EXHIBIT 99.1
FORM OF SUBSCRIPTION AGENT AGREEMENT
BETWEEN WESTCORP AND MELLON INVESTOR SERVICES LLC
January 22, 2002
Mellon Investor Services LLC
00 Xxxxxxxxxx Xx.
Xxxxxxxxxx Xxxx, XX 00000
Attn: Reorganization Department
Gentlemen:
Westcorp, a California corporation (the "Company") is making an offer to
issue (the "Subscription Offer") to the holders of record of its outstanding
shares of Common Stock par value $1.00 per share (the "Common Stock"), at the
close of business on February 9, 2002 (the "Record Date"), the right to
subscribe for and purchase (each a "Right") shares of Common Stock (the
"Additional Common Stock") at a purchase price of $14.67 per share of Additional
Common Stock (the "Subscription Price"), payable by cashier's or certified check
or other acceptable methods as may be specified in the Registration Statement
referenced below, upon the terms and conditions set forth herein. The term
"Subscribed" shall mean submitted for purchase from the Company by a stockholder
in accordance with the terms of the Subscription Offer, and the term
"Subscription" shall mean any such submission. The Subscription Offer will
expire at 5:00 p.m. New York City Time, on March 5, 2002 (the "Expiration
Time"), unless the Company shall have extended the period of time for which the
Subscription Offer is open, in which event the term "Expiration Time" shall mean
the latest time and date at which the Subscription Offer, as so extended by the
Company from time to time, shall expire.
This Subscription Agent Agreement ("Agreement") will define the activities
and related compensation which Mellon Investor Services LLC ("Mellon") will
provide to the Company in conjunction with the Subscription Offer.
The Company filed a Registration Statement relating to the Additional
Common Stock with the Securities and Exchange Commission under the Securities
Act of 1933, as amended on January 22, 2002. It is anticipated that the
Registration Statement will be declared effective on February 8, 2002. The terms
of the Additional Common Stock are more fully described in the Prospectus
forming part of the Registration Statement as it was declared effective, and the
accompanying Letter of Instruction. Copies of the Prospectus, the Letter of
Instruction and the Notice of Guaranteed Delivery are annexed hereto as Exhibit
1, Exhibit 2 and Exhibit 3, respectively. All terms used and not defined herein
shall have the same meaning as in the Prospectus. Promptly after the Record
Date, the Company will provide Mellon with a list of holders of Common Stock as
of the Record Date (the "Record Stockholders List").
The Rights are evidenced by transferable subscription warrants (the
"Warrants"), a copy of the form of which is annexed hereto as Exhibit 4. The
Warrants entitle the holders to subscribe, upon payment of the Subscription
Price, for shares of Additional Common Stock at the rate of 1 share for each
10.5 Rights evidenced by a Warrant (the "Basic Subscription Right"). No
fractional shares will be issued. In the event that fractional shares would be
calculated as a result of the exchange ratio above, the number of shares of
Additional Common Stock to be purchased will be rounded down to the nearest full
share and the fractional share amount shall be cancelled. Rights are freely
transferable among their holders and Mellon will not make any distinction
between Rights issued
directly to subscribing shareholders and those Rights which have been validly
and lawfully acquired by the subscribing shareholder from another.
Further, the Subscription Offer provides that subscribing shareholders, and
only those subscribing shareholders who exercise their Rights in full, may
exercise an Oversubscription Right as more fully described in the Registration
Statement. Mellon shall, after the initial allocation of Additional Common Stock
to those shareholders exercising their Basic Subscription Right, allocate any
remaining shares (and only to the extent possible) to those shareholders who
exercise the Oversubscription Right on a pro-rata basis to their Basic
Subscription, as more fully described in the Registration Statement.
The Company hereby appoints Mellon as Subscription Agent (the "Subscription
Agent") for the Subscription Offer and agrees with Mellon as follows:
(1) As Subscription Agent, Mellon is authorized and directed to:
(A) Issue the Warrants in accordance with this Agreement in the names
of the holders of the Common Stock of record on the Record Date, keep such
records as are necessary for the purpose of recording such issuance, and
furnish a copy of such records to the Company. The Warrants may be signed
on behalf of the Subscription Agent by the manual or facsimile signature of
a Vice President or Assistant Vice President of the Subscription Agent, or
by the manual signature of any of its other authorized officers.
