VOTING AGREEMENT
THIS
VOTING AGREEMENT (this “Voting Agreement”) is made and entered into as of March
5, 2008, between UCBH Holdings, Inc., a Delaware corporation (“Company”), and
China Minsheng Banking Corp., Ltd. (“Stockholder”).
RECITALS
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A.
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Company
and Stockholder are the parties to an Investment Agreement, dated October
7, 2007 (the “Investment Agreement”), pursuant to which, among other
things, (i) Company has agreed to sell certain common stock of the
Company (the “Issued Shares”) to Stockholder, and Stockholder has agreed
to purchase the Issued Shares from Company and (ii) the Stockholder may
acquire New Shares (as defined in Section 1(b)) (such New Shares,
together with the Issued Shares, the
“Shares”);
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B.
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Company
and Stockholder are the parties to an Investor’s Rights and Standstill
Agreement dated as of October 7, 2007 (the “Investor’s Rights Agreement”),
which provides for, among other things, certain rights of Stockholder and
certain lock-up and standstill restrictions with respect to common stock
purchased by Stockholder pursuant to the Investment
Agreement.
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C.
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Pursuant
to the Investors’ Rights Agreement, Company and Stockholder wish to enter
into this Voting Agreement to provide for the voting of the Shares, on the
terms and subject to the conditions set forth in this Voting
Agreement.
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AGREEMENT
In
consideration of the above recitals and the promises set forth in this Voting
Agreement, the parties agree as follows:
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1.
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Shares. Stockholder
agrees that the terms and conditions of this Voting Agreement shall apply
to, and Stockholder agrees to be bound by the terms and conditions of this
Voting Agreement with respect to Stockholder’s interest in (a) the Issued
Shares; and (b) any and all shares of capital stock of Company that (i)
Stockholder purchases or acquires, or (ii) with respect to which
Stockholder otherwise acquires beneficial ownership (the latter to the
fullest extent within the control of the Stockholder) after the date first
written above and prior to the termination of this Voting Agreement
pursuant to Section 6 (“New Shares”). Stockholder shall retain
and shall not transfer or allow the transfer by operation of law of any
interest in its voting rights in the
Shares.
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2.
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Agreement to Vote
Shares. At every meeting of the stockholders of Company
(or holders of any series or class of stock of Company) and on every
action or approval by written consent of the stockholders of Company (or
holders of any series or class of stock of Company) if such written
consent is permitted by Company’s certificate of incorporation or bylaws,
Stockholder agrees to vote the Shares (a) in favor of persons nominated
and recommended by the board of directors of Company (the “Board”) as
directors of the Board, including without limiting the generality of the
foregoing persons designated by Stockholder for nomination by the Board
pursuant to the Investor’s Rights Agreement, (b) against any person
nominated for election as a director by any other person, except for
persons designated by Stockholder for
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nomination by the Board pursuant to the Investor’s Rights
Agreement, and (c) as otherwise directed by the Board (including, without
limiting the generality of the foregoing, with respect to any shareholder
proposal or proxy solicitation relating directly or indirectly to any change in
control over the Company), so long as such vote (i) is not adverse to
Stockholder’s rights under the Investor Rights Agreement or the Investment
Agreement, (ii) is not adverse to Stockholder’s rights as a stockholder of
Issuer or (iii) does not have a disproportionately adverse impact on its
interests.
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3.
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Stockholder Proposals and Proxy
Contests Involving Control. Except as agreed in writing
by the Board, Stockholder shall not initiate or in any way participate in
(i) any shareholder proposal or (ii) any proxy solicitation, relating
directly or indirectly to any change of control (as defined in Section
1.1(i) of the Investor’s Rights Agreement) over the
Company.
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4.
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Legend on Stock
Certificate. Each certificate representing any Shares
shall for as long as this Voting Agreement is effective bear a legend
reading substantially as follows:
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“THE
SHARES EVIDENCED HEREBY ARE SUBJECT TO A VOTING AGREEMENT (A COPY OF SUCH MAY BE
OBTAINED UPON WRITTEN REQUEST FROM THE COMPANY), AND BY ACCEPTING ANY INTEREST
IN SUCH SHARES THE PERSON ACCEPTING SUCH INTEREST SHALL BE DEEMED TO AGREE TO
AND SHALL BECOME BOUND BY ALL THE PROVISIONS OF SAID VOTING
AGREEMENT.”
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5.
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Representations and Warranties
of Stockholder. Stockholder represents and warrants to
Company as follows:
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5.1
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Stockholder
is the sole beneficial and record owner and holder of the Issued Shares
and will be the sole and beneficial owner of any New Shares, if acquired
after the date hereof, at the date of this
Voting Agreement and at all times through the Expiration Date, and the
Shares will be free and clear of any third party voting rights of any
nature.
