As filed with the Securities and Exchange Commission on December 4, 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 ENTERPRISES, 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)
Generation Health Holdings
1996 Stock Plan
and
Generation Health Holdings, Inc.
Scientific Advisory Board
Stock Option Plan
(Full Title of Plan)
M. Truman Hunt, Vice President
Nu Skin Enterprises, 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)
CALCULATION OF REGISTRATION FEE
Title of Each Class of Securities Amount to be Proposed Maximum Proposed Maximum Amount of Registration
to be Registered Registered(1) Offering Price Per Share(2) Aggregate Offering Price(2) Fee(2)
Class A Common Stock,
par value $.001 per share 290,000 $4.89 $1,419,251 $395
(1) The shares of Class A Common Stock being registered represent the shares of
Class A Common Stock which may be issued upon the exercise of options
outstanding under the Generation Health Holdings 1996 Stock Plan and the
Generation Health Holdings, Inc. Scientific Advisory Board Stock Option
Plan which were assumed by the Registrant and converted into options to
acquire the Class A Common Stock in connection with the acquisition of
Generation Health Holdings, Inc. by the Registrant. Pursuant to Rule 416
promulgated pursuant to the Securities Act of 1933, as amended, this
registration statement also covers such indeterminable number of additional
shares of Class A Common Stock as may be issuable pursuant to antidilution
provisions of such plans.
(2) Pursuant to Rule 457(h)(1),the Proposed Maximum Aggregate Offering Price
and Registration Fee are based on the aggregate exercise price of all such
outstanding options. The Proposed Maximum Offering Price Per Share was
determined by dividing the Proposed Maximum Aggregate Offering Price by the
number of shares registered.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information.*
Item 2. Registrant Information and Employee Plan Annual Information.*
* Information required by Part I to be contained in the Section
10(a) prospectus is omitted from this Registration Statement in
accordance with Rule 428 under the Securities Act of 1933, as
amended (the "Securities Act"), and the Note to Part I of Form
S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference
The following documents have been filed with the Commission by Nu Skin
Enterprises, Inc. (the "Company") and are incorporated by reference in this
Registration Statement:
(1) The Company's Annual Report on Form 10-K for the year ended
December 31, 1997, as amended by the Company's Form 10-K/A filed
on March 19, 1998;
(2) The Company's Current Report on Form 8-K dated January 23, 1998;
(3) The Company's Current Report on Form 8-K dated March 26, 1998;
(4) The Company's Amendment No. 1 to Current Report on Form 8-K/A dated
March 26, 1998;
(5) The Company's Quarterly Report on Form 10-Q for the quarterly
period ended March 31, 1998;
(6) The Company's Quarterly Report on Form 10-Q for the quarterly
period ended June 30, 1998;
(7) The Company's Current Report on Form 8-K dated October 6, 1998;
(8) The Company's Current Report on Form 8-K dated October 16, 1998;
(9) The Company's Quarterly Report on Form 10-Q for the quarterly
period ended September 30, 1998; and
(10) The description of the Company's Class A Common Stock as contained
in the Company's Registration Statement on Form 8-A dated November 6, 1996.
All documents and reports filed by the Company pursuant to Section
13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), after the date hereof and prior to the filing of a
post-effective amendment which indicates that all securities offered have been
sold or which deregisters all securities then remaining unsold shall be deemed
to be incorporated by reference herein and to be a part hereof from the date of
filing of such documents. Any statement contained in a document incorporated or
deemed to be incorporated by reference herein shall be deemed to be modified or
superseded for purposes of this registration statement to the extent that a
statement contained herein or in any subsequently filed document which is deemed
to be incorporated by reference herein modifies or supersedes such statement.
Any statement so modified or superseded shall not be deemed, except as so
modified or superseded, to constitute a part of this registration statement.
Experts
The financial statements of the Company incorporated by reference into
the Company's Annual Report on Form 10-K/A for the year ended December 31, 1997,
and incorporated by reference in this
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Registration Statement, have been so incorporated in reliance on the report of
PricewaterhouseCoopers LLP, independent accountants, given on the authority of
said firm as experts in auditing and accounting.
Item 4. Description of Securities
Not applicable.
Item 5. Interest of Named Experts and Counsel
D. Matthew Dorny, Assistant General Counsel to the Company, is the
holder of options to acquire 8,000 shares of the Class A Common Stock of the
Company.
Item 6. Indemnification of Directors and Officers
Section 145 of the Delaware General Corporation Law (the "DGCL")
provides that a corporation may indemnify directors and officers as well as
other employees and individuals against expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement actually and reasonably incurred
in connection with specified actions, suits or proceedings, whether civil,
criminal, administrative, or investigative (other than action by or in the right
of the corporation a "derivative action"), if they acted in good faith and in a
manner they reasonably believed to be in or not opposed to the best interests of
the corporation and, with respect to any criminal action or proceeding, had no
reasonable cause to believe their conduct was unlawful. A similar standard is
applicable in the case of derivative actions, except that indemnification only
extends to expenses (including attorneys' fees) incurred in connection with the
defense or settlement of such actions, and the statute requires court approval
before there can be any indemnification where the person seeking indemnification
has been found liable to the corporation. Indemnification provided by or granted
pursuant to Section 145 of the DGCL is not exclusive of other indemnification
that may be granted by a corporation's bylaws, any agreement, any vote of
stockholders or disinterested directors or otherwise. Article 5 of the Company's
Bylaws and Article 10 of the Company's Certificate of Incorporation provides for
indemnification consistent with the requirements of Section 145 of the DGCL.