(B) Promptly after Mellon receives the Record Stockholders List:
(a) mail or cause to be mailed, by first class mail, to each holder
of Common Stock of record on the Record Date whose address of record is
within the United States and Canada, (i) a Warrant evidencing the Rights
to which such stockholder is entitled under the Subscription Offer, (ii)
a copy of the Prospectus, (iii) a Letter of Instruction, (iv) a Notice
of Guaranteed Delivery and (v) a return envelope addressed to the
Subscription Agent; and
(b) mail or cause to be mailed, by air mail, to each holder of
Common Stock of record on the Record Date whose address of record is
outside the United States and Canada, or is an A.P.O. or F.P.O. address
(i) a copy of the Prospectus, (ii) a Notice of Guaranteed Delivery and
(iii) a Letter of Instruction (different from the Letter of Instruction
sent to stockholders whose address of record is within the United States
and Canada). Mellon shall refrain from mailing Warrants issuable to any
holder of Common Stock of record on the Record Date whose address of
record is outside the United States and Canada, or is an A.P.O. or
F.P.O. address, and hold such Warrants for the account of such
stockholder subject to such stockholder making satisfactory arrangements
with the Subscription Agent for the exercise or other disposition of the
Rights evidenced thereby, and follow the instructions of such
stockholder for the exercise, sale or other disposition of such Rights
if such instructions are received at or before 11:00 a.m., New York City
Time, on March 1, 2002.
(C) Mail or deliver a copy of the Prospectus (i) to each assignee or
transferee of Warrants upon Mellon's receiving appropriate documents to
register the assignment or transfer thereof and (ii) with certificates for
shares of Additional Common Stock when such are issued to persons other
than the registered holder of the Warrant.
(D) Accept Subscriptions upon the due exercise (including payment of
the Subscription Price) on or prior to the Expiration Time of Rights in
accordance with the terms of the Warrants and the Prospectus.
2
(E) Subject to the next sentence, accept Subscriptions from
stockholders whose Warrants are alleged to have been lost, stolen or
destroyed upon receipt by Mellon of an affidavit of theft, loss or
destruction and a bond of indemnity in form and substance satisfactory to
Mellon accompanied by payment of the Subscription Price for the total
number of shares of Additional Common Stock Subscribed for. Upon receipt of
such affidavit and bond of indemnity and compliance with any other
applicable requirements, stop orders shall be placed on said Warrants and
Mellon shall withhold delivery of the shares of Additional Common Stock
Subscribed for until after the Warrants have expired and it has been
determined that the Rights evidenced by the Warrants have not otherwise
been purported to have been exercised or otherwise surrendered.
(F) Accept Subscriptions, without further authorization or direction
from the Company, without procuring supporting legal papers or other proof
of authority to sign (including without limitation proof of appointment of
a fiduciary or other person acting in a representative capacity), and
without signatures of co-fiduciaries, co-representatives or any other
person:
(a) if the Warrant is registered in the name of a fiduciary and is
executed by and the Additional Common Stock is to be issued in the name
of such fiduciary;
(b) if the Warrant is registered in the name of joint tenants and
is executed by one of the joint tenants, provided the certificate
representing the Additional Common Stock is issued in the names of, and
is to be delivered to, such joint tenants;
(c) if the Warrant is registered in the name of a corporation and
is executed by a person in a manner which appears or purports to be done
in the capacity of an officer, or agent thereof, provided the Additional
Common Stock is to be issued in the name of such corporation; or
(d) if the Warrant is registered in the name of an individual and
is executed by a person purporting to act as such individual's executor,
administrator or personal representative, provided, the Additional
Common Stock is to be registered in the name of the subscriber as
executor or administrator of the estate of the deceased registered
holder and there is no evidence indicating the subscriber is not the
duly authorized representative that he purports to be.
