EXHIBIT 10.1
AGREEMENT AND PLAN OF REORGANIZATION
THIS AGREEMENT AND PLAN OF REORGANIZATION dated as of July 28, 1998
(hereinafter called the "Agreement"), is by and among MetroCorp Bancshares,
Inc., a Texas corporation (hereinafter called the "Company"), MetroBank, N.A., a
banking association incorporated and organized under the laws of the United
States of America (hereinafter called the "Bank") and MC Bancshares of Delaware,
Inc., a Delaware corporation (hereinafter called the "Delaware Company").
INTRODUCTION
This Agreement provides for (i) the incorporation and organization of a new
interim national bank ("New Bank") which will, at the time of consummation of
the transactions contemplated herein, be a subsidiary of the Company, (ii) the
subsequent consolidation of the Bank with the New Bank (the "Consolidation") in
connection with which each share of common capital stock of the Bank, $5.00 par
value ("Bank Common Stock"), issued and outstanding on the Effective Date of the
Consolidation (as hereafter defined), will be exchanged for four (4) shares of
common stock, $1.00 par value, of the Company ("Common Stock") or cash payments,
all pursuant to the Plan of Consolidation by and among the Bank, the New Bank,
and the Company, a form of which is attached hereto as EXHIBIT A and all of the
terms of which are incorporated herein by reference for all purposes (the "Plan
of Consolidation"), and (iii) the subsequent exchange by the Company of the Bank
Common Stock for shares of common capital stock of the Delaware Company (the
"Transfer"). All of the foregoing is for the purpose of allowing the Company to
acquire 100% of the issued and outstanding shares of Bank Common Stock which
will occur pursuant to certain transactions governed by the terms of Section 368
and other applicable provisions of the Internal Revenue Code of 1986, as amended
(the "Code"). In consideration of such premises and the mutual covenants and
agreements herein contained, the parties hereto agree as set forth below.
I.
PROPOSED CONSOLIDATION AND SUBSEQUENT TRANSACTION
Section 1.1. The Bank, the Company and the Delaware Company propose that
the Bank, the New Bank and the Company enter into the Plan of Consolidation with
such changes thereto as may be required by any federal or state regulatory
authority as a condition to approving the Consolidation and do not, in the
opinion of legal counsel to the Bank and the Company, materially alter the
rights of the stockholders of the Bank or of the New Bank.
Section 1.2. Immediately following consummation of the Consolidation, the
Company will exchange all of the Bank Common Stock acquired by it, pursuant to
the Consolidation, for 1,000 shares of common capital stock of the Delaware
Company, so that following consummation of the Consolidation, the Delaware
Company will be a wholly owned subsidiary of the Company and the bank resulting
from the Consolidation will be a wholly owned subsidiary of the Delaware
Company.
Section 1.3. This Agreement sets forth certain representations, warranties
and covenants of the Bank, the Company and the Delaware Company, upon which the
Bank, the Company, the Delaware Company and the New Bank will rely in entering
into and consummating the Plan of Consolidation and other transactions
contemplated by this Agreement.
II.
REPRESENTATIONS AND WARRANTIES OF THE BANK
The Bank hereby represents and warrants to the Company and the Delaware
Company as follows:
Section 2.01. ORGANIZATION. The Bank is a banking association duly
organized, validly existing and in good standing under the laws of the United
States of America, and has full corporate power and authority to own its
properties, to engage in the business and activities now conducted by it and to
enter into this Agreement and the Plan of Consolidation. The Bank does not have
any subsidiaries. The Agreement has been duly executed by the Bank and
constitutes a binding agreement of the Bank enforceable against it in accordance
with its terms.
Section 2.02. CAPITALIZATION. The authorized capital stock of the Bank
consists of 2,000,000 shares of Bank Common Stock, $5.00 par value, 1,382,407 of
which are issued and outstanding. All such shares are validly issued, fully
paid, and nonassessable (except for possible assessment under 12 U.S.C. Section
55). There are no existing options, warrants, calls or commitments of any kind
obligating the Bank to issue any of its authorized and unissued capital stock.
Section 2.03. APPROVALS. The Board of Directors of the Bank has approved
this Agreement and the transactions contemplated hereby, subject to the approval
thereof by the stockholders of the Bank as required by law. This Agreement has
been duly executed and delivered by the Bank and when executed by the Company
and the Delaware Company and duly approved by the stockholders of the Bank, it
will be a binding agreement of the Bank enforceable against it in accordance
with its terms.
Section 2.04. NO CONFLICT WITH OTHER INSTRUMENTS. Subject to the receipt
of all required
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regulatory approvals and compliance with all applicable federal and state
securities laws, the execution, delivery and performance of this Agreement,
the Plan of Consolidation and the transactions contemplated hereby and
thereby will not violate any provision of, or constitute a default under, any
order, writ, injunction or decree of any court or other governmental agency,
or any contract, agreement or instrument to which the Bank is a party or by
which it is bound, or constitute an event which with the lapse of time or
action by a third party could result in any default under any of the
foregoing or result in the creation of any lien, charge or encumbrance upon
any of the assets or properties of the Bank or upon the Bank Common Stock.
