Axos Financial, Inc. – IPO: ‘S-1/A’ on 1/26/05 – ‘EX-3.3’

On:  Wednesday, 1/26/05, at 5:29pm ET   ·   Private-to-Public:  Document/Exhibit ¶  –  Release Delayed   ·   Accession #:  950129-5-598   ·   File #:  333-121329

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Initial Public Offering (IPO):  Pre-Effective Amendment to Registration Statement (General Form)   —   Form S-1
Filing Table of Contents

Document/Exhibit                   Description                      Pages   Size 

 1: S-1/A       Bofi Holding, Inc.- Amend.No.1 - Reg.No.333-121329  HTML   2.05M 
 9: CORRESP   ¶ Comment-Response or Other Letter to the SEC           17     36K 
 2: EX-3.1      Articles of Incorporation/Organization or By-Laws      6     26K 
 3: EX-3.2      Articles of Incorporation/Organization or By-Laws      1      6K 
 4: EX-3.3      Articles of Incorporation/Organization or By-Laws      9     36K 
 5: EX-3.5      Articles of Incorporation/Organization or By-Laws      1      6K 
 6: EX-3.6      Articles of Incorporation/Organization or By-Laws      1      7K 
 7: EX-10.10    Material Contract                                     95    347K 
 8: EX-23.2     Consent of Experts or Counsel                          1      6K 

‘EX-3.3’   —   Articles of Incorporation/Organization or By-Laws

EX-3.3
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                                                                     EXHIBIT 3.3

CERTIFICATE OF DESIGNATION

BofI Holding, Inc.
A Delaware Corporation

   The undersigned, Jerry F. Englert and C. Michelle Paulus, certify that:

     1.    They are the Chairman of the Board and the Secretary, respectively,
of BofI Holding, Inc., a Delaware corporation (the "corporation").              

     2.    Pursuant to the Unanimous Written Consent of the Board of Directors
of the corporation, dated as of October 23, 2003, the following resolution was  
duly adopted:                                                                   

        "WHEREAS, Article IV of the Certificate of Incorporation of this
      corporation, authorizes a class of shares designated Preferred
Stock, consisting of 1,000,000 shares;                  

        "WHEREAS, Article IV of the Certificate of Incorporation of this
        corporation authorizes issuance of shares of the Preferred Stock
           from time to time in one or more series and authorizes the Board of
         Directors to fix or alter the rights, preferences, privileges and
          restrictions granted to or imposed upon any wholly unissued series
           of shares of Preferred Stock, and the number of shares constituting
          any such series as well as the designations of such series, or any
of them; and                                            

          "WHEREAS, it is now the desire of the Board of Directors, pursuant
            to the authority vested in it by the Certificate of Incorporation to
 fix and determine the rights, preferences, privileges and
            restrictions of a first series of Preferred Stock, to fix the number
           of shares constituting such series and to determine the designation
thereof;                                                

           "NOW, THEREFORE, BE IT HEREBY RESOLVED, that the Board of Directors
        does hereby provide for the issue of a first series of shares of
            Preferred Stock of the corporation and does hereby fix and determine
           the rights, preferences, privileges, and restrictions of, and other
          matters relating to, said series as set forth more particularly in
          Exhibit A attached to these resolutions and incorporated herein as
if set forth in full.                                   

          FURTHER RESOLVED, that the Chairman of the Board and the Secretary
            of this corporation be, and they hereby are, authorized and directed
           to prepare, execute, verify and file in the office of the Secretary
        of State of Delaware and any other regulatory agencies as may be
      required, a Certificate of Designation in accordance with this
resolution and as required by law.                      

3.    The authorized number of shares of Preferred Stock of this    
corporation is 1,000,000. The number of shares of Preferred Stock constituting  
"Series A -- 6%                                                                 

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Cumulative Nonparticipating Perpetual Preferred Stock, Convertible through      
January 1, 2009" is 1,200. None of the shares of said series has been issued.   

