EXHIBIT 10(iii)
CHANGE OF CONTROL AGREEMENT
THIS CHANGE OF CONTROL AGREEMENT (this "Agreement") is entered into as of
the ____ day of ______________, 2001, by and between Camco Financial
Corporation, a Delaware corporation ("Camco"), and ______________ (the
"Employee");
WITNESSETH:
WHEREAS, the Employee has been employed as the ____________________ of
Advantage Bank (the "Bank"), a wholly-owned subsidiary of Camco;
WHEREAS, as a result of the skill, knowledge and experience of the
Employee, Camco believes it is in the best interest of Camco and its
stockholders to provide the Employee with a sense of security and fair treatment
to encourage the Employee to remain an employee of Camco;
WHEREAS, Camco and the Employee desire to enter into this Agreement to set
forth their understanding as to their respective rights and obligations in the
event of the termination of Employee's employment under the circumstances set
forth in this Agreement.
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained, Camco and the Employee hereby agree as follows:
1. Term. The term of this Agreement shall commence on __________, 2001,
and shall end December 31, 2001, subject to extension and to earlier termination
as provided herein (the "Term"). Prior to each anniversary of the date of this
Agreement, the Board of Directors of Camco shall review the performance of the
Employee. In connection with such annual review, the Term of this Agreement
shall be extended for a one-year period beyond the then-effective expiration
date, provided the Board of Directors of Camco, in its sole discretion,
determines in a duly adopted resolution that this Agreement should be extended.
2. Termination of Employment.
(a) Termination by Camco in Connection with a Change of Control. In the
event that the employment of the Employee is terminated by Camco, the Bank or
their respective successors or assigns, during the Term for any reason other
than Just Cause within six months prior to a Change of Control (hereinafter
defined) or within one year after a Change of Control, then the following shall
occur:
(i) Camco shall promptly pay to the Employee or to his
beneficiaries, dependents or estate an amount equal to two times the
amount of the Employee's annual compensation as most recently set
prior to the occurrence of the Change of Control;
(ii) The Employer shall pay the premiums required to maintain
coverage for the Employee and his eligible dependents under the
health insurance plan of Camco or the Bank in which the Employee is
a participant immediately prior to the Change of Control in
accordance with the Consolidated Omnibus Budget Reconciliation Act
of 1985, as amended, until the earliest of (A) the second
anniversary of the termination of the Employee's employment or (B)
the date on which the Employee is included in another employer's
benefit plans as a full-time employee; and
(iii) The Employee shall not be required to mitigate the
amount of any payment provided for in this Agreement by seeking
other employment or otherwise, nor shall any amounts received from
other employment or otherwise by the Employee offset in any manner
the obligations of Camco hereunder, except as specifically stated in
subparagraph (b).
For purposes of this Agreement, the term "Just Cause" means the Employee'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 (other than traffic violations or similar offenses) or final
cease-and-desist order, conviction of a felony or for fraud or embezzlement, or
material breach of any provision of this Agreement.
(b) Termination by the Employee in Connection with a Change of Control.
The Employee may voluntarily terminate his employment pursuant to this Agreement
within twelve months following a Change of Control and shall be entitled to
compensation as set forth in Section 2(a) of this Agreement in the event that:
(i) the present capacity or circumstances in which the
Employee is employed immediately prior to the completion of the
Change of Control are changed, in the opinion of the Employee
(including, without limitation, a reduction in responsibilities or
authority or a reduction in salary);
(ii) the Employee is required to move his personal residence,
or perform his principal executive functions, more than thirty-five
(35) miles from his primary office as of the date of the
commencement of the Term of this Agreement; or
(iii) Camco otherwise breaches this Agreement in any material
respect.
