As filed with the Securities and Exchange Commission on April 26, 2006
Registration No. 333-
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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CATHAY GENERAL BANCORP
(Exact name of registrant as specified in its charter)
Delaware 95-4274680
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
777 North Broadway
Los Angeles, California 90012
(213) 625-4700
(Address, including zip code, and telephone number, including area code,
of Registrant's principal executive offices)
Dunson K. Cheng
Chairman, President and Chief Executive Officer
Cathay General Bancorp
777 North Broadway
Los Angeles, California 90012
(213) 625-4700
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
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Copies of all communications to:
James M. Rockett, Esq.
Maureen A. Young, Esq.
Venrice R. Palmer, Esq.
Bingham McCutchen LLP
Three Embarcadero Center
San Francisco, California 94111
Telephone: (415) 393-2000
Facsimile: (415) 393-2286
Email: James.Rockett@Bingham.com
Maureen.Young@Bingham.com
Venrice.Palmer@Bingham.com
Approximate date of commencement of proposed sale to the public: As
soon as practicable after the effective date of this Registration Statement.
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
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: [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) 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. [ ]
If this Form is a post-effective amendment filed pursuant to Rule
462(d) under the Securities Act, check the following box and list the Securities
Act registration number of the earlier effective registration statement for the
same offering. [ ]
If this Form is a registration statement pursuant to General
Instruction I.D. or a post-effective amendment thereto that shall become
effective upon filing with the Commission pursuant to Rule 462(e) under the
Securities Act, check the following box. [X]
If this Form is a post-effective amendment to a registration statement
filed pursuant to General Instruction I.D. filed to register additional
securities or additional classes of securities pursuant to Rule 413(b) under the
Securities Act, check the following box. [ ]
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CALCULATION OF REGISTRATION FEE
PROPOSED PROPOSED
MAXIMUM MAXIMUM
AMOUNT OFFERING AGGREGATE AMOUNT OF
TITLE OF EACH CLASS OF SECURITIES TO BE PRICE OFFERING REGISTRATION
TO BE REGISTERED REGISTERED PER SHARE (3) PRICE FEE (3)
---------------------------------------- -------------- -------------- ---------------- --------------
Common Stock, $0.01 par value (1) 1,181,164(2) $ 38.27 $ 45,203,146.28 $ 4,836.74
(1) Also includes associated rights to purchase preferred stock of the
Registrant, which rights are not currently separable from the shares of
common stock and are not currently exercisable.
(2) The common stock being registered consists of 1,181,164 shares of common
stock issued to electing shareholders of Great Eastern Bank after the
closing of the Registrant's tender offer for Great Eastern Bank, which
expired on April 6, 2006.
(3) Estimated solely for purposes of calculating the registration fee, based
upon the average of the high and low closing prices on Nasdaq on April 24,
2006, pursuant to Rule 457(c) under the Securities Act.
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PROSPECTUS
1,181,164 SHARES
[LOGO OF CATHAY GENERAL BANCORP]
777 NORTH BROADWAY
LOS ANGELES, CALIFORNIA 90012
COMMON STOCK
This prospectus relates to the offer and sale from time to time by the
selling stockholders listed under "Selling Stockholders" in this prospectus of
up to 1,181,164 shares of our common stock. We will not receive any proceeds
from the sale of shares by the selling stockholders. The selling stockholders
acquired the shares of our common stock covered by this prospectus after the
closing of the tender offer we made for the outstanding shares of Great Eastern
Bank, which expired on April 6, 2006, as further described in the documents
incorporated by reference into this prospectus and below under "Selling
Stockholders".
The prices at which the selling stockholders may sell the shares will
be determined by the prevailing market price for shares of our common stock or
through privately negotiated transactions.
Our common stock is listed on the Nasdaq National Market under the
symbol "CATY." On April 25, 2006, the last reported sale price of our common
stock on the Nasdaq National Market was $38.76 per share.
Investing in our common stock involves risks. See the "Risk Factors" which begin
on page 5.
None of the Securities and Exchange Commission, any state securities
commission, the Federal Deposit Insurance Corporation, the Board of Governors of
the Federal Reserve System, the California Department of Financial Institutions,
the New York State Superintendent of Banks or any other regulatory body has
approved or disapproved of the shares of Cathay common stock offered hereby or
passed upon the adequacy or accuracy of this prospectus. Any representation to
the contrary is a criminal offense.
The shares of Cathay common stock offered hereby are not deposits or
other obligations of a bank and are not insured by the Federal Deposit Insurance
Corporation, the Bank Insurance Fund or any other governmental agency.
The date of this prospectus is April 26, 2006.
TABLE OF CONTENTS
Page
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Prospectus Summary 3
Risk Factors 4
Forward-Looking Statements 9
Use of Proceeds 10
Selling Stockholders 10
Description of Capital Stock 13
Plan of Distribution 16
Legal Matters 18
Experts 18
Where You Can Find More Information 18
Incorporation of Certain Documents by Reference 18
In this prospectus, "Cathay," the "company," "we," "us," and "our" refer to
Cathay General Bancorp.
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This prospectus is part of a registration statement on Form S-3 that we
filed with the Securities and Exchange Commission using a "shelf" registration
process. Under this process, shares of Cathay common stock that the selling
stockholders received upon the completion of the tender offer by Cathay for
outstanding shares of Great Eastern Bank may be sold from time to time as
described under "PLAN OF DISTRIBUTION" in this prospectus.
You should rely only on the information contained in this prospectus.
We have not authorized anyone to provide you with information different from
that contained in this prospectus. This prospectus is offering to sell, and is
seeking offers to buy, shares of common stock only in jurisdictions where offers
and sales are permitted. The information contained in this prospectus is
accurate only as of the date of this prospectus.
2
PROSPECTUS SUMMARY
GENERAL
Cathay General Bancorp is a Delaware corporation and is registered as a
bank holding company under the Bank Holding Company act of 1956, as amended. As
a bank holding company, Cathay is allowed to acquire or invest in the securities
of companies that are engaged in banking or in activities closely related to
banking as authorized by the Board of governors of the Federal Reserve System.
As of December 31, 2005, Cathay had consolidated total assets of
approximately $6.4 billion, total net loans of approximately $4.57 billion,
total deposits of approximately $4.92 billion, and approximately $773.6 million
in stockholders' equity. Cathay common stock trades on the Nasdaq National
Market under the symbol "CATY."
CATHAY BANK
Cathay's principal asset is its wholly-owned subsidiary, Cathay Bank, a
California state-chartered commercial bank, which is among the leading banks in
the United States serving the Chinese community.
Founded in 1962, Cathay Bank offers a wide range of financial services.
Cathay Bank currently operates twenty-nine branches in California, four branches
in New York State, one in Massachusetts, one in Houston, Texas, one in
Washington state, and representative offices in Taipei, Hong Kong, and Shanghai.
Cathay Bank's website address is http://www.cathaybank.com. The information on
Cathay Bank's website is not a part of this prospectus.
ADDITIONAL INFORMATION CONCERNING CATHAY AND CATHAY BANK
Information concerning:
o directors and executive officers of Cathay;
o executive compensation;
o principal stockholders;
o certain relationships and related party transactions;
o and other matters concerning Cathay and Cathay Bank;
o financial statements and other financial and business-related
information,
is included in Cathay's filings with the SEC which are incorporated by reference
into this prospectus. See "Where You Can Find More Information" and
"Incorporation of Certain Documents by Reference" in this prospectus.
3
RISK FACTORS
In deciding whether to purchase the common stock, you should consider
the following risks in addition to the other matters discussed in this document
and in the documents incorporated by reference in this document.
