As filed with the Securities and Exchange Commission on October 13, 1998
Registration No. 333-58897
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
PRE-EFFECTIVE AMENDMENT NO. 4
TO THE
FORM S-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
UCBH HOLDINGS, INC.
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(exact name of registrant as specified in its certificate of incorporation)
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DELAWARE 6035 94-3072450
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(state or other jurisdiction of (Primary Standard (IRS Employer Identification No.)
incorporation or organization) Classification Code Number)
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711 Van Ness Avenue
San Francisco, California 94102
(415) 928-0700
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(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
Tommy S. Wu
President and Chief Executive Officer
United Commercial Bank
711 Van Ness Avenue
San Francisco, California 94102
(415) 928-0700
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(Name, address, including zip code, and telephone number,
including area code, of agent for service)
Copies to:
Joseph G. Passaic, Jr., Esquire
Mary M. Sjoquist, Esquire
Geoffrey W. Ryan, Esquire
Patton Boggs LLP
2550 M Street, N.W.
Washington, D.C. 20037
(202) 457-6000
Approximate date of commencement of proposed sale to public: From time
to time after the effective date of this Registration Statement.
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, check the following box. /X/
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. / /
If this Form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list the Securities
Act registration number of the earlier effective registration statement for the
same offering. / /
If delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box. / /
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Proposed Proposed
Maximum Maximum
Title of each Class of Amount to Offering Price Aggregate Registration
Securities to be Registered be Registered Per Share Offering Price Fee
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Common Stock 9,333,333
$.01 par Value Shares $15.00(1) $139,999,995 (2)
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(1) Based upon the fair value of the Common Stock of June 29, 1998.
(2) The registration fee of $41,300 was paid upon the initial filing of the
Form S-1.
The Registrant hereby amends this Registration Statement on such date or dates
as may be necessary to delay its effective date until the Registrant shall file
a further amendment which specifically states that this Registration Statement
shall thereafter become effective in accordance with Section 8(a) of the
Securities Act of 1933 or until the Registration Statement shall become
effective on such date as the Commission, acting pursuant to Section 8(a), may
determine.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 13. Other Expenses of Issuance and Distribution.(1)
The following statement sets forth the estimated amount of expenses (other than
the underwriting discounts and commissions) to be incurred in connection with
the issuance and distribution of the securities being registered.
SEC filing fee(1)............................................. $ 41,300
Exchange listing fee(1)....................................... 40,833
Printing and distribution..................................... 25,000
Legal fees and expenses ...................................... 150,000
Accounting fees and expenses.................................. 50,000
Blue Sky fees and expenses.................................... 5,000
Miscellaneous................................................. 2,867
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TOTAL......................................................... $315,000
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(1) Actual expenses based upon the registration of 9,333,333 shares at $15.00
per share. All other expenses are estimated.
Item 14. Indemnification of Directors and Officers.
In accordance with the General Corporation Law of the State of Delaware (being
Chapter 1 of Title 8 of the Delaware Code), Articles 10 and 11 of the
Registrant's Certificate of Incorporation provide as follows:
TENTH:
A. Each person who was or is made a party or is threatened to be made a party to
or is otherwise involved in any action, suit or proceeding, whether civil,
criminal, administrative or investigative (hereinafter a "proceeding"), by
reason of the fact that he or she is or was a Director or an Officer of the
Corporation or is or was serving at the request of the Corporation as a
Director, Officer, employee or agent of another corporation or of a partnership,
joint venture, trust or other enterprise, including service with respect to an
employee benefit plan (hereinafter an "indemnitee"), whether the basis of such
proceeding is alleged action in an official capacity as a Director, Officer,
employee or agent, or in any other capacity while serving as a Director,
Officer, employee or agent, shall be indemnified and held harmless by the
Corporation to the fullest extent authorized by the Delaware General Corporation
Law, as the same exists or may hereafter be amended (but, in the case of any
such amendment, only to the extent that such amendment permits the Corporation
to provide broader indemnification rights than such law permitted the
Corporation to provide prior to such amendment), against all expense, liability
and loss (including attorneys' fees, judgments, fines, ERISA excise
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taxes or penalties and amounts paid in settlement) reasonably incurred or
suffered by such indemnitee in connection therewith; provided, however, that,
except as provided in Section C hereof with respect to proceedings to enforce
rights to indemnification, the Corporation shall indemnify any such indemnitee
in connection with a proceeding (or part thereof) initiated by such indemnitee
only if such proceeding (or part thereof) was authorized by the Board of
Directors of the Corporation.