III.
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company hereby represents and warrants to the Bank and the Delaware
Company as follows:
Section 3.01. ORGANIZATION. The Company is a corporation duly organized,
validly existing and in good standing under the laws of the State of Texas, and
has full corporate power to own its properties, to carry on its business as now
being, and presently contemplated to be, conducted and to enter into this
Agreement and the Plan of Consolidation. The Company does not have
subsidiaries. The Agreement has been duly executed by the Company and
constitutes a binding agreement of the Company enforceable against it in
accordance with its terms.
Section 3.02. CAPITALIZATION. The authorized capital stock of the Company
is 20,000,000 shares of Common Stock, $1.00 par value, 1,000 shares of which are
validly issued and outstanding, fully paid and nonassessable. Other than as
provided by this Agreement and the Plan of Consolidation, there are no existing
options, warrants, calls or commitments of any kind obligating the Company to
issue any of its authorized and unissued capital stock.
Section 3.03. THE COMPANY COMMON STOCK. The Common Stock deliverable
pursuant to this Agreement and the Plan of Consolidation will, upon delivery, be
validly issued, fully paid and nonassessable.
Section 3.04. APPROVALS. The Board of Directors of the Company has
approved this Agreement and the transactions contemplated hereby, and no
approval by the stockholders of the Company is required by law in order to
consummate the transactions contemplated hereby.
Section 3.05. NO CONFLICT WITH OTHER INSTRUMENTS. Subject to the receipt
of all required regulatory approvals and compliance with all applicable federal
and state securities laws, the execution, delivery and performance of this
Agreement, the Plan of Consolidation and the
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transactions contemplated hereby and thereby will not violate any provision
of, or constitute a default under any order, writ, injunction or decree of
any court or other governmental agency, or any contract, agreement or
instrument to which the Company is a party or by which it is bound, or
constitute an event which with the lapse of time or action by a third party
could result in any default under any of the foregoing or result in the
creation of any lien, charge or encumbrance upon any of the assets or
properties of the Company or upon shares of capital stock of the Company.
IV.
REPRESENTATIONS AND WARRANTIES OF THE DELAWARE COMPANY
The Delaware Company hereby represents and warrants to the Bank and the
Company as follows:
Section 4.01. ORGANIZATION. The Delaware Company is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware, and has full corporate power to own its properties, to carry on its
business as now being, and presently contemplated to be, conducted and to enter
into this Agreement. The Delaware Company does not have any subsidiaries. The
Agreement has been duly executed by the Delaware Company and constitutes a
binding agreement of the Delaware Company enforceable against it in accordance
with its terms.
Section 4.02. CAPITALIZATION. The authorized capital stock of the
Delaware Company is 3,000 shares of common stock, $0.01 par value (the "Delaware
Company Common Stock"), no shares of which are issued and outstanding. There
are no existing options, warrants, calls or commitments of any kind obligating
the Delaware Company to issue any of its authorized and unissued capital stock.
Section 4.03. THE DELAWARE COMPANY COMMON STOCK. The Delaware Company
Common Stock deliverable to the Company pursuant to this Agreement will, upon
delivery, be validly issued, fully paid and nonassessable.
Section 4.04. APPROVALS. The Board of Directors of the Delaware Company
has approved this Agreement and the transactions contemplated hereby, and no
approval by the stockholders of the Delaware Company is required by law in order
to consummate the transactions contemplated hereby.
Section 4.05. NO CONFLICT WITH OTHER INSTRUMENTS. Subject to the receipt
of all required regulatory approvals and compliance with all applicable federal
and state securities laws, the execution, delivery and performance of this
Agreement and the transactions contemplated hereby will not violate any
provision of, or constitute a default under any order, writ, injunction or
decree
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of any court or other governmental agency, or any contract, agreement or
instrument to which the Delaware Company is a party or by which it is bound, or
constitute an event which with the lapse of time or action by a third party
could result in any default under any of the foregoing or result in the creation
of any lien, charge or encumbrance upon any of the assets or properties of the
Delaware Company or upon shares of capital stock of the Delaware Company.
V.
COVENANTS OF THE BANK
The Bank hereby covenants to and with the Company and the Delaware Company
as follows:
Section 5.01. STOCKHOLDER APPROVAL AND BEST EFFORTS. The Bank will, as
soon as practicable, present for the approval of its stockholders this
Agreement, the Plan of Consolidation and the transactions contemplated hereby
and thereby. The Board of Directors of the Bank will use its best efforts to
secure the approval by the holders of the requisite number of shares of Bank
Common Stock of this Agreement, the Plan of Consolidation and the transactions
contemplated hereby and thereby (but this provision shall not be interpreted as
requiring such directors in their capacity as stockholders of the Bank to vote
their shares of Bank Common Stock in favor of this Agreement or the Plan of
Consolidation) and will use its best efforts to take or cause to be taken all
other actions necessary, proper or advisable to consummate the transactions
contemplated by this Agreement and the Plan of Consolidation, including such
actions as the Company or the Delaware Company may reasonably consider
necessary, proper or advisable in connection with filing applications and
registration statements with, or obtaining approvals from all regulatory
authorities having jurisdiction over the transactions contemplated by this
Agreement and the Plan of Consolidation.
