RESTATED CERTIFICATE OF INCORPORATION
OF
INTERVEST BANCSHARES CORPORATION
Intervest Bancshares Corporation, a corporation organized and existing
under the General Corporation Law of the State of Delaware (the "Corporation"),
does hereby certify:
FIRST: The original Certificate of Incorporation of Intervest Bancshares
Corporation was filed with the Secretary of State of Delaware on February 5,
1993.
SECOND: The Certificate of Incorporation, as amended heretofore, is hereby
further amended to increase the number of shares of Class A Common Stock that
the Corporation shall be authorized to issue from 2,600,000 shares to 4,000,000
shares. The Restated Certificate of Incorporation in the form that follows has
been duly adopted in accordance with the provisions of Sections 245 and 242 of
the General Corporation Law of the State of Delaware by the directors and
stockholders of the Corporation.
THIRD: The text of the Certificate of Incorporation, as amended heretofore,
is hereby restated as further amended to read in full as set forth in Exhibit A
attached hereto and is hereby incorporated herein by this reference.
IN WITNESS WHEREOF, the undersigned, being the President and Secretary,
respectively of the Corporation, hereby execute this Restated Certificate of
Incorporation this ______ day of ______________, 1997 and hereby affirm the
truth of the statements contained herein under penalties of perjury.
INTERVEST BANCSHARES CORPORATION
By: __________________________________
Lowell S. Dansker, President
ATTEST:
By: ________________________________
Lawrence G. Bergman, Secretary
Exhibit A
CERTIFICATE OF INCORPORATION
OF
INTERVEST BANCSHARES CORPORATION
1. The name of the corporation is Intervest Bancshares Corporation.
2. The address of the registered office of the Corporation in the State of
Delaware is 9 East Loockerman Street, City of Dover, County of Kent, State of
Delaware 19901. The name of its registered agent at such address is Colby
Attorneys Service Co., Inc.
3. The purpose for which it is formed is to engage in any lawful act or
activity for which a corporation may be organized under the General Corporation
Law of the State of Delaware.
4.(a) The Corporation is authorized to issue three classes of shares to be
designated, respectively, Preferred Stock ("Preferred Stock"), Class A Common
Stock ("Class A Common Stock") and Class B Common Stock ("Class B Common
Stock"). The total number of shares of capital stock that the Corporation is
authorized to issue is Four Million Six Hundred Thousand (4,600,000). The total
number shares of Preferred Stock this Corporation shall have authority to issue
is Two Hundred Thousand (200,000). The total number of shares of Class A Common
Stock this Corporation shall have authority to issue is Four Million
(4,000,000). The total number of shares of Class B Common Stock this Corporation
shall have authority to issue is Four Hundred Thousand (400,000). All of the
shares of capital stock shall have a par value of $1.00 per share.
(b) The Board of Directors of the Corporation (the "Board of Directors") is
authorized, subject to limitations prescribed by law, to provide for the
issuance of the shares of Preferred Stock from time to time in one or more
series. The Board of Directors is expressly authorized to provide for the issue
of all or any of the shares of Preferred Stock in one or more series, and to fix
the number of shares and to determine or alter for each such series, such voting
powers, full or limited, or no voting powers, and such designations,
preferences, and relative, participating, optional, or other rights and such
qualifications, limitations, or restrictions thereof, as shall be stated and
expressed in the resolution or resolutions adopted by the Board of Directors
providing for the issue of such shares and as may be permitted by the General
Corporation Law of the State of Delaware. The Board of Directors is also
expressly authorized to increase or decrease (but not below the number of shares
of such series then outstanding) the number of shares of any series subsequent
to the issue of shares of that series. In case the number of shares of any such
series shall be so decreased, the shares constituting such decrease shall resume
the status that they had prior to the adoption of the resolution originally
fixing the number of shares of such series.
(c) The powers, preferences, rights, restrictions and other matters
relating to the Class A Common Stock and the Class B Common Stock are as
follows:
(i) Dividends. Subject to preferences that may be applicable to any
outstanding shares of Preferred Stock, the holders of shares of Class A Common
Stock shall be entitled to receive cash dividends when and as declared by the
Board of Directors out of funds legally available therefore. The holders of the
shares of Class B Common Stock shall not be entitled to receive any cash
dividends other than liquidating dividends until January 1, 2000, after which
time the holders of Class A Common Stock and Class B Common Stock will share
ratably, without distinction as to class, in dividends when and as declared by
the Board of Directors.
