FORM S-3
As
filed with the Securities and Exchange Commission on October 5, 2005
Registration
No. 333-
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
__________________
FORM
S-3
REGISTRATION
STATEMENT
UNDER
THE
SECURITIES ACT OF 1933
__________________
EAST
WEST BANCORP, INC.
(Exact
name of registrant as specified in its charter)
|
Delaware
(State
or other jurisdiction of
Incorporation
or Organization) |
|
95-4703316
(I.R.S.
Employer Identification) |
|
415
Huntington Drive
San
Marino, California 91108
(626) 799-5700
(Address,
including zip code, and telephone number, including area code, of
registrant’s principal executive offices) |
|
__________________
|
|
Douglas
Krause, Esq.
Executive
Vice President, General Counsel and Corporate
Secretary
East
West Bancorp, Inc.
415
Huntington Drive
San
Marino, California 91108
(626) 799-5700
(Name,
address, including zip code, and telephone number, including area code, of
agents for service) |
|
_________________
|
|
Copy
to:
Gordon
Bava, Esq.
Manatt,
Phelps & Phillips, LLP
11355
W. Olympic Boulevard
Los
Angeles, CA 90064
(310) 312-4000
Fax:
(310) 312-4224 |
|
_________________ |
Approximate
date of commencement of proposed sale to the public:
From time
to time after this Registration Statement becomes effective.
If the
only securities being registered on this Form are being offered pursuant to
dividend or interest reinvestment plans, please check the following
box. o
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,
other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. ý
If this
Form is filed to register additional securities for an offering pursuant to
Rule 462(c) under the Securities Act, please check the following box and
list the Securities Act registration number of the earlier effective
registration for the same offering. o
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
statement number of the earlier effective registration statement for the same
offering. o
If
delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. o
__________________
CALCULATION
OF REGISTRATION FEE
|
Title
Of Shares
To
Be Registered
|
|
Amount
To
Be
Registered
|
|
Proposed
Maximum
Aggregate
Price
Per
Unit
|
|
Proposed
Maximum
Aggregate
Offering
Price
|
|
Amount
Of
Registration
Fee
|
|
Common
Stock, par
value
$0.001 per share
|
|
3,138,701(1)
|
|
$33.94
|
|
$106,527,511.94
|
|
$12,538.29(2))
|
|
(1) |
The
common stock being registered consists of 3,138,701 shares of common stock
issued to the sole stockholder of United National Bank in connection with
East West Bancorp’s acquisition of United National
Bank. |
|
(2) |
The
registration fee is calculated pursuant to Rule 457(c) of the
Securities Act of 1933 by taking the average of the high and low prices of
the registrant’s Common Stock, $0.001 par value per share, on September
30, 2005, as reported on the NASDAQ National
Market. |
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 THIS REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
The
information in this prospectus is not complete and may be changed. The selling
stockholder may not sell these securities until the registration statement filed
with the Securities and Exchange Commission is effective. This prospectus is not
an offer to sell these securities and it is not soliciting an offer to buy these
securities in any state where the offer or sale is not permitted.
SUBJECT
TO COMPLETION, DATED OCTOBER 5, 2005
PROSPECTUS
EAST
WEST BANCORP, INC.
415
Huntington Drive
San
Marino, California 91108
(626)
799-5700
3,138,701
Shares of Common Stock
The
3,138,701 shares of our common stock offered by this prospectus were issued by
us in connection with our acquisition of United National Bank and its merger
with and into our wholly owned subsidiary, East West Bank, on September 6, 2005.
We will not receive any of the proceeds from the sale of our common stock
offered by this prospectus. The shares were issued in a private offering made in
reliance on Section 4(2) of the Securities Act of 1933. The selling
stockholder may offer East West Bancorp common stock through public transactions
executed through one or more broker-dealers at prevailing market prices, carried
out through the NASDAQ National Market or one or more stock exchanges (if the
shares are listed on an exchange at any time in the future), or in private
transactions directly with purchasers or at privately negotiated prices.
East West
Bancorp common stock is listed on the NASDAQ National Market with the ticker
symbol: “EWBC.” On September 30, 2005, the closing price of one share of East
West Bancorp common stock on the NASDAQ National Market was $34.04.
Our
principal executive offices are located at 415 Huntington Drive, San Marino,
California, 91108, and our telephone number is (626) 799-5700.
Neither
the Securities and Exchange Commission nor any state securities commission has
approved or disapproved of these securities or determined if this prospectus is
truthful or complete. Any representation to the contrary is a criminal
offense.
An
investment in these securities involves a high degree of risk. See “Risk
Factors” at page 1.
The date
of this prospectus is October 5,
2005.
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In
addition to the other information in this prospectus, you should carefully
consider the following risk factors in deciding whether to invest in the common
stock.