The information delivered by the Bank to its stockholders with respect to
their consideration of the transactions contemplated hereby (except insofar as
such information is furnished by or based upon information furnished by the
Company, the Delaware Company or the New Bank) will not contain any statement
which, at the time and in the light of the circumstances under which it is made,
is false or misleading with respect to any material fact, or which omits to
state any material fact necessary in order to make the statements made therein
not false or misleading.
Section 5.02. EXISTENCE. From and after the date of this Agreement to the
Effective Date of the Consolidation, the Bank will maintain its corporate
existence and without the written consent of the Company (i) will not amend its
charter or by-laws; and (ii) will not issue any securities.
Section 5.03. ACCESS TO PROPERTIES AND RECORDS. The Bank will afford to
the officers and authorized representatives of the Company and the Delaware
Company full access to the properties, books and records of the Bank in order
that the Company and the Delaware Company may have full
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opportunity to make such reasonable investigation as they shall desire to
make of the affairs of the Bank, and the officers of the Bank will furnish
the Company and the Delaware Company with such additional financial and
operating data and other information as to the business and properties of the
Bank as the Company and the Delaware Company shall, from time to time,
reasonably request.
Section 5.04. INFORMATION FOR APPLICATIONS AND STATEMENTS. The Bank will
furnish the Company and the Delaware Company with all information concerning the
Bank required for inclusion in any application or statement to be made by the
Company or the Delaware Company to or filed by the Company or the Delaware
Company with any other governmental body in connection with the transactions
contemplated by this Agreement and the Plan of Consolidation or in connection
with any unrelated transactions during the pendency of this Agreement, and the
Bank represents and warrants that all information so furnished for such
statements and applications shall be true and correct in all material respects
without omission of any material fact required to be stated therein to make the
information not materially misleading.
Section 5.05. DISSEMINATION OF PROXY STATEMENTS. The Bank will mail to
each of its stockholders a proxy statement which shall cause its management to
solicit proxies pursuant thereto and shall cause the proxies granted in
connection with this Consolidation to be collected, tabulated and voted in
accordance with the instructions contained in such proxies respecting the
Consolidation.
VI.
COVENANTS OF THE COMPANY
The Company hereby covenants to and with the Bank and the Delaware Company
as follows:
Section 6.01. BEST EFFORTS. The Company will use its best efforts to
incorporate and organize the New Bank and to cause the New Bank to authorize,
adopt and approve the Plan of Consolidation and the transactions contemplated
thereby, and the Board of Directors of the Company will use its best efforts to
take or cause to be taken all other actions necessary, proper or advisable to
consummate this Agreement and the Plan of Consolidation, including such actions
as the Bank or the Delaware Company may reasonably consider necessary, proper or
advisable in connection with filing applications and other instruments with, or
obtaining approvals of, governmental bodies to the transactions contemplated by
this Agreement and the Plan of Consolidation.
Section 6.02. EXISTENCE. From and after the date of this Agreement to the
Effective Date, the Company (i) will maintain its corporate existence; (ii) will
not amend its charter, or by-laws; and (iii) will not issue any securities.
Section 6.03. INFORMATION FOR APPLICATIONS AND STATEMENTS. The Company
will furnish the
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Bank and the Delaware Company with all the information concerning the Company
and the New Bank required for inclusion in any application or statement to be
made by the Bank or the Delaware Company to any regulatory authority in
connection with the transactions contemplated by this Agreement, and it
represents and warrants that all information so furnished for such statements
and applications shall be true and correct in all material respects without
omission of any material fact required to be stated therein to make the
information furnished not materially misleading.
Section 6.04. ACCESS TO RECORDS. The Company will afford to the officers
and authorized representatives of the Bank and the Delaware Company full access
to the books and records of the Company in order that the Bank and the Delaware
Company may have full opportunity to make such reasonable investigation as they
shall desire to make of the affairs of the Company, and the officers of the
Company will furnish the Bank and the Delaware Company with such additional
financial data and other information as to the business of the Company as the
Bank or the Delaware Company shall, from time to time, reasonably request.
Section 6.05. ISSUANCE OF SHARES OF THE COMPANY COMMON STOCK AND CASH
PAYMENTS. The Company will issue and deliver, when and if required by the
provisions of the Plan of Consolidation, certificates representing the number of
duly authorized, issued and outstanding shares of Common Stock and such amounts
of cash into which the shares of Bank Common Stock are to be converted pursuant
to this Agreement and the Plan of Consolidation.
