EMPLOYMENT AGREEMENT
EXHIBIT 10
THIS Employment Agreement (this “Agreement”) is entered into effective the 31st day
of December, 2008 (the “Effective Date), by and among Camco Financial Corporation, a bank holding
company incorporated under the laws of the State of Delaware (“Holding Company”), Advantage Bank, a
bank incorporated under the laws of the State of Ohio and a wholly-owned subsidiary of Holding
Company (“Advantage”), the principal office of which are located at 0000 Xxxxx Xxxxxxx, Xxxxxxxxx,
Xxxx, and Xxxxx X. Xxxxxx (the “Executive”), an individual whose residential address is 0000
Xxxxxxxxxx Xxx., Xxxxxxxxxxx, Xxxx 00000.
W I T N E S S E T H:
WHEREAS, the Executive has assumed the responsibilities of President and Chief Executive
Officer of Holding Company and Advantage (collectively, “Camco”) effective December 31, 2008; and
WHEREAS, as a result of the skill, knowledge, experience and performance of the Executive,
Camco desires to retain the services of the Executive as President and Chief Executive Officer in
accordance with the terms and conditions of this Agreement;
NOW, THEREFORE, in consideration of the mutual covenants herein contained and other good and
valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Camco and the
Executive agree as follows:
1. Employment and Term. The Executive is employed as the President and Chief Executive
Officer of Camco, and the Executive hereby accepts employment as the President and Chief Executive
Officer of Camco, pursuant to the terms and conditions of this Agreement. The term of employment
(the “Employment Term”) shall begin on December 31, 2008, and shall renew daily, such that the
remaining unexpired term of the Agreement shall always be twenty-four (24) months, until the date
that Camco gives the Executive written notice of non-renewal (“Non-Renewal Notice”). The
Employment Term shall end on the date that is twenty-four (24) months after the date of the
Non-Renewal Notice, unless the parties agree that the Employment Term shall end on an earlier date.
Each year, at a time of its choosing, Camco’s Board of Directors (the “Board”) or a committee
thereof will conduct a performance evaluation of the Executive, and the results of such review
shall be noted in the minutes of the meeting of the Board.
2. Duties of Executive.
(a) General Duties and Responsibilities. The Executive shall serve as the President
and Chief Executive Officer of Camco; shall perform the duties and responsibilities customary for
such offices to the best of his ability and in accordance with (i) the policies established by the
Board and (ii) all applicable laws and regulations; and shall perform such other duties not
inconsistent with his position as may be assigned to him from time to time by the Board.
(b) Devotion of Time to Camco’s Business. The Executive shall devote his entire
productive time, ability and attention during normal business hours throughout the Employment Term
to the faithful performance of his duties under this Agreement subject to the direction of the
Board. The Executive shall not directly or indirectly render any services of a business, commercial
or professional nature to any person or organization without the prior written consent of the
Board; provided, however, that the Executive shall not be precluded from: (i) vacations and other
leave time in accordance with Section 3(e) hereof; (ii) reasonable participation in community,
civic, charitable or similar organizations; (iii) reasonable participation in industry-related
activities including, but not limited to, attending industry trade association (national and state)
conventions, conferences and committee meetings, and holding positions of responsibility therein;
(iv) serving as an officer and/or director of Camco’s subsidiaries; or (v) the pursuit of personal
investments that do not interfere or conflict with the performance of the Executive’s duties for
Camco.
3. Compensation, Benefits and Reimbursements.
(a) Salary. The Executive shall receive an annual salary payable in equal
installments not less often than monthly. The amount of the annual salary shall be $295,000 until
changed by the Board. Each year throughout the Employment Term, the amount of the Executive’s
annual salary shall be reviewed by the Board or a committee thereof, and
shall be set at an amount not less than $295,000, based upon the Executive’s responsibilities
and individual performance and the overall profitability and financial condition of Camco (the
“Annual Review”). The result of the Annual Review shall be reflected in the minutes of the Board.
