EX-3.3(I)
NU SKIN ASIA PACIFIC, INC.
CERTIFICATE OF DESIGNATION, PREFERENCES AND RELATIVE
PARTICIPATING, OPTIONAL AND OTHER SPECIAL RIGHTS
OF PREFERRED STOCK AND QUALIFICATIONS,
LIMITATIONS AND RESTRICTIONS THEREOF
SERIES A PREFERRED STOCK
(Par Value $0.001 per share)
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Pursuant to Section 151 of the
General Corporation Law of the State of Delaware
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NU SKIN ASIA PACIFIC, INC., a corporation organized and existing
under the General Corporation Law of the State of Delaware (the "Corporation"),
does hereby certify that, pursuant to the provisions of Section 151 of the
General Corporation Law of the State of Delaware, the Board of Directors of the
Corporation (the "Board of Directors"), at a meeting of the Board of Directors
duly held on February 24, 1998, adopted the following resolution, which
resolution remains in full force and effect as of the date hereof:
WHEREAS, the Board of Directors is authorized, within the
limitations and restrictions stated in the Certificate of Incorporation of the
Corporation, to fix by resolution or resolutions the designations of each series
of preferred stock of the Corporation (the "Preferred Stock") and the powers,
preferences and relative, participating, optional or other special rights and
the qualifications, limitations or restrictions thereof, including, without
limitation, such provisions as may be desired concerning voting, redemption,
dividends, dissolution or distribution of assets, conversion or exchange, and
such other subjects or matters as may be fixed by resolutions of the Board of
Directors under the General Corporation Law of the State of Delaware, and
WHEREAS, it is the desire of the Board of Directors, pursuant to
its authority as aforesaid, to authorize and fix the terms of one series of
Preferred Stock and the number of shares constituting such series,
NOW, THEREFORE, BE IT RESOLVED, that there is hereby authorized
such series of Preferred Stock on the terms and with the provisions herein set
forth:
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1. Designation and Amount. The distinctive serial designation of
this series shall be "Series A Preferred Stock" (the "Series A Preferred
Stock"). The number of authorized shares of Series A Preferred Stock
shall be 2,986,663.
2. Definitions. For purposes of the Series A Preferred Stock, in
addition to those terms otherwise defined herein, the following terms
shall have the meanings indicated:
"Board of Directors" shall mean the board of directors of
the Corporation or any committee authorized by such Board of
Directors to perform any of its responsibilities with respect to
the Series A Preferred Stock.
"Business Day" shall mean any day other than a Saturday,
Sunday or a day on which banking institutions in the City of New
York are authorized or obligated by law or executive order to
close.
"Class A Common Stock" shall mean the Class A Common Stock
of the Corporation, par value $.001 per share.
"Class B Common Stock" shall mean the Class B Common Stock
of the Corporation, par value $.001 per share.
"Common Stock" shall mean the Class A Common Stock, the
Class B Common Stock and all other classes of common stock of the
Corporation.
"Dividend Periods" shall mean quarterly dividend periods
commencing on the first day of January, April, July and October
of each year and ending on and including the day preceding the
first day of the next succeeding Dividend Period (other than the
initial Dividend Period which shall commence on the Preference
Date and end on and include December 31, 1998).
"Preference Date" shall mean September 30, 1998.
"Preference Value" shall mean $14.0625.
"Redemption Price" shall mean the lower of (i) the
Preference Value or (ii) 60% of the average of the last sales
prices per share of the Class A Common Stock of the Corporation
on the New York Stock Exchange for the 20 consecutive trading
days ending on the trading day which is five trading days prior
to the date of redemption pursuant to Section 7 hereof.
"Stock Repurchase Program" shall mean [the stock
repurchase program approved by the Board of Directors of the
Corporation on February 12, 1998].
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"Stockholder Approval" shall mean approval by the
stockholders of the Corporation at an annual or special meeting
or by written consent of such stockholders of a resolution
approving the conversion of the Series A Preferred Stock to Class
A Common Stock in compliance with Rule 312.03 of the New York
Stock Exchange (or a determination by the Board of Directors that
such approval is not required).
