Exhibit 4.2
REGISTRATION RIGHTS AGREEMENT
Registration Rights Agreement (the 'Agreement'), dated as of April 13,
1998, by and among UCBH Holdings, Inc. (the 'Company'), a Delaware corporation,
and each of the undersigned Investors (hereinafter referred to individually as
an 'Investor' and collectively as the 'Investors').
WITNESSETH:
WHEREAS, the Company and each of the Investors have entered into a Purchase
Agreement providing for the purchase by the Investors of, among other things,
shares of the Company's Common Stock, subject to the terms and conditions set
forth therein; and
WHEREAS, the Company desires to provide the Investors with certain
registration rights with respect to the shares of Common Stock issuable pursuant
to the Purchase Agreement;
NOW, THEREFORE, in consideration of the premises and mutual agreements set
forth herein and for other good and valuable consideration, the receipt and the
sufficiency of which are hereby acknowledged, the Company and the Investors,
intending to be legally bound, agree as follows:
SECTION 1. DEFINITIONS.
As used in this Agreement, the following terms shall have the following
meanings:
(a) 'Affiliate' shall mean, with respect to any Person, any Person
that, directly or indirectly, controls, is controlled by or is under common
control with such Person. For the purposes of this definition, 'control'
when used with respect to any specified Person means the power to direct
the management and policies of such Person, directly or indirectly, whether
through the ownership of voting securities, by contract or otherwise; and
the terms 'controlling' and 'controlled' have meanings corresponding to the
foregoing.
(b) 'Agency Agreement' means the Agency Agreement between the Company,
United Commercial Bank, UCBH Trust Co. and the Placement Agent with respect
to, among other things, the Common Stock issued pursuant to the Purchase
Agreement.
(c) 'Business Day' shall mean any day except a Saturday, Sunday or
other day on which commercial banks in the State of California are
authorized or obligated by law to close.
(d) 'Commission' shall mean the Securities and Exchange Commission, or
any other federal agency at the time administering the Securities Act.
(e) 'Common Stock' means the Common Stock, par value $10.00 per share,
of the Company, which par value shall be reduced to $0.01 per share by an
amendment to the Company's Certificate of Incorporation immediately prior
to the Closing.
(f) 'Exchange Act' shall mean the Securities Exchange Act of 1934, as
amended.
(g) 'Holder' shall mean any holder of outstanding Registrable
Securities, including any Person to whom Registrable Securities have been
transferred in compliance with this Agreement.
(h) 'Initiating Holders' shall mean one or more Holders of not less
than 25% of the Registrable Securities then outstanding.
(i) 'Issue Date' shall mean April 17, 1998, the date of original
issuance pursuant to the Purchase Agreement of the shares of Common Stock.
(j) 'Person' shall mean an individual, a corporation, a partnership,
an association, a trust or any other entity or organization, including a
government or political subdivision or an agency or instrumentality
thereof.
(k) 'Placement Agent' means the Placement Agent defined in the Agency
Agreement.
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(l) 'Prospectus' shall mean the prospectus included in a Shelf
Registration Statement, including any preliminary prospectus, and any such
prospectus as amended or supplemented by any prospectus supplement,
including a prospectus supplement with respect to the terms of the offering
of any portion of the Registrable Securities covered by a Shelf
Registration Statement, and by all other amendments and supplements to a
prospectus, including post-effective amendments, and in each case including
all material incorporated by reference therein.
(m) 'Purchase Agreement' shall mean the Purchase Agreement among the
Company and the Investors, as amended, supplemented or otherwise modified
from time to time.
(n) 'Registrable Securities' shall mean (i) the shares of Common Stock
issued pursuant to the Purchase Agreement and (ii) any shares of the
capital stock (or rights to receive capital stock of the Company) issued in
respect of the Common Stock issued pursuant to the Purchase Agreement by
reason of or in connection with any stock dividend, stock distribution,
stock split, purchase in any rights offering or in connection with any
combination of shares, recapitalization, merger or consolidation, or any
other equity securities issued pursuant to any other pro rata distribution
with respect to the Common Stock issued pursuant to the Purchase Agreement.
Notwithstanding the foregoing, Registrable Securities shall not include
otherwise Registrable Securities (i) sold to or through a broker or dealer
or underwriter or (ii) sold in a transaction exempt from the registration
and prospectus delivery requirements of the Securities Act under Section
4(1) thereof, if in any such case all transfer restrictions, and
restrictive legends with respect thereto, if any, are removed upon the
consummation of such sale.
(o) 'Registration Statement' shall mean any registration statement
(including a 'shelf' registration statement) filed with the Commission
pursuant to Sections 3 or 4 of this Agreement.
(p) 'Securities Act' shall mean the Securities Act of 1933, as
amended, and the rules and regulations of the Commission thereunder.
(q) 'Shelf Registration' shall have the meaning set forth in Section 4
of this Agreement.
