<PAGE> 1
As filed with the Securities and Exchange Commission on January 5, 2000
Registration No. 333-_____
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------------------------------
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
----------------------------------
CAMCO FINANCIAL CORPORATION
-------------------------------------------------------
(Exact name of registrant as specified in its Articles)
Delaware 51-0110823
- --------------------------------- ------------------------------------
(State or other jurisdiction (I.R.S. Employer Identification No.)
of incorporation or organization)
6901 Glenn Highway, Cambridge, Ohio 43725
----------------------------------------------------
(Address of Principal Executive Offices) (Zip Code)
THE WESTWOOD HOMESTEAD FINANCIAL CORPORATION
1997 STOCK OPTION PLAN
----------------------
(Full title of the plan)
Larry A. Caldwell
Camco Financial Corporation
6901 Glenn Highway
Cambridge, Ohio 43725
---------------------------------------
(Name and address of agent for service)
(740) 435-2020
-------------------------------------------------------------
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Proposed maximum Proposed maximum
Title of securities Amount to be offering price aggregate offering Amount of
to be registered registered(1) per share(2) price(2) registration fee(2)
- ---------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock 311,794 $ 12.55 $ 3,913,015 $ 1,034
$1.00 par value per share
</TABLE>
- ----------
(1) This Registration Statement shall also cover any additional shares of
common stock which becomes issuable under the Westwood Homestead
Financial Corporation 1997 Stock Option Plan by reason of any stock
dividend, stock split, recapitalization or other similar transaction
effected without the receipt of consideration which results in an
increase in the number of outstanding shares of Camco Financial
Corporation.
(2) Calculated solely for purposes of this offering under Rule 457(h) of
the Securities Act of 1933, as amended, on the basis of the maximum
offering price per share at which such options may be exercised.
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<PAGE> 2
The shares of common stock subject to options registered hereunder
pertain to options which have been assumed by Camco Financial Corporation (the
"Registrant") pursuant to an Agreement of Merger and Plan of Reorganization,
dated as of August 6, 1999, among the Registrant, Westwood Homestead Financial
Corporation ("WHFC") and The Westwood Homestead Savings Bank ("WHSB"). The
options were originally granted to directors and employees of WHFC and WHSB
under the Westwood Homestead Financial Corporation 1997 Stock Option Plan.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The Registrant hereby incorporates by reference into this
Registration Statement the following documents previously filed with the
Securities and Exchange Commission (the "Commission"):
a. The Registrant's Annual Report on Form 10-K for the fiscal
year ended December 31, 1998, including all material
incorporated by reference therein;
b. The Registrant's Quarterly Reports on Form 10-Q for the
fiscal quarters ended March 31, 1999, June 30, 1999 and
September 30, 1999, including all material incorporated by
reference therein;
c. The Registrant's Current Report on Form 8-K filed with the
Commission on August 13, 1999;
d. The description of the Registrant's Common Stock to be
offered hereby contained in the Registrant's Registration
Statement on Form 8-A filed with the Commission on November
30, 1994, including any amendments or reports filed for
the purpose of updating such description.
All documents filed pursuant to Sections 13(a), 13(c), 14 or
15(d) of the Securities Exchange Act of 1934, as amended (the "1934 Act") after
the date of this Registration Statement and prior to the filing of a
post-effective amendment which indicates that all securities offered hereby have
been sold or which deregisters all securities then remaining unsold shall be
deemed to be incorporated by reference into this Registration Statement and to
be a part hereof from the date of filing of such documents.
Any document, and any statement contained in a document,
incorporated or deemed to be incorporated by reference herein shall be deemed to
be modified or superseded for purposes of this Registration Statement to the
extent that a statement contained herein, or in any other subsequently filed
document that also is incorporated or deemed to be incorporated by reference
herein, modifies or supersedes such document or statement. Any such document or
statement so modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of this Registration Statement. Subject to
the foregoing, all information appearing in this Registration Statement is
qualified in its entirety by the information appearing in the documents
incorporated by reference.
ITEM 4. DESCRIPTION OF SECURITIES.
Not Applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
None.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
a. Section 145 of the Delaware Code governs indemnification
by a corporation and provides as follows:
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<PAGE> 3
(a) A corporation shall have power to indemnify any
person who was or is a party or is threatened to be made a
party to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the
corporation) by reason of the fact that he 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,
partnership, joint venture, trust or other enterprise, against
expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by
him in connection with such actions suit or proceeding if he
acted in good faith and in a manner he reasonably believed to
be in or not opposed to the best interest of the corporation,
and, with respect to any criminal action or proceeding if he
acted in good faith and in a manner he reasonably believed to
be in or not opposed to the best interests of the corporation,
and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful. The
termination of any action, suit or proceeding by judgment,
order, settlement, conviction, or upon a plea of nolo
contendere or its equivalent, shall not, of itself, create a
presumption that the person did not act in good faith and in a
manner which he reasonably believed to be in or not opposed to
the best interests of the corporation, and, with respect to
any criminal action or proceeding, had reasonable cause to
believe that his conduct was unlawful.
(b) A corporation shall have power to indemnify any
person who was or is a party or is threatened to be made a
party to any threatened, pending or completed action or suit
by or in the right of the corporation to procure a judgment in
its favor by reason of the fact that he 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,
partnership, joint venture, trust or other enterprise against
expenses (including attorneys' fees) actually and reasonably
incurred by him in connection with the defense or settlement
of such action or suit if he acted in good faith and in a
manner he reasonably believed to be in or not opposed to the
best interest of the corporation and except that no
indemnification shall be made in respect of any claim, issue
or matter as to which such person shall have been adjudged to
be liable to the corporation unless any and only to the extent
that the Court of Chancery or the court in which such action
or suit was brought shall determine upon application that,
despite the adjudication of liability but in view of all the
circumstances of the case, such person is fairly and
reasonably entitled to indemnity for such expenses which the
Court of Chancery or such other court shall deem proper.
(c) To the extent that a director, officer, employee
or agent of a corporation has been successful on the merits or
otherwise in defense of any action, suit or proceeding
referred to in subsections (a) and (b), or in defense of any
claim, issue or matter therein, he shall be indemnified
against expenses (including attorneys' fees) actually and
reasonably incurred by him in connection therewith.
(d) Any indemnification under subsections (a) and (b)
(unless ordered by a court) shall be made by the corporation
only as authorized in the specific case upon a determination
that indemnification of the director, officer, employee or
agent is proper in the circumstances because he has met the
applicable standard of conduct set forth in subsections (a)
and (b). Such determination shall be made (1) by a majority
vote of the directors who are not parties to such action, suit
or proceeding, even though less than a quorum, or (2) if there
are no such directors, or if such directors so direct, by
independent legal counsel in a written opinion, or (3) by the
stockholders.
(e) Expenses (including attorneys' fees) incurred by
an officer or director in defending any civil, criminal,
administrative, or investigative action, suit or proceeding
may be paid by the corporation in advance of the final
disposition of such action, suit or proceeding upon receipt of
an undertaking by or on behalf of such director or officer to
repay such amount if it shall ultimately be determined that he
is not entitled to be indemnified by the corporation as
authorized in the Section. Such expenses (including attorneys'
fees) incurred by other employees and agents may be so paid
upon such terms and conditions, if any, as the board of
directors deems appropriate.
(f) The indemnification and advancement of expenses
provided by, or granted pursuant to, the other subsections of
this Section shall not be deemed exclusive of any other rights
to which those seeking indemnification or advancement of
expenses may be entitled under any by-law, agreement, vote of
stockholders or disinterested directors or otherwise, both as
to action in his official capacity and as to action in another
capacity while holding such office.
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<PAGE> 4
(g) A corporation shall have the power to purchase
and maintain insurance on behalf of any person who is or was a
director, officer, employee or agent or the corporation, or is
or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise against
any liability asserted against him and incurred by him in any
such capacity, or arising out of his status as such, whether
or not the corporation would have the power to indemnify him
against such liability under the provisions of this Section.
(h) For purposes of this Section, references to "the
corporation" shall include, in addition to the resulting
corporation, any constituent corporation (including any
constituent of a constituent) absorbed in a consolidation or
merger which, if its separate existence had continued, would
have had power and authority to indemnify its directors,
officers and employees or agents, so that any person who is or
was a director, officer, employee or agent of such constituent
corporation, or is or was serving at the request of such
constituent corporation as a director, officer, employee or
agent of another corporation, partnership, joint venture,
trust or other enterprise, shall stand in the same position
under the provisions of this Section with respect to the
resulting or surviving corporation as he would have with
respect to such constituent corporation if its separate
existence had continued.
