EXHIBIT 4.01
CAMCO FINANCIAL CORPORATION
1995 STOCK OPTION AND INCENTIVE PLAN
1. PURPOSE. The purpose of the Camco Financial Corporation 1995 Stock
Option and Incentive Plan (herein referred to as the "Plan") is to promote and
advance the interests of Camco Financial Corporation (the "Company") and its
shareholders by enabling the Company to attract, retain and reward Directors
(hereinafter defined), and managerial and other key employees of the Company and
any Subsidiary (hereinafter defined), and to strengthen the mutuality of
interests between such Directors and employees and the Company's shareholders,
by providing such persons with a proprietary interest in pursuing the long-term
growth, profitability and financial success of the Company.
2. DEFINITIONS. For purposes of the Plan, the following terms shall
have the meanings set forth below:
(a) "Board" means the Board of Directors of the Company.
(b) "Change in Control" has the meaning set forth in Section 10 of
this Plan.
(c) "Code" means the Internal Revenue Code of 1986, as
amended, or any successor thereto, together with rules, regulations and
interpretations promulgated thereunder.
(d) "Committee" means the Committee of the Board constituted as
provided in Section 3 of this Plan.
(e) "Common Shares" means the common shares, $1.00 par value per
share, of the Company or any security of the Company issued in
substitution, exchange or lieu thereof.
(f) "Company" means Camco Financial Corporation, a Delaware
corporation, or any successor corporation.
(g) "Director" means a member of the Board, an advisory director
or a director emeritus of the Company or a director, an advisory
director or a director emeritus of a Subsidiary.
(h) "Employment" means regular employment with the Company or a
Subsidiary and does not include service as a Director only.
(i) "Exchange Act" means the Securities Exchange Act of 1934, as
amended, or any successor statute.
(j) "Fair Market Value" shall be determined as follows:
(i) If the Common Shares are traded on a national securities
exchange at the time of grant of the Stock Option, then the Fair
Market Value shall be the average of the highest and the lowest
selling price on such exchange on the date such Stock Option is
granted or, if there were no sales on such date, then on the next
prior business day on which there was a sale.
(ii) If the Common Shares are listed on The Nasdaq Stock
Market, at the time of the grant of the Stock Option, then the Fair
Market Value shall be the mean between the closing bid and closing
asked quotation with respect to a Common Share on such date on The
Nasdaq Stock Market.
(iii) If the Common Shares are not traded on a national
securities exchange or quoted on The Nasdaq Stock Market, then the
Fair Market Value shall be as determined by the Committee.
(k) "Incentive Stock Option" means any stock option that is
intended to be and is specifically designated as an "incentive stock
option" within the meaning of Section 422 of the Code.
(l) "Non-Qualified Stock Option" means any stock option that is
not an Incentive Stock Option.
(m) "OTS" means the Office of Thrift Supervision, Department of
the Treasury.
(n) "Participant" means an employee or Director of the Company or
a Subsidiary who is granted a Stock Option under the Plan.
Notwithstanding the foregoing, for the purposes of the granting of any
Incentive Stock Option under this Plan, the term "Participant" shall
include only employees of the Company or a Subsidiary.
(o) "Plan" means the Camco Financial Corporation 1995 Stock Option
and Incentive Plan, as set forth herein and as it may be hereafter
amended from time to time.
(p) "Stock Option" means an award to purchase Common Shares
granted pursuant to the provisions of Section 6 of the Plan.
(q) "Subsidiary" means any corporation or entity in which the
Company directly or indirectly controls 50% or more of the total voting
power of all classes of its stock having voting power, and includes,
without limitation, Cambridge Savings Bank, Marietta Savings Bank,
First Federal Savings Bank of Washington Court House, Camco Mortgage
Corporation and East Ohio Title Agency, Inc.
(r) "Terminated for Cause" means any removal of a Director or
discharge of an employee for the personal dishonesty, incompetence,
willful misconduct, breach of fiduciary duty, intentional failure to
perform stated duties, willful violation of a material provision of any
law, rule or regulation (other than traffic violations or similar
offenses), a material violation of a final cease-and-desist order or
any other action of a Director or employee which results in a
substantial financial loss to the Company or a Subsidiary.
3. ADMINISTRATION.
(a) The Plan shall be administered by the Committee to be comprised
of not less than three of the members of the Board to be appointed from
time to time by the Board. Members of the Committee shall serve at the
pleasure of the Board, and the Board may from time to time remove
members from, or add members to, the Committee. A majority of the
members of the Committee shall constitute a quorum for the transaction
of business. Action approved in writing by a majority of the members of
the Committee then serving shall be fully as effective as if the action
had been taken by unanimous vote at a meeting duly called and held.
