1
EXHIBIT 1.1
5,600,000 SHARES
WEIDER NUTRITION INTERNATIONAL, INC.
Class A Common Stock
UNDERWRITING AGREEMENT
April __, 1997
CREDIT SUISSE FIRST BOSTON CORPORATION
SALOMON BROTHERS INC
▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇, INC.
▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLC,
As Representatives of the Several Underwriters,
c/o Credit Suisse First Boston Corporation,
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇.▇. ▇▇▇▇▇
Dear Sirs:
1. Introductory. Weider Nutrition International, Inc., a Delaware
corporation ("Company"), proposes to issue and sell ("U.S. Offering") to the
several Underwriters named in Schedule A hereto (the "Underwriters") 4,480,000
shares ("U.S. Firm Securities") of its Class A Common Stock ("Securities").
Credit Suisse First Boston Corporation ("CSFBC"), Salomon Brothers Inc, ▇▇▇▇▇,
▇▇▇▇▇▇▇▇ & ▇▇▇▇, Inc. and ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLC (the "Representatives") shall
act as representatives of the several Underwriters in the U.S. Offering.
It is understood that the Company is concurrently entering into a
Subscription Agreement, dated the date hereof ("Subscription Agreement"), with
Credit Suisse First Boston (Europe) Limited ("CSFBL") and the other managers
named therein ("Managers") relating to the concurrent offering and sale of
1,120,000 shares of Securities ("International Firm Securities") outside the
United States and Canada ("International Offering" and, together with the U.S.
Offering, the "Offerings").
In addition, as set forth below the Company proposes to issue and sell
(i) to the Underwriters, at the option of the Underwriters, an aggregate of not
more than 672,000 additional shares of Securities ("U.S. Optional Securities")
and (ii) to the Managers, at the option of the Managers, an aggregate of not
more than 168,000 additional shares of Securities ("International Optional
Securities"). The U.S. Firm Securities and the U.S. Optional Securities are
hereinafter called the "U.S. Securities"; the International Firm Securities and
the International Optional Securities are hereinafter called the "International
Securities"; the U.S. Firm Securities and the International Firm Securities are
hereinafter called the "Firm Securities"; the U.S. Optional Securities and the
International Optional Securities are hereinafter called the "Optional
Securities". The U.S. Securities and the International Securities are
collectively referred to as the "Offered Securities". To provide for the
coordination of their activities, the Underwriters and the Managers have
entered into an Agreement Between U.S. Underwriters and Managers which permits
them, among other things, to sell the Offered Securities to each other for
purposes of resale.
The Company hereby agrees with the several Underwriters as follows:
2. Representations and Warranties of the Company. The Company
represents and warrants to, and agrees with, the several Underwriters that:
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(a) A registration statement (No. 333-12929) relating to the
Offered Securities, including a form of prospectus relating to the
U.S. Securities and a form of prospectus relating to the International
Securities being offered in the International Offering, has been filed
with the Securities and Exchange Commission ("Commission") and either
(i) has been declared effective under the Securities Act of 1933
("Act") and is not proposed to be amended or (ii) is proposed to be
amended by amendment or post-effective amendment. If such registration
statement (the "initial registration statement") has been declared
effective, either (A) an additional registration statement (the
"additional registration statement") relating to the Offered
Securities may have been filed with the Commission pursuant to Rule
462(b) ("Rule 462(b)") under the Act and, if so filed, has become
effective upon filing pursuant to such Rule and the Offered Securities
all have been duly registered under the Act pursuant to the initial
registration statement and, if applicable, the additional registration
statement or (B) such an additional registration statement is proposed
to be filed with the Commission pursuant to Rule 462(b) and, if so
filed, will become effective upon filing pursuant to such Rule and
upon such filing the Offered Securities will all have been duly
registered under the Act pursuant to the initial registration
statement and, if applicable, such additional registration statement.
If the Company does not propose to amend the initial registration
statement or if an additional registration statement has been filed
and the Company does not propose to amend it, and if any
post-effective amendment to either such registration statement has
been filed with the Commission prior to the execution and delivery of
this Agreement, the most recent amendment (if any) to each such
registration statement has been declared effective by the Commission
or has become effective upon filing pursuant to Rule 462(c) ("Rule
462(c)") under the Act or, in the case of the additional registration
statement, Rule 462(b). For purposes of this Agreement, "Effective
Time" with respect to the initial registration statement or, if filed
prior to the execution and delivery of this Agreement, the additional
registration statement means (i) if the Company has advised the
Representatives that it does not propose to amend such registration
statement, the date and time as of which such registration statement,
or the most recent post-effective amendment thereto (if any) filed
prior to the execution and delivery of this Agreement, was declared
effective by the Commission or has become effective upon filing
pursuant to Rule 462(c), or (ii) if the Company has advised the
Representatives that it proposes to file an amendment or
post-effective amendment to such registration statement, the date and
time as of which such registration statement, as amended by such
amendment or post-effective amendment, as the case may be, is declared
effective by the Commission. If an additional registration statement
has not been filed prior to the execution and delivery of this
Agreement but the Company has advised the Representatives that it
proposes to file one, "Effective Time" with respect to such additional
registration statement means the date and time as of which such
registration statement is filed and becomes effective pursuant to Rule
462(b). "Effective Date" with respect to the initial registration
statement or the additional registration statement (if any) means the
date of the Effective Time thereof. The initial registration
statement, as amended at its Effective Time, including all information
contained in the additional registration statement (if any) and deemed
to be a part of the initial registration statement as of the Effective
Time of the additional registration statement pursuant to the General
Instructions of the Form on which it is filed and including all
information (if any) deemed to be a part of the initial registration
statement as of its Effective Time pursuant to Rule 430A(b) ("Rule
430A(b)") under the Act, is hereinafter referred to as the "Initial
Registration Statement". The additional registration statement, as
amended at its Effective Time, including the contents of the initial
registration statement incorporated by reference therein and including
all information (if any) deemed to be a part of the additional
registration statement as of its Effective Time pursuant to Rule
430A(b), is hereinafter referred to as the "Additional Registration
Statement". The Initial Registration Statement and the Additional
Registration Statement are hereinafter referred to collectively as the
"Registration Statements" and individually as a "Registration
Statement". The form of prospectus relating to the U.S. Securities and
the form of prospectus relating to the International Securities, each
as first filed with the Commission pursuant to and in accordance with
Rule 424(b) ("Rule 424(b)") under the Act or (if no such filing is
required) as included in the Registration Statement, are hereinafter
referred
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to as the "U.S. Prospectus" and the "International Prospectus",
respectively, and collectively as the "Prospectuses". No document has
been or will be prepared or distributed in reliance on Rule 434 under
the Act.
(b) If the Effective Time of the Initial Registration
Statement is prior to the execution and delivery of this Agreement:
(i) on the Effective Date of the Initial Registration Statement, the
Initial Registration Statement conformed in all material respects to
the requirements of the Act and the rules and regulations of the
Commission ("Rules and Regulations") and did not include any untrue
statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading, (ii) on the Effective Date of the Additional
Registration Statement (if any), each Registration Statement
conformed, or will conform, in all material respects to the
requirements of the Act and the Rules and Regulations and did not
include, or will not include, any untrue statement of a material fact
and did not omit, or will not omit, to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading, and (iii) on the date of this Agreement, the
Initial Registration Statement and, if the Effective Time of the
Additional Registration Statement is prior to the execution and
delivery of this Agreement, the Additional Registration Statement each
conforms, and at the time of filing of each of the Prospectuses
pursuant to Rule 424(b) or (if no such filing is required) at the
Effective Date of the Additional Registration Statement in which the
Prospectuses are included, each Registration Statement and each of the
Prospectuses will conform, in all material respects to the
requirements of the Act and the Rules and Regulations, and none of
such documents includes, or will include, any untrue statement of a
material fact or omits, or will omit, to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading. If the Effective Time of the Initial
Registration Statement is subsequent to the execution and delivery of
this Agreement: on the Effective Date of the Initial Registration
Statement, the Initial Registration Statement and each of the
Prospectuses will conform in all material respects to the requirements
of the Act and the Rules and Regulations, none of such documents will
include any untrue statement of a material fact or will omit to state
any material fact required to be stated therein or necessary to make
the statements therein not misleading, and no Additional Registration
Statement has been or will be filed. The two preceding sentences do
not apply to statements in or omissions from a Registration Statement
or either of the Prospectuses based upon written information furnished
to the Company by any Underwriter through the Representatives or by
any Manager through CSFBL specifically for use therein, it being
understood and agreed that the only such information is that described
as such in Section 7(b).