(i) For purposes of this Section, references to
"other enterprises" shall include employee benefit plans;
references to "fines" shall include any excise taxes assessed
on a person with respect to an employee benefit plan; and
references to "serving at the request of the corporation"
shall include any service as a director, officer, employee or
agent of the corporation which imposes duties on, or involves
services by, such director, officer, employee or agent with
respect to an employee benefit plan, its participants, or
beneficiaries; and a person who acted in good faith and in a
manner he reasonably believed to be in the interests of the
participants and beneficiaries of an employee benefit plan
shall be deemed to have acted in a manner "not opposed to the
best interests of the corporation" as referred to in this
Section.
(j) The indemnification and advancement of expenses
provided by, or granted pursuant to, this Section shall,
unless otherwise provided when authorized or ratified,
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.
(k) The Court of Chancery is hereby vested with
exclusive jurisdiction to hear and determine all actions for
advancement of expenses or indemnification brought under this
Section or under any bylaw, agreement, vote of stockholders or
disinterested directors, or otherwise. The Court of Chancery
may summarily determine a corporation's obligation to advance
expenses (including attorneys' fees).
b. The Bylaws of the Registrant contain the following
provisions with respect to the indemnification of directors and officers:
SECTION 7.01. MANDATORY INDEMNIFICATION. The corporation shall
indemnify any officer or director of the corporation and any other (other than
an assistant officer) or director (i) of a subsidiary of the corporation or (ii)
of a subsidiary of any such subsidiary, who was or is a party or is threatened
to be made a party to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative (including,
without limitation, any action threatened or instituted by or in the right of
the corporation), by reason of the fact that he is or was a director, officer,
employee or agent of the corporation, or of a subsidiary of the corporation, or
is or was serving at the request of the corporation as a director, trustee,
officer, employee or agent of another corporation (domestic or foreign,
nonprofit or for profit), partnership, joint venture, trust or other enterprise,
against expenses (including, without limitation, attorneys' fees , filing fees,
court reporters' fees and transcript costs), judgments, fines and amounts paid
in settlement actually or reasonably incurred by him in connection with such
action, suit or proceeding if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
corporation, and with respect to any criminal action or proceeding, he had no
reasonable cause to believe his conduct was unlawful. A person claiming
indemnification under this Section 5.01 shall be presumed, in respect of any act
or omission giving rise to such claim for indemnification, to have acted in good
faith and in a manner he reasonably believed to be in or not opposed to the best
interests of the corporation, and with respect to any criminal matter, to have
had no reasonable cause to believe his conduct was unlawful, and the termination
of any action, suit or proceeding by judgment, order, settlement or conviction,
or upon a plea of nolo contendere or its equivalent, shall not, of itself, rebut
such presumption.
II-4
<PAGE> 5
SECTION 7.02. COURT-APPROVED INDEMNIFICATION. Anything
contained in the by-laws or elsewhere to the contrary notwithstanding:
(A) the corporation shall not indemnify any officer or
director of the corporation who was a party to any completed action or suit
instituted by or in the right of the corporation to procure a judgment in its
favor by reason of the fact that he 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, trustee, officer, employee or agent of another corporation
(domestic or foreign, nonprofit or for profit), partnership, joint venture,
trust or other enterprise, in respect of any claim, issue or matter asserted in
such action or suit as to which he shall have been adjudged to be liable for
acting with reckless disregard for the best interest of the corporation or
misconduct (other than negligence) in the performance of his duty to the
corporation unless and only to the extent that the Court of Common Pleas of
Franklin County, Ohio, or the court in which such action or suit was brought
shall determine upon application that, despite such adjudication of liability,
and in view of all the circumstances of the case, he is fairly and reasonably
entitled to such indemnity as such Court of Common Pleas or such other court
shall deem proper; and
(B) the corporation shall promptly make any such unpaid
indemnification as is determined by a court to be proper as contemplated by this
Section 7.02.
SECTION 7.03. INDEMNIFICATION FOR EXPENSES. Anything contained
in the by-laws or elsewhere to the contrary notwithstanding, to the extent that
an officer or director of the corporation has been successful on the merits or
otherwise in the defense of any action, suit or proceeding referred to in
Section 7.01, or in defense of any claim, issue or matter therein, he shall be
promptly indemnified by the corporation against expenses (including, without
limitation, attorneys' fees, filing fees, court reporters' fees and transcript
costs) actually and reasonably incurred by him in connection therewith.
SECTION 7.04. DETERMINATION REQUIRED. Any indemnification
required under Section 7.01 and not precluded under Section 7.02 shall be made
by the corporation only upon a determination that such indemnification of the
officer or director is proper in the circumstances because he has met the
applicable standard of conduct set forth in Section 7.01. Such determination may
be made only (A) by a majority vote of a quorum consisting of directors of the
corporation who were not and are not parties to, or threatened with, any such
action, suit or proceeding, or (B) if such a quorum is not obtainable or if a
majority of a quorum of disinterested directors so directs, in a written opinion
by independent legal counsel other than an attorney, or a firm having associated
with it any attorney, who has been retained by or who has performed services for
the corporation, or any person to be indemnified, within the past five years, or
(C) by the shareholders, or (D) by the Court of Common Pleas of Franklin County,
Ohio, or (if the corporation is a party thereto) the court in which such action,
suit or proceeding was brought, if any; any such determination may be made by a
court under division (D) of this Section 7.04 at any time including, without
limitation, any time before, during or after the time when any such
determination may be requested of, be under consideration by or have been denied
or disregarded by the disinterested directors under division (A) or by
independent legal counsel under division (B) or by the shareholders under
division (C) of this Section 7.04; and no failure for any reason to make any
such determination, and no decision for any reason to deny any such
determination, by the disinterested directors under division (A) or by
independent legal counsel under division (B) or by shareholders under division
(C) of this Section 7.04 shall be evidence in rebuttal of the presumption
recited in Section 7.01. Any determination made by the disinterested directors
under division (A) or by independent legal counsel under division (B) of this
Section 7.04 to make indemnification respect of any claim, issue or matter
asserted in an action or suit threatened or brought by or in the right of the
corporation shall be promptly communicated to the person who threatened or
brought such action or suit, and within ten (10) days after receipt of such
notification such person shall have the right to petition the Court of Common
Pleas of Franklin County, Ohio, or the court in which such action or suit was
brought, if any, to review the reasonableness of such determination.
SECTION 7.05. ADVANCES FOR EXPENSES. Expenses (including,
without limitation, attorneys' fees, filing fees, court reporters' fees and
transcript costs) incurred in defending any action, suit or proceeding referred
to in Section 7.01 shall be paid by the corporation in advance of the final
disposition of such action, suit or proceeding to or on behalf of the officer or
director promptly as such expenses are incurred by him, but only if such officer
or director shall first agree, in writing, to repay all amounts so paid in
respect of any claim, issue or other matter asserted in such action, suit or
proceeding in defense of which he shall not have been successful on the merits
or otherwise:
(A) if it shall ultimately be determined as provided in
Section 7.04 that he is not entitled to be indemnified by the corporation as
provided under Section 7.01; or
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<PAGE> 6
(B) if, in respect of any claim, issue or other matter
asserted by or in the right of the corporation in such action or suit, he shall
have been adjudged to be liable for acting with reckless disregard for the best
interests of the corporation or misconduct (other than negligence) in the
performance of his duty to the corporation, unless any only to the extent that
the Court of Common Pleas of Franklin County, Ohio, or the court in which such
action or suit was brought shall determine upon application that, despite such
adjudication of liability, and in view of all the circumstances, he is fairly
and reasonably entitled to all or part of such indemnification.
SECTION 7.06. ARTICLE SEVEN NOT EXCLUSIVE. The indemnification
provided by this Article Seven shall not be deemed exclusive of any other rights
to which any person seeking indemnification may be entitled under the
certificate of incorporation or any by-law, agreement, vote of shareholders or
disinterested directors, or otherwise, both as to action in his 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 an officer or director of the
corporation and shall inure to the benefit of the heirs, executors, and
administrators of such a person.