 IN WITNESS WHEREOF, the undersigned have executed this Certificate of
Designation on October 23, 2003.                                                

        /s/ Jerry F. Englert
                                  ----------------------------------------------
                           Jerry F. Englert, Chairman of the Board

          /s/ C. Michelle Paulus
                                  ----------------------------------------------
                 C. Michelle Paulus, Secretary

DECLARATION UNDER PENALTY OF PERJURY

     We, the undersigned, Jerry F. Englert and C. Michelle Paulus, are, and at
all times mentioned in this Certificate of Designation were, the Chairman of the
Board and Secretary, respectively, of BofI Holding, Inc., a Delaware            
corporation. We have read the foregoing Certificate of Designation and know the 
contents thereof. The matters set forth therein are true of our own knowledge   
and the signatures subscribed thereto are our genuine signatures.               

      We, and each of us, declare under penalty of perjury that the foregoing is
true and correct and that this Declaration was executed on October 23, 2003, in 
the City of San Diego, County of San Diego, State of California.                

                      /s/ Jerry F. Englert
                                         ---------------------------------------
                  Jerry F. Englert

                        /s/ C. Michelle Paulus
                                         ---------------------------------------
                    C. Michelle Paulus

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 EXHIBIT A

SERIES A - 6% CUMULATIVE NONPARTICIPATING PERPETUAL PREFERRED STOCK,
 CONVERTIBLE THROUGH JANUARY 1, 2009

  A.    Name of Preferred Stock. The first series of shares of Preferred
Stock shall be designated and known as "Series A - - 6% Cumulative              
Nonparticipating Perpetual Preferred Stock, Convertible through January 1, 2009"
(the "Series A Preferred Stock").                                               

     B.    Authorized Number. The authorized number of shares constituting the
Series A Preferred Stock shall be 1,200.                                        

   C.    Dividends Cumulative. The Series A Preferred Stock is entitled to
receive, out of funds legally available therefor, cumulative dividends at the   
annual rate of $600.00 per share and no more, payable in quarterly installments 
of $150.00 each on March 31, June 30, September 30 and December 31, when and as 
declared by the Board of Directors. Such dividends shall accrue from the date of
issuance of such shares of Series A Preferred Stock (the "Date of Issuance")    
whether or not earned so that no dividends or other distributions shall be made 
with respect to the common stock of the corporation (described in Article IV of 
the Certificate of Incorporation of the corporation)(the "Common Stock") until  
cumulative dividends on the Series A Preferred Stock for all past dividend      
periods and for the current three-month dividend period shall have been declared
and paid or set apart. The amount of the first quarterly dividend payable to a  
purchaser of Series A Preferred Stock shall be prorated from the Date of        
Issuance of Series A Preferred Stock to such purchaser through the end of such  
quarter.                                                                        

D.    Nonparticipating. After cumulative dividends on the Series A  
Preferred Stock for all past dividend periods and for the then-current          
three-month dividend period shall have been declared and paid or set apart, if  
the Board of Directors shall elect to declare additional dividends out of funds 
legally available therefor, such additional dividends shall be declared solely  
on the Common Stock.                                                            

    E.    Liquidation Preference. Upon the voluntary or involuntary liquida-
tion, winding up or dissolution of the corporation, the Series A Preferred Stock
shall be entitled to receive, in preference to any payment on the Common Stock, 
an amount equal to $10,000.00 per share (the "Preferential Liquidation Amount"),
plus cumulative dividends as provided in Paragraph C, above, accrued and unpaid 
to the date payment is made available to the Series A Preferred Stock and no    
more. After the full Preferential Liquidation Amount has been paid to, or       
determined and set apart for, the Series A Preferred Stock, the remaining assets
after payment of liabilities shall be paid to the Common Stock. In the event the
assets of the corporation are insufficient to pay the full Preferential         
Liquidation Amount required to be paid to the Series A Preferred Stock, the     
entire remaining assets after payment of liabilities shall be paid to the Series
A Preferred Stock and the Common Stock shall receive nothing. A reorganization  
shall not be considered to be a liquidation, winding up or dissolution within   
the meaning of this Paragraph E and the Series A Preferred Stock shall be       
entitled only to the rights provided                                            

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in the plan of reorganization, as may be provided in the Delaware General       
Corporation Law and otherwise in this Certificate of Incorporation.             