We
may face problems in integrating our business with those of acquired
banks. We have expanded by acquisitions of other banks. We
may not successfully integrate our business with those of these acquired banks,
if we are unable to maintain relationships with employees, customers or
suppliers. Further, such integration may be more difficult, time-consuming or
costly than we expected. Expected revenue synergies and cost savings from
acquired banks may not be fully realized or may not be realized within our
expected time-frames.
Our
California business focus and economic conditions in California could adversely
affect our operations. Our
operations are located primarily in California. As a result of this geographic
concentration, our results depend largely upon economic conditions in this area.
A deterioration in economic conditions or a natural or manmade disaster in our
market area could have a material adverse impact on the quality of our loan
portfolio, the demand for our products and services, and our financial condition
and results of operations.
Changes
in market interest rates could adversely affect our
earnings. Our
earnings are impacted by changing interest rates. Changes in interest rates
impact the level of loans, deposits and investments, the credit profile of
existing loans and the rates received on loans and investment securities and the
rates paid on deposits and borrowings. Significant fluctuations in interest
rates may have a material adverse affect on our financial condition and results
of operations.
We
are subject to government regulations that could limit or restrict our
activities, which in turn could adversely impact our
operations. The
financial services industry is subject to extensive federal and state
supervision and regulation. Significant new laws or changes in existing laws, or
repeals of existing laws may cause our results to differ materially. Further,
federal monetary policy, particularly as implemented through the Federal Reserve
System, significantly affects credit conditions for us and a material change in
these conditions could have a material adverse impact on our financial condition
and results of operations.
Failure
to manage growth may adversely affect our performance. Our
financial performance and profitability depends on our ability to manage our
recent growth and possible future growth. In addition, any future acquisitions
and our continued growth may present operating and other problems that could
have an adverse effect on our financial condition and results of operations.
Competition
may adversely affect our performance. The
banking and financial services businesses in our market areas are highly
competitive. We face competition in attracting deposits and in making loans. The
increasingly competitive environment is a result of changes in regulation,
changes in technology and product delivery systems, and the accelerating pace of
consolidation among financial service providers. Our results in the future may
differ depending on the nature or level of competition.
If
a significant number of borrowers, guarantors and related parties fail to
perform as required by the terms of their loans, we will sustain
losses. A
significant source of risk arises from the possibility that losses will be
sustained because borrowers, guarantors and related parties may fail to perform
in accordance with the terms of their loans and guarantees. We have adopted
underwriting and credit monitoring procedures and credit policies, including the
establishment and review of the allowance for credit losses, that management
believes are appropriate to minimize this risk by assessing the likelihood of
nonperformance, tracking loan performance, and diversifying our credit
portfolio. These policies and procedures, however, may not prevent unexpected
losses that could have a material adverse effect on our results of operations.
EAST
WEST BANCORP, INC.
We are
the bank holding company for East West Bank, one of the largest commercial banks
headquartered in Los Angeles County, California as of December 31, 2004,
and one of the largest banks in the United States that focuses on the
Chinese-American community.
East West Bank is our principal asset. It is a California-chartered
commercial bank and its deposits are insured by the Federal Deposit Insurance
Corporation (FDIC), up to applicable limits. It specializes in lending for
commercial, construction, and residential real estate projects, financing
international trade for California companies, and providing business and
personal deposit and cash management services. Through its network of 56 retail
branches, it provides a wide range of personal and commercial banking services
to small and medium-sized businesses, business executives, professionals and
other individuals. It offers multilingual services to all of its customers in
English, Cantonese, Mandarin, Vietnamese and Spanish.
East West
Bank has three wholly owned subsidiaries, E-W Services, Inc, East-West
Investments, Inc. and East West Mortgage Securities, LLC. E-W
Services, Inc. holds property used by East West Bank in its operations.
East-West Investments, Inc. primarily acts as a trustee in connection with
real estate secured loans. East West Mortgage Securities, LLC primarily as a
special purpose entity in connection with private label securitization
activities.
We also have seven other subsidiaries, East West Insurance Services, Inc.,
East West Capital Trust I, East West Capital Trust II, East West Capital
Statutory Trust III, East West Capital Trust IV, East West Capital Trust V and
East West Capital Trust VI. Through East West Insurance Services, Inc., we
offer, on an agency basis, various insurance products such as property, casualty
and life. East West Capital Trust I, East West Capital Trust II, East West
Capital Statutory Trust III, East West Capital Trust IV, East West Capital Trust
V and East West Capital Trust VI were formed for the purposes of issuing trust
preferred securities.
We
concentrate on marketing our services in the Los Angeles metropolitan area,
Orange County, the San Francisco Bay area, and the Silicon Valley area in Santa
Clara County, with a particular focus on regions with a high concentration of
ethnic Chinese. The ethnic Chinese markets within our primary market area have
experienced rapid growth in recent periods. We believe our customers can benefit
from our understanding of Asian markets and cultures, our corporate and
organizational ties throughout Asia, as well as our international banking
products and services. We believe that this approach, combined with the
extensive ties of our management and Board of Directors to the growing Asian and
ethnic Chinese communities in the United States, provides us with an advantage
in competing for customers in its market area.