3. Dividends. (a) Prior to the Preference Date, so long as any
shares of the Series A Preferred Stock are outstanding, except for (i)
purchases of Common Stock by the Corporation pursuant to its stock
repurchase program, (ii) the making of any payments by the Corporation
with respect to any options or rights to purchase securities granted
pursuant to any employee benefit plan or program of the Corporation or
with respect to the exercise of any such option or right, (iii) the
purchase of stock of the Corporation ranking junior to the Series A
Preferred Stock as to dividends and upon liquidation, dissolution or
winding up in exchange for, or out of the proceeds of the
contemporaneous issuance of, other stock of the Corporation ranking
junior to the Series A Preferred Stock as to dividends and upon
liquidation, dissolution or winding up, or (iv) any redemption or
conversion of shares of the Series A Preferred stock in accordance with
the terms hereof, no dividends shall be declared or paid or set apart
for payment on any class or series of stock of the Corporation ranking,
as to dividends, on a parity with or junior to the Series A Preferred
Stock (including the Common Stock), for any period unless an equal per
share dividend shall be declared, paid or set apart, as the case may be,
on the Series A Preferred Stock nor shall any such stock of the
Corporation ranking on a parity with the Series A Preferred Stock or
junior to the Series A Preferred Stock as to dividends or upon
liquidation, dissolution or winding up (including the Common Stock) be
redeemed, purchased or otherwise acquired for any consideration (or any
moneys be paid to or made available for a sinking fund or otherwise for
the purchase or redemption of any shares of any such stock) by the
Corporation.
(b) In the event that Stockholder Approval has not been obtained
prior to the Preference Date, and so long as any shares of the Series A
Preferred Stock are outstanding, the following shall apply from and
after such Preference Date:
(i) Holders of shares of the Series A Preferred Stock will
be entitled to receive, when, as and if declared by the Board of
Directors, out of the funds of the Corporation legally available
therefor, an annual cash dividend at the rate of 7% of the
Preference Value per share of Series A Preferred Stock per annum,
payable in quarterly installments on March 31, June 30, September
30 and December 31 (each a "Dividend Payment Date"), commencing
December 31, 1998 (and, in the case of any accrued but unpaid
dividends, at such additional times and for such interim periods,
if any, as determined by the Board of Directors). If any Dividend
Payment Date shall be on a day other than a
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Business Day, then the Dividend Payment Date shall be on the next
succeeding Business Day. Dividends on the Series A Preferred
Stock will be cumulative from (but not before) the Preference
Date, whether or not in any Dividend Period or Periods there
shall be funds of the Corporation legally available for the
payment of such dividends and whether or not such dividends are
declared, and will be payable to holders of record as they appear
on the stock books of the Corporation on such record dates (each
such date, a "Dividend Payment Record Date"), which shall be not
more than 60 days nor less than 10 days preceding the Dividend
Payment Dates thereof, as shall be fixed by the Board of
Directors. Dividends on the Series A Preferred Stock shall accrue
(whether or not declared) on a daily basis from the Preference
Date and accrued dividends for each Dividend Period shall
accumulate to the extent not paid on the Dividend Payment Date
first following the Dividend Period for which they accrue. As
used herein, the term "accrued" with respect to dividends
includes both accrued and accumulated dividends.
(ii) The amount of dividends payable for each full
Dividend Period for the Series A Preferred Stock shall be
computed by dividing the annual dividend rate by four (rounded
down to the nearest cent). The amount of dividends payable for
the initial Dividend Period on the Series A Preferred Stock, or
any other period shorter or longer than a full Dividend Period on
the Series A Preferred Stock shall be computed on the basis of a
360-day year consisting of twelve 30-day months. Holders of
shares of Series A Preferred Stock called for redemption on a
redemption date falling between the close of business on a
Dividend Payment Record Date and the opening of business on the
corresponding Dividend Payment Date shall, in lieu of receiving
such dividend on the Dividend Payment Date fixed therefor,
receive such dividend payment together with all other accrued and
unpaid dividends on the date fixed for redemption. No interest,
or sum of money in lieu of interest, shall be payable in respect
of any dividend payment or payments on the Series A Preferred
Stock which may be in arrears.
