EXHIBIT 1
5,400,000 SHARES
WESTCORP
COMMON STOCK
UNDERWRITING AGREEMENT
November ___, 2003
CREDIT SUISSE FIRST BOSTON LLC
XXXXXXX, XXXXX & CO.
BEAR, XXXXXXX & CO. INC.
JMP SECURITIES LLC
As Representatives of the Several Underwriters
c/o Credit Suisse First Boston LLC
Eleven Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Dear Sirs:
1. Introductory. Westcorp, a California corporation ("COMPANY"),
proposes to issue and sell 5,400,000 shares ("FIRM SECURITIES") of its Common
Stock, par value $1.00 per share ("SECURITIES"), and also proposes to issue and
sell to the Underwriters, at the option of the Underwriters, an aggregate of not
more than 810,000 additional shares ("OPTIONAL SECURITIES") of its Securities as
set forth below. The Firm Securities and the Optional Securities are herein
collectively called the "OFFERED SECURITIES." Of the 5,400,000 shares of Firm
Securities being sold to the Underwriters, affiliates of Xxxxxx Xxxx intend to
purchase 100,000 shares. The Company hereby agrees with the several Underwriters
named in Schedule A hereto ("UNDERWRITERS") as follows:
2. Representations and Warranties of the Company. The Company
represents and warrants to, and agrees with, the several Underwriters that:
(a) A registration statement (No. 333-110244)
relating to the Offered Securities, including a form of
prospectus, 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 ("INITIAL REGISTRATION STATEMENT") has been declared
effective, either (i) an additional registration statement
("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 (ii) such an additional
registration statement is proposed to be filed with the
Commission pursuant to RULE 462(b) and 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
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 material incorporated by
reference therein, 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
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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 herein referred to collectively as the
"REGISTRATION STATEMENTS" and individually as a "REGISTRATION
STATEMENT". The form of prospectus relating to the Offered
Securities, 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 a
Registration Statement, including all material incorporated by
reference in such prospectus, is hereinafter referred to as
the "PROSPECTUS". 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 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 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 the Prospectus pursuant
to Rule 424(b) or (if no such filing is required) at the
Effective Date of the Additional Registration Statement in
which the Prospectus is included, each Registration Statement
and the Prospectus will conform, in all respects to the
requirements of the Act and the Rules and Regulations, and
neither 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 the Prospectus will conform
in all respects to the requirements of the Act and the Rules
and Regulations, neither 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
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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 the Prospectus based upon
written information furnished to the Company by any
Underwriter through the Representatives specifically for use
therein, it being understood and agreed that the only such
information is that described as such in Section 7(b) hereof.
(c) The Company has been duly incorporated and
is an existing corporation in good standing under the laws of
the State of California, with power and authority (corporate
and other) to own its properties and conduct its business as
described in the Prospectus; 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 where the failure to be so qualified
would not have a Material Adverse Effect (as defined below).
(d) Each subsidiary of the Company has been duly
incorporated or chartered and is an existing corporation in
good standing under the laws of the jurisdiction of its
incorporation or charter, with power and authority (corporate
and other) to own its properties and conduct its business as
described in the Prospectus; 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 to the extent
such qualification is preempted by applicable federal law for
operating subsidiaries of federal savings associations, and
for those subsidiaries that are not qualified in a particular
jurisdiction because such qualification is preempted by
applicable federal law for operating subsidiaries of federal
savings associations, such subsidiaries are in compliance with
applicable federal law for operating subsidiaries of federal
savings associations; the entities listed on Schedule B hereto
are the only subsidiaries, direct or indirect, of the Company;
all of the issued and outstanding 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 on
each Closing Date (as defined below), such Offered Securities
will have been, validly issued, fully paid and nonassessable
and will conform to the description thereof contained in the
Prospectus; and
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the shareholders of the Company have no preemptive rights with
respect to the Securities.
(f) Except as disclosed in the Prospectus, 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 for a brokerage
commission, finder's fee or other like payment in connection
with the Offered Securities.
