AMENDED AND RESTATED
ARTICLES OF INCORPORATION
OF
METROCORP BANCSHARES, INC.
ARTICLE 1.
The name of the Corporation is MetroCorp Bancshares, Inc.
ARTICLE 2.
The period of duration of the Corporation is perpetual.
ARTICLE 3.
The purpose for which the Corporation is organized is the transaction of
any or all lawful business.
ARTICLE 4.
Section 4.1. AUTHORIZED SHARES. The aggregate number of all classes of
stock which the Corporation has authority to issue is 22,000,000 shares divided
into (A) one class of 20,000,000 shares of Common Stock with a par value of
$1.00 per share, and (B) one class of 2,000,000 shares of Preferred Stock with a
par value of $1.00 per share, which may be divided into and issued in series as
set forth in this Article Four.
Section 4.2. AUTHORIZATION OF DIRECTORS TO DETERMINE CERTAIN RIGHTS OF
PREFERRED STOCK. The shares of Preferred Stock may be divided into and issued
in series. The Board of Directors shall have the authority to establish series
of unissued shares of Preferred Stock by fixing and determining the relative
rights and preferences of the shares of any series so established, and to
increase or decrease the number of shares within each such series; provided,
however, that the Board of Directors may not decrease the number of shares
within a series of Preferred Stock to less than the number of shares within such
series that are then issued. The Preferred Stock of each such series shall have
such designations, preferences, limitations, or relative rights, including
voting rights, as shall be set forth in the resolution or resolutions
establishing such series adopted by the Board of Directors, including, but
without limiting the generality of the foregoing, the following:
(A) The distinctive designation of, and the number of shares of
Preferred Stock that shall constitute, such series, which number (except
where otherwise provided by the Board of Directors in the resolution
establishing such series) may be increased or decreased (but not below the
number of shares of such series then outstanding) from time to time by like
action of the Board of Directors;
(B) The rights in respect of dividends, if any, of such series of
Preferred Stock, the extent of the preference or relation, if any, of such
dividends to the dividends payable on any other class or classes or any
other series of the same or other class or classes of capital stock of the
Corporation and whether such dividends shall be cumulative or
noncumulative;
(C) The right, if any, of the holders of such series of Preferred
Stock to convert the same into, or exchange the same for, shares of any
other class or classes or of any other series of the same or any other
class or classes of capital stock, obligations, indebtedness, rights to
purchase securities or other securities of the Corporation or other
entities, domestic or foreign, or for other property or for any combination
of the foregoing, and the terms and conditions of such conversion or
exchange;
(D) Whether or not shares of such series of Preferred Stock shall be
subject to redemption, and the redemption price or prices and the time or
times at which, and the terms and conditions on which, shares of such
series of Preferred Stock may be redeemed;
(E) The rights, if any, of the holders of such series of Preferred
Stock upon the voluntary or involuntary liquidation, dissolution or
winding-up of the Corporation or in the event of any merger or
consolidation of or sale of assets by the Corporation;
(F) The terms of any sinking fund or redemption or repurchase or
purchase account, if any, to be provided for shares of such series of
Preferred Stock;
(G) The voting powers, if any, of the holders of any series of
Preferred Stock generally or with respect to any particular matter, which
may be less than, equal to or greater than one vote per share, and which
may, without limiting the generality of the foregoing, include the right,
voting as a series of Preferred Stock as a class, to elect one or more
directors of the Corporation generally or under such specific circumstances
and on such conditions, as shall be provided in the resolution or
resolutions of the Board of Directors adopted pursuant hereto, including,
without limitation, in the event there shall have been a default in the
payment of dividends on or redemption of any one or more series of
Preferred Stock; and
-2-
(H) Such other powers, preferences and relative, participating,
optional and other special rights, and the qualifications, limitations and
restrictions thereof, as the Board of Directors shall determine.
Section 4.3. PREFERENCES, LIMITATIONS AND RELATIVE RIGHTS OF ALL CLASSES
OF CAPITAL STOCK.
(A) GENERAL. All shares of Common Stock shall have rights identical
to those of all other such shares. Except as they may vary among series
established pursuant to Section 4.2 of this Article Four, all shares of
Preferred Stock shall have preferences, limitations, and relative rights
identical to those of all other such shares.