VII.
COVENANTS OF THE DELAWARE COMPANY
The Delaware Company hereby covenants to and with the Company and the Bank
as follows:
Section 7.01. BEST EFFORTS. The Delaware Company will use its best
efforts to take or cause to be taken all other actions necessary, proper or
advisable to consummate this Agreement, including such actions as the Bank or
the Company may reasonably consider necessary, proper or advisable in connection
with filing applications and other instruments with, or obtaining approvals of,
governmental bodies to the transactions contemplated by this Agreement and the
Plan of Consolidation.
Section 7.02. EXISTENCE. From and after the date of this Agreement to the
Effective Date, without the prior written consent of the Company, the Delaware
Company will maintain its corporate existence, will not amend its charter or
bylaws, will not issue any securities and will not declare or make any dividend
or other distribution with respect to the outstanding shares of the Delaware
Company Common Stock.
Section 7.03. INFORMATION FOR APPLICATIONS AND STATEMENTS. The Delaware
Company will
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furnish the Bank and the Company with all the information concerning the
Delaware Company required for inclusion in any application or statement to be
made by the Bank or the Company to any regulatory authority in connection
with the transactions contemplated by this Agreement, and it represents and
warrants that all information so furnished for such statements and
applications shall be true and correct in all material respects without
omission of any material fact required to be stated therein to make the
information furnished not materially misleading.
Section 7.04. ACCESS TO RECORDS. The Delaware Company will afford to the
officers and authorized representatives of the Bank and the Company full access
to the books and records of the Delaware Company in order that the Bank and the
Company may have full opportunity to make such reasonable investigation as it
shall desire to make of the affairs of the Delaware Company, and the officers of
the Delaware Company will furnish the Bank with such additional financial data
and other information as to the business of the Delaware Company as the Bank or
the Company shall, from time to time, reasonably request.
Section 7.05. ISSUANCE OF SHARES OF THE DELAWARE COMPANY COMMON STOCK.
The Delaware Company will issue and deliver to the Company upon consummation of
the Consolidation 1,000 shares of capital stock of the Delaware Company Common
Stock.
VIII.
CLOSING
Section 8.01. CLOSING. On a mutually acceptable date (herein called the
"Closing Date") as soon as practicable within the 60 day period commencing with
the latest of the following dates:
(a) such date as may be prescribed by any federal or state
agency or authority pursuant to any applicable federal or state law, rule,
regulation or order, prior to which consummation of the Consolidation may
not be effected; or
(b) the date on which the transactions contemplated by this
Agreement have been approved by the stockholders of the Bank and the New
Bank in accordance with applicable law; or
(c) if the transactions contemplated by this Agreement are being
contested in any legal proceeding and the Company, the Delaware Company or
the Bank pursuant to Section 12.01 herein has elected to contest the same,
then the date that such court proceeding has been brought to a conclusion
favorable, in the judgment of the Company, the Delaware Company and the
Bank, to the consummation of the transactions contemplated herein, or such
prior date as the Company, the Delaware Company and the Bank shall elect
whether
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or not such court proceeding has been brought to a conclusion,
a meeting ("Closing") will take place at which the parties to this Agreement
will exchange certificates, letters and other documents in order to determine
whether any condition exists which would permit the parties to this Agreement to
terminate this Agreement. If no such condition then exists or if no party
elects to exercise any right it may have to terminate this Agreement, then and
thereupon the appropriate parties shall execute such documents and instruments
as may be necessary or appropriate in order to effect the transactions
contemplated by this Agreement and the Plan of Consolidation.
The Closing shall take place at the principal office of the Bank in
Houston, Texas on the Closing Date, or at such other place to which the parties
may agree.
Section 8.02. EFFECTIVE DATE. This Agreement and the Plan of
Consolidation shall be ratified and confirmed by the affirmative vote of the
owners of record of two-thirds (2/3) of the Bank Common Stock and the capital
stock of the New Bank; and the Consolidation shall become effective at the time
specified in the approval of the Consolidation issued by the Office of the
Comptroller of the Currency (the "OCC"). The "Effective Date" of the
Consolidation as that term is used in this Agreement means the effective date of
the Consolidation under the Plan of Consolidation.
Section 8.03. TERMINATION.
(a) This Agreement and the Plan of Consolidation may be terminated by
action of the Board of Directors of either the Company, the Bank or the Delaware
Company at any time prior to the Effective Date if:
(i) there shall be any actual or threatened action or proceeding
by or before any court or any other governmental body which shall seek to
restrain, prohibit or invalidate the transactions contemplated by this
Agreement and the Plan of Consolidation and which, in the judgment of such
Board or Boards of Directors, makes it inadvisable to proceed with the
Consolidation;
(ii) any of the transactions contemplated hereby or by the Plan
of Consolidation are disapproved by any regulatory authority whose approval
is required to consummate any of such transactions, or if, in the judgment
of such Board or Boards of Directors, there is a substantial likelihood
that any such approval will not be obtained or will be obtained only upon a
condition or conditions which would be unduly burdensome and that therefore
it is inadvisable to proceed with the Consolidation; or
(iii) the Consolidation shall not have become effective prior to
September 30,
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1998, or such later date as shall have been approved by the Board of
Directors of each of the Company, the Delaware Company and the Bank.
