EMPLOYMENT AGREEMENT FOR ROBERT J. KING, JR.
Exhibit 10.9
This Employment Agreement (the “Agreement”) is made this day of , 2009 by and
between PVF Capital Corp., an Ohio corporation (the “Company”), its wholly-owned subsidiary, Park
View Federal Savings Bank, a federally chartered stock savings bank (the “Bank”) (the Company and
the Bank shall hereinafter sometimes be referred to collectively as the “Employer”), and Xxxxxx X.
Xxxx, Xx. (“Executive”).
WHEREAS, Executive has agreed to accept employment as President and Chief Executive Officer of the
Company and the Bank;
WHEREAS, the Company, the Bank and Executive wish to set forth the terms and conditions of his
employment;
NOW, THEREFORE, in consideration of the mutual covenants herein contained, and upon the other terms
and conditions hereinafter provided, the parties hereby agree as follows:
1. POSITION AND RESPONSIBILITIES
During the term of this Agreement, Executive agrees to serve as President and Chief Executive
Officer of the Company and the Bank, and will perform all duties and will have all powers
associated with such positions as and as may be set forth in the Bylaws of the Company or the Bank.
In addition, Executive shall be responsible for establishing the business objectives, policies and
strategic plans of the Employer, in conjunction with the Boards of Directors of the Company and the
Bank (each, a “Board,” provided that unless specifically designated otherwise, “Board” shall refer
to the disinterested members of both Boards). During the term of the Agreement, Executive also
agrees to serve, if elected, as an officer and/or director of the Company, the Bank or any of their
respective subsidiaries or affiliates and in such capacity carry out such duties and
responsibilities reasonably appropriate to that office.
2. TERM AND ANNUAL REVIEW
(a) Term. This Agreement will be effective, and the term of this Agreement will
commence, only upon receipt of a written approval or nonobjection from the Office of Thrift
Supervision and the Federal Deposit Insurance Corporation that authorizes the Company and the Bank
to employ Executive as President and Chief Executive Officer and enter into the Agreement (the
“Effective Date”) and, if effective, will continue for thirty-six (36) full calendar months
thereafter. In the event that the Company and the Bank are unable to obtain such approval or
nonobjection within ninety (90) days of the date first written above, this Agreement shall be void
and without effect. Subject to Section 2(b), commencing on the third anniversary of the Effective
Date and continuing on each anniversary date thereafter, the term of this Agreement shall extend
for one year, unless the Boards (or one of the Boards) elects no earlier than sixty (60) and no
later than thirty (30) days prior to the anniversary date not to extend the term of this Agreement
by giving written notice to the other party of non-renewal.
(b) Annual Review. On an annual basis, the disinterested members of the Board will
conduct a comprehensive performance evaluation and review of Executive’s performance, and the
results thereof will be included in the minutes of the Board’s meeting. The Board’s decision to
extend the initial term of the Agreement or give notice of non-renewal shall be based on the
results of such annual performance reviews.
3. PERFORMANCE OF DUTIES
During the period of his employment hereunder, except for reasonable periods of absence occasioned
by illness, permitted vacation periods, and reasonable leaves of absence, Executive will devote all
of his business time, attention, skill and efforts to the faithful performance of his duties under
this Agreement, including activities and duties directed by the Board. Notwithstanding the
preceding sentence, subject to the approval of the Board, Executive may serve as a member of the
board of directors of business, community and charitable organizations, provided that in each case
such service shall not materially interfere with the performance of his duties under this
Agreement, adversely affect the reputation of the Employer or any other affiliates of the Employer,
or present any conflict of interest.
4. COMPENSATION AND REIMBURSEMENT
(a) Base Salary. In consideration of Executive’s performance of the responsibilities
and duties set forth in Section 1, the Employer will provide Executive the compensation specified
in this Agreement. The Employer will pay Executive a salary of $300,000 for the first year,
$325,000 for the second year, and $350,000 for the third year, and shall be mutually agreed upon by
the parties for any renewal terms (the yearly salaries hereinafter referred to as the “Base
Salary”). Such Base Salary will be payable in accordance with the customary payroll practices of
the Employer. The Company and the Bank shall apportion between them the Base Salary, based upon the
services rendered by Executive to the Company and the Bank. During the period of this Agreement,
Executive’s Base Salary shall be reviewed at least annually by the Compensation Committee of the
Company Board (the “Committee”). Any increase in Base Salary will become the “Base Salary” for
purposes of this Agreement.
