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EXHIBIT 1.4
5,600,000 SHARES
WEIDER NUTRITION INTERNATIONAL, INC.
CLASS A COMMON STOCK
AGREEMENT AMONG MANAGERS
London, England
April __, 1997
CREDIT SUISSE FIRST BOSTON (EUROPE) LIMITED
SALOMON BROTHERS INTERNATIONAL LIMITED
▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇, INC.
▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLC
The above-named parties (the "Managers") wish to record the
arrangements agreed among them in relation to the purchase and distribution of
1,120,000 shares (the "International Firm Securities") of Class A Common Stock
(the "Securities"), of Weider Nutrition International, Inc., a Delaware
corporation (the "Company"), and in relation to an option granted to the
Managers and exercisable by CSFBC (as defined below) to purchase up to 168,000
additional shares of Securities (the "International Optional Securities") for
the sole purpose of covering over-allotments. The International Firm Securities
and the International Optional Securities are collectively referred to as the
"International Securities".
1. Subscription Arrangements. On April __, 1997 the Managers will
enter into a subscription agreement (the "Subscription Agreement") with the
Company under which the Managers acting severally and not jointly will agree to
purchase and pay for the International Firm Securities and the International
Optional Securities in the respective amounts and at the price set forth in the
Subscription Agreement, and otherwise upon the terms and conditions of the
Subscription Agreement on the First Closing Date and the Second Closing Date,
respectively, referred to therein (each a "Closing Date"). It is understood
that the Company is concurrently entering into an Underwriting Agreement (the
"Underwriting Agreement") with the underwriters listed on Schedule A attached
thereto (the "U.S. Underwriters"), for whom Credit Suisse First Boston
Corporation ("CSFBC"), Salomon Brothers Inc, ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇, Inc. and
▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLC are acting as representatives (the "Representatives"),
providing for the sale of 4,480,000 shares of Securities (the "U.S. Firm
Securities") in the United States and Canada and granting the U.S. Underwriters
the option, exercisable from time to time by CSFBC, to purchase up to 672,000
additional shares of Securities (the "U.S. Optional Securities") for the sole
purpose of covering over-allotments. The U.S. Firm Securities and the U.S.
Optional Securities are collectively referred to as the "U.S. Securities. The
International Firm Securities and the U.S. Firm Securities are collectively
referred to as the "Firm Securities"; the International Optional Securities and
the U.S. Optional Securities are collectively referred to as the "Optional
Securities". The International Securities and the U.S. Securities are herein
collectively called the "Offered Securities". The term "underwriting
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commitment", as used in this Agreement with respect to any Manager, shall refer
to the principal amount or number of shares or units of International
Securities (plus such additional International Securities as may be required by
the Subscription Agreement to be purchased by such Manager in the event of a
default by one or more of the Managers) which such Manager is obligated to
purchase pursuant to the provisions of the Subscription Agreement. It is also
understood that certain matters will be governed by an Agreement Between U.S.
Underwriters and Managers (the "Intersyndicate Agreement") between the U.S.
Underwriters and the Managers, to be dated the date of the Subscription
Agreement.
2. Prospectuses and Registration Statements. Each of the Managers
acknowledges that it has received copies of the registration statement (No.
333-12929) relating to the Offered Securities, the forms of related
prospectuses and the amendment or amendments thereto, filed by the Company with
the United States Securities and Exchange Commission (the "Commission"). If
applicable, an additional registration statement relating to the Offered
Securities may have been or may be filed by the Company with the Commission
pursuant to Rule 462(b) under the United States Securities Act of 1933 (the
"Act"). Each of the Managers acknowledges that such registration statements and
prospectuses may be further amended. The terms "Registration Statement",
"International Prospectus", "U.S. Prospectus" and "Prospectuses" shall have the
meanings ascribed to them in the Subscription Agreement. Each of the Managers
hereby severally confirms its authorization to Credit Suisse First Boston
(Europe) Limited ("CSFBL") as its agent and on its behalf to enter into the
Subscription Agreement and the Intersyndicate Agreement, each in such form as
CSFBL determines, and to take all acts necessary to carry out the provisions
thereof.