(b) Equity. On the 15th business day following execution of this Agreement
(the “Grant Date”), Camco shall award the Executive: (i) 50,000 shares of Holding Company common
stock pursuant to a Restricted Stock Award Agreement under which the award will vest in equal
annual installments over a period of four years, as shown in the table, below; and (ii) an option
to acquire 75,000 shares of Holding Company common stock pursuant to a stock option award agreement
under which the option will be immediately exercisable at an exercise price equal to the fair
market value on the date of grant; such option award shall provide for a term of not less than ten
(10) years from the date of grant and shall permit Executive to exercise the options whether or not
the Executive remains employed by Camco in any capacity. The vesting schedule referenced above is
as follows:
Restricted Stock Award Vesting Schedule:
| Vested Shares | Vesting Date | |
12,500 shares |
First anniversary of the Grant Date | |
12,500 shares |
Second anniversary of the Grant Date | |
12,500 shares |
Third anniversary of the Grant Date | |
12,500 shares |
Fourth anniversary of the Grant Date |
Notwithstanding the foregoing vesting schedule, one hundred percent (100%) of Executive’s
Restricted Stock Award shall immediately vest in the event of either (a) a Change in Control or (b)
the involuntary termination of Executive’s employment by Camco without Just Cause.
(c) Expenses. In addition to any compensation received under Section 3(a), Camco
shall pay or reimburse the Executive for all reasonable travel, entertainment and miscellaneous
expenses incurred in connection with the performance of his duties under this Agreement including
participation in industry-related activities. Such reimbursement shall be made in accordance with
the existing policies and procedures of Camco pertaining to reimbursement of expenses to senior
management officials, which policies and procedures fully comply with the requirements of Code
section 409A and the Treasury Regulations promulgated thereunder. Subject to the foregoing, upon
submission of reasonable supporting documentation, Camco shall reimburse the Executive for the
reasonable legal fees (based on hourly rates) incurred by him in connection with the initial
negotiation and preparation of this Agreement, provided that in no event shall the amount of such
reimbursement exceed $15,000.
(d) Employee Benefit Plans and Performance Bonuses.
(i) Employee Benefit Program. During the term, the Executive shall be eligible to participate
in all formally established employee benefit, bonus, pension and profit-sharing plans and similar
programs that are maintained by Camco from time to time, including programs in respect of group
health, disability or life insurance, reimbursement of membership fees in civic, social and
professional organizations and all employee benefit plans or programs hereafter adopted in writing
by the Board, for which senior management personnel are eligible, including any employee stock
ownership plan, stock option plan or other stock benefit plan (collectively, the “Benefit Plans”).
Notwithstanding the foregoing, the Board may discontinue or terminate at any time any such
Benefit Plans, now existing or hereafter adopted, to the extent permitted by the terms of such
plans and shall not be required to compensate the Executive for such discontinuance or termination.
(ii) Performance Bonuses. The Executive’s eligibility for any cash or equity incentive award
(collectively “Performance Bonuses”) shall be subject to mutually agreed upon corporate performance
objectives. The amount of cash awards payable under such Performance Bonuses shall be based upon
performance targets established by mutual agreement. Cash Performance Bonus awards shall range
from 0% to 150% of the Executive’s base salary. Executive shall be eligible to earn an Equity
Performance Bonus Award of options for shares equaling up to 200% of Executive’s base salary upon
meeting mutually agreed performance targets.
(e) Vacation and Sick Leave. The Executive shall be entitled, without loss of pay, to
be absent voluntarily from the performance of his duties under this Agreement, subject to the
following conditions:
(i) The Executive shall be entitled to vacation, the duration of which shall not be less than
four weeks each calendar year;
(ii) Vacation time shall be scheduled by the Executive in a reasonable manner . The Executive
shall not be entitled to receive any additional compensation from Camco in the event of his failure
to take the full allotment of vacation time in any calendar year nor shall unused vacation time be
carried over into any succeeding calendar year; and
(iii) The Executive shall be entitled to annual sick leave as established by the Board for
senior management officials of Camco. In the event that any sick leave time shall not have been
used during any calendar year, such leave shall accrue to subsequent calendar years only to the
extent authorized by the Board. Upon termination of his employment, the Executive shall not be
entitled to receive any additional compensation from Camco for unused sick leave.
(f) Automobile. During the Employment Term, the Executive shall be entitled to the
full-time use of a company-owned automobile. Camco shall be responsible for the automobile’s
maintenance and fuel costs, for the cost of obtaining collision and liability insurance for the
automobile, as well as additional expenses, as and if permitted by Camco policies, as they may be
amended from time to time. Reimbursements to Executive hereunder shall be subject to the existing
Code section 409A-compliant policies and procedures of Camco under Section 3(c), above.