(b) Bonus and Incentive Compensation. Executive will be entitled to participate in
any incentive compensation and bonus plans or arrangements of the Employer. Such incentive
compensation will be paid in cash in accordance with the terms of such plans or arrangements, or on
a discretionary basis by the Committee. Nothing paid to Executive under any such plans or
arrangements will be deemed to be in lieu of other compensation to which Executive is entitled
under this Agreement. Notwithstanding the foregoing, Executive shall (i) not be entitled to any
incentive or bonus payment with respect to the Company’s fiscal year ending June 30, 2010 and (ii)
in each subsequent fiscal year of the Company which begins during the term of this Agreement,
Executive shall be eligible to receive a cash bonus of up to $100,000 based on the attainment of
such Company and/or individual performance objectives as may be established by mutual agreement of
Executive and the Employer. Not later than April 30, 2010 and each April 30 thereafter during the
term of the Agreement, Executive shall provide the Committee with a written proposal on the
performance objectives applicable to his incentive opportunity for the
next fiscal year with the intent that such objectives will be finalized by Executive and the
Committee prior to the beginning of such fiscal year.
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(c) Benefit Plans. Executive will be entitled to participate in all employee benefit
plans and programs that are generally offered to employees of the Employer, including, but not
limited to, Employer’s qualified retirement plans group life, health (including hospitalization,
medical and major medical), dental, accident and long term disability insurance plans (collectively
referred to as “Benefits”) subject to and on a basis consistent with the terms, conditions and
overall administration of such plans and arrangements; provided, however, that, at Executive’s
election and in lieu of participation in the Bank’s program, the Bank will pay the cost of
Executive’s coverage under the Fifth Third Bank retiree medical and dental coverage program.
(d) Vacation and Leave. Executive will be entitled to five weeks paid vacation time
each year during the term of this Agreement in accordance with the Bank’s customary practices, as
well as sick leave, holidays and other paid absences in accordance with the Bank’s policies and
procedures for senior executives. Any vacation time in excess of two consecutive weeks, shall be
subject to the approval of the Board. Any unused paid time off during an annual period will be
treated in accordance with the Bank’s personnel policies as in effect from time to time.
(e) Expense Reimbursements. The Employer will reimburse Executive for all reasonable
travel, entertainment and other reasonable expenses incurred by Executive during the course of
performing his obligations under this Agreement, including, without limitation, fees for
memberships in such organizations as Executive and the Board mutually agree are necessary and
appropriate in connection with the performance of his duties under this Agreement, upon
substantiation of such expenses in accordance with applicable policies and procedures of the
Employer.
(f) Restricted Stock Grant. As of the Effective Date, the Committee shall take such
action as may be necessary to grant Executive 240,000 shares of restricted Company common stock
(the “Restricted Stock”) and grant such shares of Restricted Stock to Executive as of the Effective
Date. The award agreement relating to such award shall provide for the vesting of the award in five
installments of 48,000 shares each, with vesting to occur on the first anniversary of the Effective
Date and each anniversary thereafter until fully vested. In all other respects, the grant shall be
subject to the terms and conditions stated in the Company’s 2008 Equity Incentive Plan. The
Company and the Bank acknowledge that Executive may, in his sole discretion, make an election under
Section 83(b) of the Internal Revenue Code of 1986, as amended (the “Code”) with respect to all or
any portion of such grant.
5. WORKING FACILITIES
Executive’s principal place of employment will be at the Company’s and the Bank’s principal
executive offices. The Bank will provide Executive at his principal place of employment with a
private office, secretarial and other support services and facilities suitable to his position with
the Bank and necessary or appropriate in connection with the performance of his duties under this
Agreement.
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6. TERMINATION AND TERMINATION PAY. Executive’s employment under this Agreement may be
terminated in the following circumstances:
(a) Death. Executive’s employment under this Agreement will terminate upon his death
during the term of this Agreement, in which event Executive’s estate or beneficiary will receive
the compensation due to Executive through the last day of the calendar month in which his death
occurred.
(b) Retirement. This Agreement will terminate upon Executive’s “Retirement” under the
retirement benefit plan or plans of the Employer in which he participates. Executive will not be
entitled to the termination benefits specified in Section 6 hereof in the event of termination due
to Retirement. For purposes of this Agreement, termination of Executive’s employment based on
Retirement shall include termination of Executive’s employment after Executive has reached age
sixty-five (65) in accordance with any retirement arrangement established by the Board with
Executive’ s consent.