THE ALLOWANCE FOR LOAN LOSSES IS AN ESTIMATE OF PROBABLE LOAN LOSSES. ACTUAL
LOAN LOSSES IN EXCESS OF THE ESTIMATE COULD ADVERSELY AFFECT OUR NET INCOME AND
CAPITAL.
The allowance for loan losses is based on management's estimate of the
probable losses from our loan portfolio. If actual losses exceed the estimate,
the excess losses could adversely affect our net income and capital. Such excess
could also lead to larger allowances for loan losses in future periods, which
could in turn adversely affect net income and capital in those periods. If
economic conditions differ substantially from the assumptions used in the
estimate or adverse developments arise with respect to our loans, future losses
may occur, and increases in the allowance may be necessary. In addition, various
regulatory agencies, as an integral part of their examination process,
periodically review the adequacy of our allowance. These agencies may require us
to establish additional allowances based on their judgment of the information
available at the time of their examinations. No assurance can be given that we
will not sustain loan losses in excess of present or future levels of the
allowance for loan losses.
FLUCTUATIONS IN INTEREST RATES COULD REDUCE OUR NET INTEREST INCOME AND
ADVERSELY AFFECT OUR BUSINESS.
The interest rate risk inherent in our lending, investing, and deposit
taking activities is a significant market risk to us and our business. Income
associated with interest-earning assets and costs associated with
interest-bearing liabilities may not be affected uniformly by fluctuations in
interest rates. The magnitude and duration of changes in interest rates, events
over which we have no control, may have an adverse effect on net interest
income. Prepayment and early withdrawal levels, which are also impacted by
changes in interest rates, can significantly affect our assets and liabilities.
Increases in interest rates may adversely affect the ability of our floating
rate borrowers to meet their higher payment obligations, which could in turn
lead to an increase in non-performing assets and net charge-offs.
Generally, the interest rates on interest-earning assets and
interest-bearing liabilities of the Company do not change at the same rate, to
the same extent, or on the same basis. Even assets and liabilities with similar
maturities or periods of repricing may react in different degrees to changes in
market interest rates. Interest rates on certain types of assets and liabilities
may fluctuate in advance of changes in general market interest rates, while
interest rates on other types of assets and liabilities may lag behind changes
in general market rates. Certain assets, such as fixed and adjustable rate
mortgage loans, have features that limit changes in interest rates on a
short-term basis and over the life of the asset.
We seek to minimize the adverse effects of changes in interest rates by
structuring our asset-liability composition to obtain the maximum spread. We use
interest rate sensitivity analysis and a simulation model to assist us in
estimating the optimal asset-liability composition. However, such management
tools have inherent limitations that impair their effectiveness. There can be no
assurance that we will be successful in minimizing the adverse effects of
changes in interest rates. See also the sections entitled "Risks Elements of the
Loan Portfolio" under Item 7 and "Market Risk" under Item 7A of our Annual
Report on Form 10-K incorporated by reference into this prospectus.
4
WE HAVE ENGAGED IN AND MAY CONTINUE TO ENGAGE IN FURTHER EXPANSION THROUGH
MERGERS AND ACQUISITIONS, WHICH COULD NEGATIVELY AFFECT OUR BUSINESS AND
EARNINGS.
We have engaged in and may continue to engage in expansion through
mergers and acquisitions. There are risks associated with such expansion. These
risks include, among others, incorrectly assessing the asset quality of a bank
acquired in a particular transaction, encountering greater than anticipated
costs in integrating acquired businesses, facing resistance from customers or
employees, and being unable to profitably deploy assets acquired in the
transaction. Additional country- and region-specific risks are associated with
transactions outside the United States, including in China. To the extent we
issue capital stock in connection with additional transactions, these
transactions and related stock issuances may have a dilutive effect on earnings
per share and share ownership.
Our earnings, financial condition, and prospects after a merger or
acquisition depend in part on our ability to successfully integrate the
operations of the acquired company. We may be unable to integrate operations
successfully or to achieve expected cost savings. Any cost savings which are
realized may be offset by losses in revenues or other charges to earnings.
INFLATION AND DEFLATION MAY ADVERSELY AFFECT OUR FINANCIAL PERFORMANCE.
The consolidated financial statements and related financial data
presented in this prospectus have been prepared in accordance with accounting
principles generally accepted in the United States. These principles require the
measurement of financial position and operating results in terms of historical
dollars, without considering changes in the relative purchasing power of money
over time due to inflation or deflation. The primary impact of inflation on the
operations of the Company is reflected in increased operating costs. Conversely,
deflation will tend to erode collateral values and diminish loan quality.
Virtually all of our assets and liabilities are monetary in nature. As a result,
interest rates have a more significant impact on our performance than the
general levels of inflation or deflation. Interest rates do not necessarily move
in the same direction or in the same magnitude as the price of goods and
services.
AS WE EXPAND OUR BUSINESS OUTSIDE OF CALIFORNIA MARKETS, WE WILL ENCOUNTER RISKS
THAT COULD ADVERSELY AFFECT US.
We primarily operate in California markets with a concentration of
Chinese-American individuals and businesses; however, one of our strategies is
to expand beyond California into other domestic markets that have concentrations
of Chinese-American individuals and businesses. In the course of this expansion,
we will encounter significant risks and uncertainties that could have a material
adverse effect on our operations. These risks and uncertainties include
increased operational difficulties arising from, among other things, our ability
to attract sufficient business in new markets, to manage operations in
noncontiguous market areas, and to anticipate events or differences in markets
in which we have no current experience.
To the extent that we expand through acquisitions, such acquisitions
may also adversely harm our business, if we fail to adequately address the
financial and operational risks associated with such acquisitions. For example,
risks can include difficulties in assimilating the operations, technology, and
personnel of the acquired company; diversion of management's attention from
other business concerns; inability to maintain uniform standards, controls,
procedures and policies; potentially dilutive issuances of equity securities;
incurrence of additional debt and contingent liabilities; use of cash resources;
large write-offs; and amortization expenses related to other intangible assets
with finite lives.
5
OUR FINANCIAL RESULTS COULD BE ADVERSELY AFFECTED BY CHANGES IN CALIFORNIA TAX
LAW AND CHANGES IN ITS INTERPRETATION RELATING TO REGISTERED INVESTMENT
COMPANIES AND REAL ESTATE INVESTMENT TRUSTS.
Our effective income tax rate was lower in 2002 and 2001 than in
subsequent years due in large part to income tax benefits derived from a
registered investment company subsidiary of Cathay Bank. We had relied on the
California tax law related to registered investment companies and on an outside
tax opinion in creating this subsidiary. In the fourth quarter of 2003, a change
in that law was enacted by the California Legislature, which would deny such tax
benefits from and after January 1, 2003. On December 31, 2003, the California
Franchise Tax Board (FTB) announced its position that certain tax deductions
related to regulated investment companies as well as real estate investment
trusts prior to January 1, 2003 would also be disallowed.
In December, 2002, we decided to deregister the registered investment
company and, in February, 2003, we completed such deregistration. In addition,
in the fourth quarter of 2003, the Company reversed the net state tax benefits
recorded in the first three quarters of 2003 relating to the real estate
investment trust (REIT) that it formed as a subsidiary of Cathay Bank during
2003. The Company did not record any tax benefits relating to the REIT in the
fourth quarter of 2003 and did not record any such benefits in 2004 or 2005.