(b) This Agreement and the Plan of Consolidation may be terminated at
any time prior to the Effective Date with the mutual consent of the Bank, the
Delaware Company and the Company upon the approval of such action by their
respective Boards of Directors.
IX.
CONDITIONS TO THE COMPANY'S OBLIGATIONS
The obligations of the Company under this Agreement are subject to the
satisfaction, at or prior to the Closing Date of the following conditions, which
may be waived by the Company in its sole discretion:
Section 9.01. COMPLIANCE WITH REPRESENTATIONS AND WARRANTIES. The
representations and warranties made by the Bank and the Delaware Company in this
Agreement were true when made and shall be true at the Closing Date with the
same force and effect as if such representations and warranties were made at and
as of the Closing Date and the Bank and the Delaware Company shall have
performed or complied with all covenants and conditions required by this
Agreement to be performed and complied with prior to or at the Closing.
Section 9.02. ORGANIZATION OF THE NEW BANK. The New Bank shall have been
incorporated in accordance with the applicable provisions of the National Bank
Act, and the capitalization of the New Bank immediately prior to the Closing
shall be at least the amount indicated in the Plan of Consolidation.
Section 9.03. MATERIAL ADVERSE CHANGE. Prior to the Closing Date, there
shall not have occurred any material adverse change in the financial condition,
business or operations of the Bank, nor shall any event have occurred which with
the lapse of time may cause or create any material adverse change in the Bank's
financial condition, business or operations.
Section 9.04. DISSENTERS' RIGHTS AND NON-RESIDENTS OF TEXAS. The
aggregate number of shares of Bank Common Stock owned by those stockholders of
the Bank who have perfected and shall be entitled to exercise their dissenters'
rights and the aggregate number of shares of Bank Common Stock owned by those
stockholders who are residents of a state that requires registration of the
Common Stock to be issued in connection with the Consolidation where the Board
of Directors of the Company has determined that the costs of such registration
are unjustified (the "Ineligible Stockholders") shall not exceed 2% of the
issued and outstanding shares of Bank Common Stock.
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Section 9.05. FEDERAL INCOME TAX CONSEQUENCES. The federal income tax
consequences of any of the transactions contemplated by this Agreement and the
Plan of Consolidation shall be satisfactory to the Company, in its sole
discretion.
Section 9.06. DIVIDEND PAYMENT BY BANK. There shall be no legal or
regulatory restrictions on the Bank's ability to pay an amount of dividends with
respect to the Bank Common Stock immediately following consummation of the
Consolidation which will be sufficient to allow the Company to (i) pay cash for
shares of Bank Common Stock owned by those stockholders of the Bank who exercise
their dissenters' rights; (ii) pay cash for shares of Bank Common Stock owned by
Ineligible Stockholders and (iii) pay organizational and other expenses incurred
by the Company and the Delaware Company in connection with the transactions
contemplated by this Agreement, the Plan of Consolidation, and the transactions
contemplated hereby and thereby.
X.
CONDITIONS TO OBLIGATIONS OF THE BANK
The obligations of the Bank under this Agreement are subject to the
satisfaction at or prior to the Closing Date, of the following conditions, which
may be waived by the Bank in its sole discretion:
Section 10.01. COMPLIANCE WITH REPRESENTATIONS AND WARRANTIES. The
representations and warranties made by the Company and the Delaware Company in
this Agreement were true when made and shall be true as of the Closing Date with
the same force and effect as if such representations and warranties were made at
and as of the Closing, and the Company and the Delaware Company shall have
performed and complied with all covenants and conditions required by this
Agreement to be performed or complied with by the Company and the Delaware
Company prior to or at the Closing.
Section 10.02. MATERIAL ADVERSE CHANGE. Prior to the Closing Date, there
shall not have occurred any material adverse change in the financial condition,
business or operations of the Company or Delaware Company nor shall any event
have occurred which with the lapse of time may cause or create any material
adverse change in its financial condition, business or operations.
XI.
CONDITIONS TO OBLIGATIONS OF THE DELAWARE COMPANY
The obligations of the Delaware Company under this Agreement are subject to
the satisfaction at or prior to the Closing Date, of the following conditions,
which may be waived by the
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Delaware Company in its sole discretion:
Section 11.01. COMPLIANCE WITH REPRESENTATIONS AND WARRANTIES. The
representations and warranties made by the Company and the Bank in this
Agreement were true when made and shall be true as of the Closing Date with the
same force and effect as if such representations and warranties were made at and
as of the Closing, and the Company and the Bank shall have performed and
complied with all covenants and conditions required by this Agreement to be
performed or complied with by the Company and the Bank prior to or at the
Closing.
