1
EXHIBIT 3.1
AMENDED AND RESTATED
ARTICLES OF INCORPORATION
OF
FIRST WESTERN CORP.
First Western Corp. (hereinafter referred to as the "Corporation"),
desiring to amend and restate its Articles of Incorporation, hereby submits the
following Amended and Restated Articles of Incorporation to the Secretary of
State of the State of Nebraska pursuant to the provisions of the Nebraska
Business Corporation Act:
FIRST: The Corporation desires to restate and amend its Articles of
Incorporation as currently in effect as hereinafter provided.
SECOND: The provisions set forth in these Amended and Restated
Articles of Incorporation supersede the original Articles of Incorporation and
all amendments thereto.
THIRD: The Articles of Incorporation of the Corporation are hereby
amended and restated by striking in their entirety all current Articles of the
Corporation, and by substituting in lieu thereof the following:
ARTICLE I
CORPORATE NAME
The name of the Corporation shall be First Western Corp.
ARTICLE II
PURPOSES
The nature of the business of the Corporation and the objects and
purposes to be transacted, promoted and carried on by it are as follows:
2.1 To acquire as principal, agent or partner, general or limited or
as a single or multibank holding company, by purchase, contract or otherwise,
financial institutions and to own, hold, manage, and sell, encumber or
otherwise dispose of and deal in financial institutions of every kind and
description, together with other non-banking activities that are closely
related to the operations of financial institutions.
2.2 To acquire as principal, agent or partner, general or limited, by
purchase, lease contract or otherwise, lands and interest in lands, buildings,
or other structures and to own, hold, improve, develop and manage the same, and
to erect or cause to be erected on any lands owned, held or occupied by the
Corporation, buildings or other structures with their appurtenances, and to
rebuild, enlarge, alter or improve any buildings or other structures now or
hereafter erected on any lands so owned, held or occupied; and to mortgage,
sell,
2
lease or otherwise dispose of any lands or interests in lands and in buildings
or other structures at any time owned or held by the Corporation.
2.3 To invest in and to buy, sell or otherwise acquire or dispose
of and deal in loans secured by liens upon real and personal property both as
principal and as agent.
2.4 To invest, as principal or agent, or partner, general or
limited, in all forms of personal investment property, including without
limitation, securities, stocks, bonds, mutual funds and secured or unsecured
notes.
2.5 To purchase or otherwise acquire the whole or any part of the
property, assets, business, goodwill and rights and to undertake or assume the
whole or any part of the bonds, mortgages, franchises, leases, contracts,
indebtedness, guaranties, liabilities, and obligations of any person, firm,
association, corporation or organization, and to pay for the same or any part
or combination thereof, in cash, shares of the capital stock, bonds,
debentures, debenture stock, notes and other obligations of this corporation,
or otherwise, or by undertaking and assuming the whole or any part of the
liabilities or obligations of the transferor; and to conduct in any lawful
manner the whole or any part of the businesses so acquired and to exercise all
the powers necessary or convenient in and about the conduct, management and
carrying on of such business.
2.6 To borrow money for any of the purposes of this Corporation
and to issue bonds, debentures, debenture stock, notes or other obligations
therefore, and to secure the same by pledge or mortgage of the whole or any
part of the property of this Corporation whether real or personal, or to issue
bonds, debentures, debenture stock, notes or other obligations with any such
security.
2.7 To lend money, to guarantee, purchase, acquire, exchange,
hold, sell assign, transfer, mortgage, pledge, or otherwise dispose of shares
of the capital stock of, or any bonds, securities or evidences of indebtedness
created by any corporation or corporations organized under the laws of this
State or of any other state, district or county and also bonds or evidences of
indebtedness of the United States or any state, territory, dependency, or
county or subdivision or municipality thereof, and while the owner thereof to
exercise all rights, powers, and privileges of ownership, including the right
to vote thereon.
2.8 To transact any and all lawful business for which corporations
may be incorporated pursuant to the Nebraska Business Corporation Act now
existing or as hereafter amended, in any state, territory, district,
possession, dependency or other political subdivision of the United States of
America, or in any foreign country, to the extent that such business is not
forbidden by the laws of such state, territory, district, possession,
dependency or political subdivision of the United States or America or by such
foreign country.
2
3
ARTICLE III
DURATION
This Corporation shall have perpetual existence, unless dissolved
according to law.
ARTICLE IV
CAPITAL STOCK
4.1 The Corporation is authorized to issue two classes of stock,
to be designated, respectively, "common stock" and "preferred stock." The
total number of shares that the Corporation is authorized to issue is
70,000,000 shares, of which 50,000,000 shares shall be common stock, $.001 par
value, and of which 20,000,000 shares shall be preferred stock, $.001 par
value.
