Exhibit 4.8
NU SKIN ENTERPRISES,
INC.
STOCK REPURCHASE
AGREEMENT
This Stock Repurchase Agreement
(this “ Agreement ”) is made as of July 27,
2004, by and among Nu Skin Enterprises, Inc., a Delaware
corporation (the “ Company ”), and the
stockholders of the Company listed on Schedule I attached
hereto (each a “ Selling Stockholder ” and
together the “ Selling Stockholders
”).
In consideration of the mutual
covenants and agreements contained herein and other good and
valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as
follows:
1. Repurchase and Sale of
Common Stock .
1.1 Sale and Issuance of
Common Stock .
(a) Subject to the terms and
conditions of this Agreement and the Company’s delivery of
notice to the Selling Stockholders pursuant to Section 5 of that
certain Lock-Up Agreement dated as of October 22, 2003, by and
among the Company and certain of its stockholders party thereto
(the “ Lock-Up Agreement ”), (i) the Company
agrees to repurchase that number of shares of the Company’s
Class A Common Stock, par value $0.001 (the “ Stock
”), listed opposite the name of each of the Selling
Stockholders on Schedule I, and (ii) each of the Selling
Stockholders, severally and not jointly, agrees to sell that number
of shares of the Stock listed opposite such Selling
Stockholder’s name on Schedule I. The repurchase price of the
shares of the Stock to be paid by the Company under this Agreement
shall be equal to the lesser of (A) 94% of the closing sale price
of the Stock on July 27, 2004 (the “ Notice Date
”) which is the date the Company will give notice to the
Selling Stockholders that the Company is exercising its right to
purchase shares of the Stock pursuant to the terms and conditions
of the Lock-Up Agreement or (B) 94% of the average closing sale
price of the Company’s Class A Common Stock on the Notice
Date and the 14 trading days immediately preceding such date (the
“ Per Share Purchase Price ”). The aggregate Per
Share Purchase Price shall be payable in cash by wire transfer or
delivery of other immediately available funds pursuant to the
Escrow Agreement (as defined below) and in the amounts set forth on
Schedule I.
1.2 Closing; Delivery
.
(a) The repurchase and sale of the
Stock (the “ Closing ”) shall take place at the
offices of Simpson Thacher & Bartlett LLP, 3330 Hillview
Avenue, Palo Alto, California 94304 (or such other location
mutually agreeable to the parties hereto) no later than the fourth
(4th) business day after the date of this Agreement.
(b) Upon execution of this
Agreement, each Selling Stockholder shall deliver to American Stock
Transfer & Trust Company, as custodian (the “
Custodian ”), a
certificate or certificates for the number of
shares of the Stock to be sold by such Selling Stockholder pursuant
to this Agreement.
(c) Prior to Closing, the Company
shall deliver to Bank One, N.A. (the “ Escrow Agent
”) pursuant to an escrow agreement (the “ Escrow
Agreement ”) (a form of which is attached hereto as
Exhibit A ) among the Escrow Agent, the Company, the Selling
Stockholders and the purchasers listed on Schedule II (the “
Purchasers ”) of that certain Stock Purchase
Agreement, dated as of July 26, 2004 (the “ Stock Purchase
Agreement ”), cash by wire transfer or delivery of other
immediately available funds in the amounts set forth opposite the
names of the Selling Stockholders on Schedule I.
2. Representations and
Warranties of the Selling Stockholders . Each Selling
Stockholder severally and not jointly represents and warrants to
the Company as of the date hereof and as of the Closing as
follows:
2.1 Authorization of
Agreements . Such Selling Stockholder has the full right,
power and authority to enter into this Agreement, the Escrow
Agreement, the Power of Attorney and the Custody Agreement referred
to in Section 2.3 below and to sell, transfer and deliver the Stock
to be sold by such Selling Stockholder hereunder, and this
Agreement, the Escrow Agreement, the Power of Attorney and the
Custody Agreement, when executed and delivered by such Selling
Stockholder, will each constitute a valid and legally binding
obligation of the Selling Stockholder, enforceable against the
Selling Stockholder in accordance with its terms except as limited
by applicable bankruptcy, insolvency, reorganization, moratorium,
fraudulent conveyance, and other laws of general application
affecting enforcement of creditors’ rights generally, and as
limited by laws relating to the availability of specific
performance, injunctive relief, or other equitable remedies. The
execution and delivery of this Agreement, the Escrow Agreement, the
Power of Attorney and Custody Agreement and the sale and delivery
of the Stock to be sold by such Selling Stockholder and the
consummation of the transactions contemplated herein and therein
and compliance by such Selling Stockholder with its obligations
hereunder and thereunder have been duly authorized by such Selling
Stockholder and do not and will not, whether with or without the
giving of notice or passage of time or both, conflict with or
constitute a breach of, or default under, or result in the creation
or imposition of any tax, lien, charge or encumbrance upon the
Stock to be sold by such Selling Stockholder or any property or
assets of such Selling Stockholder pursuant to any contract,
indenture, mortgage, deed of trust, loan or credit agreement, note,
license, lease or other agreement or instrument to which such
Selling Stockholder is a party or by which such Selling Stocking
may be bound, or to which any of the property or assets of such
Selling Stockholder is subject, nor will such action result in any
violation of the provisions of the charter or bylaws or other
organizational instrument of such Selling Stockholder, if
applicable, or any applicable treaty, law, statute, rule,
regulation, judgment, order, writ or decree of any government,
government instrumentality or court, domestic or foreign, having
jurisdiction over such Selling Stockholder or any of its
properties.