F.    Voting Rights. The Company may not amend the Certificate of   
Incorporation or file a Certificate of Designation if the effect of any such    
amendment or filing would be to create or authorize the issuance of a class or  
series of Preferred Stock that would be eligible to receive any assets of the   
Company in preference to any payment to the Series A Preferred Stock upon a     
liquidation, unless such amendment or filing was first approved by a majority of
the outstanding shares of Series A Preferred Stock, voting as a class. As used  
herein, a "majority of the outstanding shares of Series A Preferred Stock" means
either: (i) the approval of a majority of shares voted at a meeting of the      
holders of Series A Preferred Stock, which has been noticed and convened in     
accordance with the Bylaws of the Company and at which a majority of such       
shares, which shall constitute a quorum for such a meeting, shall be present, or
(ii) if such approval is solicited by written consent without a meeting, the    
approval of a majority of all issued and outstanding shares of Series A         
Preferred Stock. Said approval shall be in addition to any other approval of the
stockholders and directors of the Company that may be required under applicable 
law. Except as expressly provided by law or by this Certificate of Designation, 
the Common Stock has exclusive voting rights on all matters requiring a vote of 
shareholders, including election of directors, and the Series A Preferred Stock 
shall have no voting rights.                                                    

      G.    Redemption. (1) Terms of Redemption. The Series A Preferred Stock is
subject to redemption, out of funds legally available therefor, in whole, or    
from time to time in part, at the option of the Board of Directors of the       
corporation. As used herein, the term "Redeemed Shares" refers to the shares of 
the Series A Preferred Stock that have been called for redemption by the        
corporation. If only a portion of the Series A Preferred Stock is to be         
redeemed, the shares of the Series A Preferred Stock to be redeemed shall be    
selected pro rata. When redeeming shares of Series A Preferred Stock, the       
corporation shall also pay to the holder of such Redeemed Shares cumulative     
dividends as provided in Paragraph C, above, accrued and unpaid to the date     
fixed for redemption (the "Redemption Date"), as specified in the Notice of     
Redemption (as defined below). The price per share at which Series A Preferred  
Stock shall be redeemed by the corporation (the "Redemption Price") shall be    
determined as follows:                                                          

                                                                [Download Table]

If the Redemption Date is:                 Redemption Price per Redeemed Share:
-------------------------                  ----------------------------------- 
                                                                               
On or before December 31, 2004                        $10,500.00               

In calendar year 2005                                 $10,400.00               

In calendar year 2006                                 $10,300.00               

In calendar year 2007                                 $10,200.00               

In calendar year 2008                                 $10,100.00               

In calendar year 2009 or thereafter                   $10,000.00               

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(2)   Redemption Procedures. The corporation shall mail a notice of 
redemption (a "Notice of Redemption") to each holder of record of Redeemed      
Shares addressed to the holder at the address of such holder appearing on the   
books of the corporation or given by the holder to the corporation for the      
purpose of notice, or if no such address appears or is given at the place where 
the principal executive office of the corporation is located, not earlier than  
60 nor later than 20 days before the Redemption Date. The Notice of Redemption  
shall include (i) identification of the class of shares or the part of the class
of shares to be redeemed, (ii) the Redemption Date, (iii) the Redemption Price, 
(iv) the amount of cumulative dividends that will be paid through the Redemption
Date, (v) the place at which the shareholders may obtain payment of the         
Redemption Price upon surrender of share certificates representing Redeemed     
Shares, and (vi) the last date prior to the Redemption Date that any right of   
conversion that a holder may still have may be exercised. If funds are available
on the Redemption Date, then whether or not the share certificates are          
surrendered for payment of the Redemption Price, the Redeemed Shares shall no   
longer be outstanding and the holders of Redeemed Shares shall cease to be      
shareholders of the corporation with respect to the Redeemed Shares on and after
the Redemption Date and such shareholders shall De entitled only to receive the 
Redemption Price and accrued dividends, without interest, upon surrender of the 
share certificate for the Redeemed Shares. If less than all the shares          
represented by one share certificate are to be redeemed, the corporation shall  
issue a new share certificate for the shares not redeemed.                      