(B) LIQUIDATION PREFERENCE. In the event of dissolution,
liquidation, or winding up of the Corporation (whether voluntary or
involuntary), after payment or provision for payment of debts but before
any distribution to the holders of Common Stock, the holders of each series
of Preferred Stock then outstanding shall be entitled to receive the amount
fixed by the Board of Directors pursuant to Section 4.2 of this Article
Four and no more. All remaining assets shall be distributed pro rata among
the holders of Common Stock. If the assets distributable among the holders
of Preferred Stock are insufficient to permit full payment to them, the
entire assets shall be distributed among the holders of the Preferred Stock
in proportion to their respective liquidation preferences unless otherwise
provided by the Board of Directors pursuant to Section 4.2 of this Article
Four. Neither the consolidation, merger, or reorganization of the
Corporation with any other corporation or corporations, nor the sale of all
or substantially all the assets of the Corporation, nor the purchase or
redemption by the Corporation of any of its outstanding shares shall be
deemed to be a dissolution, liquidation, or winding up within the meaning
of this paragraph.
(C) REDEMPTION.
(1) RIGHT; METHOD. All or any part of any one or more series of
Preferred Stock may be redeemed at any time or times at the option of the
Corporation, by resolution of the Board of Directors, in accordance with
the terms and conditions of this Article Four and those fixed by the Board
of Directors pursuant to Section 4.2 of this Article Four. The Corporation
may redeem shares of any one or more series without redeeming shares of any
other series. If less than all the shares of any series are to be
redeemed, the shares of the series to be redeemed shall be selected ratably
or by lot or by any other equitable method determined by the Board of
Directors.
-3-
(2) NOTICE. Notice shall be given to the holders of shares to
be redeemed, either personally or by mail, not less than twenty nor more
than fifty days before the date fixed for redemption.
(3) PAYMENT. Holders of redeemed shares shall be paid in cash
the amount fixed by the Board of Directors pursuant to Section 4.2 of this
Article Four.
(4) PROVISION FOR PAYMENT. On or before the date fixed for
redemption, the Corporation may provide for payment of a sum sufficient to
redeem the shares called for redemption either (a) by setting aside the
sum, separate from its other funds, in trust for the benefit of the holders
of the shares to be redeemed, or (b) by depositing such sum in a bank or
trust company (either one in Texas having capital and surplus of at least
$10,000,000 according to its latest statement of condition, or one anywhere
in the United States duly appointed and acting as transfer agent of the
Corporation) as a trust fund, with irrevocable instructions and authority
to the bank or trust company to give or complete the notice of redemption
and to pay to the holders of the shares to be redeemed, on or after the
date fixed for redemption, the redemption price on surrender of their
respective share certificates. The holders of shares to be redeemed may be
evidenced by a list certified by the Corporation (by its president or a
vice president and by its secretary or an assistant secretary) or by its
transfer agent. If the Corporation so provides for payment, then from and
after the date fixed for redemption (a) the shares shall be deemed to be
redeemed, (b) dividends thereon shall cease to accrue, (c) such setting
aside or deposit shall be deemed to constitute full payment for the shares,
(d) the shares shall no longer be deemed to be outstanding, (e) the holders
thereof shall cease to be shareholders with respect to such shares, and
(f) the holders shall have no rights with respect thereto except the right
to receive (without interest) their proportionate shares of the funds so
set aside or deposited upon surrender of their respective certificates, and
any right to convert such shares which may exist. Any interest accrued on
funds so set aside or deposited shall belong to the Corporation. If the
holders of the shares do not, within six years after such deposit, claim
any amount so deposited for redemption thereof, the bank or trust company
shall upon demand pay over to the Corporation the balance of the funds so
deposited, and the bank or trust company shall thereupon be relieved of all
responsibility to such holders.
(5) STATUS OF REDEEMED SHARES. Shares of Preferred Stock which
are redeemed shall be canceled and shall be restored to the status of
authorized but unissued shares.
(D) PURCHASE. Except as fixed by the Board of Directors pursuant to
Section 4.2 of this Article Four or as otherwise expressly provided by law,
nothing herein shall limit the
-4-
right of the Corporation to purchase any of its outstanding shares in
accordance with law, by public or private transaction.