(c) Disability.
(i) Termination of Executive’s employment based on “Disability” shall mean termination because
of any permanent and total physical or mental impairment that restricts Executive from performing
all the essential functions of normal employment. A determination as to whether Executive has
suffered a Disability shall be made by the Board with objective medical input, provided, however,
that any termination by the Board due to Disability shall not occur prior to the date on which
Executive first becomes eligible for Disability benefits under the Bank’s long-term disability
program. In the event of termination due to Disability, Executive will be entitled to disability
benefits, if any, provided under a long term disability plan sponsored by the Bank, if any.
(ii) In the event the Board determines that Executive is Disabled, Executive will no longer be
obligated to perform services under this Agreement. Upon Executive’s termination due to Disability,
the Bank will continue to provide to Executive life insurance and non-taxable medical and dental
coverage substantially comparable (and on substantially the same terms and conditions), to the
coverage maintained by the Bank for Executive immediately prior to his termination for Disability.
This coverage shall cease one (1) year from the date of termination. Executive’s health care
continuation rights available under COBRA shall commence following the termination of the coverage
provided by this Section 6(c)(ii).
(d) Termination for Cause.
(i) The Board may by written notice to Executive in the form and manner specified in this
paragraph, immediately terminate his employment at any time for “Cause.” Executive shall have no
right to receive compensation or Benefits for any period after termination for Cause, except for
already vested Benefits. Termination for Cause shall mean termination because of, in the good faith
determination of the Board, Executive’s:
(1) material act of dishonesty in performing Executive’s duties on behalf of the Employer;
(2) willful misconduct that in the judgment of the Board will likely cause economic damage to
the Employer or injury to the business reputation of the Employer;
(3) incompetence (in determining incompetence, the acts or omissions shall be measured against
standards generally prevailing in the savings institutions industry);
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(4) breach of fiduciary duty involving personal profit;
(5) intentional failure to perform stated duties under this Agreement after written notice
thereof from the Board;
(6) willful violation of any law, rule or regulation (other than minor or routine traffic
violations or similar offenses) that reflect adversely on the reputation of the Employer, any
felony conviction, any violation of law involving moral turpitude, or any violation of a final
cease-and desist order; or
(7) material breach by Executive of any provision of this Agreement.
(ii) Notwithstanding the foregoing, Executive’s termination for Cause will not
become effective unless the Employer has delivered to Executive a copy of a resolution duly adopted
by the affirmative vote of not less than a majority of the disinterested members of the Board, at a
meeting of the Board called and held for the purpose of finding that, in the good faith opinion of
the Board (after reasonable notice to Executive and an opportunity for Executive to be heard before
the Board), Executive was guilty of the conduct described above and specifying the particulars of
such conduct.
(e) Voluntary Termination by Executive. In addition to his other rights to terminate
his employment under this Agreement, Executive may voluntarily terminate employment during the term
of this Agreement upon at least sixty (60) days prior written notice to the Board. Upon Executive’s
voluntary termination, he will receive only his compensation and vested rights and Benefits to the
date of his termination. Following his voluntary termination of employment under this Section 6(e),
Executive will be subject to the restrictions set forth in Section 8(a) and 8(b) of this Agreement.
(f) Termination Without Cause or With Good Reason.
(i) The Board may, by written notice to Executive, immediately terminate his employment at any
time for a reason other than Cause (a termination “Without Cause”), and Executive may, by written
notice to the Board, terminate this Agreement at any time within ninety (90) days following an
event constituting “Good Reason,” as defined below (a termination “With Good Reason”); provided,
however, that the Employer shall have thirty (30) days to cure the “Good Reason” condition, but the
Employer may waive its right to cure. Any termination of
Executive’s employment, other than Termination for Cause shall have no effect on or prejudice the
vested rights of Executive to Benefits.
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(ii) In the event of termination under this Section 6(f), the Employer shall pay Executive, or
in the event of Executive’s subsequent death, Executive’s beneficiary or estate, as the case may
be, as severance pay, a cash lump sum payment equal to the greater of (i) the Base Salary that
would have been payable to the Executive over the remaining term of the Agreement but for the early
termination or (ii) the Executive’s Base Salary. Such payment shall be made within thirty (30)
calendar days following his termination.