Section 145 of the DGCL also permits a corporation to purchase and
maintain insurance on behalf of directors and officers. Article 5 of the
Company's Bylaws permits it to purchase such insurance on behalf of its
directors and officers.
Article 7 of the Company's Certificate of Incorporation provides for,
to the fullest extent permitted by the DGCL, elimination or limitation of
liability of directors to the Company or its stockholders for breach of
fiduciary duty as a director. Section 102(b)(7) of the DGCL permits a
corporation to provide in its certificate of incorporation that a director of
the corporation shall not be personally liable to the corporation or its
stockholders for monetary damages for breach of fiduciary duties as a director,
except for liability (i) for any breach of a director's duty of loyalty to the
corporation or its stockholders; (ii) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law; (iii) for
improper payment of dividends or redemptions of shares; or (iv) for any
transaction from which the director derives an improper personal benefit.
The Company has entered into indemnity agreements with each of its
directors and executive officers. The indemnity agreements provide that the
Company agrees to hold harmless and indemnify the indemnitee ("Indemnitee")
under agreement to the fullest extent authorized or permitted by the provisions
of the DGCL, as the same may be amended from time to time, and subject only to
certain exclusions described below, (a) against any and all expenses (including
attorneys' fees), witness fees, judgments, fines and
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amounts paid in settlement actually and reasonably incurred by Indemnitee in
connection with any threatened, pending or completed action, suit or proceeding,
whether civil, administrative or investigative (including an action by or in the
right of the Company) to which Indemnitee is, was or at any time becomes a
party, or is threatened to be made a party, by reason of the fact that
Indemnitee is, was or at any time becomes a director, officer, employee or agent
of the Company, or is or was serving or at any time serves at the request of the
Company as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise;
and (b)otherwise to the fullest extent as may be provided to Indemnitee by the
Company under the non-exclusivity provisions of Article 5 of the Bylaws of the
Company and the DGCL. The agreement provides that no indemnity will be provided
in certain circumstances, including, among other things: any suit in which
judgment is rendered against Indemnitee for an accounting of profits made from
the purchase or sale by Indemnitee of securities of the Company pursuant to the
provisions of Section 16(b) of the Securities Exchange Act of 1934, as amended,
or similar provisions of any federal, state or local statutory law; on account
of Indemnitee's conduct that is finally adjudged to have been knowingly
fraudulent or deliberately dishonest, or to constitute willful misconduct; on
account of any action, claim or proceeding initiated by Indemnitee unless such
action, claim or proceeding was authorized in the specific case by action of the
Board of Directors or seeks to recover amounts owing under the indemnity
agreement; an action, suit or proceeding brought by the Company and approved by
a majority of the Board of Directors that alleges willful misappropriation of
corporate assets by Indemnitee, disclosure of confidential information in
violation of Indemnitee's fiduciary or contractual obligations to the Company,
or any other willful and deliberate breach in bad faith of Indemnitee's duty to
the Company or its stockholders; and if a final decision by a court having
jurisdiction in the matter shall determine that such indemnification is not
lawful.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits
5.1 Opinion of D. Matthew Dorny, Assistant General Counsel of the
Company, regarding legality of the securities covered by this
Registration Statement
23.1 Consent of PricewaterhouseCoopers LLP, independent accountants
23.2 Consent of D. Matthew Dorny (included in legal opinion--see
Exhibit 5.1)
24 Power of Attorney (included with the signatures in Part II of this
Registration Statement)
Item 9. Undertakings
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10 (a)
(3) of the Securities Act of 1933.
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually or in the
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aggregate, represent a fundamental change in the information set forth in the
registration statement. Notwithstanding the foregoing, any increase or decrease
in volume of securities offered (if the total dollar value of securities offered
would not exceed that which was registered) and any deviation from the low or
high end of the estimated maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424 (b) if, in the
aggregate, the changes in volume and price represent no more than a 20% change
in the maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration statement.
(iii) To include any material information with respect to
the plan of distribution not
previously disclosed in the registration statement or any material change to
such information in the registration statement.
Provided, however, that paragraphs (a) (1) (i) and (a) (1) (ii)
do not apply if the registration statement is on Form S-3 or Form S-8, and the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the registrant pursuant to
Section 13 or Section 15 (d) of the Securities and Exchange Act of 1934 that are
incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13 (a) or Section 15 (d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15 (d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the foregoing provisions, or otherwise,
the Registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Securities Act of 1933 and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities (other than the
payment by the Registrant of expenses incurred or paid by a director, officer or
controlling person of the Registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the Registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the
Securities Act of 1933 and will be governed by the final adjudication of such
issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Provo, State of Utah, on November 30, 1998.