(iii) No dividends, except as described in the next
succeeding sentence, shall be declared or paid or set apart for
payment on any class or series of stock of the Corporation
ranking, as to dividends, on a parity with the Series A Preferred
Stock, for any period unless full cumulative dividends have been
or contemporaneously are declared and paid or declared and a sum
sufficient for the payment thereof set apart for such payment on
the Series A Preferred Stock for all Dividend Periods terminating
on or prior to the date of payment, or setting apart for payment,
of such dividends on such parity stock. When dividends are not
paid in full or a sum sufficient for such payment is not set
apart, as aforesaid, upon the shares of the Series A Preferred
Stock and any other class or series of stock ranking on a parity
as to dividends with the Series
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A Preferred Stock, all dividends declared upon shares of the
Series A Preferred Stock and all dividends declared upon such
other stock shall be declared pro rata so that the amounts of
dividends per share declared on the Series A Preferred Stock and
such other stock shall in all cases bear to each other the same
ratio that accrued dividends per share on the shares of the
Series A Preferred Stock and on such other stock bear to each
other.
(iv) No other stock of the Corporation ranking on a parity
with the Series A Preferred Stock as to dividends or upon
liquidation, dissolution or winding up shall be redeemed,
purchased or otherwise acquired for any consideration (or any
moneys be paid to or made available for a sinking fund or
otherwise for the purchase or redemption of any shares of any
such stock) by the Corporation (except for (i) the making of any
payments by the Corporation with respect to any options or rights
to purchase securities granted pursuant to any employee benefit
plan or program of the Corporation or with respect to the
exercise of any such option or right, or (ii) any redemption or
conversion of shares of the Series A Preferred stock in
accordance with the terms hereof) unless (A) the full cumulative
dividends, if any, accrued on all outstanding shares of the
Series A Preferred Stock shall have been paid or set apart for
payment for all past Dividend Periods and (B) sufficient funds
shall have been set apart for the payment of the dividend for the
current Dividend Period with respect to the Series A Preferred
Stock.
(v) No dividends (other than dividends or distributions
paid in shares of, or options, warrants or rights to subscribe
for or purchase shares of, Common Stock or other stock ranking
junior to the Series A Preferred Stock, as to dividends and upon
liquidation, dissolution or winding up) shall be declared or paid
or set apart for payment and no other distribution shall be
declared or made or set apart for payment, in each case upon the
Common Stock or any other stock of the Corporation ranking junior
to the Series A Preferred Stock as to dividends or upon
liquidation, dissolution or winding up, nor shall any Common
Stock nor any other such stock of the Corporation ranking junior
to the Series A Preferred Stock as to dividends or upon
liquidation, dissolution or winding up be redeemed, purchased or
otherwise acquired for any consideration (or any moneys be paid
to or made available for a sinking fund or otherwise for the
purchase or redemption of any shares of any such stock) by the
Corporation (except for (i) purchases of Common Stock by the
Corporation pursuant to [the Stock Repurchase Program], (ii) the
making of any payments by the Corporation with respect to any
options or rights to purchase shares of Common Stock granted
pursuant to any employee benefit plan or program of the
Corporation or with respect to the exercise of any such option or
right, or (iii) the purchase of stock of the Corporation ranking
junior to the Series A Preferred Stock as to dividends and upon
liquidation, dissolution or winding up in exchange for, or
<PAGE>
out of the proceeds of the contemporaneous issuance of, other
stock of the Corporation ranking junior to the Series A Preferred
Stock as to dividends and upon liquidation, dissolution or
winding up) unless, in each case (A) the full cumulative
dividends, if any, accrued on all outstanding shares of the
Series A Preferred Stock and any other stock of the Corporation
ranking on a parity with the Series A Preferred Stock as to
dividends shall have been paid or set apart for payment for all
past Dividend Periods and all past dividend periods with respect
to such other stock and (B) sufficient funds shall have been set
apart for the payment of the dividend for the current Dividend
Period with respect to the Series A Preferred Stock and for the
current dividend period with respect to any other stock of the
company ranking on a parity with the Series A Preferred Stock as
to dividends.
(c) The holders of shares of Series A Preferred Stock shall not
be entitled to receive any dividends or other distributions except as
provided in this Section 3.