ARTICLE 5.
The Corporation will not commence business until it has received for the
issuance of its shares consideration of the value of at least $1,000.
ARTICLE 6.
The shareholders of the Corporation shall not be entitled to cumulate their
votes in the election of directors.
ARTICLE 7.
No holder of any shares of any class of stock of the Corporation shall, as
such holder, have any preemptive or preferential right to receive, purchase, or
subscribe to (1) any unissued or treasury shares of any class of stock (whether
now or hereafter authorized) of the Corporation, (2) any obligations, evidences
of indebtedness, or other securities of the Corporation convertible into or
exchangeable for, or carrying or accompanied by any rights to receive, purchase,
or subscribe to, any such unissued or treasury shares, (3) any right of
subscription to or to receive, or any warrant or option for the purchase of, any
of the foregoing securities, (4) any other securities that may be issued or sold
by the Corporation, other than such (if any) as the Board of Directors of the
Corporation, in its sole and absolute discretion, may determine from time to
time.
ARTICLE 8.
Section 8.1. VOTING REQUIREMENT. Except to the extent otherwise required
by law, the vote or concurrence of the holders of a majority of the shares of
the Corporation entitled to vote and represented in person or by proxy at a
meeting of the shareholders at which a quorum is present shall be the act of the
shareholders. With respect to any matter for which the affirmative vote of a
portion of the shares of the Corporation entitled to vote greater than a
majority of such shares is required by the Texas Business Corporation Act (or
any successor or replacement statute), as the same now exists or may hereafter
be amended, the affirmative vote of the holders of a majority of the shares of
the Corporation entitled to vote on the matter shall be the act of the
shareholders.
-5-
Section 8.2. QUORUM REQUIREMENT. The holders of at least a majority of
the shares of the Corporation entitled to vote, represented in person or by
proxy, shall constitute a quorum at any meeting of shareholders of the
Corporation.
Section 8.3. INTERESTED TRANSACTIONS. No contract or other transaction
between the Corporation and one or more of its directors, officers or
securityholders or between the Corporation and another corporation, partnership,
joint venture, trust or other enterprise of which one or more of the
Corporation's directors, officers or securityholders are members, officers,
securityholders, directors or employees or in which they are otherwise
interested, directly or indirectly, shall be invalid solely because of such
relationship, or solely because such director, officer or securityholder is
present at or participates in the meeting of the Board of Directors or committee
thereof which authorizes the contract or other transaction, or solely because
his or their votes are counted for such purpose, if (A) the material facts as to
his relationship or interest and as to the contract or other transaction are
known or disclosed to the Board of Directors or committee thereof, and such
board or committee in good faith authorizes the contract or other transaction by
the affirmative vote of a majority of the disinterested directors even though
the disinterested directors be less than a quorum, or (B) the material facts as
to his relationship or interest and as to the contract or other transaction are
known or disclosed to the shareholders entitled to vote thereon, and the
contract or other transaction is approved in good faith by vote of the
shareholders, or (C) the contract or other transaction is fair as to the
Corporation as of the time it is entered into.
ARTICLE 9.
Section 9.1. INDEMNIFICATION. As permitted by Section G of Article 2.02-1
of the Texas Business Corporation Act as in effect on the date of the filing of
these Amended and Restated Articles of Incorporation with the Secretary of State
of the State of Texas ("Indemnification Article"), the Corporation hereby:
(A) makes mandatory the indemnification permitted under Section B of the
Indemnification Article as contemplated by Section G thereof;
(B) makes mandatory its payment or reimbursement of the reasonable
expenses incurred by a director who was, is, or is threatened to be made a named
defendant or respondent in a proceeding upon such director's compliance with the
requirements of Section K of the Indemnification Article; and
(C) extends the mandatory indemnification referred to in Section 9.1 (A)
above and the mandatory payment or reimbursement of expenses referred to in
Section 9.1 (B) above (i) to all
-6-
officers of the Corporation and (ii) to all persons who are or were serving
at the request of the Corporation as a director, officer, partner or trustee
of another foreign or domestic corporation, partnership, joint venture, trust
or employee benefit plan, to the same extent that the Corporation is
obligated to indemnify and pay or reimburse expenses to directors.
