Exhibit 10.3
SEVERANCE AGREEMENT
This AGREEMENT is made and entered into this 26th day of October, 1999,
by and among PVF Capital Corp. (the "Corporation"), a corporation organized
under the laws of the State of Ohio, Park View Federal Savings Bank (the
"Bank"), an OTS-chartered, FDIC-insured savings association with its main office
located in Cleveland, Ohio and Xxxx X. Male (the "Executive"). Any reference to
the "Board of Directors" herein shall mean the Board of Directors of the
Corporation or the Bank or a committee serving at the pleasure of the Board of
Directors of the Bank. Any reference to "FDIC" herein shall mean the Federal
Deposit Insurance Corporation. Any reference to "OTS" shall mean the Office of
Thrift Supervision.
WHEREAS, the Executive serves as an employee of the Bank;
WHEREAS, the Corporation, the Bank and the Executive are parties to a
Severance Agreement dated July 1, 1998; and
WHEREAS, the parties hereto desire that this Agreement supersede and
replace in its entirety the July 1, 1998 Severance Agreement;
NOW THEREFORE, in consideration of the performance of the
responsibilities of the Executive and upon the other terms and conditions
hereinafter provided, the parties hereto agree as follows:
1. NO EMPLOYMENT CONTRACT
The parties hereto acknowledge and agree that this Agreement is not a
management or employment agreement and that nothing in this Agreement shall give
the Executive any rights or impose any obligations to continued employment by
the Bank or Corporation or any subsidiary or successor of the Bank or
Corporation, nor shall it give the Bank or Corporation any rights or impose any
obligations for the continued performance of duties by the Executive for the
Bank or Corporation or any subsidiary or successor of the Bank or Corporation.
2. TERM OF AGREEMENT
The initial term of this Agreement shall be for a period of three (3)
years commencing November 1st, 1999 (hereafter referred to as the "Anniversary
Date"). Commencing on the first Anniversary Date of this Agreement, and
continuing at each Anniversary Date thereafter, the Agreement shall
automatically renew for one (1) additional year beyond the then effective
expiration date only upon a determination and resolution of the Board of
Directors that the performance of the Executive has met the requirements and
standards of the Board and that such term shall be extended. If the Board of
Directors determines not to extend the term, it shall promptly so notify the
Executive, with such election by the Board not to extend the term not to
otherwise affect the then effective term of this Agreement. Reference herein to
the term of this Agreement shall refer both to such initial term and such
extended terms. Unless sooner terminated as set forth herein, this contract
shall terminate when the Executive reaches age sixty-five (65).
3. TERMINATION FOR CAUSE
If the Corporation or Bank terminates the Executive's employment for
cause (as defined below), all of the Bank's and Corporation's obligations
hereunder shall immediately terminate as of the termination date. For purposes
of this Agreement, termination "for cause" shall mean only the following events:
(i) personal dishonesty; (ii) incompetence; (iii) material breach of any
provision of this Agreement; (iv) breach of fiduciary duty involving personal
profit; (v) intentional failure to perform stated duties; (vi) a material breach
of the reasonable policies and procedures for the operation of the Bank provided
to the Executive by formal action of the Bank's Board of Directors; (vii)
willful violation of any law, rule, regulation (other than a law, rule or
regulation relating to a traffic violation or similar offense) or final
cease-and-desist order; or (viii) willful misconduct.
4. VOLUNTARY TERMINATION OF AGREEMENT
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This Agreement may be terminated by the Executive at any time upon
ninety (90) days' written notice to either the Bank or the Corporation or upon
such shorter period as may be agreed upon between the Executive and the Board of
Directors.
5. GOVERNMENTAL TERMINATION OF AGREEMENT
(a) If the Executive is removed from office and/or permanently
prohibited from participating in the conduct of the Bank's or the Corporation's
affairs by an order issued under Section 8(e) of the Federal Deposit Insurance
Act, 12 U.S.C. Section 1818(e), all obligations of the Bank and the Corporation
under this Agreement shall terminate, as of the effective date of the order.
(b) If the Bank is in default (as defined in Section 3(x)(1) of the
Federal Deposit Insurance Act), all obligations under this Agreement shall
terminate.