(3)   Paying Agent. If, on or prior to any Redemption Date, the     
corporation deposits with its stock transfer agent or with any bank or trust    
company (a "Paying Agent") as a trust fund a sum sufficient to redeem the       
Redeemed Shares on the Redemption Date, with irrevocable instructions and       
authorization to give the Notice of Redemption and to pay on and after the      
Redemption Date or prior thereto, the Redemption Price of the Redeemed Shares to
their respective holders upon the surrender of their share certificates, then   
from and after the date of the deposit by the corporation with the Paying Agent 
(although prior to the Redemption Date) the Redeemed Shares shall be considered 
"redeemed" and dividends on those Redeemed Shares shall cease to accrue after   
the Redemption Date. The deposit shall constitute full payment of the Redemption
Price and accrued dividends to the holders of such Redeemed Shares and from and 
after the date of the deposit such Redeemed Shares shall no longer be           
outstanding and the holders of such shares shall cease to be shareholders with  
respect to such Redeemed Shares and shall have no rights with respect thereto,  
except the right to receive from the Paying Agent payment of the Redemption     
Price and accrued dividends, without interest, upon surrender of their          
certificates for and the right to convert the shares prior to the Redemption    
Date, subject to the terms of Paragraph H.(3), below. After three months from   
the from Redemption Date, or sooner upon written request of the corporation, the
Paying Agent shall return to the corporation funds deposited and not claimed    
prior thereto and thereafter the holder of a share certificate for Redeemed     
Shares shall solely look to the corporation for payment of the Redemption Price 
and accrued dividends.                                                          

   H.    Conversion. (1) Terms of Conversion. At the option of the holder,
shares of Series A Preferred Stock may be converted into shares of Common Stock,
effective                                                                       

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only as of the first day of any calendar quarter occurring between January I,   
2004 through and including January 1, 2009 (a "Conversion Date"), in accordance 
with the terms and procedures contained herein. For purposes of any such        
conversion, each share of Series A Preferred Stock surrendered for conversion (a
"Converted Share") shall be valued as equivalent to its Preferential Liquidation
Amount but shall exclude the value of accrued and unpaid dividends. Upon        
conversion of Series A Preferred Stock, no fractional shares of Common Stock    
shall be issued. The corporation shall issue to the holder the greatest number  
of whole Common Shares issuable in accordance with Paragraph H.(2), below, and  
shall contemporaneously pay in cash to the converting holder the fair market    
value of any fractional share, as determined by the Board of Directors. The     
corporation shall reserve and keep reserved out of its authorized but unissued  
shares of Common - Stock sufficient shares to effect the conversion of all      
shares of Series A Preferred Stock outstanding from time to time.               

 (2)   Conversion Ratio. Each share of Series A Preferred Stock may be
converted into a number of shares of Common Stock of the corporation equal to:  
(i) the aggregate amount of the Preferential Liquidation Amount (exclusive of   
accrued and unpaid dividends) for the number of shares of Series A Preferred    
Stock being converted, divided by (ii) the Conversion Price (as set forth in the
schedule below). The Conversion Price shall be determined according to the      
Conversion Date. The following table sets forth the Conversion Price for        
Converted Shares and the number of shares of Common Stock into which each share 
of Series A Preferred Stock will be converted upon conversion:                  

                                                                [Download Table]

                                                               No. of Shares of 
                                                                  Common Stock  
If the Conversion                        Then the Conversion   to be issued per 
Date is effective as of:                 Price* shall be:      Converted Share**
-----------------------                  ---------------       -----------------
                                                                                
January 1, April 1, July 1 or                                                   
October 1, 2004 or January 1,                                                   
April 1, July 1 or October 1, 2005                                              
or January 1, 2006                            $10.50                  952       

April 1, July 1 or October 1, 2006                                              
or January 1, 2007                            $13.00                  769       

April 1, July 1, or October 1, 2007                                             
or January 1, 2008                            $15.50                  645       

April 1, July 1, or October 1, 2008                                             
or January 1, 2009                            $18.00                  555       

----------                                                                      
*     The Conversion Price is subject to adjustment in certain events affecting 
capitalization, as provided in Paragraph H.(4), below.              

