EXHIBIT 3(i)
RESTATED CERTIFICATE OF INCORPORATION
OF
CAMCO FINANCIAL CORPORATION
(Originally incorporated on October 19, 1970
under the name First Cambridge Corporation)
FIRST: The name of the corporation is Camco Financial Corporation.
SECOND: The address of the corporation's registered office in the
State of Delaware is: Corporation Trust Center, 1209 Orange Street, County of
New Castle, Wilmington, Delaware 19801. The name of its registered agent at such
address is The Corporation Trust Company.
THIRD: The purposes of the corporation are:
(l) To acquire and own savings and loan associations; and
(2) To engage in any lawful act or activity for which corporations
may be organized under the General Corporation Law of Delaware.
FOURTH: The total number of shares of stock which the corporation
shall have the authority to issue is Fifteen Million (15,000,000), of which
stock Fourteen Million Nine Hundred Thousand (14,900,000) shares shall be common
shares of the par value of One Dollar ($1.00) each, amounting in the aggregate
to Fourteen Million Nine Hundred Thousand Dollars ($14,900,000), and One Hundred
Thousand (100,000) shares shall be preferred shares of the par value of One
Dollar ($1.00) each, amounting in the aggregate to One Hundred Thousand Dollars
($100,000). There is hereby granted to the Board of Directors of the corporation
the authority to fix by resolution or resolutions any and all powers,
designations, preferences and relative, participating, optional or other rights,
or the qualifications, limitations or restrictions thereof, of shares of the
preferred stock, or of any series of the preferred stock, of the corporation
that are permitted by the General Corporation Law of Delaware to be fixed by the
Board of Directors, and such grant of authority shall include the power to
specify the number of shares to any series of the preferred stock of the
corporation.
FIFTH: The corporation is to have perpetual existence.
SIXTH: Whenever a compromise or arrangement is proposed between this
corporation and its creditors or any class of them and/or between this
corporation and its stockholders or any class of them, any court of equitable
jurisdiction within the State of Delaware may, on the application in a summary
way of this corporation or of any creditor or stockholder thereof or on the
application of any receiver or receivers appointed for this corporation under
the provisions of Section 291 of Title 8 of the Delaware Code or on the
application of trustees in dissolution or of any receiver or receivers appointed
for this corporation under the provisions of Section 279 of Title 8 of the
Delaware Code order a meeting of the creditors or class of creditors, and/or of
the stockholders or class of stockholders of this corporation, as the case may
be, to be summoned in such manner as the said court directs. If a majority in
number representing three-fourths in value of the creditors or a class of
creditors, and/or of the stockholders or class of stockholders of this
corporation, as the case may be, agree to any compromise or arrangement and to
any reorganization of this corporation as consequence of such compromise or
arrangement, the said compromise or arrangement and the said reorganization
shall, if sanctioned by the court to which the said application has been made,
be binding on all the creditors or class of creditors, and/or all the
stockholders or class of stockholders, of this corporation, as the case may be,
and also on this corporation.
SEVENTH: No election of Directors need be by written ballot.
EIGHTH: Any Director or the entire Board of Directors may be removed
only by the affirmative vote of not less than 80% of the outstanding stock
entitled to vote at an election of Directors, and such removal may be effected
only for cause; provided, however, that if any class or series of stock shall
entitle the holders thereof to elect one or more Directors, any Director or all
the Directors elected by such holders may be removed only by the affirmative
vote of not less than 80% of the outstanding stock of such class or series
entitled to vote at an election of such Directors, and such removal may be
effected only for cause. Any such removal shall be deemed to create a vacancy in
the Board of Directors.
NINTH: When used in the Certificate of Incorporation:
(l) An "Affiliate" of a specified Person is a Person that directly,
or indirectly through one or more intermediaries, controls, or is controlled by,
or is under common control with, the Person specified.
(2) The term "Associate" used to indicate a relationship with any
Person shall mean (A) any corporation or organization (other than this
corporation or a subsidiary) of which such Person is an officer or partner or
is, directly or indirectly, the beneficial owner of ten percent (10%) or more of
any class of Equity Security, (B) any trust or other estate in which such Person
has a substantial beneficial interest or as to which such Person serves as
trustee or in a similar fiduciary capacity, and (C) any relative or spouse of
such Person, or any relative of such spouse, who has the same home as such
Person, or is an officer or director of any corporation controlling or
controlled by such Person.