(b) The Committee is authorized to construe and interpret the Plan
and to make all other determinations necessary or advisable for the
administration of the Plan. The Committee may designate persons other
than members of the Committee to carry out its responsibilities under
such conditions and limitations as it may prescribe. Any determination,
decision or action of the Committee in connection with the
construction, interpretation, administration or application of the Plan
shall be final, conclusive and binding upon all persons participating
in the Plan and any person validly claiming under or through persons
participating in the Plan. The Company shall effect the granting of
Stock Options under the Plan
in accordance with the determinations made by the Committee, by
execution of instruments in writing in such form as approved by the
Committee. Notwithstanding the foregoing, the Board shall determine the
persons to whom Stock Options shall be granted and the number of
shares.
4. DURATION OF, AND COMMON SHARES SUBJECT TO, PLAN.
(a) Term. The Plan shall terminate on the date which is ten years
from the date on which the Plan is adopted by the Board, except with
respect to Stock Options then outstanding.
(b) Common Shares Subject to Plan. The maximum number of Common
Shares in respect of which Stock Options may be granted under the Plan,
subject to adjustment as provided in Section 9 of the Plan, shall be
93,000.
For the purpose of computing the total number of Common Shares
available for Stock Options under the Plan, there shall be counted against the
foregoing limitations the number of Common Shares subject to issuance upon
exercise of Stock Options as of the dates on which such Stock Options are
granted. If any Stock Options are terminated, expire unexercised or are
exchanged for other Stock Options, the Common Shares which were theretofore
subject to such Stock Options shall again be available for Stock Options under
the Plan to the extent of such termination, expiration or exchange.
Common Shares which may be issued under the Plan may be either
authorized and unissued shares or issued shares which have been reacquired by
the Company. No fractional shares shall be issued under the Plan.
5. ELIGIBILITY AND GRANTS. Persons eligible for Stock Options shall
consist of Directors and managerial and other key employees of the Company or a
Subsidiary who hold positions of significant responsibilities or whose
performance or potential contribution, in the judgment of the Board, will
benefit the future success of the Company or a Subsidiary. In selecting the
Directors and employees to whom Stock Options will be awarded and the number of
shares subject to such Stock Options, the Board shall consider the position,
duties and responsibilities of the eligible Directors and employees, the value
of their services to the Company and the Subsidiaries and any other factors the
Committee may deem relevant. The Committee may recommend to the Board the number
of shares to be awarded in the Stock Option granted to each Participant.
6. STOCK OPTIONS. Stock Options granted under the Plan may be in the
form of Incentive Stock Options or Non-Qualified Stock Options, and such Stock
Options shall be subject to the following terms and conditions:
(a) Grant. Stock Options may be granted under the Plan in such
form as the Committee may from time to time approve and may contain
such additional terms and conditions, not inconsistent with the express
provisions of the Plan, as the Committee shall deem desirable.
(b) Stock Option Price. The option exercise price per Common Share
purchasable under a Stock Option shall be determined by the Committee
at the time of grant; provided, however, that in no event shall the
exercise price of an Incentive Stock Option be less than 100% of the
Fair Market Value of the Common Shares on the date of the grant of such
Incentive Stock Option; provided further that, in the case of a
Participant who owns Common Shares representing more than 10% of the
outstanding Common Shares at the time an Incentive Stock Option is
granted to such Participant, the option exercise price shall in no
event be less than 110% of the Fair Market Value of the Common Shares
at the time the Incentive Stock Option is granted.
(c) Stock Option Terms. The term of each Stock Option shall be
fixed by the Committee; except that the term of Incentive Stock Options
will not exceed ten years after the date the Incentive Stock Option is
granted; provided, however, that in the case of a Participant who owns
a number of Common Shares
representing more than 10% of the Common Shares outstanding at the time
an Incentive Stock Option is granted to such Participant, the term of
the Incentive Stock Option shall not exceed five years.
(d) Exercisability. A Stock Option shall be exercisable in whole
or in part at such time or times and subject to such terms and
conditions as shall be determined by the Committee on the date of
grant, except as otherwise provided in paragraph (c) of this Section 6.