(c) The Company has been duly incorporated and is an existing
corporation in good standing under the laws of the State of Delaware,
with power and authority (corporate and other) to own its properties
and conduct its business as described in the Prospectuses; and the
Company is duly qualified to do business as a foreign corporation in
good standing in all other jurisdictions in which its ownership or
lease of property or the conduct of its business requires such
qualification, except for such failures to be so qualified or in good
standing which, either individually or in the aggregate, could not
reasonably be expected to result in a material adverse effect on the
business, properties, condition (financial or other) or results of
operations of the Company and its subsidiaries, taken as a whole (a
"Material Adverse Effect").
(d) Each subsidiary of the Company has been duly incorporated
and is an existing corporation in good standing under the laws of the
jurisdiction of its incorporation, with power and authority (corporate
and other) to own its properties and conduct its business as described
in the Prospectuses; and each subsidiary of the Company is duly
qualified to do business as a foreign corporation in good standing in
all other jurisdictions in which its ownership or lease of property or
the conduct of its business requires such qualification, except for
such failures to be so qualified or in good standing which, either
individually or in the aggregate, could not reasonably be expected to
result in a Material Adverse Effect; all of the issued and outstanding
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capital stock of each subsidiary of the Company has been duly
authorized and validly issued and is fully paid and nonassessable; and
the capital stock of each subsidiary owned by the Company, directly or
through subsidiaries, is owned free from liens, encumbrances and
defects.
(e) The Offered Securities and all other outstanding shares of
capital stock of the Company have been duly authorized; all
outstanding shares of capital stock of the Company are, and, when the
Offered Securities have been delivered and paid for in accordance with
this Agreement and the Subscription Agreement on each Closing Date (as
defined below), such Offered Securities will have been, validly
issued, fully paid and nonassessable and will conform in all material
respects to the description thereof contained in the Prospectuses; and
the stockholders of the Company have no preemptive rights with respect
to the Securities.
(f) Except as disclosed in the Prospectuses, there are no
contracts, agreements or understandings between the Company and any
person that would give rise to a valid claim against the Company or
any Underwriter or Manager for a brokerage commission, finder's fee or
other like payment in connection with the sale of the Offered
Securities.
(g) There are no contracts, agreements or understandings
between the Company and any person granting such person the right to
require the Company to file a registration statement under the Act
with respect to any securities of the Company owned or to be owned by
such person or to require the Company to include such securities in
the securities registered pursuant to a Registration Statement or in
any securities being registered pursuant to any other registration
statement filed by the Company under the Act.
(h) The Offered Securities have been approved for listing on
the New York Stock Exchange subject only to official notice of
issuance.
(i) No consent, approval, authorization, or order of, or
filing with, any governmental agency or body or any court is required
to be made or obtained by the Company for the consummation of the
transactions contemplated by this Agreement or the Subscription
Agreement in connection with the issuance and sale of the Offered
Securities by the Company, except such as have been obtained and made
under the Act and such as may be required under state securities laws.
(j) The execution, delivery and performance of this Agreement
and the Subscription Agreement, and the issuance and sale of the
Offered Securities will not (i) conflict with, or result in a breach
or violation of any of the terms and provisions of, any statute, any
rule, regulation or order of any governmental agency or body or any
court, domestic or foreign, having jurisdiction over the Company or
any subsidiary of the Company or any of their properties (except for
such violations, breaches or conflicts which, either individually or
in the aggregate, could not reasonably be expected to result in a
Material Adverse Effect, and except as rights to indemnity and
contribution may be limited by federal or state securities laws or by
the policies underlying such laws), or (ii) result in a breach or
violation of any of the terms and provisions of, or constitute a
default under, any agreement or instrument to which the Company or any
such subsidiary is a party or by which the Company or any such
subsidiary is bound or to which any of the properties of the Company
or any such subsidiary is subject (except for such violations,
breaches or defaults which, either individually or in the aggregate,
could not reasonably be expected to result in a Material Adverse
Effect), or (iii) conflict with, or result in a breach or violation of
any of the terms and provisions of, the charter or by-laws of the
Company or any such subsidiary; and the Company has full power and
authority to authorize, issue and sell the Offered Securities as
contemplated by this Agreement and the Subscription Agreement,
respectively.
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(k) This Agreement and the Subscription Agreement have been
duly authorized, executed and delivered by the Company and constitute
valid and legally binding obligations of the Company, enforceable in
accordance with their terms, except (i) as such enforceability may be
limited by bankruptcy, insolvency, reorganization, moratorium or
similar laws now or hereafter in effect relating to or affecting
creditors' rights generally; (ii) that the remedies of specific
performance and injunctive and other forms of relief are subject to
general equitable principles, whether enforcement is sought at law or
in equity, and that such enforcement may be subject to the discretion
of the court before which any proceedings therefor may be brought; and
(iii) as rights to indemnity and contribution may be limited by state
or federal laws relating to securities or by the policies underlying
such laws.
(l) Except as disclosed in the Prospectuses, the Company and
its subsidiaries have good and marketable title to all real properties
and all other properties and assets owned by them, in each case free
from liens, encumbrances and defects that would materially affect the
value thereof or materially interfere with the use made or to be made
thereof by them (except for such properties and assets the loss of
which, either individually or in the aggregate, could not reasonably
be expected to result in a Material Adverse Effect); and except as
disclosed in the Prospectuses, the Company and its subsidiaries hold
any leased real or personal property under valid and enforceable
leases with no exceptions that would materially interfere with the use
made or to be made thereof by them (except for such leased real or
personal property the loss of which, either individually or in the
aggregate, could not reasonably be expected to result in a Material
Adverse Effect).
(m) The Company and its subsidiaries possess adequate
certificates, authoritizations or permits issued by appropriate
governmental agencies or bodies necessary to conduct the business now
operated by them (except for such certificates, authorizations or
permits the lack of which, either individually or in the aggregate,
could not reasonably be expected to result in a Material Adverse
Effect) and have not received any notice of proceedings relating to
the revocation or modification of any such certificate, authorization
or permit that, if determined adversely to the Company or any of its
subsidiaries, could, either individually or in the aggregate,
reasonably be expected to result in a Material Adverse Effect.
(n) No labor dispute with the employees of the Company or any
subsidiary exists or, to the knowledge of the Company, is imminent
which could, either by itself or together with other such disputes,
reasonably be expected to result in a Material Adverse Effect.
(o) Except as disclosed in the Prospectuses, the Company and
its subsidiaries own, possess or can acquire on reasonable terms,
adequate trademarks, trade names and other rights to inventions,
know-how, patents, copyrights, confidential information and other
intellectual property (collectively, "intellectual property rights")
necessary to conduct the business now operated by them, or presently
employed by them; and, except as disclosed in the Prospectuses, have
not received any notice of infringement of or conflict with asserted
rights of others with respect to any intellectual property rights
that, if determined adversely to the Company or any of its
subsidiaries, could, either individually or together with other such
matters, reasonably be expected to result in a Material Adverse
Effect.
(p) Except as disclosed in the Prospectuses, neither the
Company nor any of its subsidiaries is in violation of any statute,
any rule, regulation, decision or order of any governmental agency or
body or any court, domestic or foreign, relating to the use, disposal
or release of hazardous or toxic substances or relating to the
protection or restoration of the environment or human exposure to
hazardous or toxic substances (collectively, "environmental laws"),
owns or operates any real property contaminated with any substance
that is subject to any environmental laws, is liable for any off-site
disposal or contamination pursuant to any environmental laws, or is
subject to any claim relating to any environmental laws, except for
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such violations, liabilities or claims which, either individually or
in the aggregate, could not reasonably be expected to result in a
Material Adverse Effect; and the Company is not aware of any pending
investigation which might lead to such a claim.
(q) Except as disclosed in the Prospectuses, there are no
pending actions, suits or proceedings against or affecting the
Company, any of its subsidiaries or any of their respective properties
that, if determined adversely to the Company or any of its
subsidiaries, either individually or in the aggregate, (i) could
reasonably be expected to result in a Material Adverse Effect, or (ii)
would materially and adversely affect the ability of the Company to
perform its obligations under this Agreement or the Subscription
Agreement, or (iii) which are otherwise material in the context of the
sale of the Offered Securities; and, to the Company's knowledge, no
such actions, suits or proceedings are threatened or contemplated.
