EXHIBIT 3.1
RESTATED
CERTIFICATE OF INCORPORATION
OF
CATHAY BANCORP, INC.
(PURSUANT TO SECTIONS 241 AND 245 OF THE
GENERAL CORPORATION LAW OF THE STATE OF DELAWARE)
1. The name of the corporation is Cathay Bancorp, Inc. (the
"Corporation").
2. The original Certificate of Incorporation of the Corporation
was filed in the Office of the Secretary of State of the State of Delaware on
March 1, 1990.
3. The Corporation has not received any payment for any of its
stock.
4. This Restated Certificate of Incorporation was duly adopted by
the Board of Directors of the Corporation in accordance with Sections 241 and
245 of the General Corporation Law of the State of Delaware.
5. The text of the Certificate of Incorporation of the
Corporation is hereby amended and restated to read in its entirety as follows:
FIRST: The name of the corporation is Cathay Bancorp, Inc. (the
"Corporation").
SECOND: The address of the Corporation's registered office in the State
of Delaware is 1209 Orange Street, City of Wilmington, County of New Castle,
19801. The name of the Corporation's registered agent at such address is The
Corporation Trust Company.
THIRD: The purpose of the Corporation is to engage in any lawful act or
activity for which corporations may be organized under the General Corporation
Law of the State of Delaware.
FOURTH: (a) The total number of shares of capital stock which the
Corporation shall have authority to issue is 35,000,000 shares, consisting of
25,000,000 shares of Common Stock, par value $.01 per share ("Common Stock") and
10,000,000 shares of Preferred Stock, par value $.01 per share ("Preferred
Stock").
(b) Except as otherwise provided in this Restated Certificate
of Incorporation, each holder of Common Stock shall be entitled to one vote for
each share of Common Stock held on all matters submitted to stockholders for a
vote.
(c) Shares of Preferred Stock may be issued in one or more
series, from time to time, with each such series to consist of such number of
shares and to have such voting powers, full or limited, or no voting powers,
and such designations, preferences and relative, participating, optional or
other special rights, and the qualifications, limitations or restrictions
thereof, as shall be stated in the resolution or resolutions providing for the
issuance of such series adopted by the Board of Directors of the Corporation,
and the Board of Directors is hereby expressly vested with authority, to the
full extent now or hereafter provided by law, to adopt any such resolution or
resolutions.
FIFTH: (a) Except as otherwise provided for or fixed by or pursuant
to the provisions of Article FOURTH of this Restated Certificate of
Incorporation or any resolution or resolutions of the Board of Directors
providing for the issuance of any class or series of stock having a preference
over the Common Stock as to dividends or upon liquidation to elect additional
directors under specified circumstances, the Board of Directors shall consist
of not fewer than 3 nor more than 25 directors, the exact number of directors
within such limits to be determined as set forth in the Bylaws of the
Corporation. The directors, other than those who may be elected by the holders
of Preferred Stock or any other class or series of stock having a preference
over the Common Stock as to dividends or upon liquidation pursuant to the terms
of this Restated Certificate of Incorporation or any resolution or resolutions
providing for the issuance of such class or series of stock adopted by the
Board of Directors, shall be classified with respect to the time for which they
severally hold office, into three classes, as nearly equal in number as
possible. The initial Class I Directors shall be those persons named as such by
the Incorporator, who shall serve for a term expiring at the first annual
meeting of stockholders of the Corporation following March 1, 1990; the initial
Class II Directors shall be those person named as such by the Incorporator, who
shall serve for a term expiring at the second annual meeting of stockholders
following March 1, 1990; and the initial Class III Directors shall be those
persons named as such by the Incorporator, who shall serve for a term expiring
at the third annual meeting of stockholders following March 1, 1990. Each
director in each such class shall hold office until his or her successor is
duly elected and qualified. At each annual meeting of stockholders beginning
with the first annual meeting of stockholders following March 1, 1990, the
successors of the class of directors whose term expires at that meeting shall
be elected to hold office for a term expiring at the annual meeting of
stockholders to be held in the third year following the year of their election,
with each director in each such class to hold office until his or her successor
is duly elected and qualified.