B. The right to indemnification conferred in Section A of this Article TENTH
shall include the right to be paid by the Corporation the expenses incurred in
defending any such proceeding in advance of its final disposition (hereinafter
an "advancement of expenses"); provided, however, that, if the Delaware General
Corporation Law requires, an advancement of expenses incurred by an indemnitee
in his or her capacity as a Director or Officer (and not in any other capacity
in which service was or is rendered by such indemnitee, including, without
limitation, services to an employee benefit plan) shall be made only upon
delivery to the Corporation of an undertaking (hereinafter an "undertaking"), by
or on behalf of such indemnitee, to repay all amounts so advanced if it shall
ultimately be determined by final judicial decision from which there is no
further right to appeal (hereinafter a "final adjudication") that such
indemnitee is not entitled to be indemnified for such expenses under this
Section or otherwise. The rights to indemnification and to the advancement of
expenses conferred in Sections A and B of this Article TENTH shall be contract
rights and such rights shall continue as to an indemnitee who has ceased to be a
Director, Officer, employee or agent and shall inure to the benefit of the
indemnitee's heirs, executors and administrators.
C. If a claim under Section A or B of this Article TENTH is not paid in full by
the Corporation within sixty days after a written claim has been received by the
Corporation, except in the case of a claim for an advancement of expenses, in
which case the applicable period shall be twenty days, the indemnitee may at any
time thereafter bring suit against the Corporation to recover the unpaid amount
of the claim. If successful in whole or in part in any such suit, or in a suit
brought by the Corporation to recover an advancement of expenses pursuant to the
terms of an undertaking, the indemnitee shall be entitled to be paid also the
expenses of prosecuting or defending such suit. In (i) any suit brought by the
indemnitee to enforce a right to indemnification hereunder (but not in a suit
brought by the indemnitee to enforce a right to an advancement of expenses) it
shall be a defense that, and (ii) in any suit by the Corporation to recover an
advancement of expenses pursuant to the terms of an undertaking the Corporation
shall be entitled to recover such expenses upon a final adjudication that, the
indemnitee has not met any applicable standard for indemnification set forth in
the Delaware General Corporation Law. Neither the failure of the Corporation
(including its Board of Directors, independent legal counsel, or its
stockholders) to have made a determination prior to the commencement of such
suit that indemnification of the indemnitee is proper in the circumstances
because the indemnitee has met the applicable standard of conduct set forth in
the Delaware General Corporation Law, nor an actual determination by the
Corporation (including its Board of Directors, independent legal counsel, or its
stockholders) that the indemnitee has not met such applicable standard of
conduct, shall create a presumption that the indemnitee has not met the
applicable standard of conduct or, in the case of such a suit brought by the
indemnitee, be a defense to such suit. In any suit brought by the indemnitee to
enforce a right to indemnification or to an advancement of expenses hereunder,
or by the Corporation to recover an advancement of expenses pursuant to the
terms of an undertaking, the burden of proving that the indemnitee is not
entitled to be indemnified, or to such advancement of expenses under this
Article TENTH or otherwise shall be on the Corporation.
D. The rights to indemnification and to the advancement of expenses conferred in
this Article TENTH shall not be exclusive of any other right which any person
may have or hereafter acquire under any statute, the
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Corporation's Certificate of Incorporation, Bylaws, agreement, vote of
stockholders or Disinterested Directors or otherwise.
