EXHIBIT 1
3,800,000 SHARES
WESTCORP
COMMON STOCK
UNDERWRITING AGREEMENT
____________, 2003
CREDIT SUISSE FIRST BOSTON LLC
▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO
BEAR, ▇▇▇▇▇▇▇ & CO. INC.
JMP SECURITIES LLC
As Representatives of the Several Underwriters,
c/o Credit Suisse First Boston LLC,
Eleven ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Dear Sirs:
1. Introductory. Westcorp, a California corporation ("COMPANY"),
proposes to issue and sell 3,800,000 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 570,000 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." 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. 333-106037)
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 initial
registration statement incorporated by reference therein and
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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 the statements therein not misleading, and no Additional
Registration
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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; 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 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 this offering.
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(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 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
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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 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 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)
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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.
(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,
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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.
(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
8
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 (▇▇▇▇▇) 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.
(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.
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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.
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, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP,
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, at 10:00 a.m., New York time, on
____________, 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, ▇▇▇▇▇▇▇ & ▇▇▇▇ 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 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
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order of Westcorp, at the above office of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇
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, ▇▇▇▇▇▇▇ & ▇▇▇▇ 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 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.
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(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.
(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.
12
(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.
(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
13
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 Nos. 71 and 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 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 month periods
ended March 31, 2003 and March 31, 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
14
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 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
15
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 (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
16
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 ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ &
▇▇▇▇▇ LLP, counsel for the Company, to the effect that:
(i) The Company has been duly
incorporated and is an existing corporation in good
standing under the laws of the State of California,
with corporate power and authority 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;
(ii) 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 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 where the
failure to be so qualified would not have a Material
Adverse Effect; all of the issued and outstanding
capital stock of each subsidiary of the Company has
been duly authorized and validly issued and is fully
17
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.
(iii) The Offered Securities delivered on
such Closing Date and all other outstanding shares of
the Common Stock of the Company have been duly
authorized and validly issued, are fully paid and
nonassessable and conform to the description thereof
contained in the Prospectus; and the shareholders of
the Company have no preemptive rights with respect to
the Securities;
(iv) 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;
(v) 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.
(vi) 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 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; provided,
however, such counsel does not render any opinion as
to whether appropriate filings have been made under
state securities laws;
(vii) 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, (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
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
18
is subject, or (C) the charter or by-laws of the
Company or any such subsidiary;
(viii) The Company has full power and
authority to authorize, issue and sell the Offered
Securities as contemplated by this Agreement;
(ix) 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, the
Prospectus either was filed with the Commission
pursuant to the subparagraph of Rule 424(b) specified
in such opinion on the date specified therein or was
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, and each Registration Statement and the
Prospectus, 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; no part of a Registration Statement or
any amendment thereto, as of its effective date or as
of such 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 such 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
a 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
a Registration Statement or the Prospectus or to be
filed as exhibits to a Registration Statement which
are not described and filed as required; it being
understood that such counsel need express no opinion
as to the financial statements or other financial
data contained in the Registration Statements or the
Prospectus;
19
(x) This Agreement has been duly
authorized, executed and delivered by the Company;
(xi) To such counsel's 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 this Agreement, or
which are otherwise material in the context of the
sale of the Securities; and no such actions, suits or
proceedings are threatened or, to such counsels
knowledge, contemplated;
(xii) All of the issued and outstanding
shares of the Company's subsidiaries have been duly
and validly authorized and issued, and are fully paid
and nonassessable;
(xiii) All of the outstanding capital
stock of Western Financial Bank is owned of record by
the Company;
(xiv) The Company is a savings and loan
holding company registered under the HOLA.
(e) The Representatives shall have received from
Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ 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
20
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.
(i) ▇▇▇▇▇▇ ▇▇▇▇ and his affiliates shall have
purchased 700,000 shares of Common Stock from the Company in a
concurrent private placement at a purchase price per share
equal to the price to public on the cover page of the
Prospectus, and the Company's Employee Stock Ownership Plan
and Salary Savings Plan shall have purchased 130,000 shares in
a concurrent placement at a purchase price per share equal to
the price to public on the cover page of the Prospectus.
The Company will furnish the Representatives 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.
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,
21
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
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
22
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 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
23
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 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
24
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 the Representatives, c/o Credit Suisse First Boston LLC, Eleven
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: Transactions Advisory Group,
or, if sent to the Company, will be mailed, delivered or telegraphed and
confirmed to it at Westcorp, ▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇,
Attention: ▇▇▇ ▇▇▇▇▇▇, 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.
25
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.
26
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
▇▇▇▇▇▇▇, ▇▇▇▇▇ & CO.
BEAR, ▇▇▇▇▇▇▇ & 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:
27
SCHEDULE A
NUMBER OF
UNDERWRITER FIRM SECURITIES
----------- ---------------
Credit Suisse First Boston LLC....................................
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co...............................................
Bear, ▇▇▇▇▇▇▇ & Co. Inc...........................................
JMP Securities LLC................................................
Total.................. 3,800,000
=========
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SCHEDULE B
LIST OF SUBSIDIARIES
[To Be Provided By Company]
29