(b) Except as otherwise provided for or fixed by or pursuant
to the provisions of Article FOURTH of this Restated Certificate of
Incorporation or any resolution or resolutions of the Board of Directors
providing for the issuance of any class or series of stock having a preference
over the Common Stock as to dividends or upon liquidation to elect additional
directors under specified circumstances, any director may
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be removed from office only for cause, and only with the affirmative vote of at
least 80% of the combined voting power of the then outstanding shares of all
classes and series of stock of the Corporation entitled to vote generally in the
election of directors ("Voting Stock"), voting together as a single class.
SIXTH: Subject to the rights of holders of Preferred Stock or any other
class or series of stock having a preference over the Common Stock as to
dividends or upon liquidation, any action required or permitted to be taken by
the stockholders of the Corporation may be effected only at a duly called annual
or special meeting of stockholders of the Corporation and may not be effected by
any consent in writing by such stockholders.
SEVENTH: In furtherance and not in limitation of the powers conferred
upon it by law, the Board of Directors is expressly authorized to adopt, repeal,
alter or amend the Bylaws of the Corporation by the vote of a majority of the
entire Board of Directors then in office, unless at the time of such action
there shall be an Interested Stockholder (as defined in Article NINTH of this
Restated Certificate of Incorporation), in which case such action of the Board
of Directors to amend the Bylaws shall not be effective without the approval of
a majority of the Continuing Directors (as defined in Article NINTH of this
Restated Certificate of Incorporation) then in office. In addition to any
requirements of law and any other provision of this Restated Certificate of
Incorporation or any resolution or resolutions of the Board of Directors adopted
pursuant to Article FOURTH of this Restated Certificate of Incorporation (and
notwithstanding the fact that a lesser percentage may be specified by law, this
Restated Certificate of Incorporation or any such resolution or resolutions),
the affirmative vote of the holders of 80% or more of the Voting Stock (as
defined in Article FIFTH of this Restated Certificate of Incorporation), voting
together as a single class, shall be required to adopt, amend, alter or repeal
any provision of the Bylaws.
EIGHTH: To the fullest extent that the General Corporation Law of the
State of Delaware or any other law of the State of Delaware as it exists on the
date hereof or as it may hereafter be amended permits the limitation or
elimination of the liability of directors, no director of the Corporation shall
be liable to the Corporation or its stockholders for monetary damages for breach
of fiduciary duty as a director. No amendment to, or modification or repeal of,
this Article EIGHTH shall apply to or have any effect on the liability or
alleged liability of any director of the Corporation for or with respect to acts
or omissions of such director occurring prior to such amendment, modification or
repeal.
NINTH: (a) In addition to any affirmative vote required by law or
this Restated Certificate of Incorporation or the Bylaws of the Corporation, and
except as otherwise expressly provided in Section (b) of this Article NINTH, a
Business Combination (as hereinafter defined) with, or proposed by or on behalf
of, any Interested
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Stockholder (as hereinafter defined) or any Affiliate or Associate (as
hereinafter defined) of any Interested Stockholder or any person who after such
Business Combination would be an Affiliate or Associate of such Interested
Stockholder shall require the affirmative vote of not less than 80 percent of
the votes entitled to be cast by the holders of all of the then outstanding
shares of Voting Stock (as defined in Article FIFTH of this Restated Certificate
of Incorporation), voting together as a single class, excluding Voting Stock
beneficially owned by such Interested Stockholder. Such affirmative vote shall
be required notwithstanding the fact that no vote may be required, or that a
lesser percentage or separate class vote may be specified, by law, by any other
provision of this Restated Certificate of Incorporation or the Bylaws of the
Corporation, by any agreement with any national securities exchange or
otherwise.
(b) The provisions of Section(a) of this Article NINTH shall
not be applicable to any particular Business Combination, and such Business
Combination shall require only such affirmative vote, if any, as is required by
law, by any other provision of this Restated Certificate of Incorporation or
the Bylaws of the Corporation, by any agreement with any national securities
exchange or otherwise, if, in the case of a Business Combination involving the
receipt of consideration by the holders of the Corporation's outstanding
Capital Stock (as hereinafter defined), the condition specified in paragraph
(i) below is met or all of the conditions specified in paragraph (ii) below are
met or if, in the case of a Business Combination not involving the receipt of
consideration by the holders of the Corporation's outstanding Capital Stock,
the condition specified in paragraph (i) below is met:
(i) Approval by Continuing Directors. The Business
Combination (either specifically or as a transaction which is within an approved
category of transactions) shall have been approved by a majority of the
Continuing Directors (as hereinafter defined).
