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Exhibit 4.12
REGISTRATION RIGHTS, LOCK UP
AND STANDSTILL AGREEMENT
This Registration Rights, Lock
Up And Standstill Agreement (this "Agreement") is made and
entered into as of January 10, 2007, by and among UCBH
Holdings, Inc., a Delaware corporation registered under the Bank
Holding Company Act of 1956, as amended ("UCBH"), CAB International
Holding Limited, a British Virgin Islands company (the "Company")
and Dr. Paul Shi H. Huang, the sole holder of all of the
issued and outstanding capital stock of the Company
("Dr. Huang").
RECITALS
Whereas , UCBH, UCB Merger
II, LLC, a Delaware limited liability company and a wholly owned
subsidiary of UCBH ("Buyer"), the Company, CAB Holding LLC, a
Delaware limited liability company and a wholly owned subsidiary of
the Company ("CAB LLC") and Dr. Huang have entered into that
certain Agreement and Plan of Merger, dated as of even date
herewith (the "Merger Agreement");
Whereas , pursuant to the
terms of the Merger Agreement, CAB LLC will merge with and into
Buyer (the "Merger"), Buyer will be the surviving limited liability
company and the Company, sole member of CAB LLC, will receive
Merger consideration comprised of cash and newly issued shares of
common stock of UCBH, par value $0.01 per share (the "Common
Stock"), as a result of the Merger;
Whereas , UCBH desires to
provide the registration rights set forth in this Agreement with
respect to the Registrable Securities (as defined below) in order
to induce the Company, CAB LLC and Dr. Huang to enter into the
Merger Agreement, and to agree to certain "lock up" and
"standstill" restrictions set forth in this Agreement with respect
to the Registrable Securities; and
Whereas , in order to
induce UCBH and Buyer to enter into the Merger Agreement and to
induce UCBH to provide the registration rights set forth in this
Agreement, the Company and Dr. Huang desire to agree to certain
"lock up" and "standstill" restrictions with respect to the
Registrable Securities on the terms and conditions more fully set
forth herein (the Company and Dr. Huang collectively and jointly
and severally are referred to herein as the "Holder").
AGREEMENT
Now , Therefore ,
in consideration of the foregoing and for other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree hereto as follows:
SECTION 1. DEFINITIONS
1.1 Definitions . As used
in this Agreement, the following terms shall have the following
meanings:
(a)
"1934 Act" shall mean the Securities Exchange Act of 1934, as
amended.
(b)
"Act" shall mean the Securities Act of 1933, as amended.
(c)
"Closing Date" shall have the same meaning set forth in the Merger
Agreement.
(d)
"Common Stock" shall have the meaning set forth in the Recitals
above.
(e)
"Form S-3" shall mean Form S-3 promulgated under the Act as in
effect on the date hereof or any registration form under the Act
subsequently adopted by the SEC which permits inclusion or
incorporation of substantial information by reference to other
documents filed by UCBH with the SEC before and after the effective
date of the registration statement on such form.
(f) The
terms "register," "registered," and "registration" refer to a
registration effected by preparing and filing a registration
statement or similar document in compliance with the Act, and the
declaration or ordering of effectiveness (or deemed effectiveness)
of such registration statement or document.
(g)
"Registrable Securities" mean (i) the shares of Common Stock
issued to the Company pursuant to Section 1.5 of the Merger
Agreement, and (ii) any shares of Common Stock issued as a
dividend, stock split or other distribution with respect to or in
exchange for or in replacement of the shares referred to in
Section 1.1(g)(i) above; provided , however ,
that Registrable Securities shall not include any securities
described in Sections 1.1(g)(i) or 1.1(g)(ii) above which
(A) have been sold to the public either pursuant to the Shelf
Registration Statement or pursuant to Rule 144 under the Act
or (B) are subject to any Transfer (as defined in
Section 3.1 of this Agreement) other than as permitted under
Section 3 of this Agreement.