(iii) In addition, the Employer will continue to provide to Executive, life insurance coverage
and non-taxable medical and dental insurance coverage substantially comparable (and on
substantially the same terms and conditions) to the coverage maintained by Company or the Bank for
Executive immediately prior to his termination. Such life insurance coverage and non-taxable
medical and dental insurance coverage shall cease upon the earlier of (i) the date which is one (1)
year from the date of termination, or (ii) with respect to each such coverage (e.g., life
insurance, medical and/or dental coverage), the date on which such coverage is made available to
the Executive through subsequent employment. The Executive’s health care continuation rights
available under COBRA shall commence following the termination of the coverage provided by this
Section 6(f).
(iv) “Good Reason” exists if, without Executive’s express written consent, any of the
following occurs:
(1) a failure to elect or reelect or to appoint or reappoint Executive as President and Chief
Executive Officer of the Company and the Bank (provided, however, that a change in the Executive
Position consented to in writing by Executive in connection with succession planning of the
Employer, shall not be deemed a Good Reason);
(2) a material change in Executive’s position to become one of lesser responsibility,
importance, or scope from the position and attributes thereof described in Section 1 above
(provided, however, that a reduction in duties and responsibilities consented to in writing by
Executive in connection with succession planning of the Employer, shall not be deemed a Good
Reason);
(3) a liquidation or dissolution of the Company or the Bank, other than liquidations or
dissolutions that are caused by reorganizations that do not affect the status of Executive;
(4) a material reduction in Executive’s Base Salary or benefits required to be provided
hereunder (other than a reduction that is generally applicable to the Employer’s executive
employees or a reduction or elimination of Executive’s benefits under one or more benefit plans
maintained by the Bank as part of a good faith, overall reduction or elimination of such plans or
benefits applicable to all participants in a manner that does not discriminate against Executive
(except as such discrimination may be necessary to comply with applicable law);
(5) a relocation of Executive’s principal place of employment by more than twenty-five (25)
miles from its location as of the date of this Agreement; or
(6) a material breach of this Agreement by the Employer.
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(g) Termination and Board Membership. To the extent Executive is a member of the board
of directors of the Company, the Bank or any of their affiliates on the date of termination of
employment with the Employer (other than a termination due to Retirement), Executive will resign
from all of the boards of directors immediately following such termination of employment with the
Employer. Executive shall tender this resignation regardless of the method or manner of termination
(other than termination due to Retirement), and such resignation will not be conditioned upon any
event or payment.
(h) Section 409A. Notwithstanding anything else in this Agreement, Executive’s
employment shall not be deemed to have been terminated unless and until Executive has a Separation
from Service within the meaning of Section 409A of the Code. For purposes of this Agreement, a
“Separation from Service” shall have occurred if the Employer and Executive reasonably anticipate
that no further services will be performed by Executive after the date of the termination. For all
purposes hereunder, the definition of Separation from Service shall be interpreted consistent with
Treasury Regulation Section 1.409A-1(h)(ii).
(i) Section 280G. In the event that the aggregate payments or benefits to be made or
afforded to Executive in the event of a change in control of the Company or the Bank as defined in
Code Section 280G under this Agreement or otherwise) would be deemed to include an “excess
parachute payment” under Code Section 280G or any successor thereto, then such payments or benefits
shall be reduced to the extent necessary to avoid treatment as an excess parachute payment, with
the reduction among such payments and benefits to be made first to payments and benefits payable or
provided under this Agreement.
7. NOTICE
(a) Notice of Termination. A “notice of termination” shall mean a written notice which
shall indicate the specific termination provision in this Agreement relied upon as a basis for
termination of Executive’s employment.
(b) Date of Termination. “Date of termination” shall mean (i) if Executive’s
employment is terminated for Disability, thirty (30) days after a notice of termination is given
(provided that he shall not have returned to the performance of his duties on a full-time basis
during such thirty (30) day period), (ii) if Executive terminates employment With Good Reason,
thirty (30) days after a notice of termination is given, or (iii) if Executive’s employment is
terminated for any other reason, the date specified in the notice of termination.