(e) Method of Exercise. A Stock Option may be exercised, in whole
or in part, by giving written notice of exercise to the Company
specifying the number of Common Shares to be purchased. Such notice
shall be accompanied by payment in full of the purchase price in cash
or by certified or cashier's check or, if acceptable to the Committee
in its sole discretion, in Common Shares already owned by the
Participant, or by surrendering outstanding Stock Options. The
Committee may also permit Participants, either on a selective or
aggregate basis, simultaneously to exercise Options and sell Common
Shares thereby acquired, pursuant to a brokerage or similar
arrangement, approved in advance by the Committee, and use the proceeds
from such sale as payment of the purchase price of such shares.
(f) Special Rule for Incentive Stock Options. The aggregate Fair
Market Value (determined as of the date an Incentive Stock Option is
granted) of the Common Shares with respect to which Incentive Stock
Options are exercisable under all plans of the Company or a Subsidiary
for the first time by a Participant during any calendar year shall not
exceed $100,000 or such other limit as may be required by the Code.
7. TERMINATION OF EMPLOYMENT OR DIRECTORSHIP. The terms and conditions
under which a Stock Option may be exercised after a Participant's termination of
Employment or directorship shall be determined by the Committee at the time of
grant of the Stock Option; provided, however, that in the event a Participant's
Employment or directorship (regular, advisory or emeritus) with the Company or a
Subsidiary is Terminated for Cause, such Stock Option shall be terminated as of
the date of termination of Employment or directorship.
8. NON-TRANSFERABILITY OF STOCK OPTIONS. No Stock Option, and no
rights or interests therein, shall be assignable or transferable by a
Participant except by will or the laws of descent and distribution. During the
lifetime of a Participant, Stock Options are exercisable only by the Participant
or his or her legal representative.
9. ADJUSTMENTS UPON CHANGES IN CAPITALIZATION.
(a) The existence of this Plan and the Stock Options granted
hereunder shall not affect or restrict in any way the right or power of
the Board or the shareholders of the Company to make or authorize any
adjustment, recapitalization, reorganization or other change in the
Company's capital structure or its business, any merger, acquisition or
consolidation of the Company, any issue of bonds, debentures, preferred
or prior preference stocks ahead of or affecting the Company's capital
stock or the rights thereof, the dissolution or liquidation of the
Company or any sale or transfer of all or any part of its assets or
business, or any other corporate act or proceeding, including any
merger or acquisition which would result in the exchange of cash, stock
of another company or options to purchase the stock of another company
for any Stock Option outstanding at the time of such corporate
transaction or which would involve the termination of all Stock Options
outstanding at the time of such corporate transaction.
(b) In the event of any change in capitalization affecting the
Common Shares of the Company, such as a stock dividend, stock split,
recapitalization, merger, consolidation, split-up, combination or
exchange of shares or other form of reorganization, or any other change
affecting the Common Shares, such proportionate adjustments, if any, as
the Board in its discretion may deem appropriate to reflect such change
shall be made with respect to the aggregate number of Common Shares for
which Stock Options in respect thereof may be granted under the Plan,
the maximum number of Common Shares which may
be sold or awarded to any Participant, the number of Common Shares
covered by each outstanding Stock Option, and the exercise price per
share in respect of outstanding Stock Options.
(c) The Committee may also make such adjustments in the number of
shares covered by, and the exercise price or other value of, any
outstanding Stock Options in the event of a spin-off or other
distribution (other than normal cash dividends) of Company assets to
shareholders. In the event that another corporation or business entity
is acquired by the Company, and the Company agrees to assume
outstanding stock options and/or the obligation to make future grants
of options or rights to employees or directors of the acquired entity,
the aggregate number of Common Shares available for Stock Options under
Section 4 of this Plan may be increased accordingly.
10. CHANGE IN CONTROL. All outstanding Stock Options shall become
immediately exercisable in the event of a change in control or imminent change
in control of the Company, as determined by the Committee. For purposes of this
Section, "change in control" shall mean: (i) the execution of an agreement for
the sale of all, or a material portion, of the assets of the Company; (ii) the
execution of an agreement for a merger or recapitalization of the Company or any
merger or recapitalization whereby the Company is not the surviving entity;
(iii) a change in control of the Company, as defined under OTS regulations; or
(iv) the acquisition, directly or indirectly, of the beneficial ownership (as
defined under Section 13(d) of the Exchange Act and the rules promulgated
thereunder) of 25% or more of the outstanding voting securities of the Company
by any person, trust, entity or group. For purposes of this Section, "imminent
change in control" shall refer to any offer or announcement, oral or written, by
any person or any persons acting as a group, to acquire control of the Company;
provided, however, that an application or notice shall have been filed with the
OTS and such application shall have been approved or such notice shall not have
been disapproved.