4.2 The preferred stock may be issued from time to time in one or
more series. The Board of Directors is hereby authorized to fix or alter the
dividend rights, dividend rate, conversion rights, voting rights, rights and
terms of redemption (including sinking fund provisions), redemption price or
prices, and the liquidation preferences of any wholly-unissued series of
preferred stock, and the number of shares constituting any such series and the
designation thereof, or any of them; and to increase or decrease the number of
shares of any series subsequent to the issuance of shares of that series, but
not below the number of shares of such series then outstanding. In the event
that the number of shares of any 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.
4.3 The Board of Directors of the Corporation may dispose of,
issue, and sell shares in accordance with, and in such amounts as may be
permitted by, the laws of the State of Nebraska and the provisions of these
Articles of Incorporation, as amended from time to time, and for such
consideration, at such price or prices, at such time or times and upon such
terms and conditions (including the privilege of selectively repurchasing the
same) as the Board of Directors of the Corporation shall determine, without the
authorization or approval by any shareholder of the Corporation. Shares may be
disposed of, issued, and sold to such persons, firms or corporations as the
Board of Directors may determine, without any preemptive or other right on the
part of the owners or holders of other shares of the Corporation of any class
or kind to acquire such shares by reason of their ownership of such other
shares.
3
4
ARTICLE V
RIGHTS OF SHAREHOLDERS
The rights and privileges relating to the shares of common stock named
in Article IV shall be as follows:
5.1 Holders of the shares of the common stock of the Corporation
shall not be entitled to the right to purchase or subscribe for any unissued or
treasury shares, or any additional shares to be issued by reason of any
increase of the authorized shares of the Corporation, or any bonds,
certificates of indebtedness, debentures, or other securities, rights,
warrants, or options, convertible into shares of any unissued or treasury
shares in accordance with their proportionate equity in the Corporation.
5.2 Each share of common stock shall be entitled to one vote,
either in person or by proxy, at all shareholders' meetings. Cumulative voting
shall be allowed in the election of directors.
5.3 All outstanding shares of common stock shall share equally in
dividends and upon liquidation. Dividends are payable at the discretion of the
Board of Directors at such times and in such amounts as they deem advisable,
subject, however, to the provisions of the laws of the State of Nebraska.
5.4 The Board of Directors may cause any stock issued by the
Corporation to be issued subject to such lawful restrictions, qualifications,
limitations or special rights as they deem fit, which restrictions,
qualifications, limitations or special rights may be created by provisions in
the Bylaws of the Corporation or in the minutes of any properly convened
meeting of the Board of Directors; provided, however, notice of such special
restrictions, qualifications, limitations or special rights must appear on the
certificate evidencing ownership of such stock.
ARTICLE VI
DIRECTORS
6.1 The affairs of the Corporation shall be governed by a Board of
Directors of not less than three (3) nor more than twelve (12) Directors as the
Bylaws may determine from time to time, who shall be elected in accordance with
the Bylaws of the Corporation.
6.2 Directors of the Corporation need not be residents of Nebraska
nor holders of shares of the Corporation's capital stock.
6.3 Meetings of the Board of Directors, regular or special, may be
held within or without Nebraska upon such notice as may be prescribed by the
Bylaws of the
4
5
Corporation. Attendance of a Director at a meeting shall constitute a waiver
by him of notice of such meeting unless he attends only for the express purpose
of objecting to the transaction of any business at that meeting on the ground
that the meeting is not lawfully called or convened.
6.4 A majority of the number of Directors at any time constituting
the Board of Directors shall constitute a quorum for the transaction of
business, and the act of a majority of the Directors present at a meeting at
which a quorum is present shall be the act of the Board of Directors.
6.5 By resolution adopted by a majority of the number of Directors
at any time constituting the Board of Directors, the Board of Directors may
designate two or more Directors to constitute an executive committee which
shall have and may exercise, to the extent permitted by law or in such
resolution, all of the authority of the Board of Directors in the management of
the Corporation; provided, however, that such delegation of authority shall not
operate to relieve the Board of Directors or any member thereof of any
responsibility imposed on it or him by law.
6.6 Any vacancy in the Board of Directors, however caused, may be
filled by the affirmative vote of a majority of the remaining Directors, though
less than a quorum of the Board of Directors. A Director elected to fill a
vacancy shall be elected for the unexpired term of his predecessor in office.
ARTICLE VII
PLACE OF BUSINESS
The address of the Corporation's principal office is 11210 Huron Street,
Northglenn, Colorado 80234. The Board of Directors may, however, from time to
time establish such other offices, branches, subsidiaries or divisions in such
other place or places within or without the State of Nebraska as it deems
advisable.
ARTICLE VIII
OFFICERS
The officers of the Corporation shall consist of a President, one or
more Vice Presidents as may be prescribed by the Bylaws of the Corporation, a
Secretary and a Treasurer, each of whom shall be elected by the Board of
Directors at such time and in such manner as may be prescribed by the Bylaws of
the Corporation. Any two or more offices may be held by the same person,
except the offices of President and Secretary.
