EXHIBIT 3.1
[SEAL]
ARTICLES OF INCORPORATION
OF
COMMERCIAL CAPITAL BANCORP
I, the undersigned, for the purpose of incorporating and organizing a
corporation under Chapter 78 of the Nevada Revised Statutes, do hereby certify
as follows:
First: The name of the corporation (the "Corporation") is:
Commercial Capital Bancorp
Second: The address of the Corporation's Resident Agent in the
State of Nevada is 318 North Carson Street, Suite 208, Carson City, Nevada
89701. The name of the Corporation's Resident Agent at such address is Paracorp
Incorporated.
Third: The nature of the business or purpose of the Corporation
is as follows:
To engage in any lawful act or activity for which the
Corporation may be organized under the Nevada Revised
Statutes.
Fourth: (a) The Corporation is authorized to issue two classes of
shares designated "Preferred Stock" and "Common Stock", respectively. The number
of shares of Preferred Stock authorized to be issued is 100,000,000 and the
number of shares of Common Stock authorized to be issued is 100,000,000. The par
value of the Preferred Stock shall be $.001 per share, and the par value of the
Common Stock shall be $.001 per share. Each share of the Common Stock shall have
identical powers, preferences and rights, including rights in liquidation.
(b) The Preferred Stock may be divided into such number of
series as the board of directors may determine. The board of directors is
authorized to determine and alter the rights, preferences, privileges and
restrictions granted to or imposed upon any wholly unissued series of Preferred
Stock, and to fix the number of shares of any series of Preferred Stock and the
designation of any such series of Preferred Stock. The board of directors,
within the limits and restrictions stated in any resolution or resolutions of
the board of directors originally fixing the number of shares constituting any
series, may increase or decrease (but not below the number of shares of such
series then outstanding) the number of shares of such series subsequent to the
issue of shares of that series.
Fifth: The name and mailing address of the Incorporator is Nancy
Gaches, 318 North Carson Street, Suite 208, Carson City, Nevada 89701. The
powers and liabilities of the Incorporator terminate upon the filing of these
Articles of Incorporation.
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Sixth: The first Board of Directors shall consist of 3 members
and the names and addresses are as follows of the persons who are to serve as
the initial directors of the Corporation until their successors are elected as
provided by law and the Corporation's Bylaws:
Stephen H. Gordon David S. DePillo
One Venture, Suite 300 One Venture, Suite 300
Irvine, CA 92618 Irvine, CA 92618
Scott F. Kavanaugh
One Venture, Suite 300
Irvine, CA 92618
Seventh: The Corporation shall have perpetual existence.
Eighth: The stockholders, officers or directors of the Corporation
shall not be personally liable for the payment of the Corporation's debts except
as they may be liable by reason of their own conduct or acts.
Ninth: The Board of Directors is expressly authorized and
empowered to make, alter and repeal the Bylaws of the Corporation, subject to
the power of the stockholders of the Corporation to alter or repeal any Bylaws
of the Corporation.
Tenth: The Corporation reserves the right at any time and from
time to time to amend, alter, change or repeal any provision contained in the
Articles of Incorporation and add or insert any other provision authorized by
the laws of the State of Nevada in the manner now or hereafter prescribed by
law. All rights, preferences or privileges of whatever nature conferred upon
stockholders, directors or any other persons whomsoever by and pursuant to these
Articles of Incorporation in its Present form or as hereafter amended are
granted subject to the rights now reserved in this Article.
Eleventh: The Corporation expressly elects to be governed by
Sections 78.411-78.444, inclusive, of the Nevada Revised Statutes, as the same
may be amended or supplemented from time to time.
Twelfth: No director or officer shall be liable to the Corporation
or its stockholders for monetary damages for breach of fiduciary duty, provided
that this Article shall not eliminate or limit the liability of a director or
officer for (i) acts or omissions which involve intentional misconduct, fraud or
a knowing violation of law or (ii) the payment of distributions in violation of
Section 78.300 of the Nevada Revised Statutes.
Thirteenth: Meetings of stockholders may be held within or without the
State of Nevada, as the Bylaws of the Corporation may provide. The books of the
Corporation may be kept outside the State of Nevada at such place or places as
may be designated from time to time by the Board of Directors or in the Bylaws
of the Corporation, except as otherwise required by
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the Nevada Revised Statutes. Election of directors need not be by written ballot
unless the Bylaws of the Corporation so provide.