SECTION 7.07. 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, trustee, officer, employee, or agent of another
corporation (domestic or foreign, nonprofit or for profit), partnership, joint
venture, trust or other enterprise, against any liability asserted against him
and incurred by him in any such capacity, or arising out of his status as such,
whether or not the corporation would have the obligation or the power to
indemnify him against such liability under the provisions of this Article Seven.
SECTION 7.08. CERTAIN DEFINITIONS. For purposes of this
Article Seven, and as examples and not by way of limitations:
(A) a person claiming indemnification under this Article Seven
shall be deemed to have been successful on the merits or otherwise in defense of
any action, suit or proceeding referred to in Section 7.01, or in defense of any
claim, issue or other matter therein, if such action, suit or proceeding shall
be terminated as to such person, with or without prejudice, without the entry of
a judgment or order against him, without a conviction of him, without the
imposition of a fine upon him and without his payment or agreement to pay any
amount in settlement thereof (whether or not any such termination is based upon
a judicial or other determination of the lack of merit of the claims made
against him or otherwise results in a vindication of him); and
(B) references to an "other enterprise" shall include employee
benefit plans; references to a "fine" shall include any excise taxes assessed on
a person with respect to an employee benefit plan; and references to "serving at
the request of the corporation" shall include any service as a director,
officer, employee or agent of the corporation which imposes duties on, or
involves services by, such director, officer, employee or agent with respect to
any employee benefit plan, its participants or beneficiaries; and a person who
acted in good faith and in a manner he reasonably believed to be in the best
interests of the participants and beneficiaries of an employee benefit plan
shall be deemed to have acted in a manner "not opposed to the best interests of
the corporation" with the meaning of that term as used in this Article Seven.
SECTION 7.09. VENUE. Any action, suit or proceeding to
determine a claim for indemnification under this Article Seven may be maintained
by the person claiming such indemnification, or by the corporation, in the Court
of Common Pleas of Franklin County, Ohio. The corporation and (by claiming such
indemnification) each such person consent to the exercise of jurisdiction over
its or his person by the Court of Common Pleas of Franklin County, Ohio, in any
such action, suit or proceeding.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
II-6
<PAGE> 7
ITEM 8. EXHIBITS.
4.01 Westwood Homestead Financial Corporation 1997
Stock Option Plan.
4.02 The Registrant's Third Restated Certificate of
Incorporation.
4.03 Certificate of Amendment to Registrant's
Certificate of Incorporation, dated July 12, 1994.
4.04 Certificate of Amendment to Registrant's
Certificate of Incorporation, dated September 23,
1996.
4.05 Certificate of Amendment to Registrant's
Certificate of Incorporation, dated May 29, 1998.
4.06 Certificate of Amendment to Registrant's
Certificate of Incorporation, dated December 20,
1999.
4.07 1987 Amended and Restated Bylaws of the
Registrant.
5.01 Opinion of Vorys, Sater, Seymour and Pease LLP.
23.01 Consent of Vorys, Sater, Seymour and Pease LLP
(included in Exhibit 5.01).
23.02 Consent of Grant Thornton LLP, independent public
accountants.
ITEM 9. UNDERTAKINGS.
A. The undersigned Registrant hereby undertakes:
(1) To file, during any period in which it offers or
sells securities, a post-effective amendment to this
registration statement to:
(i) Include any prospectus required by section
10(a)(3) of the Securities Act of 1933 (the
"Securities Act");
(ii) Reflect in the prospectus any facts or events
which, individually or together, represent a
fundamental change in the information in the
registration statement; and notwithstanding
the foregoing, any increase or decrease in
volume of securities offered (if the total
dollar value of securities offered would not
exceed that which was registered) and any
deviation from the low or high end of the
estimated maximum offering range may be
reflected in the form of prospectus filed with
the Commission pursuant to Rule 424(b) if, in
the aggregate, the changes in the volume and
price represent no more than a 20% change in
the maximum aggregate offering price set forth
in the "Calculation of Registration Fee" table
in the effective registration statement; and
(iii) Include any material information with respect
to the plan of distribution not previously
disclosed in the registration statement or any
material change to such information in the
registration statement.
provided, however, that paragraphs A(1)(i) and A(1)(ii) do not
apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in
periodic reports filed with or furnished to the Commission by
the registrant pursuant to section 13 or section 15(d) of the
1934 Act that are incorporated by reference in this
registration statement.
(2) For determining liability under the Securities Act,
to treat each post-effective amendment as a new
registration statement of the securities offered, and
the offering of the securities at that time to be the
initial bona fide offering; and
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<PAGE> 8
(3) To file a post-effective amendment to remove from
registration any of the securities that remain unsold
at the end of the offering.
B. The undersigned Registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act, each filing of
the Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
1934 Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the 1934 Act) that is incorporated by
reference in the Registration Statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
C. Insofar as indemnification for liabilities arising under
the Securities Act may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the provisions discussed in Item 6 hereof,
or otherwise, the Registrant has been advised that in the opinion of the
Commission such indemnification is against public policy as expressed in the
Securities Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer or controlling
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered hereby, the Registrant will,
unless in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the
Securities Act and will be governed by the final adjudication of such issue.
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<PAGE> 9
SIGNATURES
The Registrant. Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Cambridge, State of Ohio, on December 29, 1999.
CAMCO FINANCIAL CORPORATION
By: /s/ Larry A. Caldwell
---------------------------
Larry A. Caldwell
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and as of the dates indicated.
Signature Title Date
- --------- ----- ----
/s/ Larry A. Caldwell Director December 29, 1999
- --------------------------
Larry A. Caldwell
/s/ Anthony J. Popp Director December 29, 1999
- --------------------------
Anthony J. Popp
/s/ James R. Hanawalt Director December 29, 1999
- --------------------------
James R. Hanawalt
/s/ Robert C. Dix, Jr. Director December 29, 1999
- --------------------------
Robert C. Dix, Jr.
/s/ Samuel W. Speck Director December 29, 1999
- --------------------------
Samuel W. Speck
/s/ Jeffrey T. Tucker Director December 29, 1999
- --------------------------
Jeffrey T. Tucker
/s/ Kenneth R. Elshoff Director December 29, 1999
- --------------------------
Kenneth R. Elshoff
/s/ Eric G. Spann Director December 29, 1999
- --------------------------
Eric G. Spann
/s/ Paul D. Leake Director December 29, 1999
- --------------------------
Paul D. Leake
/s/ Gary Crane Chief Financial December 29, 1999
- -------------------------- Officer
Gary Crane
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<PAGE> 10
EXHIBIT INDEX
-------------
<TABLE>
<CAPTION>
Exhibit No. Exhibit
- ----------- -------
<S> <C> <C>
4.01 Westwood Homestead Financial Corporation 1997 Stock
Option Plan
4.02 The Registrant's Third Restated Certificate of
Incorporation.
4.03 Certificate of Amendment to Registrant's Certificate
of Incorporation, dated July 12, 1994.
4.04 Certificate of Amendment to Registrant's Certificate
of Incorporation, dated September 23, 1996.
4.05 Certificate of Amendment to Registrant's Certificate
of Incorporation, dated May 29, 1998.
4.06 Certificate of Amendment to Registrant's Certificate
of Incorporation, dated December 20, 1999.
4.07 1987 Amended and Restated Bylaws of the Registrant. Incorporated by reference to Camco's Annual
Report on Form 10-KSB for the fiscal year ended
December 31, 1995, filed with the Securities and
Exchange Commission on April 1, 1996. Exhibit 3(iii).
5.01 Opinion of Vorys, Sater, Seymour and Pease LLP.
23.01 Consent of Vorys, Sater, Seymour and Pease LLP
(included in Exhibit 5.01).
23.02 Consent of Grant Thornton LLP, independent public
accountants.
</TABLE>
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<PAGE> 1
Exhibit 4.01
WESTWOOD HOMESTEAD FINANCIAL CORPORATION
1997 STOCK OPTION AND INCENTIVE PLAN
1. PURPOSE OF THE PLAN.
The purpose of this Plan is to advance the interests of the Company
through providing select key Employees and Directors of the Bank, the Company,
and their Affiliates with the opportunity to acquire Shares. By encouraging such
stock ownership, the Company seeks to attract, retain and motivate the best
available personnel for positions of substantial responsibility and to provide
additional incentives to Directors and key Employees of the Company or any
Affiliate to promote the success of the business.
2. DEFINITIONS.
As used herein, the following definitions shall apply.