4. Liquidation Preference. (a) In the event of any voluntary or
involuntary liquidation, dissolution or winding up of the affairs of the
Corporation, then, before any distribution or payment shall be made to
the holders of the Common Stock or any other series or class or classes
of stock of the corporation ranking junior to the Series A Preferred
Stock, each holder of Series A Preferred Stock then outstanding shall be
entitled to be paid, in respect of each share of Series A Preferred
Stock then held, out of the assets of the Corporation available for
distribution to its stockholders an amount in cash equal to the
Preference Value of such share of Series A Preferred Stock (collectively
for all shares of Series A Preferred Stock outstanding, the "Series A
Preference Amount"). After payment of the Series A Preference Amount,
holders of the Common Stock shall be entitled to receive, from any
remaining assets available for distribution, a per share distribution
equal to the Series A Preference Amount previously distributed to the
holders of Series A Preferred Stock (the "Common Preference Amount").
After such distributions to the holders of each outstanding share of
Series A Preferred Stock and each outstanding share of Common Stock, any
remaining assets available for distribution shall be distributed to the
holders of shares of Series A Preferred Stock and shares of Common Stock
pro rata based on the total number of such shares held by each holder.
(b) The sale, conveyance, exchange or transfer (for cash, shares
of stock, securities or other consideration) of all or substantially all
the property or assets of the Corporation or the consolidation or merger
of the Corporation with any other entity (other than any such
consolidation or merger in which the Series A Preferred Stock then
issued and outstanding remain outstanding immediately thereafter) shall
be deemed to be a voluntary or involuntary liquidation, dissolution or
winding up of the Corporation for purposes of this Section 4.
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(c) If the assets of the Corporation are not sufficient to
generate cash sufficient to pay in full the Series A Preference Amount,
then the holders of Series A Preferred Stock shall share ratably in any
distribution of cash generated by such assets in accordance with the
respective amounts that would be payable on such distribution if the
amounts to which the holders of outstanding shares of Series A Preferred
Stock are entitled were paid in full.
(d) If, after payment of the Series A Preference Amount, the
remaining assets of the Corporation are not sufficient to generate cash
sufficient to pay in full the Common Preference Amount, then the holders
of Common Stock shall share ratably in any distribution of cash
generated by such remaining assets in accordance with the respective
amounts that would be payable on such distribution if the amounts to
which the holders of outstanding shares of Common Stock are entitled
were paid in full.
(e) In case the outstanding shares of Series A Preferred Stock or
shares of Common Stock are subdivided into a greater number of shares of
Series A Preferred Stock or Common Stock, as the case may be, the Series
A Preference Amount or the Common Preference Amount, as applicable, in
effect immediately prior to each such subdivision shall, simultaneously
with the effectiveness of such subdivision, be proportionately reduced
and, conversely, in case the outstanding shares of Series A Preferred
Stock or shares of Common Stock shall be combined into a smaller number
of shares of Series A Preferred Stock or shares of Common Stock, as the
case may be, the Series A Preference Amount or the Common Preference
Amount, as applicable, in effect immediately prior to each such
combination shall, simultaneously with the effectiveness of such
combination, be proportionately increased.
5. Voting Rights. (a) General. The holders of Series A Preferred
Stock shall not have any voting rights except as set forth below or as
otherwise from time to time required by law. In connection with any
right to vote, each holder of Series A Preferred Stock will have one
vote for each share held. Any shares of Series A Preferred Stock held by
the Corporation or any entity controlled by the Corporation shall not
have voting rights hereunder and shall not be counted in determining the
presence of a quorum.
(b) Default Voting Rights. Whenever dividends on the Series A
Preferred Stock or any outstanding shares of stock on a parity as to
dividends with the Series A Preferred Stock ("parity dividend stock")
shall be in arrears in an amount equal to at least six quarterly
dividends (whether or not consecutive), (i) the number of members of the
Board of Directors of the Corporation shall be increased by two,
effective as of the time of election of such directors as hereinafter
provided, and (ii) the holders of the Series A Preferred Stock (voting
separately as a class with all other affected classes or series of the
parity dividend stock upon which like voting rights have been conferred
and are exercisable) will have the exclusive right to vote for and elect
such two
<PAGE>
additional directors of the Corporation at any meeting of stockholders
of the Corporation at which directors are to be elected held during the
period such dividends remain in arrears. The right of the holders of the
Series A Preferred Stock to vote for such two additional directors shall
terminate when all accrued and unpaid dividends on the Series A
Preferred Stock have been declared and paid or set apart for payment.