Our
principal executive office is located at 415 Huntington Drive, San Marino,
California 91108 and our telephone number is (626) 799-5700.
DESCRIPTION
OF COMMON STOCK
Our
Certificate of Incorporation, as amended, authorizes us to issue 200,000,000
shares of common stock, par value $.001 per share. As of September 30, 2005,
there were 56,073,913 shares of common stock outstanding.
All
outstanding common stock is, and any stock issued under this prospectus will be,
fully paid and nonassessable. Subject to rights of preferred stockholders if any
preferred stock is issued and outstanding, holders of common stock
• are
entitled to any dividends validly declared;
• will
share ratably in our net assets in the event of a liquidation; and
• are
entitled to one vote per share.
The
common stock has no conversion rights. Holders of common stock have no
preemption, subscription, redemption, or call rights related to those shares.
U.S.
Stock Transfer Corporation is the transfer agent and registrar for our common
stock.
All net
proceeds from the sale of the shares of our common stock being offered under
this prospectus will go to the selling stockholder. Accordingly, we will not
receive any proceeds from sales of these shares. We are paying the expenses of
registration of the shares being offered under this prospectus.
SELLING
STOCKHOLDER
As of the
date of this prospectus, Mr. T. Y. Tsai, the selling stockholder, is the sole
beneficial owner of the 3,138,701 shares of our common stock being offered under
this prospectus. No estimate can be given as to the amount of our common stock
that will be held by the selling stockholder after the completion of this
offering, because the selling stockholder may not sell any or all 3,138,701
shares. The selling stockholder has had no material relationship with us during
the past three years. There currently are no agreements, arrangements or
understandings with respect to the sale of any shares of our common stock. In
addition, the selling stockholder may choose to donate or transfer as gifts some
or all of the shares that may otherwise be sold directly by the selling
stockholder or the selling stockholder may choose to transfer some or all of
these shares for no value to one or more affiliated persons. If any of the
shares are so transferred by the selling stockholder, then the persons who
receive the shares would constitute additional selling stockholders under this
prospectus.
PLAN
OF DISTRIBUTION
The
selling stockholder and any of his pledgees, donees, assignees and
successors-in-interest may, from time to time, sell any or all of his shares of
our common stock referred to in this prospectus on any stock exchange, market or
trading facility on which the shares are traded or in private transactions.
These sales may be at fixed or negotiated prices. The selling stockholder may
use any one or more of the following methods when selling shares:
| · |
ordinary
brokerage transactions and transactions in which the broker-dealer
solicits purchasers; |
| · |
block
trades in which the broker-dealer will attempt to sell the shares as agent
but may position and resell a portion of the block as principal to
facilitate the transaction; |
| · |
purchases
by a broker-dealer as principal and resale by the broker-dealer for its
account; |
| · |
an
exchange distribution in accordance with the rules of the applicable
exchange; |
| · |
privately
negotiated transactions; |
| · |
to
cover short sales made after the date that this registration statement is
declared effective by the Securities and Exchange Commission;
|
| · |
broker-dealers
may agree with the selling stockholder to sell a specified number of such
shares at a stipulated price per share; |
| · |
a
combination of any such methods of sale; and
|
| · |
any
other method permitted pursuant to applicable law.
|
The
selling stockholder may also sell shares under Rule 144 under the
Securities Act of 1933, as amended (the “Securities Act”), if available, rather
than under this prospectus.
Broker-dealers
engaged by the selling stockholder may arrange for other brokers-dealers to
participate in sales. Broker-dealers may receive commissions or discounts from
the selling stockholder (or, if any broker-dealer acts as agent for the
purchaser of shares, from the purchaser) in amounts to be negotiated. The
selling stockholder does not expect these commissions and discounts to exceed
what is customary in the types of transactions involved.
The selling stockholder may from time to time pledge or grant a
security interest in some or all of the shares of common stock owned by him and,
if he defaults in the performance of his secured obligations, the pledgees or
secured parties may offer and sell shares of common stock from time to time
under this prospectus, or under an amendment to this prospectus under
Rule 424(b)(3) or other applicable provision of the Securities Act amending
the list of selling stockholder to include the pledgee, transferee or other
successors in interest as selling stockholder under this prospectus.