(a) "Affiliate" shall mean any "parent corporation" or "subsidiary
corporation" of the Company, as such terms are defined in Section 424(c) and
(f), respectively, of the Code.
(b) "Agreement" shall mean a written agreement entered into in
accordance with Paragraph 5(c).
(c) "Awards" shall mean, collectively, Options and SARs, unless the
context clearly indicates a different meaning.
(d) "Bank" shall mean The Westwood Homestead Savings Bank.
(e) "Board" shall mean the Board of Directors of the Company.
(f) "Change in Control" shall mean any one of the following events: (i)
the acquisition of ownership, holding or power to vote more than 25% of the
voting stock of the Bank or the Company, (ii) the acquisition of the ability to
control the election of a majority of the Bank's or the Company's directors,
(iii) the acquisition of a controlling influence over the management or policies
of the Bank or of the Company by any person or by persons acting as a "group"
(within the meaning of Section 13(d) of the Securities Exchange Act of 1934), or
(iv) during any period of two consecutive years, individuals (the "Continuing
Directors") who at the beginning of such period constitute the Board of
Directors of the Bank or of the Company (the "Existing Board") cease for any
reason to constitute at least two-thirds thereof, provided that any individual
whose election or nomination for election as a member of the Existing Board was
approved by a vote of at least two-thirds of the Continuing Directors then in
office shall be considered a Continuing Director. Notwithstanding the foregoing,
the Company's ownership of the Bank shall not of itself constitute a Change in
Control for purposes of the Agreement. For purposes of this paragraph only, the
term "person" refers to an individual or a corporation, partnership, trust,
association, joint venture, pool, syndicate, sole proprietorship, unincorporated
organization or any other form of entity not specifically listed herein.
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(g) "Code" shall mean the Internal Revenue Code of 1986, as amended.
(h) "Committee" shall mean both the Stock Option Committee appointed by
the Board in accordance with Paragraph 5(a) hereof, and the Board.
(i) "Common Stock" shall mean the common stock of the Company.
(j) "Company" shall mean Westwood Homestead Financial Corporation.
(k) "Continuous Service" shall mean the absence of any interruption or
termination of service as an Employee or Director of the Company or an
Affiliate. Continuous Service shall not be considered interrupted in the case of
sick leave, military leave or any other leave of absence approved by the
Company, in the case of transfers between payroll locations of the Company or
between the Company, an Affiliate or a successor, or in the case of a Director's
performance of services in an emeritus or advisory capacity.
(l) "Director" shall mean any member of the Board, and any member of
the board of directors of any Affiliate that the Board has by resolution
designated as being eligible for participation in this Plan.
(m) "Disability" shall mean a physical or mental condition, which in
the sole and absolute discretion of the Committee, is reasonably expected to be
of indefinite duration and to substantially prevent a Participant from
fulfilling his or her duties or responsibilities to the Company or an Affiliate.
(n) "Effective Date" shall mean the date specified in Paragraph 14
hereof.
(o) "Employee" shall mean any person employed by the Company, the Bank,
or an Affiliate.
(p) "Exercise Price" shall mean the price per Optioned Share at which
an Option or SAR may be exercised.
(q) "ISO" shall mean an option to purchase Common Stock which meets the
requirements set forth in the Plan, and which is intended to be and is
identified as an "incentive stock option" within the meaning of Section 422 of
the Code.
(r) "Market Value" shall mean the fair market value of the Common
Stock, as determined under Paragraph 7(b) hereof.
(s) "Non-Employee Director" shall have the meaning provided in Rule
16b-3.
(t) "Non-ISO" means an option to purchase Common Stock which meets the
requirements set forth in the Plan but which is not intended to be and is not
identified as an ISO.
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(u) "Option" means an ISO and/or a Non-ISO.
(v) "Optioned Shares" shall mean Shares subject to an Award granted
pursuant to this Plan.
(w) "Participant" shall mean any person who receives an Award pursuant
to the Plan.
(x) "Plan" shall mean this Westwood Homestead Financial Corporation
1997 Stock Option and Incentive Plan.
(y) "Rule 16b-3" shall mean Rule 16b-3 of the General Rules and
Regulations under the Securities Exchange Act of 1934, as amended.
(z) "Share" shall mean one share of Common Stock.
(aa) "SAR" (or "Stock Appreciation Right") means a right to receive the
appreciation in value, or a portion of the appreciation in value, of a specified
number of shares of Common Stock.
(bb) "Year of Service" shall mean a full twelve-month period, measured
from the date of an Award and each annual anniversary of that date, during which
a Participant has not terminated Continuous Service for any reason.
3. TERM OF THE PLAN AND AWARDS.
(a) Term of the Plan. The Plan shall continue in effect for a term of
ten years from the Effective Date, unless sooner terminated pursuant to
Paragraph 16 hereof. No Award shall be granted under the Plan after ten years
from the Effective Date.
(b) Term of Awards. The term of each Award granted under the Plan shall
be established by the committee, but shall not exceed 10 years; provided,
however, that in the case of an Employee who owns shares representing more than
10% of the outstanding Common Stock at the time an ISO is granted, the term of
such ISO shall not exceed five years.
4. SHARES SUBJECT TO THE PLAN.
(a) General Rule. Except as otherwise required under Paragraph 11, the
aggregate number of Shares deliverable pursuant to Awards shall not exceed 10%
of the Shares issued by the Company in connection with the Bank's conversion
from mutual to stock form. Such Shares may either be authorized but unissued
Shares, Shares held in treasury, or Shares held in a grantor trust created by
the Company. If any Awards should expire, become unexercisable, or be forfeited
for any reason without having been exercised, the Optioned Shares shall, unless
the Plan shall have been terminated, be available for the grant of additional
Awards under the Plan.
(b) Special Rule for SARs. The number of Shares with respect to which
an SAR is granted, but not the number of Shares which the Company delivers or
could deliver to an
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Employee or individual upon exercise of an SAR, shall be charged against the
aggregate number of Shares remaining available under the Plan; provided,
however, that in the case of an SAR granted in conjunction with an Option, under
circumstances in which the exercise of the SAR results in termination of the
Option and vice versa, only the number of Shares subject to the Option shall be
charged against the aggregate number of Shares remaining available under the
Plan. The Shares involved in an Option as to which option rights have terminated
by reason of the exercise of a related SAR, as provided in Paragraph 10 hereof,
shall not be available for the grant of further Options under the Plan.
5. ADMINISTRATION OF THE PLAN.
(a) Composition of the Committee. The Plan shall be administered by the
Committee, which shall consist of not less than two (2) members of the Board who
are Non-Employee Directors. Members of the Committee shall serve at the pleasure
of the Board. In the absence at any time of a duly appointed Committee, the Plan
shall be administered by the Board.
(b) Powers of the Committee. Except as limited by the express
provisions of the Plan or by resolutions adopted by the Board, the Committee
shall have sole and complete authority and discretion (i) to select Participants
and grant Awards, (ii) to determine the form and content of Awards to be issued
in the form of Agreements under the Plan, (iii) to interpret the Plan, (iv) to
prescribe, amend and rescind rules and regulations relating to the Plan, and (v)
to make other determinations necessary or advisable for the administration of
the Plan. The Committee shall have and may exercise such other power and
authority as may be delegated to it by the Board from time to time. A majority
of the entire Committee shall constitute a quorum and the action of a majority
of the members present at any meeting at which a quorum is present, or acts
approved in writing by a majority of the Committee without a meeting, shall be
deemed the action of the Committee.
(c) Agreement. Each Award shall be evidenced by a written agreement
containing such provisions as may be approved by the Committee. Each such
Agreement shall constitute a binding contract between the Company and the
Participant, and every Participant, upon acceptance of such Agreement, shall be
bound by the terms and restrictions of the Plan and of such Agreement. The terms
of each such Agreement shall be in accordance with the Plan, but each Agreement
may include such additional provisions and restrictions determined by the c
Committee, in its discretion, provided that such additional provisions and
restrictions are not inconsistent with the terms of the Plan. In particular, the
Committee shall set forth in each Agreement (i) the Exercise Price of an Option
or SAR, (ii) the number of Shares subject to the Award, and its expiration date,
(iii) the manner, time, and rate (cumulative or otherwise) of exercise or
vesting of such Award, and (iv) the restrictions, if any, to be placed upon such
Award, or upon Shares which may be issued upon exercise of such Award. The
Chairman of the Committee and such other Directors and officers as shall be
designated by the Committee are hereby authorized to execute Agreements on
behalf of the Company and to cause them to be delivered to the recipients of
Awards.