The directors elected pursuant to this Section shall serve until the
earlier of (i) the next annual meeting or until their respective
successors shall be elected and shall qualify or (ii) until such time as
all dividends accumulated on Series A Preferred Stock shall have been
paid or declared and funds set aside for payment in full; any director
elected by the holders of the Series A Preferred Stock may be removed
by, and shall not be removed otherwise than by, the vote of the holders
of a majority of the voting power of the outstanding shares of the
Series A Preferred Stock who were entitled to participate in such
election of directors, voting as a separate class, at a meeting called
for such purpose or by written consent as permitted by law and the
Certificate of Incorporation and Bylaws of the Corporation.
The foregoing right of the holders of the Series A Preferred
Stock with respect to the election of two directors may be exercised at
any annual meeting of stockholders or at any special meeting of
stockholders held for such purpose. If the right to elect directors
shall have accrued to the holders of the Series A Preferred Stock more
than 90 days preceding the date established for the next annual meeting
of stockholders, the President of the Corporation shall, within 20 days
after the delivery to the Corporation at its principal office of a
written request for a special meeting signed by the holders of at least
ten percent (10%) of the Series A Preferred Stock then outstanding, call
a special meeting of the holders of the Series A Preferred Stock to be
held within 60 days after the delivery of such request for the purpose
of electing such additional directors.
(c) Class Voting Rights. So long as shares of the Series A
Preferred Stock are outstanding, the Corporation shall not, without the
affirmative vote or consent of the holders of at least sixty-six and
two-thirds percent (66 2/3%) of all outstanding Series A Preferred Stock
outstanding at the time, voting separately as a class, in person or by
proxy, either in writing or at a meeting (i) authorize, create or issue,
or increase the authorized or issued amount of, any class or series of
stock ranking prior to or on a parity with the Series A Preferred Stock
with respect to payment of dividends or the distribution of assets upon
liquidation, dissolution or winding up of the Corporation, or reclassify
any authorized capital stock of the Corporation into any such shares, or
create, authorize or issue any obligation or security convertible into
or evidencing the right to purchase any such shares; or (ii) amend,
alter or repeal (whether by merger, consolidation or otherwise) any
provision of the Corporation's Certificate of Incorporation or the
resolutions of the Board of Directors contained in this Certificate of
Designation, so as to materially and adversely affect any right,
preference, privilege or voting power of the Series A Preferred Stock or
the holders thereof; provided, however, that any increase in the amount
of the authorized preferred stock of the
<PAGE>
Corporation or the creation or issuance of any other series of preferred
stock of the Corporation, or any increase in the amount of authorized
shares of Series A Preferred Stock or of any other series of preferred
stock of the Corporation, in each case ranking junior to the Series A
Preferred Stock, shall not be deemed to materially and adversely affect
such rights, preferences, privileges or voting powers. A class vote on
the part of the Series A Preferred Stock shall, without limitation,
specifically not be deemed to be required (except as otherwise required
by law or resolution of the Corporation's Board of Directors) (a) in
connection with an amendment to the Corporation's Certificate of
Incorporation, to increase the number of authorized shares of preferred
stock of the Corporation; or (b) if, at or prior to the time when the
act with respect to which such vote would otherwise be required shall be
effected, all outstanding shares of Series A Preferred Stock shall have
been converted pursuant to Section 6 hereof or shall have been redeemed
pursuant to Section 7 hereof or called for redemption pursuant thereto
and sufficient funds and Redemption Notes shall have been deposited in
trust to effect such redemption.