(r) 'Shelf Registration Statement' shall mean a 'shelf' registration
statement of the Company pursuant to the provisions of Section 4 of this
Agreement which covers all of the Registrable Securities required to be
registered on an appropriate form for purposes of an offering on a
continuous basis pursuant to Rule 415 under the Securities Act, or any
similar rule that may be adopted by the Commission.
(s) 'Underwritten Offering' shall mean a bona fide underwritten public
offering pursuant to a Registration Statement.
SECTION 2. RESTRICTIONS ON TRANSFERABILITY.
The Registrable Securities shall not be sold, transferred or otherwise
disposed of, except in accordance with and subject to (i) the provisions of the
Securities Act and the rules and regulations promulgated thereunder and (ii) the
applicable requirements of Section 3.2(b) of the Purchase Agreement.
SECTION 3. PIGGYBACK REGISTRATION RIGHTS.
(a) If at any time or from time to time following the Issue Date, the
Company shall determine to register any Company securities, for its own account
or the account of any of its stockholders, other than a registration on Form S-4
or Form S-8 or any successor or similar forms thereto, the Company will: (i)
give to each Holder written notice thereof as soon as practicable prior to
filing the Registration Statement; and (ii) include in such registration and in
any underwriting involved therein, all the Registrable Securities specified in a
written request or requests from the Holders, made by one or more Holders within
ten (10) days of mailing of such written notice by the Company. The registration
rights provided hereunder shall be subject to paragraph (b) hereof. In addition,
notwithstanding the foregoing, if, at any time after giving such notice the
Company shall determine for any reason or for no reason not to register or to
delay registration of the securities of the Company which were to be included in
the Registration Statement, the Company may, at its election, give written
notice of such determination to each Holder desiring to include Registrable
Securities in such Registration Statement. In the case of a determination not to
register the securities of the Company, the Company shall be relieved of its
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obligation to register any of such Holders' Registrable Securities in connection
with such registration (but not from its obligations to pay reasonable expenses
incurred in connection therewith, subject to the limitations set forth in
Section 6). In the case of a delay in registering the securities of the Company,
the Company shall be permitted to delay registering any Holders' Registrable
Securities which otherwise qualify for registration pursuant to this Section
3(a) for the same period as the delay in registering such other securities of
the Company. The Company will pay the reasonable expenses in connection with
each registration pursuant to this Section 3, to the extent provided in Section
7.
(b) In the case where the Company is registering securities for the purpose
of an Underwritten Offering, if the managing underwriter of the offering advises
the Company and each Holder desiring to include Registrable Securities in such
Registration Statement in writing that, in its opinion, the number of securities
requested to be included in such registration exceeds the number which can be
sold in such offering without materially and adversely affecting the success of
such offering, the Company will include in such registration only such amount of
securities which the Company is so advised can be sold in such offering, which
shall be determined as follows:
First, the securities proposed by the Company to be sold for its own
account; and
Second, allocated among the Holders desiring to include Registrable
Securities in such Registration Statement pro rata based on the percentage
of Registrable Securities to be included in such Registration Statement by
such Holders.
SECTION 5. SHELF REGISTRATION RIGHTS.
(a) The Company shall, at the Company's cost, subject to Section 6 hereof,
(i) within 120 days after the Issue Date, file with the Commission,
and thereafter use its best efforts to cause to be declared effective as
promptly as practicable, a Shelf Registration Statement relating to the
offer and sale of the Registrable Securities by the Holders from time to
time;
(ii) use its best efforts to keep the Shelf Registration Statement
continuously effective in order to permit the Prospectus forming a part
thereof to be usable by Holders identified as selling security holders in
such Shelf Registration Statement for a period of two years from the date
the Shelf Registration Statement is declared effective by the Commission or
until such earlier date as all Registrable Securities shall have been
disposed of or on which all Registrable Securities shall be saleable
without registration pursuant to Rule 144(k) (or any similar provision then
in effect), or as a result of any changes in the existing registration
requirements under the Securities Act which eliminate the Holders' need for
the Shelf Registration Statement, or upon receipt of an opinion of counsel
satisfactory to the Company which provides that all Registrable Securities
may be resold without registration in a transaction that would result in
the Registrable Securities being freely tradeable provided that the
purchaser is not an affiliate of the Company (the 'Effectiveness Period');
and
(iii) notwithstanding any other provisions hereof, use its best
efforts to ensure that (i) any Shelf Registration Statement and any
amendment thereto and any Prospectus forming a part thereof and any
supplement thereto complies in all material respects with the Securities
Act and the rules and regulations thereunder, (ii) any Shelf Registration
Statement and any amendment thereto does not, when it becomes effective,
contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements
therein not misleading and (iii) any Prospectus forming a part of any Shelf
Registration Statement, and any supplement to such Prospectus (as amended
or supplemented from time to time), does not include an untrue statement of
a material fact or omit to state a material fact necessary in order to make
the statements therein, in light of the circumstances under which they were
made, not misleading, except that the Company shall be entitled to rely on
the information provided to them by the Holders with respect to such
Holders.