As previously disclosed, on December 31, 2003, the California Franchise
Tax Board (FTB) announced its intent to list certain transactions that in its
view constitute potentially abusive tax shelters. Included in the transactions
subject to this listing were transactions utilizing regulated investment
companies (RICs) and real estate investment trusts (REITs). As part of the
notification indicating the listed transactions, the FTB also indicated its
position that it intends to disallow tax benefits associated with these
transactions. While the Company continues to believe that the tax benefits
recorded in three prior years with respect to its regulated investment company
were appropriate and fully defensible under California law, the Company has
deemed it prudent to participate in Voluntary Compliance Initiative - Option 2,
requiring payment of all California taxes and interest on these disputed 2000
through 2002 tax benefits, and permitting the Company to claim a refund for
these years while avoiding certain potential penalties. The Company retains
potential exposure for assertion of an accuracy-related penalty should the FTB
prevail in its position in addition to the risk of not being successful in its
refund claims. As of December 31, 2005, the Company reflected a $12.1 million
net state tax receivable for the years 2000, 2001, and 2002 after giving effect
to reserves for loss contingencies on the refund claims, or an equivalent of
$7.9 million after giving effect to Federal tax benefits. The FTB is currently
in the process of reviewing and assessing our refund claims for taxes and
interest for tax years 2000 through 2002. Although the Company believes its tax
deductions related to the regulated investment company were appropriate and
fully defensible, there can be no assurance of the outcome of its refund claims,
and an adverse outcome on the refund claims could result in a loss of all or a
portion of the $7.9 million net state tax receivable after giving effect to
Federal tax benefits.
ADVERSE ECONOMIC CONDITIONS IN CALIFORNIA AND OTHER REGIONS WHERE CATHAY BANK
HAS OPERATIONS COULD CAUSE US TO INCUR LOSSES.
Our banking operations are concentrated primarily in Southern and
Northern California, and secondarily in New York, Texas, Massachusetts, and
Washington. Adverse economic conditions in these regions, such as the current
California budget deficit and its impact could impair borrowers' ability to
service their loans, decrease the level and duration of deposits by customers,
and erode the value of loan collateral. These events could increase the amount
of our non-performing assets and have an adverse effect on our efforts to
collect our non-performing loans or otherwise liquidate our non-performing
assets (including other real estate owned) on terms favorable to us.
6
Real estate securing our lending activities is also principally located
in Southern and Northern California, and to a lesser extent, in New York, Texas,
Massachusetts, and Washington. The value of such collateral depends upon
conditions in the relevant real estate markets. These include general or local
economic conditions and neighborhood characteristics, real estate tax rates, the
cost of operating the properties, governmental regulations and fiscal policies,
acts of nature including earthquakes, flood and hurricanes (which may result in
uninsured losses), and other factors beyond our control.
THE RISKS INHERENT IN CONSTRUCTION LENDING MAY ADVERSELY AFFECT OUR NET INCOME.
As a result of the merger with GBC Bancorp, the Company has a higher
proportion of real estate construction loans than it did before the merger. The
risks inherent in construction lending may adversely affect our net income. Such
risks include, among other things, the possibility that contractors may fail to
complete, or complete on a timely basis, construction of the relevant
properties; substantial cost overruns in excess of original estimates and
financing; market deterioration during construction; and lack of permanent
take-out financing. Loans secured by such properties also involve additional
risk because such properties have no operating history. In these loans, loan
funds are advanced upon the security of the project under construction, which is
of uncertain value prior to completion of construction, and the estimated
operating cash flow to be generated by the completed project. There is no
assurance that such properties will be sold or leased so as to generate the cash
flow anticipated by the borrower. Such consideration can affect the borrowers'
ability to repay their obligations to us and the value of our security interest
in collateral.
OUR USE OF APPRAISALS IN DECIDING WHETHER TO MAKE A LOAN ON OR SECURED BY REAL
PROPERTY DOES NOT INSURE THE VALUE OF THE REAL PROPERTY COLLATERAL.
In considering whether to make a loan on or secured by real property,
we generally require an appraisal of such property. However, the appraisal is
only an estimate of the value of the property at the time the appraisal is made.
If the appraisal does not reflect the amount that may be obtained upon any sale
or foreclosure of the property, we may not realize an amount equal to the
indebtedness secured by the property.
WE FACE SUBSTANTIAL COMPETITION FROM LARGER COMPETITORS.
We face substantial competition for deposits and loans, as well as
other banking services, throughout our market area from the major banks and
financial institutions that dominate the commercial banking industry. This may
cause our cost of funds to exceed that of our competitors. Such banks and
financial institutions have greater resources than us, including the ability to
finance advertising campaigns and allocate their investment assets to regions of
higher yield and demand. By virtue of their larger capital bases, such
institutions have substantially greater lending limits than us and perform
certain functions, including trust services, which are not presently offered by
us. We also compete for loans and deposits, as well as other banking services,
with savings and loan associations, finance companies, money market funds,
brokerage houses, credit unions and non-financial institutions.
7
ADVERSE EFFECTS OF BANKING REGULATIONS OR CHANGES IN BANKING REGULATIONS COULD
ADVERSELY AFFECT OUR BUSINESS.
We are regulated by significant federal and state regulation and
supervision, which is primarily for the benefit and protection of our customers
or which serve other public policies and not for the benefit of our
stockholders. In the past, our business has been materially affected by such
regulation and supervision. This trend is likely to continue in the future.
Laws, regulations, or policies currently affecting us may change at any time.
Regulatory authorities may also change their interpretation of existing laws and
regulations. It is impossible to predict the competitive impact that any such
changes would have on commercial banking in general or on our business in
particular. Such changes may, among other things, increase the cost of doing
business, limit permissible activities, or affect the competitive balance
between banks and other financial institutions.
ADVERSE ECONOMIC CONDITIONS IN ASIA COULD ADVERSELY AFFECT OUR BUSINESS.
It is difficult to predict the behavior of the Asian economy. U.S.
economic policies, military tensions, and an unfavorable global economic
condition may adversely impact the Asian economy. If the Asian economic
conditions deteriorate, we could be exposed to economic and transfer risk, and
could experience an outflow of deposits by our Asian-American customers.
Transfer risk may result when an entity is unable to obtain the foreign exchange
needed to meet its obligations or to provide liquidity. This may adversely
impact the recoverability of investments with or loans made to such entities.
Adverse economic conditions may also negatively impact asset values and the
profitability and liquidity of companies operating in this region.
STATUTORY RESTRICTIONS ON DIVIDENDS AND OTHER DISTRIBUTIONS FROM CATHAY BANK MAY
ADVERSELY IMPACT US.
A substantial portion of Cathay's cash flow comes from dividends that
Cathay Bank pays to us. Various statutory provisions restrict the amount of
dividends that Cathay Bank can pay without regulatory approval. In addition, if
Cathay Bank were to liquidate, Cathay Bank's creditors would be entitled to
receive distributions from the assets of Cathay Bank to satisfy their claims
against Cathay Bank before we, as a holder of an equity interest in Cathay Bank,
would be entitled to receive any of the assets of Cathay Bank.
OUR NEED TO CONTINUE TO ADAPT TO OUR INFORMATION TECHNOLOGY SYSTEMS TO ALLOW US
TO PROVIDE NEW AND EXPANDED SERVICES COULD PRESENT OPERATIONAL ISSUES AND
REQUIRE SIGNIFICANT CAPITAL SPENDING.
As we continue to offer internet banking and other on-line services to
our customers, and continue to expand our existing conventional banking
services, we will need to adapt our information technology systems to handle
these changes in a way that meets constantly changing industry and regulatory
standards. This can be very expensive and may require significant capital
expenditures. In addition, our success will depend, among other things, on our
ability to provide secure and reliable services, anticipate changes in
technology, and efficiently develop and introduce services that are accepted by
our customers and cost effective for us to provide. Systems failures, delays,
breaches of confidentiality and other problems could harm our reputation and
business.
