Exhibit 4.2
NEITHER THESE SECURITIES NOR THE SECURITIES
ISSUABLE UPON EXERCISE OF THESE SECURITIES HAVE BEEN REGISTERED
WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES
COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM
REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
“SECURITIES ACT”), AND, ACCORDINGLY, MAY NOT BE
OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE
EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE
WITH APPLICABLE STATE SECURITIES LAWS AS EVIDENCED BY A LEGAL
OPINION OF COUNSEL TO THE TRANSFEROR TO SUCH EFFECT, THE SUBSTANCE
OF WHICH SHALL BE REASONABLY ACCEPTABLE TO THE COMPANY. THESE
SECURITIES AND THE SECURITIES ISSUABLE UPON EXERCISE OF THESE
SECURITIES MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE
MARGIN ACCOUNT SECURED BY SUCH SECURITIES IN A MANNER THAT COMPLIES
WITH THE SECURITIES ACT.
EAST WEST BANCORP,
INC.
ADDITIONAL INVESTMENT
RIGHT
Date of Original Issuance:
March 1, 2004
East West Bancorp,
Inc. , a Delaware
corporation (the “Company” ), hereby certifies
that, for value received, Perseverance, LLC or its registered
assigns (the “Holder” ), is entitled to purchase
from the Company up to a total of 101,428 shares of Common Stock
(as defined below) (such shares, the “Additional
Investment Right Shares” ). This Additional
Investment Right (“ Additional Investment Right
”) may be exercised from time to time and at any time in
whole or in part prior to the Expiration Date and is subject to the
terms and conditions set forth below.
1.
Definitions
. As used
in this Additional Investment Right, the following terms shall have
the respective definitions set forth in this Section.
Capitalized terms that are used and not defined in this Additional
Investment Right that are defined in the Purchase Agreement (as
defined below) shall have the respective definitions set forth in
the Purchase Agreement.
(a)
“Business Day”
means any day
except Saturday, Sunday and any day that is a federal legal holiday
in the United States or a day on which banking institutions in the
State of New York are authorized or required by law or other
government action to close.
(b)
“Common Stock”
means the common
stock of the Company, $0.001 par value per share, and any
securities into which such common stock may be hereafter
reclassified.
(c)
“Expiration Date”
means the 90
th Trading Day after the Trigger Date, plus one
additional day for each day following the Trigger Date and prior to
the Expiration Date on which (i) the Registration Statement is not
effective or the prospectus thereunder is not
available for use by the
Holder to resell registrable securities or (ii) trading in the
Common Stock is suspended by any Trading Market or the
Commission.
(d)
“Exercise Price”
means $49.2962,
subject to adjustment in accordance with Section 9
hereof.
(e)
“Purchase
Agreement” means the Securities Purchase
Agreement dated as of the date of this Additional Investment Right
to which the Company and the original Holder are
parties.
(f)
“Trading Day”
means (i) a day
on which the Common Stock is traded on a Trading Market (other than
the OTC Bulletin Board), or (ii) if the Common Stock is not listed
on a Trading Market (other than the OTC Bulletin Board), a day on
which the Common Stock is traded in the over-the-counter market, as
reported by the OTC Bulletin Board, or (iii) if the Common Stock is
not quoted on the OTC Bulletin Board, a day on which the Common
Stock is quoted in the over-the-counter market as reported by the
National Quotation Bureau Incorporated (or any similar organization
or agency succeeding to its functions of reporting prices);
provided, that in the event that the Common Stock is not listed or
quoted as set forth in (i), (ii) and (iii) hereof, then Trading Day
shall mean a Business Day.
(g)
“Trigger Date”
means the 90
th day following the date of issuance of this Additional
Investment Right.
2.
Registration
of Additional Investment Right . The Company shall
register this Additional Investment Right upon records to be
maintained by the Company for that purpose (the “Additional Investment Right
Register” ), in the name of the record
Holder hereof from time to time. The Holder agrees that it
may not transfer this Additional Investment Right as to more than
the number of Additional Investment Right Shares then outstanding
as shown on the most updated Additional Investment Right Exercise
Log, and any purported transfer in excess of such number of
Additional Investment Right Shares shall have no effect. The
Company may deem and treat the registered Holder of this Additional
Investment Right as the absolute owner hereof for the purpose of
any exercise hereof or any distribution to the Holder, and for all
other purposes, absent actual notice to the contrary.
3.
Registration
of Transfers . The Company shall
register the transfer of any portion of this Additional Investment
Right in the Additional Investment Right Register, upon surrender
of this Additional Investment Right, with the Form of Assignment
attached hereto duly completed and signed, to the Company at its
address specified herein. Upon any such registration or
transfer, a new Additional Investment Right to purchase Common
Stock, in substantially the form of this Additional Investment
Right (any such new Additional Investment Right, a
“New Additional Investment
Right” ), evidencing the portion of
this Additional Investment Right so transferred shall be issued to
the transferee and a New Additional Investment Right evidencing the
remaining portion of this Additional Investment Right not so
transferred, if any, shall be issued to the transferring Holder.
The acceptance of the New Additional Investment Right by the
transferee thereof shall be deemed the acceptance by such
transferee of all of the rights and obligations of a holder of a
Additional Investment Right.
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4.
Exercise and
Duration of Additional Investment Rights . This Additional
Investment Right shall be exercisable by the registered Holder at
any time and from time to time on or after the date hereof to and
including 6:30 p.m. New York City time on the Expiration
Date. At 6:30 p.m., New York City time on the Expiration
Date, the portion of this Additional Investment Right not exercised
prior thereto shall be and become void and of no value. The Company
may not call or redeem any portion of this Additional Investment
Right without the consent of the Holder.