Section 11.02. MATERIAL ADVERSE CHANGE. Prior to the Closing Date, there
shall not have occurred any material adverse change in the financial condition,
business or operations of the Company or the Bank nor shall any event have
occurred which with the lapse of time may cause or create any material adverse
change in its financial condition, business or operations.
XII.
CONDITION TO RESPECTIVE OBLIGATIONS OF
THE COMPANY, THE DELAWARE COMPANY AND THE BANK
The respective obligations of the Company, the Delaware Company and the
Bank under this Agreement are subject to the satisfaction of the following
condition which may be waived by the Bank, the Delaware Company or the Company
in their respective sole discretion:
Section 12.01. GOVERNMENT APPROVALS. The Company, the Delaware Company,
the Bank and the New Bank shall have received the approval of the transactions
contemplated by this Agreement and the Plan of Consolidation from all necessary
governmental agencies and authorities, including the Board of Governors of the
Federal Reserve System and the OCC and such approvals and the transactions
contemplated hereby shall not have been contested by any federal or state
governmental authority or any third party (except stockholders asserting
dissenters' rights) by formal proceeding. It is understood that, if any contest
as aforesaid is brought by formal proceedings, the Company, the Delaware Company
or the Bank may, but shall not be obligated to, answer and defend such contest
or otherwise pursue the Consolidation over such objection.
Section 12.02. STOCKHOLDER APPROVALS. The holders of not less than
two-thirds (2/3) of the outstanding shares of the Bank Common Stock and the
capital stock of the New Bank shall have voted for the authorization and
approval of, and given their written consent to, this Agreement and the Plan of
Consolidation and the transactions contemplated by this Agreement and the Plan
of Consolidation. If requested by the Company, the Bank and the New Bank each
shall have delivered to the Company a certificate signed by the respective
Secretary and/or Cashier of each bank as to the details of such votes and
approvals, which certificate shall have attached to it as exhibits copies of
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such written consents of the stockholders of the Bank and the New Bank.
XIII.
MISCELLANEOUS
Section 13.01. SURVIVAL OF REPRESENTATIONS AND WARRANTIES. The
representations and warranties of the Bank, the Delaware Company and the Company
contained in this Agreement shall survive the Closing hereunder and any
investigation by the Company, the Delaware Company or the Bank.
Section 13.02. AMENDMENTS. This Agreement may be amended only by a
writing signed by all parties hereto, at any time prior to the Closing Date with
respect to any of the terms contained herein, except that the provisions
regarding the number of shares of Common Stock to be received by and the amount
of cash to be paid to stockholders of the Bank pursuant to this Agreement and
the Plan of Consolidation shall not be changed subsequent to the approval of the
transactions provided for by this Agreement and the Plan of Consolidation by
such stockholders.
Section 13.03. NOTICES. Any notice given hereunder shall be in writing
and shall be mailed by first class mail, postage prepaid, to the parties at the
following addresses:
To the Company:
MetroCorp Bancshares, Inc.
9600 Bellaire, Suite 101
Houston, Texas 77036
Attention: Don J. Wang
To the Bank:
MetroBank, N.A.
9600 Bellaire, Suite 101
Houston, Texas 77036
Attention: Don J. Wang
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To the Delaware Company:
MC Bancshares of Delaware, Inc.
c/o CT Corporation System
1209 Orange Street
Wilmington, Delaware 19801
Attention: Mr. Mark Ferrucci
Section 13.04. ASSIGNMENT. This Agreement shall be binding upon and inure
to the benefit of the parties hereto and their respective successors and
assigns, but shall not be assigned by either party without the prior written
consent of the other party. All understandings and agreements heretofore made
between the parties hereto are merged in this Agreement which shall be the sole
expression of the agreement of the parties respecting the Consolidation.
Section 13.05. COUNTERPARTS. This Agreement may be executed in multiple
counterparts, each of which shall be deemed an original and all of which shall
be deemed to constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the date first above written.
METROCORP BANCSHARES, INC.
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ATTEST:
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METROBANK, N.A.
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ATTEST:
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MC BANCSHARES OF DELAWARE, INC.
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ATTEST:
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EXHIBIT A
PLAN OF CONSOLIDATION BY AND AMONG
METROBANK, N.A.
NEW METROBANK, N.A.
METROCORP BANCSHARES, INC.
THIS PLAN OF CONSOLIDATION, dated as of July 28, 1998 (the "Plan"), is by
and among MetroBank, N.A., a banking association incorporated and organized
under the laws of the United States of America (the "Bank"), New MetroBank,
N.A., a banking association incorporated and organized under the laws of the
United States of America (the "New Bank"), and MetroCorp Bancshares, Inc., a
Texas corporation (the "Company"). The Bank and the New Bank are hereinafter
referred to collectively as the "Consolidating Banks."