Fourteenth: The Corporation shall, to the fullest extent permitted by
Section 78.751 of the Nevada Revised Statutes, as the same may be amended or
supplemented from time to time, indemnify any and all persons whom it shall have
power to indemnify under said section from and against any and all of the
expenses, liabilities or other matters referred to in or covered by said Section
78.751, and the indemnification provided for herein shall not be deemed
exclusive of any other rights to which those indemnified may be entitled under
any Bylaws, agreement, vote of stockholders or disinterested directors or
otherwise, both as to action in his or her official capacity and as to action in
another capacity while holding such office, and shall continue as to a person
who has ceased to be a director, officer, employee or agent and shall inure to
the benefit of the heirs, executors and administrators of such a person.
Fifteenth: The Board of Directors of the Corporation shall be divided
into three classes of directors which shall be designated Class I, Class II, and
Class III. At the first annual meeting of shareholders after this Article
Fifteenth becomes effective, eleven (11) directors shall be elected to the
Board, to be comprised of 3 Class I directors, 4 Class II directors and 4 Class
III directors. At such first annual meeting, Class I directors shall be elected
for a term expiring at the next succeeding annual meeting thereafter, Class II
directors shall be elected for a term expiring at the second next succeeding
annual meeting thereafter, and Class III directors shall be elected for a term
expiring at the third next succeeding annual meeting thereafter. Thereafter, the
numbers of each class shall be elected for a term of three years and until their
successors are elected and qualified. The terms of all directors in a class
shall expire simultaneously. Notwithstanding the foregoing, the director whose
term shall expire at any annual meeting shall continue to serve until such time
as his successor shall have been duly elected and shall have qualified unless
his position on the Board of Directors shall have been abolished by action taken
to reduce the size of the Board of Directors prior to said meeting.
Should the number of directors of the Corporation be reduced, the
directorships eliminated shall be allocated among classes as appropriate so that
the number of directors in each class is as nearly as equal as possible. The
Board of Directors shall designate, by the name of the incumbents, the positions
to be abolished. Notwithstanding the foregoing, no decrease in the number of
directors shall have the effect of shortening the term of any incumbent
director. Should the number of directors of the Corporation be increased, the
additional directorships shall be allocated among classes as appropriate so that
the number of directors in each class is as nearly as equal as possible.
At subsequent annual meetings of shareholders, a number of directors
shall be elected equal to the number of directors with terms expiring at that
annual meeting. After the first annual meeting, directors elected at each
successive annual meeting shall be elected for a term expiring with the annual
meeting of shareholders three years thereafter.
The election of directors shall not be by cumulative voting. At each
election of directors, each shareholder entitled to vote may vote all the shares
held by that shareholder for each of several nominees for director up to the
number of directors to be elected. The
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shareholder may not cast more votes for any single nominee than the number of
shares held by that shareholder.
Sixteenth: The shareholder vote required to approve Business
Combinations (as hereinafter defined) shall be as set forth in this section.
A.1. Except as otherwise expressly provided in this Article
Sixteenth, the affirmative vote of the holders of at least two-thirds of the
outstanding shares entitled to vote thereon (and, if any class or series of
shares is entitled to vote thereon separately, the affirmative vote of the
holders of at least two-thirds of the outstanding shares of each such class or
series), shall be required in order to authorize any of the following:
(a) any merger or consolidation of the Corporation with or into
a Related Person (as hereinafter defined);
(b) any merger or consolidation of a Related Person with or into
the Corporation or a subsidiary of the Corporation;
(c) the issuance of any securities of the Corporation or a
subsidiary of the Corporation to a Related Person, other than pursuant to a
stock option approved by the Board of Directors;
(d) the acquisition by the Corporation or a subsidiary of the
Corporation of any securities of a Related Person;
(e) any reclassification of the common stock of the Corporation,
or any recapitalization involving the common stock of the Corporation; and
(f) any agreement, contract or other arrangement providing for
any of the transactions described in this Article.
A.2. Such affirmative vote shall be required notwithstanding any
other provision of these Articles, any provision of law, or any agreement with
any regulatory agency or national securities exchange which might otherwise
permit a lesser vote or no vote.
A.3. The term "Business Combination" as used in this Article
Sixteenth shall mean any transaction which is referred to in any one or more of
Sections A(1)(a) through (f) above.
B. The provisions of Section A shall not be applicable to any
particular Business Combination, and such Business Combination shall require
only such affirmative vote as is required by any other provision of these
Articles, any provision of law, or any agreement with any regulatory agency or
national securities exchange, if the Business Combination shall have been
approved by a majority vote of the Continuing Directors (as hereinafter
defined); provided, however, that such approval shall only be effective if
obtained at a meeting at which a Continuing Director Quorum (as hereinafter
defined) is present.