E. The Corporation may maintain insurance, at its expense, to protect itself and
any Director, Officer, employee or agent of the Corporation or subsidiary or
Affiliate or another corporation, partnership, joint venture, trust or other
enterprise against any expense, liability or loss, whether or not the
Corporation would have the power to indemnify such person against such expense,
liability or loss under the Delaware General Corporation Law.
F. The Corporation may, to the extent authorized from time to time by the Board
of Directors, grant rights to indemnification and to the advancement of expenses
to any employee or agent of the Corporation to the fullest extent of the
provisions of this Article TENTH with respect to the indemnification and
advancement of expenses of Directors and Officers of the Corporation.
ELEVENTH:
A Director of this Corporation shall not be personally liable to the Corporation
or its stockholders for monetary damages for breach of fiduciary duty as a
Director, except for liability: (i) for any breach of the Director's duty of
loyalty to the Corporation or its stockholders, (ii) for acts or omissions not
in good faith or which involve intentional misconduct or a knowing violation of
law, (iii) under Section 174 of the Delaware General Corporation Law, or (iv)
for any transaction from which the Director derived an improper personal
benefit. If the Delaware General Corporation Law is amended to authorize
corporate action further eliminating or limiting the personal liability of
Directors, then the liability of a Director of the Corporation shall be
eliminated or limited to the fullest extent permitted by the Delaware General
Corporation Law, as so amended.
Any repeal or modification of the foregoing paragraph by the stockholders of the
Corporation shall not adversely affect any right or protection of a Director of
the Corporation existing at the time of such repeal or modification.
Item 15. Recent Sales of Unregistered Securities
In accordance with Item 701 of Regulation S-K, the following information is
presented with respect to securities sold by the Registrant within the past
three years which were not registered under the Securities Act of 1933, as
amended ("Securities Act"):
(a) On April 17, 1998, the Registrant sold in a private placement an
aggregate of 9.3 million share of its common stock, par value $.01 per
share ("Common Stock"). Additionally, on that date, UCBH Trust Co.
(the "Trust"), a statutory business trust formed under the laws of the
State of Delaware and sponsored by the Registrant, sold $30 million
aggregate liquidation amount of its 9 3/8% Capital Securities
(liquidation amount $1,000 per Capital Security) (the "Capital
Securities"). The proceeds from the sale of the Capital Securities and
938 of the Common Securities of the Trust to the Registrant (together,
the "Trust Securities") were used to purchase $30,928,000 principal
amount of the Registrant's 9 3/8% Junior Subordinated Deferrable
Interest Debentures due May 1, 2028.
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(b) Sandler O'Neill & Partners, L.P. ("Sandler O'Neill") acted as
Placement Agent for the Registrant and the Trust in connection with
the private placement transaction. The Common Stock and the Capital
Securities were offered and sold to institutional and accredited
investors.
(c) The Registrant's Common Stock was sold for an aggregate price of $140
million. The Trust's Capital Securities were sold for an aggregate
price of $30 million. Sandler O'Neill received an aggregate of $11.5
million as compensation in the transaction, plus reimbursement of
expenses.
(d) Based upon representations of the offerees and purchasers, the Common
Stock and the Capital Securities were offered and sold in reliance
upon an exemption from registration under Section 4(2) of the
Securities Act and in compliance with Rules 502 and 506 promulgated
thereunder.
(e) Not applicable.
(f) Not applicable.
Item 16. Exhibits and Financial Statement Schedules
The exhibits and financial statement schedules filed as a part of this
Registration Statement are as follows:
(a) List of Exhibits (Filed herewith unless otherwise noted)
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3.1 Amended and Restated Certificate of Incorporation of UCBH Holdings, Inc.*
3.2 Bylaws of UCBH Holdings, Inc.*
4.0 Form of Stock Certificate of UCBH Holdings, Inc.*
4.1 Purchase Agreement among UCBH Holdings, Inc., Sandler O'Neill and the Purchasers named
therein, dated April 13, 1998*
4.2 Registration Rights Agreement between UCBH Holdings, Inc., Sandler O'Neill and the Purchasers
named therein, dated April 13, 1998*
5.0 Opinion of Patton Boggs LLP re: legality
10.1 Employment Agreement between United Commercial Bank and Tommy S. Wu*
10.2 Employment Agreement between UCBH Holdings, Inc. and Tommy S. Wu*
10.3 Form of Termination and Change in Control Agreement between United
Commercial Bank and certain executive officers*
10.4 Form of Termination and Change in Control Agreement between UCBH Holdings, Inc. and certain
executive officers*
10.5 UCBH Holdings, Inc. 1998 Stock Option Plan*
23.1 Consent of PricewaterhouseCoopers LLP*
23.2 Consent of Patton Boggs LLP (included in Exhibit 5.0)*
24.1 Powers of Attorney (located on the signature page hereto)*
27.0 Financial Data Schedule*
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* Previously filed.