8
CERTAIN PROVISIONS OF OUR CHARTER, BYLAWS, AND RIGHTS AGREEMENT COULD MAKE THE
ACQUISITION OF OUR COMPANY MORE DIFFICULT.
Certain provisions of our Charter, Bylaws, and Rights Agreement between
us and American Stock Transfer and Trust Company, as Rights Agent, could make
the acquisition of our company more difficult. These provisions include
authorized but unissued shares of preferred and common stock that may be issued
without stockholder approval; three classes of directors serving staggered
terms; preferred share purchase rights that generally become exercisable if a
person or group acquires 15% or more of our common stock or announces a tender
offer for 15% or more of our common stock; special requirements for stockholder
proposals and nominations for director; and super-majority voting requirements
in certain situations including certain types of business combinations.
TERRORIST ATTACKS COULD ADVERSELY AFFECT US.
Any terrorist attacks and responses to such activities could adversely
affect the Company in a number of ways, including, among others, an increase in
delinquencies, bankruptcies or defaults that could result in a higher level of
non-performing assets, net charge-offs, and provision for loan losses.
CAUTIONARY STATEMENT REGARDING FORWARD-LOOKING STATEMENTS
The statements in this prospectus include forward-looking statements
within the meaning of the applicable provisions of the Private Securities
Litigation Reform Act of 1995 regarding management's beliefs, projections, and
assumptions concerning future results and events. These forward-looking
statements may include, but are not limited to, such words as "believes,"
"expects," "anticipates," "intends," "plans," "estimates," "may," "will,"
"should," "could," "predicts," "potential," "continue," or the negative of such
terms and other comparable terminology or similar expressions. Forward-looking
statements are not guarantees. They involve known and unknown risks,
uncertainties, and other factors that may cause the actual results, performance,
or achievements of Cathay to be materially different from any future results,
performance, or achievements expressed or implied by such forward-looking
statements. Such risks and uncertainties and other factors include, but are not
limited to adverse developments or conditions related to or arising from:
o expansion into new market areas;
o acquisitions of other banks, if any;
o fluctuations in interest rates;
o demographic changes;
o competitive pressures;
o deterioration in asset or credit quality;
o changes in the availability of capital;
o legislative and regulatory developments;
o changes in business strategy, including the formation of a real estate
investment trust;
o general economic or business conditions in California and other regions
where Cathay Bank has operations; and
o other factors discussed in this prospectus under "Risk Factors."
9
Actual results in any future period may also vary from the past results
discussed in this prospectus. Given these risks and uncertainties, we caution
investors in the common stock not to place undue reliance on any forward-looking
statements, which speak as of the date of this prospectus. We have no intention
and undertake no obligation to update any forward-looking statement or to
publicly announce the results of any revision of any forward-looking statement
to reflect future developments or events.
USE OF PROCEEDS
All of the shares of common stock offered pursuant to this prospectus
are being offered by the selling stockholders listed under "Selling
Stockholders." We will not receive any proceeds from sales of common stock by
the selling stockholders.
SELLING STOCKHOLDERS
The selling stockholders under this prospectus are listed in the table
below. The selling stockholders acquired their Cathay shares in a tender offer
by Cathay completed in April of 2006. Cathay offered to certain stockholders of
Great Eastern Bank to acquire their shares of Great Eastern for Cathay stock or
cash, with stock being available only to Great Eastern stockholders who
qualified as accredited investors under the provisions of Regulation D under the
Securities Act. Those stockholders are the selling stockholders identified
below.
During 2004, Cathay was approached by a number of stockholders of Great
Eastern who discussed with Cathay the possibility of selling their Great Eastern
stock to Cathay. Various discussions between these stockholders and Cathay
ensued. In August of 2005, Cathay entered into stock option agreements with
stockholders who in the aggregate held approximately 41% of the outstanding
stock of Great Eastern (the "Optionors"). Under the terms of the options, Cathay
had the right to buy the Optionors' shares at $40 per share; however, Cathay
agreed that during any period of time in which Cathay and Great Eastern were in
exclusive negotiations or had entered into a definitive agreement for a business
combination, Cathay would not exercise the options but instead would allow the
Optionors to retain their Great Eastern shares and participate in the business
combination under the terms of any agreement between Cathay and Great Eastern.
Cathay and Great Eastern entered into an Agreement and Plan of Merger
dated as of February 16, 2006, pursuant to which Cathay agreed to commence the
tender offer for all of the shares of Great Eastern in which shareholders would
receive $58.44 for each share of Great Eastern common stock acquired by Cathay
in the tender offer. Accredited investors could elect to receive the merger
consideration in shares of Cathay common stock and the offer was conditioned on
accredited investors holding at least 45% of the outstanding shares of Great
Eastern common stock electing to receive unregistered Cathay common stock.
Pursuant to the merger agreement, Cathay agreed to file with the SEC a
registration statement (of which this prospectus is a part) to allow those
accredited investors who received unregistered Cathay common stock to publicly
resell such Cathay stock. The tender offer closed on April 6, 2006, resulting in
the issuance of a total of 1,181,164 Cathay common shares, which shares are
being offered by this prospectus.
10
The directors and executive officers and certain stockholders of Great
Eastern who formerly owned in the aggregate more than two-thirds of the
outstanding shares of Great Eastern entered into voting and irrevocable proxy
agreements with Cathay and Cathay Bank in which they agreed to support the
tender offer and the merger of Great Eastern into Cathay Bank. Under these
agreements, these selling stockholders agreed to tender all of their shares into
the tender offer and that on any Great Eastern stockholder vote, they would vote
to approve the merger and related transactions and against any opposing proposal
or any alternative transaction, and not be involved in any proxy solicitation or
initiate a stockholder vote regarding any opposing proposal, or become a member
of a group with respect to any voting securities of Great Eastern concerning an
opposing proposal.
These selling stockholders also agreed (with some limited exceptions)
not to dispose of any of their Great Eastern common stock prior to the
termination of the support agreements.
These voting agreements will remain in effect until the effective time
of the merger.
The following table sets forth information with respect to the selling
stockholders and the number of shares of common stock which are being offered by
each selling stockholder pursuant to this prospectus.
PERCENT OF NUMBER OF SHARES
NUMBER OF SHARES OUTSTANDING REGISTERED FOR
NAME OF SELLING STOCKHOLDER OWNED(1)(2) SHARES SALE HEREBY
------------------------------ ---------------- ---------------- ----------------
AKM Associates LLC 173,040(3) * 173,040
Hsiu-Yin Chen 8,499 * 8,499
Jen-Ter Chen 84,532 * 84,532
Joanne Y. Chen 40,093 * 40,093
Lung-Chu Chen 6,512(4) * 6,512
Lung-Fong Chen 51,452 * 51,452
Ching-Tai Chiang 38,559 * 38,559
Wen-Hui Chiang 54,026 * 54,026
Dorcas & Kalam Co. 52,530 * 52,530
Fumi Hsu 32,806(3) * 32,806
Henry Hsu 3,391(3) * 3,391
Hsiou-Fong Huang 35,502 * 35,502
Phillip C. Huang 16,207 * 16,207
Tsue-Hsing Huang 67,586 * 67,586
Ching-Ling Hwu 13,568 * 13,568
Joseph C. C. Kuo 15,436(3) * 15,436
Lih-Yuh Kuo 160,339(3) * 160,339
John S. Lai 3,272 * 3,272
Kuo-Pin Lai 33,415(3) * 33,415
Sng Un Lai 4,630 * 4,630
Paul C. Lee 15,067 * 15,067
Richard T. Lai 12,271(4) * 12,271
Jen Li & Lan In Chen 7,531(3) * 7,531
Ja S. Lin 21,056 * 21,056
11
PERCENT OF NUMBER OF SHARES
NUMBER OF SHARES OUTSTANDING REGISTERED FOR
NAME OF SELLING STOCKHOLDER OWNED(1)(2) SHARES SALE HEREBY
------------------------------ ---------------- ---------------- ----------------
Shung-Mei Lin 26,233 * 26,233
Jacklyn Y. C. Tung 1,643 * 1,643
Guang Tsan Wang 45,573(3) * 45,573
Hsin Tzu Wang 25,100 * 25,100
Sue Wang 5,021(3) * 5,021
Herbert A. Whitehouse 33,109(4) * 33,109
David Wu 2,509 * 2,509
Lihhwa Cheng Wu 2,509 * 2,509
Chung-Hua Lee Yu 12,027(3) * 12,027
Guang Wey Yu 3,272(3) * 3,272
Juei-Tsui Yu 15,369(3) * 15,369
Jih-Main Yu 7,799(3) * 7,799
Juei-Hsiang Yu 21,429(3) * 21,429
King-Teh Yu 15,757(4) * 15,757
Sin-Nee Yu 10,962(3) * 10,962
Shirley M. Yu 1,532(3) * 1,532
* Less than 1% of the Company's outstanding shares.