Upon
being notified in writing by the selling stockholder that any material
arrangement has been entered into with a broker-dealer for the sale of common
stock through a block trade, special offering, exchange distribution or
secondary distribution or a purchase by a broker or dealer, a supplement to this
prospectus will be filed, if required, pursuant to Rule 424(b) under the
Securities Act, disclosing (i) the name of the selling stockholder and of
the participating broker-dealer(s), (ii) the number of shares involved,
(iii) the price at which such the shares of common stock were sold,
(iv) the commissions paid or discounts or concessions allowed to such
broker-dealer(s), where applicable, (v) that such broker-dealer(s) did not
conduct any investigation to verify the information set out or incorporated by
reference in this prospectus, and (vi) other facts material to the
transaction. In addition, upon being notified in writing by the selling
stockholder that a donee or pledgee intends to sell more than 500 shares of
common stock, a supplement to this prospectus will be filed if then required in
accordance with applicable securities law.
The
selling stockholder also may transfer the shares of common stock in other
circumstances, in which case the transferees, pledgees or other successors in
interest will be the selling beneficial owners for purposes of this prospectus.
The
selling stockholder and any broker-dealers or agents that are involved in
selling the shares may be deemed to be “underwriters” within the meaning of the
Securities Act in connection with such sales. In such event, any commissions
received by such broker-dealers or agents and any profit on the resale of the
shares purchased by them may be deemed to be underwriting commissions or
discounts under the Securities Act. Discounts, concessions, commissions and
similar selling expenses, if any, that can be attributed to the sale of
securities will be paid by the selling stockholder and/or the purchasers.
The selling stockholder has informed us that he is not a registered
broker-dealer but is an affiliate of a broker-dealer. He has further informed us
that: (1) the securities being registered were issued to him in a private
offering made in reliance of Section 4(2) of the Securities Act of 1933, and (2)
at the time the private offering was consummated, he had no agreements or
understandings, directly or indirectly, with any person to distribute the
securities.
We have
advised the selling stockholder that he may not use shares registered on this
registration statement to cover short sales of common stock made prior to the
date on which this registration statement shall have been declared effective by
the Securities and Exchange Commission. The selling stockholder will be
responsible to comply with the applicable provisions of Regulation M and to
acknowledge the possibility that acquirors may be deemed “underwriters” within
the meaning of the Securities Act in connection with resales of his respective
shares under this registration statement.
WHERE
YOU CAN FIND MORE INFORMATION
We file
annual, quarterly and special reports, proxy statements and other information
with the Securities and Exchange Commission. You may read and copy any document
we file at the Securities and Exchange Commission’s public reference rooms in
Washington, D.C., New York, New York and Chicago, Illinois. Please call the
Securities and Exchange Commission at 1-800-SEC-0330 for further information on
the public reference rooms. Copies of these materials can be obtained at
prescribed rates from the Public Reference Section of the Securities and
Exchange Commission at its principal office at 450 Fifth Street, N.W.,
Washington, D.C. 20549. Our filings are also available to the public from the
Securities and Exchange Commission’s Website at “http://www.sec.gov.”
The Securities and Exchange Commission allows us to “incorporate by
reference” the information we file with them, which means that we can disclose
important information to you by referring you to those documents. The
information incorporated by reference is considered to be part of this
prospectus, and information that we file later with the Securities and Exchange
Commission will automatically update and supersede this information. We
incorporate by reference the documents listed below and any future filings we
will make with the Securities and Exchange Commission under Sections 13(a),
13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended (the
“Exchange Act”), after the date of this prospectus and prior to the time all of
the securities offered by this prospectus are sold:
| · |
Annual
Report on Form 10-K for the fiscal year ended December 31, 2004,
including information specifically incorporated by reference into our
Form 10-K from our Definitive Proxy Statement for our Annual Meeting
of Stockholders which was filed with the SEC on April 15, 2005;
|
| · |
Quarterly
Reports on Form 10-Q for the quarter ended March 31, 2005 and
the quarter ended June 30, 2005; |
| · |
Current
Reports on Form 8-K furnished on January 27, 2005,
February 11, 2005, March 9, 2005, April 14, 2005,
June 23, 2005, July 5, 2005, July 20, 2005, and
September 7, 2005; and |
| · |
The
description of our common stock contained our registration statement on
Form S-4/A filed with the SEC on November 13, 1998.
|
You may
request a copy of these filings, at no cost, by writing or telephoning us at the
following address:
East West
Bancorp, Inc.
415
Huntington Drive
San
Marino, California 91108
Attention:
Douglas Krause, Esq., Executive Vice President
Phone:
(626) 799-5700
This
prospectus is part of a registration statement we filed with the Securities and
Exchange Commission. You should rely only on the information or representations
provided in this prospectus. We have authorized no one to provide you with
different information. We are not making an offer of these securities in any
state where the offer is not permitted. You should not assume that the
information in this prospectus is accurate as of any date other than the date on
the front of this prospectus.
LEGAL
MATTERS
Douglas
P. Krause, an officer of East West Bancorp, will pass upon the validity of the
shares of common stock and certain other legal matters in connection with this
offering, unless we indicate otherwise in a prospectus supplement. As of the
date of this prospectus, Mr. Krause has the following interests in the
securities of East West Bancorp: 79,490 shares of common stock; 25,628 options
to purchase shares of common stock at grant prices ranging from $7.9375 to
$37.63 per share; and 9,769 shares of restricted common stock.