(g) Neither the Company nor any of its
subsidiaries is in violation of its respective charter or
by-laws or in default in the performance of any obligation,
agreement, covenant or condition contained in any indenture,
loan agreement, mortgage, lease or other agreement or
instrument that is material to the Company and its
subsidiaries, taken as a whole, to which the Company or any of
its subsidiaries is a party or by which the Company or any of
its subsidiaries or their respective property is bound.
(h) 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.
(i) The Offered Securities have been approved
for listing on the New York Stock Exchange subject to notice
of issuance.
(j) No consent, approval, authorization, or
order of, or filing with, any governmental agency or body or
any court is required for the consummation of the transactions
contemplated by this 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.
(k) The execution, delivery and performance of
this Agreement and the issuance and sale of the Offered
Securities will not result in a breach or violation of any of
the terms and provisions of, or constitute a default under,
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, or 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, or the charter or by-laws of the Company or
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any such subsidiary, and the Company has full power and
authority to authorize, issue and sell the Offered Securities
as contemplated by this Agreement.
(l) This Agreement has been duly authorized,
executed and delivered by the Company.
(m) Except as disclosed in the Prospectus, 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; and except as disclosed in the Prospectus, 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.
(n) The Company and its subsidiaries possess
adequate certificates, authorities or permits issued by
appropriate governmental agencies or bodies necessary to
conduct the business now operated by them, except to the
extent such requirements are preempted by applicable federal
law for operating subsidiaries of federal savings
associations, and for those subsidiaries that are not required
to possess such certificates, authorities or permits in a
particular jurisdiction because such requirements are
preempted by applicable federal law for operating subsidiaries
of federal savings associations, such subsidiaries are in
compliance with applicable federal law for operating
subsidiaries of federal savings associations; and the Company
and its subsidiaries and have not received any notice of
proceedings relating to the revocation or modification of any
such certificate, authority or permit that, if determined
adversely to the Company or any of its subsidiaries, would
individually or in the aggregate have a material adverse
effect on the condition (financial or other), business,
properties or results of operations of the Company and its
subsidiaries taken as a whole ("MATERIAL ADVERSE EFFECT").
(o) No labor dispute with the employees of the
Company or any subsidiary exists or, to the knowledge of the
Company, is imminent that might have a Material Adverse
Effect.
(p) 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 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
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Company or any of its subsidiaries, would individually or in
the aggregate have a Material Adverse Effect.
(q) Except as would not have a Material Adverse
Effect or otherwise require disclosure in the Registration
Statement, (i) the Company is not in violation of any federal,
state or local laws and regulations relating to pollution or
protection of human health or the environment or the use,
treatment, storage, disposal, transport or handling, emission,
discharge, release or threatened release of toxic or hazardous
substances, materials or wastes, or petroleum and petroleum
products ("MATERIALS OF ENVIRONMENTAL CONCERN") (collectively,
"ENVIRONMENTAL LAWS"), including, without limitation,
noncompliance with or lack of any permits or other
environmental authorizations; (ii) there are no past, present
or reasonably foreseeable circumstances that may lead to any
such violation in the future; (iii) the Company has not
received any communication from any person or entity alleging
any such violation; (iv) there is no pending or threatened
claim, action, investigation or notice by any person or entity
against the Company or against any person or entity for whose
acts or omissions the Company is or may reasonably be expected
to be liable, either contractually or by operation of law,
alleging liability for investigatory, cleanup, or other
response costs, natural resources or property damages,
personal injuries, attorney's fees or penalties relating to
any Materials of Environmental Concern or any violation or
potential violation, of any Environmental Law (collectively,
"ENVIRONMENTAL CLAIMS"), and (v) there are no actions,
activities, circumstances, conditions, events or incidents
that could form the basis of any such Environmental Claim.
