- Current report filing (8-K)
December 09 2008 - 4:07PM
Edgar (US Regulatory)
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
Current
Report
Pursuant to Section 13 or 15(d) of
the Securities Exchange Act of 1934
December 5
, 2008
Date of Report (date of earliest event
reported)
EAST WEST BANCORP, INC.
(Exact name of registrant as
specified in its charter)
Commission file number 000-24939
Delaware
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95-4703316
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(State or Other Jurisdiction of
Incorporation or Organization)
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(IRS Employer Identification Number)
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135 N Los Robles Ave., 7th
Floor, Pasadena, California 91101
(Address of principal executive offices including zip code)
(626) 768-6000
(Registrants telephone number, including
area code)
Check the appropriate box below if the Form 8-K filing is intended
to simultaneously satisfy the filing obligation of the registrant under any of
the following provisions (see General Instruction A.2. below):
o
Written
communications pursuant to Rule 425 under the Securities Act (17 CFR
230.425)
o
Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
o
Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17
CFR 240.14d-2(b))
o
Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17
CFR 240.13e-4(c))
ITEM 3.02
UNREGISTERED SALES OF EQUITY SECURITIES
On December 5, 2008, East
West Bancorp (the Registrant) entered into a letter agreement, including the
Securities Purchase Agreement Standard Terms incorporated by reference
therein (the Purchase Agreement), with the United States Department of the
Treasury (the Treasury), pursuant to which the Registrant agreed to issue and
sell (i) 306,546 shares of the Registrants Fixed Rate Cumulative
Perpetual Preferred Stock, Series B, par value $0.001 per share (the Series B
Preferred Stock) and (ii) a warrant (the Warrant) to purchase 3,035,109
shares of the Registrants common stock, par value $0.001 per share (the Common
Stock), for an aggregate purchase price of $306,546,000 in cash. The Purchase
Agreement is attached as Exhibit 10.1 hereto and is incorporated herein by
reference.
The Series B Preferred
Stock will qualify as Tier 1 capital and will pay cumulative dividends at a
rate of 5% per annum for the first five years, and thereafter at a rate of
9% per annum, if, as, and when declared by the Registrants Board of
Directors out of funds legally available therefor. Subject to the approval of the Board of
Governors of the Federal Reserve System, the Preferred Shares are redeemable at
the option of the Registrant at 100% of their liquidation preference (plus any
accrued and unpaid dividends), provided, however, that the Preferred Shares may
be redeemed prior to the first dividend payment date falling after the third
anniversary of the Closing Date (February 15, 2012) only if (i) the
Registrant has raised aggregate gross proceeds in one or more Qualified Equity
Offerings (as defined in the Purchase Agreement) in excess of $76,636,500, and (ii) the
aggregate redemption price does not exceed the aggregate net proceeds from such
Qualified Equity Offerings. The
restrictions on redemption are set forth in the Certificate of Designations
described in Item 5.03 below and are incorporated herein by reference.
The Warrant has a 10-year term
and is immediately exercisable upon its issuance, with an exercise price,
subject to certain anti-dilution and other adjustments, equal to $15.15 per
share of Common Stock. The Warrant, dated December 5, 2008, is attached as
Exhibit 4.2 hereto and is incorporated herein by reference.
The Series B Preferred
Stock and the Warrant were sold in a private placement exempt from registration
pursuant to Section 4(2) of the Securities Act of 1933, as amended.
Upon the request of the Treasury at any time, the Registrant has agreed to
promptly enter into a deposit arrangement pursuant to which the Series B
Preferred Stock may be deposited and depositary shares (Depositary Shares),
representing fractional shares of Series B Preferred Stock, may be issued.
The Registrant has agreed to register the Series B Preferred Stock, the
Warrant, the shares of Common Stock underlying the Warrant (the Warrant Shares)
and Depositary Shares, if any, as soon as practicable after the date of the
issuance of the Series B Preferred Stock and the Warrant. Neither the Series B
Preferred Stock nor the Warrant will be subject to any contractual restrictions
on transfer, except that the Treasury may only transfer or exercise an
aggregate of one-half of the Warrant Shares prior to the earlier (i) the
date on which the Registrant has received
2
aggregate gross proceeds of not
less than $306,546,000 from one or more Qualified Equity Offerings and (ii) December 31,
2009. In the event the Registrant completes
one or more Qualified Equity Offerings on or prior to December 31, 2009
that result in the Registrant receiving aggregate gross proceeds of at least
$306,546,000, the number of Warrant Shares underlying the portion of the
Warrant then held by the U.S. Treasury will be reduced by one-half of the
Warrant Shares originally covered by the Warrant.
The Purchase Agreement pursuant
to which the Preferred Shares and the Warrant were sold contains limitations on
the payment of dividends or distributions on the Common Stock and on the
Registrants ability to repurchase, redeem or acquire its Common Stock or other
securities, as described in Item 3.03 below and incorporated herein by
reference.
Under the Purchase Agreement, the Registrant will be subject to certain
executive compensation limits included under the Emergency Economic
Stabilization Act of 2008 (the EESA) and related guidance and regulations. Among other things, in the Purchase Agreement,
the Registrant agreed that, until such time as the Treasury ceases to own any
debt or equity securities of the Registrant acquired pursuant to the Purchase
Agreement or the Warrant, the Registrant will take all necessary action to
ensure that its compensation, bonus, incentive and other benefit plans,
arrangements and agreements with respect to its senior executive officers
(within the meaning of EESA) comply with Section 111(b) of the EESA
as implemented by any guidance or regulation under the EESA that has been
issued and is in effect as of the date of issuance of the Series B
Preferred Stock, and further agreed to not adopt any such plans, arrangements
or agreements with respect to, or which covers, its senior executive officers
that do not comply with the EESA, and the applicable executives have consented
to the foregoing. The Registrants
senior executive officers have agreed that all of the compensation, bonus,
incentive and other benefit plans, arrangements and agreements of the
Registrant applicable to them are amended to comply with the EESA and the
relevant guidance and regulations.