(ii) Minimum Price and Other Requirements. All of the
following conditions shall have been met:
(A) Minimum Price Requirements. With respect to
every class or series of outstanding Capital Stock of the Corporation,
whether or not the Interested Stockholder has previously acquired
beneficial ownership of any shares of such class or series of Capital
Stock:
(1) The aggregate amount of cash plus the
Fair Market Value (as hereinafter defined), as of the date
of the consummation of the Business Combination, of
consideration other than cash to be received per share by
holders of Common Stock in such Business Combination shall
be at least equal to the higher of (x) the highest per-
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share price (including any brokerage commissions, transfer
taxes and soliciting dealers' fees) paid by or on behalf
of the Interested Stockholder for any share of Common
Stock in connection with the acquisition by the Interested
Stockholder of beneficial ownership of shares of Common
Stock (i) within the two-year period immediately prior to
the Announcement Date (as hereinafter defined) or (ii) in
the transaction or series of related transactions in which
it became an Interested Stockholder, whichever is higher,
in either case as adjusted for any subsequent stock split,
stock dividend, subdivision or reclassification with
respect to Common Stock; and (y) the Fair Market Value per
share of Common Stock (i) on the Announcement Date or (ii)
on the Determination Date (as hereinafter defined),
whichever is higher, as adjusted for any subsequent stock
split, stock dividend, subdivision or reclassification
with respect to Common Stock.
(2) The aggregate amount of cash plus the
Fair Market Value, as of the date of the consummation of
the Business Combination, of consideration other than cash
to be received per share by holders of shares of any class
or series of outstanding Capital Stock, other than Common
Stock, shall be at least equal to the highest of (x) the
highest per-share price (including any brokerage
commissions, transfer taxes and soliciting dealers' fees)
paid by or on behalf of the Interested Stockholder for any
share of such class or series of Capital Stock in
connection with the acquisition by the Interested
Stockholder of beneficial ownership of shares of such
class or series of Capital Stock (i) within the two-year
period immediately prior to the Announcement Date or (ii)
in the transaction or series of related transactions in
which it became an Interested Stockholder, whichever is
higher, in either case as adjusted for any subsequent
stock split, stock dividend, subdivision or
reclassification with respect to such class or series of
Capital Stock; (y) the Fair Market Value per share of such
class or series of Capital Stock (i) on the Announcement
Date or (ii) on the Determination Date, whichever is
higher, as adjusted for any subsequent stock split, stock
dividend, subdivision or reclassification with respect to
such class or series of Capital Stock; and (z) the highest
preferential amount per share, if any, to which the
holders of shares of such class or series of Capital Stock
would be entitled in the event of any voluntary or
involuntary
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liquidation, dissolution or winding up of the affairs of
the Corporation regardless of whether the Business
Combination to be consummated constitutes such an event.
(B) Other Requirements.
(1) The consideration to be received by
holders of a particular class or series of outstanding
Capital Stock shall be in cash or in the same form as
previously has been paid by or on behalf of the Interested
Stockholder in connection with its direct or indirect
acquisition of beneficial ownership of shares of such
class or series of Capital Stock. If the consideration so
paid for shares of any class or series of Capital Stock
varies as to form, the form of consideration for such
class or series of Capital Stock shall be either cash or
the form paid by or on behalf of the Interested
Stockholder in connection with its direct or indirect
acquisition of beneficial ownership of the largest number
of shares of such class or series of Capital Stock.