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5.2
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Stockholder
has full power, authority and legal capacity to make, enter into and carry
out the terms of this Voting Agreement and has duly executed and delivered
this Voting Agreement. This Voting Agreement constitutes a
valid and binding obligation of
Stockholder.
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5.3
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Stockholder
represents that Stockholder beneficially owns the number of shares
indicated on Schedule 1
attached hereto, and has sole and unrestricted voting power with respect
to such Shares.
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6.
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Termination. This
Voting Agreement will terminate and will have no further force or effect
as of the earliest of (i) the date upon which the Stockholder no longer
Beneficially Owns (as defined in the Investment Agreement) any Shares,
(ii) the expiry of the Standstill Period (as defined in the Investor’s
Rights Agreement), whether before or after the termination of the
Investment Agreement or the Investor’s Rights Agreement, or
(iii) termination of the Investment Agreement by Stockholder pursuant
to Sections 7.01(c) or (d)
thereof.
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7.
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No Liability for Votes
Made. Stockholder acknowledges and agrees that Company
and its respective directors and officers shall not be liable to
Stockholder with respect to or in connection with any and all voting
decision(s) made during the term of this Voting
Agreement.
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8.
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Miscellaneous.
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8.1
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Severability. If
any term, provision, covenant or restriction of this Voting Agreement is
held by a court of competent jurisdiction to be invalid, void or
unenforceable, then the remainder of the
terms, provisions, covenants and restrictions of this Voting Agreement
will remain in full force and effect and will in no way be affected,
impaired or invalidated.
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8.2
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Binding Effect and
Assignment. This Voting Agreement and all of the
provisions hereof will be binding upon and inure to the benefit of the
parties hereto and their respective successors and permitted
assigns. Neither this Voting Agreement nor any of the rights,
interests or obligations of the parties hereto may be assigned by either
of the parties without prior written consent of the other, except that the
parties may assign their respective rights and obligations under this
Voting Agreement to an affiliate of such party without the written consent
of the other party.
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8.3
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Amendments and
Modification. This Voting Agreement may not be modified,
amended, altered or supplemented except upon the execution and delivery of
a written agreement executed by the parties to this Voting
Agreement.
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8.4
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Specific Performance;
Injunctive Relief. Stockholder acknowledges that Company
will be irreparably harmed and that there will be no adequate remedy at
law for a violation of any of the covenants or agreements of Stockholder
contained in this Voting Agreement. Therefore, it is agreed
that, in addition to any other remedies that may be available to Company
upon any such violation, notwithstanding anything to the contrary, Company
will have the right to enforce such covenants and agreements by specific
performance, injunctive relief or by any other means available at law or
in equity, and for that purpose Stockholder irrevocably submits to the
non-exclusive jurisdiction of the state and federal courts located in San
Francisco, California USA and irrevocably waives any objection to venue
(including hereby waiving any argument of forum non conveniens or
principles of similar effect) in such
courts.
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| 8.5 |
Governing
Law. This Voting Agreement will be governed by,
construed and enforced in accordance with, the internal laws of the State
of California as such laws are applied to contracts entered into and to be
performed entirely within the State of California. Any dispute
arising out of or relating to this Voting Agreement shall be resolved in
the manner set forth in Section 8.07 of the Investment
Agreement. Accordingly, the parties hereto agree that this
Section 8.5 shall be governed by and interpreted in accordance with the
Federal Arbitration Act of the United States, 9 U.S.C. §§ 1 et
seq. Any dispute, claim, controversy or difference regarding
the interpretation or validity or performance of, or otherwise arising out
of or relating to, this
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Voting
Agreement (“Dispute”), shall be finally and conclusively decided by
binding arbitration in accordance with the Rules of Arbitration of the
International Chamber of Commerce (“ICC”) by an Arbitral Tribunal
consisting of three arbitrators appointed in accordance with those
Rules. The language of the arbitration shall be English and
Mandarin Chinese. The venue for the hearings of the arbitration
shall be Hong Kong. The parties shall bear in equal shares any
fees and expenses of the Arbitral Tribunal and of the ICC; provided that
the Arbitral Tribunal shall have the authority to award, as part of the
Arbitral Tribunal’s decision, to the prevailing party its costs and
expenses of the arbitration proceeding, including reasonable attorneys’
and experts’ fees. The Arbitral Tribunal shall render its award
based on the explicit terms of this Voting Agreement; and in instances
where it is silent, on the basis of strict principles consistent with the
terms of this Voting Agreement. The Arbitral Tribunal shall be
bound by strict rules of law in making its decision, and may not pronounce
judgment on equitable principles or the basis of ex aqueo et
xxxx. The Arbitral Tribunal shall have the authority to include
in its award a decision binding upon the parties enjoining them to take or
refrain from taking specific action with respect to the Dispute or
declaring their rights, responsibilities and liabilities as to the
Dispute. The Arbitral Tribunal shall state the reasons for its
decision in writing in the award it issues. Judgment on the
award rendered by the Arbitral Tribunal may be entered by any court having
jurisdiction. Each of the parties hereby irrevocably submits to
the personal jurisdiction of, and irrevocably waives objection to the
laying of venue (including a waiver of any argument of forum non
conveniens or other principles of like effect) in, the state and federal
courts located in San Francisco, California, USA and/or the courts of Hong
Kong, for the purposes of any action commenced in aid of an arbitration
hereunder, or for entry of judgment upon the Arbitral Tribunal’s
award. Each of the parties consents that all service of process
may be made by delivery of the summons and complaint by certified or
registered mail, return receipt requested, or by messenger, directed to it
at its address for notices set forth in Section 8.11 hereof, and that
service so made shall be deemed to have been made as of the date of the
receipt indicated in the certification, signed and returned postal
receipt, or other proof of service applicable to the method of service
employed.
