1
EXHIBIT 1.3
5,600,000 SHARES
WEIDER NUTRITION INTERNATIONAL, INC.
CLASS A COMMON STOCK
AGREEMENT BETWEEN U.S. UNDERWRITERS AND MANAGERS
April __, 1997
AGREEMENT by and between (a) Credit Suisse First Boston Corporation
("CSFBC"), Salomon Brothers Inc, Xxxxx, Xxxxxxxx & Xxxx, Inc. and Xxxxxxxxx &
Xxxxx LLC, as representatives (the "Representatives") of the several United
States underwriters (the "U.S. Underwriters") named in Schedule A to the
Underwriting Agreement, dated the date hereof (the "Underwriting Agreement"),
among the U.S. Underwriters and Weider Nutrition International, Inc., a
Delaware corporation (the "Company"), and (b) the international managers listed
on the signature page hereof (the "Managers"). The several U.S. Underwriters
are herein called a "Syndicate" and the several Managers are herein called a
"Syndicate". The U.S. Underwriters and the Managers are herein collectively
called the "Underwriters".
WHEREAS, the U.S. Underwriters, severally and not jointly, pursuant to
the Underwriting Agreement, have agreed to purchase from the Company 4,480,000
shares (the "U.S. Firm Securities") of the Company's Class A Common Stock
("Securities"); the Managers, severally and not jointly, pursuant to the
Subscription Agreement, dated the date hereof (the "Subscription Agreement"),
among the Managers and the Company, have agreed to purchase from the Company
1,120,000 shares (the "International Firm Securities") of the Securities; the
Company has granted to the U.S. Underwriters and the Managers, exercisable from
time to time by CSFBC on behalf of the U.S. Underwriters and the Managers,
over-allotment options (collectively, the "Over-allotment Option") to purchase
up to an aggregate of 840,000 additional shares (the "Optional Securities") of
Securities; the U.S. Firm Securities and the International Firm Securities are
herein collectively called the "Firm Securities"; the Firm Securities and the
Optional Securities are herein collectively called the "Securities"; the U.S.
Firm Securities and the Optional Securities that may be sold to the U.S.
Underwriters are herein collectively called the "U.S. Securities"; the
International Firm Securities and the Optional Securities that may be sold to
the Managers are herein collectively called the "International Securities"; and
the U.S. Securities and the International Securities are herein collectively
called the "Offered Securities"; and
WHEREAS, the U.S. Underwriters and the Managers deem it necessary and
advisable that certain of the activities of the U.S. Underwriters and the
Managers be coordinated pursuant to this Agreement;
NOW, THEREFORE, the U.S. Underwriters, acting through the
Representatives, and the Managers hereby agree as follows:
1. Intersyndicate Purchases and Sales. The U.S. Underwriters, acting
through the Representatives, and the Managers, acting through Credit Suisse
First Boston (Europe) Limited ("CSFBL"), agree that they will consult with each
other as to the availability for sale to the public from time to time of
Offered Securities purchased from the Company pursuant to the Underwriting
Agreement and the Subscription Agreement until the earlier of (a) completion of
the distribution of the U.S. Securities being offered by the U.S. Underwriters
and (b) CSFBL's notifying the Managers of the termination of the selling
restrictions under the Agreement Among Managers, dated the date hereof (the
"Agreement Among Managers"). From time to time, at the direction of CSFBC, the
U.S.
2
Underwriters (acting through the Representatives) and the Managers, may
purchase and sell between Syndicates such number of Offered Securities as may
be directed by CSFBC.