(d) Effect of the Committee's Decisions. All decisions, determinations
and interpretations of the Committee shall be final and conclusive on all
persons affected thereby.
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(e) Indemnification. In addition to such other rights of
indemnification as they may have, the members of the Committee shall be
indemnified by the Company in connection with any claim, action, suit or
proceeding relating to any action taken or failure to act under or in connection
with the Plan or any Award, granted hereunder to the full extent provided for
under the Company's governing instruments with respect to the indemnification of
Directors.
6. GRANT OF OPTIONS.
(a) General Rule. Employees and Directors shall be eligible to receive
Awards. In selecting those individuals to whom Awards will be granted and the
number of shares covered by such Awards, the Committee shall consider the
position, duties and responsibilities of the eligible individuals, the value of
their services to the Company and its Affiliates, and any other factors the
Committee may deem relevant. Notwithstanding the foregoing, the Committee shall
automatically make the Awards specified in Sections 6(b) and 9 hereof.
(b) Automatic Grants to Employees. On the Effective Date, each of the
following Employees shall receive an Option (in the form of an ISO, to the
extent permissible under the Code) to purchase the number of Shares listed
below, at an Exercise Price per Share equal to the Market Value of a Share on
the Effective Date; provided that such grant shall not be made to an Employee
whose Continuous Service terminates on or before the Effective Date:
Percentage of Shares
Participant Reserved under Paragraph 4(a)
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Michael P. Brennan 25.0%
John E. Essen 3.875%
Gerald T. Mueller 4.25%
With respect to each of the above-named Participants, the Option
granted to the Participant hereunder (i) shall vest in accordance with the
general rule set forth in Paragraph 8(a) of the Plan, (ii) shall have a term of
ten years from the Effective Date, and (iii) shall be subject to the general
rule set forth in Paragraph 8(c) with respect to the effect of a Participant's
termination of Continuous Service on the Participant's right to exercise his
Options.
(c) Special Rules for ISOs. The aggregate Market Value, as of the date
the Option is granted, of the Shares with respect to which ISOs are exercisable
for the first time by an Employee during any calendar year (under all incentive
stock option plans, as defined in Section 422 of the Code, of the Company or any
present or future Affiliate of the Company) shall not exceed $100,000.
Notwithstanding the foregoing, the Committee may grant Options in excess of the
foregoing limitations, in which case Options granted in excess of such
limitation shall be Non-ISOs.
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7. EXERCISE PRICE FOR OPTIONS.
(a) Limits on Committee Discretion. The Exercise Price as to any
particular Option shall not be less than 100% of the Market Value of the
Optioned Shares on the date of grant. In the case of an employee who owns Shares
representing more than 10% of the Company's outstanding Shares of Common Stock
at the time an ISO is granted, the Exercise Price shall not be less than 110% of
the Market Value of the Optioned Shares at the time the ISO is granted.
(b) Standards for Determining Exercise Price. If the Common Stock is
listed on a national securities exchange (including the NASDAQ National Market
System) on the date in question, then the Market Value per Share shall be the
average of the highest and lowest selling price on such exchange on such date,
or if there were no sales on such date, then the Exercise Price shall be the
mean between the bid and asked price on such date. If the Common Stock is traded
otherwise than on a national securities exchange on the date in question, then
the Market Value per Share shall be the mean between the bid and asked price on
such date, or, if there is no bid and asked price on such date, then on the next
prior business day on which there was a bid and asked price. If no such bid and
asked price is available, then the Market Value per Share shall be its fair
market value as determined by the Committee, in its sole and absolute
discretion.
8. EXERCISE OF OPTIONS.
(a) Generally. Unless otherwise provided by the Committee in the
underlying Agreement, each Option shall become exercisable with respect to
twenty percent (20%) of the Optioned Shares upon the date such Option is
granted, and with respect to twenty percent (20%) of the Optioned Shares upon
the Participant's completion of each of four Years of Service after the date of
grant. Notwithstanding the foregoing, an Option shall become fully (100%)
exercisable immediately upon a Change in Control or upon termination of the
Participant's Continuous Service due to the Participant's Disability, death, or
retirement. An Option may not be exercised for a fractional Share.
(b) Procedure for Exercise. A Participant may exercise Options, subject
to provisions relative to its termination and limitations on its exercise, only
by (1) written notice of intent to exercise the Option with respect to a
specified number of Shares, and (2) payment to the Company (contemporaneously
with delivery of such notice) in cash, in Common Stock, or a combination of cash
and Common Stock, of the amount of the Exercise Price for the number of Shares
with respect to which the Option is then being exercised. Each such notice (and
payment where required) shall be delivered, or mailed by prepaid registered or
certified mail, addressed to the Treasurer of the Company at its executive
offices. Common Stock utilized in full or partial payment of the Exercise Price
for Options shall be valued at its Market Value at the date of exercise, and may
consist of Shares subject to the Option being exercised. Upon a Participant's
exercise of an Option, the Company may, if provided by the Committee in the
underlying Agreement, pay to the Participant a cash amount up to but not
exceeding the amount of dividends, if any, declared on the underlying Shares
between the date of grant and the date of exercise of the Option.
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(c) Period of Exercisability. Except to the extent otherwise provided
in the terms of an Agreement, an Option may be exercised by a Participant only
while he is an Employee and has maintained Continuous Service from the date of
the grant of the Option, or within one year after termination of such Continuous
Service (but not later than the date on which the Option would otherwise
expire), except if the Employee's Continuous Service terminates by reason of -
(1) "Just Cause" which for purposes hereof shall have the meaning set
forth in any unexpired employment or severance agreement between
the Participant and the Bank and/or the Company (and, in the
absence of any such agreement, shall mean termination because of
the Employee's personal dishonesty, incompetence, willful
misconduct, breach of fiduciary duty involving personal profit,
intentional failure to perform stated duties, willful violation of
any law, rule or regulation (other than traffic violations or
similar offenses) or final cease-and-desist order), then the
Participant's rights to exercise such Option shall expire on the
date of such termination;
(2) death, then to the extent that the Participant would have been
entitled to exercise the Option immediately prior to his death,
such Option of the deceased Participant may be exercised within two
years from the date of his death (but not later than the date on
which the Option would otherwise expire) by the personal
representatives of his estate or person or persons to whom his
rights under such Option shall have passed by will or by laws of
descent and distribution;
(3) Disability, then to the extent that the Participant would have been
entitled to exercise the Option immediately prior to his or her
Disability, such Option may be exercised within one year from the
date of termination of employment due to Disability, but not later
than the date on which the Option would otherwise expire.
(d) Effect of the Committee's Decisions. The Committee's determination
whether a Participant's Continuous Service has ceased, and the effective date
thereof, shall be final and conclusive on all persons affected thereby.
(e) Mandatory Six-Month Holding Period. Notwithstanding any other
provision of this Plan to the contrary, common stock of the Company that is
purchased upon exercise of an Option or SAR may not be sold within the six-month
period following the grant of that Option or SAR, except in the event of the
Participant's death, Disability, or retirement, or upon a Change in Control.
9. GRANTS OF OPTIONS TO NON-EMPLOYEE DIRECTORS
(a) Automatic Grants. Notwithstanding any other provisions of this
Plan, each Director who is not an employee but is a Director on the Effective
Date shall receive, on said date, Non-ISOs to purchase a number of Shares equal
to the lesser of five percent (5%) of the number of Shares reserved under
Paragraph 4(a) hereof, and the quotient obtained by dividing -
(i) 30 percent (30%) of the number of Shares reserved under Paragraph
4(a) hereof, by
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(ii) the number of Directors entitled to receive an Option on the
Effective Date, pursuant to this Paragraph 9(a).
Such Non-ISOs shall have an Exercise Price per Share equal to the
Market Value of a Share on the date of grant.
(b) Terms of Exercise. Options received by a Director pursuant to this
Plan (i) shall become exercisable in accordance with paragraph 8(a) of the Plan,
and (ii) may be exercised from time to time by written notice of intent to
exercise the Option with respect to all or a specified number of the Optioned
Shares, and payment to the Company (contemporaneously with the delivery of such
notice), in cash, in Common Stock, or a combination of cash and Common Stock, of
the amount of the Exercise Price for the number of the Optioned Shares with
respect to which the Option is then being exercised. Each such notice and
payment shall be delivered, or mailed by prepaid registered or certified mail,
addressed to the Treasurer of the Company at the Company's executive offices.