1. DECLARATIONS. The Bank is a banking association duly organized and
existing under the laws of the United States of America having authorized
2,000,000 shares of common stock, $5.00 par value (the "Bank Common Stock"),
1,413,640 of which are issued and 1,382,407 of which are outstanding. There are
no existing options, warrants, calls or commitments of any kind obligating the
Bank to issue any Bank Common Stock. New Bank is a banking association duly
organized and existing under the laws of the United States of America having
authorized 200,000 shares of capital stock, $1.00 par value ("New Bank Stock"),
all of which shares are issued and outstanding and are owned by the Company.
The Company has authorized 20,000,000 shares of Common Stock, $1.00 par value
(the "Common Stock"), 1,000 shares of which are issued and outstanding and
2,000,000 shares of Preferred Stock, $1.00 par value, none of which are issued
and outstanding.
The Bank, the Company and MC Bancshares of Delaware, Inc. (the "Delaware
Company") have entered into an Agreement and Plan of Reorganization (the
"Agreement"), which contemplates, among other things, the consolidation of the
Bank with the New Bank (the "Consolidation") and the conversion of the Bank
Common Stock into Common Stock and other consideration of the Company. The
purpose of this Plan is to set forth certain of the terms and conditions upon
which such transactions shall take place.
2. THE CONSOLIDATION. On the Effective Date (as hereinafter defined),
the New Bank shall be consolidated with the Bank under the charter of the Bank,
which shall survive the Consolidation ("Resulting Bank") and continue to be
governed by the laws of the United States of America. The Consolidation shall
be effected pursuant to the provisions of and shall have the effect provided by
the National Bank Act, as amended (the "Act").
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3. ARTICLES OF ASSOCIATION, BYLAWS AND FACILITIES. On and subsequent to
the Effective Date, the Articles of Association and Bylaws of the Bank shall
continue to be the Articles of Association and Bylaws of the Resulting Bank.
The established offices and facilities of the Bank immediately prior to the
Consolidation shall continue to be the established offices and facilities of the
Resulting Bank.
4. EFFECT OF THE CONSOLIDATION. On the Effective Date, the corporate
existence of the Bank and New Bank shall, as provided in the Act, be
consolidated and continued in the Resulting Bank, and the Resulting Bank shall
be deemed a continuation in entity and identity of each of the Consolidating
Banks. The Resulting Bank shall be subject to all the liabilities, obligations
and duties of each Consolidating Bank, and shall without the necessity of any
conveyance, assignment or transfer become the owner of all of the assets of
every kind and character formerly belonging to the Consolidating Banks. If
either Consolidating Bank shall at the Effective Date be acting as trustee,
guardian, executor, administrator or in any other fiduciary capacity, the
Resulting Bank shall, without the necessity of any judicial action or action by
the creator of such trust, continue such office, trust or fiduciary relationship
and shall perform all of the duties and obligations and exercise all the powers
and authority connected with or incidental to such fiduciary relationship in the
same manner as though the Resulting Bank had been originally named or designated
as such fiduciary. The naming or designating by a testator, or the creator of a
living trust, of either of the Consolidating Banks to act as trustee, guardian,
executor or in any other fiduciary capacity shall be considered the naming or
designating of the Resulting Bank to act in such capacities.
5. LIABILITIES. On the Effective Date, the Resulting Bank shall be
liable for all liabilities of the Bank and New Bank, and all deposits, debts,
liabilities, obligations and contracts of the Bank and New Bank, respectively,
matured or unmatured, whether accrued, absolute, contingent or otherwise,
whether or not reflected or reserved against on balance sheets, books of account
or records of the Bank or New Bank, as the case may be, shall be those of the
Resulting Bank and shall not be released or impaired by the Consolidation; and
all rights of creditors and other obligees and all liens on property of either
New Bank or the Bank shall be preserved unimpaired subsequent to the
Consolidation.
6. CONVERSION OF SHARES. The manner and basis of converting the shares
of the Bank Common Stock, and the New Bank Stock into shares of capital stock of
the Resulting Bank and into shares of Common Stock, and other considerations,
respectively, are as follows:
6.1. Except as otherwise set forth below, upon and by reason of the
Consolidation becoming effective, each share of the Bank Common Stock on the
Effective Date, and all rights in respect of such shares of Bank Common Stock,
without any action on the part of the holder
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thereof, shall be converted into and exchanged for four (4) shares of Common
Stock.
6.2. Upon and by reason of the Consolidation becoming effective, each
share of New Bank Stock will be canceled and converted into shares of Bank
Common Stock so that immediately after the Consolidation, the Company will own
all of the issued and outstanding shares of Bank Common Stock.
6.3. If the relevant securities laws of any state in which a
stockholder ("Ineligible Stockholder") resides do not provide an exemption from
registration under such securities laws for the issuance of the Common Stock in
connection with the Consolidation and the expense to register the Common Stock
is unjustified as determined by the Board of Directors of the Company in its
sole discretion, each share of Bank Common Stock which is owned beneficially on
the date of the consummation of the Consolidation ("Effective Date") by each
Ineligible Stockholder on the Effective Date, without any action on the part of
the holder thereof, shall be converted into and exchanged for cash in an amount
equal to $21.54.