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(c) Good Faith Resolution. If the party receiving a notice of termination desires to
dispute or contest the basis or reasons for termination, the party receiving the notice of
termination must notify the other party within twenty (20) days after receiving the notice of
termination that such a dispute exists, and shall pursue the resolution of such dispute in good
faith and with reasonable diligence in accordance with Section 16 hereof. During the pendency of
any such dispute (other than following a termination for Cause), the Employer shall pay Executive
his full compensation in effect when the notice giving rise to the dispute was given (including,
but not limited to, Base Salary) and continue him as a participant in all compensation, and Benefit
plans in which he was participating when the notice of dispute was given, until the earlier to
occur of (i) the expiration of the remaining term of this Agreement had Executive’s termination
hereunder not occurred, and (ii) final resolution of the dispute in accordance with this Agreement.
Amounts paid under this Section are in addition to all other amounts due under this Agreement and
shall not be offset against or reduce any other amounts due under this Agreement, except in the
event that Employer prevails in the dispute, in which case all amounts paid hereunder shall be
offset against any other amount due under this Agreement.
8. POST-TERMINATION OBLIGATIONS
(a) Non-Solicitation. Executive hereby covenants and agrees that, for a period of one
(1) year following his termination of employment with the Employer for any reason, he shall not,
without the written consent of the Employer either directly or indirectly (i) solicit, offer
employment to, or take any other action intended (or that a reasonable person acting in like
circumstances would expect) to have the effect of causing any officer or employee of the Employer
or any of its respective subsidiaries or affiliates, to terminate his employment and accept
employment or become affiliated with, or provide services for compensation in any capacity
whatsoever to, any business whatsoever that competes with the business of the Employer, or any of
their direct or indirect subsidiaries or affiliates, or that has headquarters or offices within
twenty-five (25) miles of any location(s) in which the Employer has business operations or has
filed an application for regulatory approval to establish an office; or (ii) solicit, provide any
information, advice or recommendation or take any other action intended (or that a reasonable
person acting in like circumstances would expect) to have the effect of causing any customer of the
Employer to terminate an existing business or commercial relationship with the Employer.
(b) Confidentiality. Executive recognizes and acknowledges that the knowledge of the
business activities, plans for business activities, and all other proprietary information of the
Employer, as it may exist from time to time, are valuable, special and unique assets of the
business of the Employer. Executive will not, during or after the term of his employment, disclose
any knowledge of the past, present, planned or considered business activities or any other similar
proprietary information of the Employer to any person, firm, corporation, or other entity for any
reason or purpose whatsoever unless expressly authorized by the Board or required by law.
Notwithstanding the foregoing, Executive may disclose any knowledge of banking, financial and/or
economic principles, concepts or ideas which are not solely and exclusively derived from the
business plans and activities of the Employer. Further, Executive may disclose information
regarding the business activities of the Employer to any bank regulator having regulatory
jurisdiction over the activities of the Employer pursuant to a formal regulatory request. In the
event of a breach or threatened breach by Executive of the provisions of this Section, the Employer
will be entitled to an injunction restraining Executive from disclosing, in whole or in part, the
knowledge of the past, present, planned or considered business activities of the Employer or any
other similar proprietary information, or from rendering any services to any
person, firm, corporation, or other entity to whom such knowledge, in whole or in part, has been
disclosed or is threatened to be disclosed. Nothing herein will be construed as prohibiting the
Employer from pursuing any other remedies available to the Employer for such breach or threatened
breach, including the recovery of damages from Executive.
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(c) Information/Cooperation. Executive shall, upon reasonable notice, furnish such
information and assistance to the Employer as may be reasonably required by the Employer, in
connection with any litigation in which it or any of its subsidiaries or affiliates is, or may
become, a party; provided, however, that Executive shall not be required to provide information or
assistance with respect to any litigation between Executive and the Employer or any other
subsidiaries or affiliates.
(d) Reliance. All payments and benefits to Executive under this Agreement shall be
subject to Executive’s compliance with this Section 8, to the extent applicable. The parties
hereto, recognizing that irreparable injury will result to the Employer, its business and property
in the event of Executive’s breach of this Section 8, agree that, in the event of any such breach
by Executive, the Employer will be entitled, in addition to any other remedies and damages
available, to an injunction to restrain the violation hereof by Executive and all persons acting
for or with Executive. Executive represents and admits that Executive’s experience and capabilities
are such that Executive can obtain employment in a business engaged in other lines of business than
the Employer, and that the enforcement of a remedy by way of injunction will not prevent Executive
from earning a livelihood. Nothing herein will be construed as prohibiting the Employer from
pursuing any other remedies available to them for such breach or threatened breach, including the
recovery of damages from Executive.