(b) Any Holder desiring to sell Registrable Securities pursuant to the
Shelf Registration Statement shall provide not less than ten (10) days' prior
written notice to the Company. Any such notice shall specify the number of
shares of Common Stock proposed to be sold and the intended method of
disposition thereof. The Company shall use its best efforts to promptly file any
required amendment(s) to the Shelf Registration Statement in order to facilitate
any sales of shares of Common Stock as described above.
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(c) If Initiating Holders so elect, the offering of such Registrable
Securities pursuant to such Shelf Registration shall be in the form of an
Underwritten Offering. If any Shelf Registration is in the form of an
Underwritten Offering, the Initiating Holders will select and retain the
investment banker or investment bankers and manager or managers that will
administer the offering; provided that such investment bankers and managers must
be reasonably satisfactory to the Company.
SECTION 6. UNDERWRITTEN OFFERINGS.
(a) In connection with any public underwriting of Company securities that
are covered by a Registration Statement, the Company agrees, subject to the
requirements of Sections 3 and 4 hereof, to arrange for its underwriters to
include in the securities to be so distributed by it the Registrable Securities
of any Holder who makes such request of the Company. Each such Holder agrees
that any of such Registrable Securities so included shall be distributed and
sold through such underwriters. The Holders of Registrable Securities to be
distributed by such underwriters shall be parties to the underwriting agreement
between the Company and such underwriters and any such underwriting agreement
shall require that the representations and warranties by, and the other
agreements on the part of, the Company to and for the benefit of such
underwriters also shall be made to and for the benefit of such Holders and that
the conditions precedent to the obligations of such underwriters under such
underwriting agreement shall be conditions precedent to the obligations of such
Holders.
(b) No Holder may participate in any Underwritten Offering under Sections
3 and 4 unless such Holder (i) agrees to sell its Registrable Securities on the
basis provided in any underwriting arrangement approved by the Company and (ii)
completes and executes all questionnaires, powers of attorney, indemnities,
securities escrow agreements, underwriting agreements and other documents
required under the terms of such underwriting, and furnishes to the Company such
information as the Company may reasonably request in writing for inclusion in
the Registration Statement (and the prospectus included therein); provided,
however, that no Holder shall be required to make any representations or
warranties to or agreements with the Company or the underwriters other than
representations, warranties or agreements regarding such Holder and such
Holder's intended method of distribution and any other representation required
by law.
(c)(i) The managing underwriter of an Underwritten Offering of the Company
may advise the Company to cause Holders of Registrable Securities to delay the
public sale or distribution of such securities. Each Holder agrees, whether or
not such Holder participates in an Underwritten Offering, if so required by the
managing underwriter, not to effect any public sale or distribution of such
Holder's Registrable Securities or sales of such shares pursuant to Rule 144,
during the fifteen days prior to and the ninety (90) days after any firm
commitment Underwritten Offering pursuant to Section 3 or 4 has become
effective. If the managing underwriter advises the Company in writing that, in
its opinion, no such public sale or distribution should be effected for a
specified period longer than ninety (90) days after such Underwritten Offering
has become effective in order to complete the sale and distribution of
securities included in such registration and the Company gives notice to such
Holder of such advice, such Holders shall not effect any public sale or
distribution or sales pursuant to Rule 144 for a reasonably longer period after
such Underwritten Offering has become effective, but in no event longer than one
hundred twenty (120) days, except as part of such Underwritten Offering.
(ii) The Company agrees, if so required by the managing underwriter, (x)
not to effect any public sale or distribution of its equity securities or
securities convertible into or exchangeable or exercisable for any of such
securities during the fifteen days prior to and the ninety (90) days after any
firm commitment Underwritten Offering pursuant to Section 3 or 4 has become
effective, except as part of such Underwritten Offering and except pursuant to
registrations on Form S-4 and Form S-8 or any successor or similar forms
thereto, and (y) to use its best efforts to cause each holder of its equity
securities or any securities convertible into or exchangeable or exercisable for
any of such securities, in each case purchased from the Company at any time
after the date hereof (other than in a public offering), to agree not to effect
any such public sale or distribution of such securities during such period or,
in either case, if the managing underwriter advises the Company in writing that
in its opinion no such public sale or distribution should be effected for a
specified period longer than ninety (90) days after such Underwritten Offering
has become effective in order to complete the sale and distribution of
securities included in such registration, during a reasonably longer period
after such Underwritten Offering but in no event longer than one hundred twenty
(120) days, except as part of such Underwritten Offering.
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SECTION 7. REGISTRATION EXPENSES.