(2) After the Determination Date and prior
to the consummation of such Business Combination (w) there
shall have been no failure to declare and pay at the
regular date therefor any full regular dividends (whether
or not cumulative) payable in accordance with the terms of
any outstanding Capital Stock, other than the Common
Stock, except as approved by a majority of the Continuing
Directors; (x) there shall have been no reduction in the
amount, or change in the frequency of payment, of any
dividends regularly paid on the Common Stock (except as
necessary to reflect any stock split, stock dividend,
subdivision or reclassification of the Common Stock),
except as approved by a majority of the Continuing
Directors; (y) there shall have been an increase in the
amount of any dividends regularly paid on the Common Stock
as necessary to reflect any reverse stock split or
reclassification of the Common Stock, or any split,
recapitalization, reorganization or any similar
transaction that has the effect of reducing the number of
outstanding shares of Common Stock, unless the failure so
to increase the amount of such dividends is approved by a
majority of the Continuing Directors; and (z) such
Interested Stockholder shall not have become the
beneficial owner of any additional shares of Capital Stock
except as part of or
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otherwise in connection with the transaction or series of
related transactions that resulted in such Interested
Stockholder becoming an Interested Stockholder (including
the exercise of any right to purchase additional shares of
Capital Stock granted to any Interested Stockholder by the
Corporation in connection with such transactions or series
of related transactions) and except in a transaction or
series of related transactions that, after giving effect
thereto, would not result in any increase in the
Interested Stockholder's percentage beneficial ownership
of any class or series of Capital Stock.
(3) After the Determination Date, such
Interested Stockholder shall not have received the
benefit, directly or indirectly (except proportionately as
a stockholder of the Corporation), of any loans, advances,
guarantees, pledges or other financial assistance or any
tax credits or other tax advantages provided by the
Corporation, whether in anticipation of or in connection
with such Business Combinations or otherwise.
(4) A proxy or information statement
describing the proposed Business Combination and complying
with the requirements of the Securities Exchange Act of
1934, as amended, and the rules and regulations thereunder
(the "Act") (or any subsequent provisions replacing such
Act), shall be mailed to all stockholders of the
Corporation at least 30 days prior to the consummation of
such Business Combination (whether or not proxy or
information statement is required to be mailed pursuant to
such Act or subsequent provisions). Such proxy or
information statement shall contain, in a prominent place,
any statement as to the advisability (or inadvisability)
or the Business Combination that the Continuing Directors,
or any of them, may choose to make and, if deemed
advisable by a majority of the Continuing Directors, the
opinion of an investment banking firm selected by a
majority of the Continuing Directors as to the fairness
(or not) or the terms of the Business Combination from a
financial point of view to the holders of the outstanding
shares of Capital Stock other than the Interested
Stockholder and its Affiliates or Associates, such
investment banking firm to be paid a reasonable fee for
its services by the Corporation.
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(5) After the Determination Date, such
Interested Stockholder shall not have made any majority
change in the Corporation's business or capital structure
without the approval of a majority of the Continuing
Directors.
(c) The following definitions shall apply with respect to this
Article NINTH.
(i) The term "Business Combination" shall mean: (A)
any merger or consolidation of the Corporation or any Subsidiary (as hereinafter
defined) with (1) any Interested Stockholder or (2) any other company (whether
or not itself an Interested Stockholder) that is or after such merger or
consolidation would be an Affiliate or Associate of an Interested Stockholder;
or (B) any sale, lease, exchange, mortgage, pledge, transfer or other
disposition, or any security arrangement, investment, loan, advance, guarantee,
agreement to purchase, agreement to pay, extension of credit, joint venture
participation or other arrangement, in one transaction or in a series of
transactions, with or for the benefit of any Interested Stockholder or any
Affiliate or Associate of any Interested Stockholder involving any assets,
securities or commitments of the Corporation, any Subsidiary, and Interested
Stockholder or any Affiliate or Associate of any Interested Stockholder that,
together with all other such arrangements, has an aggregate Fair Market Value
and/or involves aggregate commitments equal to 10% or more of the book value of
the total assets (in the case of transactions involving assets or commitments
other than capital stock) or 10% of the stockholders' equity (in the case of
transactions in capital stock) of the entity in question (the "Substantial
Part"), as reflected in the most recent fiscal year-end consolidated balance
sheet of such entity existing at the time the stockholders of the Corporation
would be required to approve or authorize the Business Combination involving the
assets, securities and/or commitments constituting any Substantial Part; or (C)
the adoption of any plan or proposal for the liquidation or dissolution of the
Corporation which any Interested Stockholder votes for or consents to; or (D)
any issuance or reclassification of securities (including any stock dividend,
split or reverse split or any other distribution of securities in respect of
stock), any recapitalization of the Corporation, any merger or consolidation of
the Corporation with any of its Subsidiaries or any other transaction (whether
or not with or otherwise involving an Interested Stockholder) that has the
effect, directly or indirectly, of increasing the proportionate share of any
class or series of Capital Stock, or any securities convertible into or rights,
options or warrants to acquire Capital Stock or equity securities of any
Subsidiary, that is beneficially owned by any Interested Stockholder or any
Affiliate or Associate of any Interested Stockholder; or (E) any agreement,
arrangement or other understanding providing for any one or more of the actions
specified in the foregoing clauses (A) to (D).