(r) The financial statements included in each Registration
Statement and the Prospectuses present fairly the financial position
of the Company and its consolidated subsidiaries as of the dates shown
and their results of operations and cash flows for the periods shown,
and such financial statements have been prepared in conformity with
the generally accepted accounting principles in the United States
applied on a consistent basis; the schedules included in each
Registration Statement present fairly the information required to be
stated therein; and the assumptions used in preparing the pro forma
financial information included in each Registration Statement and the
Prospectus provide a reasonable basis for presenting the significant
effects directly attributable to the transactions or events described
therein, the related pro forma adjustments give appropriate effect to
those assumptions, and the pro forma columns therein reflect the
proper application of those adjustments to the corresponding
historical financial statement amounts.
(s) Except as disclosed in the Prospectuses, since the date of
the latest audited financial statements included in the Prospectuses
there has been no material adverse change, nor any development or
event involving a prospective material adverse change, in the
condition (financial or other), business, properties or results of
operations of the Company and its subsidiaries taken as a whole, and,
except as disclosed in or contemplated by the Prospectuses, there has
been no dividend or distribution of any kind declared, paid or made by
the Company on any class of its capital stock.
(t) The Company is not and, after giving effect to the
offering and sale of the Offered Securities and the application of the
proceeds thereof as described in the Prospectuses, will not be an
"investment company" as defined in the Investment Company Act of 1940.
(u) Neither the Company nor any of its affiliates does
business with the government of Cuba or with any person or affiliate
located in Cuba within the meaning of Section 517.075, Florida
Statutes and the Company agrees to comply with such Section if prior
to the completion of the distribution of the Offered Securities it
commences doing such business.
3. Purchase, Sale and Delivery of Offered Securities. On the basis
of the representations, warranties and agreements herein contained, but subject
to the terms and conditions herein set forth, the Company agrees to sell to the
Underwriters, and the Underwriters agree, severally and not jointly, to
purchase from the Company, at a purchase price of U.S. $ per share, the
respective numbers of shares of U.S. Firm Securities set forth opposite the
names of the Underwriters in Schedule A hereto.
The Company will deliver the U.S. Firm Securities to the
Representatives for the accounts of the Underwriters, against payment of the
purchase price by same day wire or intrabank transfer of immediately available
funds at a bank acceptable to CSFBC, at the office of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, at 10:00 A.M., New York
time, on
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__________________, or at such other time not later than five full business
days thereafter as CSFBC and the Company determine, such time being herein
referred to as the "First Closing Date". For purposes of Rule 15c6-1 under the
Securities Exchange Act of 1934, the First Closing Date (if later than the
otherwise applicable settlement date) shall be the settlement date for payment
of funds and delivery of securities for all the Offered Securities sold
pursuant to the Offerings. The certificates for the U.S. Firm Securities so to
be delivered will be in definitive form, in such denominations and registered
in such names as CSFBC requests and will be made available for checking and
packaging at the above office of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, at least 24 hours prior to the First Closing
Date.
In addition, upon written notice from CSFBC given to the Company from
time to time not more than 30 days subsequent to the date of the Prospectuses,
the Underwriters may purchase all or less than all of the U.S. Optional
Securities at the purchase price per Security to be paid for the U.S. Firm
Securities. Any such notice of election to purchase U.S. Optional Securities
shall be given by CSFBC on behalf of the Underwriters and such shall specify
(i) the aggregate number of U.S. Optional Securities to be purchased pursuant
to such exercise, and (ii) the date for payment and delivery thereof, which
shall be a business day no earlier than the First Closing Date. The U.S.
Optional Securities to be purchased by the Underwriters on any Optional Closing
Date shall be in the same proportion to all the Optional Securities to be
purchased by the Underwriters and the Managers on such Optional Closing Date as
the U.S. Firm Securities bear to all the Firm Securities. The Company agrees to
sell to the Underwriters such U.S. Optional Securities and the Underwriters
agree, severally and not jointly, to purchase such U.S. Optional Securities.
Such U.S. Optional Securities shall be purchased for the account of each
Underwriter in the same proportion as the number of shares of U.S. Firm
Securities set forth opposite such Underwriter's name bears to the total number
of shares of U.S. Firm Securities (subject to adjustment by CSFBC to eliminate
fractions) and may be purchased by the Underwriters only for the purpose of
covering over- allotments made in connection with the sale of the U.S. Firm
Securities. No Optional Securities shall be sold or delivered unless the U.S.
Firm Securities and the International Firm Securities previously have been, or
simultaneously are, sold and delivered. The right to purchase the Optional
Securities or any portion thereof may be exercised from time to time and to the
extent not previously exercised may be surrendered and terminated at any time
upon notice by CSFBC on behalf of Underwriters and the Managers to the Company.
It is understood that CSFBC is authorized to make payment for and accept
delivery of such Optional Securities on behalf of the Underwriters and Managers
pursuant to the terms of CSFBC's instructions to the Company.
Each time for the delivery of and payment for the U.S. Optional
Securities being herein referred to as an "Optional Closing Date", which may be
the First Closing Date (the First Closing Date and each Optional Closing Date,
if any, being sometimes referred to as a "Closing Date"), shall be determined
by CSFBC but shall be not later than three full business days after written
notice of election to purchase Optional Securities is given. The Company will
deliver the U.S. Optional Securities being purchased on each Optional Closing
Date to the Representatives for the accounts of the several Underwriters,
against payment of the purchase price therefor by same day wire or intrabank
transfer of immediately available funds at a bank acceptable to CSFBC, at the
above office of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇. The certificates for the U.S. Optional
Securities will be in definitive form, in such denominations and registered in
such names as CSFBC requests upon reasonable notice prior to such Optional
Closing Date and will be made available for checking and packaging at the above
office of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, at a reasonable time in advance of such Optional
Closing Date.
4. Offering by Underwriters. It is understood that the several
Underwriters propose to offer the U.S. Securities for sale to the public as set
forth in the U.S. Prospectus.
5. Certain Agreements of the Company. The Company agrees with the
several Underwriters that:
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(a) If the Effective Time of the Initial Registration
Statement is prior to the execution and delivery of this Agreement,
the Company will file each of the Prospectuses with the Commission
pursuant to and in accordance with subparagraph (1) (or, if applicable
and if consented to by CSFBC, subparagraph (4)) of Rule 424(b) not
later than the earlier of (A) the second business day following the
execution and delivery of this Agreement or (B) the fifteenth business
day after the Effective Date of the Initial Registration Statement.
The Company will advise CSFBC promptly of any such filing pursuant to
Rule 424(b). If the Effective Time of the Initial Registration
Statement is prior to the execution and delivery of this Agreement and
an additional registration statement is necessary to register a
portion of the Offered Securities under the Act but the Effective Time
thereof has not occurred as of such execution and delivery, the
Company will file the additional registration statement or, if filed,
will file a post-effective amendment thereto with the Commission
pursuant to and in accordance with Rule 462(b) on or prior to 10:00
P.M., New York time, on the date of this Agreement or, if earlier, on
or prior to the time either Prospectus is printed and distributed to
any Underwriter or Manager, or will make such filing at such later
date as shall have been consented to by CSFBC.
(b) The Company will advise CSFBC promptly of any proposal to
amend or supplement the initial or any additional registration
statement as filed or either of the related prospectuses or the
Initial Registration Statement, the Additional Registration Statement
(if any) or either of the Prospectuses, and will not effect such
amendment or supplementation without CSFBC's prior consent (which
consent shall not be withheld unreasonably); and the Company will also
advise CSFBC promptly of the effectiveness of each Registration
Statement (if its Effective Time is subsequent to the execution and
delivery of this Agreement) and of any amendment or supplementation of
a Registration Statement or either of the Prospectuses and of the
institution by the Commission of any stop order proceedings in respect
of a Registration Statement and will use its best efforts to prevent
the issuance of any such stop order and to obtain as soon as possible
its lifting, if issued.
(c) If, at any time when a prospectus relating to the Offered
Securities is required to be delivered under the Act in connection
with sales by any Underwriter, Manager or dealer, any event occurs as
a result of which either or both of the Prospectuses as then amended
or supplemented would include an untrue statement of a material fact
or omit to state any material fact necessary to make the statements
therein, in the light of the circumstances under which they were made,
not misleading, or if it is necessary at any time to amend either or
both of the Prospectuses to comply with the Act, the Company will
promptly notify CSFBC of such event and will promptly prepare and file
with the Commission, at its own expense, an amendment or supplement
which will correct such statement or omission or an amendment which
will effect such compliance. Neither CSFBC's consent to, nor the
Underwriters' delivery of, any such amendment or supplement shall
constitute a waiver of any of the conditions set forth in Section 6.