9. SOURCE OF PAYMENTS/RELEASE
(a) All payments provided in this Agreement shall be timely paid in cash or check from the
general funds of the Company or the Bank, as appropriate.
(b) Notwithstanding any provision herein to the contrary, to the extent that payments and
benefits required by this Agreement, are paid or received by Executive from the Company, such
compensation and benefits paid by the Company will be subtracted from any amount due simultaneously
to Executive from the Bank under this Agreement. There is not intended to be a duplication of
payments and benefits under this Agreement. Payments required to be made to Executive pursuant to
this Agreement shall be allocated in proportion to the level of activity and the time expended on
such activities by Executive as determined by the Company and the Bank.
(c) Notwithstanding anything to the contrary in this Agreement, Executive shall not be
entitled to any payments or benefits under Section 6 of this Agreement unless and until Executive
executes an unconditional release of any claims against the Employer and their affiliates,
including their officers, directors, successors and assigns, releasing said persons from any and
all claims, rights, demands, causes of action, suits, arbitrations or grievances relating to the
employment relationship other than claims for benefits under tax-qualified plans or other benefit
plans in which Executive is vested, claims for benefits required by applicable law or
claims with respect to obligations set forth in this Agreement that survive the termination of this
Agreement.
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10. REQUIRED REGULATORY PROVISIONS
(a) The Bank may terminate Executive’s employment at any time, but any termination by the
Board other than termination for Cause shall not prejudice Executive’s right to compensation or
other benefits under this Agreement. Executive shall have no right to receive compensation or other
benefits for any period after termination for Cause.
(b) If Executive is suspended from office and/or temporarily prohibited from participating in
the conduct of the Bank’s affairs by a notice served under Section 8(e)(3) [12 U.S.C. §1818(e)(3)]
or 8(g)(I) [12 U.S.C. §1818(g)(1)] of the Federal Deposit Insurance Act, the Bank’s obligations
under this contract shall be suspended as of the date of service, unless stayed by appropriate
proceedings. If the charges in the notice are dismissed, the Bank may in its discretion pay
Executive all or part of the compensation withheld while its contract obligations were suspended
and reinstate (in whole or in part) any of its obligations which were suspended.
(c) If Executive is removed and/or permanently prohibited from participating in the conduct of
the Bank’s affairs by an order issued under Section 8(e)(4) [12 U.S.C. §1818(e)(4)] or 8(g)(I) [12
U.S.C. §1818(g)(1)] of the Federal Deposit Insurance Act, all obligations of the Bank under this
Agreement shall terminate as of the effective date of the order, but vested rights of the
contracting parties shall not be affected.
(d) If the Bank is in default as defined in Section 3(x)(1) [12 U.S.C. §1813(x)(1)] of the
Federal Deposit Insurance Act, all obligations of the Bank under this Agreement shall terminate as
of the date of default, but this paragraph shall not affect any vested rights of the contracting
parties.
(e) All obligations under this Agreement shall be terminated, except to the extent determined
that continuation of the contract is necessary for the continued operation of the Bank, (i) by the
Director of the Office of Thrift Supervision (“OTS”) or his or her designee, at the time the FDIC
enters into an agreement to provide assistance to or on behalf of the Bank under the authority
contained in Section 13(c) [12 U.S.C. §1823(c)] of the Federal Deposit Insurance Act; or (ii) by
the Director or his or her designee at the time the Director or his or her designee approves a
supervisory merger to resolve problems related to operation of the Bank or when the Bank is
determined by the Director to be in an unsafe or unsound condition. Any rights of the parties that
have already vested, however, shall not be affected by such action.
(f) Notwithstanding anything herein contained to the contrary, any payments to Executive by
the Bank or the Company, whether pursuant to this Agreement or otherwise, are subject to and
conditioned upon their compliance with Section 18(k) of the Federal Deposit Insurance Act, 12
U.S.C. § 1828(k), and the regulations promulgated thereunder in 12 C.F.R. Part 359.
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11. NO ATTACHMENT
Except as required by law, no right to receive payments 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 or assignment by operation of
law, and any attempt, voluntary or involuntary, to effect any such action shall be null, void, and
of no effect.
12. ENTIRE AGREEMENT; MODIFICATION AND WAIVER
(a) This Agreement contains the entire agreement of the parties relating to the subject matter
hereof, and supersedes in its entirety any and all prior agreements, understandings or
representations relating to the subject matter hereof, except that the parties acknowledge that
this Agreement shall not affect any of the rights and obligations of the parties under any
agreement or plan entered into with or by the Employer pursuant to which Executive may receive
compensation or benefits except as set forth in Section 6(d) hereof.