(g) Club Membership. During the Employment Term, Camco shall pay the Executive’s
membership dues at the Cambridge Country Club and one other mutually agreed upon club in Columbus,
Ohio, provided that the aggregate amount of dues paid by Camco shall not exceed $8,000 per year and
shall not include any other costs, expenses or assessments. Reimbursements to Executive hereunder
shall be subject to the existing Code section 409A-compliant policies and procedures of Camco under
Section 3(c), above.
(h) Salary Continuation. As soon as practicable after the date of this Agreement,
Camco and the Executive shall enter into a salary continuation agreement that provides for a
benefit vesting 20% each year over a five year period. Upon full vesting and the termination of
the Employment Term (except where such termination is for Just Cause), the Executive’s payment
shall equal $20,000 per year for 15 years. Executive shall not be eligible for any Salary
Continuation under this section in the event he is terminated for Just Cause, as that term is
defined in this Agreement. The Salary Continuation benefit and the vesting thereof are illustrated
as follows:
| Vested Benefit | Vesting Date | |
$4,000 per year
|
First anniversary of Effective Date | |
$8,000 per year
|
Second anniversary of Effective Date | |
$12,000 per year
|
Third anniversary of Effective Date | |
$16,000 per year
|
Fourth anniversary of Effective Date | |
$20,000 per year
|
Fifth anniversary of Effective Date |
Notwithstanding the foregoing vesting schedule, one hundred percent ($100%) of Executive’s
Salary Continuation benefit shall immediately vest in the event of either (a) a Change in Control
or (b) the involuntary termination of Executive’s employment by Camco without Just Cause.
4. Termination of Employment. In addition to Camco’s right to terminate the employment
of the Executive at the end of the Employment Term, Camco may terminate the employment of the
Executive at any other time during the Employment Term. In the event that Camco terminates the
employment of the Executive during the Employment Term because of the Executive’s personal
dishonesty, incompetence, willful misconduct, breach of fiduciary duty involving personal profit,
intentional failure or refusal to perform the duties and responsibilities assigned in this
Agreement, willful violation of any law, rule, regulation or final cease-and-desist order (other
than traffic violations or similar offenses), conviction of a felony or for fraud or embezzlement,
refusal to perform the duties and responsibilities assigned in this Agreement, or material breach
of any provision of this Agreement (collectively, “Just Cause”), the Executive shall have no right
to receive any compensation or other benefits for any period after such termination. If Camco
terminates the employment of the Executive during the Employment Term for any reason other than
Just Cause, or if the Executive terminates his employment for Good Reason (hereinafter defined),
the Executive shall be entitled to the following:
(a) General. For purposes of this Agreement, (i) a termination of employment shall
mean the Executive’s separation from service, as that phrase is defined in Section 409A of the
Internal Revenue Code of 1986, as amended (the “Code”) and Treasury Regulation (“Treas. Reg.”)
Section 1.409A-1(h) and based on the presumptions set forth therein; and (ii) any reference to a
termination by or from Camco shall include a termination by or from Camco, and any other entity
that, along with Camco, would be considered a “service recipient” within the meaning of Section
409A of the Code and Treas. Reg. Section 1.409A-1(f).
(b) Termination After Change of Control. If, in connection with or within one year of
a Change of Control (hereinafter defined) of Camco, Camco terminates the employment of the
Executive for any reason other than Just Cause, or if the Executive elects to terminate his
employment for Good Reason, then the following shall occur:
(i) Camco shall promptly, but no more than thirty (30) days following the Executive’s
termination, pay to the Executive or to his beneficiaries, dependents or estate an amount equal to
two (2.0) times the Executive’s “base amount” as such term is defined in Section 280G of the
Internal Revenue Code of 1986, as amended, and the Treasury Regulations promulgated thereunder;
moreover, an additional amount not to exceed 0.99 times the Executive’s “base amount,” may be
awarded at the complete discretion of the Board, such that the total amount payable under the
forepart of this paragraph shall not exceed 2.99 times the Executive’s “base amount”.