(G) Accept applications to transfer Warrants and to act therein as a
Transfer Agent for this limited purpose, without further authorization or
direction from the Company, without procuring supporting legal papers or
other proof of authority to sign (including without limitation proof of
appointment of a fiduciary or other person acting in a representative
capacity), and without signatures of co-fiduciaries, co-representatives or
any other person:
(a) if the Warrant is registered in the name of a fiduciary and is
executed by and the Additional Common Stock is to be issued in the name
of such fiduciary;
(b) if the Warrant is registered in the name of joint tenants and
is executed by one of the joint tenants, provided the certificate
representing the Additional Common Stock is issued in the names of, and
is to be delivered to, such joint tenants;
(c) if the Warrant is registered in the name of a corporation and
is executed by a person in a manner which appears or purports to be done
in the capacity of an officer, or agent thereof, provided the Additional
Common Stock is to be issued in the name of such corporation; or
(d) if the Warrant is registered in the name of an individual and
is executed by a person purporting to act as such individual's executor,
administrator or personal
3
representative, provided, the Additional Common Stock is to be
registered in the name of the subscriber as executor or administrator of
the estate of the deceased registered holder and there is no evidence
indicating the subscriber is not the duly authorized representative that
he purports to be.
(H) Accept Subscriptions not accompanied by Warrants if submitted by a
firm having membership in the New York Stock Exchange or another national
securities exchange or by a commercial bank or trust company having an
office in the United States together with the Notice of Guaranteed Delivery
and accompanied by proper payment for the total number of shares of
Additional Common Stock Subscribed for.
(I) Accept Subscriptions even though unaccompanied by Warrants, under
the circumstances and in compliance with the terms and conditions set forth
in the Prospectus under the heading "The Offering--Notice of Guaranteed
Delivery Form."
(J) Refer to the Company for specific instructions as to acceptance or
rejection for Subscriptions received after the Expiration Time,
Subscriptions not authorized to be accepted pursuant to this Paragraph 1,
and Subscriptions otherwise failing to comply with the requirements of the
Prospectus and the terms and conditions of the Warrants.
(K) Upon acceptance of a Subscription:
(a) hold all monies received in a special account for the benefit
of the Company. Promptly following the Expiration Time Mellon shall
distribute to the Company the funds in such account and issue
certificates for shares of Additional Common Stock issuable with respect
to Subscriptions which have been accepted.
It is hereby agreed immediately following the effective date of the
Subscription, immediately available funds, represented by a certified or
cashier's check, money order, or wire transfer but not personal check,
will be deposited with you and interest shall accrue on such funds
("Payment Fund") prior to any payment date (date of distribution to the
Rights Holders) for the benefit of the Rights Holders in accordance with
the "Investment Provision" described in the next subparagraph below:
Mellon Bank, N.A. shall pay interest to the Rights Holders on the
average daily balance of the Payment Fund at the Dreyfus General Money
Market Class B Rate, less a single investment service fee equal to
$2,500.00 plus 1.00% per annum of the average daily balance of the
aggregate amounts in the Payment Fund for a period up to but not
including the date of transfer of funds to the Company following the
expiration of the Subscription.
Immediately available funds must be received prior to 12:00 pm Noon
Eastern Standard Time. Funds received after this time will not earn
interest for the Rights Holder until the following business day.
Interest shall be paid immediately following the expiration and
acceptance of the Rights Subscription by the Company. Interest shall not
be paid unless all outstanding invoices have been paid by the Company.
(b) advise the Company daily by telecopy and confirm by letter to
Xxxx Xxxxx, Vice President and Controller (the "Company
Representative"), with a copy to Guy Du Bose, Esq., General Counsel, (by
telecopy) as to the total number of shares of Additional Common Stock
Subscribed for, total number of Rights sold, total number of Rights
partially Subscribed for and the amount of funds received, with
cumulative totals for each; and in addition advise the Company
Representative, by telephone to Xxxx Xxxxx at
4
(000) 000-0000, confirmed by telecopy, of the amount of funds received
identified in accordance with (a) above, deposited, available or
transferred in accordance with (a) above, with cumulative totals; and
(c) as promptly as possible but in any event on or before 3:30
p.m., New York City Time, on the first full business day following the
Expiration Time, advise the Company Representative in accordance with
(b) above of the number of shares Subscribed for, the number of
Subscription guarantees received and the number of shares of Additional
Common Stock unsubscribed for.