EXPERTS
The
consolidated financial statements and management's report on the effectiveness
of internal control over financial reporting incorporated in this prospectus by
reference from East West Bancorp Inc.’s Annual Report on Form 10-K for the year
ended December 31, 2004, have been audited by Deloitte & Touche LLP, an
independent registered public accounting firm, as stated in their reports, which
are incorporated herein by reference (which reports (1) express an unqualified
opinion on the financial statements and include an explanatory paragraph
relating to the change in method of accounting for goodwill, (2) express an
unqualified opinion on management's assessment regarding the effectiveness of
internal control over financial reporting, and (3) express an unqualified
opinion on the effectiveness of internal control over financial reporting), and
have been so incorporated in reliance upon the reports of such firm given upon
their authority as experts in accounting and auditing.
Certain
matters discussed in this prospectus may constitute forward-looking statements
within the meaning of Section 27A of the Securities Act and
Section 21E of the Exchange Act, and as such, may involve risks and
uncertainties. These forward-looking statements relate to, among other things,
expectations of the environment in which we operate and projections of future
performance. Our actual results, performance, or achievements may differ
significantly from the results, performance, or achievements expected or implied
in such forward-looking statements.
FOR
SECURITIES ACT LIABILITIES
The
Delaware General Corporation Law and our certificate of incorporation and
by-laws provide for indemnification of our directors and officers for
liabilities and expenses that they may incur in such capacities. Insofar as
indemnification for liabilities arising under the Securities Act may be
permitted to directors, officers and controlling persons of East West Bancorp,
pursuant to the foregoing provisions, or otherwise, we have been advised that in
the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Securities Act
and is, therefore, unenforceable.
You
should rely only on the information incorporated by reference or contained in
this prospectus or any supplement. We have not authorized anyone else to provide
you with different or additional information. You should not assume that the
information in this prospectus or any supplement is accurate as of any date
other than the date on the front of this prospectus or any supplement that may
have a later date. The selling stockholder is not making an offer of the common
stock in any state where the offer is not permitted.
PART
II
INFORMATION
NOT REQUIRED IN PROSPECTUS
Item
14. Other Expenses of Issuance and Distribution
The
following statement sets forth the estimated amounts of expenses to be borne by
East West Bancorp in connection with the offering described in this Registration
Statement:
|
Registration
Fee Under Securities Act |
$ |
12,538.29 |
|
Legal
Fees and Expenses |
$ |
10,000.00 |
|
Accounting
Fees and Expenses |
$ |
5,000.00 |
|
Printing
and Mailing Costs |
$ |
500.00 |
|
Miscellaneous
Fees and Expenses |
$ |
500.00 |
|
Total |
$ |
28,538.29 |
Item
15. Indemnification of Directors and Officers
East West
Bancorp is incorporated under the Delaware General Corporation Law, of which
Section 145 provides as follows:
“(a) A
corporation shall have power to indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative
(other than an action by or in the right of the corporation) by reason of the
fact that the person is or was a director, officer, employee or agent of the
corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by the person in connection with such action, suit or proceeding if the
person acted in good faith and in a manner the person reasonably believed to be
in or not opposed to the best interests of the corporation, and, with respect to
any criminal action or proceeding, had no reasonable cause to believe the
person's conduct was unlawful. The termination of any action, suit or proceeding
by judgment, order, settlement, conviction, or upon a plea of nolo contendere or
its equivalent, shall not, of itself, create a presumption that the person did
not act in good faith and in a manner which the person reasonably believed to be
in or not opposed to the best interests of the corporation, and, with respect to
any criminal action or proceeding, had reasonable cause to believe that the
person's conduct was unlawful.
(b) A
corporation shall have power to indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action or
suit by or in the right of the corporation to procure a judgment in its favor by
reason of the fact that the person is or was a director, officer, employee or
agent of the corporation, or is or was serving at the request of the corporation
as a director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise against expenses (including attorneys'
fees) actually and reasonably incurred by the person in connection with the
defense or settlement of such action or suit if the person acted in good faith
and in a manner the person reasonably believed to be in or not opposed to the
best interests of the corporation and except that no indemnification shall be
made in respect of any claim, issue or matter as to which such person shall have
been adjudged to be liable to the corporation unless and only to the extent that
the Court of Chancery or the court in which such action or suit was brought
shall determine upon application that, despite the adjudication of liability but
in view of all the circumstances of the case, such person is fairly and
reasonably entitled to indemnity for such expenses which the Court of Chancery
or such other court shall deem proper.
(c) To
the extent that a present or former director or officer of a corporation has
been successful on the merits or otherwise in defense of any action, suit or
proceeding referred to in subsections (a) and (b) of this section, or in defense
of any claim, issue or matter therein, such person shall be indemnified against
expenses (including attorneys' fees) actually and reasonably incurred by such
person in connection therewith.
