As filed with the Securities and Exchange Commission on January 20, 2000
Registration No. 333-_______
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
NU SKIN ENTERPRISES, INC.
(Exact name of registrant as specified in its charter)
Delaware
(State or other jurisdiction of incorporation or organization)
87-0565309
(I.R.S. Employer Identification No.)
75 West Center Street
Provo, Utah 84601
(Address of Principal Executive Offices and Zip Code)
NU SKIN ENTERPRISES, INC.
2000 EMPLOYEE STOCK PURCHASE PLAN
(Full title of the plan)
Steven J. Lund, President
Nu Skin Enterprises, Inc.
75 West Center Street
Provo, Utah 84601
(801) 345-6100
(Name, address and telephone number, including area code, of agent for service)
Copies to:
Nolan S. Taylor, Esq.
LeBoeuf, Lamb, Greene & MacRae, L.L.P.
1000 Kearns Building
136 South Main Street
Salt Lake City, Utah 84101
(801) 320-6700
M. Truman Hunt
Executive Vice President and General Counsel
Nu Skin Enterprises, Inc.
75 West Center Street
Provo, Utah 84601
(801) 345-6100
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CALCULATION OF REGISTRATION FEE
Proposed Proposed
Title of maximum maximum
securities Amount offering aggregate Amount of
to be to be price offering Registration
registered registered per share(1) price(1) Fee
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<S> <C> <C> <C> <C>
Class A Common Stock, par 200,000 shares $9.25 $1,850,000 $488.40
value $.001 per share
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1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(h)(1) based upon the average of the high and low prices of
the Class A common stock on January 14, 2000 as reported on the New York Stock
Exchange Composite Tape.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
All 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, and the Note to Part I of Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
Nu Skin Enterprises, Inc. incorporates by reference the following documents
that were filed with the Securities Exchange Commission under the Securities
Exchange Act of 1934:
(a) Annual Report on Form 10-K for the fiscal year ended December 31, 1998;
(b) Quarterly Reports on Form 10-Q for the quarter ended March 31, 1999,
the quarter ended June 30, 1999 and the quarter ended September 30, 1999;
(c) Current Reports on Form 8-K dated February 9, 1999, March 23, 1999,
June 25, 1999 and July 28, 1999;
(d) Current Report on Form 8-K/A filed on April 13, 1999; and
(e) The description of Nu Skin Enterprises' Class A common stock contained
in its registration statement on Form 8-A dated November 6, 1996.
All documents subsequently filed by Nu Skin Enterprises pursuant to
Section 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act, 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 herein by reference 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
incorporated by reference herein modifies or supersedes such statement. Any such
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 Nu Skin Enterprises incorporated
by reference into Nu Skin Enterprises' Annual Report on Form 10-K for the year
ended December 31, 1998, and incorporated by reference in this registration
statement, have been incorporated in reliance upon the report of
PricewaterhouseCoopers LLP, independent accountants, given on authority of said
firm as experts in accounting and auditing, and in reliance upon the report of
Grant Thornton LLP, independent accountants, also given on authority of said
firm as experts in accounting and auditing.
Item 4. Description of Securities.
Not applicable.
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Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Section 145 of 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 10 of Nu Skin
Enterprises' Amended and Restated Certificate of Incorporation and Article 5 of
the Nu Skin Enterprises' Bylaws provide 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 Nu Skin
Enterprises' Bylaws permits it to purchase such insurance on behalf of its
directors and officers.
Article 7 of Nu Skin Enterprises' 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 international 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.
Nu Skin Enterprises has entered into indemnity agreements with each of its
directors and executive officers. The indemnity agreements provide that Nu Skin
Enterprises 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 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 Nu
Skin Enterprises) 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 Nu Skin
Enterprises, or is or was serving or at any time serves at the request of Nu
Skin Enterprises 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 Nu Skin Enterprises under the non-exclusivity provisions of
Article 5 of the Bylaws of Nu Skin Enterprises and
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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 Nu Skin Enterprises 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 Nu Skin Enterprises 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
Nu Skin Enterprises, or any other willful and deliberate breach in bad faith of
Indemnitee's duty to Nu Skin Enterprises 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 LeBoeuf, Lamb, Greene & MacRae, L.L.P. regarding the
legality of the securities covered by this Registration Statement
23.1 Consent of PricewaterhouseCoopers LLP, independent accountants
23.2 Consent of Grant Thornton LLP, independent accountants
23.3 Consent of LeBoeuf, Lamb, Greene & MacRae, L.L.P. (included as
part of Exhibit 5.1)
24.1 Power of Attorney (included with the signatures in Part II of the
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 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; and
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(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 of 1933, 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 of 1933, 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 of 1933, 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 January 19, 2000.