(L) Upon completion of the Subscription Offer, Mellon shall
requisition certificates from the Transfer Agent for the Common Stock for
shares of Additional Common Stock Subscribed for.
(2)(A) The Warrants shall be issued in registered form only. The Company
shall appoint and have in office at all times a Registrar for the Warrants,
satisfactory to Mellon, which shall keep books and records of the registration
and transfers and exchanges of Warrants (such books and records are hereinafter
called the "Warrant Register"). The Company shall promptly notify the Transfer
Agent and Registrar of the exercise of any Warrants. The Company shall promptly
notify Mellon of any change in the Registrar of the Warrants.
(B) All Warrants issued upon any registration of transfer or exchange of
Warrants shall be the valid obligations of the Company, evidencing the same
obligations, and entitled to the same benefits under this Agreement, as the
Warrants surrendered for such registration of transfer or exchange.
(C) Any Warrant when duly endorsed in blank shall be deemed negotiable, and
when a Warrant shall have been so endorsed the holder thereof may be treated by
the Company, Mellon and all other persons dealing therewith as the absolute
owner thereof for any purpose and as the person entitled to exercise the rights
represented thereby, any notice to the contrary notwithstanding, but until such
transfer is registered in the Warrant Register, the Company and Mellon may treat
the registered holder thereof as the owner for all purposes.
(3) Mellon will follow its regular procedures to attempt to reconcile any
discrepancies between the number of shares of Additional Common Stock that any
Warrant may indicate are to be issued to a stockholder and the number that the
Record Stockholders List indicates may be issued to such stockholder. In any
instance where Mellon cannot reconcile such discrepancies by following such
procedures, Mellon will consult with the Company for instructions as to the
number of shares of Additional Common Stock, if any, Mellon is authorized to
issue. In the absence of such instructions, Mellon is authorized not to issue
any shares of Additional Common Stock to such stockholder.
(4) Mellon will examine the Warrants received by it as Subscription Agent
to ascertain whether they appear to Mellon to have been completed and executed
in accordance with the applicable Letter of Instruction. In the event Mellon
determine that any Warrant does not appear to it to have been properly completed
or executed, or where the Warrants do not appear to Mellon to be in proper form
for Subscription, or any other irregularity in connection with the Subscription
appears to Mellon to exist, it will follow, where possible, its regular
procedures to attempt to cause such irregularity to be corrected. Mellon is not
authorized to waive any irregularity in connection with the Subscription, unless
it shall have received from the Company the Warrant which was delivered, duly
dated and signed by an authorized officer of the Company, indicating that any
irregularity in such Warrant has been cured or waived and that such Warrant has
been accepted by the Company. If any such irregularity is neither corrected nor
waived, Mellon will return to the subscribing stockholder (at Mellon's option by
either first class mail under a blanket surety bond or insurance protecting
Mellon and the Company from losses or liabilities arising out of the non-receipt
or nondelivery of Warrants
5
or by registered mail insured separately for the value of such Warrants) to such
stockholder's address as set forth in the Subscription any Warrants surrendered
in connection therewith and any other documents received with such Warrants, and
a letter of notice to be furnished by the Company explaining the reasons for the
return of the Warrants and other documents.
(5) Each document received by Mellon relating to its duties hereunder shall
be dated and time stamped when received.
(6)(A) For so long as this Agreement shall be in effect, the Company will
reserve for issuance and keep available free from preemptive rights a sufficient
number of shares of Additional Common Stock to permit the exercise in full of
all Rights issued pursuant to the Subscription Offer. Subject to the terms and
conditions of this Agreement, Mellon will request the Transfer Agent for the
Common Stock to issue certificates evidencing the appropriate number of shares
of Additional Common Stock as required from time to time in order to effectuate
the Subscriptions.