(3) "Beneficial Ownership" shall be determined pursuant to Rule
13d-3 of the General Rules and Regulations under the Securities Exchange Act of
1934 (or any successor rule or statutory provision) or, if said Rule 13d-3 shall
be rescinded and there shall be no successor rule or statutory provision
thereto, pursuant to said Rule 13d-3 as in effect on May 26, 1987; provided,
however, that a Person shall, in any event, also be deemed to be the "Beneficial
Owner" of any shares of Voting Stock:
(A) that such Person or any of its Affiliates or Associates
beneficially own, directly or indirectly; or
(B) that such Person or any of its Affiliates or Associates
has (i) the right to acquire (whether such right is exercisable
immediately or only after the passage of time), pursuant to any
agreement, arrangement or understanding (but shall not be deemed to
be the beneficial owner of any shares of Voting Stock solely by
reason of an agreement, arrangement or understanding with the
corporation to effect a Business Combination) or upon the exercise
of conversion rights, exchange rights, warrants, or options, or
otherwise, or (ii) sole or shared voting or investment power with
respect thereto pursuant to any agreement, arrangement,
understanding, relationship or otherwise (but shall not be deemed to
be the beneficial owner of any shares of Voting Stock solely by
reason of a revocable proxy granted for a particular meeting of
stockholders, pursuant to a public solicitation of proxies for such
meeting, with respect to shares of which neither such Person nor any
such Affiliate or Associate is otherwise deemed the beneficial
owner); or
(C) that are beneficially owned, directly or a indirectly, by
any other Person with which such first mentioned Person or any of
its Affiliates or Associates acts as a partnership, limited
partnership, syndicate or other group pursuant to any agreement,
arrangement or understanding for the purpose of acquiring, holding,
voting or disposing of any shares of capital stock of the
corporation; and provided further, however, that (i) no Director or
officer of the corporation, nor any Associate or Affiliate of any
such Director or officer, shall, solely by reason of any or all such
Directors and officers acting in their capacities as such, be
deemed, for any purposes hereof, to beneficially own any shares of
Voting Stock beneficially owned by any other such Director or
officer (or any
-2-
Associate or Affiliate thereof), and (ii) no employee stock
ownership or similar plan of the corporation or any Subsidiary nor
any trustee with respect thereto, nor any Associate or Affiliate of
any such trustee, shall, solely by reason of such capacity of such
trustee, be deemed, for any purposes hereof, to beneficially own any
shares of Voting Stock held under any such plan.
For purposes of computing the percentage Beneficial Ownership of
shares of Voting Stock of a Person in order to determine whether such Person is
a Substantial Stockholder, the outstanding shares of Voting Stock shall include
shares deemed owned by such Person through application of this paragraph (3) but
shall not include any other shares of Voting Stock which may be issuable by the
corporation pursuant to any agreement, or upon the exercise of conversion
rights, warrants or options, or otherwise. For all other purposes, the
outstanding shares of Voting Stock shall include only shares of Voting Stock
then outstanding and shall not include any shares of Voting Stock which may be
issuable by the corporation pursuant to any agreement, or upon the exercise of
conversion rights, warrants or options, or otherwise.
(4) The term "Business Combination" shall mean any transaction which
is described in any one or more of the clauses (A) through (E) of paragraph (l)
of Article ELEVENTH of the Certificate of Incorporation.
(5) "Continuing Director" shall mean a Person who was a member of
the Board of Directors of the corporation as of May 26, 1987, or thereafter
elected by the stockholders or appointed by the Board of Directors of the
corporation prior to the date as of which the Substantial Stockholder in
question became a Substantial Stockholder, or a Person designated (before his
initial election or appointment as a director) as a Continuing Director by
three-fourths (3/4) of the Whole Board, but only if a majority of the Whole
Board shall then consist of Continuing Directors.
(6) "Equity Security" shall have the meaning given to such term
under Rule 3al1-1 of the General Rules and Regulations under the Securities
Exchange Act of 1934, as in effect on May 26, 1987.