Notwithstanding the foregoing, if a Change of Control occurs prior to December 31, 2010 and the
value of the total stock and cash consideration to be received in exchange for each share of
Holding Company common stock is less than $8.00 on the earlier of (A) the date an agreement for the
Change of Control is executed or (B) the date the Change of Control occurs, then the Executive’s
termination pay shall instead be an amount equal to one (1.0) times the Executive’s “base amount”
plus an additional amount not to exceed 0.5 times Executives “base amount” (which latter amount may
be awarded at the complete discretion of the Board), such that the total amount payable under the
second part of this paragraph shall not exceed 1.50 times the Executive’s “base amount.”
(ii) Camco shall provide to the Executive and his eligible dependents health, life and
disability insurance benefits substantially equal to those being provided to the Executive and his
eligible dependents immediately prior to the occurrence of the Change of Control, at Camco’s
expense and as if the Executive were still employed under this Agreement until the earliest of (A)
18 months or (B) that date on which the Executive is eligible to be included in another employer’s
benefit plans as a full-time employee. In no event shall this period extend beyond the period of
time during which the Executive would be entitled to continuation coverage under the group health
plan of Camco under Section 4980B (COBRA) of the Code. The continuation of life and disability
insurance benefits shall be subject to the following: (1) the benefits provided during any taxable
year of the Executive may not affect the benefits to be provided in any other taxable year of the
Executive; (2) any payment or reimbursement with respect to a benefit shall be made on or before
the last day of the taxable year of the Executive following the taxable year of the Executive in
which the expense being paid or reimbursed was incurred; and (3) the right to a benefit may not be
subject to liquidation or exchange for another benefit.
The Executive shall not be required to mitigate the amount of any payment provided for in this
Agreement, whether in this paragraph or elsewhere in this Agreement, by seeking other employment or
otherwise, nor shall any amounts received from other employment or otherwise by the Executive
offset in any manner the obligations of Camco hereunder, except as specifically stated in
subsection (ii) of this subsection (b).
A “Change of Control” shall mean any one of the following events: (A) the acquisition of
ownership or power to vote more than 50% of the voting stock of Holding Company or Advantage; (B)
the acquisition of the ability to control the election of a majority of the directors of Holding
Company or Advantage; (C) during any period of two consecutive years, individuals who at the
beginning of such period constitute the Board of Directors of Holding Company or Advantage cease
for any reason to constitute at least a majority thereof; provided, however, that any individual
whose election or nomination for election as a member of the Board of Directors of Holding Company
or Advantage was approved by a vote of at least two-thirds of the directors then in office shall be
considered to have continued to be a member of the Board of Directors of Holding Company or
Advantage; (D) the merger of either of Holding Company or Advantage into, or the consolidation of
either of Holding Company or Advantage with, another corporation, or the merger of another
corporation into either of Holding Company or Advantage, on a basis whereby less than 50% of the
total voting power of the surviving corporation is represented by shares held by former
stockholders of Holding Company prior to such merger or consolidation; (E) the acquisition by any
person or entity of the power to direct either of Advantage’s management or policies, if the Board
of Directors has made a determination that such acquisition constitutes or will constitute an
acquisition of control of either of Holding Company or Advantage for the purpose of the Bank
Holding Company Act or the Change in Bank Control Act and the regulations thereunder; or (F)
Advantage shall have sold substantially all of its assets. For purposes of this paragraph, the
term “person” refers to an individual or corporation, partnership, trust, association, joint
venture, pool, syndicate or other
organization or entity. For purposes of this Agreement and in the context of a Change of Control,
the term “substantially all” means at least 80%.
Notwithstanding the foregoing, in no event shall the ownership of stock of Advantage by
Holding Company or the ownership of stock of Holding Company by an employee benefit plan sponsored
or maintained by Advantage or Holding Company constitute a Change of Control.
“Good Reason” shall be deemed to exist if, within one year following a Change of Control, any
of the following occurs, without the prior written consent of the Executive: (A) a material
diminution in the Executive’s base compensation; (B) a material diminution in the Executive’s
authority, duties, or responsibilities as President and Chief Executive Officer; (C) a requirement
that the Executive report to a corporate officer or employee instead of reporting directly to the
Board; (D) a material change in the geographic location at which the Executive must perform the
services; or (E) any other action or inaction that constitutes a material breach of this Agreement.