3. Open Market Transactions; Selling Restrictions; Sales Allocations.
(a) Each Manager agrees that from the date of the invitation telex to
participate in the offering (the "Telex") in connection with the sale of the
International Securities until CSFBL shall have notified it of the termination
of the selling restrictions set forth in Sections 3(a), (b) and (d) hereof,
neither it nor any of its "affiliated purchasers" (as defined for the purposes
of Rule 101 in Regulation M ("Regulation M") under the United States Securities
Exchange Act of 1934 (the "Exchange Act")) will, except to the extent permitted
by Rule 101 in Regulation M or any applicable exemption therefrom, in each case
as interpreted by the Commission, (i) bid for or purchase for any account in
which such Manager or affiliated purchaser has a beneficial interest, any
Securities, any other class of share capital of the Company, any right to
purchase any Securities or other class of share capital of the Company, any
other security of the same class or series as the Securities or any depositary
shares representing Securities, representing any other class of share capital
of the Company or representing any other security of the same class or series
as the Securities (collectively, the "Subject Securities") or (ii) attempt to
induce any person to purchase any Subject Securities, except, only after the
effectiveness of the Registration Statement, by offers to sell or the
solicitation of offers to buy Subject Securities offered as principal by such
Manager and except for brokerage transactions not involving solicitation of the
customer's order. In addition, each Manager agrees that neither it nor any such
affiliated purchaser will, from the date of the Telex until CSFBL shall have
notified it of the termination of the selling restrictions set forth in
Sections 3(a), (b) and (d) hereof, make bids or purchase for the purpose of
creating actual, or apparent, active trading in or influencing the price of the
Securities. Each Manager confirms that it will comply with Rules 101 and 104
of Regulation M (subject to any applicable exemption therefrom), as interpreted
by the Commission, and all applicable laws and regulations of the U.K.
Securities Investment Board. Each Manager confirms its agreement to the
provisions of Section 3 of the Intersyndicate Agreement concerning the conduct
of stabilization activities in connection with the public offering of the
Securities, including CSFBC's authority to direct and control all stabilizing
activities.
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(b) Each Manager further agrees that, until CSFBL shall have
notified it of the termination of the selling restrictions set forth in
Sections 3(a), (b) and (d) hereof, such Manager will not, directly or
indirectly, offer or sell the International Securities to any person at less
than the offering price to the public to be determined (the "Offering Price"),
other than (i) to a person whose business it is to buy or sell securities, or
to act on behalf of persons who buy or sell securities, and then not below the
Offering Price less a maximum permissible reallowance to be notified to such
Manager by telex or (ii) to a company or other entity that is such Manager's
subsidiary or holding company or another subsidiary of such holding company and
then only on condition that such company will not directly or indirectly sell
the International Securities otherwise than as stated in this Section 3(b).
(c) No action has been or will be taken in any non-United States
jurisdiction by the Managers or the Company that would permit a public offering
of the International Securities, or possession or distribution of the
International Prospectus or any other offering material, in any country or
jurisdiction where action for that purpose is required. Each Manager agrees
that it will not directly or indirectly purchase, offer, sell or deliver any
International Securities or have in its possession or distribute or publish the
International Prospectus or any other offering material in or from any country
or jurisdiction except under circumstances that will result in compliance with
any applicable laws and regulations and that will not impose any obligations on
the Company or the Managers, and all offers, sales and deliveries of
International Securities and distributions of the International Prospectus or
other offering material by such Manager will be made at such Manager's own
expense. No Manager is authorized to make any representation or use any
information in connection with the issue, subscription and sale of the
International Securities other than as contained in the International
Prospectus.
(d) Except for purchases and sales pursuant to the Intersyndicate
Agreement, the International Securities may not be offered or sold, directly or
indirectly, and no International Prospectus may be distributed, in the United
States or Canada as part of the distribution of the International Securities.