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C. For the purposes of this Article Sixteenth the following
definitions apply:
1. The term "Related Person" shall mean and include (a) any
individual, corporation, partnership or other person or entity which together
with its "affiliates" (as that term is defined in Rule 12b-2 of the General
Rules and Regulations under the Securities Exchange Act of 1934, as amended),
"beneficially owns" (as that term is defined in Rule 13d-3 of the General Rules
and Regulations under the Securities Exchange Act of 1934, as amended) in the
aggregate 10% or more of the outstanding shares of the common stock of the
Corporation; and (b) any "affiliate" (as that term is defined in Rule 12b-2
under the Securities Exchange Act of 1934, as amended) of any such individual,
corporation, partnership or other person or entity. Without limitation, any
shares of the common stock of the Corporation which any Related Person has the
right to acquire pursuant to any agreement, or upon exercise or conversion
rights, warrants or options, or otherwise, shall be deemed "beneficially owned"
by such Related Person.
2. The term "Continuing Director" shall mean any member of
the Board of Directors of the Corporation who is unaffiliated with the Related
Person and was a member of the board prior to the time that the Related Person
became a Related Person, and any successor of a Continuing Director who is
unaffiliated with the Related Person and is recommended to succeed a Continuing
Director by a majority of Continuing Directors then on the board.
3. The term "Continuing Director Quorum" shall mean a
majority of the Continuing Directors capable of exercising the powers conferred
on them.
Seventeenth: In furtherance and not in limitation of the powers
conferred by statute, the Board of Directors of the Corporation is expressly
authorized to make, repeal alter, amend and rescind the Bylaws of the
Corporation by a majority vote of the board. Notwithstanding any other provision
of these Articles (and notwithstanding the fact that some lesser percentage may
be specified by law), the Bylaws shall not be adopted, repealed, altered,
amended or rescinded by the shareholders of the Corporation except by the vote
of the holders of not less than two-thirds of the outstanding shares of capital
stock of the Corporation entitled to vote generally in the election of directors
(considered for this purpose as one class) cast at a meeting of the shareholders
called for that purpose (provided that notice of such proposed adoption, repeal,
alteration, amendment or rescission is included in the notice of such meeting),
or, as set forth above, by the Board of Directors.
Eighteenth: The Corporation reserves the right to repeal, alter, amend
or rescind any provision contained in these Articles in the manner now or
hereafter prescribed by law, and all rights conferred on shareholders herein are
granted subject to this reservation. Notwithstanding the foregoing, the
provisions set forth in Articles Fifteenth, Sixteenth, Seventeenth and this
Article Eighteenth may not be repealed, altered, amended or rescinded in any
respect unless the same is approved by the affirmative vote of the holders of
not less than two-thirds of the outstanding shares of capital stock of the
Corporation entitled to vote generally in the election of directors (considered
for this purpose as a single class) cast at a meeting of the
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shareholders called for that purpose (provided that notice of such proposed
adoption, repeal, alteration, amendment or rescission is included in the notice
of such meeting).
I, THE UNDERSIGNED, being the sole incorporator hereinbefore named,
for the purpose of forming a corporation pursuant to Chapter 78 of the Nevada
Revised Statutes, do hereby make this certificate, hereby declaring and
certifying that this is the act and deed of the undersigned and that the facts
stated herein are true, and accordingly have hereunto set my hand on the 17th
day of June, 1999.
/s/ Nancy Gaches
-------------------------------------
Name: Nancy Gaches
Title: Incorporator
This instrument was acknowledged before me on June 17th 1999, by NANCY
GACHES as incorporator of Commercial Capital Bancorp.
/s/ Michele Calkins
-------------------------------------
Notary Public Signature
[SEAL]
(affix notary stamp or seal)
CERTIFICATE OF ACCEPTANCE
OF APPOINTMENT OF RESIDENT AGENT
Paracorp Incorporation hereby accepts appointment as Resident Agent
for the above-named corporation.
Paracorp Incorporated
By: /s/ Nancy A. Gaches
---------------------------------
Name: for Paracorp Inc.
Title:
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[LOGO]
[SEAL]
STATE OF NEVADA
FINANCIAL INSTITUTIONS DIVISION
DEPARTMENT OF BUSINESS AND INDUSTRY
406 E. Second Street, Suite 3
Carson City, Nevada 89701-4758
(775) 687-4259 . Fax (775) 687-6909
KENNY GUINN L. SCOTT WALSHAW
Governor www.state/nv/us/b&i/fi/ Commissioner
June 14, 1999
Richard E Knecht
Knecht & Hansen
1301 Dove Street Suite 900
Newport Beach CA 92660
Ref: Commercial Capital Bancorp
Dear Mr. Knecht,
This Division has received your request for approval to use in Nevada for the
formation of a Bank Holding Company, the name Commercial Capital Bancorp.
Nevada Revised Statute (NRS) 666.115 would require the application and approval
of the Commissioner to form a Bank Holding Company in Nevada. However the
provisions of NRS 666.070 would make the requirements of NRS 666.115
inapplicable, if the Bank Holding Company being formed will (1) only own
national bank within this state; or (2) only controls a bank in a state other
than Nevada.
