EX-10.48
AMENDMENT IN TOTAL AND COMPLETE RESTATEMENT OF THE
DEFERRED COMPENSATION PLAN
THIS AMENDMENT IN TOTAL AND COMPLETE RESTATEMENT OF THE DEFERRED
COMPENSATION PLAN (hereinafter referred to as the "Amended Agreement") is
entered into effective the ___ day of ___, 1998, by and between NU SKIN
INTERNATIONAL, INC., a Utah Corporation, hereinafter called "Company," and by
__________, hereinafter called "Employee."
WITNESSETH:
WHEREAS, the Company and the Employee entered into a Deferred
Compensation Plan effective as of September 25, 1992 (the "Plan"), and an
Amendment No. 1 to Plan effective as of April 4, 1997 and an Amendment No. 2 to
Plan effective as of April 4, 1997 and the Company and the Employee desire to
amend and restate the Plan in total to incorporate all amendments and to include
affiliates of the Company within the terms of the Plan.
THEREFORE AND IN CONSIDERATION of the premises, and the mutual
covenants, promises and conditions herein contained, the parties agree that the
Plan as previously amended shall be amended in total and restated to become
effective as of the date first written above to read as follows:
1. TERM OF PLAN. This Plan shall become effective as of the above
date and shall remain in effect until the entire amount of the
Deferred Compensation Trust (hereinafter referred to as
"Compensation Trust") has been distributed to the Employee or
his designated beneficiary. Employee hereby accepts this Plan
and agrees to serve at the discretion of the Company and to
devote his full time and talents to the business conducted by
the Company.
2. OTHER AGREEMENTS. This Plan shall not supersede any other
contract of employment, whether written or oral, between the
Company and Employee. However, any article or clause of any
other contract which may be in conflict with this Plan shall be
deemed amended by this Plan as herein provided.
3. COMPENSATION ACCOUNTS AND TRUST. Upon the execution of this
Plan, the Company will establish an Account on the Company's
books for the benefit of Employee (the "Compensation Account").
The Compensation Account will contain two sub-accounts; the
"Employee Compensation Sub-Account" and the "Company
Compensation Sub-Account." In addition, the Company shall
establish a Trust to support its deferred compensation
obligation ("Compensation Trust").
4. EMPLOYEE CONTRIBUTIONS. Prior to the beginning of each fiscal
year of the Company during which the Employee is employed, the
Employee may elect to defer a portion of the compensation to be
paid to the Employee for the coming year ("Employee
Contribution"). The Employee Contribution shall be credited by
the Company to the Employee Compensation Sub-Account at the
times at which the compensation would have been paid except for
the deferral election (i.e., if the Employee elects to defer a
portion of his normal bi-weekly compensation then the deferred
portion shall be credited to the Employee Compensation
Sub-Account on a bi-weekly basis). For purposes of the fiscal
year in which this Plan is first implemented, the election by
the Employee shall be made within thirty (30) days after this
Plan is effective.
5. COMPANY CONTRIBUTIONS. Until this Plan is terminated as provided
for herein, the Company will make a contribution ("Company
Contributions") to the Company Compensation Sub-Account, subject
to and based upon the continued profitability of the Company and
the continued employment and performance of the Employee. On or
before the end of each fiscal year of the Company during which
the Employee works, the Board of Directors of the Company shall
determine in their sole discretion an amount to be credited to
the Company Compensation Sub-Account for the fiscal year, which
amount shall not be less than $1,000.00 per month during the
term of this Plan. Upon execution of this Plan, the Company will
initially contribute to the Company Compensation Sub-Account the
sum of $10,000.00.
6. CONTRIBUTIONS TO COMPENSATION TRUST. On at least a annual basis,
the amount in the Compensation Account shall be contributed to
the Compensation Trust.
7. ACCOUNTING. At the end of each fiscal year the Company shall
notify the Employee in writing as to the amount, if any, that
has been credited to the Employee Compensation Sub-Account, the
Company Compensation Sub- Account and contributed to the
Compensation Trust for the past fiscal year and the total amount
held in the Compensation Trust for the benefit of the Employee
with the earnings thereon. The accounting shall specify the
vested portion of amounts held pursuant to the Plan.