(1) All share ownership information was provided to us by the selling
stockholders.
(2) Assumes that all of the shares held by the selling stockholders and being
offered hereby are sold, and that the selling stockholders acquire no additional
shares of common stock prior to completion of this offering.
(3) The selling stockholder was an Optionor.
(4) The selling stockholder was a former director of Great Eastern.
12
DESCRIPTION OF CATHAY CAPITAL STOCK
COMMON STOCK
Cathay's authorized capital stock consists of (a) 100,000,000 shares of
common stock, par value $0.01 per share, of which 50,281,910 shares were issued
and outstanding as of March 31, 2006; and (b) 10,000,000 shares of preferred
stock, par value $0.01 per share, of which 100,000 shares are designated as
Series A Junior Participating Preferred, but none of which shares of preferred
stock are issued and outstanding. Please note that, as described in "Risk
Factors - Certain provisions of our charter, bylaws, and rights agreement could
make the acquisition of our Company more difficult."
Cathay common stock is listed for trading on the Nasdaq National Market
under the symbol "CATY."
Cathay's stockholders do not have preemptive rights to subscribe to any
additional securities that may be issued by Cathay. Each share of Cathay common
stock has the same relative rights and is identical in all respects to every
other share of Cathay common stock. If Cathay is liquidated, the holders of
Cathay common stock are entitled to share, on a pro rata basis, Cathay's
remaining assets after provision for liabilities and following the payment of
the full amount of liquidation preference to the holders of any outstanding
shares of Series A Participating Preferred Stock or any other series of
preferred stock which may be outstanding at that time.
PREFERRED STOCK
The board of directors of Cathay is authorized to issue preferred stock
in one or more series and to fix the designations, preferences and rights of the
shares of each such series and the qualifications, limitations and restrictions
thereon. Any preferred stock issued by Cathay may rank prior to common stock as
to dividend rights, liquidation preferences, or both, may have full or limited
voting rights, and may be convertible into shares of common stock.
ANTI-TAKEOVER PROVISIONS IN CATHAY'S CERTIFICATE OF INCORPORATION AND
BYLAWS
General. Cathay's restated certificate of incorporation and restated
bylaws contain certain provisions that deal with matters of corporate governance
and certain rights of stockholders which might be deemed to have a potential
"anti-takeover" effect. These provisions may have the effect of discouraging a
future takeover attempt which is not approved by the board of directors but
which individual stockholders may deem to be in their best interest, or in which
stockholders may receive a substantial premium for their shares over then
current market prices. As a result, stockholders who might desire to participate
in such a transaction may not have an opportunity to do so. Such provisions will
also render the removal of an incumbent board of directors or management more
difficult.
The following description of certain of the provisions of Cathay's
restated certificate of incorporation and restated bylaws is necessarily
general, and reference should be made in each case to such documents, which are
contained as exhibits to Cathay's previous filings with the Securities and
Exchange Commission. See "Where You Can Find More Information" to learn how to
obtain a copy of these documents.
Cathay has various anti-takeover measures in place. For example, as
described below, Cathay has put in place the Rights Agreement and has included
in its restated certificate of incorporation related provisions that may give
certain holders of Series A Junior Participating Preferred Stock special rights
in case of a consolidation, merger, combination or other similar transaction.
13
Preferred Stock Purchase Rights. On November 16, 2000, Cathay's board
of directors adopted a Rights Agreement between Cathay and American Stock
Transfer and Trust Company, as Rights Agent, and declared a dividend of one
preferred share purchase right for each outstanding share of Cathay common
stock. The dividend was payable on January 19, 2001, to stockholders of record
at the close of business on the record date, December 20, 2000. Each preferred
share purchase right entitles the registered holder to purchase from Cathay one
one-thousandth of a share of Cathay Series A Junior Participating Preferred
Stock at a price of $200, subject to adjustment. In general, the rights become
exercisable if, after December 20, 2000, a person or group acquires 15% or more
of Cathay's common stock or announces a tender offer for 15% or more of the
common stock. Cathay's board of directors is entitled to redeem the rights at
one cent per right at any time before any such person acquires 15% or more of
the outstanding common stock. The rights will expire on December 20, 2010. The
Rights Agreement is a successor to Cathay's prior rights agreement, which
expired at the close of business on December 20, 2000.
In addition, Cathay's restated certificate of incorporation has other
provisions that could make more difficult the acquisition of Cathay by means of
a tender offer, a proxy contest, merger or otherwise. These provisions include:
(i) the "staggered board," whereby only one-third of the members of the board of
directors are elected in any particular year; and (ii) a requirement that any
"Business Combination" (as defined in the restated certificate of incorporation)
be approved by the affirmative vote of not less than 80% of the voting power of
the then outstanding shares unless it is either approved by the board of
directors or certain price and procedural requirements are satisfied.
Directors. Certain provisions of Cathay's restated certificate of
incorporation and restated bylaws will impede changes in majority control of the
board of directors. Cathay's restated certificate of incorporation and/or
restated bylaws provide that:
o Cathay's board is divided into three classes so that approximately
one-third of the total number of directors is elected each year.
This "classified" board of directors is intended to provide for
continuity of the board of directors and to make it more difficult
and time consuming for a stockholder group to use its voting power
to gain control of the board of directors without consent of the
incumbent board of directors;
o any vacancy occurring in the board of directors, including a
vacancy created by an increase in the number of directors, is
filled for the remainder of the unexpired term by a majority vote
of the directors then in office;
o a director, in general, may be removed from office at any time
only for cause and only by the affirmative vote of eighty (80%)
percent of the then-outstanding shares of capital stock entitled
to vote generally in the election of directors, voting together as
a single class; and
o a procedure for the nomination of directors.
Delaware Anti-Takeover Statute. Cathay is subject to Section 203 of the
Delaware General Corporation Law, which prohibits a publicly held Delaware
corporation from engaging in a business combination with an interested
stockholder for a period of three years after the date of the transaction in
which the person becomes an interested stockholder, unless:
o before that date, the board of directors of the corporation
approves either the business combination or the transaction that
resulted in the stockholder's becoming an interested stockholder;
14
o upon consummation of the transaction that resulted in the
stockholder's becoming an interested stockholder, the interested
stockholder owns at least 85% of the outstanding voting stock,
excluding shares held by directors, officers and employee stock
plans; or
o on or after the consummation date, the business combination is
approved by the board of directors and by the affirmative vote at
an annual or special meeting of stockholders of at least 66-2/3%
of the outstanding voting stock that is not owned by the
interested stockholder.