(B) The Company shall take any and all action, including without limitation
obtaining the authorization, consent, lack of objection, registration or
approval of any governmental authority, or the taking of any other action under
the laws of the United States of America or any political subdivision thereof,
to insure that all shares of Additional Common Stock issuable upon the exercise
of the Warrants at the time of delivery of the certificates therefor (subject to
payment of the Subscription Price) will be duly and validly issued and fully
paid and nonassessable shares of Common Stock, free from all preemptive rights
and taxes, liens, charges and security interests created by or imposed upon the
Company with respect thereto.
(C) The Company shall from time to time take all action necessary or
appropriate to obtain and keep effective all registrations, permits, consents
and approvals of the Securities and Exchange Commission and any other
governmental agency or authority and make such filings under Federal and state
laws which may be necessary or appropriate in connection with the issuance,
sale, transfer and delivery of Warrants or Additional Common Stock issued upon
exercise of Warrants.
(7) If certificates representing shares of Additional Common Stock are to
be delivered by Mellon to a person other than the person in whose name a
surrendered Warrant is registered, Mellon will issue no certificate for
Additional Common Stock until the Warrant so surrendered has been properly
endorsed (or otherwise put in proper form for transfer) and the person
requesting such exchange has paid any transfer or other taxes or governmental
charges required by reason of the issuance of a certificate for Additional
Common Stock in a name other than that of the registered holder of the Warrant
surrendered, or has established to Mellon's satisfaction that any such tax or
charge either has been paid or is not payable.
(8) Should any issue arise regarding federal income tax reporting or
withholding, Mellon will take such action as the Company instructs Mellon in
writing.
(9) The Company may terminate this Agreement at any time by so notifying
Mellon in writing. Mellon may terminate this Agreement upon 30 days' prior
notice to the Company. Upon any such termination, Mellon shall be relieved and
discharged of any further responsibilities with respect to its duties hereunder.
Upon payment of all outstanding fees and expenses of Mellon, Mellon will forward
to the Company or its designee promptly any Warrant or other document relating
to Mellon's duties hereunder that Mellon may receive after its appointment has
so terminated. Sections 11, 12, and 14 of this Agreement shall survive any
termination of this Agreement.
(10) As agent for the Company hereunder Mellon:
(A) shall have no duties or obligations other than those specifically
set forth herein or as may subsequently be agreed to in writing by Mellon
and the Company;
6
(B) shall have no obligation to issue any shares of Additional Common
Stock unless the Company shall have provided a sufficient number of
certificates for such Additional Common Stock;
(C) shall be regarded as making no representations and having no
responsibilities as to the validity, sufficiency, value, or genuineness of
any Warrants surrendered to Mellon hereunder or shares of Additional Common
Stock issued in exchange therefor, and will not be required to or be
responsible for and will make no representations as to, the validity,
sufficiency, value or genuineness of the Subscription Offer;
(D) shall not be obligated to take any legal action hereunder; if,
however, Mellon determines to take any legal action hereunder, and where
the taking of such action might, in its reasonable judgment, subject or
expose Mellon to any expense or liability it shall not be required to act
unless Mellon shall have been furnished with an indemnity satisfactory to
it;
(E) may rely on and shall be fully authorized and protected in acting
or failing to act upon any certificate, instrument, opinion, notice,
letter, telegram, telex, facsimile transmission or other document or
security delivered to Mellon and reasonably believed by it to be genuine
and to have been signed by the proper party or parties;
(F) shall not be liable or responsible for any recital or statement
contained in the Prospectus or any other documents relating thereto;
(G) shall not be liable or responsible for any failure on the part of
the Company to comply with any of its covenants and obligations relating to
the Subscription Offer, including without limitation obligations under
applicable securities laws;
(H) may rely on and shall be fully authorized and protected in acting
or failing to act upon the written, telephonic or oral instructions with
respect to any matter relating to Mellon acting as Subscription Agent
covered by this Agreement (or supplementing or qualifying any such actions)
of officers of the Company;
(I) may consult with counsel satisfactory to Mellon, including Guy Du
Bose, Esq., general counsel of the Company, and the advice of such counsel
shall be full and complete authorization and protection in respect of any
action taken, suffered, or omitted by Mellon hereunder in good faith and in
accordance with the advice of such counsel;
(J) may perform any of Mellon's duties hereunder either directly or by
or through agents or attorneys and Mellon shall not be liable or
responsible for any misconduct or negligence on the part of any agent or
attorney appointed and supervise with reasonable care by Mellon hereunder;
and
(K) are not authorized, and shall have no obligation, to pay any
brokers, dealers, or soliciting fees to any person.