(ii) Voting. So long as at least 50,000 shares of the Class B Common
Stock remain issued and outstanding, the holders of the outstanding shares of
Class B Common Stock, voting separately and as a class, shall have the sole
right to vote for the election of that number of directors which equal
two-thirds of the number of directors then constituting the entire Board of
Directors (rounded up to the next whole number), but shall not otherwise be
entitled to vote for the election of directors of the Corporation. The holders
of the outstanding shares of Class A Common Stock, voting separately and as a
class, shall have the sole right to vote for the remaining directors
constituting the entire Board of Directors. At such time as there shall be less
than 50,000 shares of the Class B Common Stock issued and outstanding, then the
entire Board of Directors shall be elected by vote of the holders of the Class A
Common Stock and Class B Common Stock, voting together and without distinction
as to class. Subject to the foregoing limitation, and except as otherwise
expressly required by law, in all other matters as to which the vote or consent
of stockholders of the Corporation shall be required or be taken, the holders of
the shares of Class A Common Stock and Class B Common Stock, voting together and
without distinction as to class, shall each be entitled to one vote for each
share of such stock held by them, respectively. In the case of any subdivision,
split up, combination, stock dividend or change of the shares of Class B Common
Stock into a different number of shares of the same or any other class or
classes of stock, then the 50,000 share threshold described above shall be
equitably adjusted to reflect such event.
(iii) Liquidation. Subject to any preferences that may be applicable
to any outstanding shares of Preferred Stock, in the event of liquidation,
dissolution or winding-up of the Corporation, whether voluntary or involuntary,
the holders of the shares of Class A Common Stock and Class B Common Stock shall
be entitled to share ratably, without distinction as to class, in all of the
assets of the Corporation available for distribution to its stockholders.
(iv) Conversion. The shares of Class B Common Stock shall be
convertible, at any time and from time to time after January 1, 2000, at the
option of the holder thereof, into shares of Class A Common Stock at the rate of
one share Class A Common Stock for one share of Class B Common Stock. In order
to exercise the conversion privilege, the holder of any shares of Class B Common
Stock shall surrender the certificate or certificates for such shares of Class B
Common Stock accompanied by proper instruments of surrender to the Corporation
at its principal office. The certificate or certificates for such shares shall
also be accompanied by a written notice to the effect that the holder elects to
convert such shares and stating the name or names in which the certificate or
certificates for Class A Common Stock which shall be issuable on such conversion
shall be issued. Such conversion shall be deemed to have been effected on the
date on which such notice shall have been received by the Corporation and such
Class B Common Stock shall have been surrendered as hereinabove provided. The
shares of Class B Common Stock so converted shall not be reissued and shall be
retired and cancelled as provided by law. In the case of the issuance of any
shares of stock as a dividend upon the shares of Class A Common Stock or the
shares of Class B Common Stock or in the case of any subdivision, split up,
combination, or change of the shares of Class A Common Stock or shares of Class
B Common Stock into a different number of shares of the same or any other class
or classes of stock, or in the case of any consolidation or merger of the
Corporation with or into another corporation, or in case of any sale or
conveyance to another corporation of the property of the Corporation as an
entirety or substantially as an entirety, the conversion rate as hereinabove
provided shall be appropriately adjusted so that the rights of the holders of
Class A Common Stock and of Class B Common Stock will not be diluted as result
of such stock dividend, subdivision, split up, combination, change,
consolidation, merger, sale or conveyance. Adjustments in the rate of
conversions shall be calculated to the nearest one-tenth of a share. The
Corporation shall not be required to issue fractions of shares of Class A Common
Stock upon conversion of Class B Common Stock. If any fractional interest in a
share of Class A Common Stock shall be deliverable, the Corporation shall
purchase such fractional interest for an amount equal to the current market
value of such fractional interest. So long as any shares of Class B Common Stock
are outstanding, the Corporation shall reserve and keep available out of its
duly authorized but unissued stock, for the purpose of effecting the conversion
of the Class B Common Stock as hereinabove provided, such number of its duly
authorized shares of Class A Common Stock and other securities as shall from
time to time be sufficient to effect the conversion of all outstanding shares of
Class B Common Stock.
5. The Board of Directors of the Corporation is expressly authorized to
make, alter or repeal bylaws of this Corporation, but the stockholders may make
additional bylaws and may alter or repeal any bylaw whether adopted by them or
otherwise.
6. Election of directors need not be by written ballot except and to the
extent provided in the bylaws of the Corporation.
7. To the fullest extent permitted by the General Corporation Law of the
State of Delaware as the same now exist or may hereafter be amended in a manner
more favorable to directors, the directors of the Corporation shall not be
personally liable to the Corporation or its stockholders for monetary damages
for breach of fiduciary duty as a director.