(d) As soon as practicable, but not later than the
Availability Date (as defined below), the Company will make generally
available to its securityholders an earnings statement covering a
period of at least 12 months beginning after the Effective Date of the
Initial Registration Statement (or, if later, the Effective Date of
the Additional Registration Statement) which will satisfy the
provisions of Section 11(a) of the Act. For the purpose of the
preceding sentence, "Availability Date" means the 45th day after the
end of the fourth fiscal quarter following the fiscal quarter that
includes such Effective Date, except that, if such fourth fiscal
quarter is the last quarter of the Company's fiscal year,
"Availability Date" means the 90th day after the end of such fourth
fiscal quarter.
(e) The Company will furnish to the Representatives such
number of copies of the Registration Statement and each amendment
thereto as CSFBC reasonably requests (at least four of which will be
signed and will include all exhibits), each preliminary prospectus
relating to
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the U.S. Securities, and, so long as a prospectus relating to the
Offered Securities is required to be delivered under the Act in
connection with sales by any Underwriter or dealer, the U.S.
Prospectus and all amendments and supplements to such documents, in
each case in such quantities as CSFBC reasonably requests. The U.S.
Prospectus shall be so furnished on or prior to 3:00 P.M., New York
time, on the business day following the later of the execution and
delivery of this Agreement or the Effective Time of the Initial
Registration Statement. All other such documents shall be so furnished
as soon as available. Without limiting the generality of clause (h)
below, the Company expressly agrees to pay the expenses of printing
and distributing to the Underwriters all such documents.
(f) The Company will arrange for the qualification of the
Offered Securities for sale under the laws of such jurisdictions in
the United States as CSFBC designates and will continue such
qualifications in effect so long as required for the distribution,
except that in connection with such qualifications the foregoing shall
not obligate the Company to qualify as a foreign corporation or to
execute a general consent for service of process in any such
jurisdiction.
(g) During the period of 6 years hereafter, (i) the Company
will furnish to the Representatives and, upon request, to each of the
other Underwriters, as soon as practicable after the end of each
fiscal year, a copy of its annual report to stockholders for such
year, and (ii) the Company will furnish to the Representatives, as
soon as available, a copy of each report and any definitive proxy
statement of the Company filed with the Commission under the
Securities Exchange Act of 1934 or mailed to stockholders. As soon as
practicable following the request therefor, the Company will furnish
the Representatives with such other information concerning the Company
as CSFBC may reasonably request from time to time at any time during
the period of 3 years hereafter.
(h) The Company will pay all expenses incident to the
performance of its obligations under this Agreement and will reimburse
the Underwriters (if and to the extent incurred by them) for: (i) any
filing fees and other expenses (including fees and disbursements of
counsel) incurred by them in connection with (A) qualification of the
Offered Securities for sale under the state or local securities laws
(so-called "blue sky" laws) of such states, districts, commonwealths
or territories of the United States as CSFBC designates, (B)
qualification of the Offered Securities for sale under the laws of
such jurisdictions in Canada, Japan and countries in the European
Economic Community as CSFBC designates, (C) the preparation and
printing of memoranda relating to the foregoing qualifications, and
(D) the filings with and any required review by the National
Association of Securities Dealers, Inc. relating to the Offered
Securities or the Offerings; (ii) any travel expenses of the Company's
officers and employees and any other expenses of the Company in
connection with attending or hosting meetings with prospective
purchasers of the Offered Securities; and (iii) expenses incurred in
distributing preliminary prospectuses and the Prospectuses (including
any amendments and supplements thereto) to the Underwriters. It is
understood that, except as provided in this Section 5 or in Sections 7
or 9 of this Agreement, (x) the Underwriters shall pay all of their
own costs and expenses, including fees and disbursements of their
legal counsel, stock transfer taxes on resale of any of the Securities
owned by them, and any advertising expenses in connection with any
offers they make, and (y) each of the Company and the Underwriters
will bear their own costs in connection with any selling efforts made
in connection with the Offerings.
(i) For a period of 180 days after the date hereof, the
Company will not offer, sell, contract to sell, pledge or otherwise
dispose of, directly or indirectly, or file with the Commission a
registration statement under the Act relating to, any additional
shares of its Securities or securities convertible into or
exchangeable or exercisable for any shares of its Securities or
publicly disclose the intention to make any such offer, sale, pledge,
disposal or filing, without the prior written consent of CSFBC, except
(x) grants of employee stock options pursuant to the terms of a plan
in effect on the date hereof, issuances of Securities pursuant to
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the exercise of such options or the exercise of any other employee
stock options outstanding on the date hereof, and (y) the filing of a
registration statement under the Act with respect to any of the
issuances or grants permitted by the foregoing clause (x).
6. Conditions of the Obligations of the Underwriters. The
obligations of the several Underwriters to purchase and pay for the U.S. Firm
Securities on the First Closing Date and the U.S. Optional Securities to be
purchased on each Optional Closing Date will be subject to the accuracy of the
representations and warranties on the part of the Company herein, to the
accuracy of the statements of Company officers made pursuant to the provisions
hereof, to the performance by the Company of its obligations hereunder and to
the following additional conditions precedent:
(a) The Representatives shall have received a comfort letter,
dated the date of delivery thereof (which, if the Effective Time of
the Initial Registration Statement is prior to the execution and
delivery of this Agreement, shall be on or prior to the date of this
Agreement or, if the Effective Time of the Initial Registration
Statement is subsequent to the execution and delivery of this
Agreement, shall be prior to the filing of the amendment or
post-effective amendment to the registration statement to be filed
shortly prior to such Effective Time), of Deloitte & Touche LLP
confirming that they are independent public accountants within the
meaning of the Act and the applicable published Rules and Regulations
thereunder and stating to the effect that:
(i) in their opinion the consolidated financial
statements (including the summary of earnings) and financial
statement schedules audited by them and included in the
Registration Statements comply as to form in all material
respects with the applicable accounting requirements of the
Act and the related published Rules and Regulations;
(ii) they have performed the procedures specified by
the American Institute of Certified Public Accountants for a
review of interim financial information as described in
Statement of Auditing Standards No. 71, Interim Financial
Information, on the unaudited financial statements included in
the Registration Statements;
(iii) on the basis of the review referred to in
clause (ii) above, a reading of the latest available interim
financial statements of the Company, inquiries of officials of
the Company who have responsibility for financial and
accounting matters and other specified procedures, nothing
came to their attention that caused them to believe that:
(A) the unaudited consolidated financial
statements included in the Registration Statements do
not comply as to form in all material respects with
the applicable accounting requirements of the Act and
the related published Rules and Regulations or any
material modifications should be made to such
unaudited consolidated financial statements for them
to be in conformity with generally accepted
accounting principles;
(B) at the date of the latest available
balance sheet read by such accountants, or at a
subsequent specified date not more than three
business days prior to the date of this Agreement,
there was any change in the capital stock or any
increase in short-term indebtedness or long-term debt
of the Company and its consolidated subsidiaries or,
at the date of the latest available balance sheet
read by such accountants, there was any decrease in
consolidated net current assets or stockholders'
equity, as compared with amounts shown on the latest
balance sheet included in the Prospectuses; or
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(C) for the period from the closing date of
the latest income statement included in the
Prospectuses to the closing date of the latest
available income statement read by such accountants
there were any decreases, as compared with the
corresponding period of the previous year and with
the period of corresponding length ended the date of
the latest income statement included in the
Prospectuses, in consolidated net sales, net
operating income or in the total or per share amounts
of consolidated, net income;
except in all cases set forth in clauses (B) and (C) above for
changes, increases or decreases which the Prospectuses
disclose have occurred or may occur or which are described in
such letter;
(iv) they have compared specified dollar amounts (or
percentages derived from such dollar amounts) and other
financial information contained in the Registration Statements
(in each case to the extent that such dollar amounts,
percentages and other financial information are derived from
the general accounting records of the Company and its
subsidiaries subject to the internal controls of the Company's
accounting system or are derived directly from such records by
analysis or computation) with the results obtained from
inquiries, a reading of such general accounting records and
other procedures specified in such letter and have found such
dollar amounts, percentages and other financial information to
be in agreement with such results, except as otherwise
specified in such letter; and
(v) without limiting the generality of subclause
(iv) above, with respect to the unaudited pro forma financial
information included in the Registration Statements (the "pro
forma financial information"), they have carried out certain
specified procedures, made inquiries of certain officials of
the Company who have responsibility for financial and
accounting matters and proved the arithmetic accuracy of the
application of the pro forma adjustments to the historical
amounts in the pro forma financial information, nothing came
to their attention which caused them to believe that the pro
forma adjustments have not been properly applied to the
historical amounts in the compilation of such information.
