CONSULTING AGREEMENT
This
Consulting Agreement (the “ Agreement ”) is made
and entered into effective as of March 1, 2009 by and among Nu Skin
International Management Group, Inc., a Utah corporation (“
Nu Skin ” ), and Gary Sumihiro, an individual
(“ Consultant ”). Nu Skin and Consultant are
sometimes referred to herein collectively as the “
parties ” and individually as a “ party
.”
RECITALS
A.
Consultant has been serving as the President and Representative
Director of Nu Skin Japan Co. Ltd. Consultant has elected to resign
as an employee of Nu Skin Japan Co. Ltd. and as Representative
Director, which resignation will take effect on March 1,
2009.
B.
Nu Skin would like to retain Consultant as an independent
contractor to provide consulting services to Nu Skin Japan Co. Ltd.
with respect to government relations and media relations in Japan
and to provide input and guidance on distributor compliance and
education issues.
C.
Consultant is willing to provide such services as an independent
contractor consultant on the terms and conditions set forth in this
Agreement.
AGREEMENT
NOW,
THEREFORE, in consideration of the mutual promises set forth in
this Agreement, the parties hereby agree as follows.
1.
Engagement . Nu Skin hereby engages Consultant as an
independent contractor to provide the Consulting Services (as
defined in Section 2 below) to Nu Skin and its affiliated entities
during the Consulting Term (as defined in Section 6), and
Consultant hereby accepts such engagement on the terms and
conditions set forth herein. Consultant may provide such services
as an individual in his own name, or through a business entity
established for that purpose. In the event that Consultant provides
services through a business entity, then both Consultant and the
business entity shall be subject to all of the obligations
hereunder.
2.
Consulting Services . During the Consulting Term,
Consultant shall be located in Japan and shall consult with Nu Skin
Japan concerning government and media relations, distributor
compliance and training issues as more fully described on Schedule
A to this Agreement (the “ Consulting Services
”), which Schedule A must be signed and dated by both parties
to be effective and to provide such other consulting services, if
any, as mutually agreed to by the parties through future amendment
to Schedule A. Consultant agrees to devote such time and attention
as reasonably necessary to fulfill Consultant’s good faith
and other contractual obligations to provide the Consulting
Services contemplated hereby. Except as otherwise provided by
provisions of Section 7.1 below, nothing herein shall preclude
Consultant from simultaneously pursuing such other independent
investments and activities with third parties as he desires during
the Consulting Term as long as such investments and activities do
not interfere with, or impair his ability to perform, his
obligations under this Agreement. Consultant also agrees that
during the Consulting Term he will not contact any distributors of
Nu Skin without the prior consent of Brett Nelson, and should such
distributors contact Consultant, Consultant will not engage in any
substantive discussion with them related to the direct selling
business, Nu Skin, or any matter related thereto without the prior
consent of Brett Nelson. As part of his Consulting Services,
Consultant shall provide weekly updates to Brett Nelson as to his
consulting activities and shall also disclose to Nu Skin his
government and media contacts except to the extent Consultant is
prohibited from disclosing such information pursuant to a valid and
enforceable confidentiality agreement, provided, however, in such
case that Consultant takes reasonable steps to get permission to
disclose such contacts subject to Nu Skin agreeing to maintain such
confidentiality.
3.
Professional Standards . Recognizing and
acknowledging that it is essential for the protection and
enhancement of the name and business of Nu Skin and its affiliates
and the immense good will pertaining thereto, Consultant shall
perform his duties under this Agreement professionally and
diligently, and shall not act, and shall refrain from acting, in
any manner that could harm or tarnish the name, business or income
of Nu Skin or its affiliates or the immense good will pertaining
thereto. Consultant agrees to perform all services hereunder in
strict compliance with all applicable legal
requirements.
4.
Consulting Fees .
4.1.
Consulting Fee . During the Consulting Term, Nu Skin agrees
to pay Consultant a monthly consulting fee equal to $2,500 per
month.
4.2.
Additional Fees . In the event that Consultant diligently
performs the consulting services during the full Consulting Term
(i.e., through July 31, 2008) and there are no material government
investigations, negative media coverage, or business sanctions
issued in 2009, Nu Skin shall pay Consultant a completion bonus of
$125,748 on December 31, 2009. This payment shall be payable by Nu
Skin only if Consultant signs a release of claims following the
Consulting Term releasing Nu Skin from any and all claims. Such
release shall be in addition to the release of claims being
executed simultaneously with this Consulting Agreement.
Notwithstanding the foregoing, nothing in the releases being signed
or to be signed shall be construed to limit Consultant’s
rights or claims set forth in the agreements Consultant entered
into as a Nu Skin employee and related to Nu Skin’s deferred
compensation plan, Nu Skin’s 401(k) plan, and
Consultant’s stock option agreements.
5.
Reimbursement of Expenses . Nu Skin agrees to
reimburse Consultant for, or pay directly, the following expenses
related to the Consulting Services to be provided by Consultant
hereunder and his assignment in Japan:
5.1.
Support Services . Throughout the Consulting Term, Nu Skin
shall make available to Consultant, at Nu Skin’s expense,
reasonable administrative and interpretation support services for
use solely in the performance of the Consulting Services. These
services must be coordinated with and approved in advance by Brett
Nelson.
5.2.
Business Expenses. Nu Skin shall reimburse Consultant for
reasonable expenses Consultant incurs in connection with the
services provided hereunder, provided such expenses have been
approved in advance by Brett Nelson and Consultant submits adequate
documentation for such expenses including the purpose of the
expense and the names of all persons who participated in any
meetings or lunches covered by such expenses.
6.
Term and Termination.
6.1.
Term of Agreement . Subject to early termination pursuant to
Section 6.3 or 6.4 below, this Agreement shall become effective as
of the date first set forth above and shall terminate on July 31,
2009 (the “Consulting Term” ).
6.2.
Consequences of Termination . Upon the termination of this
Agreement, all of the parties’ obligations under this
Agreement shall terminate and each party shall be released from all
obligations hereunder except (i) the provisions of Sections 7, 8,
9, 15, and 16 shall survive the termination of this Agreement and
remain in full force and effect, (ii) Nu Skin shall remain
obligated to pay any unpaid portion of the base consulting fee that
accrued through the termination of this Agreement and the
Additional Fees to the extent it has been earned as set forth
above, and (iii) Nu Skin shall remain liable for reimbursing any
expenses incurred by Consultant prior to the termination of this
Agreement that are required to be reimbursed under Section 5 above.
Notwithstanding the termination of this Agreement, no party shall
be released from any liability arising from its breach of any
provision of this Agreement prior to its termination or for any
breach of any provisions which survive the termination of this
Agreement following such termination.
6.3.
Right of Nu Skin to Terminate . Nu Skin shall have the right
to terminate this Agreement immediately if Consultant commits a
material breach of this Agreement.
6.4.
Right of Consultant to Terminate . Consultant shall have the
right to terminate this Agreement immediately if Nu Skin commits a
material breach of this Agreement. In addition, Consultant shall
have the right to terminate this Agreement by providing 30 days
advance notice at any time of his election to terminate this
Agreement at his discretion.
7.
Restrictive Covenants.
7.1.
Non-Competition . During the Restrictive Period, Consultant
shall not, directly o