8. NATURE OF EMPLOYER'S OBLIGATION. The Company's obligations under
this Plan shall be an unfunded and
unsecured promise to pay. The Company shall not be obligated
under any circumstances to fund its financial obligations under
this Plan. Any assets which the Company may acquire to help
cover its financial liabilities are and remain general assets of
the Company subject to the claims of its creditors. Neither the
Company nor the plan created by this Plan gives the Employee any
beneficial ownership interest in any asset of the Company. All
rights of ownership in any such assets are and remain in the
Company. All assets in the Compensation Account and in the
Compensation Trust shall always be deemed to be assets of the
Company subject to corporate general creditors. The Employee
shall have no vested right in the Compensation Account or the
Compensation Trust. The assets in the Compensation Account and
Compensation Trust shall be held pursuant to this Plan and shall
remain the sole and exclusive property of the Company and shall
be subject to corporate general creditors.
9. EMPLOYEE RIGHT TO ASSETS.
9.1. The rights of the Employee, any Designated Beneficiary
of the Employee, or any other person claiming through
the Employee under this Plan, shall be solely those of
an unsecured general creditor of the Company. The
Employee, the Designated Beneficiary of the Employee, or
any other person claiming through the Employee, shall
have the right to receive those payments specified under
this Plan only from the Company, and has no right to
look to any specific or special property separate from
the Company to satisfy a claim for benefit payments,
including but not limited to the Compensation Trust.
9.2. The Employee agrees that he, his Designated Beneficiary,
or any other person claiming through him shall have no
rights or beneficial ownership interest whatsoever in
any general asset that the Company may acquire or use to
help support its financial obligations under this Plan,
including but not limited to the Compensation Trust. Any
such general asset used or acquired by the Company in
connection with the liabilities it has assumed under
this Plan, shall not be deemed to be held under any
trust for the benefit of the Employee or his Designated
Beneficiary. Nor shall any such general asset be
considered security for the performance of the
obligations of the Company. Any such asset shall remain
a general, unpledged, and unrestricted asset of the
Company.
9.3. The Employee also understands and agrees that his
participation in the acquisition of any such general
asset for the Company shall not constitute a
representation to the Employee, his Designated
Beneficiary, or any person claiming through the Employee
that any of them has a special or beneficial interest in
such general asset.
10. RETIREMENT BENEFITS. At such time as Employee terminates
employment with the Company (which time shall hereafter be
referred to as "Retirement Date") the Company will pay a
deferred compensation benefit ("Retirement Benefit") to
Employee. The amount of the Retirement Benefit shall be equal to
the vested portion of the amount contributed to the Compensation
Trust from the Compensation Account together with any earnings
thereon as of the Retirement Date of the Employee. The
Retirement Benefit shall be paid to Employee in 60 equal monthly
installments, with the first payment commencing 30 days after
the Employee reaches his Retirement Date. The Company may, in
its discretion, accelerate any payments to the Employee and may
accelerate vesting of the benefits under the plan. In addition,
the Company in its discretion may pay the Retirement Benefit
prior to termination of Employee's employment with the Company.
The Company may, in its discretion, accelerate any payments to
the Employee and may accelerate vesting of the benefits under
the plan.
11. DISABILITY BENEFITS. If it is determined using social security
standards that the Employee is permanently and totally disabled
and unable to continue to perform his duties in the Company, and
on the express condition that the Employee has satisfied all of
the covenants, conditions and promises contained in this Plan
(to the extent applicable) the Company shall pay to the Employee
the vested portion of the amount contributed to the Compensation
Trust from the Compensation Account together with any earnings
thereon as of the date that disability is determined
("Disability Benefit"). The Disability Benefit shall be paid to
the Employee in 60 equal monthly installments to commence 30
days after disability is established to the satisfaction of the
Company. The Company may, in its discretion, accelerate any
payments to the Employee and may accelerate vesting of the
benefits under the plan.
12. DEATH BENEFITS.
12.1. Pre-retirement death benefit. Upon the death of Employee
prior to his Retirement Date, a Death Benefit shall be
paid to Employee's estate (or his
designated beneficiary) in an amount equal to sum of the
following ("Death Benefit"):
12.1.1. The amount contributed to the Compensation Trust
from the Employee Compensation Sub-Account
together with any earnings thereon as of the
date of the Employee's death; and
12.1.2. the greater of (a) the vested portion of the
amount contributed to the Compensation Trust
from the Compensation Account together with any
earnings thereon as of the date of the
Employee's death; or (b) an amount equal to five
times the average of the Employee's Base Salary
for the three most recent years.
The Death Benefit shall be paid in 60 equal monthly installments
to commence 30 days after the death of Employee. The Company may, in its
discretion, accelerate any payments due and may accelerate vesting of
the benefits under the plan.