Each Manager represents and agrees that it has not offered or sold and will not
offer or sell, directly or indirectly, any International Securities acquired by
it as part of the distribution of the International Securities except to a
Manager or pursuant to the Intersyndicate Agreement, and will not distribute
any International Prospectus, in the United States or Canada.
As used in this Section 3(d), an offer or sale shall be in the United
States or Canada if it is made to (i) any individual resident in the United
States or Canada or (ii) any corporation, partnership, pension, profit-sharing
or other trust or other entity (including any such entity acting as an
investment advisor with discretionary authority) whose office most directly
involved with the purchase is located in the United States or Canada. "United
States" means the United States of America (including the States and the
District of Columbia), its territories and possessions and other areas subject
to its jurisdiction, and "Canada" means Canada, its provinces, territories and
possessions and other areas subject to its jurisdiction.
(e) Each Manager represents and agrees that (i) it has not offered or
sold, and prior to the date six months after the date of issue of the
International Securities will not offer or sell any International Securities to
any persons in the United Kingdom except to persons whose ordinary activities
involve them in acquiring, holding, managing or disposing of investments (as
principal or agent) for purposes of their businesses or otherwise in
circumstances which have not resulted and will not result in an offer to the
public in the United Kingdom within the meaning of the Public Offers of
Securities Regulation 1995, (ii) it has complied and will comply with all
applicable provisions of the Financial Services ▇▇▇ ▇▇▇▇ with respect to
anything done by it in relation to the
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International Securities in, from or otherwise involving the United Kingdom,
and (iii) it has only issued or passed on, and will only issue or pass on, in
the United Kingdom any document received by it in connection with the issue of
the International Securities to a person who is of a kind described in Article
11(3) of the Financial Services ▇▇▇ ▇▇▇▇ (Investment Advertisements)
(Exemptions) Order 1995 or is a person to whom such document may otherwise
lawfully be issued or passed on.
(f) Each Manager represents that it is (i) a foreign bank, broker,
dealer or other institution not eligible for membership in the National
Association of Securities Dealers, Inc. (the "NASD") or (ii) a member in good
standing of the NASD. Each Manager that is not an NASD member agrees that it
will comply, as though it were an NASD member, with Sections 8, 24 and 36 of
Article III of the NASD's Rules of Fair Practice, with Section 25 of such
Article III as it applies to a nonmember broker or dealer in a foreign country,
and with the requirements of the NASD's Interpretation with Respect to
Free-Riding and Withholding. Each Manager that is an NASD member agrees that in
making sales of Securities it will comply with all applicable rules of the
NASD, including, without limitation, Section 24 of Article III of the NASD's
Rules of Fair Practice.
(g) The terms of the Intersyndicate Agreement shall be binding on
each of the Managers (whose acceptance of such terms shall be evidenced by its
signature to this Agreement) as though set forth herein.
(h) If advised by CSFBL that there will be a "pot", each Manager
authorizes CSFBL, in its discretion, to receive for sale and to sell to
investors at the public offering price, directly or through any other Manager
selected by CSFBL, all or any part of the Securities to be purchased by such
Manager, all as CSFBL determines. Upon CSFBL's request, such Manager will
deliver to CSFBL for such Manager's account, or sell to CSFBL for its account
or the account of one or more other Managers, such Securities at the Offering
Price less, in the case of purchases for the account of CSFBL or another
Manager, an amount determined by CSFBL not in excess of the selected dealer's
or selling concession. Such reservations and sales to investors arranged by
CSFBL need not be in proportion to a Manager's underwriting commitment under
the Subscription Agreement.
4. Payment and Delivery. CSFBL shall make arrangements for the
payment for and delivery of the International Securities, shall advise the
Managers of such arrangements by telex and shall receive on behalf of the
Managers the compensation payable by the Company under Section 3 of the
Subscription Agreement. At CSFBL's request, each respective Manager will pay
CSFBL an amount equal to the Managers' purchase price pursuant to the
Subscription Agreement with respect to the International Securities allotted to
such Manager, and such payment will be credited to such Manager's account and
applied to the payment of the purchase price to the Company.