Unless otherwise determined by agreement of the Representatives and
CSFBL, on behalf of the Managers, the price and currency settlement of any
Offered Securities so purchased or sold shall be the then effective public
offering price, in the currency contemplated for the purchase of the Offered
Securities from the Company in the Underwriting Agreement and the Subscription
Agreement, less (a) the selling concession that would otherwise apply to such
Offered Securities if such Offered Securities were not purchased and sold under
this Section 1 or (b) such lesser amount as the Representatives and CSFBL, on
behalf of the Managers, may mutually agree. Settlement with respect to any
Offered Securities transferred hereunder prior to the First Closing Date (as
defined in the Underwriting Agreement) shall be made on the First Closing Date
if feasible but in no event later than three business days after the transfer
date, and, in the case of purchases and sales made after the First Closing
Date, as promptly as practicable but in no event later than three business days
after the transfer date. Certificates representing the Offered Securities so
purchased shall be delivered on the respective settlement dates. For purposes
of Rule 15c6-1 under the United States Securities Exchange Act of 1934, the
settlement dates set forth herein or established pursuant to the provisions
hereof shall prevail if later than the applicable settlement dates prescribed
by or pursuant to such Rule. The liability for payment to the Company of the
purchase price of the Offered Securities being purchased under the Underwriting
Agreement and the liability for payment to the Company of the purchase price of
the Offered Securities being purchased under the Subscription Agreement shall
not be affected by the provisions of this Agreement.
The proportionate share of any U.S. Underwriter or Manager in respect
of the obligation of U.S. Underwriters or Managers to purchase or sell Offered
Securities under this Section 1 shall, unless such U.S. Underwriter or Manager
otherwise agrees with CSFBC or CSFBL, as the case may be, be no greater than
the proportion of (a) the total number of shares of U.S. Firm Securities or
International Firm Securities (plus such additional Offered Securities as may
be required by the Underwriting Agreement or the Subscription Agreement to be
purchased by such U.S. Underwriter or Manager in the event of a default by one
or more of the U.S. Underwriters or Managers) that such U.S. Underwriter or
Manager is obligated to purchase under the Underwriting Agreement or the
Subscription Agreement, respectively (hereinafter referred to as such U.S.
Underwriter's or Manager's "underwriting commitment"), to (b) the total number
of shares of U.S. Firm Securities or International Firm Securities, as the case
may be.
2. Selling Restrictions. Each U.S. Underwriter agrees that, except
for (a) purchases and sales among Underwriters pursuant to this Agreement and
(b) stabilization transactions contemplated under Section 3 hereof, it has not
offered or sold, and will not offer or sell, directly or indirectly, Offered
Securities or distribute any prospectus relating to the Offered Securities to
any person outside the United States or Canada or to any other dealer who does
not so agree.
Each Manager agrees that, except for (a) purchases and sales among
Underwriters pursuant to this Agreement and (b) stabilization transactions
contemplated under Section 3 hereof, it has not offered or sold, and will not
offer or sell, directly or indirectly, Offered Securities or distribute any
prospectus relating to the Offered Securities in the United States or Canada or
to any other dealer who does not so agree.
For purposes hereof, an offer or sale shall be in the United States or
Canada under the same circumstances described as such in the Agreement Among
Managers, and "United States" and "Canada" shall have the meanings set forth
in the Agreement Among Managers.
-2-
3
Each Manager agrees for the benefit of the several U.S. Underwriters
to comply with the provisions of Section 3 of the Agreement Among Managers.
Each Manager has caused each dealer who has agreed to participate or is
participating in the distribution to give an undertaking similar to Section 3
of the Agreement Among Managers.
Each U.S. Underwriter agrees for the benefit of the several Managers
to comply with the CSFBC Master Agreement Among Underwriters as in effect
(including any modification to the terms thereof by telex or other amendment)
with respect to the Offered Securities (the "Agreement Among U.S.
Underwriters").
3. Stabilizing. The overall direction and planning of
over-allotments and the stabilization transactions contemplated herein shall be
the responsibility of CSFBC. All stabilization transactions, whether in the
United States or otherwise, shall be conducted at the direction of and subject
to the control of CSFBC, so that stabilization activities worldwide shall be
conducted in compliance with any applicable laws and regulations.