(7) A "Person" shall mean any individual, firm, corporation or other
entity.
(8) "Subsidiary" shall mean any corporation of which a majority of
any class of Equity Security is owned, directly or indirectly, by the
corporation; provided, however, that for the purposes of the definition of
Substantial Stockholder set forth in paragraph (10) of this ARTICLE NINTH, the
term "Subsidiary" shall mean only a corporation of which a majority of each
class of Equity Security is owned, directly or indirectly, by the corporation.
(9) "Substantial Part" shall mean assets having a book value
(determined in accordance with generally accepted accounting principles) in
excess of ten percent (10%) of the book value (determined in accordance with
generally accepted accounting principles) of the total consolidated assets of
the corporation, at the end of its most recent fiscal year ending prior to the
time the determination is made.
(10) "Substantial Stockholder" shall mean any Person who or which,
as of the record date for the determination of stockholders entitled to notice
of and to vote on any Business Combination, or immediately prior to the
consummation of any such Business Combination:
(A) is the Beneficial Owner, directly or indirectly, of more
than fifteen percent (15%) of the shares of Voting Stock (determined
solely on the basis of the total number of shares of Voting Stock so
Beneficially Owned (and without giving effect to the number or
percentage of votes entitled to be cast in respect of such shares)
in relation to the total number of shares of Voting Stock then
issued and outstanding), or
-3-
(B) is an Affiliate of the corporation and at any time within
three years prior thereto was the Beneficial Owner, directly or
indirectly, of more than fifteen percent (15%) of the then
outstanding Voting Stock (determined as aforesaid), or
(C) is an assignee of or has otherwise succeeded to any shares
of capital stock of the corporation which were at any time within
three years prior thereto Beneficially Owned by any Substantial
Stockholder, and such assignment or succession shall have occurred
in the course of a transaction or series of transactions not
involving a public offering within the meaning of the Securities Act
of 1933.
Notwithstanding the foregoing, a Substantial Stockholder shall not
include (a) the corporation or any Subsidiary or (b) any profit-sharing,
employee share ownership or other employee benefit plan of the corporation or
any Subsidiary, or any trustee of or fiduciary with respect to any such plan
when acting in such capacity.
(11) "Voting Stock" shall mean any shares of capital stock of the
corporation entitled to vote generally in the election of directors.
(12) "Whole Board" shall mean the total number of Directors which
the corporation would have if there were no vacancies; i.e., the whole
authorized number of Directors.
TENTH: Any action required or permitted to be taken by the
stockholders of the corporation must be taken pursuant to a vote of such
stockholders at an annual or special meeting of such stockholders that is duly
held pursuant to notice. No action required or permitted to be taken by the
stockholders of the corporation at any annual or special meeting of such
stockholders may be taken pursuant to one or more consents in writing signed by
the holders of all or any other portion of the outstanding stock entitled to
vote on such action. Except as otherwise required by law and subject to any
rights afforded by any provision of the Certificate of Incorporation to holders
of any class or series of capital stock of the corporation having a preference
over the common stock as to dividends or upon liquidation, special meetings of
stockholders of the corporation may be called only by the President or by the
Board of Directors pursuant to a resolution duly adopted by a majority of the
Whole Board or by a writing signed by a majority of the Whole Board.