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(b) Financial Statement Schedules
All schedules have been omitted as not applicable or not required under the
rules of Regulation S-X.
Item 17. Undertakings.
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
(i) To include any Prospectus required by Section 10(a)(3) of
the Securities Act of 1933;
(ii) To reflect in the Prospectus any facts or events arising
after the effective date of the Registration Statement (or
the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental
change in the information set forth in the Registration
Statement. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that
which was registered) and any deviation from the low or high
end of the estimated maximum offering range may be reflected
in the form of prospectus filed with the Commission pursuant
to Rule 424(b) if, in the aggregate, the changes in volume
and price represent no more than a 20 percent change in the
maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective
registration statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the
Registration Statement or any material change to such
information in the Registration Statement;
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall
be deemed to be a new Registration Statement relating to the
securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering
thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain
unsold at the termination of the Offering.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to trustees, officers and controlling persons of
the Registrant pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Registrant of expenses
incurred or paid by a trustee, officer or controlling person of the Registrant
in the successful defense of any action, suit or proceeding) is asserted by such
trustee, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
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CONFORMED
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant has duly caused this Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of San
Francisco, State of California, on October 13, 1998.
UCBH HOLDINGS, INC.
By: /s/ Tommy S. Wu
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Tommy S. Wu
President and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
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Name Date
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/s/ Tommy S. Wu President, Chief Executive Officer and October 13, 1998
- ------------------------------------ Director (principal executive officer)
Tommy S. Wu
/s/ Jonathan H. Downing Senior Vice President, Chief October 13, 1998
- ------------------------------------ Financial Officer, Treasurer and
Jonathan H. Downing Director (principal accounting and
financial officer)
* Director
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Robert Fell
* Director
- ------------------------------------
Sau-wing Lam
* Director
- ------------------------------------
Godwin Wong
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* Signed pursuant to a power of attorney filed with the Commission as Exhibit
24.1 on July 1, 1998.
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TABLE OF CONTENTS
List of Exhibits (Filed herewith unless otherwise noted)
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3.1 Amended and Restated Certificate of Incorporation of UCBH Holdings, Inc.*
3.2 Bylaws of UCBH Holdings, Inc.*
4.0 Form of Stock Certificate of UCBH Holdings, Inc.*
4.1 Purchase Agreement among UCBH Holdings, Inc., Sandler O'Neill and the Purchasers named
therein, dated April 13, 1998*
4.2 Registration Rights Agreement between UCBH Holdings, Inc., Sandler O'Neill and the Purchasers
named therein, dated April 13, 1998*
5.0 Opinion of Patton Boggs LLP re: legality
10.1 Employment Agreement between United Commercial Bank and Tommy S. Wu*
10.2 Employment Agreement between UCBH Holdings, Inc. and Tommy S. Wu*
10.3 Form of Termination and Change in Control Agreement between United Commercial Bank and
certain executive officers*
10.4 Form of Termination and Change in Control Agreement between UCBH Holdings, Inc. and certain
executive officers*
10.5 UCBH Holdings, Inc. 1998 Stock Option Plan*
23.1 Consent of PricewaterhouseCoopers LLP*
23.2 Consent of Patton Boggs LLP (included in Exhibit 5.0)*
24.1 Powers of Attorney (located on the signature page hereto)*
27.0 Financial Data Schedule*
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* Previously filed.