The Company will pay all reasonable registration expenses in connection
with any registration pursuant to Section 3 or 4 of this Agreement, including
without limitation all registration and filing fees, fees with respect to
filings required to be made with the National Association of Securities Dealers,
fees and expenses of compliance with securities or blue sky laws, printing
expenses, and fees and expenses of counsel for the Company and of the
independent public accountants of the Company (including the expenses of any
'comfort' letters or update thereof required by or incident to the foregoing) in
connection with such registration, except that the following expenses relating
to the Registrable Securities shall not be borne by the Company: underwriting
discounts and commissions, underwriting expenses and transfer taxes, if any
(other than discounts, commissions, expenses and transfer taxes relating to
securities offered and sold by the Company), cost of liability insurance (except
to the extent carried by the Company on its own behalf), and fees and expenses
of any separate counsel or accountant or other agent retained by any Holder with
respect to the sale of Registrable Securities.
SECTION 8. REGISTRATION PROCEDURES.
Whenever the Company seeks to effect the registration of any shares of
Registrable Securities under the Securities Act as provided in Sections 3 and 4,
the Company agrees it will as expeditiously as possible, subject to the terms
and conditions of such sections (including without limitation the Company's
right to terminate or delay a registration pursuant to Sections 3 and 4):
(a) prepare and file with the Commission the requisite Registration
Statement to effect such registration, use its best efforts to cause such
Registration Statement to become effective and promptly notify each Holder
of securities covered by such Registration Statement and any managing
underwriter of the effectiveness thereof;
(b) prepare and file with the Commission such amendments and
supplements to such Registration Statement and the prospectus used in
connection therewith as may be necessary to keep such Registration
Statement effective, notify each Holder of securities covered by such
Registration Statement and any managing underwriter as promptly as
practicable of any request by the Commission for amendments or supplements
to such Registration Statement or related Prospectus or for additional
information and comply with the provisions of the Securities Act with
respect to the disposition of all securities covered by such Registration
Statement until the earlier of such time as all of such securities have
been disposed of in accordance with the intended methods of disposition by
the seller or sellers thereof set forth in such Registration Statement, but
for no longer than 90 days subsequent to the effective date of such
registration; provided that if less than all the securities covered by the
Registration Statement are withdrawn from registration after the expiration
of such period, the securities so withdrawn shall be allocated pro rata
among the Holders thereof on the basis of the percentage of Registrable
Securities held by them which were included in such registration;
(c) furnish to each seller of shares covered by such Registration
Statement such number of conformed copies of such Registration Statement
and of each such amendment and supplement thereto (in each case including
all exhibits), such number of copies of the Prospectus contained in such
Registration Statement (including each preliminary prospectus and any
summary prospectus) and any other Prospectus filed under Rule 424 under the
Securities Act, in conformity with the requirements of the Securities Act,
and such other documents as such seller or such Holder may reasonably
request;
(d) use its best efforts to register or qualify all shares covered by
such Registration Statement under such other securities or blue sky laws of
such jurisdictions as each seller thereof shall reasonably request, to keep
such registration or qualification in effect for so long as such
Registration Statement remains in effect, and take any other action which
may be reasonably necessary or advisable to enable such seller to
consummate the disposition in such jurisdictions of the securities owned by
such seller, except that the Company shall not for any such purpose be
required to (i) qualify generally to do business as a foreign corporation
in any jurisdiction wherein it would not but for the requirements of this
Section 8(d) be obligated to be so qualified, (ii) subject itself to
taxation in any such jurisdiction or (iii) consent to general service of
process in any such jurisdiction;
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(e) use its best efforts to cause all shares covered by such
Registration Statement to be registered with or approved by such other
governmental agencies or authorities as may be necessary to enable the
seller or sellers thereof to consummate the disposition of such shares;
(f) enter into customary agreements (including, in the case of an
Underwritten Offering, an underwriting agreement in customary form) and
take all other action in connection therewith in order to expedite or
facilitate the distribution of the Registrable Securities included in such
Registration Statement, and, in the case of an Underwritten Offering, make
representations and warranties to the Holders of Registrable Securities
covered by such Registration Statement and to the underwriters in such form
and scope as are customarily made by issuers to underwriters in primary
underwritten offerings and confirm the same to the extent customary if and
when requested;
(g) make available for inspection during normal business hours by a
representative of the Holders of Registrable Securities covered by such
Registration Statement and any managing underwriter, and any attorney or
accountant retained by such Holders or managing underwriter, all financial
and other records, pertinent corporate documents and properties of the
Company, and cause the officers, directors and employees of the Company to
supply all information reasonably requested by such representative,
managing underwriter, attorney or accountant in connection with such
Registration Statement;
(h) in the case of an Underwritten Offering by the Company, use its
best efforts to furnish to each Holder of Registrable Securities covered by
