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EXHIBIT
4.1
CERTIFICATE
OF INCORPORATION
OF
1ST
CENTURY BANCSHARES, INC.
I,
the
undersigned, for purposes of incorporating and organizing a corporation under
the General Corporation Law of the State of Delaware (the
“GCL”), do execute this Certificate of Incorporation and do
hereby certify as follows:
ARTICLE
1
NAME
The
name
of the Corporation is 1st Century Bancshares, Inc. (the
“Corporation”).
ARTICLE
2
ADDRESS
AND AGENT
The
address of the registered office of the Corporation in the State of Delaware
is
615 South DuPont Highway, in the City of Dover, County of Kent, Delaware
19901. The name of its registered agent at that address is
National Corporate Research, Ltd.
ARTICLE
3
PURPOSE
The
purpose of the Corporation is to engage in any lawful act or activity for which
a corporation may be organized under the GCL.
ARTICLE
4
INCORPORATOR
The
name
and mailing address of the incorporator are as follows:
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Jordan
E. Hamburger, Esq.
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Manatt,
Phelps & Phillips, LLP
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11355
West Olympic Boulevard
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Los
Angeles, California 90064
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ARTICLE
5
STOCK
5.1 Authorized
Capital Stock. The total number of shares of
stock which the Corporation shall have authority to issue is 60,000,000
consisting of (i) 50,000,000 shares of common stock, par value of $0.01 per
share (the “Common Stock”), and (ii)
10,000,000 shares of preferred stock, par value of $0.01 per share (the
“Preferred Stock”).
5.2 Common
Stock. The designations, powers (including voting
powers), preferences and rights, and the qualifications, limitations and
restrictions, of the Common Stock are as follows:
(a) Dividends. Subject
to the terms of any outstanding series of Preferred Stock and any other
provisions of this Certificate of Incorporation, as it may be amended from
time
to time (the “Certificate of
Incorporation”), holders of shares of Common
Stock shall be entitled to receive such dividends and other distributions in
cash, stock or property of the Corporation when, as and if declared thereon
by
the Board of Directors from time to time out of assets or funds of the
Corporation legally available therefor.
(b) Liquidation,
Dissolution, Winding Up. In the event of any
liquidation, dissolution or winding up (either voluntary or involuntary) of
the
Corporation resulting in any distribution of its assets to its stockholders,
subject to the terms of any outstanding series of Preferred Stock, the holders
of the Common Stock shall be entitled to receive pro rata the assets of the
Company legally available for distribution to its stockholders.
(c) Voting. Except
as otherwise required by law and subject to the terms of any outstanding series
of Preferred Stock, each outstanding share of Common Stock shall be entitled
to
one vote per share held of record by such holder on all matters presented to
stockholders for a vote; provided, however, that holders of Common Stock shall
not be entitled to vote on any amendment to this Certificate of Incorporation
(including any Preferred Stock Designation (as defined below)) that relates
solely to the terms of one or more outstanding series of Preferred Stock if
the
holders of such affected series are entitled, either separately or together
as a
class with the holders of one or more other such series, to vote thereon
pursuant to this Certificate of Incorporation (including any Preferred Stock
Designation) or the GCL.
5.3 Preferred
Stock. The Board of Directors is hereby expressly
authorized, by resolution or resolutions thereof, to provide, out of the
unissued shares of Preferred Stock, for one or more series of Preferred Stock,
and by filing a certificate pursuant to the applicable law of the State of
Delaware (such certificate being hereinafter referred to as a “Preferred
Stock Designation”), to establish from time to
time the number of shares to be included in each such series, and to fix the
designation, powers (including voting powers, if any), preferences, and relative
participating optional or other special rights of the shares of each such series
and any qualifications, limitations or restrictions thereof. The
powers, preferences and relative, participating optional or other special rights
of each series of Preferred Stock, and the qualifications, limitations or
restrictions thereof, if any, may differ from those of any and all other series
at any time outstanding. All shares of any one series of Preferred
Stock shall be identical in all respects with all other shares of such series,
except that shares of any one series issued at different times may differ as
to
the date from which dividends thereon, if any, shall be
cumulative. The number of shares of any series of Preferred Stock may
be increased (but not above the total number of authorized shares of Preferred
Stock) or decreased (but not below the number of shares then outstanding) by
a
certificate executed, acknowledged and filed in accordance with the GCL setting
forth a statement that such increase or decrease was authorized and directed
by
resolution or resolutions of the Board of Directors of the
Corporation. The number of authorized shares of Preferred Stock may
be increased or decreased (but not below the number of shares thereof then
outstanding) by the affirmative vote of the holders of a majority of the Common
Stock, without a vote of the holders of the Preferred Stock, or of any series
thereof, unless a vote of any such holders is required pursuant to the terms
of
any Preferred Stock Designation. Nothing contained herein shall be
deemed to limit any rights of the holders of any series of Preferred Stock
as
expressly granted or indicated pursuant to the terms of the applicable Preferred
Stock Designation.