(r) Except for matters which would not
reasonably be expected to result in a Material Adverse Effect,
the Company and its subsidiaries are in compliance with all
presently applicable provisions of the Employee Retirement
Income Security Act of 1974, as amended, including the
regulations and published interpretations thereunder
("ERISA"). No "reportable event" (as defined in ERISA) has
occurred with respect to any "PENSION PLAN" (as defined in
ERISA) for which the Company or any of its subsidiaries would
have any liability. Neither the Company nor any of its
subsidiaries has incurred or expects to incur liability under
(i) Title IV of ERISA with respect to termination of, or
withdrawal from, any "pension plan" or (ii) Section 412 (with
respect to missed contributions) or Section 4971 of the
Internal Revenue Code of 1986, as amended, including the
regulations and published interpretations thereunder (the
"CODE"). Except for matters which would not reasonably be
expected to result in a Material Adverse Effect, each "pension
plan" for which the Company or any of its subsidiary would
have any liability that is intended to be qualified under
Section 401(a) of the Code is so qualified and nothing has
occurred, whether by action or by failure to act, which would
cause the loss of such qualification.
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(s) All material Tax returns required to be
filed by the Company and each of its subsidiaries have been
filed and all such returns are true, complete, and correct in
all material respects. All material Taxes that are due or
claimed to be due from the Company and each of its
subsidiaries have been paid other than those (i) currently
payable without penalty or interest or (ii) being contested in
good faith and by appropriate proceedings and for which, in
the case of both clauses (i) and (ii), adequate reserves have
been established on the books and records of the Company and
its subsidiaries in accordance with generally accepted
accounting principles. There are no proposed, material Tax
assessments against the Company or any of its subsidiaries. To
the best knowledge and belief of the Company, the accruals and
reserves on the books and records of the Company and its
subsidiaries in respect of any material Tax liability for any
Taxable period not finally determined are adequate to meet any
assessments of Tax for any such period. For purposes of this
Agreement, the term "TAX" and "TAXES" shall mean all Federal,
state, local and foreign taxes, and other assessments of a
similar nature (whether imposed directly or through
withholding), including any interest, additions to tax, or
penalties applicable thereto.
(t) Except as disclosed in the Prospectus, 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, would individually or in
the aggregate have a Material Adverse Effect, or would
materially and adversely affect the ability of the Company to
perform its obligations under this Agreement, or which are
otherwise material in the context of the sale of the Offered
Securities; and no such actions, suits or proceedings are
threatened or, to the Company's knowledge, contemplated.
(u) The financial statements included or
incorporated by reference in each Registration Statement and
the Prospectus 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, except as otherwise disclosed in the
Prospectus, such financial statements have been prepared in
conformity with the generally accepted accounting principles
in the United States applied on a consistent basis and 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
statements 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.
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(v) The forward looking statements and
projections made by the Company in the Prospectus were
prepared (or reviewed) by an officer of the Company and were
prepared in good faith on the basis of information and
assumptions that the Company believed to be fair, complete,
reasonable and accurate as of the date of such information,
and as of the date of this Agreement.
(w) Except as disclosed in the Prospectus, since
the date of the latest audited financial statements included
in the Prospectus 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 Prospectus, there has been
no dividend or distribution of any kind declared, paid or made
by the Company on any class of its capital stock.
(x) The Company is a savings and loan holding
company registered under the Home Owners Loan Act of 1933, as
amended (the "HOLA").
(y) The Company is subject to the reporting
requirements of either Section 13 or Section 15(d) of the
Securities Exchange Act of 1934 and files reports with the
Commission on the Electronic Data Gathering, Analysis, and
Retrieval (XXXXX) system.
(z) 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
Prospectus, will not be an "investment company" as defined in
the Investment Company Act of 1940.
(aa) Each of the Company and its subsidiaries
maintains insurance of the types and in the amounts generally
deemed adequate for its business, including, but not limited
to, insurance covering real and personal property owned or
leased by the Company and its subsidiaries against theft,
damage, destruction, acts of vandalism and all other risks
customarily insured against, all of which insurance is in full
force and effect.
(bb) Neither the Company nor of its subsidiaries
has at any time during the last five years (i) made any
unlawful contribution to any candidate for foreign office, or
failed to disclose fully any contribution in violation of law,
or (ii) any payment to any federal or state governmental
officer or official, or other person charged with similar
public or quasi-public duties, other than payment required or
permitted by the laws of the United States or of any
jurisdiction thereof.