6. Conversion. (a) Upon Stockholder Approval, all of the issued
and outstanding shares of Series A Preferred Stock shall automatically
convert into fully paid and non assessable shares of Class A Common
Stock at a conversion ratio (the "Conversion Ratio") of one share of
Class A Common Stock for each share of Series A Preferred Stock, subject
to adjustment pursuant to this Section 6 ("Automatic Conversion"). From
and after the date of Automatic Conversion, (w) dividends (if any) on
the shares of the Series A Preferred Stock shall cease to accrue and
accumulate, (x) the shares of Series A Preferred Stock shall be deemed
no longer outstanding, (y) each share of Series A Preferred Stock shall
be deemed to represent the number of shares of Class A Common Stock into
which such share of Series A Preferred Stock is convertible on the date
of Automatic Conversion, whether or not such share of Series A Preferred
Stock is surrendered for conversion, and (z) all rights of the holders
thereof as stockholders of the Corporation (except the right to receive
from the Corporation shares of Class A Common Stock upon conversion,
subject to adjustment pursuant to this Section 6) shall cease.
(b) In case the Corporation shall at any time or from time to
time (i) declare a dividend, or make a distribution, on the outstanding
shares of Common Stock or any class thereof in the form of shares of its
capital stock, (ii) subdivide or reclassify the outstanding shares of
Common Stock or any class thereof into a greater number of shares of
Common Stock, (iii) combine or reclassify the outstanding shares of
Common Stock or any class thereof into a smaller number of shares of
Common Stock, (iv) reclassify the outstanding shares of Common Stock or
any class thereof into other securities of the Corporation, (v) or
otherwise issue any shares of its capital stock to the holders of
outstanding shares of Common Stock or any class thereof, then, and in
each such case, the Conversion Ratio shall be adjusted so that the
holder of each share of Series A Preferred Stock thereafter surrendered
for conversion pursuant to this Section
<PAGE>
6 shall be entitled to receive, upon such conversion, the number and
kind of shares of Class A Common Stock or other securities that the
holder of a share of Series A Preferred Stock would have been entitled
to receive after the happening of any of the events described in this
clause (b) had such share of Series A Preferred Stock been so converted
immediately prior to the date of the happening of such event or the
record date therefor, whichever is earlier. Any adjustment made pursuant
to this clause (b) shall become effective (i) in the case of any such
dividend or distribution, immediately after the close of business on the
record date for the determination of holders of shares of Common Stock
entitled to receive such dividend or distribution, or (ii) in the case
of any such subdivision, reclassification or combination, at the close
of business on the day upon which such corporate action becomes
effective.
(c) In the event that at any time, as a result of an adjustment
made pursuant to clause (b) above, the holder of any Series A Preferred
Stock thereafter converted shall become entitled to receive any shares
of capital stock of the Corporation other than its Class A Common Stock,
thereafter the number of such shares so receivable upon conversion shall
be subject to adjustment from time to time in a manner and on terms as
nearly equivalent as practicable to the provisions with respect to the
Class A Common Stock contained in clause (b) above.
(d) The Corporation shall at all times reserve and keep available
out of its authorized but unissued shares of Common Stock or its
treasury shares, solely for the purpose of issuance upon the conversion
of the Series A Preferred Stock, such number of shares of Class A Common
Stock as are then issuable upon the exchange of all then outstanding
shares of the Series A Preferred Stock.
(e) The issuance of certificates for shares of Class A Common
Stock upon conversion of shares of Series A Preferred Stock pursuant to
this Section 6 shall be made without charge to the holders of such
converted shares of Series A Preferred Stock for any issuance tax in
respect thereof or other cost incurred by the Corporation in connection
with such conversion and the related issuance of shares of Class A
Common Stock; provided, however, that the Corporation shall not be
required to pay any tax that may be payable in respect of any transfer
involved in the issuance and delivery of any certificate in a name other
than that of the holder or former holder of Series A Preferred Stock so
converted.
(f) No fractional shares of Class A Common Stock shall be issued
upon the conversion of the Series A Preferred Stock. In lieu of any
fractional shares to which the holder would otherwise be entitled, the
Corporation shall pay cash equal to such fraction multiplied by the
average of the last sales prices per share of the Class A Common Stock
of the Corporation on the New York Stock Exchange for the 20 consecutive
trading days ending on the trading day which is five trading days prior
to the conversion date.