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(ii) The term "Capital Stock" shall mean all capital
stock of the Corporation authorized to be issued from time to time under Article
FOURTH of this Restated Certificate of Incorporation.
(iii) The term "person" shall mean any individual, firm,
company or other entity and shall include any group comprised of any person and
any other person with whom such person or any Affiliate or Associate of such
person has any agreement, arrangement or understanding, directly or indirectly,
for the purpose of acquiring, holding, voting or disposing of Capital Stock.
(iv) The term "Interested Stockholder" shall mean any
person (other than the Corporation or any Subsidiary and other than any
profit-sharing, employee stock ownership or other employee benefit plan of the
Corporation or any Subsidiary or any trustee of or fiduciary with respect to any
such plan when acting in such capacity) who (1) is, or has publicly disclosed a
plan or intention to become, the beneficial owner of Voting Stock representing
10% or more of the votes entitled to be cast by the holders of all then
outstanding shares of Voting Stock or (2) is an Affiliate or Associate of the
Corporation and at any time within the two-year period immediately prior to the
date in question was the beneficial owner of Voting Stock representing 10% or
more of the votes entitled to be cast by the holders of all then outstanding
shares of Voting Stock.
(v) A person shall be a "beneficial owner" of, shall
"beneficially own" and shall have "beneficial ownership" of any Capital Stock
(A) that such person or any of its Affiliates or Associates owns, directly or
indirectly; (B) that such person or any of its Affiliates or Associates has,
directly or indirectly, (1) the right to acquire (whether such right is
exercisable immediately or subject only to the passage of time), pursuant to any
agreement, arrangement or understanding or upon the exercise of conversion
rights, exchange rights, warrants or options, or otherwise, or (2) the right to
vote pursuant to any agreement, arrangement or understanding; or (C) which is
beneficially owned, directly or indirectly, by any other person with which such
person or any of its Affiliates or Associates has any agreement, arrangement or
understanding for the purpose of acquiring, holding, voting or disposing of any
shares of Capital Stock. For the purposes of determining whether a person is an
Interested Stockholder pursuant to paragraph (iv) of this Section (c), the
number of shares of Capital Stock deemed to be outstanding shall include shares
deemed beneficially owned by such person through application of this paragraph
(v) of this Section (c), but shall not include any other shares of Capital Stock
that may be issuable pursuant to any agreement, arrangement or understanding, or
upon exercise of conversion rights, warrants or options, or otherwise.
(vi) The terms "Affiliate" and "Associate" shall have
the respective meanings ascribed to such terms in Rule 12b-2 under the Act as in
effect on
9
the date that this Article NINTH is approved by the Board of Directors of the
Corporation (the term "registrant" in Rule 12b-2 meaning in this case the
Corporation).
(vii) The term "Subsidiary" means any company of which a
majority of any class of equity securities are beneficially owned, directly or
indirectly, by the Corporation; provided, however, that for the purposes of the
definition of Interested Stockholder set forth in paragraph (iv) of this Section
(c), the term "Subsidiary" shall mean only a company of which a majority of each
class of equity security is beneficially owned by the Corporation.
