. Halls
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Its Secretary
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March 24, 1998
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, DC 20549
Re: Nu Skin Asia Pacific, Inc. Form S-8 Registration Statement
Dear Ladies and Gentlemen:
We have acted as counsel to Nu Skin Asia Pacific, Inc., a Delaware
corporation (the "Company"), in connection with its proposed registration of a
total of 3,825,000 shares of the Company's Class A Common Stock, par value $.001
per share, pursuant to a Registration Statement on Form S-8, none of which are
issued and outstanding as of the date hereof, but which are issuable upon
exercise of options and vesting of awards previously granted and to be granted
in the future under the Nu Skin Asia Pacific, Inc. Amended and Restated 1996
Stock Incentive Plan.
We have examined such corporate records, certificates and other
documents as we have considered necessary for the purposes hereof. In such
examination, we have assumed the genuineness of all signatures, the authenticity
of all documents submitted to us as originals, the conformity to the original
documents of all documents submitted to us as copies and the authenticity of the
originals of such copies. As to any facts material to our opinion, we have, when
relevant facts were not independently established, relied upon the aforesaid
records, certificates and documents.
Based on the foregoing, we are of the our opinion that the securities
being registered will, upon receipt by the Company of consideration therefor and
the issuance of such securities, be duly authorized, validly issued, fully paid
and nonassessable.
Our opinion set forth herein is limited in all cases to matters arising
under the Delaware General Corporation Law. We consent to the use of this
opinion as an exhibit to the Registration
Statement and to the reference to our firm under the caption "Legal Matters" in
the Prospectus that is a part of the Registration Statement. In giving such
consent, we do not thereby concede that we are within the category of persons
whose consent is required under Section 7 of the Securities Act of 1933, as
amended, or the rules and regulations of the Commission thereunder.
Very truly yours,
/s/ LeBoeuf, Lamb, Greene & MacRae, L.L.P.