In the event that payments pursuant to this Section 2 would result in the
imposition of a penalty tax pursuant to Section 280G(b)(3) of the Internal
Revenue Code of 1986, as amended, and the regulations promulgated thereunder
("Section 280G"), such payments shall be reduced to the maximum amount which may
be paid under Section 280G without exceeding such limits. 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
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Employee may determine, in his sole discretion, which categories of payments are
to be reduced or eliminated.
(c) Death of the Employee. This Agreement shall automatically terminate
upon the death of the Employee.
(d) "Golden Parachute" Provision. Any payments made to the Employee
pursuant to this Agreement or otherwise are subject to and conditioned upon
their compliance with 12 U.S.C. ss.1828(k) and any regulations promulgated
thereunder.
(e) Definition of "Change of Control". A "Change of Control" shall mean
any one of the following events: (i) the acquisition of ownership or power to
vote more than 25% of the voting stock of Camco; (ii) the acquisition of the
ability to control the election of a majority of the directors of Camco; (iii)
during any period of two consecutive years, individuals who at the beginning of
such period constitute the Board of Directors of Camco, 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 Camco 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 Camco; or (iv) the acquisition by any person or entity of
"conclusive control" of Camco within the meaning of 12 C.F.R. ss.574.4(a), or
the acquisition by any person or entity of "rebuttable control" within the
meaning of 12 C.F.R. ss.574.4(b) that has not been rebutted in accordance with
12 C.F.R. ss.574.4(c). For purposes of this paragraph, the term "person" refers
to an individual or corporation, partnership, trust, association, or other
organization, but does not include the Employee and any person or persons with
whom the Employee is "acting in concert" within the meaning of 12 C.F.R. Part
574. The occurrence of any of the foregoing events with respect to the Bank
shall not constitute a Change of Control for purposes of this Agreement.
3. Confidential Information. The Employee acknowledges that during his
employment he will learn and have access to confidential information regarding
Camco and its customers and businesses. The Employee 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 Employee shall not knowingly
disclose or reveal to any unauthorized person any confidential information
relating to Camco, its parent, subsidiaries or affiliates, or to any of the
businesses operated by them, and the Employee confirms that such information
constitutes the exclusive property of Camco. The Employee shall not otherwise
knowingly act or conduct himself (a) to the material detriment of Camco, its
subsidiaries, or affiliates, or (b) in a manner which is inimical or contrary to
the interests of Camco.
4. Nonassignability. Neither this Agreement nor any right or interest
hereunder shall be assignable by the Employee, his beneficiaries or his legal
representatives without Camco's prior written consent; provided, however, that
nothing in this Section 4 shall preclude (a) the Employee from designating a
beneficiary to receive any benefits payable hereunder upon his
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death, or (b) the executors, administrators, or other legal representatives of
the Employee or his estate from assigning any rights hereunder to the person or
persons entitled thereto.
5. 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.
6. Binding Agreement. This Agreement shall be binding upon, and inure to
the benefit of, the Employee and Camco and their respective permitted successors
and assigns.
7. Amendment of Agreement. This Agreement may not be modified or amended,
except by an instrument in writing signed by the parties hereto.
8. 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.
9. 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.
10. 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.
11. Governing Law; Regulatory Authority. 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 law is governing. If this Agreement conflicts with any
applicable federal law as now or hereafter in effect, then federal law shall
govern.
12. 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 Employee.
13. Notices. Any notice or other communication required or permitted
pursuant to this Agreement shall be deemed delivered if such notice or
communication is in writing and is
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delivered personally or by facsimile transmission or is deposited in the United
States mail, postage prepaid, addressed as follows:
If to Camco:
Camco Financial Corporation
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If to the Employee:
___________________
___________________
___________________
IN WITNESS WHEREOF, Camco has caused this Agreement to be executed by its
duly authorized officer, and the Employee has signed this Agreement, each as of
the day and year first above written.
Attest: CAMCO FINANCIAL CORPORATION
By
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President & CEO
EMPLOYEE
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ATTACHMENT A
Each of the enrollees are listed below:
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