5. Waiver of Conditions. If any Manager wishes to waive compliance
with any of the conditions in Section 6 of the Subscription Agreement, such
Manager shall so notify CSFBL and CSFBL shall then, if reasonably practicable,
consult with the other Managers. CSFBL shall, if it also wishes to so waive
compliance, on receiving notice from each of the other Managers, or may, in its
sole discretion, waive compliance with any such condition.
6. Authority. Each of the Managers hereby authorizes CSFBL, as agent
for and on behalf of such Manager, to do all acts and things that such Manager
is, or all Managers together are, required or entitled to do under the
Subscription Agreement and the Intersyndicate Agreement, including without
prejudice to the generality of the foregoing:
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(a) furnish the Company with the information to be
included in the Registration Statement and International Prospectus
with respect to the terms of the offering of the International
Securities;
(b) arrange for the payment to the Company of the
net purchase price for the International Securities in accordance with
Section 3 of the Subscription Agreement;
(c) arrange for delivery of the International
Securities in accordance with the directions of the Managers in
respect of the International Securities purchased by them; and
(d) borrow in the Managers' names and for their
several accounts (in proportion to their respective underwriting
commitments under the Subscription Agreement) such amount as CSFBL
shall in its sole discretion determine in order that payment for the
International Securities can be effected on each Closing Date in
accordance with Section 3 of the Subscription Agreement; and any
amount so borrowed shall forthwith be reduced by the amount of all
payments subsequently received from the Managers in respect of
International Securities purchased by them.
7. Distribution of Moneys; Expenses; Repurchase. (a) After payment
of the aggregate net purchase price for the International Securities to the
Company in accordance with the provisions of the Subscription Agreement and
deduction of a Global Coordinator's super- praecipuum or other compensation as
contemplated in Section 6 of the Intersyndicate Agreement, and subject to
Section 7(b) below, CSFBL shall, out of the balance of the moneys received by
it pursuant to the issue of the International Securities:
(i) deduct a praecipuum for the account of CSFBL in
the amount of U.S. $ per International Security (which may
be divided among CSFBL, Salomon Brothers International Limited, ▇▇▇▇▇,
▇▇▇▇▇▇▇▇ & Hill, Inc. and ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLC in such proportions as
they may determine); and
(ii) distribute among the Managers the balance of
such moneys pro rata in proportion to their respective underwriting
commitments under the Subscription Agreement, subject to the deduction
for certain expenses as set forth herein, including without limitation
stabilization and other expenses incurred pursuant to Sections 3 and 5
of the Intersyndicate Agreement.
(b) CSFBL may charge the account of each respective Manager with its
proportionate share, based upon its underwriting commitment under the
Subscription Agreement, of any transfer taxes on sales made by CSFBL of the
International Securities purchased by the Managers under the Subscription
Agreement, advertising expenses and all other expenses incurred by CSFBL under
this Agreement or in connection with the purchase, carrying, sale or
distribution of the International Securities (including expenses incurred
pursuant to Section 5 of the Intersyndicate Agreement and expenses of investor
presentations). The accounts hereunder will be settled as promptly as
practicable after the termination of the obligations of the Managers and the
U.S. Underwriters set forth in Section 2 of the Intersyndicate Agreement, but
CSFBL may reserve such amount as it deems advisable for additional expenses.
CSFBL's determination of the amount to be paid to or by the Managers under this
Section 7(b) will be conclusive. CSFBL may at any time make partial
distributions of credit balances or call for payment of debit balances. Any of
the Managers' funds in
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CSFBL's hands may be held with its general funds without accountability for
interest. Notwithstanding any settlement, each Manager will remain liable for
any taxes on transfers for its account, and for its proportionate share, based
on its underwriting commitment under the Subscription Agreement, of all
expenses and liabilities that may be incurred by or for the accounts of the
Managers.