(c) 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, by the Director of the 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) of the
Federal Deposit Insurance Act, or by the Director of the OTS or his or her
designee at the time the Director of the OTS or his or her designee approves a
supervisory merger to resolve problems related to the operation of the Bank or
when the Bank is determined by the Director of the OTS 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.
(d) If the Executive is suspended and/or temporarily prohibited from
participating in the conduct of the Bank's affairs by a notice served under
Section 8(e)(3) or (g)(1) of the Federal Deposit Insurance Act, 12 U.S.C.
Section 1818(e)(3) or (g)(1), the Corporation's and the Bank's obligations under
subparagraphs 6(a),
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(b) and (c) of this Agreement shall be suspended as the date of service, unless
stayed by appropriate proceedings.
(e) If the charges in the notice referenced in subparagraph 5(d) are
dismissed, the Board of Directors may in its discretion:
(i) pay the Executive all or part of the severance benefits while
the Corporation's and the Bank's contract obligations were
suspended, and
(ii) reinstate (in whole or in part) any of the Corporation's and
the Bank's obligations which were suspended as required in
subparagraph (d) above.
6. SEVERANCE PAYMENTS OR TERMINATION BENEFITS
For purpose of this Agreement, the severance payments and termination
benefits specified in this Paragraph 6 shall be payable to the Executive
subsequent to the occurrence of one of the following events:
(i) Involuntary termination of the Executive's employment with the
Bank or Corporation with or within one (1) year after a Change
in Control, other than for Cause or pursuant to Paragraphs 4
or 5 of this Agreement. For purposes of this section, Change
in Control shall have the same meaning as such term is defined
in Paragraph 8, and Cause shall have the same meaning as such
term is defined in Paragraph 3.
(ii) Voluntary or involuntary termination for Good Reason, as
defined in Paragraph 7, and other than for Cause or pursuant
to Paragraphs 4 or 5 of this Agreement.
(a) Upon the Executive's termination as a result of one of the events
specified in this Paragraph 6, the Bank or Corporation shall pay to Executive,
or in the event of his subsequent death, his beneficiary or beneficiaries, or
his estate as the case may be, as severance pay or liquidated damages, or both,
a sum equal to two times the Executive's annual compensation. For purposes of
this Paragraph, compensation shall be defined as the Executive's then current
base salary, plus annual incentive compensation for the calendar year
immediately preceding the year in which the above-mentioned event occurs. Such
payment
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shall be paid to the Executive in a lump sum within thirty (30) days of the
Executive's date of termination. The amount payable to the Executive hereunder
shall not be reduced to account for the time value of money or discounted to
present value.
(b) Upon the Executive's termination as a result of one of the events
specified in this Paragraph 6, the Bank or Corporation shall cause the Executive
to become fully vested in any qualified and/or nonqualified plans, programs or
arrangements in which the Executive participated, notwithstanding any provisions
contained in the respective Agreement of the plan, program or arrangement. The
Bank shall also contribute to the Executive's 401(k) Plan Account the Bank's
matching and/or profit sharing which would have been paid had the Executive
remained in the employ of the Bank throughout the remainder of the 401(k) Plan
year.
(c) Upon the Executive's termination as a result of one of the events
specified in this Paragraph 6, the Corporation or Bank will cause to be
continued life, health and disability insurance coverage substantially identical
to the coverage maintained by the Bank or the Corporation for the Executive
prior to his severance. Such coverage shall cease upon the earlier of
Executive's employment by another employer or twelve (12) months from such
termination. Upon the expiration of the twelve (12) month period, Executive
shall have the option of continuing health insurance coverage at his/her own
expense for a period not less than the number of months by which the
Consolidated Omnibus Budget Reconciliation Act (COBRA) continuation period
exceeds twelve (12) months.
(d) The Executive shall not be required to mitigate the amount of any
payment required hereunder by seeking other employment or otherwise nor shall
the amount paid hereunder be reduced or offset by any compensation earned or
received by the Executive as a result of employment with another employer or
self- employment. The amount paid hereunder shall not be reduced by any other
plan, program, policy
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or arrangement of the Bank or Corporation. Benefits provided under Paragraph
6(c) shall be reduced to the extent comparable benefits are actually received by
the Executive from or through another employer.