(11) In the event any question or dispute arises with respect to the proper
interpretation of the Subscription Offer or Mellon's duties hereunder or the
rights of the Company or of any stockholders surrendering Warrants pursuant to
the Subscription Offer, Mellon shall not be required to act and shall not be
held liable or responsible for its refusal to act until the question or dispute
has been judicially settled (and, if appropriate, Mellon may file a suit in
interpleader or for a declaratory judgment for such purpose) by final judgment
rendered by a court of competent jurisdiction, binding on all parties interested
in the matter which is no longer subject to review or appeal, or settled by a
written document in form and substance satisfactory to Mellon and executed by
the Company and each such stockholder and party. In addition, Mellon may require
for such purpose, but shall not be
7
obligated to require, the execution of such written settlement by all the
stockholders and all other parties that may have an interest in the settlement.
(12) Any instructions given to Mellon orally from the Company, as permitted
by any provision of this Agreement, shall be confirmed in writing by a duly
authorized representative of the Company as soon as practicable. Mellon shall
not be liable or responsible and shall be fully authorized and protected for
acting, or failing to act, in accordance with any oral instructions from the
Company which do not conform with the written confirmation received in
accordance with this Section.
(13) Whether or not any Warrants are surrendered to Mellon for its services
as Subscription Agent hereunder, the Company shall pay to Mellon compensation in
accordance with the fee schedule attached as Exhibit A hereto, together with
reimbursement for out-of-pocket expenses, including reasonable fees and
disbursements of counsel.
(14) The Company covenants to indemnify and hold Mellon and its officers,
directors, employees, agents, contractors, subsidiaries and affiliates harmless
from and against any loss, liability, damage or expense (including without
limitation any loss, liability, damage or expense incurred for accepting
Warrants tendered without a signature guarantee and the fees and expenses of
counsel) incurred (a) without gross negligence or bad faith or (b) as a result
of Mellon's acting or failing to act upon the Company's instructions, arising
out of or in connection with the Subscription Offer, this Agreement or the
administration of Mellon's duties hereunder, including without limitation the
costs and expenses of defending and appealing against any action, proceeding,
suit or claim in the premises. Mellon shall promptly notify the Company of any
action, proceeding, suit or claim by letter or telex or facsimile transmission
confirmed by letter. The Company shall be entitled to participate at its own
expense in the defense of any such action, proceeding, suit or claim. Anything
in this agreement to the contrary notwithstanding, in no event shall Mellon be
liable for special, indirect or consequential loss or damages of any kind
whatsoever (including but not limited to lost profits), even if Mellon have been
advised of the likelihood of such loss or damage and regardless of the form of
action. Any liability of Mellon's will be limited to the amount of fees paid by
the Company hereunder.
(15) If any provision of this Agreement shall be held illegal, invalid, or
unenforceable by any court, this Agreement shall be construed and enforced as if
such provision had not been contained herein and shall be deemed an Agreement
among us to the full extent permitted by applicable law.
(16) The Company represents and warrants that (a) it is duly incorporated,
validly existing and in good standing under the laws of its jurisdiction of
incorporation, (b) the making and consummation of the Subscription Offer and the
execution, delivery and performance of all transactions contemplated thereby
(including without limitation this Agreement) have been duly authorized by all
necessary corporate action and will not result in a breach of or constitute a
default under the certificate of incorporation or bylaws of the Company or any
indenture, agreement or instrument to which it is a party or is bound, (c) this
Agreement has been duly executed and delivered by the Company and constitutes
the legal, valid, binding and enforceable obligation of it, (d) the Subscription
Offer will comply in all material respects with all applicable requirements of
law and (e) to the best of its knowledge, there is no litigation pending or
threatened as of the date hereof in connection with the Subscription Offer.