ELEVENTH:
(1) In addition to any vote required by law or under any other
provision of the Certificate of Incorporation or any resolution or resolutions
adopted by the Board of Directors pursuant to its authority under Article FOURTH
of the Certificate of Incorporation, and except as otherwise expressly provided
in this Article ELEVENTH:
(A) any merger or consolidation of the corporation or any
Subsidiary with or into (i) any Substantial Stockholder or (ii) any
other corporation (whether or not itself a Substantial Stockholder)
which, after such merger or consolidation, would be an Affiliate of
a Substantial Stockholder, or
(B) any sale, lease, exchange, mortgage, pledge, transfer or
other disposition (in one transaction or a series of related
transactions) to or with any Substantial Stockholder of any
Substantial Part of the assets of the corporation or of any
Subsidiary, or
(C) the issuance or transfer by the corporation or by any
Subsidiary (in one transaction or a series of related transactions)
of any Equity Securities of the corporation or any Subsidiary to any
Substantial Stockholder in exchange for cash, securities or other
property (or a combination thereof) having an aggregate fair market
value equal to or in excess of sixty percent (60%) of the amount of
stockholders' equity reflected on the corporation's audited balance
sheet as of the end of its most recent fiscal year (which
-4-
shall be prepared on a consolidated basis by the corporation's
independent certified public accountants in accordance with
generally accepted accounting principles), or
(D) the adoption of any plan or proposal for the liquidation
or dissolution of the corporation if, as of the record date for the
determination of stockholders entitled to notice thereof and to vote
thereon, any person shall be a Substantial Stockholder, or
(E) any reclassification of securities (including any reverse
stock split) or recapitalization of the corporation, or any
reorganization, merger or consolidation of the corporation with any
of its Subsidiaries or any similar transaction (whether or not with
or into or otherwise involving a Substantial Stockholder) that has
the effect, directly or indirectly, of increasing the proportionate
share of the outstanding securities of any class of equity
securities of the corporation or any Subsidiary which is directly or
indirectly Beneficially Owned by any Substantial Stockholder,
shall (except as otherwise expressly provided in the Certificate of
Incorporation) require the affirmative vote of not less than 80% of all
outstanding shares of Voting Stock; provided that such affirmative vote must
include the affirmative vote of a majority of all outstanding shares of Voting
Stock not beneficially owned by the Substantial Stockholder in question. Each
such affirmative vote shall be required notwithstanding the fact that no vote
may be required, or that some lesser percentage may be specified, by law or in
any agreement with any national securities exchange or otherwise.
(2) The provisions of this Article ELEVENTH shall not be applicable
to any Business Combination, the terms of which shall be approved, either in
advance of or subsequent to a Substantial Stockholder having become a
Substantial Stockholder, by three-fourths (3/4) of the Whole Board, but only if
a majority of the members of the Board of Directors in office and acting upon
such matter shall be Continuing Directors.
(3) A majority of the Continuing Directors then in office shall have
the power to determine for the purposes of this Article ELEVENTH, on the basis
of information known to them:
(A) The number of shares of Voting Stock beneficially owned by
any Person;
(B) Whether a Person is an Affiliate or Associate of another;
(C) Whether the assets subject to any Business Combination
constitute a Substantial Part of the assets of the corporation in
question; and/or
(D) Any other factual matter relating to the applicability or
effect of this Article ELEVENTH.
(4) A majority of the Continuing Directors then in office shall have
the right to demand that any Person who is reasonably believed to be a
Substantial Stockholder (or holder of record shares of Voting Stock beneficially
owned by any Substantial Stockholder) supply to the corporation complete
information as to:
(A) The record owner(s) of all shares beneficially owned by
such Person who is reasonably believed to be a Substantial
Stockholder;
(B) The number of, and each class or series of, shares
Beneficially Owned by such Person who is reasonably believed to be a
Substantial Stockholder and held of record by each such record owner
and the number(s) of the stock certificate(s) evidencing such
shares; and
-5-
(C) Any other factual matter relating to the applicability or
effect of this Article ELEVENTH as may be reasonably requested of
such Person, and such Person shall furnish such information within
10 days after receipt of such demand.
(5) Any determination made by the Board of Directors, or by the
Continuing Directors, as the case may be, pursuant to this Article ELEVENTH in
good faith and on the basis of such information and assistance as was then
reasonably available for such purpose shall be conclusive and binding upon the
corporation and its stockholders, including any Substantial Stockholder.
(6) Nothing contained in this Article ELEVENTH shall be construed to
relieve any Substantial Stockholder from any fiduciary obligation imposed by
law.