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(cc) All material transactions between the
Company or any of its subsidiaries, on the one hand, and any
officer or director or any affiliate of any such person or
company, on the other hand, have been accurately disclosed in
the Prospectus; and the terms of each such transaction are
fair to the Company and its subsidiaries and no less favorable
to the Company and its subsidiaries than the terms that could
have been obtained from unrelated parties.
(dd) The execution, delivery and performance of
this Agreement, and the Securities complies, and so long as
any Offered Securities remain outstanding will continue to
comply, with the requirements of Section 13(e) of the Federal
Deposit Insurance Act, as amended (the "FDIA") (or any
successor thereto), if and to the extent that such Section
13(e) is applicable thereto.
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 $[ ] per share, the
respective numbers of shares of Firm Securities set forth opposite the names of
the Underwriters in Schedule A hereto; provided, however, 100,000 of such Firm
Securities (allocated pro rata among the Underwriters according to the
respective numbers of Firm Securities being purchased by such Underwriters on
Schedule A) will be sold by the Company to the Underwriters at a purchase price
per share equal to the price to public on the cover page of the Prospectus.
The Company will deliver the Firm Securities to the Representatives for
the accounts of the Underwriters, against payment of the purchase price in
Federal (same day) funds by official bank check or checks or wire transfer to an
account at a bank acceptable to Credit Suisse First Boston LLC ("CSFB") drawn to
the order of Westcorp at the office of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP,
000 Xxxxx Xxxxx Xxxxxx, Xxx Xxxxxxx, XX 00000, at 10:00 a.m., New York time, on
November __, 2003 or at such other time not later than seven full business days
thereafter as CSFB 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
offering. The certificates for the Firm Securities so to be delivered will be in
definitive form, in such denominations and registered in such names as CSFB
requests and will be made available for checking and packaging at the above
office of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP at least 24 hours prior to
the First Closing Date.
In addition, upon written notice from CSFB given to the Company from
time to time not more than 30 days subsequent to the date of the Prospectus, the
Underwriters may purchase all or less than all of the Optional Securities at the
purchase price per Security to be paid for the Firm Securities. The Company
agrees to sell to the Underwriters the number of shares of Optional Securities
specified in such notice and the
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Underwriters agree, severally and not jointly, to purchase such Optional
Securities. Such Optional Securities shall be purchased for the account of each
Underwriter in the same proportion as the number of shares of Firm Securities
set forth opposite such Underwriter's name bears to the total number of shares
of Firm Securities (subject to adjustment by CSFB to eliminate fractions). No
Optional Securities shall be sold or delivered unless the 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 CSFB to the Company.
Each time for the delivery of and payment for the 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 CSFB
but shall be not later than five full business days after written notice of
election to purchase Optional Securities is given. The Company will deliver the
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 in Federal (same day) funds by official bank check
or checks or wire transfer to an account at a bank acceptable to CSFB drawn to
the order of Westcorp, at the above office of Skadden, Arps, Slate, Xxxxxxx &
Xxxx LLP. The Optional Securities being purchased on each Optional Closing Date
will be in definitive form, in such denominations and registered in such names
as CSFB requests upon reasonable notice prior to such Optional Closing Date and
will be made available for checking and packaging at the above office of
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP 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 Offered Securities for sale to the public as
set forth in the Prospectus.
5. Certain Agreements of the Company. The Company agrees with the
several Underwriters that:
(a) If the Effective Time of the Initial
Registration Statement is prior to the execution and delivery
of this Agreement, the Company will file the Prospectus with
the Commission pursuant to and in accordance with subparagraph
(1) (or, if applicable and if consented to by CSFB,
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 CSFB 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
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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 the Prospectus is printed and distributed to
any Underwriter, or will make such filing at such later date
as shall have been consented to by CSFB.
(b) The Company will advise CSFB promptly of any
proposal to amend or supplement the initial or any additional
registration statement as filed or the related prospectus or
the Initial Registration Statement, the Additional
Registration Statement (if any) or the Prospectus and will not
effect such amendment or supplementation without CSFB's
consent; and the Company will also advise CSFB 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 the Prospectus 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 or dealer,
any event occurs as a result of which the Prospectus 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 the Prospectus to comply with
the Act, the Company will promptly notify CSFB 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 CSFB'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 security holders 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.