(c) Any International Securities sold or loaned by a Manager (the
"Selling Manager") (otherwise than through the Representatives) that the
Representatives purchases in the open market for the account of any U.S.
Underwriter or any Manager prior to notification from CSFBL of the termination
of the provisions of this subsection will be repurchased by such Selling
Manager on demand at the cost of such purchase plus commissions and taxes on
redelivery. Certificates representing the International Securities delivered on
such repurchase need not be the identical certificates so purchased. In lieu of
such action the Representatives may at their discretion sell for the account of
such Selling Manager the International Securities so purchased and debit or
credit the account of such Selling Manager for the loss or profit resulting
from such sale, or charge the account of such Selling Manager with an amount
not in excess of the selected dealer's or selling concession with respect to
such International Securities. CSFBL may terminate the provisions of this
subsection at any time at or subsequent to the termination of the selling
restrictions set forth in Sections 3(a), (b) and (d) hereof by notice to the
effect that the penalty bid provisions of this Agreement are terminated.
(d) Amounts paid or reimbursed by the Company in respect of Managers'
expenses will be retained by CSFBL (even if in excess of its expenses described
in Section 7(b) above). The other Managers will not be reimbursed for any of
their expenses in connection with the offering of the Securities.
8. Unreimbursed Expenses. Any expenses that may be incurred by the
Managers and not reimbursed by the Company shall be borne by the several
Managers pro rata as nearly as practicable in proportion to their respective
underwriting commitments under the Subscription Agreement.
9. Default by Managers. Default by one or more Managers hereunder or
under the Subscription Agreement will not release the other Managers from their
obligations or affect the liability of any defaulting Manager to the other
Managers for damages resulting from such default. If one or more Managers
default under the Subscription Agreement, CSFBL may arrange for the purchase by
others, including non- defaulting Managers, of International Securities not
taken up by the defaulting Manager or Managers in accordance with Section 7 of
the Subscription Agreement.
10. Position of CSFBL. CSFBL will be under no liability to any
Manager for any act or omission except for obligations expressly assumed by
CSFBL herein, and no obligations on CSFBL's part will be implied hereby or
inferred herefrom. The rights and liabilities of the Managers are several and
not joint, and nothing herein contained shall constitute or be deemed to
constitute the Managers as partners with each other or (except as expressly
provided herein) render any Manager liable for the obligations of any other
Manager. No Manager shall be bound in any way by the acts of any other Manager
in respect of the issue of the International Securities except those of CSFBL
on behalf of the Managers pursuant to the provisions of this Agreement, the
Subscription Agreement or the Intersyndicate Agreement, and no Manager shall
have any right to contribution or account against any other Manager except as
expressly or by necessary implication provided herein. Each Manager shall bear
all losses and expenses incurred by it and be entitled to retain all profits
earned by it in connection with the Subscription Agreement except as otherwise
expressly provided herein.
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11. Indemnification. Each Manager will indemnify and hold harmless
each other Manager and each person, if any, who controls such Manager within
the meaning of Section 15 of the Act to the extent and upon the terms upon
which each Manager agrees to indemnify the Company in the Subscription
Agreement. Each Manager will indemnify the other Managers, each person, if any,
who controls any of such Managers within the meaning of Section 15 of the Act
and their respective directors and officers, against any losses, liabilities,
damages, costs or claims, or actions in respect thereof (including, but not
limited to, all costs of investigating, disputing or defending any such claim
or action) to which any of such Managers may become subject arising out of or
in connection with any unauthorized action by that Manager, failure by that
Manager to observe any of the restrictions or requirements of Section 3 or
otherwise set forth herein or the giving of any information or the making by
that Manager of any unauthorized representation or the use by that Manager of
any information that is not contained in the Prospectuses relating to the
Securities or any amendment or supplement thereto.