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8.6
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Entire
Agreement. This Voting Agreement contains the entire
understanding of the parties in respect of the subject matter hereof, and
supersede all prior negotiations and understandings between the parties
with respect to such subject
matter.
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8.7
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Counterparts. This
Voting Agreement may be executed in several counterparts (including by
facsimile), each of which will be an original, but all of which together
will constitute one and the same
agreement.
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8.8
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Effect of
Headings. The section headings contained in this Voting
Agreement are for convenience only and will not affect the construction or
interpretation of this Voting
Agreement.
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| 8.9 | Delays or Omissions. No waiver by either party of any right, power, default, misrepresentation or breach under this Voting Agreement, whether intentional | |
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or
not, will be deemed to extend to any prior or subsequent right, power,
default, misrepresentation or breach under this Voting
Agreement. Any waiver, permit, consent or approval of any kind
or character on the part of either party of any breach or default under
this Voting Agreement, or any waiver on the part of either party of any
provisions or conditions of this Voting Agreement, must be in writing and
will be effective only to the extent specifically set forth in such
writing.
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8.10
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Enforcement Fees and
Costs. In the event legal action is taken or commenced
by Company against Stockholder for the enforcement of any of the
covenants, terms or conditions of this Voting Agreement, the losing party
will be liable for all reasonable attorney’s fees and costs incurred by
the prevailing party in connection with such legal
action.
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8.11
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Notices. All
notices or other communications required or permitted hereunder shall be
in writing and shall be deemed effectively given: (i) upon personal
delivery to the party to be notified; (ii) when sent by confirmed
electronic mail, with verification of receipt, or facsimile, in either
case if sent during normal business hours of the recipient; if not, then
on the next business day; (iii) three days after having been sent by
registered or certified mail, return receipt requested, postage prepaid;
or (iv) one day after deposit with a nationally recognized overnight
courier, specifying next day delivery, with written verification of
receipt. All communications shall be sent to a party at such
party’s address set forth on the signature page hereof or at such other
address, electronic or otherwise, as such party shall designate by ten
days’ advance written notice to the other
party.
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8.12
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Representation. Stockholder
represents and acknowledges that Stockholder has had the opportunity to
seek and obtain the advice of legal counsel with respect to this Voting
Agreement.
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8.13
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Language. The
parties confirm and agree that both the English and Chinese versions of
this Voting Agreement shall have the same effect and be controlling in all
respects and that neither is prepared for reference or accommodation
purposes.
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[THE
REMAINDER OF THIS PAGE IS BLANK. SIGNATURE PAGE
FOLLOWS.]
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UCBH
Holdings, Inc.
By:_________________________________
Name:_______________________________
Title:________________________________
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Address:
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000
Xxxxxxxxxx Xxxxxx
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| Xxx Xxxxxxxxx, XX 00000 |
E-mail:_______________________________
Fax:_________________________________
By:_________________________________
Name:_______________________________
Title:________________________________
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Address:
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Xx.
0 Xxxxxxxxxxxx Xxxxxx
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| Xxxxxxx Xxxxxxxx | |
| Xxxxxxx, 000000 Xxxxx |
E-mail:_______________________________
Fax:_________________________________
Schedule
1
Number of Shares owned by
Stockholder