ITEM 3.03
MATERIAL MODIFICATION TO RIGHTS OF SECURITY HOLDERS
Upon issuance of the Series B
Preferred Stock on December 5, 2008, pursuant to the terms of the Purchase
Agreement, the ability of the Registrant to declare or pay dividends or
distributions on, or purchase, redeem or otherwise acquire for consideration,
shares of its Junior Stock (as defined in the Purchase Agreement) and Parity
Stock (as defined in the Purchase Agreement) will be subject to restrictions,
including the Registrants restriction against increasing Common Stock
dividends from current levels. The redemption, purchase or other acquisition of
trust preferred securities of the Registrant or its affiliates also will be
restricted. These restrictions will terminate on the earlier of (a) the
third anniversary of the date of issuance of the Series B Preferred Stock
and (b) the date on which the Series B Preferred Stock has been
redeemed in whole or the Treasury has transferred all of the Series B
Preferred Stock to third parties.
3
In addition, pursuant to the
Certificate of Designations, the ability of the Registrant to declare or pay
dividends or distributions on, or repurchase, redeem or otherwise acquire for consideration,
shares of its Junior Stock and Parity Stock will be subject to restrictions in
the event that the Registrant fails to declare and pay full dividends (or
declare and set aside a sum sufficient for payment thereof) on its Series B
Preferred Stock. These restrictions are set forth in the Certificate of
Designations described in Item 5.03 and are incorporated herein by
reference.
ITEM 5.02
DEPARTURE OF DIRECTORS OR CERTAIN OFFICERS;
ELECTION OF DIRECTORS; APPOINTMENT OF CERTAIN OFFICERS; COMPENSATORY
ARRANGEMENTS OF CERTAIN OFFICERS
(e) The information concerning executive compensation set
forth under Item 3.02 Unregistered Sales of Equity Securities is incorporated
by reference into this Item 5.02.
ITEM 5.03
AMENDMENT TO ARTICLES OF INCORPORATION OR
BYLAWS; CHANGE IN FISCAL YEAR
On December 3, 2008, the
Registrant filed a Certificate of Designations (the Certificate of
Designations) with the Delaware Secretary of State for the purpose of amending
its Restated Certificate of Incorporation to fix the designations, preferences,
limitations and relative rights of the Series B Preferred Stock. The Series B
Preferred Stock has a liquidation preference of $1,000 per share. The
Certificate of Designations is filed as an exhibit to this Report on Form 8-K
as Exhibit 3.1, and is incorporated by reference into this Item 5.03.
ITEM 7.01
REGULATION FD DISCLOSURE
On December 5, 2008, the
Registrant issued a press release regarding the Registrants issuance to the
Treasury of the Series B Preferred Stock and the Warrant. A copy of the
press release is attached hereto as Exhibit 99.1.
ITEM 9.01
FINANCIAL STATEMENTS AND EXHIBITS
(d) Exhibits
3.1,4.1
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Certificate of Designations for the Series B Preferred Stock
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4.2
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Warrant for Purchase of Shares of Common Stock
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4.3
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Form of Preferred Share Certificate for Fixed Rate Cumulative
Perpetual Preferred Stock, Series B
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10.1
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Letter Agreement, dated December 5, 2008, including Securities
Purchase Agreement Standard Terms incorporated by reference therein, by and
between the Registrant and the United States Department of the Treasury
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10.2
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Form of Waiver, executed by each of Wellington Chen, Donald
Chow, Julia Gouw, Douglas P. Krause, and
Dominic Ng
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10.3
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Form of Consent, executed by each of Wellington Chen, Donald
Chow, Julia Gouw, Douglas P. Krause, and
Dominic Ng
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4
99.1
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Press Release dated December 5, 2008
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SIGNATURES
Pursuant to the requirements of the
Securities Exchange Act of 1934, as amended, the Registrant has duly caused
this report to be signed on its behalf by the undersigned thereunto duly
authorized.
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EAST WEST BANCORP
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By:
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/s/ Douglas P. Krause
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Douglas P. Krause
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Executive Vice President, General
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Counsel and Corporate Secretary
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Date: December 5, 2008
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EXHIBIT INDEX
Exhibit No.
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Number Description
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3.1,4.1
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Certificate of Designations for the Series B Preferred Stock
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4.2
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Warrant for Purchase of Shares of Common Stock
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4.3
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Form of Preferred Share Certificate for Fixed Rate Cumulative
Perpetual Preferred Stock, Series B
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10.1
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Letter Agreement, dated December 5, 2008, including Securities
Purchase Agreement Standard Terms incorporated by reference therein, by and
between the Registrant and the United States Department of the Treasury
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10.2
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Form of Waiver, executed by each of Wellington Chen, Donald
Chow, Julia Gouw, Douglas P. Krause, and Dominic Ng
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10.3
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Form of Consent, executed by each of Wellington Chen, Donald
Chow, Julia Gouw, Douglas P. Krause, and Dominic Ng
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99.1
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Press Release dated December 5, 2008
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5
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