Upon a Director's exercise of an Option, the Company may, if provided by the
Committee in the underlying Agreement and the exercise of discretion by the
Committee in that regard is consistent with the Plan's conformity with Rule
16b-3, pay to the Director a cash amount up to but not exceeding the amount of
dividends, if any, declared on the underlying Shares between the date of grant
and the date of exercise of the Option. A Director who exercises Options
pursuant to this Paragraph may satisfy all applicable federal, state and local
income and employment tax withholding obligations, in whole or in part, by
irrevocably electing to have the Company withhold shares of Common Stock, or to
deliver to the Company shares of Common Stock that he already owns, having a
value equal to the amount required to be withheld; provided that to the extent
not inconsistent herewith, such election otherwise complies with those
requirements of Paragraphs 8 and 20 hereof.
Options granted to a Director shall have a term of ten years; provided
that such Options shall expire one year after the date on which a Director
terminates Continuous Service on the Board for a reason other than death, but in
no event later than the date on which such Options would otherwise expire. In
the event of such Director's death during the term of his directorship, his
Options shall become immediately exercisable, and may be exercised within two
years from the date of his death by the personal representatives of his estate
or person or persons to whom his rights under such Option shall have passed by
will or by laws of descent and distribution, but in no event later than the date
on which such Options would otherwise expire. In the event of such Director's
Disability during his or her directorship, the Director's Option shall become
immediately exercisable, and such Option may be exercised within one year of the
termination of directorship due to Disability, but not later than the date that
the Option would otherwise expire. Unless otherwise inapplicable or inconsistent
with the provisions of this Paragraph, the Options to be granted to Directors
shall be subject to all other provisions of this Plan.
(c) Effect of the Committee's Decisions. The Committee's determination
whether a Participant's Continuous Service has ceased, and the effective date
thereof, shall be final and conclusive on all persons affected thereby.
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10. SARs (STOCK APPRECIATION RIGHTS)
(a) Granting of SARs. In its sole discretion, the Committee may from
time to time grant SARs to Participants either in conjunction with, or
independently of, any Options granted under the Plan. An SAR granted in
conjunction with an Option may be an alternative right wherein the exercise of
the Option terminates the SAR to the extent of the number of shares purchased
upon exercise of the Option and, correspondingly, the exercise of the SAR
terminates the Option to the extent of the number of Shares with respect to
which the SAR is exercised. Alternatively, an SAR granted in conjunction with an
Option may be an additional right wherein both the SAR and the Option may be
exercised. An SAR may not be granted in conjunction with an ISO under
circumstances in which the exercise of the SAR affects the right to exercise the
ISO or vice versa, unless the SAR, by its terms, meets all of the following
requirements:
(1) The SAR will expire no later than the ISO:
(2) The SAR may be for no more than the difference between the Exercise
Price of the ISO and the Market Value of the Shares subject to the
ISO at the time the SAR is exercised;
(3) The SAR is transferable only when the ISO is transferable, and
under the same conditions;
(4) The SAR may be exercised only when the ISO may be exercised; and
(5) The SAR may be exercised only when the Market Value of the Shares
subject to the ISO exceeds the Exercise Price of the ISO.
(b) Exercise Price. The Exercise Price as to any particular SAR shall
not be less than the Market Value of the Optioned Shares on the date of grant.
(c) Timing of Exercise. The provisions of Paragraph 8(c) regarding the
period of exercisability of Options are incorporated by reference herein, and
shall determine the period of exercisability of SARs.
(d) Exercise of SARs. An SAR granted hereunder shall be exercisable at
such times and under such conditions as shall be permissible under the terms of
the Plan and of the Agreement granted to a Participant, provided that an SAR may
not be exercised for a fractional Share. Upon exercise of an SAR, the
Participant shall be entitled to receive, without payment to the Company except
for applicable withholding taxes, an amount equal to the excess of (or, in the
discretion of the Committee if provided in the Agreement, a portion of) the then
aggregate Market Value of the number of Optioned Shares with respect to which
the Participant exercises the SAR, over the aggregate Exercise Price of such
number of Optioned Shares. This amount shall be payable by the Company, in the
discretion of the Committee, in cash or in Shares valued at the then Market
Value thereof, or any combination thereof.
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(e) Procedure for Exercising SARs. To the extent not inconsistent
herewith, the provisions of Paragraph 8(b) as to the procedure for exercising
Options are incorporated by reference, and shall determine the procedure for
exercising SARs.
11. EFFECT OF CHANGES IN COMMON STOCK SUBJECT TO THE PLAN.
(a) Recapitalizations; Stock Splits, Etc. The number and kind of shares
reserved for issuance under the Plan, and the number and kind of shares subject
to outstanding Awards, and the Exercise Price thereof, shall be proportionately
adjusted for any increase, decrease, change or exchange of Shares for a
different number or kind of shares or other securities of the Company which
results from a merger, consolidation, recapitalization, reorganization,
reclassification, stock dividend, split-up, combination of shares, or similar
event in which the number or kind of shares is changed without the receipt or
payment of consideration by the Company.
(b) Transactions in which the Company is Not the Surviving Entity. In
the event of (i) the liquidation or dissolution of the Company, (ii) a merger or
consolidation in which the Company is not the surviving entity, or (iii) the
sale or disposition of all or substantially all of the Company's assets (any of
the foregoing to be referred to herein as a "Transaction"), all outstanding
Awards, together with the Exercise Prices thereof, shall be equitably adjusted
for any change or exchange of Shares for a different number or kind of shares or
other securities which results from the Transaction.
(c) Special Rule for ISOs. Any adjustment made pursuant to
subparagraphs (a) or (b)(1) hereof shall be made in such a manner as not to
constitute a modification, within the meaning of Section 424(h) of the Code, of
outstanding ISOs.
(d) Conditions and Restrictions on New, Additional, or Different Shares
or Securities. If, by reason of any adjustment made pursuant to this Paragraph,
a Participant becomes entitled to new, additional, or different shares of stock
or securities, such new, additional, or different shares of stock or securities
shall thereupon be subject to all of the conditions and restrictions which were
applicable to the Shares pursuant to the Award before the adjustment was made.
(e) Other Issuances. Except as expressly provided in this Paragraph,
the issuance by the Company or an Affiliate of shares of stock of any class, or
of securities convertible into Shares or stock of another class, for cash or
property or for labor or services either upon direct sale or upon the exercise
of rights or warrants to subscribe therefor, shall not affect, and no adjustment
shall be made with respect to, the number, class, or Exercise Price of Shares
then subject to Awards or reserved for issuance under the Plan.
(f) Certain Special Dividends. The Exercise Price of shares subject to
outstanding Awards shall be proportionately adjusted upon the payment of a
special large and nonrecurring dividend that has the effect of a return of
capital to the stockholders, except that this subparagraph (f) shall not apply
to any dividend which is paid to the Participant pursuant to Paragraph 8(b) or
9(b) hereof.
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12. CHANGE OF CONTROL.
The terms of any Award which provide for its exercise or vesting in
installments shall immediately and permanently lapse on the date of a Change in
Control. Consequently, all Options and SARs shall become immediately exercisable
and fully vested on the date of the Change in Control. At the time of a Change
in Control, the Participant shall, at the discretion of the Committee, be
entitled to receive cash in an amount equal to the excess of the Market Value of
the Common Stock subject to such Option over the Exercise Price of such Shares,
in exchange for the cancellation of such Options or SARs by the Participant.
13. NON-TRANSFERABILITY OF AWARDS.
Awards may not be sold, pledged, assigned, hypothecated, transferred or
disposed of in any manner other than by will or by the laws of descent and
distribution. Notwithstanding the foregoing, or any other provision of this
Plan, a Participant who holds Awards may transfer such Awards to his or her
spouse, lineal ascendants, lineal descendants, or to a duly established trust
for the benefit of one or more of these individuals. Awards so transferred may
thereafter be transferred only to the Participant who originally received the
grant or to an individual or trust to whom the Participant could have initially
transferred the Awards pursuant to this Paragraph 13. Awards which are
transferred pursuant to this Paragraph 13 shall be exercisable by the transferee
according to the same terms and conditions as applied to the Participant.
