Amended Compensation Trust 2004 10-K  EX 10.36





AMENDMENT IN TOTAL AND
COMPLETE RESTATEMENT OF 
NU SKIN INTERNATIONAL, INC. 



COMPENSATION TRUST 



        This
Amendment in Total and Complete Restatement of the Nu Skin International, Inc.
Compensation Trust is made as of this ____ day of _____________, 1998, by and between Nu
Skin International, Inc. (hereinafter called the “Company”), whose address is 75
West Center Street, Provo, Utah 84606, and Blake M. Roney, Steven J. Lund and Keith R.
Halls (hereinafter called the “Trustee”). 



        The
Company created the Nu Skin International, Inc. Compensation Trust on the 23rd day of
September, 1993 (hereinafter called the “Trust”), and desires to amend the
Trust, in total, as follows: 



RECITALS: 



        WHEREAS
the Company has adopted non-qualified deferred compensation plans (copies of which are
attached hereto) for some of the highly compensated employees or a select management group
of the Company (hereinafter referred to as the “Plans”). The Company may
hereafter adopt additional non-qualified deferred compensation plans which may participate
in this Trust upon receipt by the Trustees of a copy of the Plan from the Company and the
approval of the Trustees without additional action by the Company. 



        WHEREAS
the Company has incurred or expects to incur liability under the terms of such Plans with
respect to the individual participating in such Plans. 



        WHEREAS
the Company wishes to establish the Trust and to contribute to the Trust assets that shall
be held herein subject to the claims of the Company’s creditors in the event of the
Company’s insolvency, as herein defined, until paid to Plan participants and their
beneficiaries in such manner and at such times as specified in the Plans. 



        WHEREAS
it is the intention of the parties that this Trust shall constitute an unfunded
arrangement and shall not affect the status of the Plans as unfunded plans maintained for
the purpose of providing deferred compensation for a select group of management or highly
compensated employees for purposes of Title I of the Employee Retirement Income Security
Act of 1974. 



        WHEREAS
it is the intention of the Company to make contributions to the Trust to provide itself
with a source of funds to assist in the meeting of its liabilities under the Plans. 



        NOW
THEREFORE the parties do hereby establish the Trust and agree that the Trust shall be
comprised, held and disposed of as follows: 



Section 1.    ESTABLISHMENT
OF TRUST. 



         (a)       
          The Company hereby deposits with the Trustee and Trust the sum of $10.00, which
          will become the principal of the trust to be held, administered and disposed of
          by the Trustee as provided in this Trust Agreement. 



         (b)       
          The Trust hereby established is revocable by the Company, it shall become
          irrevocable upon a Change of Control as defined herein. 










         (c)       
          The Trust is intended to be a grantor trust, of which the Company is the
          grantor, within the meaning of subpart E, part I, subchapter J, chapter 1,
          subtitle A of the Internal Revenue Code of 1986, as amended, and shall be
          construed accordingly. 



         (d)       
          The principal of the Trust, and any earnings thereon, shall be held separate and
          apart from other funds of the Company and shall be used exclusively for the uses
          and purposes of Plan participants and general creditors as hereinafter set
          forth. Plan participants and their beneficiaries shall have no preferred claim
          on, or any beneficial ownership in, any assets of the Trust. Any rights created
          under the Plans and this Trust Agreement shall be mere unsecured contractual
          rights of Plan participants and their beneficiaries against the Company. Any
          assets held by the Trust will be subject to the claims of the Company’s
          general creditors under Federal and State law in the event of Insolvency, as
          defined in Section 3(a) herein. 



         (e)       
          The Company, in its sole discretion, may at any time, or from time to time, make
          additional deposits of cash or other property in Trust with the Trustee to
          augment the principal to be held, administered and disposed of by the Trustee as
          provided in this Trust Agreement. Neither the Trustee nor any plan participant
          or beneficiary shall have any right to compel such additional deposits. 



Section 2.    
 PAYMENTS TO PLAN PARTICIPANTS AND THEIR BENEFICIARIES. 