7. GOOD REASON
For purposes of this Agreement, "Good Reason" means the occurrence of
any of the events or conditions described in subparagraphs (a) through (f)
hereof without the Executive's express written consent; provided the Executive's
right to terminate his employment pursuant to this Paragraph 7 shall not be
affected by his incapacity due to physical or mental illness.
(a) A change in the Executive's status, title, position or
responsibilities (including reporting responsibilities) which,
in the Executive's reasonable judgment, does not represent a
promotion from his status, title, position or responsibilities
as in effect immediately prior thereto; the assignment to the
Executive of any duties or responsibilities which, in the
Executive's reasonable judgment, are inconsistent with such
status, title, position or responsibilities; or any removal of
the Executive from or failure to reappoint him to any of such
positions, except in connection with the termination of his
employment for (i) Cause, (ii) pursuant to Paragraphs 4 or 5,
(iii) by the Executive other than for Good Reason;
(b) A material reduction by the Bank or the Corporation in the
Executive's base salary;
(c) The relocation of Executive's principal place of employment to
a location that is more than thirty-five (35) miles from the
location where Executive was principally employed immediately
prior to such relocation or the Bank's or the Corporation's
requiring the Executive to be based at any place other than
the location where the Executive was based immediately prior
to such change, except for reasonably required travel (as
determined by the Board of Directors) on the Bank's or the
Corporation's business;
(d) The failure by the Bank or the Corporation to continue to
provide the Executive with benefits substantially similar to
those provided to him under any of the employee benefit plans
in which the Executive becomes a participant, or the taking of
any action by the Bank or the Corporation which would directly
or indirectly materially reduce any of such benefits or
deprive the Executive of any material fringe benefit enjoyed
by him;
(e) Death prior to retirement. If the Executive dies while
actively employed by the Bank or Corporation prior to
retirement; or
(f) Disability prior to retirement. If the Executive becomes
totally disabled while actively employed by the Bank or
Corporation prior to retirement. For purposes of this
agreement, the term "totally disabled" means that because of
injury or sickness, the Executive is unable to perform his
duties.
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8. CHANGE IN CONTROL
(a) If there is a Change in Control of the Bank or Corporation during
the term of this Agreement, the Executive shall be entitled to severance
payments and/or termination benefits as described in Paragraph 6 if the
Executive's employment with the Bank or the Corporation is involuntarily
terminated in connection with or within one (1) year after the Change in
Control, other than for Cause or pursuant to Paragraphs 4 or 5. This payment
shall also be made in the case of the Executive's voluntary termination of
employment for Good Reason (as defined in Paragraph 7) in connection with or
within one (1) year after a Change in Control of the Bank or Corporation. Such
voluntary termination of employment for Good Reason in connection with or within
one (1) year after a Change in Control of the Bank or Corporation shall not
constitute a termination for Cause or a voluntary termination subject to
Paragraph 4 of this Agreement.
(b) For purposes of this Agreement, "Change in Control of the Bank or
Corporation" means:
(i) The acquisition by a person or persons acting in concert of
the power to vote twenty-five percent (25%) or more of a class
of the Corporation's voting securities;
(ii) the acquisition by a person of the power to direct the Bank's
or Corporation's management or policies, if the Board of
Directors or the OTS has made a determination that such
acquisition constitutes or will constitute an acquisition of
control of the Bank or Corporation for the purposes of the
Savings & Loan Holding Company Act or the Change in Bank
Control Act and the regulations thereunder;
(iii) during any period of two (2) consecutive years during the term
of this Agreement, individuals who at the beginning of such
period constitute the Board of Directors of the Bank or the
Corporation cease, for any reason, to constitute at least a
majority thereof, unless the election of each director who was
not a director at the beginning of such period has been
approved in advance by directors representing at least two-
thirds (2/3) of the directors then in office who were
directors in office at the beginning of the period;
(iv) the Corporation shall have merged into or consolidated with
another corporation, or merged another corporation into the
Corporation, on a basis whereby less than fifty percent (50%)
of the total voting power of the surviving corporation is
represented by
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shares held by former shareholders of the Corporation prior to
such merger or consolidation; or
(v) the Corporation shall have sold to another person (i)
substantially all of the Corporation's assets or (ii) the
Bank. The term "person" refers to an individual, corporation,
partnership, trust, association, joint venture, pool,
syndicate, sole proprietorship, unincorporated organization or
other entity.