For purposes of this subsection, (i) if the Effective Time of the
Initial Registration Statement is subsequent to the execution and
delivery of this Agreement, "Registration Statements" shall mean the
initial registration statement as proposed to be amended by the
amendment or post-effective amendment to be filed shortly prior to its
Effective Time, (ii) if the Effective Time of the Initial Registration
Statement is prior to the execution and delivery of this Agreement but
the Effective Time of the Additional Registration Statement is
subsequent to such execution and delivery, "Registration Statements"
shall mean the Initial Registration Statement and the additional
registration statement as proposed to be filed or as proposed to be
amended by the post-effective amendment to be filed shortly prior to
its Effective Time, and (iii) "Prospectuses" shall mean the
prospectuses included in the Registration Statements.
(b) If the Effective Time of the Initial Registration
Statement is not prior to the execution and delivery of this
Agreement, such Effective Time shall have occurred not later than
10:00 P.M., New York time, on the date of this Agreement or such later
date as shall have been consented to by CSFBC. If the Effective Time
of the Additional Registration Statement (if any) is not prior to the
execution and delivery of this Agreement, such Effective Time shall
have occurred not later than 10:00 P.M., New York time, on the date of
this Agreement or, if earlier, the time either Prospectus is printed
and distributed to any Underwriter or Manager, or shall have occurred
at such later date as shall have been consented to by CSFBC. If the
Effective Time of the Initial Registration Statement is prior to the
execution and delivery of this Agreement, each of the Prospectuses
shall have been filed with the Commission in accordance
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with the Rules and Regulations and Section 5(a) of this Agreement.
Prior to such Closing Date, no stop order suspending the effectiveness
of a Registration Statement shall have been issued and no proceedings
for that purpose shall have been instituted or, to the knowledge of
the Company or the Representatives, shall be contemplated by the
Commission.
(c) Subsequent to the execution and delivery of this
Agreement, there shall not have occurred (i) any change, or any
development or event involving a prospective change, in the condition
(financial or other), business, properties or results of operations of
the Company or its subsidiaries which, in the judgment of a majority
in interest of the Underwriters including the Representatives, is
material and adverse and makes it impractical or inadvisable to
proceed with completion of the public offering or the sale of and
payment for the U.S. Securities; (ii) any downgrading in the rating of
any debt securities of the Company by any "nationally recognized
statistical rating organization" (as defined for purposes of Rule
436(g) under the Act), or any public announcement that any such
organization has under surveillance or review its rating of any debt
securities of the Company (other than an announcement with positive
implications of a possible upgrading, and no implication of a possible
downgrading, of such rating); (iii) any suspension or limitation of
trading in securities generally on the New York Stock Exchange, or any
setting of minimum prices for trading on such exchange, or any
suspension of trading of any securities of the Company on any exchange
or in the over-the-counter market; (iv) any banking moratorium
declared by U.S. Federal or New York authorities; or (v) any outbreak
or escalation of major hostilities in which the United States is
involved, any declaration of war by Congress or any other substantial
national or international calamity or emergency if, in the judgment of
a majority in interest of the Underwriters including the
Representatives, the effect of any such outbreak, escalation,
declaration, calamity or emergency makes it impractical or inadvisable
to proceed with completion of the public offering or the sale of and
payment for the U.S. Securities.
(d) The Representatives shall have received the following
legal opinions, each dated such Closing Date:
(i) the opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel for the
Company, subject to qualifications and exceptions customary to
such opinions, to the effect that:
(A) The Company has been duly incorporated
and is an existing corporation in good standing under
the laws of Delaware, with corporate power and
authority to own its properties and conduct its
business as described in the Prospectuses; and the
Company is duly qualified to do business as a foreign
corporation in good standing in all other
jurisdictions in which its ownership or lease
property or the conduct of its business requires such
qualification (except for such failures to be so
qualified or in good standing which, either
individually or in the aggregate, could not
reasonably be expected to result in a Material
Adverse Effect) (it being understood that (1) to the
extent the foregoing opinion involves matters of Utah
or Nevada law, it may be given by Van Cott, ▇▇▇▇▇▇,
Cornwall & ▇▇▇▇▇▇▇▇ as part of its opinion set forth
in Section 7(d)(ii) below, and (2) to the extent the
foregoing opinion involves matters of good standing
as a foreign corporation in any jurisdiction other
than New York, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ may rely solely upon
a contemporaneously-dated certificate of good
standing or qualification issued by the appropriate
office in such jurisdiction if such certificate is
included as an exhibit to the opinion of ▇▇▇▇▇▇ &
▇▇▇▇▇▇▇);
(B) The Offered Securities delivered on such
Closing Date and all other shares of the Common Stock
of the Company described as outstanding in the
Prospectuses under the caption "Capitalization,"
including without
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limitation the shares issued in the exchange of the
outstanding common stock of Weider Nutrition Group,
Inc. for Common Stock (the "Exchange") and the
14,371.2-to-1 stock split of the Common Stock (the
"Stock Split"), have been duly authorized and validly
issued, are fully paid and nonassessable and conform
in all material respects to the description thereof
contained in the Prospectuses; and the stockholders
of the Company have no preemptive rights with respect
to the Offered Securities under the Company's
articles of incorporation or bylaws, the General
Corporation Law of the State of Delaware or, to the
best of our knowledge, otherwise;
(C) No consent, approval, authorization or
order of, or filing with, any governmental agency or
body or any court is required to be obtained or made
by the Company for the consummation of the
transactions contemplated by this Agreement or the
Subscription Agreement in connection with the
issuance or sale of the Offered Securities by the
Company except such as have been obtained and made
under the Act and such as may be required under state
securities laws;
(D) The execution, delivery and performance
of this Agreement and the Subscription Agreement and
the issuance and sale of the Offered Securities will
not (1) result in a violation of any of the terms and
provisions of any United States federal, California,
Delaware or New York statute, rule, regulation or
order of any United States federal, California,
Delaware or New York governmental agency or body or
court having jurisdiction over the Company or any
subsidiary of the Company or any of their properties
and known to such counsel (except for such
violations, breaches or inconsistencies which, either
individually or in the aggregate, could not
reasonably be expected to result in a Material
Adverse Effect), or (2) result in a breach or
violation of any of the terms and provisions of, or
constitute a default under (with the passage of time
or otherwise), any agreement or instrument included
as an exhibit to the Registration Statement (except
for such violations, breaches or defaults which,
either individually or in the aggregate, could not
reasonably be expected to result in a Material
Adverse Effect), or (3) result in a violation of any
of the terms and provisions of, the charter or
by-laws of the Company; and the Company has full
power and authority to authorize, issue and sell the
Offered Securities as contemplated by this Agreement
and the Subscription Agreement, respectively;
(E) The Initial Registration Statement was
declared effective under the Act as of the date and
time specified in such opinion, the Additional
Registration Statement (if any) was filed and became
effective under the Act as of the date and time (if
determinable) specified in such opinion, each of the
Prospectuses either were filed with the Commission
pursuant to the subparagraph of Rule 424(b) specified
in such opinion on the date specified therein or were
included in the Initial Registration Statement or the
Additional Registration Statement (as the case may
be), and, to the best of the knowledge of such
counsel, no stop order suspending the effectiveness
of a Registration Statement or any part thereof has
been issued and no proceedings for that purpose have
been instituted or are pending or contemplated under
the Act;
(F) The Registration Statement and each of
the Prospectuses, and each amendment or supplement
thereto, as of their respective effective or issue
dates, complied as to form in all material respects
with the requirements of the Act and the Rules and
Regulations (assuming for the purposes of the opinion
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described in this subclause (F) that the information
contained in the Registration Statement and each of
the Prospectuses is accurate and complete);
(G) Such counsel have participated in
conferences with officers and other representatives
of the Company, representatives of the independent
public accountants for the Company, and
representatives of the Underwriters, at which the
contents of the Registration Statement and the
Prospectuses and related matters were discussed and
(although, except as provided below in subclause (I)
of this Section 7(d)(i), such counsel are not passing
upon, and do not assume any responsibility for, the
accuracy, completeness or fairness of the statements
contained in the Registration Statement and the
Prospectuses and have not made any independent check
or verification thereof), during the course of such
participation (relying as to materiality to the
extent such counsel deems appropriate upon the
statements of officers and other representatives of
the Company), no facts came to such counsel's