The International Primary Market Association (IPMA) limits will not be
complied with in connection with stabilization losses and expenses. All
over-allotments, stabilization purchases, purchases to cover syndicate short
positions, exercises of the Over-allotment Option and related expenses shall be
for the accounts of the several Underwriters in proportion to their respective
underwriting commitments. In no event shall the net commitment of any
Underwriter, for either long or short account, resulting from the transactions
described in the previous sentence exceed 20% of its underwriting commitment.
For the purposes of the foregoing, an Underwriter's net commitment for short
account will be computed assuming that all Optional Securities which may be
purchased for such Underwriter's account pursuant to exercise of the Over-
allotment Option are so acquired, whether or not the Over-allotment Option is
exercised, and are allocated on a pro rata basis between the Syndicates as
contemplated in Section 4 hereof.
If an Underwriter is, or is affiliated with, any U.S. or non-U.S.
bank, such Underwriter hereby represents that its participation in the offering
of the Offered Securities on the terms contemplated herein and in the
Subscription Agreement, Agreement Among Managers, Underwriting Agreement and
the Agreement Among U.S. Underwriters, as applicable, does not contravene any
U.S. or state banking law restricting the exercise of securities powers in the
United States.
4. Over-Allotment Option. As set forth in the Underwriting Agreement
and the Subscription Agreement, the Over-allotment Option shall be exercised at
the direction of CSFBC on behalf of the respective Syndicates. The obligation
of each Syndicate to purchase Optional Securities upon each exercise of the
Over-allotment Option shall be in proportion to the aggregate underwriting
commitment of the Underwriters comprising such Syndicate. The obligations of
the Underwriters comprising a Syndicate to purchase Optional Securities upon
exercise of the Over-allotment Option shall be in such proportions as are
specified in or determined pursuant to the Underwriting Agreement or the
Subscription Agreement, as the case may be, and shall be several and not joint
obligations of such Underwriters.
5. Expenses. To the extent not reimbursed by the Company, the
payment of (a) legal fees and disbursements of United States and foreign
counsel to the U.S. Underwriters and Managers incurred in connection with the
underwriting, (b) advertising fees and (c) other expenses as agreed between the
Representatives and the Managers, will be made on a pro rata basis by the
Syndicates in accordance with their respective underwriting commitments, or on
such other basis as may be agreed between the Representatives and the Managers.
Expenses in connection with stabilization and over-allotment shall be allocated
as contemplated in Section 3 hereof. Subject to the previous two sentences,
the U.S. Underwriters will pay the aggregate expenses incurred in connection
with the
-3-
4
purchase, carrying or sale of the Offered Securities purchased by the U.S.
Underwriters from the Company, and the Managers will pay the aggregate expenses
incurred in connection with the purchase, carrying or sale of the Offered
Securities purchased by the Managers from the Company.
6. Public Offering. Changes in the respective public offering price
per Offered Security or in the respective concessions and reallowances to
dealers per Offered Security will be made only upon the mutual agreement of the
Representatives and CSFBL, on behalf of the Managers, during the period
referred to in the first sentence of Section 1 hereof. Any such change shall
be made concurrently in the offering by the U.S. Underwriters and the offering
by the Managers.
7. Mutual Information. The Underwriters will provide such
information as CSFBC and CSFBL may request in order to allow CSFBC and CSFBL to
satisfy their obligations hereunder and in order to allow CSFBC and CSFBL to
keep the Underwriters informed of the progress of the offering of the Offered
Securities. Unless otherwise approved by CSFBC, each Underwriter agrees not to
make, in the United States or Canada or elsewhere, any press or public
announcement or public comment which it believes or ought reasonably to believe
is likely to be published in the press or elsewhere concerning (a) the Company
or any of its subsidiaries or (b) the offering of the Offered Securities, in
either case on or after the date hereof and prior to the later of (i)
termination pursuant to Section 10 of the Underwriters' obligations set forth
in Section 2 or (ii) the Closing Date (as defined in Section 8), provided that
the foregoing shall not restrict any Underwriter from making such public
announcement or comment as shall be required for the purpose of the conduct of
the offering of the Offered Securities, subject to such public announcement or
comment being permitted by applicable law to be made in the manner in which it
is made and to its being in the terms approved in writing by CSFBC.