14. TIME OF GRANTING AWARDS.
The date of grant of an Award shall, for all purposes, be the later of
the date on which the Committee makes the determination of granting such Award,
and the Effective Date. Notice of the determination shall be given to each
Participant to whom an Award is so granted within a reasonable time after the
date of such grant.
15. EFFECTIVE DATE.
The Plan shall become effective immediately upon its approval by a
favorable vote of stockholders owning at least a majority of the total votes
eligible to be cast at a duly called meeting of the Company's stockholders held
in accordance with applicable laws, provided that the Plan shall not be
submitted for such approval within the six-month period after the Bank completes
its mutual-to-stock conversion. No Awards may be made prior to approval of the
Plan by the stockholders of the Company.
16. MODIFICATION OF AWARDS.
At any time, and from time to time, the Board may authorize the
Committee to direct execution of an instrument providing for the modification of
any outstanding Award, provided no such modification shall confer on the holder
of said Award any right or benefit which could not be conferred on him by the
grant of a new Award at such time, or impair the Award without the consent of
the holder of the Award.
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17. AMENDMENT AND TERMINATION OF THE PLAN.
The Board may from time to time amend the terms of the Plan and, with
respect to any Shares at the time not subject to Awards, suspend or terminate
the Plan. No amendment, suspension or termination of the Plan shall, without the
consent of any affected holders of an Award, alter or impair any rights or
obligations under any Award theretofore granted.
18. CONDITIONS UPON ISSUANCE OF SHARES.
(a) Compliance with Securities Laws. Shares of Common Stock shall not
be issued with respect to any Award unless the issuance and delivery of such
Shares shall comply with all relevant provisions of law, including, without
limitation, the Securities Act of 1933, as amended, the rules and regulations
promulgated thereunder, any applicable state securities law, and the
requirements of any stock exchange upon which the Shares may then be listed.
(b) Special Circumstances. The inability of the Company to obtain
approval from any regulatory body or authority deemed by the Company's counsel
to be necessary to the lawful issuance and sale of any Shares hereunder shall
relieve the Company of any liability in respect of the non-issuance or sale of
such Shares. As a condition to the exercise of an Option or SAR, the Company may
require the person exercising the Option or SAR to make such representations and
warranties as may be necessary to assure the availability of an exemption from
the registration requirements of federal or state securities law.
(c) Committee Discretion. The Committee shall have the discretionary
authority to impose in Agreements such restrictions on Shares as it may deem
appropriate or desirable, including but not limited to the authority to impose a
right of first refusal or to establish repurchase or both of these restrictions.
19. RESERVATION OF SHARES.
The Company, during the term of the Plan, will reserve and keep
available a number of Shares sufficient to satisfy the requirements of the Plan.
20. WITHHOLDING TAX.
The Company's obligation to deliver Shares upon exercise of Options
and/or SARs shall be subject to the Participant's satisfaction of all applicable
federal, state and local income and employment tax withholding obligations. The
Committee, in its discretion, may permit the Participant to satisfy the
obligation, in whole or in part, by irrevocably electing to have the Company
withholding Shares, or to deliver to the Company Shares that he already owns,
having a value equal to the amount required to be withheld. The value of the
Shares to be withheld, or delivered to the Company, shall be based on the Market
Value of the Shares on the date the amount of tax to be withheld is to be
determined. As an alternative, the Company may retain, or sell without notice, a
number of such Shares sufficient to cover the amount required to be withheld.
-12-
<PAGE> 13
21. NO EMPLOYMENT OR OTHER RIGHTS.
In no event shall an Employee's or Director's eligibility to
participate or participation in the Plan create or be deemed to create any legal
or equitable right of the Employee, Director, or any other party to continue
service with the Company, the Bank, or any Affiliate of such corporations.
Except to the extent provided in Paragraphs 6(b) and 9(a), no Employee or
Director shall have a right to be granted an Award or, having received an Award,
the right to again be granted an Award. However, an Employee or Director who has
been granted an Award may, if otherwise eligible, be granted an additional Award
or Awards.
22. GOVERNING LAW.
The Plan shall be governed by and construed in accordance with the laws
of the State of Ohio, except to the extent that federal law shall be deemed to
apply.
-13-
<PAGE> 1
Exhibit 4.02
THIRD RESTATED
CERTIFICATE OF INCORPORATION
OF
CAMCO FINANCIAL CORPORATION
(A Delaware Corporation)
As Adopted May 26, 1987
The following provisions constitute the Third Restated
Certificate of Incorporation of Camco Financial Corporation, which was
originally incorporated on October l9, 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 authority to issue is two million (2,000,000), of which
stock one million nine hundred thousand (1,900,000) shares shall be common
shares of the par value of One Dollar ($1) each, amounting in the aggregate to
One Million Nine Hundred Thousand Dollars ($1,900,000), and one hundred thousand
(100,000) shares shall be preferred shares of the par value of One Dollar ($1)
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 of 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
<PAGE> 2
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
<PAGE> 3
(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 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.
<PAGE> 4
(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
(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
<PAGE> 5
(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 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
<PAGE> 6
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
(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
<PAGE> 7
(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.
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.
<PAGE> 8
This Third Restated Certificate of Incorporation was a adopted
by the stockholders of Camco Financial Corporation in accordance with the
provisions of Sections 242 and 245 of the General Corporation Law of Delaware
and was executed at Cambridge, Ohio on May 26, 1987.
/s/ Larry A. Caldwell
--------------------------------------
Larry A. Caldwell, President of
Camco Financial Corporation
ATTEST:
/s/ Anthony J. Popp
- -----------------------------
Anthony J. Popp, Secretary of
Camco Financial Corporation
<PAGE> 1
Exhibit 4.03
CERTIFICATE OF AMENDMENT
OF
THIRD RESTATED
CERTIFICATE OF INCORPORATION
Camco Financial Corporation, a corporation organized and
existing under and by virtue of the General Corporation Law of the State of
Delaware, DOES HEREBY CERTIFY:
FIRST: That at a meeting of the Board of Directors of Camco
Financial Corporation, resolutions were duly adopted setting forth a proposed
amendment to the Third Restated Certificate of Incorporation of said
corporation, declaring said amendment to be advisable and directing that the
amendment be considered at the next annual meeting of the stockholders. The
resolution setting forth the proposed amendment is as follows:
RESOLVED, that Article Fourth of the Corporation's Third
Restated Certificate of Incorporation be amended to read as follows:
FOURTH: The total number of shares of stock which the
corporation shall have authority to issue is Two Million Six
Hundred Thousand (2,600,000), of which stock Two Million Five
Hundred Thousand (2,500,000) shares shall be common shares of
the par value of One Dollar ($1) each, amounting in the
aggregate to Two Million Five Hundred Thousand Dollars
($2,500,000), and one hundred thousand (100,000) shares shall
be preferred shares of the par value of One Dollar ($1) 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.
SECOND: That thereafter, pursuant to resolution of its Board
of Directors, a special meeting of the stockholders of said corporation was duly
called and held, upon notice in accordance with Section 222 of the General
Corporation Law of the State of Delaware, at which meeting the necessary number
of shares as required by statute were voted in favor of the amendment.
THIRD: That said amendment was duly adopted in accordance with
the provisions of Section 242 of the General Corporation Law of the State of
Delaware.
<PAGE> 2
IN WITNESS WHEREOF, Camco Financial Corporation has caused
this certificate to be signed by Larry A. Caldwell, its President, and attested
by Anthony J. Popp, its Secretary, this 12th day of July, 1994.
By: /s/ Larry A. Caldwell
------------------------------
Larry A. Caldwell, President
ATTEST:
By: /s/ Anthony J. Popp
-----------------------------------
Anthony J. Popp, Secretary
<PAGE> 1
Exhibit 4.04
CERTIFICATE OF AMENDMENT
OF
THIRD RESTATED
CERTIFICATE OF INCORPORATION
Camco Financial Corporation, a corporation organized and
existing under and by virtue of the General Corporation Law of the State of
Delaware, DOES HEREBY CERTIFY:
FIRST: That at a meeting of the Board of Directors of camco
Financial Corporation, resolutions were duly adopted setting forth a proposed
amendment to the Third Restated Certificate of Incorporation of said
corporation, declaring said amendment to be advisable and directing that the
amendment be considered at a special annual meeting of the stockholders. The
resolution setting forth the proposed amendment is as follows:
RESOLVED, that Article Fourth of the Corporation's Third
Restated Certificate of Incorporation be amended to read as follows:
FOURTH: The total number of shares of stock which the
corporation shall have authority to issue is Five Million
(5,000,000), of which stock Four Million Nine Hundred Thousand
(4,900,000) shares shall be common shares of the par value of
One Dollar ($1) each, amounting in the aggregate to Four
Million Nine Hundred Thousand ($4,900,000) and one hundred
thousand (100,000) shares shall be preferred shares of the par
value of One Dollar ($1) 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.