TWELFTH: The Board of Directors of the corporation, when evaluating
any offer of another party to make a tender or exchange offer for any Equity
Security of the corporation to merge or consolidate the corporation with another
corporation, or to purchase or otherwise acquire all or a Substantial Part of
the properties and assets of the corporation, or any proposal for the
liquidation or dissolution of the corporation shall, in connection with the
exercise of its judgment in determining what is in the best interests of the
corporation and its stockholders, give due consideration to all relevant
factors, including without limitation:
(A) The best interest of the stockholders. For this purpose, the
Directors shall consider, among other factors, not, only the consideration
offered in relation to the then current market price of the outstanding stock of
the corporation, but also in relation to the current value of the corporation in
a freely negotiated transaction and in relation to the Board of Directors' then
current estimate of the future value of the corporation as an independent entity
or as the subject of a future transaction; and
(B) The best interests of depositors of savings institutions
affiliated with the corporation; and
(C) Such other factors as the Board of Directors determines to be
relevant, including, among other factors, the social, legal and economic effects
upon (i) employees, suppliers, customers and the business of the corporation and
any Subsidiary and (ii) each community in which the corporation or any
Subsidiary operates or is located.
THIRTEENTH: No Director of the corporation shall be liable to the
corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director, except for liability:
(1) For any breach of the Director's duty of loyalty to the
corporation or its stockholders,
(2) For acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law,
(3) Under Section 174 of the General Corporation Law of Delaware, or
(4) For any transaction from which the Director derived an improper
personal benefit.
If the General Corporation Law of Delaware is amended after approval
by the stockholders of this Article THIRTEENTH to authorize corporate action
further eliminating or limiting the personal liability of directors, then the
liability of a director of the corporation shall be eliminated or limited to the
fullest extent permitted by the General Corporation Law of Delaware, as so
amended.
Any repeal or modification of this Article THIRTEENTH by the
stockholders of the corporation shall not adversely affect any right or
protection of a Director of the corporation existing at the time of such repeal
or modification.
-6-
FOURTEENTH:
(1) Except as otherwise provided in any By-Law adopted by the
stockholders, the By-Laws may be altered, amended or repealed by the affirmative
vote of not less than a majority of the Whole Board; provided, however, that any
By-Law that provides for the division of the Directors into classes having
staggered terms may be adopted, altered, amended or repealed only by the
stockholders.
(2) No By-Law of the corporation shall be adopted, repealed,
altered, amended or rescinded by the stockholders of the corporation except by
the affirmative vote of at least 80% of the Voting Stock entitled to vote
thereon. Any amendment to the Certificate of Incorporation which shall
contravene any By-Law in existence on the record date of the meeting of
stockholders at which such amendment is to be voted upon by the stockholders
shall require the affirmative vote of at least 80% of the Voting Stock entitled
to vote thereon.
FIFTEENTH:
(1) In addition to any requirements of law and any other provisions
of the Certificate of Incorporation or any resolution or resolutions of the
Board of Directors adopted pursuant to Article FOURTH of the Certificate of
Incorporation (and notwithstanding the fact that a lesser percentage may be
specified by law, the Certificate of Incorporation, any such resolution or
resolutions or otherwise), the affirmative vote of at least 80% of the Voting
Stock shall be required to amend, alter or repeal, or to adopt any provision
inconsistent with, Articles EIGHTH, NINTH, TENTH, TWELFTH, THIRTEENTH,
FOURTEENTH or FIFTEENTH of the Certificate of Incorporation, and the affirmative
vote of at least 80% of the Voting Stock, including at least a majority of the
Voting Stock not beneficially owned by a Substantial Stockholder, shall be
required to amend, alter or repeal, or to adopt any provision inconsistent with,
Article ELEVENTH of the Certificate of Incorporation.
(2) Subject to the provisions of Paragraph (1) of this Article
FIFTEENTH, the corporation reserves the right to amend, alter, change or repeal
any provision contained in the Certificate of Incorporation, in the manner now
or hereafter prescribed by statute, and all rights conferred on stockholders
herein are granted subject to this reservation.
IN WITNESS WHEREOF, this Restated Certificate of Incorporation,
which restates and integrates, but does not further amend the provisions of the
corporation's Certificate of Incorporation, having been duly adopted by the
Board of Directors of the corporation in accordance with the provisions of
Section 245 of the General Corporation Laws of the State of Delaware, has been
executed this 25th day of November, 2003 by Mark A. Severson, its authorized
officer.
/s/ Mark A. Severson
-------------------------------
Title: Chief Financial Officer
-7-