such Registration Statement and the underwriters a signed counterpart,
addressed to such Holder and the underwriters, in each case in identical
form, of
(i) an opinion of counsel for the Company, dated the effective date
of such Registration Statement and dated the date of each closing
under the underwriting agreement, reasonably satisfactory in form and
substance to such Holder, and
(ii) a 'comfort' letter, dated the effective date of such
Registration Statement and the date of each closing under the
underwriting agreement, signed by the independent public accountants
who have certified the Company's financial statements included in such
Registration Statement, covering substantially the same matters with
respect to such Registration Statement (and the Prospectus included
therein) and with respect to events subsequent to the date of such
financial statements, as are customarily covered in accountants'
letters delivered to underwriters in underwritten public offerings of
securities and such other financial matters as such Holder and the
underwriters may reasonably request;
(i) immediately notify each Holder of Registrable Securities covered
by such Registration Statement and any managing underwriter, at any time
when a Prospectus relating thereto is required to be delivered under the
Securities Act, of the happening of any event as a result of which the
Prospectus included in such Registration Statement, as then in effect,
includes an untrue statement of a material fact or omits to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading in the light of the circumstances under
which they were made, and at the request of any such Holder or any such
managing underwriter, promptly prepare and furnish to such Holder or
managing underwriter a reasonable number of copies of a supplement to or an
amendment of such Prospectus as may be necessary so that, as thereafter
delivered to the purchasers of such securities, such Prospectus shall not
include an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements
therein not misleading in the light of the circumstances under which they
were made;
(j) notify each Holder of Registrable Securities covered by such
Registration Statement and any managing underwriter as promptly as
practicable after becoming aware of the issuance by the Commission of any
stop order suspending the effectiveness of such Registration Statement or
the initiation of any proceedings for that purpose or the receipt by the
Company of any notification with respect to the suspension of qualification
of any Registrable Securities for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose and make all
reasonable efforts to obtain as promptly as practicable the withdrawal of
any order or other action suspending the qualification of the Registrable
Securities for sale in any jurisdiction;
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(k) (i) otherwise use its best efforts to comply with all applicable
rules and regulations of the Commission, (ii) make available to its
security holders, as soon as reasonably practicable, an earnings statement
covering the period of at least twelve months, but not more than eighteen
months, beginning with the first full calendar month after the effective
date of such Registration Statement, which earnings statement shall satisfy
the provisions of Section 11(a) of the Securities Act, and (iii) not file
any Registration Statement or Prospectus or amendment or supplement to such
Registration Statement or Prospectus to which any such Holder of
Registrable Securities covered by any Registration Statement shall have
reasonably objected on the grounds that such amendment or supplement does
not comply in all material respects with the requirements of the Securities
Act, such Holder having been furnished with a copy thereof at least two
Business Days prior to the filing thereof;
(l) provide a transfer agent and registrar for all shares of Common
Stock covered by such Registration Statement not later than the effective
date of such Registration Statement; and
(m) file all reports required to be filed by it under the Exchange Act
and the rules and regulations adopted by the Commission thereunder in a
timely manner and, to the extent the Company's obligation to file such
reports pursuant to Section 15(d) of the Exchange Act expires prior to the
expiration of the Effectiveness Period, the Company shall register the
Registrable Securities under the Exchange Act and shall maintain such
registration through the Effectiveness Period.
(n) use its best efforts to list all shares of Common Stock covered by
such Registration Statement on a securities exchange or national market
system.
The Company may require each holder of Registrable Securities as to which
any registration is being effected to furnish the Company with such information
and undertakings regarding such Holder and the distribution of such securities
as the Company may from time to time reasonably request in writing.
Each Holder of Registrable Securities covered by any Registration Statement
agrees (i) that upon receipt of any notice from the Company of the happening of
any event of the kind described in paragraph (i) of this Section 8, such Holder
will forthwith discontinue such Holder's disposition of Registrable Securities
pursuant to the Registration Statement relating to such Registrable Securities
until such Holder's receipt of the copies of the supplemented or amended
Prospectus contemplated by paragraph (i) of this Section 8 and, if so directed
by the Company, will deliver to the Company (at the Company's expense) all
copies, other than permanent file copies (which shall be conspicuously marked as
such), then in such Holder's possession of the Prospectus relating to such
Registrable Securities current at the time of receipt of such notice and (ii)
that it will immediately notify the Company, at any time when a Prospectus
relating to the registration of such shares is required to be delivered under
the Securities Act, of the happening of any event as a result of which
information previously furnished by such Holder to the Company in writing for
inclusion in such prospectus contains an untrue statement of a material fact or
omits to state any material fact required to be stated therein or necessary to
make the statements therein not misleading in the light of the circumstances
under which they were made.