5.4 Action
in Lieu of Meetings. Subject to rights, if any,
of any series of Preferred Stock then outstanding, any action required or
permitted to be taken by the stockholders must be effected at an annual or
special meeting of stockholders and may not be effected by any consent in
writing of such stockholders.
ARTICLE
6
DIRECTORS
6.1 Number
and Election of Directors. Subject to rights, if
any, of any series of Preferred Stock then outstanding, the number of Directors
which shall constitute the whole Board of Directors shall be fixed by, or in
the
manner provided in, the Bylaws of the Corporation.
6.2 Term
of Office. The Board of Directors elected at or
as of the Effective Date shall hold office until the first annual meeting of
stockholders held after the Effective Date and until their successors have
been
duly elected and qualified. Thereinafter, Directors will be elected
at the annual meeting of stockholders and shall hold office until the annual
meeting of the stockholders next succeeding his election, or until his or her
successor shall have been duly elected and qualified or until such Director’s
death, resignation or removal.
6.3 Removal
of Directors. Except for directors elected by a
series of Preferred Stock then outstanding, any Director or the entire Board
of
Directors may be removed, but only for cause, and only by the affirmative vote
of the holders of at least sixty-six and two-thirds percent (66 2/3%) of the
voting power of all of the then outstanding shares of the capital stock of
the
Corporation then entitled to vote at an election of Directors, voting together
as a single class. Nothing in this Section 6.3 shall be deemed to
affect any rights of the holders of any series of Preferred Stock to remove
Directors pursuant to any applicable provisions of the Certificate of
Incorporation.
6.4 Vacancies. Subject
to the rights, if any, of any series of Preferred Stock then outstanding, and
except as otherwise provided in this Certificate of Incorporation, any vacancy,
whether arising through death, resignation, retirement, removal or
disqualification of a Director, and any newly created directorship resulting
from an increase in the number of Directors, shall be filled solely by a
majority vote of the remaining Directors even though less than a quorum of
the
Board of Directors. A Director so elected to fill a vacancy or newly
created directorship shall serve until the next annual meeting of the
stockholders, or until his or her successor shall have been duly elected and
qualified or until such Director’s death, resignation or removal. No
decrease in the number of directors shall shorten the term of any incumbent
director.
6.5 Written
Ballot. Unless and except to the extent that the
Bylaws of the Corporation shall so require, the election of directors of the
Corporation need not be by written ballot.
ARTICLE
7
LIABILITY
AND INDEMNITY
7.1 Limitation
of Liability of Directors. No Director shall be
personally liable to the Corporation or any of its stockholders for monetary
damages for breach of fiduciary duty as a Director, except to the extent that
such elimination or limitation of liability is not permitted under the GCL,
as
the same exists or may hereafter be amended.
7.2 Right
to Indemnification. To the fullest extent
permitted by law, the Corporation shall indemnify and hold harmless any person
who was or is made or is threatened to be made a party or is otherwise involved
in any threatened, pending or completed action, suit or proceeding, whether
civil, criminal, administrative or investigative (a “proceeding”) by reason of
the fact that such person, or the person for whom he is the legal
representative, is or was a Director or officer of the Corporation or is or
was
serving at the request of the Corporation as a director or officer of another
corporation or of a partnership, joint venture, trust, enterprise or non-profit
entity, including service with respect to employee benefit plans (any such
person, a “Indemnitee”), against all liabilities, losses,
expenses (including attorney’s fees), judgments, fines and amounts paid in
settlement (“expenses”) actually and reasonably incurred by
such person in connection with such proceeding; provided,
however, that except as otherwise provided in Section 7.4,
the Corporation shall only be required to indemnify a person in connection with
a proceeding (or part thereof) initiated by such person if the commencement
of
such proceeding (or part thereof) was authorized by the Board of
Directors.