Notwithstanding the foregoing, Good Reason shall not exist unless the Executive provides Camco
with notice of the existence of the condition constituting Good Reason within a period not to
exceed 90 days of the initial existence of the condition and gives Camco a period of at least 30
days during which it may remedy the condition and not be required to pay the compensation or
provide the benefits described in this Section.
(c) Termination without Change of Control. In the event Camco terminates the
employment of the Executive for any reason other than Just Cause and the termination is not covered
by the provisions of subsections (b), (d) or (e) of this Section 4, Camco shall be obligated to (i)
pay to the Executive a lump sum payment equal to Executive’s then current annual salary for the
number of months remaining in the Employment Term as of the date of the termination within ninety
(90) days following the date of the Executive’s termination; and (ii) provide to the Executive and
his eligible dependents, at Camco’s expense and subject to the provisions of Section 4(b)(ii),
health, life and disability insurance benefits substantially equal to those being provided to the
Executive and his eligible dependents at the date of termination of his employment until the
earliest of (A) 18 months, (B) the end of the Employment Term under this Agreement pursuant to
Section 1 of this Agreement or (C) that date on which the Executive is eligible to be included in
another employer’s benefit plans as a full-time employee. The payments described in this Section
4(c) shall first be treated as “separation pay” within the meaning of Section 409A to the maximum
extent permitted by law.
(d) Death of the Executive. The Employment Term automatically terminates upon the
death of the Executive. In the event of such death, the Executive’s estate shall be entitled to
receive the compensation due the Executive through the last day of the calendar month in which the
death occurred, which shall be payable in a lump sum within thirty (30) days following the date of
the Executive’s death.
(e) Medically Diagnosable Condition: Inability of the Executive to Perform Duties.
If the Executive is unable to perform his duties as set forth in Section 2 of this Agreement
because of a medically diagnosable physical or mental condition for a period of one hundred eighty
(180) consecutive days or more, Camco shall have the right to terminate the employment of the
Executive by giving him written notice. In the event that the employment of the Executive is
terminated by Camco before the end of the Employment Term as provided in this Section 4(e), and if
the Executive signs a mutual general release as required by Section 4(g) of this Agreement, Camco
shall be obligated: (i) to pay to the Executive a lump sum payment equal to 50% of his then
current annual salary, within ninety (90) days following the date of the Executive’s termination;
and (ii) provided the Executive and/or any eligible dependents properly elect COBRA coverage, until
the earlier of the 18 month anniversary of the termination of the Executive’s employment or the
Executive’s becoming employed full-time by another employer, to provide to the Executive and/or his
dependents at the Executive’s expense and subject to the provisions of Section 4(b)(ii), health,
life and disability benefits substantially equal to those being provided to the Executive at the
date of termination of his employment. Camco’s obligation to provide life and disability benefits
shall be contingent on the Executive and/or his dependents being insurable at standard rates and
being insurable in Camco’s group insurance plans. The Executive shall not be entitled to payment
pursuant to this section if the Executive voluntarily terminates his employment due to such a
medically diagnosable physical or mental condition.
(f) “Golden Parachute” Provisions.
(i) Any payments made to the Executive pursuant to this Agreement, or otherwise, are subject
to and conditioned upon their compliance with 12 U.S.C. Section 1828(k) and applicable regulations
of the Federal Deposit Insurance Corporation or the Board of Governors of the Federal Reserve.
(ii) In the event that payments pursuant to Section 4, alone or in combination with any other
compensation, would result in the imposition of a penalty tax pursuant to Section 280G(b)(3) of the
Code and the regulations promulgated thereunder (collectively, “Section 280G”), such payments shall
be reduced to the maximum amount that may be paid under Section 280G without exceeding such limits.
For purposes of this Section, any determination that a payment is subject to Section 280G and any
determination of the maximum amount that may be paid under Section 280G shall be made in writing by
the principal certified accounting firm selected by Camco in its sole discretion. In the event a
reduction in payments is necessary in order to comply with the requirements of this Agreement
relating to the limitations of Section 280G or applicable regulatory limits, the reduction shall be
made consistent with the requirements of Section 409A. In the event that a reduction in payments
is necessary in order to comply with the requirements of this Agreement relating to the limitations
of Section 280G of the Code or applicable regulatory limits, the limitation shall first be applied
to reduce payments that are not subject to Section 409A of the Code and, thereafter, shall be
applied to reduce payments that are subject to Section 409A of the Code on a pro rata basis.