(17) In the event that any claim of inconsistency between this Agreement
and the terms of the Subscription Offer arise, as they may from time to time be
amended, the terms of the Subscription Offer shall control, except with respect
to the duties, liabilities and rights, including compensation and
indemnification of Mellon as Subscription Agent, which shall be controlled by
the terms of this Agreement.
8
(18) Set forth in Exhibit B hereto is a list of the names and specimen
signatures of the persons authorized to act for the Company under this
Agreement. The Secretary of the Company shall, from time to time, certify to
Mellon the names and signatures of any other persons authorized to act for the
Company under this Agreement.
(19) Except as expressly set forth elsewhere in this Agreement, all
notices, instructions and communications under this Agreement shall be in
writing, shall be effective upon receipt and shall be addressed, if to the
Company, to Westcorp, 00 Xxxxxxx, Xxxxxx, Xxxxxxxxxx 00000-0000, Attention: Xxxx
Xxxxx, or, if to the Subscription Agent, to Mellon Investor Services LLC, 000
Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Reorganization
Department, or to such other address as a party hereto shall notify the other
parties.
(20) This Agreement shall be governed by and construed in accordance with
the laws of the State of New York, without giving effect to conflict of laws
rules or principles, and shall inure to the benefit of and be binding upon the
successors and assigns of the parties hereto; provided that this Agreement may
not be assigned by any party without the prior written consent of all other
parties.
(21) No provision of this Agreement may be amended, modified or waived,
except in a written document signed by both parties.
Please acknowledge receipt of this letter and confirm Mellon's agreement
concerning Mellon's appointment as Subscription Agent and Transfer Agent, and
the arrangements herein provided, by signing and returning the enclosed copy
hereof, whereupon this Agreement and Mellon's acceptance of the terms and
conditions herein provided shall constitute a binding Agreement between the
parties hereto.
Very truly yours,
WESTCORP
By:
Name:
Title:
Accepted as of the date first written above.
MELLON INVESTOR SERVICES LLC
AS SUBSCRIPTION AGENT AND TRANSFER AGENT
By:
Name:
Title:
9
EXHIBIT "1"
The Registration Statement shall be incorporated herein.
EXHIBIT "2"
The Letter of Instruction shall be incorporated herein.
EXHIBIT "3"
The Notice of Guaranteed Delivery shall be incorporated herein.
EXHIBIT "4"
The Form of Warrant shall be incorporated herein.
EXHIBIT "A"
MELLON INVESTOR SERVICES LLC
SCHEDULE OF FEES AS SUBSCRIPTION AGENT
FOR WESTCORP
I. Set Up and Administrative Fee............................... $ 7,500.00
II. Processing Basic subscriptions, each........................ $ 14.00
III. Transferring warrants, subscription certificates, split-ups,
reissuing new Certificates, round-ups, each................. $ 10.00
IV. Issuing subscription certificates to record date holders,
each, and follow-up mailings................................ $ 5.00
V. Processing oversubscriptions, including proration and
refunds, each............................................... $ 10.00
VI. Sale of Rights for holders, each............................ $ 10.00
VII. Subscriptions requiring additional handling (window items,
defective presentations, correspondence items, legal items,
and items not providing a taxpayer identification number),
each........................................................ $ 10.00
VIII. Processing Guarantee of Delivery items, each................ $ 10.00
IX. Handling Soliciting Dealer payments......................... By Appraisal
X. Special Services............................................ By Appraisal
XI. Out-of-pocket Expenses (including but not limited to
postage, stationery, telephones, overnight couriers,
Messengers, overtime, dinners, transportation, shipping and
trucking.................................................... Additional
XII. A minimum aggregate fee of $30,000 shall apply, inclusive of
fees above which are paid on a utilization basis.
EXHIBIT "B"
LETTERHEAD OF WESTCORP
NAME POSITION SPECIMEN SIGNATURES
---- -------- -------------------