7.3 Prepayment
of Expenses. The Corporation shall pay the expenses incurred
by a Indemnitee in defending any proceeding in advance of its final disposition,
provided that, to the extent required by law, the payment of expenses in advance
of the final disposition of the proceeding shall be made only upon receipt
of an
undertaking by such person to repay all amounts advanced if it should be
ultimately determined that such person is not entitled to be indemnified under
this Article or otherwise. The Corporation may pay the expenses
incurred by any other person in defending any proceeding in advance of its
final
disposition upon such terms and conditions as the Board of Directors deems
appropriate.
7.4 Claims. If
a claim for indemnification or advancement of expenses under Section 7.2 or
Section 7.3 is not paid in full within sixty (60) days after a written claim
therefor by a Indemnitee has been received by the Corporation, such Indemnitee
may file suit to recover the unpaid amount of such claim and, if successful
in
whole or in part, shall be entitled to be paid the expense of prosecuting such
claim. In any such action, the Corporation shall have the burden of
proving that such Indemnitee is not entitled to the requested indemnification
or
advancement of expenses under applicable law.
7.5 Repeal
or Modification. Any amendment, repeal or modification of
the provisions of this Article or applicable law shall not adversely affect
any
right or protection hereunder of any person in respect of any act or omission
occurring before the time of such amendment, repeal or modification regardless
of whether the proceeding is brought or threatened before or after the time
of
such amendment, repeal or modification.
7.6 Non-Exclusivity
of Rights. The right to indemnification and advancement of
expenses conferred on any person by this Article shall not be exclusive of
any
other rights such person may have or acquire under any other provision hereof,
the Bylaws or by law, agreement, vote of stockholders or disinterested Directors
or otherwise.
7.7 Survival
of Rights. The right to indemnification and prepayment of
expenses conferred on any person by this Article 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
person.
7.8 Insurance. The
Corporation may purchase and maintain insurance on behalf of any person who
is
or was a Director, officer, employee or agent of the Corporation, or is or
was
serving at the request of the Corporation as a director, officer, employee
or
agent of another corporation or of a partnership, joint venture, trust,
enterprise or non-profit entity, including service with respect to employee
benefit plans, against any liability or expenses incurred by such person in
connection with a proceeding, whether or not the Corporation would have the
power to indemnify such person against such liability under the provisions
of
this Article or by law.
7.9 Other
Sources. The Corporation’s obligation, if any, to indemnify
or advance expenses to any Indemnitee who was or is serving at the Corporation’s
request as a director or officer of another corporation or a partnership, joint
venture, trust, enterprise or non-profit entity, including service with respect
to employee benefit plans, shall be reduced by any amount such Indemnitee may
collect as indemnification or advancement of expenses from such other
corporation, partnership, joint venture, trust, enterprise or non-profit
entity.
7.10 Other
Indemnification and Advancement of Expenses. This Article 7
shall not limit the right of the Corporation, to the extent and in the manner
permitted by law, to indemnify and to advance expenses to persons other than
Indemnitees when and as authorized by appropriate corporate action.
ARTICLE
8
BYLAWS
AND CERTIFICATE OF INCORPORATION
8.1 Creation,
Amendment and Repeal of Bylaws. In furtherance and not in
limitation of the powers conferred upon it by the laws of the State of Delaware,
the Board of Directors shall have the power to adopt, alter, amend or repeal
the
Bylaws of the Corporation, subject to the power of the stockholders of the
Corporation to alter or repeal any Bylaws whether adopted by them or
otherwise.
8.2 Amendment
of Certificate of Incorporation. The Corporation reserves
the right at any time, and from time to time, to amend, alter, change or repeal
any provision contained in this Certificate of Incorporation, and other
provisions authorized by the laws of the State of Delaware at the time in force
may be added or inserted, in the manner now or hereafter prescribed by law;
and
all rights, preferences and privileges of whatsoever nature conferred upon
stockholders, Directors or any other persons whomsoever by and pursuant to
this
Certificate of Incorporation in its present form or as hereafter amended are
granted subject to the rights reserved in this Section 8.2 of Article
8.
ARTICLE
9
SECTION
203 OF DELAWARE GENERAL CORPORATION LAW
The
Corporation shall be governed by Section 203 of the General Corporation Law
of
the State of Delaware as it may be amended from time to time.
IN
WITNESS WHEREOF, the Corporation has caused this
Certificate of Incorporation to be executed on its behalf this 10th day of
August,
2007.
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By:
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/s/
Jordan E. Hamburger
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Name:
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Jordan
E. Hamburger
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