If, at any time in the good faith reasonable judgment of the Company's
Board of Directors, the disposition of Registrable Securities would require the
premature disclosure of material non-public information which may reasonably be
expected to have an adverse effect on the Company, then the Company shall not be
required to maintain the effectiveness of or amend or supplement the
Registration Statement for a period (a 'Disclosure Delay Period') expiring upon
the earlier to occur of (i) the date on which such material information is
disclosed to the public or ceases to be material or (ii) up to thirty (30)
calendar days after the date on which the Company provides a notice to the
Investors stating that the failure to disclose such non-public information
causes the Prospectus included in the Registration Statement, as then in effect,
to include an untrue statement of a material fact or to omit to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading. For the avoidance of doubt, in no event shall a Disclosure Delay
Period exceed thirty (30) calendar days.
The Company will give prompt written notice to the Holders of each
Disclosure Delay Period. Advance notice of the Disclosure Delay Period shall be
given to the extent practicable. If practicable, such notice shall estimate the
duration of such Disclosure Delay Period. Each Holder, by accepting Registrable
Securities, agrees that, upon receipt of such notice prior to the Holder's
disposition of all such Registrable Securities, such Holder
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will forthwith discontinue disposition of such Registrable Securities pursuant
to the Registration Statement, and will not deliver any Prospectus forming a
part thereof in connection with any sale of such Registrable Securities until
the expiration of such Disclosure Delay Period. Notwithstanding anything herein
to the contrary, there shall not be more than an aggregate of sixty (60)
calendar days in any twelve (12) month period during which the Company is in a
Disclosure Delay Period nor more than an aggregate of thirty (30) calendar days
in any ninety (90) calendar day period during which the Company is in a
Disclosure Delay Period.
SECTION 8. INDEMNIFICATION.
(a) In connection with the filing of any Shelf Registration Statement, the
Company shall, indemnify and hold harmless the Placement Agent, each Holder,
each underwriter who participates in an offering of the Registrable Securities,
each Person, if any, who controls any of such parties within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act and each of
their respective partners, directors, officers, employees and agents, as
follows:
(i) from and against any and all loss, liability, claim, damage and
expense whatsoever, joint or several, as incurred, arising out of any
untrue statement or alleged untrue statement of a material fact contained
in any Shelf Registration Statement (or any amendment thereto), covering
Registrable Securities including all documents incorporated therein by
reference, or the omission or alleged omission therefrom of a material fact
required to be stated therein or necessary to make the statements therein
not misleading or arising out of any untrue statement or alleged untrue
statement of a material fact contained in any Prospectus (or any amendment
or supplement thereto) or the omission or alleged omission therefrom of a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
(ii) from and against any and all loss, liability, claim, damage and
expense whatsoever, joint or several, as incurred, to the extent of the
aggregate amount paid in settlement of any litigation, or any investigation
or proceeding by any court or governmental agency or body, commenced or
threatened, or of any claim whatsoever based upon any such untrue statement
or omission, or any such alleged untrue statement or omission, if such
settlement is effected with the prior written consent of the Company; and
(iii) from and against any and all expenses whatsoever, as incurred
(including reasonable fees and disbursements of counsel chosen by such
Holder, or any underwriter (except to the extent otherwise expressly
provided in Section 8(c) hereof)), reasonably incurred in investigating,
preparing or defending against any litigation, or any investigation or
proceeding by any court or governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission, to the extent
that any such expense is not paid under subparagraph (i) or (ii) of this
Section 8(a);
provided, however, that (i) this indemnity does not apply to any loss,
liability, claim, damage or expense to the extent arising out of an untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with information furnished in writing to the Company by
such Holder or any underwriter with respect to such Holder or any underwriter,
as the case may be, expressly for use in a Shelf Registration Statement (or any
amendment thereto) or any Prospectus (or any amendment or supplement thereto)
and (ii) the Company shall not be liable to any such Holder, any underwriter or
controlling person, with respect to any untrue statement or alleged untrue
statement or omission or alleged omission in any preliminary Prospectus to the
extent that any such loss, liability, claim, damage or expense of any Holder,
any underwriter or controlling person results from the fact that such Holder any
underwriter sold Registrable Securities to a person to whom there was not sent
or given, at or prior to the written confirmation of such sale, a copy of the
final Prospectus as then amended or supplemented if the Company had previously
furnished copies thereof to such Holder or underwriter and the loss, liability,
claim, damage or expense of such Holder or underwriter or controlling person
results from an untrue statement or omission of a material fact contained in the
preliminary Prospectus which was corrected in the final Prospectus. Any amounts
advanced by the Company to an indemnified party pursuant to this Section 8 as a
result of such losses shall be returned to the Company if it shall be finally
determined by such a court in a judgment not subject to appeal or final review
that such indemnified party was not entitled to indemnification by the Company.