(h)
"Registration Expenses" shall mean the reasonable expenses incident
to performance of or compliance by UCBH with Section 2 of this
Agreement, including (i) all SEC and stock exchange
registration and filing fees, (ii) all fees and expenses of
complying with securities or blue sky laws, (iii) all printing
expenses, (iv) all fees and expenses incurred in connection
with the listing of Registrable Securities on the Nasdaq Global
Select Market and all rating agency fees, and (v) the fees and
disbursements of counsel for UCBH and of its independent public
accountants, including the expenses of any special audits and/or
comfort letters required by or incident to such performance and
compliance, but excluding underwriting discounts, selling
commissions, fees or other compensation payable to placement
agents, fees and expenses of underwriters and/or placement agents
(including legal fees) and transfer taxes, if any.
(i)
"SEC" shall mean the United States Securities and Exchange
Commission.
(j)
"Shelf Registration Statement" shall mean a "shelf" registration
statement on Form S-3 filed by UCBH that covers the resale by the
Company of all Registrable Securities held by the Company at the
time that such registration statement first becomes effective or is
declared by the SEC to be effective under the Act on a delayed or
continuous basis under Rule 415 under the Act, or any similar
rule that may be adopted by the SEC, and all amendments and
supplements to such registration statement, including
post-effective amendments, in each case including the prospectus
contained therein, all exhibits thereto and any document
incorporated by reference therein.
SECTION 2. REGISTRATION RIGHTS
2.1 Shelf Registration
.
(a) By
no later than twenty (20) days prior to the anticipated
Closing Date, UCBH shall prepare and file the Shelf Registration
Statement with the SEC. UCBH shall use its commercially reasonable
efforts to cause the Shelf Registration Statement to become
effective or to be declared by the SEC to be effective as soon as
practicable following its filing. After the Shelf Registration
Statement becomes effective, UCBH shall keep the Shelf Registration
Statement effective through the earliest to occur of (i) the
second (2 nd )
anniversary of the Closing Date and (ii) the date on which all
Registrable Securities covered by the Shelf Registration Statement
have ceased to be Registrable Securities (the
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"Shelf Effective Period"). If the Merger does not occur within
ninety (90) days after filing of the Shelf Registration
Statement, UCBH has the right to withdraw the Shelf Registration
Statement; provided that once the anticipated Closing Date
is determined after the withdrawal, UCBH shall file the
Registration Statement with the SEC by no later than 20 days
prior to such anticipated Closing Date.
(b) UCBH
shall notify the Company when the Shelf Registration Statement is
available for offer and sale of Registrable Securities. Holder
agrees not to make any offer or sale under the Shelf Registration
Statement until the availability of the Shelf Registration
Statement has been confirmed in writing to Company by UCBH and,
then, (i) only at such time as Holder has not been informed in
writing by UCBH that (A) any required supplement, amendment or
other filings that are required to be made under the Act have not
been made in compliance with the Act and (B) there is any
suspension or cessation of offers and sales of the Registrable
Securities pursuant to Section 2.6 below, and (ii) only
pursuant to and in accordance with the lock up provisions of
Section 3.1 below. Holder agrees to furnish to UCBH such
information as UCBH may from time to time reasonably request and as
shall be reasonably required in connection with any distribution of
Registrable Securities.
(c) The
Shelf Registration Statement shall not be available for
distribution of Registrable Securities by Holder, UCBH shall have
no obligation to facilitate any offer or sale of Registrable
Securities by Holder under the Shelf Registration Statement, and
Holder shall not effect any offer or sale of Registrable Securities
under the Shelf Registration Statement:
(i) During
any Suspension Period or other cessation of offers and sales of
Registrable Securities as provided in Section 2.6 below;
(ii) With
respect to any Transfer that is not permitted under Section 3
of this Agreement;
(iii) To
the extent Holder proposes to distribute any Registrable Securities
by means of an underwritten offering;
(iv) In
any particular jurisdiction in which the UCBH would be required to
execute a general consent to service of process in effecting such
registration, qualification, or compliance, unless UCBH is already
subject to service in such jurisdiction and except as may be
required by the Act.
(d) The
obligations of UCBH under Section 2 of this Agreement shall be
suspended during any period that (i) UCBH is not entitled to
use Form S-3 to register resales of its securities or (ii) sales of
Registrable Securities by Holder pursuant to the Shelf Registration
Statement would not meet the requirements of Form S-3 or
Rule 415 under the Act.