2.2 Valid Title . Such
Selling Stockholder has and will at the Closing have valid title
to, or a valid “security entitlement” within the
meaning of Section 8-501 of the New York Uniform Commercial Code in
respect of, the Stock to be sold by such Selling Stockholder
hereunder, free and clear of any security interest, mortgage,
pledge, lien, charge, claim, equity or encumbrance of any kind,
other than pursuant to this Agreement; and upon delivery of
such
-2-
Stock and payment of the repurchase price
therefor as herein contemplated, assuming the Company has no notice
of any adverse claim, the Company will receive valid title to the
Stock repurchased by it from such Selling Stockholder, free and
clear of any security interest, mortgage, pledge, lien, charge,
claim, equity or encumbrance of any kind.
2.3 Due Execution of Escrow
Agreement, Power-of-Attorney and Custody Agreement . Such
Selling Stockholder has duly executed and delivered, in the form
heretofore furnished to the Company, the Escrow Agreement, the
Power of Attorney (the “ Power-of-Attorney ”)
(the form of which is attached hereto as Exhibit B) with Blake M.
Roney and Brooke B. Roney as attorneys-in-fact (each an “
Attorney-in–Fact ”) and the Custody Agreement
(the “ Custody Agreement ”) (the form of which
is attached hereto as Exhibit C) with American Stock Transfer &
Trust Company as the Custodian; the Custodian is authorized to
deliver the Stock to be sold by such Selling Stockholder hereunder;
and each Attorney-in-Fact is authorized to execute and deliver this
Agreement on behalf of such Selling Stockholder, to sell, assign
and transfer to the Company the Stock to be sold by such Selling
Stockholder hereunder, to authorize the delivery of the Stock to be
sold by such Selling Stockholder hereunder and otherwise to act on
behalf of such Selling Stockholder in connection with this
Agreement.
2.4 Absence of
Manipulation . Such Selling Stockholder has not taken, and
will not take prior to the Closing, directly or indirectly, any
action which is designed to or which has constituted or which might
reasonably be expected to cause or result in stabilization or
manipulation of the price of any security of the Company to
facilitate the sale or resale of the Stock.
2.5 Absence of Further
Requirements . No filing with, or consent, approval,
authorization, order, registration, qualification or decree of, any
court or governmental authority or agency, domestic or foreign, is
necessary or required for the performance by each Selling
Stockholder of its obligations under this Agreement or under the
Custody Agreement, or in connection with the sale and delivery of
the Stock or the consummation of the transactions contemplated by
this Agreement except such as may have previously been made or
obtained or as may be required under the Securities Act of 1933, as
amended (the “ Securities Act ”), or state
securities laws.
2.6 Certificates Suitable for
Transfer . Certificates for all of the Stock to be sold by
such Selling Stockholder pursuant to this Agreement in suitable
form for transfer by delivery or accompanied by duly executed
instruments of transfer or assignment in blank with signatures
guaranteed have been placed in custody with the Custodian with
irrevocable conditional instructions to deliver such Stock to the
Company pursuant to this Agreement.
2.7 Tax Advisors .
Such Selling Stockholder has reviewed with its own tax advisors the
U.S. federal, state, local and foreign tax consequences of the
transactions contemplated by this Agreement. With respect to such
matters, such Selling Stockholder relies solely on such advisors
and not on any statements or representations of the Company or any
of its agents, written or oral. Such Selling Stockholder
understands and agrees that it (and not the Company) shall be
responsible for its own tax liability that may arise as a result of
the transactions contemplated by this Agreement.
-3-
2.8 Access to Data .
Such Selling Stockholder has been given the opportunity to ask
questions of, and has received answers from, the Company with
respect to the terms and conditions of this Agreement, the Power of
Attorney, the Custody Agreement and the Lock-Up Agreements and
publicly available information relating to the business or
financial condition of the Company. Suc