12.2. Post-retirement death benefit. If Employee dies after
his Retirement Date, the Employee's estate (or his
designated beneficiary) shall be entitled to receive the
remaining unpaid vested portion of the Retirement
Benefit. The remaining Retirement Benefit shall be paid
to the Employee's estate (or his Designated Beneficiary)
on the same basis as it was being paid to the Employee
as of Employee's Retirement Date. The Company may, in
its discretion, accelerate any payments due and may
accelerate vesting of the benefits under the plan.
13. VESTING. Employee's right to receive the Benefits hereunder shall
vest as follows:
13.1. The Employee shall be 100% vested in all amounts
contributed to the Employee Compensation Sub-Account.
13.2. The Employee shall vest 100% in amounts contributed to
the Company Compensation Sub-Account if the Employee has
been continuously employed with the Company from the
date of the Plan until the earlier of the following
events:
13.2.1 The Employee attains 60 years of age; or
13.2.2 The Employee has been continuously employed by
the Company for a period of ten (10) years.
13.2.3 The Employee's death or disability as defined in
the Plan.
13.3. No amounts contributed to the Company Compensation
Sub-Account shall vest unless the employee has been
continuously employed by the Company from the date of
the Plan until the events specified in paragraph 13.2
above.
13.4. Notwithstanding paragraphs 13.1, 13.2 and 13.3 above,
Employee shall forfeit all benefits accruing under this
Plan if at any time during his employment with the
Company, Employee (a) directly or indirectly enters into
the employment of or owns any interest in any other
company, business or corporation which competes directly
or indirectly with the business of the Company, or (b)
the Employee allows the association of his name with or
renders any service or assistance or advice, whether or
not for consideration, to any other corporation, company
or business which company, business or corporation is in
competition with the Company.
14. NATURE OF BENEFITS. It is expressly understood that when
Benefits provided for herein are payable, they are payable on
account of the past services of Employee and are not payable on
account of services to be rendered after the date the Employee
retires or terminates. Further, all amounts to be paid hereunder
do not depend on Employee serving as a consultant or the
Employee serving in any capacity for the Company after the
Employee's Retirement. Benefits payable hereunder are
specifically meant to be paid upon the termination, retirement,
death or disability of the Employee as deferred compensation.
15. NONASSIGNABILITY. It is expressly understood and agreed
hereunder that the Benefits derived from this Plan are not
subject to attachment for payment of any debts or judgments of
Employee and neither Employee nor the Employee's spouse or heirs
shall have any right to transfer, modify, anticipate, encumber,
or assign any of the Benefits or rights hereunder. None of the
payments which may be due to the Employee shall be transferrable
by operation of law in the event the Employee becomes insolvent
or bankrupt.
16. MERGER OR CONSOLIDATION. In the event the Company shall
reorganize, consolidate or merge with any other company this
Plan shall become an obligation of the new company or of any
company taking over the duties and responsibilities of the
Company. The Company agrees that if any of these events occur,
Employee may request that a Rabbi trust be established to hold
the Benefits.
17. LIQUIDATION AND INSOLVENCY. In the event the Company must
liquidate due to insolvency or events resulting in an act of
bankruptcy, or in the event the Company becomes insolvent and is
incapable of paying its bills and obligations, then this Amended
Agreement shall terminate and shall be considered as fully and
completely discharged.
18. PAYMENTS TO OTHER PERSONS. If the Company shall find that any
person to whom any payment is to be made under this Plan is
unable to care for his affairs because of illness or accident,
or is a minor, any Benefit due (unless a prior claim therefor
shall have been made by a duly appointed guardian, committee or
other legal representative) may be paid to the spouse, a child,
a parent, or a brother or sister, or to any person deemed by the
Company to have incurred expenses for such person otherwise
entitled to payment, in such manner and proportions as the
Company may determine. Any such payment shall be a complete
discharge of the liabilities of the Company under this Plan.
19. LIMITATIONS OF THIS PLAN. Nothing contained herein shall be
construed as conferring upon the Employee the right to continue
in the employ of the Company in any capacity.
20. OTHER BENEFITS DETERMINED BY COMPENSATION. All amounts credited
to the Account under this Plan shall not be deemed to be part of
the Employee's regular annual compensation for the purpose of
computing benefits to which he may be entitled under any
pension, profit sharing, 401(k) plan or other arrangement of the
Company for the benefit of its employees.