NU SKIN ENTERPRISES, INC.
By: /s/ Steven J. Lund
-------------------------------------
Steven J. Lund
President and Chief Executive Officer
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints Steven J.
Lund and M. Truman Hunt, acting together or singly, his or her true and lawful
attorney-in-fact and agent with full powers of substitution and resubstitution,
for him or her and in his or her name, place and stead, in any and all
capacities, to sign any and all Amendments (including Post-Effective Amendments)
to this Registration Statement and to file the same, with all exhibits thereto,
and other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorney-in-fact and agent full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in about the premises, as fully to all intents and purposes as he or
she might or could do in person, hereby ratifying and confirming all that said
attorney-in-fact and agent or his or her substitute or substitutes, may lawfully
do or cause to be done by virtue hereof
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Registration Statement on Form S-8 has been signed below on November 30, 1998 by
the following persons in the capacities indicated.
Signature Title Date
----------------------- ----------------------------- -----------------
/s/ Blake M. Roney Chairman of the Board November 30, 1998
----------------------- of Directors
Blake M. Roney
/s/ Steven J. Lund President and Chief Executive November 30, 1998
----------------------- Officer and Director
Steven J. Lund (Principal Executive Officer)
/s/ Corey B. Lindley Chief Financial Officer November 30, 1998
----------------------- (Principal Financial and
Corey B. Lindley Accounting Officer)
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Signature Title Date
----------------------- ----------------------------- -----------------
/s/ Sandra N. Tillotson Director November 30, 1998
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Sandra N. Tillotson
/s/ Keith R. Halls Director November 30, 1998
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Keith R. Halls
/s/ Brooke B. Roney Director November 30, 1998
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Brooke B. Roney
/s/ Max L. Pinegar Director November 30, 1998
------------------
Max L. Pinegar
/s/ E.J. "Jake" Garn Director November 30, 1998
--------------------
E.J. "Jake" Garn
/s/ Paula Hawkins Director November 30, 1998
--------------------
Paula Hawkins
/s/ Daniel W. Campbell Director November 30, 1998
----------------------
Daniel W. Campbell
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INDEX TO EXHIBITS
Exhibit
Number Exhibit Description
5.1 Opinion of D. Matthew Dorny regarding legality of the securities
covered by this Registration Statement
23.1 Consent of PricewaterhouseCoopers LLP, independent accountants
23.2 Consent of D. Matthew Dorny (included in legal opinion--see Exhibit
5.1)
24 Power of Attorney (included with the signatures in Part II of this
Registration Statement)
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Exhibit 5.1
NU SKIN ENTERPRISES, INC.
75 West Center Street
Provo, Utah 84601
December 3, 1998
The Board of Directors of
Nu Skin Enterprises, Inc.
75 West Center Street
Provo, Utah 84601
Re: Nu Skin Enterprises, Inc.
Registration Statement on Form S-8
As Assistant General Counsel to Nu Skin Enterprises, Inc., a Delaware
corporation (the "Company"), in connection with the Company's Registration
Statement on Form S-8 (the "Registration Statement") to be filed under the
Securities Act of 1933, as amended, for registration of (i) 290,000 shares (the
"Shares") of the Company's Class A Common Stock, $0.001 par value, to be issued,
offered, and sold by the Company pursuant to outstanding options under the
Generation Health Holdings 1996 Stock Plan and the Generation Health Holdings,
Inc. Scientific Advisory Board Stock Option Plan (the "Plans"), I have examined
the originals or certified, conformed or reproduced copies of all such records,
agreements, instruments and documents as I have deemed necessary as the basis
for the opinion expressed herein. In all such examinations, I have assumed the
genuineness of all signatures on original or certified copies and the conformity
to original or certified copies of all copies submitted to me as conformed or
reproduced copies. As to various questions of fact relevant to the opinion
hereinafter expressed, I have relied upon certificates of public officials and
statements or certificates of officers or representatives of the Company and
others.
Based upon and subject to the foregoing, I am of the opinion that any Shares
issued by the Company, when issued in accordance with the terms and conditions
of the Plans and pursuant to the Registration Statement, will be legally issued,
fully paid and nonassessable.
The Board of Directors of
Nu Skin Enterprises, Inc.
December 3, 1998
Page 2
I hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/ D. Matthew Dorny
D. Matthew Dorny
Assistant General Counsel
Exhibit 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated February 18, 1998, which appears in
the 1997 Annual Report to Stockholders of Nu Skin Enterprises, Inc. (formerly Nu
Skin Asia Pacific, Inc.), which is incorporated by reference in the Nu Skin
Enterprises, Inc. Annual Report on Form 10-K/A for the year ended December 31,
1997. We also consent to the reference to us under the heading "Experts" in such
Registration Statement.
/s/ PricewaterhouseCoopers LLP
PricewaterhouseCoopers LLP
Salt Lake City, Utah
December 1, 1998