12
(e) The Company will furnish to the
Representatives copies of each Registration Statement five of
which will be signed and will include all exhibits), each
related preliminary prospectus, 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 Prospectus and all amendments and supplements to
such documents, in each case in such quantities as CSFB
requests. The 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 documents shall be so furnished as soon as available.
The Company will 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 as CSFB designates and will
continue such qualifications in effect so long as required for
the distribution.
(g) The Company will pay all expenses incident
to the performance of its obligations under this Agreement,
for any filing fees and other expenses (including fees and
disbursements of counsel) incurred in connection with
qualification of the Offered Securities for sale under the
laws of such jurisdictions as CSFB designates and the printing
of memoranda relating thereto, for the filing fee incident to
the review by the National Association of Securities Dealers,
Inc. of the Offered Securities, for 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 for
expenses incurred in distributing preliminary prospectuses and
the Prospectus (including any amendments and supplements
thereto) to the Underwriters.
(h) For a period of 90 days after the date of
the initial public offering of the Offered Securities, 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, disposition or filing, without
the prior written consent of CSFB, except grants of employee
stock options pursuant to the terms of a plan in effect on the
date hereof or issuances of Securities pursuant to the
exercise of options outstanding on the date hereof.
13
(i) The Company will apply the net proceeds of
the sale of the Securities sold by it in accordance with its
statements under the caption "Use of Proceeds" in the
Prospectus.
6. Conditions of the Obligations of the Underwriters. The
obligations of the several Underwriters to purchase and pay for the Firm
Securities on the First Closing Date and the 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
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 Ernst & Young 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 financial
statements and schedules examined 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. 100, 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 financial
statements included in the Registration
Statements do not comply as to form in all
material respects with the
14
applicable accounting requirements of the
Act and the related published Rules and
Regulations or any material modifications
should be made to such unaudited financial
statements for them to be in conformity with
generally accepted accounting principles;
(B) the unaudited consolidated net
sales, net income and net income per share
amounts for the three and nine-month periods
ended September 30, 2003 and September 30,
2002 included in the Prospectus do not agree
with the amounts set forth in the unaudited
consolidated financial statements for those
same periods or were not determined on a
basis substantially consistent with that of
the corresponding amounts in the audited
statements of income;
(C) 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 assets, as compared with
amounts shown on the latest balance sheet
included in the Prospectus; or
(D) for the period from the closing
date of the latest income statement included
in the Prospectus 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 in consolidated net sales,
income or in the total or per share amounts
of consolidated net income.
except in all cases set forth in clauses (C) and (D) above for
changes, increases or decreases which the Prospectus discloses
have occurred or may occur or which are described in such
letter; and
(iv) they have compared specified dollar
amounts (or percentages derived from such dollar
amounts) and other financial information contained in
the Registration Statements (in
15
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.
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 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)
"PROSPECTUS" shall mean the prospectus included in the Registration Statements.
All financial statements and schedules included in material incorporated by
reference into the Prospectus shall be deemed included in the Registration
Statements for purposes of this subsection.
(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 CSFB. 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 the Prospectus is
printed and distributed to any Underwriter, or shall have
occurred at such later date as shall have been consented to by
CSFB. If the Effective Time of the Initial Registration
Statement is prior to the execution and delivery of this
Agreement, the Prospectus shall have been filed with the
Commission in accordance 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
16
(financial or other), business, properties or results of
operations of the Company and its subsidiaries taken as one
enterprise 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 Offered 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) or any announcement that
the Company has been placed on negative outlook; (iii) any
change in U.S. or international financial, political or
economic conditions or currency exchange rates or exchange
controls as would, in the judgment of a majority in interest
of the Underwriters including the Representatives, be likely
to prejudice materially the success of the proposed issue,
sale or distribution of the Offered Securities, whether in the
primary market or in respect of dealings in the secondary
market; (iv) any material suspension or material limitation of
trading in securities generally on the New York Stock
Exchange, or any setting of minimum prices for trading on such
exchange; (v) any suspension of trading of any securities of
the Company on any exchange or in the over-the-counter market;
(vi) any banking moratorium declared by U.S. Federal or New
York authorities; (vii) any major disruption of settlements of
securities or clearance services in the United States; (viii)
any notice issued by a government regulatory agency that
notifies the Company or its banking subsidiary that said
banking subsidiary is not at least "adequately capitalized" as
that term is defined under applicable regulations, or that
said banking subsidiary is subject to any capital directive,
prompt corrective action requirement, cease-and-desist order,
memorandum of understanding, or consent decree imposed by, or
entered into with, a government regulatory agency; or (ix) any
attack on, outbreak or escalation of hostilities or act of
terrorism involving the United States, any declaration of war
by Congress or any other 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 attack, outbreak, escalation, act, 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 Offered Securities.