6.4. After the Effective Date, each holder of an outstanding
certificate or certificates which prior thereto represented shares of Bank
Common Stock shall surrender the same and such holder shall be entitled, upon
such surrender, to receive in exchange therefor a certificate or certificates
representing the number of shares of Common Stock or cash into and for which the
shares of Bank Common Stock so surrendered shall have been converted and
exchanged as provided above. Until a certificate which represented shares of
Bank Common Stock prior to the Effective Date and which is held by a person
entitled to receive Common Stock or cash is surrendered, such certificate shall
evidence for all purposes the ownership of the shares of Common Stock or cash
into which the shares of Bank Common Stock represented by such certificate prior
to the Effective Date have been converted as provided above.
7. INSURANCE. At the Effective Date, the Resulting Bank will continue
all insurance policies maintained by the Bank and New Bank and which are in
effect immediately prior to the effective date of the Consolidation, including
all group and employee benefit insurance policies.
8. DIRECTORS AND OFFICERS. Subject to qualification of directors as
required by applicable statutes, the Board of Directors and the officers of the
Resulting Bank at the Effective Date shall consist of all the persons who are
directors or officers of the Bank immediately prior to the Effective Date.
9. RATIFICATION BY STOCKHOLDERS. This Plan shall be submitted to the
stockholders of the Bank and New Bank for ratification and confirmation at
meetings to be called and held in accordance with applicable provisions of law
and the respective Articles of Association and
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Bylaws of the Bank and New Bank. The Bank and New Bank shall proceed
expeditiously and cooperate fully in the procurement of any other consents
and approvals and the taking of any other action, and the satisfaction of all
other requirements prescribed by law or otherwise, necessary for consummation
of the Consolidation on the terms herein provided, including, without
limitation, the preparation and submission of all necessary filings and
certificates with the Board of Governors of the Federal Reserve System
("Federal Reserve") and Office of the Comptroller of the Currency (the "OCC")
for approval as required by law.
10. TERMINATION. If:
(a) Any of the events set forth in Section 8.03 of the Agreement
occurs;
(b) Any condition precedent contained in Articles IX, X, XI or
XII of the Agreement has not been fulfilled or waived on or before the
Closing Date set forth in the Agreement; or
(c) For any reason the consummation of the Consolidation is
inadvisable in the joint and mutual opinions of the Boards of Directors of
the Bank, New Bank and the Company;
then this Plan may be terminated at any time before the Effective Date by
written notice by one or more of the Bank, New Bank and the Company to the
others, authorized or approved by resolutions adopted by the Board of Directors
of each party giving such notice. Upon termination by written notice as
provided in this Section 10, this Plan shall be void and of no further force or
effect.
11. NOTICES. Any notice given hereunder shall be in writing and shall be
mailed by first class mail, postage prepaid, to the parties at the following
addresses:
To Bank:
MetroBank, N.A.
9600 Bellaire, Suite 101
Houston, Texas 77036
Attention: Don J. Wang
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To New Bank:
New MetroBank, N.A.
9600 Bellaire, Suite 101
Houston, Texas 77036
Attention: Don J. Wang
To Company:
MetroCorp Bancshares, Inc.
9600 Bellaire, Suite 101
Houston, Texas 77036
Attention: Don J. Wang
12. EFFECTIVE DATE. Subject to the terms and upon satisfaction of all
requirements of law and the conditions specified in this Plan including, among
other conditions, receipt of the approval of the OCC and the Federal Reserve,
the Consolidation shall become effective, and the Effective Date of the
Consolidation shall occur, at the date and time specified in the certificate
approving the Consolidation to be issued by the OCC (the "Effective Date").
IN WITNESS WHEREOF, the Bank, New Bank, and the Company have caused this
Plan to be executed in counterparts by their duly authorized officers as of the
date first above written, and directors constituting a majority of the Board of
Directors of the Bank and New Bank have hereunto subscribed their names.
METROBANK, N.A.
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ATTEST:
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NEW METROBANK, N.A.
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ATTEST:
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METROCORP BANCSHARES, INC.
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ATTEST:
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STATE OF TEXAS
COUNTY OF HARRIS
On this ____ day of __________, 1998, before me, a notary public for this
state and county, personally came _________________, as President of MetroBank,
N.A., New MetroBank, N.A. and MetroCorp Bancshares, Inc., ___________________,
as __________________ of MetroBank, N.A. and New MetroBank, N.A. and
_________________, as __________________ of MetroCorp Bancshares, Inc. and each
in his capacity acknowledged this instrument to be the act and deed of the
association and the seal affixed to it to be its seal.
WITNESS my official seal and signature this day and year.
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Notary Public, Harris County
[Seal of Notary]
My commission expires
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