(g) Payments Conditioned on General Mutual Release. As a condition precedent to the
payment by Camco to the Executive of any amounts and/or the providing to the Executive and/or his
dependents any benefits provided in Section 4 of this Agreement, the Executive and Camco shall
execute a valid General Mutual Release of any and all claims by and between the parties in a form
prescribed by Camco, which shall be signed and returned to Camco within 45 days after the
Executive’s termination.
5. Special Regulatory Events. Notwithstanding Section 4 of this Agreement, the
obligations of Camco to the Executive shall be as follows in the event of the following
circumstances:
(a) If the Executive is suspended and/or temporarily prohibited from participating in the
conduct of Camco’s affairs by a notice served under Section 8(e)(3) or (g)(1) of the Federal
Deposit Insurance Act (the “FDIA”), Camco’s obligations under this Agreement shall be suspended as
of the date of service of such notice, unless stayed by appropriate proceedings. If the charges in
the notice are dismissed, Camco may, in its discretion, pay the Executive all or part of the
compensation withheld while the obligations in this Agreement were suspended and reinstate, in
whole or in part, any of the obligations that were suspended.
(b) If the Executive is removed and/or permanently prohibited from participating in the
conduct of Camco’s affairs by an order issued under Section 8(e)(4) or (g)(1) of the FDIA, all
obligations of Camco under this Agreement shall terminate as of the effective date of such order;
provided, however, that vested rights of the Executive shall not be affected by such termination.
6. Consolidation. Merger or Sale of Assets. Nothing in this Agreement shall preclude
Camco from voluntarily or involuntarily consolidating with, merging into, or transferring all, or
substantially all, of its assets to another corporation that assumes all of Camco’s obligations and
undertakings hereunder. Upon such a consolidation, merger or transfer of assets, the term “Camco”
as used in this Agreement, shall mean such other corporation or entity and this Agreement shall
continue in full force and effect.
7. Confidential Information. The Executive acknowledges that during his employment he
has learned, will learn and will have access to confidential information regarding Camco and its
customers and business. The Executive agrees and covenants not to disclose or use for his own
benefit or the benefit of any other person or entity any confidential information, unless or until
Camco consents to such disclosure or use or such information becomes common knowledge in the
industry or is otherwise legally in the public domain. The Executive shall not knowingly disclose
or reveal to any unauthorized person any confidential information relating to Camco, its
subsidiaries or affiliates, or to any of the businesses operated by them, and the Executive
confirms that such information constitutes the exclusive property of Camco. The Executive shall not
otherwise knowingly act or conduct himself (i) to the material detriment of Camco, its subsidiaries
or affiliates or (ii) in a manner which is inimical or contrary to the interests of Camco.
8. Non-Competition and Non-Solicitation.
(a) During the Employment Term of this Agreement, and for a period of 24 months following the
termination of the Executive’s employment with Camco, and regardless of the reason for that
termination, the Executive covenants and agrees not to, either directly or indirectly, for himself
or through, on behalf of, or in conjunction with, any person, persons, or organization, (i) own,
operate, maintain, consult with, be employed by engage in, or have any other interest (whether as
an owner, shareholder, officer, director, partner, member, employee, joint venturer, beneficiary,
independent contractor, agent, or any other interest) and whether or not for compensation engage in
any Competing Business,
(ii) solicit, contact, call upon, communicate with or attempt to communicate with any Customer
of Camco for the purpose of providing products and/or services provided to its Customers of Camco,
and/or (iii) solicit any person who is then an employee of Camco or who has been an employee of
Camco at any time within the six months of such solicitation for the purpose of inducing such
person to become an employee of, consultant to, or contractor for a Competing Business. For
purposes of this Agreement, Competing Business means any person, business, firm, or enterprise
located within a twenty-five (25) mile radius of Cambridge, Ohio, that is engaged in or is about to
become engaged in the banking and/or financial services industry, including but not limited to,
financial accounts, loans, credit and debit cards, employee benefits administration, payroll
processing, merchant accounts, investment and brokerage services, financial planning, trust and
estate services, retirement planning, and insurance products and services . Customer means each
and every person who, or entity which, at any time during the 18 months immediately preceding the
termination of the Executive’s employment with Camco did business with Camco.