attention that caused them to believe that the
Registration Statement, at the time it became
effective, contained an untrue statement of a
material fact or omitted to state a material fact
required to be stated therein or necessary to make
the statements therein not misleading, or that either
of the Prospectuses, as of their respective dates,
contained an untrue statement of a material fact or
omitted to state a material fact necessary to make
the statements therein, in the light of the
circumstances under which they were made, not
misleading; it being understood that such counsel
will express no belief with respect to the financial
statements, financial schedules and other financial
and statistical data included in the Registration
Statement or the Prospectuses; and
(H) This Agreement and the Subscription
Agreement have been duly authorized, executed and
delivered by the Company;
(I) The following statements set forth in
the Prospectuses
(1) the statements under the caption
"Description of Capital Stock," insofar as
they purport to constitute a summary of the
terms of the Offered Securities and the other
Company equity securities referred to
therein,
(2) the statements under the captions
"Risk Factors -- Control by Principal
Stockholder," "-- Anti-Takeover
Considerations" and "-- Shares Eligible for
Future Sale," "Description of Capital Stock
-- Limitation of Liability and
Indemnification Matters," "-- Section 203 of
the Delaware General Corporation Law," and
"-- Section 228 of the Delaware General
Corporation Law" and "Shares Eligible for
Future Sale," insofar as they purport to
describe the provisions of the laws,
agreements and other documents referred to
therein,
(3) the statements under the captions
"Capitalization" and "Description of Capital
Stock," insofar as they purport to describe
the authorized equity capitalization of the
Company, and
(4) the statements under the captions
"Management -- Equity Plan," "-- Employee
Profit Sharing Bonus Plan," "-- Employee
Benefit Plans," "-- Employment Agreements"
and "-- Retirement Benefits," "Certain
Relationships and Related Party Transactions
-- Tax Sharing and Indemnification
Agreement," insofar as they purport
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to describe the provisions of the laws,
agreements and other documents referred to
therein,
are accurate and complete in all respects; and such
counsel does not know of any contracts or documents
of a character required to be described in the
Registration Statement or the Prospectuses or to be
filed as exhibits to the Registration Statement which
are not described and filed as required;
(ii) the opinion of Van Cott, ▇▇▇▇▇▇, Cornwall &
▇▇▇▇▇▇▇▇ ("VBC&M"), Utah counsel for the Company, subject to
qualifications and exceptions customary to such opinions, to
the effect that:
(A) Each subsidiary of the Company
incorporated or organized under the laws of Utah or
Nevada (collectively, the "Utah and Nevada
Subsidiaries") has been duly incorporated or
organized and is an existing corporation or other
entity in good standing under the laws of its state
of incorporation or organization, with corporate or
organizational power and authority to own its
properties and conduct its business as described in
the Prospectuses; and each Utah and Nevada Subsidiary
is duly qualified to do business as a foreign
corporation or entity in good standing in all other
jurisdictions in which its ownership or lease
property or the conduct of its business requires such
qualification (except for such failures to be so
qualified or in good standing which, either
individually or in the aggregate, could not
reasonably be expected to result in a Material
Adverse Effect) (it being understood that (1) to the
extent the foregoing opinion involves matters of good
standing as a foreign corporation in any
jurisdiction, VBC&M may rely solely upon a
contemporaneously-dated certificate of good standing
or qualification issued by the appropriate office in
such jurisdiction if such certificate is included as
an exhibit to the opinion of VBC&M);
(B) The execution, delivery and performance
of this Agreement and the Subscription Agreement and
the issuance and sale of the Offered Securities will
not (1) result in a violation of any of the terms and
provisions of any Utah or Nevada statute, rule,
regulation or order of any Utah or Nevada
governmental agency or body or court having
jurisdiction over the Company or any subsidiary of
the Company or any of their properties and known to
such counsel (except for such violations, breaches or
inconsistencies which, either individually or in the
aggregate, could not reasonably be expected to result
in a Material Adverse Effect), or (2) result in a
breach or violation of any of the terms and
provisions of, or constitute a default under (with
the passage of time or otherwise), any agreement or
instrument to which the Company or any such
subsidiary is a party or by which the Company or any
such subsidiary is bound or to which any of the
properties of the Company or any such subsidiary is
subject (except for such violations, breaches or
defaults which, either individually or in the
aggregate, could not reasonably be expected to result
in a Material Adverse Effect), or (3) result in a
violation of any of the terms and provisions of, the
charter or by-laws of any of the Utah and Nevada
Subsidiaries; and
(C) To such counsel's knowledge, except as
disclosed in the Prospectuses, there are no pending
actions, suits or proceedings against or affecting
the Company, any of its subsidiaries or any of their
respective properties that, if determined adversely
to the Company or any of its subsidiaries, either
individually or in the aggregate, (1) could
reasonably be
-15-
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expected to result in a Material Adverse Effect, or
(2) would materially and adversely affect the ability
of the Company to perform its obligations under this
Agreement or the Subscription Agreement, or (3) which
are otherwise material in the context of the sale of
the Offered Securities; and, to such counsel's
knowledge, no such actions, suits or proceedings are
threatened or contemplated; and
(iii) the opinion of ▇▇▇▇▇▇▇ Cartoon, general counsel
for the Company and Weider Health & Fitness, Inc. ("WHF"),
subject to qualifications and exceptions customary to such
opinions, to the effect that:
(A) Each of the Company's subsidiaries
excluding the Utah and Nevada Subsidiaries
(collectively, the "Foreign Subsidiaries") has been
duly organized and is an existing as an corporation
or other entity in good standing under the laws of
its jurisdiction of organization, with corporate or
organizational power and authority to own its
properties and conduct its business as described in
the Prospectuses; and each of the Foreign
Subsidiaries is duly qualified to do business as a
foreign corporation or entity in good standing in all
other jurisdictions in which its ownership or lease
property or the conduct of its business requires such
qualification (except for such failures to be so
qualified or in good standing which, either
individually or in the aggregate, could not
reasonably be expected to result in a Material
Adverse Effect) (it being understood that the
foregoing opinion may be given in reliance upon the
contemporaneous opinion of local counsel in the
relevant jurisdiction or a contemporaneously-dated
certificate or comparable evidence of good standing
or qualification issued by the appropriate offices in
such jurisdiction, if such local counsel opinion,
certificate or comparable evidence is included as an
exhibit to the opinion of ▇▇▇▇▇▇▇ Cartoon);
(B) There are no contracts, agreements or
understandings known to such counsel between the
Company and any person granting such person the right
to require the Company to file a registration
statement under the Act with respect to any
securities of the Company owned or to be owned by
such person or to require the Company to include such
securities in the securities registered pursuant to
the Registration Statement or in any securities being
registered pursuant to any other registration
statement filed by the Company under the Act;
(C) The execution, delivery and performance
of this Agreement and the Subscription Agreement and
the issuance and sale of the Offered Securities will
not (1) result in a violation of any of the terms and
provisions of any statute, any rule, regulation or
order of any governmental agency or body or any
court, domestic or foreign, having jurisdiction over
the Company or any subsidiary of the Company or any
of their properties and known to such counsel (except
for such violations, breaches or inconsistencies
which, either individually or in the aggregate, could
not reasonably be expected to result in a Material
Adverse Effect), or (2) result in a breach or
violation of any of the terms and provisions of, or
constitute a default under (with the passage of time
or otherwise), any agreement or instrument to which
the Company or any such subsidiary is a party or by
which the Company or any such subsidiary is bound or
to which any of the properties of the Company or any
such subsidiary is subject (except for such
violations, breaches or defaults which, either
individually or in the aggregate, could not
reasonably be expected to result in a Material
Adverse Effect), or (3) result in a violation of any
of the terms and
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provisions of, the charter or by-laws of the Company
or any such subsidiary; and the Company has full power
and authority to authorize, issue and sell the Offered
Securities as contemplated by this Agreement and the
Subscription Agreement, respectively;
(C) Such counsel serves as the general
counsel of the Company and WHF, has participated in
conferences with officers and other representatives
of the Company, representatives of the independent
public accountants for the Company, and
representatives of the Underwriters, at which the
contents of the Registration Statement and the
Prospectuses and related matters were discussed and,
during the course of such participation and service
as the general counsel of the Company and WHF
(relying as to materiality upon his own knowledge of
the Company and WHF as well as the statements of
officers and other representatives of the Company and
WHF), no facts came to such counsel's attention that
caused him to believe that the Registration
Statement, at the time it became effective, contained
an untrue statement of a material fact or omitted to
state a material fact required to be stated therein
or necessary to make the statements therein not