(b) This Agreement may not be modified or amended except by an instrument in writing signed by
each of the parties hereto.
(c) No term or condition of this Agreement shall be deemed to have been waived, nor shall
there be any 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 such 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 as to any act other than that specifically waived.
13. SEVERABILITY
If, for any reason; any provision of this Agreement, or any part of any provision, is held invalid,
such invalidity shall not affect any other provision of this Agreement or any part of such
provision not held so invalid, and each such other provision and part thereof shall to the full
extent consistent with law continue in full force and effect.
14. HEADINGS FOR REFERENCE ONLY
The headings of sections and 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.
15. GOVERNING LAW
This Agreement shall be governed by the laws of the State of Ohio, but only to the extent not
superseded by federal law.
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16. ARBITRATION
Any dispute or controversy arising under or in connection with this Agreement shall be settled
exclusively by birding arbitration, as an alternative to civil litigation and without any trial by
jury to resolve such claims, conducted by a single arbitrator who is certified by the American
Arbitration Association and is mutually acceptable to the Employer and Executive, sitting in a
location selected by the Employer within fifty (50) miles from the main office of the Employer, in
accordance with the rules of the American Arbitration Association’s National Rules for the
Resolution of Employment Disputes then in effect. Judgment may be entered on the arbitrator’s award
in any court having jurisdiction.
17. PAYMENT OF LEGAL FEES
The reasonable legal fees paid or incurred by Executive in connection with (i) the preparation and
negotiation of this Agreement (but not in excess of $5,000) and (ii) any dispute or question of
interpretation relating to this Agreement shall be paid or reimbursed by the Employer, provided
that in the case of a dispute or question of interpretation, (i) the dispute or question of
interpretation has been settled by Executive and the Employer or resolved in Executive’s favor and
(ii) Executive has provided prior written notice to the Employer of his intention to retain counsel
and the name of such counsel. Such reimbursement shall occur as soon as practicable but no later
than sixty (60) days after the end of the year in which the dispute is settled or resolved in
Executive’s favor.
18. INDEMNIFICATION
(a) Indemnification. The Employer agrees to indemnify Executive (and his heirs,
executors, and administrators), and to advance expenses related to this indemnification, to the
fullest extent permitted under applicable law and regulations against any and all expenses and
liabilities that Executive reasonably incurs in connection with or arising out of any action, suit,
or proceeding in which he may be involved by reason of his service as a director or officer of the
Employer or any other affiliates (whether or not he continues to be a director or officer at the
time of incurring any such expenses or liabilities). Covered expenses and liabilities include, but
are not limited to, judgments, court costs, and attorneys’ fees, and the costs of reasonable
settlements approved by the Board, if the action is brought against Executive in his capacity as an
officer or director of the Employer. Indemnification for expenses will not extend to matters
related to Executive’s termination for Cause. Notwithstanding anything in this Section 18 to the
contrary, the Employer will not be required to provide indemnification prohibited by applicable law
or regulation. The obligations of this Section 18 will survive the term of this Agreement for a
period of six (6) years.
(b) Insurance. During the period for which the Employer must indemnify Executive, the
Employer will provide Executive with coverage under a directors’ and officers’ liability policy at
the Employer’s expense, that is at least equivalent to the coverage provided to directors and
senior executives of the Employer.
19. SUCCESSORS AND ASSIGNS
The Employer shall require any successor or assignee, whether direct or indirect, by purchase,
merger, consolidation or otherwise, to all or substantially all the business or assets of the
Employer, expressly and unconditionally to assume and agree to perform the Employer’s obligations
under this Agreement, in the same manner and to the same extent that the Employer would be required
to perform if no such succession or assignment had taken place.
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SIGNATURES
IN WITNESS WHEREOF, the Employer has caused this Agreement to be executed by its duly authorized
officers, and Executive has signed this Agreement, on this
_____
day of , 2009.
| PARK VIEW FEDERAL SAVINGS BANK | ||||||
| By: | ||||||
Date
|
Chairman of the Board | |||||
| PVF CAPITAL CORP. | ||||||
| By: | ||||||
Date
|
Chairman of the Board | |||||
Date
|
Xxxxxx X. Xxxx, Xx. | |||||
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