(b) The Executive and Camco agree that: (i) the covenants and agreements of the Executive
contained in this Agreement are reasonably necessary to protect the interests of Camco in whose
favor said covenants and agreements are imposed in light of the nature of Camco’s business and the
involvement of the Executive in such business; (ii) the restrictions imposed by this Agreement are
reasonable and necessary to protect the legitimate business interests of Camco and that they are
not greater than are necessary for the protection of Camco in light of the substantial harm that
Camco will suffer should the Executive breach any of the provisions of said covenants or
agreements; (iii) the covenants and agreements of the Executive contained in this Agreement form
material consideration for this Agreement; (iv) the periods and any geographical areas of
restriction contained in this Agreement are fair and reasonable in that they are reasonably
required for the protection of Camco; and (v) the nature, kind and character of the activities in
which the Executive is prohibited from engaging are reasonable and necessary to protect Camco.
(c) The Executive and Camco acknowledge that a breach by the Executive or Camco of any of the
terms or conditions of this Agreement will result in irreparable harm to Camco or the Executive and
that the remedies at law for such breach may not adequately compensate Camco or the Executive for
damages suffered. Accordingly, the Executive and Camco agree that in the event of such breach, the
Executive or Camco shall be entitled to seek injunctive relief or such other equitable remedy as a
court of competent jurisdiction may provide. If all or a portion of any of the restrictions and
agreements of the Executive or Camco contained in this Agreement, including but not limited to this
Section 8 are held to be unreasonable or unenforceable by a court of competent jurisdiction in a
final order to which the Executive or Camco is a party, the Executive and Camco expressly agree to
be bound by any lesser agreement or restriction subsumed within the terms of the invalidated
provision to the maximum extent permitted by law as if the resulting covenants were originally and
separately stated in this Agreement. The Executive and Camco further agree that should a court
issue any such injunctive relief, the Executive and Camco shall not be required to post any
surety bond or other security for the injunctive relief to take effect. Nothing contained herein
will be construed to limit the rights of the Executive or Camco to any remedies at law, including
the recovery of damages and attorneys’ fees for breach of this Agreement.
(d) Notwithstanding anything to the contrary contained in this Agreement, Sections 7 and 8
shall remain in effect following the termination of this Agreement.
9. Nonassignability. Neither this Agreement nor any right or interest hereunder shall
be assignable by the Executive, his beneficiaries or legal representatives without Camco’s prior
written consent; provided, however, that nothing in this Section 9 shall preclude (i) the Executive
from designating a beneficiary to receive any benefits payable hereunder upon his death or (ii) the
executors, administrators or other legal representatives of the Executive or his estate from
assigning any rights hereunder to the person or persons entitled thereto.
10. No Attachment. Except as required by law, no right to receive payment under this
Agreement shall be subject to anticipation, commutation, alienation, sale, assignment, encumbrance,
charge, pledge or hypothecation or to execution, attachment, levy or similar process of assignment
by operation of law, and any attempt, voluntary or involuntary, to effect any such action shall be
null, void and of no effect.
11. Binding Agreement. This Agreement shall be binding upon, and inure to the benefit
of, the Executive and Camco and their respective permitted successors and assigns.
12. Arbitration and Legal Expenses. Any dispute or controversy arising under or in
this Agreement shall be settled exclusively by arbitration in accordance with the rules of the
American Arbitration Association then in effect. Judgment may be entered on the arbitrator’s award
in any court having jurisdiction. Camco shall promptly pay all legal fees and expenses (including
the costs of experts, evidence and counsel) that the Executive may incur as a result of the
Executive
or Camco contesting the validity or enforceability of this Agreement or the Executive seeking
to obtain any right or benefit provided by this Agreement if an arbitrator or a court of competent
jurisdiction renders a final decision in favor of the Executive with respect to any such contest,
or to the extent agreed upon by Camco and the Executive in an agreement of settlement with respect
to any such contest. Any reimbursement of legal fees and expenses pursuant to this Section 12
shall be subject to the following: (i) the legal fees and expenses must related to a claim brought
within the period described in Section 13; (ii) the amount of legal fees and expenses eligible for
reimbursement provided during any taxable year of the Executive may not affect the amount of legal
fees and expenses eligible for reimbursement in any other taxable year of the Executive; (iii) any
reimbursement of an eligible legal fee or expense shall be made on or before the last day of the
taxable year of the Executive following the taxable year of the Executive in which the legal fee or
expense being reimbursed was incurred; and (iv) the right to such reimbursement may not be subject
to liquidation or exchange for another benefit.