misleading, or that either of the Prospectuses, as of
their respective dates, contained an untrue statement
of a material fact or omitted to state a material
fact necessary to make the statements therein, in the
light of the circumstances under which they were
made, not misleading; it being understood that such
counsel will express no belief with respect to the
financial statements, financial schedules and other
financial and statistical data included in the
Registration Statement or the Prospectuses;
(D) To such counsel's knowledge, except as
disclosed in the Prospectuses, there are no pending
actions, suits or proceedings against or affecting
the Company, any of its subsidiaries or any of their
respective properties that, if determined adversely
to the Company or any of its subsidiaries, either
individually or in the aggregate, (1) could
reasonably be expected to result in a Material
Adverse Effect, or (2) would materially and adversely
affect the ability of the Company to perform its
obligations under this Agreement or the Subscription
Agreement, or (3) which are otherwise material in the
context of the sale of the Offered Securities; and,
to such counsel's knowledge, no such actions, suits
or proceedings are threatened or contemplated; and
(E) The following statements set forth in
the Prospectuses
(1) the statements under the captions
"Risk Factors -- Product Liability," "--
Government Regulation," "-- Recent Government
Action and Adverse Publicity Regarding
Products Containing Ephedrine" and "--
Intellectual Property Protection," and
"Business -- Regulation," "-- Trademarks and
Patents," and "-- Legal Matters," insofar as
they purport to describe the provisions of
the laws, lawsuits, other proceedings,
agreements and other documents referred to
therein,
(2) the statements under the caption
"Management's Discussion and Analysis --
Liquidity and Capital Resources," insofar as
they purport to describe the provisions of
the commitment of General Electric Capital
Corporation ("GECC") with respect to the
Company's New Credit Agreement and the
provisions of the Company's Existing Credit
Agreement with GECC,
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(3) the statements under the captions
"Management -- Management Incentive
Agreements" and "Certain Relationships and
Related Party Transactions -- Management
Incentive Agreements," "-- Parent Note," "--
Advertising Agreement," "-- Certain
International Acquisitions and Royalty
Arrangements," "-- Transfer of Intellectual
Property," "-- Hornchurch Investments
Limited," "-- Kashenberg Severance Agreement"
and "-- Interest Expense Paid to Parent,"
insofar as they purport to describe the
provisions of the laws, agreements and other
documents referred to therein, and
(4) the statements under the captions
"Capitalization," insofar as they purport to
describe the Company's authorized and
outstanding equity capital, and "Principal
Stockholders," insofar as they purport to
describe the shares of Common Stock
beneficially owned by WHF, Hornchurch
Investments, Ltd., Bayonne Settlement and
Habib Settlement,
are accurate and complete in all respects; such
counsel does not know of any contracts or documents
of a character required to be described in the
Registration Statement or the Prospectuses or to be
filed as exhibits to the Registration Statement which
are not described and filed as required; and such
counsel does not know of any legal or governmental
proceedings of a character required to be described
in the Registration Statement or the Prospectuses
which are not described as required.
(e) The Representatives shall have received from Irell &
▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions,
dated such Closing Date, with respect to the incorporation of the
Company, the validity of the Offered Securities delivered on such
Closing Date, the Registration Statements, the Prospectuses and other
related matters as the Representatives may require, and the Company
shall have furnished to such counsel such documents as they request
for the purpose of enabling them to pass upon such matters.
(f) The Representatives shall have received a certificate,
dated such Closing Date, of the President and the principal financial
or accounting officer of the Company in which such officers, to the
best of their knowledge after reasonable investigation, shall state
that: (i) the representations and warranties of the Company in this
Agreement are true and correct; (ii) the Company has complied with all
agreements and satisfied all conditions on its part to be performed or
satisfied hereunder at or prior to such Closing Date; (iii) no stop
order suspending the effectiveness of any Registration Statement has
been issued and no proceedings for that purpose have been instituted
or are contemplated by the Commission; (iv) the Additional
Registration Statement (if any) satisfying the requirements of
subparagraphs (1) and (3) of Rule 462(b) was filed pursuant to Rule
462(b), including payment of the applicable filing fee in accordance
with Rule 111(a) or (b) under the Act, prior to the time either
Prospectus was printed and distributed to any Underwriter or Manager;
and (v) subsequent to the date of the most recent financial statements
in the Prospectuses, there has been no material adverse change, nor
any development or event involving a prospective material adverse
change, in the condition (financial or other), business, properties or
results of operations of the Company and its subsidiaries taken as a
whole except as set forth in or contemplated by the Prospectuses or as
described in such certificate.
(g) The Representatives shall have received a "bring down"
comfort letter, dated such Closing Date, of Deloitte & Touche LLP
which meets the requirements of subsection (a) of this Section, except
that the specified date referred to in such subsection will be a date
not more than three days prior to such Closing Date for the purposes
of this subsection.
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(h) On such Closing Date, the Managers shall have purchased
the International Firm Securities or the International Optional
Securities, as the case may be, pursuant to the Subscription
Agreement.
The Company will furnish the Representatives with such conformed copies of such
opinions, certificates, letters and documents as the Representatives reasonably
request. CSFBC may in its sole discretion waive on behalf of the Underwriters
compliance with any conditions to the obligations of the Underwriters
hereunder, whether in respect of an Optional Closing Date or otherwise.
7. Indemnification and Contribution. (a) The Company will indemnify
and hold harmless each Underwriter against any losses, claims, damages or
liabilities, joint or several, to which such Underwriter may become subject,
under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact contained in
any Registration Statement, either of the Prospectuses, or any amendment or
supplement thereto, or any related preliminary prospectus, or arise out of or
are based upon 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, and will reimburse each Underwriter for any legal or other
expenses reasonably incurred by such Underwriter in connection with
investigating or defending any such loss, claim, damage, liability or action as
such expenses are incurred (notwithstanding the possibility that payments for
such expenses may later be held to be improper); provided, however, that the
Company will not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon an untrue statement
or alleged untrue statement in or omission or alleged omission from any of such
documents in reliance upon and in conformity with written information furnished
to the Company by any Underwriter through the Representatives specifically for
use therein (it being understood and agreed that the only information furnished
by any Underwriter consists of the information described as such in subsection
(b) below); and provided, further, that with respect to any untrue statement or
alleged untrue statement in or omission or alleged omission from any
preliminary prospectus, the indemnity agreement contained in this subsection
(a) shall not inure to the benefit of any Underwriter from whom the person
asserting any such losses, claims, damages or liabilities purchased the Offered
Securities concerned, to the extent that a prospectus relating to such Offered
Securities was required to be delivered by such Underwriter under the Act in
connection with such purchase and any such loss, claim, damage or liability of
such Underwriter results from the fact that there was not sent or given to such
person, at or prior to the written confirmation of the sale of such Offered
Securities to such person, a copy of the U.S. Prospectus, if the Company had
previously furnished copies thereof to such Underwriter.
(b) Each Underwriter will severally and not jointly indemnify and
hold harmless the Company against any losses, claims, damages or liabilities to
which the Company may become subject, under the Act or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon any untrue statement or alleged untrue statement
of any material fact contained in any Registration Statement, either of the
Prospectuses, or any amendment or supplement thereto, or any related
preliminary prospectus, or arise out of or are based upon the omission or the
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, in each case to the
extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and in
conformity with written information furnished to the Company by such
Underwriter through the Representatives specifically for use therein, and will
reimburse any legal or other expenses reasonably incurred by the Company in
connection with investigating or defending any such loss, claim, damage,
liability or action as such expenses are incurred, it being understood and
agreed that the only such information furnished by any Underwriter consists of
the following information in the U.S. Prospectus furnished on behalf of each
Underwriter: the last paragraph at the bottom of the cover page concerning the
terms of the offering by the Underwriters, the legend concerning
over-allotments, stabilizing and certain other transactions on the inside front
cover page, the concession and reallowance figures appearing in the fifth
paragraph under
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the caption "Underwriting," the information on over-allotments, stabilizing and
certain other transactions contained in the tenth paragraph under the caption
"Underwriting" and the information on discretionary sales contained in the last
paragraph under the caption "Underwriting".