<PAGE> 2
SECOND: That thereafter, pursuant to resolution of its Board
of Directors, a special meeting of the stockholders of said corporation was duly
called and held, upon notice in accordance with Section 222 of the General
Corporation Law of the State of Delaware, at which meeting the necessary number
of shares as required by statute were voted in favor of the amendment.
THIRD: That said amendment was duly adopted in accordance with
the provisions of Section 242 of the General Corporation Law of the State of
Delaware.
IN WITNESS WHEREOF, Camco Financial Corporation has caused
this certificate to be signed by Larry A. Caldwell, its President, and attested
by Anthony J. Popp, its Secretary, this 23rd day of September, 1996.
By: /s/ Larry A. Caldwell
----------------------------
Larry A. Caldwell, President
ATTEST:
By: /s/ Anthony J. Popp
--------------------------
Anthony J. Popp, Secretary
<PAGE> 1
Exhibit 4.05
CERTIFICATE OF AMENDMENT
OF
THIRD RESTATED
CERTIFICATE OF INCORPORATION
Camco Financial Corporation, a corporation organized and
existing under and by virtue of the General Corporation Law of the State of
Delaware, DOES HEREBY CERTIFY:
FIRST: That at a meeting of the Board of Directors of Camco
Financial Corporation, a resolution was duly adopted setting forth a proposed
amendment to the Third Restated Certificate of Incorporation of said
corporation, declaring said amendment to be advisable and directing that the
amendment be considered at the 1998 annual meeting of the stockholders. The
resolution setting forth the proposed amendment is as follows:
RESOLVED, that Article Fourth of the Corporation's Third
Restated Certificate of Incorporation be amended to read as follows:
FOURTH: The total number of shares of stock which the
corporation shall have the authority to issue is Nine Million
(9,000,000), of which stock Eight Million Nine Hundred
Thousand (8,900,000) shares shall be common shares of the par
value of One Dollar ($1.00) each, amounting in the aggregate
to Eight Million Nine Hundred Thousand Dollars ($8,900,000),
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.
SECOND: That thereafter, at the 1998 annual meeting of
stockholders of said corporation, which was duly called and held, upon notice in
accordance with Section 222 of the General Corporation Law of the State of
Delaware, the necessary number of shares as required by statute were voted in
favor of the amendment.
THIRD: That said amendment was duly adopted in accordance with
the provisions of Section 242 of the General Corporation law of the State of
Delaware.
<PAGE> 2
IN WITNESS WHEREOF, Camco Financial Corporation has caused
this certificate to be signed by Larry A. Caldwell, its President, and attested
by Anthony J. Popp, its Treasurer, this 29th day of May, 1998.
By: /s/ Larry A. Caldwell
----------------------------
Larry A. Caldwell, President
ATTEST:
By: /s/ Anthony J. Popp
--------------------------
Anthony J. Popp, Secretary
<PAGE> 1
Exhibit 4.06
CERTIFICATE OF AMENDMENT
OF
THIRD RESTATED
CERTIFICATE OF INCORPORATION
Camco Financial Corporation, a corporation organized and
existing under and by virtue of the General Corporation Law of the State of
Delaware, DOES HEREBY CERTIFY:
FIRST: That at a meeting of the Board of Directors of Camco
Financial Corporation, a resolution was duly adopted setting forth a proposed
amendment to the Third Restated Certificate of Incorporation of said
corporation, declaring said amendment to be advisable and directing that the
amendment be considered at a special meeting of the stockholders. The resolution
setting forth the proposed amendment is as follows:
RESOLVED, that Article Fourth of the Corporation's Third
Restated Certificate of Incorporation be amended to read as follows:
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.
SECOND: That thereafter, pursuant to resolution of its Board
of Directors, a special meeting of the stockholders was duly called and held,
upon notice in accordance with Section 222 of the General Corporation Law of the
State of Delaware, at which meeting the necessary number of shares as required
by statute were voted in favor of the amendment.
THIRD: That said amendment was duly adopted in accordance with
the provisions of Section 242 of the General Corporation law of the State of
Delaware.
<PAGE> 2
IN WITNESS WHEREOF, Camco Financial Corporation has caused
this certificate to be signed by Larry A. Caldwell, its President, and attested
by Gary E. Crane, its Treasurer, this 20th day of December, 1999.
By: /s/ Larry A. Caldwell
----------------------------
Larry A. Caldwell, President
ATTEST:
By: /s/ Gary E. Crane
------------------------
Gary E. Crane, Treasurer
<PAGE> 1
Exhibit 5.01
[VORYS, SATER, SEYMOUR & PEASE LETTERHEAD]
DIRECT DIAL (513) 723-4000
January 4, 2000
Camco Financial Corporation
6901 Glenn Highway
Cambridge, Ohio 43725-9757
Re: Registration Statement on Form S-8
of Camco Financial Corporation
----------------------------------
Ladies and Gentlemen:
We refer to the registration statement on Form S-8
("Registration Statement"), under the Securities Act of 1933, as amended (the
"Securities Act") filed by Camco Financial Corporation, a Delaware corporation
(the "Company"), with respect to the proposed offering by the Company of up to
311,794 shares (the "Shares") of the common stock of the Company, $1.00 par
value per share (the "Common Stock"), subject to issuance by the Company upon
exercise of options granted under the Westwood Homestead Financial Corporation
1997 Stock Option Plan (the "Plan"), assumed by the Company pursuant to the
terms of the Agreement of Merger and Plan of Reorganization, dated as of August
6, 1999, among the Company, Westwood Homestead Financial Corporation and The
Westwood Homestead Savings Bank.
We have examined the originals or certified copies of such
corporate records, certificates of officers of the Company and/or public
officials and such other documents and have made such other factual and legal
investigations as we have deemed relevant and necessary as the basis for the
opinions set forth below. In such examination, we have assumed the genuineness
of all signatures, the authenticity of all documents submitted to us as
originals, the conformity to original documents of all documents submitted to us
as conformed or photostatic copies and the authenticity of the originals of such
copies.
Based on our examination mentioned above, subject to the
assumptions stated above and relying on the statements of fact contained in the
documents that we have examined, we are of the opinion that (i) the issuance by
the Company of the Shares has been duly
<PAGE> 2
Camco Financial Corporation
January 4, 2000
Page 2
authorized and (ii) when issued in accordance with the terms of the Plan, the
Shares will be duly and validly issued, fully paid and non-assessable shares of
Common Stock.
We are admitted to practice in the State of Ohio, and are not
admitted to practice in the State of Delaware. However, for the limited purposes
of our opinion set forth above, we are generally familiar with the General
Corporation Law of the State of Delaware (the "DGCL") as presently in effect and
have made such inquiries as we consider necessary to render this opinion with
respect to a Delaware corporation. This opinion letter is limited to the laws of
the State of Delaware and, to the limited extent set forth above, the DGCL, as
such laws presently exist and to the facts as they presently exist. We express
no opinion with respect to the effect or applicability of the laws of any other
jurisdiction. We assume no obligation to revise or supplement this opinion
letter should the laws of such jurisdiction be changed after the date hereof by
legislative action, judicial decision or otherwise.
We hereby consent to the filing of this opinion as an exhibit
to the Registration Statement. In giving this consent, we do not admit that we
are within the category of persons whose consent is required under Section 7 of
the Securities Act or the General Rules and Regulations of the Securities and
Exchange Commission.
Very truly yours,
/s/ Vorys, Sater, Seymour and Pease LLP
Vorys, Sater, Seymour and Pease LLP
<PAGE> 1
Exhibit 23.02
ACCOUNTANTS' CONSENT
We have issued our report dated February 25, 1999, accompanying the consolidated
financial statements of Camco Financial Corporation which are incorporated
within the Annual Report on Form 10-K for the year ended December 31, 1998. We
hereby consent to the incorporation by reference of said report in Camco's Form
S-8.
/s/ Grant Thornton LLP
Cincinnati, Ohio
January 4, 2000