**    Does not include fractional shares.                                       

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The holder of Series A Preferred Stock shall have no right to convert shares of 
Series A Preferred Stock effective after January 1, 2009.                       

 (3)   Conversion Procedure. Shares of Series A Preferred Stock may be
converted effective as of the first day of any calendar quarter commencing      
January 1, 2004 through and including January 1, 2009, but not thereafter. To   
convert shares of Series A Preferred Stock into Common Stock, the holder of such
shares shall give to the chief financial officer of the corporation, or to its  
stock transfer agent if it has one, written notice of the holder's intent to    
convert all or a portion of the holder's shares of Series A Preferred Stock (the
"Notice of Conversion"), provided, that the holder gives the Notice of          
Conversion during the third calendar month of any calendar quarter (a "Notice   
Month") through and including the fourth calendar quarter of the year 2008.     
Giving of Notice of Conversion shall be construed as the holder's election to   
convert the Converted Shares, effective as of the first day of the calendar     
quarter immediately following the end of the Notice Month. The Notice of        
Conversion shall be addressed to the corporation at its principal executive     
office or to its stock transfer agent, if it has one, and shall contain the     
name, address and other contact information for the converting holder, together 
with the number of the share certificate representing the Converted Shares and  
the number of shares the holder intends to convert. Contemporaneous with or     
after a holder has given Notice of Conversion, the holder shall surrender the   
share certificate representing such Converted Shares to the corporation at its  
principal executive office, or to the corporation's transfer agent, if it has   
one, duly endorsed in favor of the corporation, provided, that the holder       
surrenders such share certificate during the Notice Month or within five days   
after the end of such Notice Month. The endorsement of the share certificate and
the request to convert shall be in form and content satisfactory to the stock   
transfer agent or the corporation, as the case may be. Provided that the Notice 
of Conversion has been timely given and the share certificate for the Converted 
Shares duly endorsed and timely surrendered, the conversion shall be considered 
to have occurred effective as of the Conversion Date. The holder who has        
converted his or her Converted Shares shall thereupon be entitled to receive    
share certificates for the appropriate number of shares of Common Stock and     
shall be regarded for all corporate purposes from and after such Conversion Date
as the holder of the number of shares of Common Stock to which he is entitled   
upon the conversion. Notwithstanding the foregoing, if the holder of Series A   
Preferred Stock desires to convert such shares after the holder has received a  
Notice of Redemption with respect to such shares, the holder may nonetheless    
convert such shares (the "Redeemed/Converted Shares") prior to their redemption,
provided that on or before the close of business on the fifth business day      
preceding the Redemption Date, the holder complies with the procedures specified
hereinabove for giving Notice of Conversion and duly surrendering the share     
certificate for Redeemed/Converted Shares.                                      

 (4)   Anti-Dilution Adjustment of Conversion Price. In the event of a
stock split, reverse stock split, stock dividend, reorganization or             
recapitalization affecting the number of shares of Common Stock outstanding, the
Conversion Price shall be proportionately adjusted so as to fairly and equitably
preserve the conversion rights of the Series A Preferred Stock.                 