         (a)       
          The Company shall deliver to the Trustee a copy of the Deferred Compensation
          Plan for each Plan participant that indicates the amounts payable in respect to
          each Plan participant (and his or her beneficiaries), the form in which such
          amount is to be paid as provided for or available under the Plan(s), and the
          time of commencement for payment of such amounts. Except as otherwise provided
          herein, the Trustee shall make payments to the Plan participants and their
          beneficiaries in accordance with the Plans. The Trustee shall make provisions
          for the reporting and withholding of any Federal, State and local taxes that may
          be required to be withheld with respect to the payment of benefits pursuant to
          the terms of the Plans and shall pay amounts withheld to the appropriate taxing
          authorities or determine that such amounts have been reported, withheld and paid
          by the Company. 



         (b)       
          Entitlement of the Plan participant or his or her beneficiaries to benefits
          under the Plans shall be determined by the Company or such party as it shall
          designate under the Plans, and any claim for such benefits shall be considered
          and reviewed under the procedure set out in the Plans. 



         (c)       
          The Company may make payment of benefits directly to Plan participants or their
          beneficiaries as they become due under the terms of the Plans. The Company shall
          notify the Trustee of its decision to make payment of benefits directly prior to
          the time amounts are payable to participants or their beneficiaries. In
          addition, if the principal of the Trust, and any earnings thereon, are not
          sufficient to make payments of benefits in accordance with the terms of the
          Plans, the Company shall make the balance of each such payment as it falls due.
          The Trustee shall notify the Company where principal and earnings are not
          sufficient. 



Section 3.      TRUSTEE RESPONSIBILITY
REGARDING PAYMENTS TO TRUST BENEFICIARY WHEN THE COMPANY IS INSOLVENT. 



         (a)       
          The Trustee shall cease payment of benefits to Plan participants and their
          beneficiaries if the Company is Insolvent. The Company shall be considered
          “Insolvent” for purposes of this Trust Agreement if (i) the Company is
          unable to pay its debts as they become due, or (ii) the Company is subject to a
          pending proceeding as a debtor under the United States Bankruptcy Code. 










         (b)       
          At all times during the continuance of this Trust, as provided in Section 1(d)
          hereof, the principal and income of the Trust shall be subject to the claims of
          general creditors of the Company under Federal and State laws set forth below. 



         (1)       
          The Board of Directors and the President of the Company shall have the duty to
          inform the Trustee in writing of the Company’s Insolvency. If a person
          claiming to be a creditor of the Company alleges in writing to the Trustee that
          the Company has become Insolvent, the Trustee shall determine whether the
          Company is Insolvent and, pending such determination, the Trustee shall
          discontinue payment of benefits to Plan participants or their beneficiaries. 



         (2)       
          Unless the Trustee has actual knowledge of the Company’s Insolvency, or has
          received notice from the Company or a person claiming to be a creditor alleging
          that the Company is Insolvent, the Trustees shall have no duty of inquiry
          whether the Company is Insolvent. The Trustee may in all events rely on such
          evidence concerning solvency as may be furnished to the Trustee and that
          provides the Trustee with a reasonable basis for making a determination
          concerning the Company’s solvency. 



         (3)       
          If at any time the Trustee has determined that the Company is Insolvent, the
          Trustee shall discontinue payments to Plan participants or their beneficiaries
          and shall hold the assets of the Trust for the benefit of the Company’s
          general creditors. Nothing in this Trust Agreement shall in any way diminish any
          rights of Plan participants or their beneficiaries to pursue their rights as
          general creditors of the Company with respect to benefits due under the Plans or
          otherwise. 



         (4)       
          The Trustee shall resume the payments of benefits to Plan participants or their
          beneficiaries in accordance with Section 2 of this Trust Agreement only after
          the Trustee has determined that the Company is not Insolvent (or is no longer
          Insolvent). 



         (c)       
          Provided that there are sufficient assets, if the Trustee discontinues the
          payment of benefits from the Trust pursuant to Section 3(b) hereof and
          subsequently resumes such payments, the first payment following such
          discontinuance shall include the aggregate amount of all payments due to Plan
          participants or their beneficiaries under the terms of the Plans for the period
          of such discontinuance, less the aggregate amount of any payments made to Plan
          participants or their beneficiaries by the Company in lieu of the payments
          provided for hereunder during any such period of discontinuance. 