For purposes of Section 203, a business combination includes a merger,
asset sale or other transaction resulting in a financial benefit to the
interested stockholder. An interested stockholder is generally a person who,
together with affiliates and associates of that person, (a) owns 15% or more of
the corporation's voting stock or (b) is an affiliate or associate of the
corporation and was the owner of 15% or more of the outstanding voting stock of
the corporation at any time within the prior three years.
Purpose and Takeover Defensive Effects of Cathay's Restated Certificate
of Incorporation and Restated Bylaws. Cathay's board believes that the
provisions contained in Cathay's restated certificate of incorporation and
Restated Bylaws described above are prudent and will reduce Cathay's
vulnerability to takeover attempts and certain other transactions which have not
been negotiated with and approved by its board of directors. The board of
directors believes that these provisions are in the best interest of Cathay and
its stockholders. In the judgment of the board of directors, Cathay's board will
be in the best position to determine the true value of Cathay and to negotiate
more effectively for terms that will be in the best interest of its
stockholders. Accordingly, the board of directors believes that it is in the
best interest of Cathay and its stockholders to encourage a potential acquirer
to negotiate directly with the board of directors, and that these provisions
will encourage such negotiations and discourage hostile takeover attempts. It is
also the view of the board of directors that these provisions should not
discourage persons from proposing a merger or other transaction at a price
reflective of the true value of Cathay and otherwise in the best interest of all
stockholders.
An unsolicited takeover proposal can seriously disrupt the business and
management of a corporation and cause it to incur great expense. Although a
tender offer or other takeover attempt may be made at a price substantially
above the current market prices, such offers are sometimes made for less than
all of the outstanding shares of a target company. As a result, stockholders may
be presented with the alternative of partially liquidating their investment at a
time that may be disadvantageous, or retaining their investment in an enterprise
which is under different management and whose objectives may not be similar to
those of the remaining stockholders. The concentration of control which could
result from a tender offer or other takeover attempt could also deprive Cathay's
remaining stockholders of benefits of certain protective provisions of the
Securities Exchange Act of 1934, if the number of beneficial owners became less
than 300, thereby allowing for Exchange Act deregistration.
Despite the belief of Cathay as to the benefits to stockholders of
these provisions of Cathay's restated certificate of incorporation and restated
bylaws, these provisions may also have the effect of discouraging a future
takeover attempt which would not be approved by Cathay's board of directors, but
pursuant to which stockholders may receive a substantial premium for their
shares over then current market prices. As a result, stockholders who might
desire to participate in such a transaction may not have any opportunity to do
so. Such provisions will also render the removal of Cathay's board of directors
and management more difficult. The board of directors of Cathay, however, has
concluded that the potential benefits outweigh the possible disadvantages.
15
PLAN OF DISTRIBUTION
We are registering the shares of common stock covered by this
prospectus for the selling stockholders.
We will pay the costs and fees of registering the common stock covered
by this prospectus and other expenses related to the registration of the common
stock to the extent required by Section 10.2 of the Agreement and Plan of Merger
incorporated by reference as an exhibit to the registration statement of which
this prospectus is a part. However, we will not pay any underwriting discounts
or commissions or other amounts payable to underwriters, dealers or agents, or
any transfer taxes or other expenses associated with the sale of the common
stock, on behalf of any selling stockholder. Pursuant to the Agreement and Plan
of Merger, we have agreed to provide certain indemnification to the selling
stockholders who were officers or directors of Great Eastern against certain
liabilities in connection with this offering, including liabilities under the
Securities Act, under the terms, conditions and limitations specified in Section
7.7 of the Agreement and Plan of Merger.
The selling stockholders will act independently of us in making
decisions with respect to the timing, manner and size of each sale of shares.
The selling stockholders may sell the shares on the Nasdaq National Market, in
the over-the-counter market or otherwise, at market prices prevailing at the
time of sale, at prices related to the prevailing market prices, or at
negotiated prices. In addition, the selling stockholders may sell some or all of
the shares through:
o a block trade in which a broker-dealer may resell a part of the
block, as principal, in order to facilitate the transaction;
o purchases by a broker-dealer, as principal, and resale by the
broker-dealer for its account;
o ordinary brokerage transactions and transactions in which a broker
solicits purchasers;
o an underwritten offering (if we consent to do so);
o a combination of such methods of sale; or
o any other method permitted pursuant to applicable law.
When selling the common stock, the selling stockholders may enter into
one or more, or a combination of, hedging transactions with financial
institutions, which we refer to as "counterparties", in which the selling
stockholder:
o enters into transactions involving short sales of the shares by
counterparties;
o sells shares short itself and redelivers such shares to close out
its short positions;
o enters into option, forward or other types of transactions that
require the selling stockholders to deliver shares to a
counterparty, who may resell or transfer the shares under this
prospectus; or
o loan or pledge the shares to a counterparty, who may sell or
transfer such shares.
16
The selling stockholders may negotiate and pay broker-dealers'
commissions, discounts or concessions for their services. Broker-dealers engaged
by the selling stockholders may allow other broker-dealers to participate in
resales. The selling stockholders and any broker-dealers involved in the sale or
resale of the shares may qualify as "underwriters" within the meaning of Section
2(11) of the Securities Act. In addition, the broker-dealers' commissions,
discounts, or concessions may qualify as underwriters' compensation under the
Securities Act. If the selling stockholders qualify as an "underwriter," the
selling stockholders will be subject to the prospectus delivery requirements of
the Securities Act.
In addition to selling the shares under this prospectus, a selling
stockholder may transfer their shares in other ways not involving market makers
or established trading markets, including directly by gift, distribution, or
other transfer. Also, a selling stockholder may decide not to sell any common
stock offered hereby.
The selling stockholders and any underwriters and distribution
participants will be subject to applicable provisions of the Exchange Act and
the associated rules and regulations under the Exchange Act, including
Regulation M, which provisions may limit the timing of purchases and sales of
shares by the selling stockholders. These provisions may restrict certain
activities of, and limit the timing of, purchases by the selling stockholders or
other persons or entities. Furthermore, under Regulation M, persons engaged in a
distribution of securities are prohibited from simultaneously engaging in market
making and certain other activities with respect to such securities for a
specified period of time prior to the commencement of such distributions,
subject to special exceptions or exemptions. In addition, the anti-manipulation
rules under the Exchange Act may apply to sales of the securities in the market.
All of these limitations may affect the marketability of the common stock and
the ability of any person to engage in market-making activities with respect to
the common stock.
Underwriters and others who are deemed to be underwriters under the
Securities Act may engage in transactions that stabilize, maintain or otherwise
affect the price of the common stock, including the entry of stabilizing bids or
syndicate covering transactions or the imposition of penalty bids.
We will file a supplement to this prospectus, if required, pursuant to
Rule 424(b) under the Securities Act upon being notified by any selling
stockholders that any material arrangement has been entered into with a
broker-dealer for the sale of shares through a block trade, special offering,
exchange distribution or secondary distribution or a purchase by a broker or
dealer. Such supplement may disclose:
o the name of the selling stockholders and of the participating
broker-dealer(s);
o the number of shares involved;
o the price at which such shares were sold;
o the commissions paid or discounts or concessions allowed to such
broker-dealer(s), where applicable;
o that such broker-dealers did not conduct any investigation to
verify the information set out or incorporated by reference in
this prospectus, as supplemented; and
o other facts material to the transaction.
Any common stock covered by this prospectus which qualifies for sale
pursuant to Rule 144 or Rule 145 under the Securities Act may be sold under Rule
144 or Rule 145 in certain instances, rather than pursuant to this prospectus.
In addition, the selling stockholders may transfer the shares by other means not
described in this prospectus.