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    (5)   Notice of Change of Conversion Price. Promptly after any change in
the Conversion Price, the corporation shall prepare and mail by first class,    
postage prepaid mail to each holder of Series A Preferred Stock a written       
statement setting forth in detail the facts causing the change in the Conversion
Price, the changed Conversion Price and the computation thereof (a "Change      
Notice"). The Change Notice shall be signed by the president and by the chief   
financial officer and shall be filed with the secretary of the corporation and  
the stock transfer agent, if there be one.                                      

      (6)   No Adjustments. Anything herein to the contrary notwithstanding, the
corporation shall not be required to make any adjustment of the Conversion Price
upon the conversion of any shares of Series A Preferred Stock or, in the case of
the issuance of any Convertible Securities, options or Common Stock, in         
connection with (i) any employee stock option plan of the corporation or (ii)   
any qualified employee stock ownership plan of the corporation.                 

     I.    Perpetual Issuance. Shares of Series A Preferred Stock shall remain
outstanding in perpetuity unless and until such shares are redeemed or converted
as provided herein.                                                             

 J.    No Preemptive Rights. No holder of shares of Series A Preferred
Stock shall have any preemptive or preferential right of subscription to any    
shares of any class of stock of the corporation, whether now or hereafter       
authorized, or to any obligation convertible into stock of the corporation,     
issued or sold, nor to any right of subscription to any of such securities other
than such, if any, as the Board of Directors, in its sole discretion, may from  
time to time determine and at such price as the Board of Director may from time 
to time fix.                                                                    

K.    Status of Redeemed and Converted Shares. Shares of Series A   
Preferred Stock that are converted into shares of Common Stock as provided      
herein or that are redeemed as provided herein shall be restored to the status  
of authorized but unissued shares of Preferred Stock.                           

  L.    Definition of Common Stock. As used herein, "Common Stock" shall
also include any stock of any class of the corporation hereafter authorized     
which shall have no preference over any other shares with respect to the        
distribution of assets on liquidation or with respect to the payment of         
dividends; provided that the Common Stock receivable upon conversion of shares  
of Series A Preferred Stock shall include only shares designated as Common Stock
and described in Article IV of the corporation's Certificate of Incorporation.  

M.    Notice. Except as may otherwise be expressly provided herein, 
notices given and deliveries made in connection with Series A Preferred Stock   
may be given by (i) first class mail, postage prepaid, (ii) personal delivery,  
whether by the party giving such notice or making such delivery or by an agent  
on behalf of such person, or (iii) a recognized courier service guaranteeing    
overnight or two day delivery service. Notice so given or a delivery so made,   
shall be considered effective as of the date of receipt of such notice or       
delivery by the person to whom the notice is addressed or the delivery directed.

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Notice to the corporation shall be addressed to the chief financial officer at  
the principal executive office of the corporation and notice to the holder of   
Series A Preferred Stock shall be addressed to the holder at the address for    
such holder on the records of the corporation or the stock transfer agent of the
corporation, if it has one.                                                     

Dates Referenced Herein

				Referenced-On Page
This ‘S-1/A’ Filing		Date		First		Last			Other Filings
		1/1/09		2		7			None on these Dates
		10/1/08		6
		1/1/08		6
		10/1/07		6
		1/1/07		6
		10/1/06		6
		1/1/06		6
		10/1/05		6
Filed on:		1/26/05
		12/31/04		4
		10/1/04		6
		1/1/04		7
		10/23/03		1		2
									List all Filings

9 Subsequent Filings that Reference this Filing

  As Of               Filer                 Filing    For·On·As Docs:Size             Issuer                      Filing Agent

 3/07/24  Axos Financial, Inc.              S-8         3/07/24    4:86K
 2/29/24  Axos Financial, Inc.              S-3ASR      2/29/24    6:1.9M
 8/29/23  Axos Financial, Inc.              10-K        6/30/23  143:24M
 1/26/23  Axos Financial, Inc.              10-Q       12/31/22   74:16M
 9/08/22  Axos Financial, Inc.              10-K        6/30/22  135:25M
11/05/21  Axos Financial, Inc.              S-8        11/05/21    3:104K
 8/26/21  Axos Financial, Inc.              10-K        6/30/21  134:24M
 3/02/21  Axos Financial, Inc.              S-3ASR      3/02/21    5:1.9M
 8/26/20  Axos Financial, Inc.              10-K        6/30/20  140:29M