Section 4.    PAYMENTS TO
COMPANY. 



        Except
as provided in Section 3 hereof, after the Trust has become irrevocable, the Company shall
have no right or power to direct the Trustee to return to the Company or divert to others
any of the Trust assets before all payment of benefits have been made to Plan participants
and their beneficiaries pursuant to the terms of the Plans. 



Section 5.     INVESTMENT
AUTHORITY. 



         (a)       
          The Trustee may invest in securities (including stock or rights to acquire
          stock) or obligations issued by the Company. All rights associated with assets
          of the Trust shall be exercised by the Trustee of the person designated by the
          Trustee, and shall in no event be exercisable by or rest with Plan participants. 



         (b)       
          The Company shall have the right at any time, and from time to time in its sole
          discretion, to substitute assets of equal fair market value for any asset held
          by the Trust. This right is exercisable by the Company in a non-fiduciary
          capacity without the approval or consent of any person in a fiduciary capacity. 









Section 6.     DISPOSITION
OF INCOME. 



        During
the term of this Trust, all income received by the Trust, net of expenses and taxes, shall
be accumulated and reinvested. 



Section 7.     ACCOUNTING BY
TRUSTEE. 



        The
Trustee shall keep accurate and detailed records of all investments, receipts,
disbursements and all other transactions required to be made, including such specific
records as shall be agreed upon in writing between the Company and the Trustee. Within 60
days following the close of each calendar year and within 60 days after the removal or
resignation of the Trustee, the Trustee shall deliver to the Company a written account of
its administration of the Trust during such year or during the period from the close of
the last preceding year to the date of such removal or resignation, setting forth all
investments, receipts, disbursements and other actions affected by it, including the
description of all securities and investments purchased and sold with the cost or net
proceeds of such purchases or sales (accrued interest paid or receivable being shown
separately), and showing all cash, securities and other property held in the Trust at the
end of such year or as of the date of such removal or resignation, as the case may be. 



Section 8.    
RESPONSIBILITY OF THE TRUSTEE. 



         (a)       
          The Trustee shall act with the care, skill, prudence and diligence under the
          circumstances then prevailing that a prudent person acting in like capacity and
          familiar with such matters would use in the conduct of an enterprise of a like
          character and with like aims, provided, however, that the Trustee shall incur no
          liability to any person for any action taken pursuant to a direction, request or
          approval given by the Company which is contemplated by, and in conformity with,
          the terms of the Plans or this Trust and is given in writing by the Company. In
          the event of a dispute between the Company and a party, the Trustee may apply to
          a court of competent jurisdiction to resolve the dispute. 



         (b)       
          If the Trustee undertakes or defends any litigation arising in connection with
          this Trust, the Company agrees to indemnify the Trustee against the
          Trustee’s cost, expenses and liabilities (including, without limitation,
          attorneys fees and expenses) relating thereto and be primarily liable for such
          payments. If the Company does not pay such costs, expenses and liabilities in a
          reasonably timely manner, the Trustee may obtain payment from the Trust. 



         (c)       
          The Trustee may consult with legal counsel (who may also be counsel for the
          Company generally) with respect to any of its duties or obligations hereunder. 



         (d)       
          The Trustee may hire agents, accounts, actuaries, investment advisers, financial
          consultants or other professionals to assist it in performing any of its duties
          or obligations hereunder. 



         (e)       
          The Trustee shall have, without exclusion, all powers conferred on the Trustees
          by applicable law, unless expressly provided otherwise herein, provided,
          however, that if an insurance policy is held as an asset of the Trust, the
          Trustee shall have no power to name a beneficiary of the policy other than the
          Trust, to assign the policy (as distinct from conversion of the policy to a
          different form) other than to a successor trustee, or to loan to any person the
          proceeds of any borrowing against such policy. 