9. WITHHOLDING OF TAXES
The Bank or Corporation may withhold from any benefits payable under
this Agreement all Federal, state, city or other taxes as may be required
pursuant to any law, governmental regulation or ruling.
10. PAYMENT OF LEGAL AND/OR ACCOUNTING FEES
Reasonable legal and/or accounting fees and expenses paid or incurred
by the Executive pursuant to any dispute or question of interpretation relating
to the Agreement shall be paid or reimbursed by the Corporation in accordance
with the following:
(a) If the Executive, the Bank or the Corporation initiates a
proceeding and the Executive prevails, all reasonable legal
and/or accounting fees and expenses shall be paid by the
Corporation.
(b) If the Executive initiates a proceeding and does not prevail
on his claim, then the Corporation shall reimburse the
Executive for all legal and/or accounting fees and expenses
but not to exceed the sum of $25,000.
11. SUCCESSOR ORGANIZATION
The obligations of the Corporation and the Bank as set forth herein
shall continue to be the obligation of any successor organization, any
organization which purchases substantially all of the liabilities of the
Corporation or the Bank, as well as any organization which assumes substantially
all of the liabilities of the Corporation or the Bank whether by merger,
consolidation, or other form of business
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combination. This Agreement is personal to the Executive and the Executive may
not delegate his duties hereunder.
12. NOTICES
All notices, requests, demands and other communications hereunder shall
be in writing and shall be deemed to have been duly given if delivered by hand
or mailed, certified or registered mail, return receipt requested, with postage
prepaid to the following addresses or to such other address as either party may
designate by like notice.
(a) If to the Corporation, to:
PVF Capital Corp.
Corporate Center
0000 Xxxxx Xxxxxxxx Xxxxxxxxx
Xxxxxxxxx, Xxxx 00000
Attn: Vice President and Secretary
(b) If to the Bank, to:
Park View Federal Savings Bank
Corporate Center
0000 Xxxxx Xxxxxxxx Xxxxxxxxx
Xxxxxxxxx, Xxxx 00000
Attn: Corporate Secretary
(c) If to the Executive, to: Xxxx X. Male
------------------
[RESIDENCE ADDRESS NOT SHOWN]
and to such other or additional person or persons as either party shall have
designated to the other party in writing by like notice.
13. AMENDMENTS
No amendments or additions to this Agreement shall be binding unless in
writing and signed by both parties, except as herein otherwise provided.
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14. PARAGRAPH HEADINGS
The paragraph headings used in this Agreement are included solely for
convenience and shall not affect, or be used in connection with, the
interpretation of this Agreement.
15. SEVERABILITY
The provisions of this Agreement shall be deemed severable and the
invalidity or unenforceability of any provision shall not affect the validity or
enforceability of the other provisions here.
16. GOVERNING LAW
This Agreement shall, except to the extend that federal law (including
any law, rule, or regulations of the OTS or the FDIC) shall be deemed to apply,
be governed by and construed and enforced in accordance with the laws of Ohio.
17. ARBITRATION
Any dispute or controversy arising under or in connection with 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.
18. SAFETY AND SOUNDNESS LIMITATIONS
Notwithstanding any other provision of this Agreement, no severance
benefits under Paragraph 8 shall be paid or payable in respect of any year in
which the Bank (i) fails to meet any applicable capital requirements imposed by
Part 567 of the OTS regulations (or successor regulations) after giving effect
to the payment of severance benefits hereunder, (ii) receives or maintains a
safety and soundness CAMEL rating of 4 or 5 from the OTS, or (iii) is subject to
a proceeding to terminate deposit insurance. Severance benefits can be paid
under clause (i) above to the extent that such payment would not cause the Bank
to fail to meet any applicable capital requirements imposed by part
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567 of the OTS regulations. In addition, no severance benefits under Paragraph 8
shall be paid or payable if the Executive has committed any fraudulent act or
omission or other fiduciary breach that had or is likely to have a material
adverse affect on the bank or the Corporation.