Exhibit 5.0
202-457-6404
October 13, 1998
Board of Directors
UCBH Holdings, Inc.
711 Van Ness Avenue
San Francisco, California 94102
Re: The registration of 9,333,333 shares of UCBH Holdings, Inc.
Common Stock
Gentlemen:
You have requested our opinion concerning certain matters of Delaware law
in connection with the registration with the Securities and Exchange Commission
(the "SEC") of 9,333,333 shares of common stock, par value $.01 per share (the
"Common Stock") of UCBH Holdings, Inc. (the "Company").
In connection with rendering our opinion, the Company has provided to us
and we have reviewed and are relying on the Company's amended and restated
certificate of incorporation filed with the Delaware Secretary of State on
March 31, 1998 (the "Certificate of Incorporation") certified by the Secretary
of the Company to be true and correct as of the date hereof; the Company's
Bylaws certified by the Secretary of the Company to be true and correct as of
the date hereof; the Company's registration statement on Form S-1, as filed with
the SEC on July 1, 1998, as amended (the "Registration Statement"); resolutions
of the Board of Directors of the Company (the "Board") concerning the private
placement of the Common Stock (the "Offering") and designation of a Pricing
Committee of the Board (the "Pricing Committee"), and the form of stock
certificate approved by the Board to represent shares of Common Stock; and a
resolution of the Pricing Committee fixing the number of shares of Common
Stock to be sold in the Offering. We have also been furnished a certificate of
the Delaware Secretary of State certifying the Company's good standing as a
Delaware corporation. In addition, we have made such investigations of law and
have examined such other documents and records as we have
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Board of Directors
UCBH Holdings, Inc.
October 13, 1998
Page 2
considered necessary for purposes of this opinion. Capitalized terms used but
not defined herein shall have the meaning given to them in the Certificate of
Incorporation.
We have assumed the genuineness of the signatures on and the authenticity
of all documents submitted to us as originals and the conformity to the
originals of documents submitted to us as certified or photostatic copies. We
have relied as to factual matters upon certificates from officers of the
Company and we have assumed the accuracy and authenticity of the aforementioned
certificates of public officials and officers of the Company. We have also
relied on Company records.
We express no opinion as to the laws of any jurisdiction other than the
General Corporation Law of the State of Delaware.
Based upon and subject to the foregoing, it is our opinion that:
1. The Common Stock has been duly authorized and validly issued, and is
fully paid and nonassessable.
The following provisions of the Certificate of Incorporation may not be
given effect by a court applying Delaware law, but in our opinion the failure to
give effect to such provisions will not affect the duly authorized, validly
issued, fully paid and nonassessable status of the Common Stock:
1. (a) Subsections C.3 and C.6 of Article FOURTH and Section D of Article
EIGHTH, which grant the Board the authority to construe and apply
the provisions of those Articles, subsection C.4 of Article FOURTH,
to the extent that subsection obligates any person to provide to the
Board the information such subsection authorizes the Board to
demand, and the provision of Subsection C.7 of Article EIGHTH
empowering the Board to determine the Fair Market Value of property
offered or paid for the Company's stock by an Interested
Stockholder, in each case to the extent, if any, that a court
applying Delaware law were to impose equitable limitations upon such
authority; and
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Board of Directors
UCBH Holdings, Inc.
October 13, 1998
Page 3
(b) Article NINTH of the Certificate of Incorporation, which authorizes
the Board to consider the effect of any offer to acquire the
Company on constituencies other than stockholders in evaluating any
such offer.
We consent to the filing of this opinion as an exhibit to the Registration
Statement and to the reference to our firm under the caption "Legal Matters"
in the prospectus that is a part of the Registration Statement. In giving the
Foregoing consent, we do not thereby admit we come within the category of
Persons whose consent is required under Section 7 of the Securities Act of 1933,
as amended, or the rules and regulations of the SEC thereunder.
Very truly yours,
PATTON BOGGS, L.L.P.
/s/ Mary M. Sjoquist
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Mary M. Sjoquist