(viii) The term "Continuing Director," with respect to
any particular Business Combination with, or proposed by or on behalf of, any
Interested Stockholder or any Affiliate or Associate of any Interested
Stockholder or any person who thereafter would be an Affiliate or Associate of
any Interested Stockholder, means any member of the Board of Directors of the
Corporation (the "Board of Directors"), while such person is a member of the
Board of Directors, who is not an Affiliate, Associate or representative of such
Interested Stockholder and was a member of the Board of Directors prior to the
time that such Interested Stockholder became an Interested Stockholder, and any
successor of a Continuing Director while such successor is a member of the Board
of Directors, who is not an Affiliate or Associate or representative of such
Interested Stockholder and is recommended or elected to succeed the Continuing
Director by a majority of Continuing Directors.
(ix) The term "Fair Market Value" means (x) in the case
of cash, the amount of such cash; (y) in the case of stock, the highest closing
sale price during the 30-day period immediately preceding the date in question
of a share of such stock on the Composite Tape for New York Stock
Exchange-listed stocks, or, if such stock is not quoted on the Composite Tape,
on the New York Stock Exchange, or, if such stock is not listed on such
Exchange, on the principal United States securities exchange registered under
the Act on which such stock is listed, or, if such stock is not listed on any
such exchange, the highest closing sale price with respect to a share of such
stock during the 30-day period preceding the date in question as reported by the
National Association of Securities Dealers, Inc. Automated Quotation System or
any similar system then in use, or if no such sales prices are available, the
highest of the means between the last reported bid and asked price with respect
to a share of such stock on each day during the 30-day period preceding the date
in question as reported by the National Association of Securities Dealers, Inc.
Automated Quotation System, or if not so reported, as determined by a member
firm of the National Association of Securities Dealers, Inc. selected by the
Continuing Directors, or if no such bid and asked prices are available, the fair
market value on the date in question of a share of such stock as determined in
good faith by a majority of the Continuing Directors; and (z) in the case of
property other than cash or stock, the fair market value of such property on the
date in question as determined in good faith by a majority of the Continuing
Directors.
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(x) In the event of any Business Combination in which
the Corporation survives, the phrase "consideration other than cash to be
received" as used in paragraphs (ii)(A)(1) and (ii)(A)(2) of Section(b) of this
Article NINTH shall include the shares of Common Stock and/or the shares of any
other class or series of Capital Stock retained by the holders of such shares.
(xi) The term "Announcement Date" means the date on
which the proposed Business Combination is first publicly announced, disclosed
or reported.
(xii) The term "Determination Date" means with respect
to any Interested Stockholder the later of the date that this Article NINTH is
approved by the Board of Directors of the Corporation or the date on which such
Interested Stockholder became an Interested Stockholder.
(d) For the purpose of this Article NINTH, a majority of the
Continuing Directors shall have the power and duty to determine in good faith,
on the basis of information known to them after reasonable inquiry, all
questions arising under this Article NINTH, including, without limitation, (i)
whether a person is an Interested Stockholder, (ii) the number of shares of
Capital Stock beneficially owned by any person, (iii) whether a person is an
Affiliate or Associate of another, (iv) whether a Business Combination or any
proposal to amend, repeal or adopt any provision of this Restated Certificate of
Incorporation inconsistent with this Article NINTH (collectively, a "Proposed
Action") is with, or proposed by or on behalf of, an Interested Stockholder or
an Affiliate or Associate of an Interested Stockholder or a person who
thereafter would be an Interested Stockholder or an Affiliate or Associate of an
Interested Stockholder, and (v) whether any transaction specified in paragraph
(i)(B) of Section (c) of this Article NINTH meets the Substantial Part test set
forth therein; except that a majority of the entire Board of Directors shall
have the power and duty to determine in good faith, on the basis of information
known to them after reasonable investigation, whether a director is a
"Continuing Director" as defined in paragraph (viii) of Section(c) of this
Article NINTH. Any such determination made in good faith shall be binding and
conclusive on all parties.
(e) (i) Nothing contained in this Article NINTH shall be
construed to relieve any Interested Stockholder from any fiduciary obligation
imposed by law.