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(b) Each Holder agrees, severally and not jointly, to indemnify and hold
harmless the Company any underwriter and the other selling Holders and each of
their respective directors, officers (including each officer of the Company who
signed the Shelf Registration Statement), employees and agents and each Person,
if any, who controls the Company, any underwriter or any other selling Holder
within the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act, from and against any and all loss, liability, claim, damage and
expense whatsoever described in the indemnity contained in Section 8(a) hereof,
as incurred, but only with respect to untrue statements or omissions, or alleged
untrue statements or omissions, made in a Shelf Registration Statement (or any
amendment thereto) or any Prospectus (or any amendment or supplement thereto) in
reliance upon and in conformity with written information furnished to the
Company by such selling Holder with respect to such Holder expressly for use in
such Shelf Registration Statement (or any amendment thereto), or any such
Prospectus (or any amendment or supplement thereto); provided, however, that no
such Holder shall be liable for any claims hereunder in excess of the amount of
net proceeds received by such Holder from the sale of Registrable Securities
pursuant to such Shelf Registration Statement.
(c) Each indemnified party shall give prompt notice to each indemnifying
party of any action commenced against it in respect of which indemnity may be
sought hereunder, enclosing a copy of all papers properly served on such
indemnified party, but failure to so notify an indemnifying party shall not
relieve such indemnifying party from any liability which it may have under this
Section 8, except to the extent that it is materially prejudiced by such
failure. An indemnifying party may participate at its own expense in the defense
of such action, or, if it so elects within a reasonable time after receipt of
such notice, assume the defense of any suit brought to enforce any such claim;
but if it so elects to assume the defense, such defense shall be conducted by
counsel chosen by it and approved by the indemnified party or parties which
approval shall not be unreasonably withheld. In the event that an indemnifying
party elects to assume the defense of any such suit and retain such counsel, the
indemnified party or parties shall bear the fees and expenses of any additional
counsel thereafter retained by such indemnified party or parties; provided,
however, that the indemnified party or parties shall have the right to employ
counsel (in addition to local counsel) to represent the indemnified party or
parties who may be subject to liability arising out of any action in respect of
which indemnity may be sought against the indemnifying party if, in the
reasonable judgment of counsel for the indemnified party or parties, there may
be legal defenses available to such indemnified party or parties which are
different from or in addition to those available to the indemnifying party, in
which event the fees and expenses of appropriate separate counsel shall be borne
by the indemnifying party. In no event shall the indemnifying parties be liable
for the fees and expenses of more than one counsel (in addition to local
counsel), separate from its own counsel, for all indemnified parties in
connection with any one action or separate but similar or related actions in the
same jurisdiction arising out of the same general allegations or circumstances.
No indemnifying party shall, without the prior written consent of the
indemnified parties, settle or compromise or consent to the entry of any
judgment with respect to any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or any claim
whatsoever in respect of which indemnification or contribution could be sought
under this Section 8 (whether or not the indemnified parties are actual or
potential parties thereto), unless such settlement, compromise or consent (i)
includes an unconditional written release in form and substance satisfactory to
the indemnified parties of each indemnified party from all liability arising out
of such litigation, investigation, proceeding or claim 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 any indemnified party.
(d) In order to provide for just and equitable contribution in
circumstances under which any of the indemnity provisions set forth in this
Section 8 is for any reason held to be unavailable to the indemnified parties
although applicable in accordance with its terms, the Company, and the Holders
shall contribute to the aggregate losses, liabilities, claims, damages and
expenses of the nature contemplated by such indemnity agreement incurred by the
Company, and the Holders, as incurred; provided that no Person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any Person that was not
guilty of such fraudulent misrepresentation. As between the Company and the
Holders, such parties shall contribute to such aggregate losses, liabilities,
claims, damages and expenses of the nature contemplated by such indemnity
agreement in such proportion as shall be appropriate to reflect the relative
fault of the Company on the one hand, and the Holders, on the other hand, with
respect to the statements or omissions which resulted in such loss, liability,
claim, damage or expense, or action in respect thereof, as well as any other
relevant equitable considerations. The relative fault of the Company on the one
hand, and of the Holders, on the other hand, shall be
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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 Trust, on
the one hand, or by or on behalf of the Holders, on the other, and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission. The Company and the Holders of the
Registrable Securities agree that it would not be just and equitable if
contribution pursuant to this Section 8 were to be determined by pro rata
allocation or by any other method of allocation that does not take into account
the relevant equitable considerations. For purposes of this Section 8, each
Affiliate of a Holder, and each director, officer, employee, agent and Person,
if any, who controls a Holder or such Affiliate within the meaning of Section 15
of the Securities Act or Section 20 of the Exchange Act shall have the same
rights to contribution as such Holder, and each director of each of the Company,
each officer of each of the Company who signed the Shelf Registration Statement,
and each Person, if any, who controls each of the Company within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act shall have
the same rights to contribution as each of the Company or the Trust.
SECTION 9. TERMINATION OF RIGHTS.
All rights of any particular Holder under this Agreement shall terminate at
5:00 p.m., Eastern Time, on the date two (2) years after the Shelf Registration
Statement is declared effective by the Commission ('Termination Date'), provided
that the provisions of Section 8 hereof shall survive any termination of this
Agreement.