8. Closing Date; Termination of Underwriting or Subscription
Agreement. If any closing date is not on the day provided in the Underwriting
Agreement and in the Subscription Agreement (the "Closing Date") the
Representatives and CSFBL, on behalf of the Managers will mutually agree on a
postponed date within the time permitted by such agreements and the settlement
dates herein provided shall be adjusted accordingly.
The Representatives shall not terminate the Underwriting Agreement
pursuant to the conditions set forth in Section 6 thereof except after
consultation with CSFBL, on behalf of the Managers, and CSFBL shall not
terminate the Subscription Agreement pursuant to the conditions set forth in
Section 6 thereof except after consultation with the Representatives.
9. Counterparts. This Agreement may be signed in various
counterparts, which together shall constitute one and the same instrument.
10. Termination of Syndicate Restrictions. The obligations of the
Underwriters set forth in Section 2 shall terminate upon the earlier of (a) the
mutual agreement of the Representatives and CSFBL, on behalf of the Managers,
or (b) 45 days after the date hereof, unless the Representatives or CSFBL, on
behalf of the Managers, shall have given notice to the other parties hereto
that the sale of Offered Securities by the U.S. Underwriters or the Managers,
as the case may be, has not yet been completed. The Representatives and CSFBL,
on behalf of the Managers, may agree pursuant to clause (a) to terminate the
obligations of the Underwriters set forth in Section 2 other than the last
paragraph of Section 4(a) of the Agreement Among U.S. Underwriters and Section
7(c) of the Agreement Among Managers, which shall survive until separately
terminated pursuant to clause (a) or (b). If the notice referred to in clause
(b) is given, the obligations set forth in Section 2 shall survive until the
expiration of an additional 15 days from the date of such notice.
-4-
5
11. Position of Representatives and CSFBL. Neither the
Representatives nor CSFBL will be under any liability to any Underwriter for
any act or omission except for obligations expressly assumed by the
Representatives or CSFBL, respectively herein, and no obligations on part of
the Representatives and CSFBL will be implied hereby or inferred herefrom. The
rights and liabilities of the Underwriters are several and not joint and
nothing herein contained shall constitute or be deemed to constitute the
Underwriters as partners with each other or render any Underwriters liable for
the obligations of any other Underwriter. No Underwriter shall be bound in any
way by the acts of any other Underwriter in respect of the issue of the
Securities except as expressly provided. The duties of the Representatives and
CSFBL shall be administrative and not fiduciary in nature.
12. APPLICABLE LAW; JURISDICTION. THIS AGREEMENT SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT
REGARD TO PRINCIPLES OF CONFLICTS OF LAWS. The parties hereby submit to the
non-exclusive jurisdiction of the Federal and state courts in the Borough of
Manhattan in The City of New York in any suit or proceeding arising out of or
relating to this Agreement or the transactions contemplated hereby.
-5-
6
IN WITNESS WHEREOF, this Agreement has been executed as of the date
and year first above written by the undersigned for themselves and for the
Underwriters as set forth herein.
The U.S. Underwriters
CREDIT SUISSE FIRST BOSTON CORPORATION
SALOMON BROTHERS INC
XXXXX, XXXXXXXX & XXXX, INC.
XXXXXXXXX & XXXXX LLC
As Representatives of the several U.S.
Underwriters
By: CREDIT SUISSE FIRST BOSTON CORPORATION
By: _______________________________
[Name]
[Title]
For itself and on behalf of
the Representatives
The Managers:
CREDIT SUISSE FIRST BOSTON (EUROPE) LIMITED
SALOMON BROTHERS INTERNATIONAL LIMITED
XXXXX, XXXXXXXX & XXXX, INC.
XXXXXXXXX & XXXXX LLC
By: CREDIT SUISSE FIRST BOSTON (EUROPE) LIMITED
By: __________________________________
[Name]
[Title]
For itself and on behalf of the Managers
-6-