(d) Any
indemnification under subsections (a) and (b) of this section (unless ordered by
a court) shall be made by the corporation only as authorized in the specific
case upon a determination that indemnification of the present or former
director, officer, employee or agent is proper in the circumstances because the
person has met the applicable standard of conduct set forth in subsections (a)
and (b) of this section. Such determination shall be made, with respect to a
person who is a director or officer at the time of such determination, (1) by a
majority vote of the directors who are not parties to such action, suit or
proceeding, even though less than a quorum, or (2) by a committee of such
directors designated by majority vote of such directors, even though less than a
quorum, or (3) if there are no such directors, or if such directors so direct,
by independent legal counsel in a written opinion, or (4) by the
stockholders.
(e)
Expenses (including attorneys' fees) incurred by an officer or director in
defending any civil, criminal, administrative or investigative action, suit or
proceeding may be paid by the corporation in advance of the final disposition of
such action, suit or proceeding upon receipt of an undertaking by or on behalf
of such director or officer to repay such amount if it shall ultimately be
determined that such person is not entitled to be indemnified by the corporation
as authorized in this section. Such expenses (including attorneys' fees)
incurred by former directors and officers or other employees and agents may be
so paid upon such terms and conditions, if any, as the corporation deems
appropriate.
(f) The
indemnification and advancement of expenses provided by, or granted pursuant to,
the other subsections of this section shall not be deemed exclusive of any other
rights to which those seeking indemnification or advancement of expenses may be
entitled under any bylaw, agreement, vote of stockholders or disinterested
directors or otherwise, both as to action in such person's official capacity and
as to action in another capacity while holding such office.
(g) A
corporation shall have power to purchase and maintain insurance on behalf of any
person who is or was a director, officer, employee or agent of the corporation,
or is or was serving at the request of the corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise against any liability asserted against such person and incurred
by such person in any such capacity, or arising out of such person's status as
such, whether or not the corporation would have the power to indemnify such
person against such liability under this section.
(h) For
purposes of this section, references to "the corporation" shall include, in
addition to the resulting corporation, any constituent corporation (including
any constituent of a constituent) absorbed in a consolidation or merger which,
if its separate existence had continued, would have had power and authority to
indemnify its directors, officers, and employees or agents, so that any person
who is or was a director, officer, employee or agent of such constituent
corporation, or is or was serving at the request of such constituent corporation
as a director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise, shall stand in the same position under
this section with respect to the resulting or surviving corporation as such
person would have with respect to such constituent corporation if its separate
existence had continued.
(i) For
purposes of this section, references to "other enterprises" shall include
employee benefit plans; references to "fines" shall include any excise taxes
assessed on a person with respect to any employee benefit plan; and references
to "serving at the request of the corporation" shall include any service as a
director, officer, employee or agent of the corporation which imposes duties on,
or involves services by, such director, officer, employee or agent with respect
to an employee benefit plan, its participants or beneficiaries; and a person who
acted in good faith and in a manner such person reasonably believed to be in the
interest of the participants and beneficiaries of an employee benefit plan shall
be deemed to have acted in a manner "not opposed to the best interests of the
corporation" as referred to in this section.
(j) The
indemnification and advancement of expenses provided by, or granted pursuant to,
this section shall, unless otherwise provided when authorized or ratified,
continue as to a person who has ceased to be a director, officer, employee or
agent and shall inure to the benefit of the heirs, executors and administrators
of such a person.
(k) The
Court of Chancery is hereby vested with exclusive jurisdiction to hear and
determine all actions for advancement of expenses or indemnification brought
under this section or under any bylaw, agreement, vote of stockholders or
disinterested directors, or otherwise. The Court of Chancery may summarily
determine a corporation's obligation to advance expenses (including attorneys'
fees).”
* *
*
Article XIII
of East West Bancorp’s Certificate of Incorporation provides as follows:
“Section 1.
The Corporation shall indemnify to the maximum extent permitted by law:
(a) any
person who is or was a director or executive officer of the Corporation; and
(b) any
person who serves or served at the Corporation’s request as a director, officer,
employee, partner, or trustee of another corporation, partnership, joint
venture, trust, or other enterprise.
Section 2. The
Corporation may pay in advance any expenses (including attorneys’ fees) which
may become subject to indemnification under this Article XIII if the person
receiving the payment undertakes in writing to repay the same if it is
ultimately determined that the person is not entitled to indemnification by the
Corporation under this Article XIII.
Section 3. Any
indemnification and advancement of expenses provided by Sections 1 and 2 of this
Article XIII or otherwise granted pursuant to Delaware law shall not be
exclusive of any other rights to which a person may be entitled by law, bylaw,
agreement, vote of stockholders, or Disinterested Directors, or otherwise.