12. Contribution. Each Manager (including CSFBL) will pay, upon
CSFBL's request, as contribution, its proportionate share, based upon such
Manager's underwriting commitment under the Subscription Agreement, of any
losses, claims, damages or liabilities, joint or several, paid or incurred by
any Manager to any person other than a Manager, arising out of or based upon
any untrue statement or alleged untrue statement of any material fact contained
in any Registration Statement, the Prospectuses, any amendment or supplement
thereto or any related preliminary prospectus or any other selling or
advertising material approved by CSFBL for use by the Managers in connection
with the sale of the International Securities, or the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading (other than an untrue
statement or alleged untrue statement or omission or alleged omission made in
reliance upon and in conformity with written information furnished to the
Company by a Manager through CSFBL specifically for use therein); and will pay
such proportionate share of any legal or other expenses reasonably incurred by
CSFBL or with CSFBL's consent in connection with investigating or defending any
such loss, claim, damage or liability, or any action in respect thereof. In
determining the amount of any Manager's obligation under this Section 12,
appropriate adjustment may be made by CSFBL to reflect any amounts received by
any one or more Managers in respect of such claim from the Company or any other
person (other than a Manager) pursuant to Section 7 of the Subscription
Agreement or otherwise. There shall be credited against any amount paid or
payable by a respective Manager pursuant to this Section 12 any loss, damage,
liability or expense that is incurred by such Manager as a result of any such
claim asserted against it, and if such loss, claim, damage, liability or
expense is incurred by such Manager subsequent to any payment by it pursuant to
this Section 12, appropriate provision shall be made to effect such credit, by
refund or otherwise. If any such claim is asserted, CSFBL may take such action
in connection therewith as it deems necessary or desirable, including retention
of counsel for the Managers, and in CSFBL's discretion separate counsel for any
particular Manager or group of Managers, and the fees and disbursements of any
counsel so retained by CSFBL shall be included in the amounts payable pursuant
to this Section 12. In determining amounts payable pursuant to this Section 12,
any loss, claim, damage, liability or expense incurred by any person
controlling any Manager within the meaning of Section 15 of the Act that has
been incurred by reason of such control relationship shall be deemed to have
been incurred by such Manager. Any Manager may elect to retain at its own
expense its own counsel. CSFBL may settle or consent to the settlement of any
such claim, on advice of counsel retained by CSFBL, upon consultation, if
practicable, with the Managers. Whenever CSFBL receives notice of the assertion
of any claim to which the provisions of this Section 12 would be applicable,
CSFBL will give prompt notice thereof to each Manager. CSFBL will also furnish
each Manager with periodic reports, at such times as it deems appropriate as to
the status of such claim and the action taken by it in connection therewith,
but shall have absolute discretion to
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determine the response to any such claim and to take action in connection
therewith, including directing any action, suit or proceeding on behalf of each
Manager. If any Manager or Managers default in their obligation to make any
payments under this Section 12, each non-defaulting Manager shall be obligated
to pay its proportionate share of all defaulted payments, based on such
Manager's underwriting commitment under the Subscription Agreement as related
to such underwriting commitments of all non-defaulting Managers. Nothing herein
shall relieve such defaulting Manager from liability for its own default.