(d) The Representatives shall have received an
opinion, dated such Closing Date, of Xxxxxxxx Xxxxxxxxxx &
Xxxxx LLP, counsel for the Company, in the form attached
hereto as Schedule C.
17
(e) The Representatives shall have received from
Skadden, Arps, Slate, Xxxxxxx & Xxxx 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 Prospectus 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 or any
Vice President and a principal financial or accounting officer
of the Company in which such officers, to the best of their
knowledge after reasonable investigation, shall state that:
the representations and warranties of the Company in this
Agreement are true and correct; 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; 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; 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 the Prospectus
was printed and distributed to any Underwriter; and,
subsequent to the dates of the most recent financial
statements in the Prospectus, 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 the Prospectus or as described in
such certificate.
(g) The Representatives shall have received a
letter, dated such Closing Date, of Ernst & Young 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.
(h) On or prior to the date of this Agreement,
the Representatives shall have received lockup letters from
each of the executive officers and directors of the Company in
form and substance satisfactory to CSFB.
The Company will furnish the Representative with such conformed copies of such
opinions, certificates, letters and documents as the Representatives reasonably
request. CSFB 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.
18
7. Indemnification and Contribution.
(a) The Company will indemnify and hold harmless
each Underwriter, its partners, members, directors and
officers and each person, if any, who controls such
Underwriter within the meaning of Section 15 of the Act,
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, the Prospectus, 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; 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 such
information furnished by any Underwriter consists of the
information described as such in subsection (b) below.
(b) Each Underwriter will severally and not
jointly indemnify and hold harmless the Company, its directors
and officers and each person, if any who controls the Company
within the meaning of Section 15 of the Act, 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, the Prospectus, 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
19
such information furnished by any Underwriter consists of the
concession and reallowance figures appearing in the fifth
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 failure to notify the
indemnifying party shall not relieve it from any liability
that it may have under subsection (a) or (b) above except to
the extent that it has been materially prejudiced (through the
forfeiture of substantive rights or defenses) by such failure;
and provided further that the failure to notify the
indemnifying party shall not relieve it from any liability
that it may have to an 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 (i) includes an unconditional release of such
indemnified party from all liability on any claims that are
the subject matter of such action and (ii) does not include a
statement as to, or an admission of, fault, culpability or a
failure to act by or on behalf of an indemnified party.
(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 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
20
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 (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 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.
(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.
8. Default of Underwriters. If any Underwriter or Underwriters
default in their obligations to purchase Offered Securities hereunder on either
the First or any Optional Closing Date and the aggregate number of shares of
Offered Securities that such defaulting Underwriter or Underwriters agreed but
failed to purchase does not exceed
21
10% of the total number of shares of Offered Securities that the Underwriters
are obligated to purchase on such Closing Date, CSFB may make arrangements
satisfactory to the Company for the purchase of such Offered 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 Offered 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 Offered Securities with respect to which such
default or defaults occur exceeds 10% of the total number of shares of Offered
Securities that the Underwriters are obligated to purchase on such Closing Date
and arrangements satisfactory to CSFB and the Company for the purchase of such
Offered Securities by other persons are not made within 48 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 Optional Securities after
the First Closing Date, this Agreement will not terminate as to the Firm
Securities or any 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 Offered Securities. If this Agreement is
terminated pursuant to Section 8 or if for any reason the purchase of the
Offered 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 Offered 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
Offered 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), (vi), (vii) or
(ix) 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 Offered 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 CSFB at Eleven Xxxxxxx Xxxxxx, Xxx Xxxx, XX 00000-0000, Attention:
Transactions Advisory Group, or, if sent to the Company, will be mailed,
delivered or telegraphed and confirmed to it at Westcorp, 00 Xxxxxxx, Xxxxxx,
Xxxxxxxxxx 00000-0000, Attention: Guy Du Bose,
22
Esq.; 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 this financing, and any action
under this Agreement taken by the Representatives jointly or by CSFB 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, INCLUDING
WITHOUT LIMITATION, SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL
OBLIGATIONS LAW AND NEW YORK CIVIL PRACTICE LAWS AND RULES 327(b).