Section 4. The
indemnification and advance payment provided by Sections 1 and 2 of this
Article XIII shall continue as to a person who has ceased to hold a
position named in Section 1 of this Article XIII and shall inure to
the person’s heirs, executors, and administrators.
Section 5. The
Corporation may purchase and maintain insurance on behalf of any person who
holds or who has held any position named in Section 1 of this
Article XIII, against any liability asserted against the person and
incurred by the person in any such position, or arising out of the person’s
status as such, whether or not the Corporation would have power to indemnify the
person against such liability under Section 1 of this Article XIII.
Section 6. If
Delaware law is amended to permit further indemnification of the directors and
executive officers of the Corporation, then the Corporation shall indemnify
persons to the fullest extent permitted by Delaware law, as so amended. Any
repeal or modification of this Article XIII by the stockholders of the
Corporation shall not adversely affect any right or protection of a person
existing at the time of such repeal or modification.”
Article VI
of East West Bancorp’s Bylaws provide as follows:
“SECTION
6.1 Right
to Indemnification. Each
person who was or is made a party or is threatened to be made a party to or is
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, or a person of whom he or she is the legal representative,
is or was a director or executive officer of the Corporation, 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 employee benefit plans, or was a
director or executive officer of a foreign or domestic corporation which was a
predecessor of the corporation or of another enterprise at the request of such
predecessor corporation, whether the basis of such proceeding is alleged action
in an official capacity as a director or executive officer or in any other
capacity while serving as a director or executive officer 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 said law
permitted the Corporation to provide prior to such amendment), against all
expense, liability and loss (including attorney’s fees, judgments, fines, ERISA
excise taxes of penalties and amounts paid or to be paid in settlement)
reasonably
incurred or suffered by such person in connection therewith and such
indemnification shall continue as to a person who has ceased to be a director or
executive officer and shall inure to the benefit of his or her heirs, executors
and administrators; provided, however, that, except as provided in
Section 6.2 of this Article VI, the Corporation shall indemnify and
such person seeking indemnification in connection with a proceeding (or part
thereof) initiated by such person only if such proceeding (or part thereof) was
authorized by the Board of Directors of the Corporation. The right to
indemnification conferred in this Section 6.1 shall be a contract right and
shall include the right to be paid by the Corporation the expenses incurred in
defending any such proceeding in advance of its final disposition; provided,
however, that if the Delaware General Corporation Law requires the payment of
such expenses incurred by a director or officer 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 person while a director or officer, including, without
limitation, service to an employee benefit plan) in advance of the final
disposition of a proceeding, shall be made only upon delivery to the Corporation
of an undertaking, by or on behalf of such director or officer, to repay, all
amounts so advanced if it shall ultimately be determined that such director or
officer is not entitled to be indemnified under this Section or otherwise. The
Corporation may by action of its Board of Directors, provide indemnification to
employees and agents of the Corporation with the same scope and effect as the
foregoing indemnification of directors and officers. This Article VI shall
create a right of indemnification for each such indemnifiable party whether or
not the proceeding to which the indemnification relates arose in whole or in
part prior to adoption of this Article VI (or the adoption of the
comparable provisions of the Bylaws of the Corporation’s predecessor
corporation).
SECTION
6.2 Right
of Claimant to Bring Suit. If
a claim under Section 6.1 of this Article VI is not paid in full by
the Corporation within thirty days after a written claim has been received by
the Corporation, the claimant may at any time thereafter bring suit against the
Corporation to recover the unpaid amount of the claim and, if successful in
whole or in part, the claimant shall be entitled to be paid also the expense of
prosecuting such claim. It shall be a defense to any such action (other than an
action brought to enforce a claim for expenses incurred in defending any
proceeding in advance of its final disposition where the required undertaking,
if any is required, has been tendered to the Corporation) that the claimant has
not met the standards of conduct which make it permissible under the Delaware
General Corporation Law for the Corporation to indemnify the claimant for the
amount claimed, but the burden of proving such defense shall be on the
Corporation. 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 action that indemnification of
the claimant is proper
to the circumstances because he or she 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 claimant has not met such
applicable standard or conduct, shall be a defense to the action or create a
presumption that the claimant has not met the applicable standard of conduct.
SECTION
6.3 Nonexclusivity
of Rights. The
right to indemnification and the payment of expenses incurred in defending a
proceeding in advance of its final disposition conferred in this Article VI
shall not be exclusive of any other right which any person may have or hereafter
acquire under any statute, provision of the Certificate of Incorporation, any
Bylaw, agreement, vote of stockholders or disinterested directors or otherwise.
SECTION
6.4 Insurance. The
Corporation may maintain insurance, at its expense, to protect itself and any
director, officer, employee or agent of the Corporation or another corporation,
partnership, joint venture, trust or other enterprise against any such 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.”