(ii) The fact that any Business Combination complies
with the provisions of Section (b) of this Article NINTH shall not be construed
to impose any fiduciary duty, obligation or responsibility on the Board of
Directors, or any member thereof, to approve such Business Combination or
recommend its adoption or approval to the stockholders of the Corporation, nor
shall such compliance limit, prohibit or otherwise restrict in any manner the
Board of Directors, or any member thereof, with
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respect to evaluations of or actions and responses taken with respect to such
Business Combination.
TENTH: (a) In addition to any affirmative vote required by law or by
this Restated Certificate of Incorporation or the Bylaws of the Corporation, and
except as otherwise expressly provided in Section (b) of this Article TENTH, the
Corporation shall not knowingly engage, directly or indirectly, in any Stock
Repurchase (as hereinafter defined) from an Interested Stockholder (as
hereinafter defined), who has been such for a period of less than two years
prior to the date of such Stock Repurchase or any agreement in respect thereof,
without the affirmative vote of a majority of the votes entitled to be cast by
the holders of all then outstanding shares of Voting Stock which are
beneficially owned by persons other than such Interested Stockholder, voting
together as a single class. Such affirmative vote shall be required
notwithstanding the fact that no vote may be required, or that a lesser
percentage or separate class vote may be specified, by law or in any agreement
with any national securities exchange or otherwise.
(b) The provisions of Section (a) of this Article TENTH shall
not be applicable to any particular Stock Repurchase from an Interested
Stockholder, and such Stock Repurchase shall require only such affirmative vote,
if any, as is required by law or by any other provision of this Restated
Certificate of Incorporation or the Bylaws of the Corporation, or any agreement
with any national securities exchange, if: (i) the Stock Repurchase is made
pursuant to a tender offer or exchange offer for a class of Capital Stock (as
defined in Article NINTH of this Restated Certificate of Incorporation) made
available on the same basis to all holders of such class of Capital Stock; or
(ii) the Stock Repurchase is made pursuant to an open market purchase program
approved by a majority of the Continuing Directors (as defined in Article NINTH
of this Restated Certificate of Incorporation), provided that such repurchase is
effected on the open market and is not the result of a privately negotiated
transaction.
(c) For the purposes of this Article TENTH:
(i) The term "Stock Repurchase" shall mean any
repurchase, directly or indirectly, by the Corporation or any Subsidiary of any
shares of Capital Stock at a price greater than the then Fair Market Value of
such shares.
(ii) The term "Interested Stockholder" shall mean any
person (other than the Corporation or any Subsidiary and other than any
profit-sharing, employee stock ownership or other employee benefit plan of the
Corporation or any Subsidiary or any trustee of or fiduciary with respect to any
such plan when acting in such capacity) who (A) is the beneficial owner of
Voting Stock representing five percent (5%) or more of the votes entitled to be
cast by the holders of all then outstanding shares of Voting Stock; or (B) is an
Affiliate or Associate of the Corporation and at any time within the two-year
period immediately prior to the date in question was the beneficial
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owner of Voting Stock representing five percent (5%) or more of the votes
entitled to be cast by the holders of all then outstanding shares of Voting
Stock.
(iii) The terms "person," "beneficial owner,"
"Affiliate," "Associate," "Subsidiary," "Continuing Director" and "Fair Market
Value" shall have the respective meanings set forth in Article NINTH of this
Restated Certificate of Incorporation.
(d) The Board of Directors shall have the power and duty to
determine for the purposes of this Article TENTH, on the basis of information
known to them after reasonable inquiry, (i) whether a person is an Interested
Stockholder, (ii) the number of shares of Capital Stock or other securities
beneficially owned by any person, (iii) whether a person is an Affiliate or
Associate of another and (iv) whether the consideration to be paid in any Stock
Repurchase has an aggregate Fair Market Value in excess of the then Fair Market
Value of the shares of Capital Stock being repurchased. Any such determination
made in good faith shall be binding and conclusive on all parties.
(e) Nothing contained in this Article TENTH shall be construed
to relieve any Interested Stockholder from any fiduciary obligation imposed by
law.