<PAGE>
7. Optional Redemption. (a) In the event that Stockholder
Approval has not been obtained prior to the Preference Date, on or after
such Preference Date the Corporation, at the option of the Board of
Directors, may redeem the shares of Series A Preferred Stock, in whole
(but not in part), out of funds legally available therefor, at any time
or from time to time, subject to the notice provisions described below,
by resolution of its Board of Directors at a per share redemption price
equal to the Redemption Price. The Redemption Price of any shares of
Series A Preferred Stock redeemed pursuant to this Section 7 shall,
unless otherwise agreed upon by the holder of such shares and the
Corporation, be payable 25% in cash on the Preference Date and the
remaining 75% in a promissory note or promissory notes (collectively,
the "Redemption Notes"), payable in three (3) equal consecutive annual
payments of principal[, with interest on the unpaid principal balance at
a rate per annum equal to the Interest Rate; provided, however, that the
Corporation shall have the right, at any time, to prepay without penalty
the then unpaid portion of such Redemption Notes. The annual installment
of principal on the Redemption Notes shall be paid in each year on the
anniversary of the redemption date in such year or, if such date is not
a Business Day, on the first Business Day following such date. The
"Interest Rate" for purposes of this Section 7 shall mean the fixed rate
of interest, per annum, equal to the corresponding applicable federal
rate, as defined in the Internal Revenue Code of 1986, as amended.
(b) In the event the Corporation shall redeem the shares of
Series A Preferred Stock, a Corporation notice of such redemption shall
be given by first class mail, postage prepaid, mailed not less than 10
nor more than 60 days prior to the redemption date, to each holder of
record of the shares to be redeemed, at such holder's address as the
same appears on the stock records of the Corporation. Each such notice
shall state: (i) the redemption date; (ii) the redemption price; (iii)
the place or places where certificates for such shares are to be
surrendered for payment of the redemption price; (iv) that payment in
cash and Redemption Notes will be made upon presentation and surrender
of such Series A Preferred Stock; (v) that dividends on the shares to be
redeemed shall cease to accrue immediately after such redemption date;
and (vi) that dividends accrued to and including the date fixed for
redemption will be paid as specified in said notice. Notice having been
mailed as aforesaid, immediately after the redemption date, unless the
Corporation shall be in default in providing the payment of the
redemption price (including any accrued and unpaid dividends to (and
including) the date fixed for redemption), (x) dividends on the shares
of Series A Preferred Stock so called for redemption shall cease to
accrue, (y) such shares shall be deemed no longer outstanding and (z)
all rights of the holders thereof as stockholders of the Corporation
(except the right to receive from the Corporation the moneys payable
upon redemption) shall cease.
Upon surrender in accordance with such notice of the certificates
for any such shares so redeemed (properly endorsed or assigned for
transfer, if the Board of
<PAGE>
Directors shall so require and the notice shall so state), such shares
shall be redeemed by the Corporation at the applicable redemption price
and in the manner aforesaid.
(c) The Series A Preferred Stock may not be redeemed except as
provided in this Section 7.
8. Reissuance of Preferred Stock. Shares of Series A Preferred
Stock that have been issued and reacquired in any manner, including
shares purchased or redeemed or exchanged, shall (upon compliance with
any applicable provisions of the laws of Delaware) have the status of
authorized but unissued shares of Preferred Stock of the Corporation
undesignated as to series and may be designated or redesignated and
issued or reissued, as the case may be, as part of any series of
preferred stock of the Corporation; provided that any issuance of such
shares as Series A Preferred Stock must be in compliance with the terms
hereof.
9. Record Holders. The Corporation and any transfer agent of the
Corporation may deem and treat the record holder of any shares of Series
A Preferred Stock as the true and lawful owner thereof for all purposes,
and neither the Corporation nor any such transfer agent shall be
affected by any notice to the contrary.
<PAGE>
IN WITNESS WHEREOF, the Corporation has caused this Certificate
to be made under the seal of the Corporation and signed by Steven J. Lund, its
President and Chief Executive Officer, and attested by Keith R. Halls, its
Secretary, this 25th day of March, 1998.
NU SKIN ASIA PACIFIC, INC.
By:/s/ Steven J. Lund
Name: Steven J. Lund
Title: President and Chief
Executive Officer
(Corporate Seal)
Attest:
By: /s/ Keith R. Halls
Name: Keith R. Halls
Title: Secretary