5.
Delivery of
Additional Investment Right Shares .
(a)
To acquire
Additional Investment Right Shares under this Additional Investment
Right, the Holder shall not be required to physically surrender
this Additional Investment Right unless the aggregate number of
Additional Investment Right Shares then represented by this
Additional Investment Right is being exercised. Upon delivery
of a written notice, in the form of the Exercise Notice attached
hereto (the “Exercise
Notice” ) to the Company (together
with the Additional Investment Right Exercise Log attached thereto
(the “Additional
Investment Right Exercise Log” ) at its address for notice
set forth herein and upon payment of the Exercise Price multiplied
by the number of Additional Investment Right Shares that the Holder
intends to purchase hereunder, the Company shall promptly (but in
no event later than three Trading Days after the Date of Exercise)
issue and deliver to the Holder, a certificate representing the
number of Additional Investment Right Shares to which such exercise
pertains (the dollar amount of the exercise at issue divided by the
Exercise Price), which, unless otherwise required by the Purchase
Agreement, shall be free of restrictive legends. The Company
shall, upon request of the Holder and subsequent to the date on
which a registration statement covering the resale of the
Additional Investment Right Shares has been declared effective by
the Securities and Exchange Commission, use its best efforts to
deliver the Additional Investment Right Shares hereunder
electronically through the Depository Trust Corporation or another
established clearing corporation performing similar functions, if
available, provided , that, the Company may, but will not be
required to change its transfer agent if its current transfer agent
cannot deliver Additional Investment Right Shares electronically
through the Depository Trust Corporation. A “
Date of Exercise ” means the date on
which the Holder shall have delivered to Company: (i) the Exercise
Notice (with the Additional Investment Right Exercise Log attached
to it), appropriately completed and duly signed and (ii) the
Exercise Price for the number of Additional Investment Right Shares
so indicated by the Holder to be purchased.
(b)
If by the third
Trading Day after a Date of Exercise the Company fails to deliver
the required number of Additional Investment Right Shares in
the manner required pursuant to Section 5(a), then the Holder
will have the right to rescind such exercise.
(c)
If by the third
Trading Day after a Date of Exercise the Company fails to deliver
the required number of Additional Investment Right Shares in the
manner required pursuant to Section 5(a), and if after such
third Trading Day and prior to the receipt of such Additional
Investment Right Shares, the Holder purchases (in an open market
transaction or otherwise) shares of Common Stock to deliver in
satisfaction of a sale by the Holder of the Additional Investment
Right Shares which the Holder anticipated receiving upon such
exercise (a “ Buy-In ”), then the Company
shall (1) pay in cash to the Holder the amount by which (x)
the
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Holder’s total
purchase price (including brokerage commissions, if any) for the
shares of Common Stock so purchased exceeds (y) the amount obtained
by multiplying (A) the number of Additional Investment Right Shares
that the Company was required to deliver to the Holder in
connection with the exercise at issue by (B) the closing bid price
of the Common Stock at the time of the obligation giving rise to
such purchase obligation and (2) reinstate the portion of the
Additional Investment Right and equivalent number of Additional
Investment Right Shares for which such exercise was not
honored. The Holder shall provide the Company written notice
indicating the amounts payable to the Holder in respect of the
Buy-In.
(d)
The
Company’s obligations to issue and deliver Additional
Investment Right Shares in accordance with the terms hereof are
absolute and unconditional, irrespective of any action or inaction
by the Holder to enforce the same, any waiver or consent with
respect to any provision hereof, the recovery of any judgment
against any Person or any action to enforce the same, or any
setoff, counterclaim, recoupment, limitation or termination, or any
breach or alleged breach by the Holder or any other Person of any
obligation to the Company or any violation or alleged violation of
law by the Holder or any other Person, and irrespective of any
other circumstance which might otherwise limit such obligation of
the Company to the Holder in connection with the issuance of
Additional Investment Right Shares. Nothing herein shall
limit a Holder’s right to pursue any other remedies available
to it hereunder, at law or in equity including, without limitation,
a decree of specific performance and/or injunctive relief with
respect to the Company’s failure to timely deliver
certificates representing Additional Investment Right Shares upon
exercise of the Additional Investment Right as required
pursuant to the terms hereof.
6.
Charges, Taxes
and Expenses . Issuance and delivery
of Additional Investment Right Shares upon exercise of this
Additional Investment Right shall be made without charge to the
Holder for any issue or transfer tax, withholding tax, transfer
agent fee or other incidental tax or expense in respect of the
issuance of such certificates, all of which taxes and expenses
shall be paid by the Company; provided , however, that the
Company shall not be required to pay any tax which may be payable
in respect of any transfer involved in the registration of any
certificates for Additional Investment Right Shares in a name other
than that of the Holder. The Holder shall be responsible for
all other tax liability that may arise as a result of holding or
transferring this Additional Investment Right or receiving
Additional Investment Right Shares upon exercise
hereof.
7.
Replacement of
Additional Investment Right . If this Additional
Investment Right is mutilated, lost, stolen or destroyed, the
Company shall issue or cause to be issued in exchange and
substitution for and upon cancellation hereof, or in lieu of and
substitution for this Additional Investment Right, a New Additional
Investment Right, but only upon receipt of evidence reasonably
satisfactory to the Company of such loss, theft or destruction and
customary and reasonable indemnity (which shall not include a
surety bond), if requested. Applicants for a New Additional
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