11. AMENDMENT AND TERMINATION OF THE PLAN. Without further approval of
the shareholders, the Board may at any time terminate the Plan or may amend it
from time to time in such respects as the Board may deem advisable; provided,
however, that the Board may not, without approval of the shareholders, make any
amendment which would (a) increase the aggregate number of Common Shares which
may be issued under the Plan (except for adjustments pursuant to Section 9 of
the Plan), (b) materially modify the requirements as to eligibility for
participation in the Plan, or (c) materially increase the benefits accruing to
Participants under the Plan. The above notwithstanding, the Board may amend the
Plan to take into account changes in applicable securities, federal income tax
and other applicable laws.
12. MODIFICATION OF OPTIONS. The Board may authorize the Committee to
direct the execution of an instrument providing for the modification of any
outstanding Stock Option which the Board believes to be in the best interests of
the Company; provided, however, that no such modification, extension or renewal
(a) shall confer on the holder of such Stock Option any right or benefit which
could not be conferred on him by the grant of a new Stock Option at such time
and (b) shall not materially decrease the Participant's benefits under the Stock
Option without the consent of the holder of the Stock Option, except as
otherwise permitted under the Plan.
13. MISCELLANEOUS.
(a) Tax Withholding. The Company shall have the right to deduct
from any settlement, including the delivery or vesting of Common
Shares, made under the Plan any federal, state or local taxes of any
kind required by law to be withheld with respect to such payments or to
take such other action as may be necessary in the opinion of the
Company to satisfy all obligation for the payment of such taxes. If
Common Shares are used to satisfy tax withholding, such shares shall be
valued based on the Fair Market Value when the tax withholding is
required to be made.
(b) No Right to Employment. Neither the adoption of the Plan nor
the granting of any Stock Option shall confer upon any employee of the
Company or a Subsidiary any right to continued employment with the
Company or any Subsidiary, as the case may be, nor shall it interfere
in any way with the right of the Company or a Subsidiary to terminate
the employment of any of its employees at any time, with or without
cause.
(c) Other Company Benefit and Compensation Programs. Payments and
other benefits received by a Participant under a Stock Option made
pursuant to the Plan shall not be deemed a part of a Participant's
regular, recurring compensation for purposes of the termination
indemnity or severance pay law of any country and shall not be included
in, nor have any effect on, the determination of benefits under any
other employee benefit plan or similar arrangement provided by the
Company or a Subsidiary unless expressly so provided by such other plan
or arrangements, or except where the Committee expressly determines
that a Stock Option or portion of a Stock Option should be included to
accurately reflect competitive compensation practices or to recognize
that a Stock Option has been made in lieu of a portion of competitive
annual cash compensation. Stock Options may be granted in combination
with or in tandem with, or as alternatives to, grants, awards or
payments under any other Company or Subsidiary plans. The Plan
notwithstanding, the Company or any Subsidiary may adopt such other
compensation programs and additional compensation arrangements as it
deems necessary to attract, retain and reward Directors and employees
for their service with the Company and its Subsidiaries.
(d) Securities Law Restrictions. No Common Shares shall be issued
under the Plan unless counsel for the Company shall be satisfied that
such issuance will be in compliance with applicable federal and state
securities laws. Certificates for Common Shares delivered under the
Plan may be subject to such stock-transfer orders and other
restrictions as the Committee may deem advisable under the rules,
regulations, and other requirements of the Securities and Exchange
Commission, any stock exchange upon which the Common Shares are then
listed, and any applicable federal or state securities law. The
Committee may cause a legend or legends to be put on any such
certificates to make appropriate reference to such restrictions.
(e) Stock Option Agreement. Each Participant receiving a Stock
Option shall enter into an agreement with the Company in a form
specified by the Committee agreeing to the terms and conditions of the
Stock Option and such related matters as the Committee shall, in its
sole discretion, determine.
(f) Cost of Plan. The costs and expenses of administering the Plan
shall be borne by the Company.
(g) Governing Law. The Plan and all actions taken hereunder 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
applicable.
(h) Effective Date. The Plan shall be effective upon adoption by
the Board, subject to approval by the Company's shareholders.
Shareholder approval shall be obtained within one year from the date of
adoption of the Plan by the Board.