SECTION 10. MISCELLANEOUS.
(a) GOVERNING LAW. This Agreement shall be governed by and construed under
the internal substantive laws of the State of Delaware, without regard to its
conflicts of laws principles
(b) SUCCESSORS AND ASSIGNS. The provisions hereof shall inure to the
benefit of, and be binding upon, the parties and their respective successors,
assigns, heirs, executors and administrators. The rights and obligations of any
Investor hereunder may be assigned by such Investor to any Person acquiring
Registrable Securities from the Investor contemporaneously with such assignment,
provided that the rights so assumed shall apply only to the Registrable
Securities so acquired. The rights and obligations of the Company hereunder may
not be assigned by it without the prior written consent of the Investors.
(c) ENTIRE AGREEMENT. This Agreement and the Purchase Agreement constitute
the full and entire understanding and agreement among the parties with regard to
the subject matter hereof and thereof and no party shall be liable or bound to
any other party in any manner by any representations, warranties, covenants or
agreements except as specifically set forth herein or therein. Nothing in this
Agreement, express or implied, is intended to confer upon any party, other than
the parties hereto and their respective successors and assigns, any rights,
remedies, obligations or liabilities under or by reason of this Agreement,
except as expressly provided herein.
(d) SEPARABILITY. Any invalidity, illegality or limitation of the
enforceability of any one or more of the provisions of this Agreement, or any
part thereof, shall in no way affect or impair the validity, legality or
enforceability of the other provisions of this Agreement. In case any provision
of this Agreement shall be invalid, illegal or unenforceable, it shall, to the
extent practicable, be modified so as to make it valid, legal and enforceable
and to retain as nearly as practicable the intent of the parties, and the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
(e) AMENDMENT AND WAIVER. Any provision of this Agreement may be amended
and the observance of any provision of this Agreement may be waived (either
generally or in a particular instance, either retroactively or prospectively,
and either for a specified period of time or indefinitely), with the written
consent of the Company and the Holders of not less than a majority of the
Registrable Securities; provided, however, that no such amendment or waiver
shall reduce the aforesaid percentage of Registrable Securities the Holders of
which are required to consent to any waiver or supplemental agreement without
the consent of the Holders of all outstanding Registrable Securities. Any
amendment or waiver effected in accordance with this paragraph shall be binding
upon the Company and each Holder under this Agreement. Upon the effectuation of
each such amendment or waiver, the Company shall promptly give written notice
thereof to the Holders who have not previously consented thereto in writing.
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(f) DELAYS OR OMISSIONS. No delay or omission to exercise any right, power
or remedy accruing to any Holder, any subsequent Holder of any Registrable
Securities or the Company upon any breach, default or noncompliance under this
Agreement shall impair any such right, power or remedy, nor shall it be
construed to be a waiver of any such breach, default or noncompliance, or any
acquiescence therein, or of any similar breach, default or noncompliance
thereafter occurring. It is further agreed that any waiver, permit, consent or
approval of any kind or character on the Holders' or the Company's part of any
breach, default or noncompliance under this Agreement or any waiver on the
Holders' or the Company's part of any provisions or conditions of this Agreement
must be in writing and shall be effective only to the extent specifically set
forth in such writing, and that all remedies afforded to the Holders and the
Company under this Agreement shall be cumulative and not alternative.
(g) NOTICES, ETC. All notices, demands and other communications provided
for or permitted hereunder shall be made in writing by hand-delivery, registered
first-class mail, telex, telecopier, or air courier guaranteeing overnight
delivery:
(i) if to any Holder, initially at the address set forth below its
name on the Holder's signature page to this Agreement, and thereafter at
such other address, notice of which is given in accordance with this
Section 8(g); and
(ii) if to the Company, initially at 000 Xxx Xxxx Xxxxxx, Xxx
Xxxxxxxxx, Xxxxxxxxxx 00000, Attention: President, and thereafter at such
other address notice of which is given in accordance with this Section
8(g).
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; five Business
Days after being sent by certified mail, return receipt requested, if mailed;
when answered back, if telexed; when receipt is acknowledged, if telecopied; and
on the next Business Day if timely delivered to an air courier guaranteeing
overnight delivery.
(h) TITLES AND SUBTITLES. The titles of the sections and subsections of
this Agreement are for convenience of reference only and are not to be
considered in construing this Agreement.
(i) COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
UCBH HOLDINGS, INC.
By: /s/ Xxxxx X. Xx
------------------------
Name: Xxxxx X. Xx
Title: President and Chief Executive Officer
Address: 000 Xxx Xxxx Xxxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
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Investor Signature Page to the Common Stock Registration Rights Agreement
______________________________________
Name of Investor
By: ______________________________________
Name:
Title:
Address:______________________________
______________________________________
______________________________________
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