21. BOARD OF DIRECTORS AUTHORITY. The Board of Directors of the
Company shall have full power and authority to interpret,
construe and administer and amend prospectively this Plan and
the Board's interpretations and construction hereof and actions
hereunder shall be binding and conclusive on all persons for all
purposes. No Employee, representative or agent of the Company
shall be liable to any person for any action taken or omitted in
connection with the
interpretation and administration of this Plan unless
attributable to his own willful misconduct or lack of good
faith.
22. AMENDMENT. During the lifetime of the employee, this Plan may be
amended or revoked at any time, in whole or part, by the mutual
written agreement of the parties.
23. BINDING EFFECT. This Plan shall be binding upon the parties
hereto, their heirs, assigns, successors, executors,
administrators and they shall agree to execute any and all
instruments necessary for the fulfillment of the terms of this
Plan.
24. APPLICABLE LAW. This Plan shall be construed in accordance with
and governed by the laws of the State of Utah.
25. COMPENSATION TRUST. The Company may effect such amendments to
the Compensation Trust Agreement dated September 23, 1993 as
convenient or required to be consistent with this Amended
Agreement and/or is required to make or continue to make the
Compensation Trust Agreement in compliance with Internal Revenue
Service Revenue Procedure 92-64 or any amendments or
replacements thereto.
26. LEAVE OF ABSENCE. For all purposes of this Amended Agreement,
there shall be included as a year in which the Employee works,
any year in which the Employee is on leave of absence from the
Company and is serving as a full-time missionary for any legally
recognized ecclesiastical organization. Further, for all
purposes of this Amended Agreement, there shall be included in
the time the Employee is deemed continuously employed by the
Company any time in which the Employee is on leave of absence
from the Company and is serving as a full-time missionary for
any legally recognized ecclesiastical organization. For all
purposes of this Amended Agreement, whenever the Employee is
deemed employed by the Company while the Employee is on leave of
absence from the Company and is serving as a full- time
missionary for any legally recognized ecclesiastical
organization, the Base Salary of the Employee shall be the Base
Salary in effect immediately prior to the commencement of such
leave of absence.
27. AFFILIATES. For all purposes of this Amended Agreement, the term
"Company Contributions" will include all contributions to the
Company Compensation Sub-Account by the Company or by any
Affiliate of the
Company. Further, the term "Base Salary" shall include the Base
Salary received by Employee from the Company or by an Affiliate
of the Company. An Affiliate of the Company is a company that
directly or indirectly, through one or more intermediaries,
controls, or is controlled by, or is under common control with
the Company.
IN WITNESS WHEREOF the parties hereto have set their hands the day and
year first above written.
COMPANY:
NU SKIN INTERNATIONAL, INC.,
By ___________________________
Its___________________________
EMPLOYEE:
___________________________
BENEFICIARY DESIGNATION
ENDORSEMENT:
The Employee pursuant to that certain Deferred Compensation Plan entered
into on the 25th day of September, 1992, by NU SKIN INTERNATIONAL, INC. and
Employee does hereby elect the following beneficiary: _________________________.
EMPLOYEE:
___________________________
DEFERRED COMPENSATION CONTRIBUTION RECONCILIATION
TO: __________________(Employee)
DATE: September 25, 1992
The amounts which have been credited pursuant to the Deferred
Compensation Plan for your benefit are as follows:
DEFERRED COMPENSATION PLAN CONTRIBUTION RECONCILIATION
================================================================================
NAME OF ACCOUNT AMOUNT ACCUMULATED VESTED
CONTRIBUTED VALUE PERCENTAGE
TO DATE
======================== ====================== ==================== ===========
Employee 100%
Compensation Sub
Account
Company
Compensation Sub
Account 1992
Company
Compensation Sub
Account 1993
Company
Compensation Sub
Account 1994
Company
Compensation Sub
Account 1995
Company
Compensation Sub
Account 1996
Company
Compensation Sub
Account 1997
Company
Compensation Sub
Account 1998
DEFERRED COMPENSATION PLAN CONTRIBUTION RECONCILIATION (Cont.)
Company
Compensation Sub
Account 1999
Company
Compensation Sub
Account 2000
Company
Compensation Sub
Account 2001
Company
Compensation Sub
Account 2002
Company
Compensation Sub
Account 2003
This reconciliation reflects the amounts as set forth on the books and
records of the Company as of the date set forth above and does not guarantee the
amount or availability of any benefit under the Plan. The amount or availability
of any benefit under the Plan must be determined by reference to the terms and
conditions of the Plan.