Item
16. Exhibits
The
following documents have been previously filed as exhibits and are incorporated
herein by reference except those exhibits indicated with an asterisk which are
filed herewith:
|
Exhibit
No.
|
|
Description
|
|
4.1 |
|
Specimen
certificate for Common Stock of the Registrant(1) |
|
|
|
|
|
|
|
|
|
4.2 |
|
Additional
Investment Right held by Mainfield Enterprises, Inc. dated
March 1, 2004(2) |
|
4.3 |
|
Additional
Investment Right held by Perseverance, LLC dated March, 1
2004(2) |
|
4.4 |
|
Registration
Rights Agreement dated March 1, 2004(2) |
|
5.1 |
|
Opinion
of General Counsel of the Registrant* |
|
23.1 |
|
Consent
of Independent Registered Public Accounting Firm* |
|
23.2 |
|
Consent
of General Counsel of the Registrant (included in
Exhibit 5.1) |
|
24.1 |
|
Power
of Attorney (included on signature page)* |
| |
|
|
(1) |
Incorporated
by reference to the Registrant’s Registration Statement on Form S-4/A
filed with the SEC on November 13, 1998 (Registration
No. 333-63605). |
|
(2) |
Filed
as Exhibits 4.1, 4.2 and 4.3, respectively, to the Registrant’s
Form 8-K filed with the SEC on March 2, 2004.
|
Item
17. Undertakings
(a) The
undersigned registrant hereby undertakes:
(1) To file,
during any period in which offers or sales are being made of the securities
registered hereby, 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 20% 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;
|
provided,
however, that
the undertakings set forth in clauses (i) and (ii) above do not apply
if the information required to be included in a post-effective amendment by
those clauses is contained in periodic reports filed by the registrant pursuant
to Section 13 or Section 15(d) of the Securities Exchange Act of 1934
that are incorporated by reference in this 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 the registration by means of a post-effective amendment any of the
securities being registered which remain unsold at the termination of the
offering.
(b) The
undersigned registrant hereby undertakes that, for purposes of determining any
liability under the Securities Act of 1933, as amended, each filing of a
Registrant’s annual report pursuant to Section 13(a) or Section 15(d)
of the Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan’s annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in this
Registration Statement shall be deemed to be a new registration statement
relating to the securities offered herein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar
as indemnification for liabilities arising under the Securities Act of 1933 may
be permitted to directors, officers and controlling persons of the undersigned
Registrant pursuant to the 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 undersigned Registrant of
expenses incurred or paid by a director, officer of controlling person of the
Registrant in the successful defense of any action, suit or proceeding) is
asserted by such director, 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 the 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.
SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, as amended, East West
Bancorp, Inc. certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-3 and has duly caused
this Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of San Marino, State of California on the
5th day of October 2005.
| |
EAST
WEST BANCORP, INC. |
| |
By: |
/s/ DOUGLAS
P. KRAUSE |
| |
|
Douglas
P. Krause
Executive
Vice President |
Pursuant
to the requirements of the Securities Act of 1933, as amended, this Registration
Statement has been signed by the following persons in the capacities and on the
dates indicated. Each of the directors and/or officers of East West
Bancorp, Inc. whose signature appears below hereby appoints Julia Gouw and
Douglas Krause, and each of them severally, as his or her attorney-in-fact to
sign in his or her name and behalf, in any and all capacities stated below and
to file with the Securities and Exchange Commission any and all amendments,
including post-effective amendments, to this Registration Statement on
Form S-3, making such changes in the Registration Statement as appropriate,
and generally to do all such things in their behalf in their capacities as
directors and/or officers to enable East West Bancorp, Inc. to comply with
the provisions of the Securities Act of 1933, and all requirements of the
Securities and Exchange Commission.
|
Signature
|
|
Title
|
|
Date
|
| |
|
|
|
|
|
/s/ DOMINIC
NG |
|
Chairman
of the Board, President and Chief Executive Officer (principal executive
officer) |
|
October 5,
2005 |
|
Dominic
Ng |
|
|
/s/ JULIA
GOUW |
|
Executive
Vice President and Chief Financial Officer (principal financial and
accounting officer) |
|
October 5,
2005 |
|
Julia
Gouw |
|
|
/s/ PEGGY
T. CHERNG |
|
Director |
|
October 5,
2005 |
|
Peggy
T. Cherng |
|
|
/s/ JOHN
KOOKEN |
|
Director |
|
October
5, 2005 |
|
John
Kooken |
|
|
/s/ HERMAN
Y. LI |
|
Director |
|
October 5,
2005 |
|
Herman
Y. Li |
|
|
/s/ KEITH
RENKEN |
|
Director |
|
October 5,
2005 |
|
Keith
Renken |
|
|
/s/ JACK
LIU |
|
Director |
|
October 5,
2005 |
|
Jack
Liu |
|
|
/s/ RUDOLPH
ESTRADA |
|
Director |
|
October 5,
2005 |
|
Rudolph
Estrada |
|