17
LEGAL MATTERS
The validity of the Cathay common stock being offered hereby will be
passed upon for Cathay by Bingham McCutchen LLP, San Francisco, California.
EXPERTS
The consolidated financial statements of Cathay as of December 31, 2005
and 2004, and for each of the years in the three-year period ended December 31,
2005, and management's assessment of the effectiveness of internal control over
financial reporting as of December 31, 2005 have been incorporated by reference
herein and in the registration statement in reliance upon the reports of KPMG
LLP, independent registered public accounting firm, incorporated by reference
herein, and upon the authority of said firm as experts in accounting and
auditing.
WHERE YOU CAN FIND MORE INFORMATION
We file reports, proxy statements, and other information with the SEC.
Such reports, proxy statements, and other information concerning us can be read
and copied at the SEC's Public Reference Room at 101 F Street, N.E., Washington,
D.C. 20549. The SEC maintains an Internet site that contains reports, proxy and
information statements, and other information regarding issuers that file
electronically with the SEC. The address of the SEC's Internet website is
http://www.sec.gov. Please call the SEC at 1-800-SEC-0330 for further
information on the operations of the Public Reference Room. We maintain an
Internet website at http://cathaybank.com. The information on our website is not
a part of this prospectus.
This prospectus is part of a registration statement filed with the SEC
by us. The full registration statement can be obtained from the SEC as indicated
above, or from us.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The SEC allows us to "incorporate by reference" the information we file
with the SEC. This permits us to disclose important information to you by
referring to these filed documents. Any information referred to in this way is
considered part of this prospectus, and any information filed with the SEC by us
after the date of this prospectus will automatically be deemed to update and
supersede this information. We incorporate by reference the following documents
that have been filed with the SEC:
18
FILING (File No. 000-18630) PERIOD
-------------------------------------------- ------------------------------------------
Annual Report on Form 10-K Fiscal Year Ended December 31, 2005
Current Report on Form 8-K Dated April 20, 2006
Current Report on Form 8-K Dated April 7, 2006
Current Report on Form 8-K Dated March 31, 2006
Current Report on Form 8-K Dated February 21, 2006
Current Report on Form 8-K Dated January 25, 2006
Current Report on Form 8-K Dated January 10, 2006
Registration Statement on Form 8-A Regarding Dated September 16, 1999 (Amendment No. 1)
Common Stock
Registration Statement on Form 8-A Regarding Dated December 20, 2000
Preferred Stock Purchase Rights
We also incorporate by reference any future filings (other than current
reports on Form 8-K that are furnished rather than filed) made with the SEC
pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act, until we
file a post-effective amendment which indicates the termination of the offering
of the securities made by this prospectus.
We will provide without charge upon written or oral request a copy of
any or all of the documents that are incorporated by reference into this
prospectus, other than exhibits unless specifically incorporated by reference
into such documents. Requests should be directed to:
Cathay General Bancorp
Attention: Investor Relations
777 North Broadway
Los Angeles, CA 90012
Telephone: (213) 625-4700
19
[LOGO OF CATHAY GENERAL BANCORP]
1,181,164 SHARES
COMMON STOCK
------------------
PROSPECTUS
------------------
April 26, 2006
PART II
INFORMATION NOT REQUIRED
IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The estimated expenses in connection with the distribution of the
securities being registered, all of which are to be paid by us, are as follows:
Securities and Exchange Commission Registration Fee....... $ 4,836.74
Legal Fees and Expenses................................... 50,000
Accounting Fees and Expenses.............................. 12,500
Miscellaneous Fees and Expenses........................... 2,663.26
Total..................................................... $ 70,000
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The bylaws of Cathay provide that directors and officers of Cathay
shall be, and at the discretion of the board of directors, non-officer employees
may be, indemnified by Cathay against all expenses and liabilities reasonably
incurred in connection with service for or on behalf of Cathay, to the maximum
extent permitted under Delaware law.
As permitted by the Delaware General Corporation Law, directors and
officers, as well as other employees and individuals, may be indemnified against
expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement in connection with specified actions, suits or proceedings, whether
civil, criminal, administrative or investigative (other than an action by or in
the right of the corporation (i.e., a "derivative action")), if they acted in
good faith and in a manner they reasonably believed to be in or not opposed to
the best interests of the stockholders and, with respect to any criminal action
or proceeding, had no reasonable cause to believe their conduct was unlawful. A
similar standard of care is applicable in the case of derivative actions, except
that indemnification extends only to expenses (including attorneys' fees)
incurred in connection with defense or settlement of such an action. Delaware
law permits a corporation to advance expenses to directors or officers upon the
corporation's receipt of an undertaking by such persons to repay the advance in
the event of a specific determination that such person was not entitled to
indemnification.
Delaware law requires court approval before there may be any
indemnification where the person seeking indemnification has been found liable
to the corporation in a derivative action by reason of the fact that he is or
was a director, officer, employee or agent of the corporation. Delaware law,
however, provides that the termination of any proceeding (other than an action
by or in the right of the corporation) by judgment, order, settlement,
conviction or upon a plea of nolo contendere does not create a presumption
adverse to the director, officer or other person.
II-1
Cathay's bylaws provide that each person who is involved in any
litigation or other proceeding because he or she is or was a director or officer
of Cathay or, among other things, of another related entity shall be indemnified
by Cathay to the fullest extent authorized by Delaware law (but, in the case of
any future amendment to Delaware law, the right to indemnification shall be
adjusted only to the extent that such amendment permits Cathay to provide
broader indemnification rights than prior to such amendment), against all
expense, liability or loss reasonably incurred by such persons in connection
therewith. The bylaws also provide that indemnification to directors and
officers is a contract right and the right includes the right to be paid the
expenses incurred in defending any proceeding in advance of its final
disposition; provided, however, that the advancement of the expenses will be
made only after the person delivers an undertaking to Cathay to repay any
amounts advanced if it is ultimately determined that he or she is not entitled
to indemnification. The purpose of providing that the right of indemnification
is a contract right is to provide an indemnified party with an enforceable claim
that may not be unilaterally affected by actions taken by Cathay (e.g., there
would be a claim under contract law to indemnification as to conduct which
occurred while this provision of the bylaws was in effect, regardless of
subsequent changes to the bylaws). If Cathay does not pay a proper claim for
indemnification in full within 30 days after a written claim for indemnification
is received by Cathay, the bylaws authorize the claimant to bring a suit against
Cathay and prescribe what does and does not constitute a defense to such action.
This right to indemnification and advancement of expenses also may be conferred
upon any employee or agent of Cathay if, and to the extent, authorized by
Cathay's bylaws or its board of directors. Cathay's bylaws provide that
indemnification may be available to employees and agents.
In any action by a person seeking indemnification, it is a defense that
such person has not met any applicable standard for indemnification as set forth
in Delaware General Corporation Law. However, neither the failure of Cathay to
have made a determination that the applicable standard has been satisfied, or an
actual determination by Cathay that the person has not satisfied the applicable
standard, creates a presumption that the standard was not satisfied, or is a
defense to such action. The burden of proving that the applicable standard of
conduct has not been satisfied, and that the person is not entitled to
indemnification, is on Cathay.
The bylaws further state that the right to indemnification and the
advancement of expenses conferred by the bylaws is not exclusive of any other
right which any person may have or later acquire under any statute or any
provision of Cathay's certificate of incorporation or bylaws, by vote of the
stockholders or disinterested directors, or otherwise. In addition, the bylaws
authorize Cathay to maintain insurance, at its expense, to protect itself and
certain individuals, including officers and directors of Cathay, against any
expense, liability or loss, whether or not Cathay would have the power to
indemnify the person under Delaware law.