         (f)       
          However, notwithstanding the provisions of Section 8(e) above, the Trustee may
          loan to the company the proceeds of any borrowings against an insurance policy
          held as an asset of the Trust. 











         (g)       
          Notwithstanding any powers granted to the Trustee pursuant to this Trust
          Agreement or to applicable law, the Trustee shall not have any power that could
          give this Trust the objective of carrying on a business and dividing the gains
          there from, within the meaning of Section 301.7701-2 of the Procedure and
          Administrative Regulations promulgated pursuant to the Internal Revenue Code. 



Section 9.     COMPENSATION
AND EXPENSES OF THE TRUSTEE. 



        The
Company shall pay all administrative and the Trustee’s fees and expenses. If no so
paid, the fees and expenses shall be paid from the Trust. 



Section 10.     RESIGNATION
OR REMOVAL OF THE TRUSTEE. 



         (a)       
          The Trustee may resign at any time by written notice to the Company which shall
          be effective twenty (20) days after receiving such notice unless the Company and
          the Trustee agree otherwise. 



         (b)       
          The Trustee may be removed by the Company on twenty (20) days notice or upon
          shorter notice accepted by the Trustee. 



         (c)       
          Upon a Change of Control, as defined herein, the Trustee may not be removed by
          the Company for 5 years. 



         (d)       
          If the Trustee resigns within 5 years of a Change of Control, as defined herein,
          the Trustee shall select a successor Trustee in accordance with the provisions
          of Section 11(b) hereof prior to the effective day of the Trustee’s
          resignation or removal. 



         (e)       
          Upon resignation or removal of the Trustee and appointment of the successor
          Trustee, all assets shall subsequently be transferred to the successor Trustee.
          The transfer shall be completed within thirty (30) days after receipt of notice
          of resignation, removal or transfer, unless the Company extends the time limits. 



         (f)       
          If the Trustee resigns or is removed, a successor shall be appointed, in
          accordance with Section 11 hereof, by the effective date of the resignation or
          removal under paragraphs (a) or (b) of this section. If no such appointment has
          been made, the Trustee may apply to a court of competent jurisdiction for
          appointment of a successor or for instructions. All expenses of the Trustee in
          connection with the proceeding shall be allowed as administrative expenses of
          the Trust. 



Section 11.     APPOINTMENT
OF SUCCESSOR. 



         (a)       
          If the Trustee resigns or is removed in accordance with Section 10(a) or 10(b)
          hereof, the Company may appoint a third party as a successor to replace the
          Trustee upon resignation or removal. The appointment shall be effective when
          accepted in writing by the new Trustee, who shall have all the rights and powers
          of the former Trustee, including ownership rights in the Trust assets. The
          former Trustee shall execute every instrument necessary or reasonably requested
          by the Company or the successor Trustee to evidence the transfer. 



         (b)       
          If the Trustee resigns or is removed pursuant to the provisions of Section 10(e)
          hereof and selects a successor Trustee, the Trustee may appoint any third party
          as successor Trustee. The appointment of a successor Trustee shall be effective
          when accepted in writing by the new Trustee. The new Trustee shall have all of
          the rights and powers of the former Trustee, including ownership rights in the
          Trust assets. The former Trustee shall execute any instrument necessary or
          reasonably requested by the successor Trustee to evidence the transfer. 













         (c)       
          The successor Trustee need not examine the records and acts of any prior Trustee
          and may retain or dispose of existing Trust assets, subject to Section 7 and 8
          hereof. The successor Trustee shall not be responsible for and the Company shall
          indemnify and defend the successor Trustee from any claim or liability resulting
          from any action or inaction of any prior Trustee or from any past event, or any
          condition existing at the time he becomes successor Trustee. 



Section 12.     AMENDMENT OR
TERMINATION. 



         (a)       
          This Trust Agreement may be amended by a written instrument executed by Trustee
          and the Company. Notwithstanding the foregoing comment, no such amendment shall
          conflict with the terms of the Plans or shall make the Trust revocable after it
          has become irrevocable in accordance with Section 1(b) hereof. 