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.
23
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,
WESTCORP
By: ________________________
Name:
Title:
The foregoing Underwriting Agreement
is hereby confirmed and accepted as
of the date first above written.
CREDIT SUISSE FIRST BOSTON LLC
XXXXXXX, XXXXX & CO.
BEAR, XXXXXXX & CO. INC.
JMP SECURITIES LLC
Acting on behalf of themselves and as
the Representatives of the several
Underwriters
By: CREDIT SUISSE FIRST BOSTON LLC
By: _______________________
Name:
Title:
24
SCHEDULE A
NUMBER OF
UNDERWRITER FIRM SECURITIES
----------- ---------------
Credit Suisse First Boston LLC.................................... [ ]
Xxxxxxx, Xxxxx & Co............................................... [ ]
Bear, Xxxxxxx & Co. Inc........................................... [ ]
JMP Securities LLC................................................ [ ]
Total.................. 5,400,000
=========
SCHEDULE B
LIST OF SUBSIDIARIES
[To be verified by Company]
[Western Services Corp.]
[Western Consumer Products]
[WFS Receivables Corporation 2]
[Western Financial Bank]
[Westfin Insurance Agency, Inc.]
[Westhrift Life Insurance Company]
[Western Consumer Services, Inc.]
[The Xxxxxxx Company/The Mortgage Bankers]
[Western Reconveyance Company Inc.]
[Western Auto Investments, Inc.]
[WFS Financial Inc]
[WFS Financial Auto Loans, Inc.]
[WFS Financial Auto Loans 2, Inc.]
[WFS Investments, Inc.]
[WFS Funding, Inc.]
[WFS Receivables Corporation]
[WFS Receivables Corporation 3]
[WFS Web Investments]
[WFS Receivables Corporation 4]
[Western Financial Association Solutions]
SCHEDULE C
FORM OF LEGAL OPINION OF COUNSEL TO THE COMPANY
1. The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State of
California, with corporate power and authority to conduct its business and to
own, lease and operate its properties as now being conducted and as described in
the Prospectus; the Company is duly qualified and is in good standing as a
foreign corporation to do business in each jurisdiction in which the nature of
its business or the ownership or leasing of property requires such
qualification, except where the failure to be so qualified would not have a
Material Adverse Effect.
2. Each of the Subsidiaries has been duly incorporated
and is validly existing as a corporation and in good standing under the laws of
the jurisdiction of its incorporation, with corporate power and authority to
conduct its business and to own, lease and operate its properties as described
in the Prospectus; each of the Subsidiaries is duly qualified and is in good
standing as a foreign corporation to do business in each jurisdiction in which
the nature of its business or the ownership or leasing of property requires such
qualification, except where the failure to be so qualified would not have a
Material Adverse Effect or, in each case, except to the extent such
qualification is preempted by applicable federal law for operating subsidiaries
of federal savings associations, for those subsidiaries that are not qualified
in a particular jurisdiction because such qualification is preempted by
applicable federal law for operating subsidiaries of federal savings
associations, such subsidiaries are in compliance with applicable federal law
for operating subsidiaries of federal savings associations. All of the
outstanding shares of capital stock of each of the Subsidiaries have been duly
authorized and validly issued and are fully paid and non-assessable and, to our
knowledge, are free and clear of any security interest, claim, lien,
encumbrance, adverse interest or any defect of title of any nature except as
follows:
(a) WFS has pledged all of its shares in WFAL2
for the benefit of Financial Security Assurance Inc. pursuant
to the terms of a Stock Pledge Agreement dated as of November
1, 1998;
(b) WFS has pledged all of its shares in WFSRC
for the benefit of Financial Security Assurance Inc. pursuant
to the terms of a Pledge and Collateral Agency Agreement dated
as of March 1, 2000; and
(c) The Company has pledged all of its shares in
WFSRC2 for the benefit of Financial Security Assurance Inc.
pursuant to the terms of a Stock Pledge and Collateral Agency
Agreement, dated August 16, 2000.