Provided the provisions of NRS 666.070 would apply to Commercial Capital
Bancorp, this Division has no objection to the filing in Nevada, of Commercial
Capital Bancorp. You may provide a copy of this letter to the Nevada Secretary
of State's office evidencing our Division's non-objection to the use of the
above referenced name.
Sincerely,
/s/ Burns Baker
Burns Baker
Deputy Commissioner
CC: L. Scott Walshaw
[SEAL]
CERTIFICATE OF AMENDMENT
OF
ARTICLES OF INCORPORATION
OF
COMMERCIAL CAPITAL BANCORP
Stephen H. Gordon, David S. DePillo and Scott F. Kavanaugh certify
that:
1. They constitute the entire Board of Directors of Commercial
Capital Bancorp, a Nevada corporation (the "Corporation").
2. They constitute all of the shareholders of the Corporation.
3. The original Articles of Incorporation of the Corporation were
filed with the Secretary of State of the State of Nevada on June 18, 1999.
4. Article First of the Corporation's Articles of Incorporation is
hereby amended and restated in its entirety as follows:
FIRST: The name of the corporation (the "Corporation") is:
Commercial Capital Bancorp, Inc.
5. Article Fifteenth of the Corporation's Articles of Incorporation
is hereby amended and restated in its entirety as follows:
FIFTEENTH:
(a) The number of directors which shall constitute the whole board
of directors of the Corporation shall be specified in the manner
set forth in the bylaws of the Corporation.
(b) In the event that the authorized number of directors shall be
fixed at (9) or more, the board of directors shall be divided
into three classes: Class I, Class II and Class III, each
consisting of a number of directors as nearly as practicable to
one-third of the total number and directors. Directors in Class
I shall initially serve for a term expiring at the next Annual
Meeting of Shareholders following the creation of such Class I.
Directors in Class II shall initially serve for a term expiring
at second Annual Meeting of Shareholders following the creation
of such Class II. Directors in Class III shall initially serve
for a term expiring at the third Annual Meeting of Shareholders
following the creation of such Class III. Thereafter, each
director shall serve for a term ending at the third annual
meeting following the annual meeting at which such director was
elected. In the event that the authorized number of directors
shall be fixed with at least six(6), but less that nine(9), the
board of directors shall be divided into
two classes, designated Class I and Class II, each consisting of
one-half of the directors or as close an approximation as
possible. At each annual meeting, each of the successors to the
directors of the class whose term shall have expired at such
annual meeting shall be elected for a term running until the
second annual meeting next succeeding his or her election and
until his or her successor shall have been duly elected and
qualified. The foregoing notwithstanding, each director shall
serve until his or her successor shall have been duly elected
and qualified, unless such director shall resign, die, become
disqualified or disable, or shall otherwise be removed.
(c) At each annual election, the directors chosen to succeed those
whose terms then expire shall be identified as being of the same
class as the directors they succeed, unless, by reason of any
intervening changes in the authorized number of directors, the
board of directors shall designate one or more directorships
whose term then expires as directorships of another class in
order to more nearly achieve equality in the number of directors
among the classes. When the board of directors fills a vacancy
resulting from the resignation, death, disqualification or
removal of a director, the director chosen to fill that vacancy
shall be of the same class as the director he or she succeeds,
unless, by reason of any previous changes in the authorized
number of directors, the board of directors shall designate the
vacant directorship as a directorship of another class in order
to more nearly achieve equality in the number of directors among
the classes.
(d) Notwithstanding the rule that the classes shall be nearly equal
to number of directors as possible, in the event of any change
in the authorized number of directors, each director then
continuing to serve as such will nevertheless continue as a
director of the class of which he or she is a member, until the
expiration of his or her current term, or until such director's
earlier resignation, death, disqualification or removal. If any
newly created directorship or vacancy on the board of directors,
consistent with the rule that the three classes shall be as
nearly equal in number of directors as possible, may be
allocated to one or more classes, the board of directors shall
allocate it to that of the available class whose term of office
is due to expire at the earliest date following such allocation.
6. The foregoing amendments of the Corporation's Articles of
Incorporation have been duly approved by the Corporation's board of directors
and shareholders.
IN WITNESS WHEREOF, we set our hands this 22nd day of December 2000.
/s/ Stephen H. Gordon
---------------------------------
Stephen H. Gordon, Chairman & CEO
/s/ David S. DePillo
---------------------------------
David S. DePillo, President & COO
/s/ Scott F. Kavanaugh
---------------------------------
Scott F. Kavanaugh,
Executive VP, Treasurer, & Asst. Secretary