Section 9.2. INSURANCE. The Corporation may purchase and maintain
insurance or another arrangement on behalf of any person who is or was a
director, officer, employee, or agent of the Corporation, or who is or was
serving at the request of the Corporation as a director, officer, partner,
venturer, proprietor, trustee, employee, agent, or similar functionary of
another foreign or domestic corporation, partnership, joint venture, sole
proprietorship, trust, employee benefit plan, or other enterprise, against any
liability asserted against him and incurred by him in such a capacity or arising
out of his status as such a person, whether or not the Corporation would have
the power to indemnify him against that liability under the Indemnification
Article.
Section 9.3. NON-EXCLUSIVITY. The provisions of Sections 9.1 and 9.2 of
this Article 9 shall not be deemed exclusive of any other rights to which any
such director, officer or other person may be entitled under any other
agreement, pursuant to a vote of directors or any committee thereof or a vote of
shareholders, as a matter of law or otherwise, either as to action in his
official capacity or as to action in another capacity while holding such office,
and shall continue as to a person who has ceased to be a director or officer and
shall inure to the benefit of the heirs, executors and administrators of such a
person. No person shall be entitled to indemnification pursuant to this
Article 8 in relation to any matter as to which indemnification shall not be
permitted by law.
ARTICLE 10.
In performing his duties, a director of the Corporation shall be entitled
to rely on information, opinions, reports or statements, including financial
statements and other financial data, in each case prepared or presented by (A)
one or more officers or employees of the Corporation whom the director
reasonably believes to be reliable and competent in the matters presented, (B)
counsel, public accountants or other persons as to matters which the director
reasonably believes to be within such person's professional or expert
competence, or (C) a committee of the Board of Directors upon which he does not
serve, duly designated in accordance with a provision of the by-laws, as to
matters within its designated authority, which committee the director deems to
merit confidence, but he shall not be considered to be acting in good faith if
he has knowledge concerning the matter in question that would cause such
reliance to be unwarranted. A person who so performs his duties shall have no
liability to the Corporation (whether asserted directly or derivatively) by
reason of being or having been a director of the Corporation.
-7-
No director of the Corporation shall be liable to the Corporation or its
shareholders for monetary damages for an act or omission in the director's
capacity as a director, except to the extent that the foregoing exemption from
liability is not permitted under the applicable provision of the Texas
Miscellaneous Corporation Laws Act (or any successor or replacement statute) as
the same now exists or may hereafter be amended. Any repeal or modification of
the foregoing paragraph shall not adversely affect any right or protection of a
director of the Corporation existing at the time of such repeal or modification.
ARTICLE 11.
Special meetings of the shareholders of the Corporation may be called only
(1) by the Chairman of the Board, by the President, by a majority of the Board
of Directors, or by such other person or persons as may be authorized in the
Bylaws or (2) by the holders of 50% of the outstanding shares of the Company
entitled to vote at the proposed special meeting.
ARTICLE 12.
The address of the initial registered office of the Corporation is 9600
Bellaire, Suite 252, Houston, Texas 77036 and the name of the initial registered
agent of the Corporation at such address is Don J. Wang.
ARTICLE 13.
The initial Board of Directors shall consist of ten (10) members who shall
serve as directors until the first annual meeting of shareholders or until their
successors shall have been elected and qualified, and whose names and addresses
are as follows:
Name Address
- ---- -------
Helen F. Chen 9600 Bellaire, Suite 252
Houston, Texas 77036
Tommy F. Chen 9600 Bellaire, Suite 252
Houston, Texas 77036
May P. Chu 9600 Bellaire, Suite 252
Houston, Texas 77036
-8-
Name Address
- ---- -------
Jane W. Kwan 9600 Bellaire, Suite 252
Houston, Texas 77036
William C. C. Kwan 9600 Bellaire, Suite 252
Houston, Texas 77036
Edward Lee 9600 Bellaire, Suite 252
Houston, Texas 77036
John Lee 9600 Bellaire, Suite 252
Houston, Texas 77036
David Tai 9600 Bellaire, Suite 252
Houston, Texas 77036
Joe Ting 9600 Bellaire, Suite 252
Houston, Texas 77036
Don J. Wang 9600 Bellaire, Suite 252
Houston, Texas 77036
-9-