NU SKIN ENTERPRISES, INC.
(Registrant)
By: /s/ Steven J. Lund
---------------------------------------------------------------
Steven J. Lund
Its: 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
January 19, 2000 by the following persons in the capacities indicated.
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<CAPTION>
Signature Title Date
<S> <C> <C>
/s/ Blake M. Roney Chairman of the Board January 19, 2000
Blake M. Roney of Directors
/s/ Steven J. Lund President and Chief Executive January 19, 2000
Steven J. Lund Officer and Director
(Principal Executive Officer)
/s/ Corey B. Lindley Chief Financial Officer January 19, 2000
Corey B. Lindley (Principal Financial and
Accounting Officer)
/s/ Sandra N. Tillotson Director January 19, 2000
Sandra N. Tillotson
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/s/ Brooke B. Roney Director January 19, 2000
Brooke B. Roney
/s/ Keith R. Halls Director January 19, 2000
Keith R. Halls
/s/ Max L. Pinegar Director January 19, 2000
Max L. Pinegar
/s/ E.J. "Jake" Garn Director January 19, 2000
E.J. "Jake" Garn
/s/ Paula Hawkins Director January 19, 2000
Paula Hawkins
/s/ Daniel W. Campbell Director January 19, 2000
Daniel W. Campbell
/s/ Andrew D. Lipman Director January 19, 2000
Andrew D. Lipman
</TABLE>
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INDEX TO EXHIBITS
Exhibit
Number Description
5.1 Opinion of LeBoeuf, Lamb, Greene & MacRae, L.L.P. regarding
the legality of the securities covered by this
Registration Statement
23.1 Consent of PricewaterhouseCoopers LLP, independent
accountants
23.2 Consent of Grant Thornton LLP, independent accountants
23.3 Consent of LeBoeuf, Lamb, Greene & MacRae, L.L.P. (included
as part of Exhibit 5.1
24.1 Power of Attorney (included with the signatures in Part II
of the registration statement)
8
Exhibit 5.1
[LeBoeuf, Lamb, Greene & MacRae, L.L.P. Letterhead]
January 19, 2000
Nu Skin Enterprises, Inc.
75 West Center Street
Provo, Utah 84601
Ladies and Gentleman:
You have requested our opinion as counsel for Nu Skin Enterprises,
Inc., a Delaware corporation (the "Company"), in connection with the
registration statement on Form S-8 (the "Registration Statement"), which the
Company proposes to file with the Securities and Exchange Commission on or
shortly after the date hereof under the Securities Act of 1933 with respect to
200,000 shares of its Class A common stock, $.01 par value (The "Class A Common
Stock"), to be issued pursuant to the Company's 2000 Employee Stock Purchase
Plan (the "Plan").
In connection with this opinion, we have examined the Registration
Statement and such instruments, certificates, records and documents, and such
matters of law, as we have considered necessary or appropriate 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 latter documents. As to any fact material
to our opinion, we have relied upon the aforesaid Registration Statement,
instruments, certificates, records and documents.
Upon the basis of such examination, and subject to the limitations
and qualifications contained in this opinion, we are of the opinion that, upon
issuance, delivery and payment therefor, in accordance with the terms of the
Plan, the Class A Common Stock will be validly issued, fully paid and
nonassessable.
This opinion is limited to the General Corporation Law of the State
of Delaware and the Federal laws of the United States.
<PAGE>
Nu Skin Enterprises, Inc.
January 19, 2000
Page 2
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/ LeBoeuf, Lamb, Greene & MacRae, L.L.P.
cc: M. Truman Hunt
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 17, 1999 relating to the
financial statements, which appears in Nu Skin Enterprises' Annual Report on
Form 10-K for the year ended December 31, 1998. 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
January 17, 2000
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in the Registration
Statement on Form S-8 of our report dated April 1, 1998, relating to the
financial statements of the Nu Skin Acquired Entities for the years ended
December 31, 1996 and 1997, which appears in Nu Skin Enterprises' Annual Report
on Form 10-K for the year ended December 31, 1998. We also consent to the
reference to us under the heading "Experts" in such registration Statement.
GRANT THORNTON LLP
Provo, Utah
January 17, 2000