2.2 Expenses . UCBH will
pay all Registration Expenses and Holder will pay all other
expenses related to Company’s sale of Registrable
Securities.
2.3 Obligations of UCBH .
UCBH shall, subject to the terms and conditions hereof, use its
commercially reasonable efforts to:
(a) Prepare
and file with the SEC the Shelf Registration Statement, and use
commercially reasonable efforts to cause such registration
statement to become effective and to keep such registration
statement effective as provided in Section 2.1(a) above;
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(b) Prepare
and file, as expeditiously as reasonably practicable, with the SEC
such amendments and supplements to the Shelf Registration Statement
and the prospectus used in connection with such registration
statement as may be necessary to comply with the provisions of the
Act;
(c) Furnish
to the Company such numbers of copies of a prospectus, including a
preliminary prospectus, with respect to the Shelf Registration
Statement in conformity with the requirements of the Act;
(d) Register
and qualify the securities covered by the Shelf Registration
Statement under such blue sky laws of such states of the United
States as shall be reasonably requested by the Company;
provided , however , that UCBH shall not be required
in connection therewith or as a condition thereto to qualify to do
business or to file a general consent to service of process in any
such states or jurisdictions;
(e) Notify
the Company at any time that UCBH has knowledge that a prospectus
relating to the Shelf Registration Statement is required to be
delivered under the 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 a material fact required to be stated therein or
necessary to make the statements therein not misleading in the
light of the circumstances then existing;
(f) Subject
to the provisions of Section 2.6 below, amend or supplement
any such prospectus in order to cause such prospectus not to
include any untrue statement of material fact required to be stated
therein or necessary to make the statements therein not misleading
in light of the circumstances then existing;
(g) Cause
Registrable Securities covered by the Shelf Registration Statement
to be listed on the Nasdaq Global Select Market and provide the
Company with information regarding the transfer agent and the CUSIP
number for such Registrable Securities; and
(h) Notify
the Company of (i) the effectiveness of the Shelf Registration
Statement, (ii) the filing of any post-effective amendments to
such registration statement, or (iii) the filing of a
supplement to such registration statement; provided ,
however , that this requirement shall not apply to periodic
reports, other reports and proxy statements required to be filed by
UCBH.
2.4 Form S-3 Eligibility .
UCBH represents and warrants as of the date hereof that it meets
the requirements for the use of Form S-3 for registration for the
resale of the Registrable Securities by the Company. UCBH agrees to
use its commercially reasonable efforts to file all reports
required to be filed by UCBH with the SEC in a timely manner so as
to remain eligible for the use of Form S-3. In the event UCBH is no
longer eligible to use Form S-3 (or any successor form), UCBH shall
satisfy its registration obligations hereunder pursuant to another
available registration statement form reasonably acceptable to the
Company.
2.5 Reports under the 1934
Act . With a view to making available to the Company the
benefits of Rule 144 (or any successor rule) and any other
rule or regulation of the SEC that may at any time permit the
Company to sell Registrable Securities to the public without
registration, UCBH shall use commercially reasonable efforts to
(a) make and keep public information available, as those terms
are understood and defined in Rule 144, until the earlier of
(i) six months after such date as all Registrable Securities
may be resold pursuant to Rule 144(k) or any other rule of similar
effect or (ii) such date as all of Registrable Securities
shall have been resold; (b) file with the SEC in a timely
manner all reports and other documents required to be filed by UCBH
under the 1934 Act; (c) furnish to the Company upon request,
as long as the Company owns any Registrable Securities, (1) a
written statement by UCBH that UCBH has complied with the reporting
requirements of the 1934 Act, (2) a copy of UCBH’s most
recent
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Annual Report on Form 10-K or Quarterly Report on Form 10-Q; and
(3) such other reports and public documents as the Company may
reasonably request in order to avail itself of any rule or
regulation of the SEC allowing it to sell Registrable Securities
without registration.
2.6 Suspension Periods .
If disclosure of information in an amendment to
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