5
6
ARTICLE IX
BYLAWS
The Board of Directors shall have the power to make and adopt such
prudent Bylaws for the government of the Corporation not inconsistent with the
laws of the State of Nebraska or these Articles of Incorporation for the
purpose of regulating and carrying on the business of the Corporation within
the scope of its objects and purposes; and the Board of Directors from time to
time may change, alter or amend the same as may be beneficial to the interests
of the Corporation except as otherwise specifically provided therein.
ARTICLE X
MEETINGS OF SHAREHOLDERS
Meetings of shareholders of the Corporation shall be held at such
place within or without the State of Nebraska and at such times as may be
prescribed in the Bylaws of the Corporation. Special meetings of the
shareholders of the Corporation may be called by the President of the
Corporation, the Board of Directors, or by the record holder or holders of at
least ten percent (10%) of all shares entitled to vote at the meeting. At the
meeting of the shareholders, except to the extent otherwise provided by the
Bylaws, a quorum shall consist of a majority of the Shares entitled to vote at
the meeting, represented in person or by proxy and, if a quorum is present, the
affirmative vote of the majority of shares represented and entitled to vote at
the meeting shall be the act of the shareholders unless the vote of a greater
number or voting by classes is required by law.
ARTICLE XI
SALE OF ASSETS
Whenever the Board of Directors at any meeting thereof, by a
two-thirds (2/3) majority vote of the whole Board, determines that it is in the
best interests of the Corporation, the Corporation may sell, lease, exchange,
or convey all of its property and assets, including its good will and its
corporate franchises, upon such terms and conditions and for such consideration
as the Board of Directors shall deem expedient; provided, however, that the
sale or disposal of all or substantially all of the property and assets of the
Corporation shall be authorized or ratified by the affirmative vote of the
holders of at least a two-thirds (2/3) majority of the capital stock then
issued and outstanding and entitled to vote on such proposal, such vote to be
taken at a meeting of shareholders duly called for that purpose as provided by
the statutes of the State of Nebraska.
6
7
ARTICLE XII
INDEMNIFICATION
The Corporation shall indemnify directors, officers and other persons
(including without limitation the power to advance expenses and the power to
purchase and maintain insurance with respect thereto) to the fullest extent
allowed by Nebraska law. The Board of Directors is hereby authorized on behalf
of the Corporation and without shareholder action to exercise all of the
Corporation's powers of indemnification, whether by provision in the Bylaws or
otherwise, to the extent not inconsistent with the Nebraska law.
ARTICLE XIII
ELIMINATION OF PERSONAL LIABILITY OF A DIRECTOR
To the fullest extent permitted by Nebraska law, as the same exists or
may hereafter be amended, a director of the Corporation shall not be liable to
the Corporation or its shareholders for monetary damages for breach of
fiduciary duty as a director.
ARTICLE XIV
AMENDMENT OF ARTICLES OF INCORPORATION
The Corporation expressly reserves the right to amend these Articles
of Incorporation and to alter, change, or repeal any provision contained herein
in any manner now or hereafter permitted by the Nebraska Business Corporation
Act, and the rights of all shareholders are expressly made subject to such
power of amendment. Whenever an amendment to these Articles of Incorporation
shall be required to be adopted by the shareholders of the Corporation, the
proposed amendment shall be adopted upon receiving the affirmative vote of a
two-thirds (2/3) majority of shares entitled to vote thereon.
FOURTH: The date of adoption of these Amended and Restated Articles of
Incorporation of the Corporation by the Board of Directors and the shareholders
of the Corporation was November 2, 1998.
FIFTH: These Amended and Restated Articles of Incorporation of the
Corporation were approved by the Corporation's Board of Directors and contain
amendments requiring shareholder approval.
SIXTH: The amendments were approved by the shareholders of the
Corporation, the following is the designation, number of outstanding shares,
number of votes entitled to be cast by each voting group entitled to vote
separately on each amendments, and the number of votes of each voting group
indisputably represented a the meeting:
7
8
Number of Votes
Number of Votes Represented
Designation Shares Outstanding Entitled to be Cast at the Meeting
- ----------- ------------------ ------------------- ---------------
Common 140,000 140,000 140,000
SEVENTH: The total number of undisputed votes cast by the holders of
the Corporation's common stock, the only voting group entitled to vote, was
140,000 on all amendments, which was sufficient for approval by such voting
group.
IN WITNESS WHEREOF, First Western Corp. has caused these Amended and
Restated Articles of Incorporation to be signed in its name and on its behalf
by its President this 6th day of November, 1998.
FIRST WESTERN CORP.
By: /s/ Timothy D. Wiens
----------------------------------------------------
Timothy D. Wiens, Vice President and Vice Chairman
8