3. The Securities, when issued and paid for in
accordance with the terms of the Underwriting Agreement and the Purchase
Agreement, and all other outstanding shares of the Common Stock of the Company
have been duly authorized and validly issued, are fully paid and nonassessable,
conform to the description of them given in the Prospectus and were not issued
in violation of or subject to any preemptive rights.
4. There are no contracts, agreements or understandings
known to us 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.
5. The Company is not and, after giving effect to the
issuance of the Securities and the application of the proceeds thereof as
described in the Prospectus, will not be an "investment company" as defined in
the Investment Company Act of 1940, as amended.
6. No consent, approval, authorization or order of, or
filing with, any governmental agency or body or any court is required for the
consummation of the transactions contemplated by the Underwriting Agreement in
connection with the issuance or sale of the 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; provided, however, we are not rendering any opinion
as to whether appropriate filings have been made under state securities laws.
7. The execution, delivery and performance of the
Underwriting Agreement and the issuance and sale of the Securities will not
result in a breach or violation of any of the terms and provisions of, or
constitute a default under, (A) any statute, any rule, regulation or order of
any governmental agency or body or any court having jurisdiction over the
Company or any subsidiary of the Company or any of their properties, (B) any
agreement or instrument to which the Company or any subsidiary is a party or by
which the Company or any subsidiary is bound or to which any of the properties
of the Company or any subsidiary is subject, or (C) the articles of
incorporation or by-laws of the Company or any subsidiary.
8. The Company has full power and authority to
authorize, issue and sell the Securities as contemplated by the Underwriting
Agreement.
9. The Initial Registration Statement and the Additional
Registration Statement were declared effective under the Act as of the dates
specified above, the Prospectus was filed with the Commission pursuant to Rule
424(b)(4), and, to the best of our knowledge, 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; the Initial Registration Statement and the
Prospectus, 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; no part of the Registration Statement, as of its effective date or
as of the Closing Date, contained any untrue statement of a material fact or
omitted to state any material fact required to be stated therein or necessary to
make the statements therein not misleading or that the Prospectus or any
amendment or supplement thereto, as of its issue date or as of the Closing Date,
contained any untrue statement of a material fact or omitted to state any
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading; the descriptions
in the Registration Statements and Prospectus of statutes, legal and
governmental proceedings and contracts and other documents are accurate and
fairly present the information required to be shown; and to such counsel's
knowledge, there are no legal or governmental proceedings required to be
described in the Registration Statement or the Prospectus which are not
described as required or of any contracts
or documents of a character required to be described in the Registration
Statement or the Prospectus or to be filed as exhibits to the Registration
Statement which are not described and filed as required; it being understood
that we are expressing no opinion as to the financial statements or other
financial data contained in the Registration Statement or the Prospectus or as
to any information included in paragraphs [11 and 13] under the caption
"Underwriting" in the Prospectus.
10. The Underwriting Agreement has been duly authorized,
executed and delivered by the Company.
11. To our knowledge, 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, would individually or in the aggregate have a Material
Adverse Effect, or would materially and adversely affect the ability of the
Company to perform its obligations under the Underwriting Agreement or which are
otherwise material in the context of the sale of the Securities; and to our
knowledge no such actions, suits or proceedings are threatened or contemplated.
12. All of the issued and outstanding shares of the
Company's subsidiaries have been duly authorized and validly issued, and are
fully paid and nonassessable.
13. All of the outstanding capital stock of Western
Financial Bank is owned of record by the Company.
14. The Company is a savings and loan holding company
registered under HOLA.