(c) Promptly after receipt by an indemnified party under this Section
of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under
subsection (a) or (b) above, notify the indemnifying party of the commencement
thereof; but the omission so to notify the indemnifying party will not relieve
it from any liability which it may have to any indemnified party otherwise than
under subsection (a) or (b) above. In case any such action is brought against
any indemnified party and it notifies the indemnifying party of the
commencement thereof, the indemnifying party will be entitled to participate
therein and, to the extent that it may wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof, with
counsel satisfactory to such indemnified party (who shall not, except with the
consent of the indemnified party, be counsel to the indemnifying party), and
after notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, the indemnifying party will not be
liable to such indemnified party under this Section for any legal or other
expenses subsequently incurred by such indemnified party in connection with the
defense thereof other than reasonable costs of investigation. No indemnifying
party shall, without the prior written consent of the indemnified party, effect
any settlement of any pending or threatened action in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party unless such settlement includes an
unconditional release of such indemnified party from all liability on any
claims that are the subject matter of such action.
(d) If the indemnification provided for in this Section is
unavailable or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above, then each indemnifying party shall contribute to
the amount paid or payable by such indemnified party as a result of the losses,
claims, damages or liabilities referred to in subsection (a) or (b) above (i)
in such proportion as is appropriate to reflect the relative benefits received
by the Company on the one hand and the Underwriters on the other from the
offering of the U.S. Securities or (ii) if the allocation provided by clause
(i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Company on the one hand and the
Underwriters on the other in connection with the statements or omissions which
resulted in such losses, claims, damages or liabilities as well as any other
relevant equitable considerations. The relative benefits received by the
Company on the one hand and the Underwriters on the other shall be deemed to be
in the same proportion as the total net proceeds from the offering of the U.S.
Securities (before deducting expenses) received by the Company bear to the
total underwriting discounts and commissions received by the Underwriters. The
relative fault shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by
the Company or the Underwriters and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such untrue
statement or omission. The amount paid by an indemnified party as a result of
the losses, claims, damages or liabilities referred to in the first sentence of
this subsection (d) shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any action or claim which is the subject of this subsection (d).
Notwithstanding the provisions of this subsection (d), no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the U.S. Securities underwritten by it and distributed to the
public were offered to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters' obligations in this subsection
(d) to contribute are several in proportion to their respective underwriting
obligations and not joint.
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(e) The obligations of the Company under this Section shall be in
addition to any liability which the Company may otherwise have and shall
extend, upon the same terms and conditions, to each person, if any, who
controls any Underwriter within the meaning of the Act; and the obligations of
the Underwriters under this Section shall be in addition to any liability which
the respective Underwriters may otherwise have and shall extend, upon the same
terms and conditions, to each director of the Company, to each officer of the
Company who has signed a Registration Statement and to each person, if any, who
controls the Company within the meaning of the Act.
(f) Any payments pursuant to this Section which are held to be
improper by a court of competent jurisdiction in a final judgment not subject
to further appeal shall be refunded promptly to the person making such payments
by the person receiving such payments.
8. Default of Underwriters. If any Underwriter or Underwriters
default in their obligations to purchase U.S. Securities hereunder on either
the First Closing Date or any Optional Closing Date and the aggregate number of
shares of U.S. Securities that such defaulting Underwriter or Underwriters
agreed but failed to purchase does not exceed 10% of the total number of shares
of U.S. Securities that the Underwriters are obligated to purchase on such
Closing Date, CSFBC may make arrangements satisfactory to the Company for the
purchase of such U.S. Securities by other persons, including any of the
Underwriters, but if no such arrangements are made by such Closing Date the
non- defaulting Underwriters shall be obligated severally, in proportion to
their respective commitments hereunder, to purchase the U.S. Securities that
such defaulting Underwriters agreed but failed to purchase on such Closing
Date. If any Underwriter or Underwriters so default and the aggregate number
of shares of U.S. Securities with respect to which such default or defaults
occur exceeds 10% of the total number of shares of U.S. Securities that the
Underwriters are obligated to purchase on such Closing Date and arrangements
satisfactory to CSFBC and the Company for the purchase of such U.S. Securities
by other persons are not made within 36 hours after such default, this
Agreement will terminate without liability on the part of any non-defaulting
Underwriter or the Company, except as provided in Section 9 (provided that if
such default occurs with respect to U.S. Optional Securities after the First
Closing Date, this Agreement will not terminate as to the U.S. Firm Securities
or any U.S. Optional Securities purchased prior to such termination). As used
in this Agreement, the term "Underwriter" includes any person substituted for
an Underwriter under this Section. Nothing herein will relieve a defaulting
Underwriter from liability for its default.
9. Survival of Certain Representations and Obligations. The
respective indemnities, agreements, representations, warranties and other
statements of the Company or its officers and of the several Underwriters set
forth in or made pursuant to this Agreement will remain in full force and
effect, regardless of any investigation, or statement as to the results
thereof, made by or on behalf of any Underwriter, the Company or any of their
respective representatives, officers or directors or any controlling person,
and will survive delivery of and payment for the U.S. Securities. If this
Agreement is terminated pursuant to Section 8 or if for any reason the purchase
of the U.S. Securities by the Underwriters is not consummated, the Company
shall remain responsible for the expenses to be paid or reimbursed by it
pursuant to Section 5 and the respective obligations of the Company and the
Underwriters pursuant to Section 7 shall remain in effect and if any U.S.
Securities have been purchased hereunder the representations and warranties in
Section 2 and all obligations under Section 5 shall also remain in effect. If
the purchase of the U.S. Securities by the Underwriters is not consummated for
any reason other than solely because of the termination of this Agreement
pursuant to Section 8 or the occurrence of any event specified in clause (iii),
(iv), or (v) of Section 6(c), the Company will reimburse the Underwriters for
all out-of-pocket expenses (including fees and disbursements of counsel)
reasonably incurred by them in connection with the offering of the U.S.
Securities.
10. Notices. All communications hereunder will be in writing and, if
sent to the Underwriters, will be mailed, delivered or telegraphed and
confirmed to the Representatives, c/o Credit Suisse First Boston Corporation,
Park Avenue Plaza, New York, N.Y. 10055, Attention: Investment Banking
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22
Department -- Transactions Advisory Group, or, if sent to the Company, will be
mailed, delivered or telegraphed and confirmed to it at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇,
▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, Attention: President; provided, however, that any
notice to an Underwriter pursuant to Section 7 will be mailed, delivered or
telegraphed and confirmed to such Underwriter.
11. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the
officers and directors and controlling persons referred to in Section 7, and no
other person will have any right or obligation hereunder.
12. Representation of Underwriters. The Representatives will act for
the several Underwriters in connection with the transactions contemplated by
this Agreement, and any action under this Agreement taken by the
Representatives jointly or by CSFBC will be binding upon all the Underwriters.
13. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
14. APPLICABLE LAW. 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 Company hereby submits 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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If the foregoing is in accordance with the Representatives'
understanding of our agreement, kindly sign and return to the Company one of
the counterparts hereof, whereupon it will become a binding agreement between
the Company and the several Underwriters in accordance with its terms.
Very truly yours,
WEIDER NUTRITION INTERNATIONAL, INC.
By ------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
President and
Chief Executive Officer
The foregoing Underwriting Agreement is hereby confirmed and accepted as of the
date first above written.
CREDIT SUISSE FIRST BOSTON CORPORATION
SALOMON BROTHERS INC
▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇, INC.
▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLC
Acting on behalf of themselves and as the Representatives of the
several Underwriters.
By CREDIT SUISSE FIRST BOSTON CORPORATION
By
--------------------------------------------
[Name]
[Title]
For itself and on behalf of Representatives.
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24
SCHEDULE A
UNDERWRITER NUMBER OF
-----------
U.S. FIRM SECURITIES
--------------------
Credit Suisse First Boston Corporation . . . . . . . . . . . . . . . [$]
Salomon Brothers Inc . . . . . . . . . . . . . . . . . . . . . . . . [$]
▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇, Inc. . . . . . . . . . . . . . . . . . . . . [$]
▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLC . . . . . . . . . . . . . . . . . . . . . . . . [$]
-------------
Total . . . . . . . . . . . . . . . . . . . [$]
=============
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