ELEVENTH:(a) Except as set forth in this Article ELEVENTH,
stockholders of the Corporation shall not be entitled to cumulative voting in
connection with the election of directors. In the event that the Corporation has
a Substantial Stockholder (as hereinafter defined) at the time of any election
of directors, each holder of Voting Stock (as defined in Article FIFTH of this
Restated Certificate of Incorporation) shall be entitled, in connection with any
vote taken for such election of directors, to as many votes as shall equal the
number of votes which (except for this Article ELEVENTH) such stockholder would
be entitled to cast for the election of directors with respect to such
stockholder's shares of Voting Stock multiplied by the number of directors to be
elected by such stockholder, and such stockholder may cast all of such votes for
election of a single director or may distribute them among the number of
directors to be voted for, or for any two or more of them as such stockholder
may see fit.
(b) For purposes of this Article ELEVENTH:
(i) The term "Substantial Stockholder" shall mean any
person (other than the Corporation or any Subsidiary and other than any
profit-sharing, employee stock ownership or other employee benefit plan of the
Corporation or any Subsidiary or any trustee of or fiduciary with respect to any
such plan when acting in such capacity) who is the beneficial owner of Voting
Stock representing forty percent (40%) or more of the votes entitled to be cast
by the holders of all then outstanding shares of Voting Stock.
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(ii) The terms "beneficial owner," "Capital Stock,"
"person," "Affiliate," "Associate," "Subsidiary," "Fair Market Value" and
"Continuing Director" shall have the meanings set forth in Article NINTH of this
Restated Certificate of Incorporation.
(c) The Board of Directors shall have the power and duty to
determine for the purposes of this Article ELEVENTH on the basis of information
known to them after reasonable inquiry, (i) whether a person is a Substantial
Stockholder, (ii) the number of shares of Voting Stock or other securities
beneficially owned by any person, and (iii) whether a person is an Affiliate or
Associate of another. Any such determination made in good faith shall be binding
and conclusive on all parties.
(d) Nothing contained in this Article ELEVENTH shall be
construed to relieve any Substantial Stockholder from any fiduciary obligation
imposed by law.
TWELFTH: The Board of Directors of the Corporation, when evaluating any
offer to (a) make a tender or exchange offer for any equity security of the
Corporation, (b) merge or consolidate the Corporation with another person, or
(c) purchase or otherwise acquire all or substantially all of the properties and
assets of the Corporation (an "Acquisition Proposal"), shall, in connection with
the exercise of its business judgment, give due consideration to all relevant
factors, including without limitation the social and economic effects thereof
and of consummation thereof on the employees, customers, suppliers and other
constituents of the Corporation and its subsidiaries and on the communities in
which the Corporation and its subsidiaries operate or are located and the
desirability of maintaining independence from any other entity which is a
customer or competitor of the Corporation.
THIRTEENTH: In addition to any requirements of law and any other
provisions of this Restated Certificate of Incorporation or any resolution or
resolutions of the Board of Directors adopted pursuant to Article FOURTH of this
Restated Certificate of Incorporation (and notwithstanding the fact that a
lesser percentage may be specified by law, this Restated Certificate of
Incorporation or any such resolution or resolutions), the affirmative vote of
the holders of 80% or more of the combined voting power of the then outstanding
shares of Voting Stock, voting together as a single class, shall be required to
amend, alter or repeal ARTICLES FIFTH, SIXTH, SEVENTH, EIGHTH, NINTH, TENTH,
ELEVENTH, TWELFTH and THIRTEENTH of this Restated Certificate of Incorporation.
Subject to the foregoing provisions of this Article THIRTEENTH, the Corporation
reserves the right to amend, alter or repeal any provision contained in this
Restated Certificate of Incorporation in the manner now or hereinafter
prescribed by statute, and all rights conferred upon stockholders herein are
subject to this reservation.
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IN WITNESS WHEREOF, Cathay Bancorp, Inc. has caused this Restated
Certificate of Incorporation to be executed by Dunson K. Cheng, its President,
and attested by Wilbur K. Woo, its Secretary, this 17th day of May, 1990.
ATTEST: CATHAY BANCORP, INC.
By: /s/ Wilbur K. Woo By: /s/ Dunson K. Cheng
------------------------------- -------------------------
Wilbur K. Woo Dunson K. Cheng
Secretary President
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