The foregoing indemnification provisions are included in Cathay's
bylaws in recognition of the need to protect directors and officers of Cathay so
as to attract and retain the best persons available to serve in those
capacities. In light of the complexities and pressures placed on directors of
publicly held corporations, and especially companies involved in the complex and
fast-changing financial services industry, the board of directors believes that
the time, effort and talent of officers and directors of Cathay and its
subsidiaries should be directed toward managing Cathay's business, rather than
being forced to act defensively out of concern over costly personal litigation.
By including these indemnification provisions in Cathay's bylaws, directors and
officers of Cathay have the assurance that they will be indemnified for actions
taken in good faith and in a manner believed to be in the best interest of the
stockholders.
In May 1991, Cathay began entering into indemnity agreements with its
directors and certain of its officers. These indemnity agreements permit Cathay
to indemnify an officer or director to the maximum extent permitted under
Delaware law and prohibit Cathay from terminating its indemnification
obligations as to acts of any officer or director that occur before the
termination. Cathay believes the indemnity agreements will assist it in
attracting and retaining qualified individuals to serve as directors and
officers of Cathay. Cathay's certificate of incorporation also provides for
certain limitations on the liability of directors, as permitted by Delaware law.
The indemnifications and limitations on liability permitted by the certificate
of incorporation, bylaws and the indemnity agreements are subject to the
limitations set forth by Delaware law.
II-2
ITEM 16. EXHIBITS
An Exhibit Index has been attached as part of this Registration
Statement and is incorporated herein by reference.
ITEM 17. UNDERTAKINGS
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made
pursuant to this registration statement, 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; or
(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 paragraphs 1(i), 1(ii) and (1)(iii) of this section do
not apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed with or
furnished to the Commission by the registrant pursuant to Section 13 or Section
15(d) of the Securities Exchange Act of 1934 that are incorporated by reference
in the registration statement or is contained in a form of prospectus filed
pursuant to Rule 424(b) that is part of the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
(4) That, for the purpose of determining liability under the Securities
Act of 1933 to any purchaser:
(i) Each prospectus filed by the registrant pursuant to Rule
424(b)(3) shall be deemed to be part of the registration statement as of the
date the filed prospectus was deemed part of and included in the registration
statement; and
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(ii) Each prospectus required to be filed pursuant to Rule
424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance on
Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii), or
(x) for the purpose of providing the information required by section 10(a) of
the Securities Act of 1933 shall be deemed to be part of and included in the
registration statement as of the earlier of the date such form of prospectus is
first used after effectiveness or the date of the first contract of sale of
securities in the offering described in the prospectus. As provided in Rule
430B, for liability purposes of the issuer and any person that is at that date
an underwriter, such date shall be deemed to be a new effective date of the
registration statement relating to the securities in the registration statement
to which that prospectus relates, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof. Provided,
however, that no statement made in a registration statement or prospectus that
is part of the registration statement or made in a document incorporated or
deemed incorporated by reference into the registration statement or prospectus
that is part of the registration statement will, as to a purchaser with a time
of contract of sale prior to such effective date, supersede or modify any
statement that was made in the registration statement or prospectus that was
part of the registration statement or made in any such document immediately
prior to such effective date.
(5) That, for purposes of determining any liability under the
Securities Act of 1933, each filing of the registrant's annual report pursuant
to Section 13(a) or 15(d) of the Securities Exchange Act of 1934 that is
incorporated by reference in the registration statement 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.
(6) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions described in Item
15 above, 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 Securities Act and is, therefore, unenforceable. In
the event that a claim for indemnification against such liabilities (other than
the payment by the registrant of expenses incurred or paid by a director,
officer or 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 controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the
Securities Act and will be governed by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant 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 Los Angeles, State of California, on the 26th day of
April, 2006.
Cathay General Bancorp
By: /s/Dunson K. Cheng
---------------------------
Dunson K. Cheng
Chairman, President
and Chief Executive Officer
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints
Dunson K. Cheng and Heng W. Chen, jointly and severally, his attorneys-in-fact,
each with the power of substitution, for him and in any and all capacities, to
sign any amendments to this Registration Statement on Form S-3, including
post-effective amendments and any registration statement filed pursuant to Rule
462(b) under the Securities Act of 1933, as amended, and to file the same, with
exhibits thereto and any other documents in connection therewith, with the
Securities and Exchange Commission, hereby ratifying and confirming all that
each of said attorneys-in-fact, or his substitute or substitutes, may do or
cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated.
SIGNATURE CAPACITY DATE
------------------------------ ---------------------------------------- ----------------
/s/Dunson K. Cheng Chairman, President and Chief Executive April 26, 2006
------------------------------ Officer and Director
Dunson K. Cheng (principal executive officer)
/s/Heng W. Chen Executive Vice President, Chief April 26, 2006
------------------------------ Financial Officer/Treasurer (principal
Heng W. Chen financial officer) (principal accounting
officer)
/s/Peter Wu Director April 26, 2006
------------------------------
Peter Wu
/s/Anthony M. Tang Director April 26, 2006
------------------------------
Anthony M. Tang
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SIGNATURE CAPACITY DATE
------------------------------ ---------------------------------------- ----------------
/s/Kelly L. Chan Director April 26, 2006
------------------------------
Kelly L. Chan
/s/Michael M. Y. Chang Director April 26, 2006
------------------------------
Michael M. Y. Chang
/s/Thomas C. T. Chiu Director April 26, 2006
------------------------------
Thomas C. T. Chiu
/s/Nelson Chung Director April 26, 2006
------------------------------
Nelson Chung
/s/Patrick S. D. Lee Director April 26, 2006
------------------------------
Patrick S. D. Lee
/s/Ting Liu Director April 26, 2006
------------------------------
Ting Liu
/s/Joseph C. H. Poon Director April 26, 2006
------------------------------
Joseph C. H. Poon
/s/Thomas G. Tartaglia Director April 26, 2006
------------------------------
Thomas G. Tartaglia
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EXHIBIT INDEX
EXHIBIT
NUMBER DESCRIPTION OF EXHIBIT
------- ----------------------------------------------------------------------
2.1 Agreement and Plan of Merger dated as of February 16, 2006, by and
among Cathay General Bancorp, Cathay Bank and Great Eastern Bank (by
filing this Agreement, the Registrant does not admit that the
Agreement is material)
3.1 Restated Certificate of Incorporation of Cathay General Bancorp
(incorporated by reference to Exhibit 3.1 to Registrant's Annual
Report on Form 10-K for the year ended December 31, 2003)
3.2 Amendment to Restated Certificate of Incorporation of Cathay General
Bancorp (incorporated by reference to Exhibit 3.1.1 to Registrant's
Annual Report on Form 10-K for the year ended December 31, 2003)
3.3 Restated Bylaws, as amended, of Cathay General Bancorp (incorporated
by reference to Exhibit 3.2 to Registrant's Annual Report on Form 10-K
for the year ended December 31, 2003)
3.4 Amendment to Restated Bylaws (incorporated by reference to Exhibit
3.2.1 to Registrant's Annual Report on Form 10-K for the year ended
December 31, 2003)
4.1 Rights Agreement (incorporated by reference to Exhibit 1 to
Registrant's Registration Statement on Form 8-A dated December 20,
2000)
4.2 Certificate of Designation of Series A Junior Participating Preferred
Stock (incorporated by reference to Exhibit 3.3 to Registrant's Annual
Report on Form 10-K for the year ended December 31, 2001)
5.1 Opinion of Bingham McCutchen LLP
23.1 Consent of Bingham McCutchen LLP (included in Exhibit 5.1)
23.2 Consent of KPMG LLP
24.1 Power of Attorney (included on signature pages of this Registration
Statement)
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