13. Questionnaire. Each Manager by its execution of this Agreement
hereby confirms that (except as may have been previously set forth in a written
notice from it to CSFBL):
(a) neither it nor any of its directors, officers or partners
have a material relationship with the Company;
(b) except as described in this Agreement, in written notices
to it from CSFBL or in the Prospectuses, it does not know of any
discounts or commissions to be allowed or paid to dealers, including
all cash, securities, contracts or other consideration to be received
by any dealer in connection with the sale of the International
Securities;
(c) it has not prepared any report or memorandum for external
use in connection with the proposed offering; [and]
(d) it is not an "affiliate" of the Company for purposes of
Schedule E to the By-Laws of the NASD. It understands that under
Schedule E (except as provided in Section 2(a)(3) thereof) two
entities are "affiliates" of each other if one entity controls, is
controlled by, or is under common control with, the second entity and
that "control" is presumed to exist if one entity (or, in the case of
an NASD member, the entity and all "persons associated with" it (as
defined in the NASD By-Laws)) beneficially owns 10% or more of the
second entity's outstanding voting securities;
(e) it does not have a "conflict of interest" with the Company
under Schedule E to the NASD By-Laws. In that regard, it specifically
confirms that it, its "parent" (as defined in Schedule E), affiliates
and "persons associated with" it (as defined in the NASD By-Laws) in
the aggregate do not beneficially own 10% or more of the Company's
"common equity", "preferred equity" or "subordinated debt" (as each
such term is defined in Schedule E);
(f) neither it nor any of its directors, officers, partners or
"persons associated with" it (as defined in the NASD By-Laws) nor, to
its knowledge, any "related person" (defined by the NASD to include
counsel, financial consultants and advisors, finders, members of the
selling or distribution group and any other persons associated with or
related to any of the foregoing) or any other broker-dealer (i) within
the last 12 months has purchased in private transactions, or intends
before, at or within six months after, the commencement of the public
offering of the International Securities to purchase in private
transactions, any securities of the Company or any Company Related
Party (as hereinafter defined), (ii) within the last 12 months had any
dealings with the Company or any subsidiary or controlling person
thereof (other than relating to the proposed Subscription Agreement and
the Underwriting Agreement) as to which documents or information are
required to be filed with the NASD pursuant to its Corporate Financing
Rule (a copy of each of the NASD provisions referred to in this Section
13(d) is available from CSFBL upon request), or (iii) during the 12
months immediately preceding the filing of any Registration Statement,
has entered into
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any arrangement which provided or provides for the receipt of
any item of value (including, but not limited to, cash payments and
expense reimbursements) and/or the transfer of any warrants, options or
other securities from the Company or any Company Related Party to it or
any related person. There is no association or affiliation between it
and (i) any officer or director of the Company or any Company Related
Party, or (ii) any securityholder of 5% or more (or, in the case of an
initial public offering of equity securities, any securityholder) of
any class of securities of the Company or a Company Related Party; it
being understood that for purposes of this Section 13(f), the term
"Company Related Party" includes any affiliate of the Company, and the
officers or general partners, directors, employees and securityholders
thereof. (If there are any exceptions, the identity of the person with
whom the association or affiliation exists shall be stated and, if
relevant, the number of equity securities or the face value of debt
securities owned by such person, the date such securities were acquired
and the price paid for such securities shall also be stated.);
(g) No portion of the net offering proceeds from the sale
of the Securities will be paid to us or any of our affiliates or
"persons associated with" us (as defined in the NASD By-Laws) or
members of the immediate family of any such person;
(h) neither it nor any "group" (as that term is used in
Section 13(d)(3) of the Exchange Act) of which it is a member is the
beneficial owner (determined in accordance with Rule 13d-3 under the
Exchange Act) of more than 5% of any class of voting securities of the
Company, nor does it have any knowledge that more than 5% of any class
of voting securities of the Company is held or to be held subject to
any voting trust or other similar agreement;
(i) it has not within the past 12 months prepared or had
prepared for it any engineering, management or similar report or
memorandum relating to broad aspects of the business, operations or
products of the Company. (This confirmation does not apply to reports
solely consisting of recommendations to buy, sell or hold the
Company's securities, unless such recommendations have changed within
the past six months, or to information already contained in documents
filed with the Commission. If there are any exceptions, four copies of
each report and memorandum shall have been furnished to CSFBL and each
class of persons who received such material shall have been identified
and the number of copies distributed to each such class.).
14. Time of the Essence. In the performance of this Agreement time
shall be of the essence.
15. 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.
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10
16. Counterparts. This Agreement may be signed in various
counterparts, which together shall constitute one and the same instrument.
CREDIT SUISSE FIRST BOSTON (EUROPE) LIMITED
By:_________________________________________
[Name]
SALOMON BROTHERS INTERNATIONAL LIMITED
▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇, INC.
▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLC
Each by its duly authorized attorney-in-fact:
By:__________________________________________
[Name]
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