         (b)       
          The Trust shall not terminate until the date on which the Plan participants and
          their beneficiaries are no longer entitled to benefits pursuant to the terms of
          the Plans unless sooner revoked in accordance with Section 1(b) hereof. Upon
          termination of the Trust, any assets remaining in the Trust shall be returned to
          the Company. 



         (c)       
          Upon written approval of participants or beneficiaries entitled to payment of
          benefits pursuant to the terms of the Plans, the Company may terminate this
          Trust prior to the time all benefits payable under the Plans have been made. All
          assets in the Trust at termination shall be returned to the Company. 



Section 13.    
MISCELLANEOUS. 



         (a)       
          Any provision of this Trust Agreement prohibited by law shall be ineffective to
          the extent of any such prohibition, without invalidating the remaining
          provisions hereof. 



         (b)       
          Benefits payable to Plan participants and their beneficiaries under this Trust
          Agreement may not be anticipated, assigned (either at law or in equity),
          alienated, pledged, encumbered or subjected to attachment, garnishment, levy,
          execution or other legal or equitable process. 



         (c)       
          This Trust Agreement shall be governed by and construed in accordance with the
          laws of the State of Utah. 



         (d)       
          For purposes of this Trust, Change of Control shall mean the purchase or other
          acquisition by any person, entity or group of persons, within the meaning of
          Section 13(b) or 14(d) of the Securities Exchange Act of 1934 (the
          “Act”), or any comparable successor provisions, of beneficial
          ownership (within the meaning of Rule 13d-3 promulgated under the Act) of 50
          percent or more of the outstanding shares of common stock or the combined voting
          power of the Company’s then outstanding voting securities entitled to vote
          generally, or the approval by the stockholders of the Company or a
          reorganization, merger, or consolidation, in each case, with respect to which
          persons who are stockholders of the Company immediately prior to such
          reorganization, merger or consolidation do not, immediately thereafter, own more
          than 50 percent of the combined voting power entitled to vote generally in the
          election of directors of the reorganized, merged or consolidated company’s
          then outstanding securities, or a liquidation or dissolution of the Company or
          the sale of all or substantially all of the Company’s assets. 



Section 14.     EFFECTIVE
DATE. 



        The
effective date of this Trust Agreement shall be the 23rd day of September 1993. 










Section 15.     AFFILIATES. 



        For purposes
of paragraphs 1(c), 1(d), 1(e), 2, 3, 4, 5, 7, 8, 9, 11(c), 12(b), and 12(c), the term
“Company” shall include Nu Skin International, Inc. (“NSI”) and any
Affiliate of NSI. An Affiliate of NSI is a company that directly or indirectly, through
one or more intermediaries, controls, or is controlled by, or is under common control with
NSI. 



        However,
whenever the term “Company” refers to an Affiliate, an allocation of amounts
(based on contributions from the Affiliate) between NSI and the Affiliate shall be
required so that each company shall only have responsibility or authority relating to
those amounts related to that company. Allocations of income and principal shall be made
and the Trustees shall charge income of the Trust to the company to which that income
relates and each company shall be responsible to report its share of such income. Further,
indemnification and similar provisions shall require apportionment between the companies.
Each Affiliate which contributes to the Trust shall be deemed a grantor of the Trust and
the owner as to that proportionate share of the Trust based on its percentage of
contributions. 



        Responsibilities,
including, but not limited to, the obligation to deliver copies of Deferred Compensation
Plans, shall relate to those Plans to which the Affiliate contributes. However, an action
taken previously by NSI or an Affiliate need not be duplicated by a succeeding Affiliate. 



        Insolvency
of an Affiliate shall only affect that Affiliate and the percentage of the Trust owned by
that Affiliate. 



        IN
WITNESS WHEREOF the Company and the Trustee have executed this Agreement as of the date
first above written. 



NU SKIN INTERNATIONAL,
INC. 



By
__________________________
Its__________________________ 



Attest: 



_________________ 



Secretary 



Trustee: 



_________________ 



Blake M. Roney, Trustee 



_________________ 



Steven J. Lund, Trustee 



_________________ 



Keith R. Halls, Trustee