13. Limitation Period. Executive agrees to bring any claim, suit, arbitration or
other action arising out of this Agreement or his employment with Camco within one (1) year of the
date of any alleged breach of this Agreement by the Employer.
14. Section 409A of the Code. The compensation and benefits payable pursuant to this
Agreement are intended to comply with or be exempt from the requirements of Section 409A of the
Code, to the extent applicable, and, to the maximum extent permitted by law, shall be interpreted
in a manner that results in its continued compliance with or exemption from the requirements of
that section. In the event it is determined that any compensation or benefit payable pursuant to
this Agreement is deferred compensation subject to Section 409A of the Code and that the Executive
is a “specified employee,” within the meaning of Section 409A of the Code, then the payments of
such amount or the provisions of such benefits shall not be made until the first business day that
is six months following the date of the Executive’s termination or, if earlier, the date of the
Executive’s death. With respect to such determination, the “specified employee effective date” and
the “specified employee identification date” (as those terms are defined in the Treasury
Regulations promulgated under Section 409A of the Code) shall be December 31 and April 1,
respectively. For purposes of applying the provisions of Code Section 409A to this Agreement, each
separately identified amount to which Executive is entitled under this Agreement shall be treated
as a separate payment. In addition, to the extent permissible under Code Section 409A, any series
of installment payments under this Agreement shall be treated as a right to a series of separate
payments.
15. Amendment of Agreement. This Agreement may not be modified or amended, except by
an instrument in writing signed by the parties hereto.
16. Waiver. No term or condition of this Agreement shall be deemed to have been
waived, nor shall there be an estoppel against the enforcement of any provision of this Agreement,
except by written instrument of the party charged with such waiver or estoppel. No such written
waiver shall be deemed a continuing waiver, unless specifically stated therein, and each waiver
shall operate only as to the specific term or condition waived and shall not constitute a waiver of
such term or condition for the future or as to any act other than the act specifically waived.
17. Severability. If, for any reason, any provision of this Agreement is held invalid,
such invalidity shall not affect the other provisions of this Agreement not held so invalid, and
each such other provision shall, to the full extent consistent with applicable law, continue in
full force and effect. If this Agreement is held invalid or cannot be enforced, then any prior
agreement between Camco (or any predecessor thereof) and the Executive shall be deemed reinstated
to the full extent permitted by law, as if this Agreement had not been executed.
18. Headings. The headings of the paragraphs herein are included solely for
convenience of reference and shall not control the meaning or interpretation of any of the
provisions of this Agreement.
19. Governing Law. This Agreement has been executed and delivered in the State of
Ohio, and its validity, interpretation, performance and enforcement shall be governed by the laws
of the State of Ohio, except to the extent that federal or Delaware law is governing.
20. Effect of Prior Agreements. This Agreement contains the entire understanding
between the parties hereto and supersedes any prior Employment Agreement between Camco, or any
predecessor of Camco, and the Executive.
21. Counterparts. This Agreement may be executed in counterparts, each of which shall be
deemed to be an original, but all of which together shall constitute one and the same
instrument.
IN WITNESS WHEREOF, Camco has caused this Agreement to be executed by its duly authorized
officers, and the Executive has signed this Agreement, all as of the day and year first above
written.
| Attest: | CAMCO FINANCIAL CORPORATION | |||||||
/s/ Xxxxxx Xxxxxxxxx
|
By: | /s/ Xxxxx X. Xxxxxx
|
||||||
| Attest: | ADVANTAGE BANK | |||||||
/s/ Xxxxxx Xxxxxxxxx
|
By: | /s/ Xxxxx X. Xxxxxx
|
||||||
| Attest: | EXECUTIVE: | |||||||
| /s/ Xxxxxx X. Xxxxxx | /s/ Xxxxx X. Xxxxxx | |||||||