19. ENTIRE AGREEMENT
This Agreement supersedes the July 1, 1998 Severance Agreement by and
among the Corporation, the Bank and the Executive.
IN WITNESS WHEREOF, the parties have executed this Agreement on the day
and year first herein above written.
WITNESSES: PVF CAPITAL CORP.
/s/ Xxxxxxx Xxxxx By: /s/ Xxxxx X. Male
-------------------------- --------------------------
Xxxxx X. Male
/s/ Xxxxx Xxxxxxx Its: Chairman of the Board
--------------------------
PARK VIEW FEDERAL SAVING BANK
By: /s/ Xxxxxx X. Xxxxxx
--------------------------
Xxxxxx X. Xxxxxx
Its: Chairman of the Compensation
Committee
EXECUTIVE
/s/ Xxxx X. Male
-------------------------------
Xxxx X. Male
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County of Cuyahoga )
) ss:
State of Ohio )
Before me this 6th day of December, 1999, personally appeared the
above named Xxxxx X. Male, Xxxxxx X. Xxxxxx and Xxxx X. Male, who acknowledged
that they did sign the foregoing instrument and that the same was their free act
and deed.
/s/ Xxxxxxx Xxxxxxx
--------------------------------
(Notary Seal) Notary Public
My Commission Expires:
XXXXXXX X. XXXXXXX, Notary Public
State of Ohio
My Commission Expires Jan. 26, 2004
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[PARK VIEW FEDERAL SAVINGS BANK LETTERHEAD]
January 29, 2001
Xx. Xxxx X. Male
Park View Federal Savings Bank
Corporate Center
00000 Xxxxxx Xxxx
Xxxxx, XX 00000
RE: Amendment to Severance Agreement
Dear Xxxx,
The purpose of this letter is to memorialize in writing certain changes to
your Severance Agreement dated the 26th day of October, 1999 (the "Agreement"),
which changes, we, PVF Capital Corp. (the "Corporation") and Park View Federal
Savings Bank (the "Bank"), have agreed to. In accordance with the terms of the
Agreement, particularly Section 13 ("Amendments") thereof, please signify your
consent to these changes by executing this letter and returning it to the Bank.
The changes we have agreed to are as follows:
1. Section 3 ("Termination for Cause") of the Agreement shall be revised by
deleting the second sentence in its entirety ("As used herein, "for cause"
shall mean....") and inserting the following:
For purposes of this Agreement, termination "for cause" shall mean
only the following events: (i) personal dishonesty; (ii) incompetence;
(iii) material breach of any provision of this Agreement; (iv) breach
of fiduciary duty involving personal profit; (v) intentional failure
to perform stated duties; (vi) a material breach of the reasonable
policies and procedures for the operation of the Bank provided to the
Executive by formal action of the Bank's Board of Directors; (vii)
willful violation of any law, rule, regulation (other than a law, rule
or regulation relating to a traffic violation or similar offense) or
final cease-and-desist order; or (viii) willful misconduct.
2. Section 12 ("Notices") of the Agreement shall be revised by deleting the
Corporation and Bank addresses listed in subsection (a) and (b),
respectively, and inserting the following:
(a) If to the Corporation, to:
PVF Capital Corp.
Corporate Center
00000 Xxxxxx Xxxx
Xxxxx, XX 00000
Amendment to Severance Agreement
January 29, 2001
Pg 2
(b) If to the Bank, to:
Park View Federal Savings Bank
Corporate Center
00000 Xxxxxx Xxxx
Xxxxx, XX 00000
Please signify your acceptance of and agreement to the foregoing changes by
executing this letter in the space provided and returning it to the Bank. The
changes will become effective upon receipt by the Bank of this letter executed
by you.
PVF CAPITAL CORP.
By: /s/ Xxxx X. Male
--------------------------------------
Xxxx X. Male
Its: Chairman of the Board
PARK VIEW FEDERAL SAVINGS BANK
By: /s/ Xxxxxxx X. Xxxxx
--------------------------------------
Xxxxxxx X. Xxxxx
Its: Chairman of the Compensation Committee
Accepted and agreed to this 29th day of January, 2001, by the undersigned
Executive.
EXECUTIVE
/s/ Xxxx X. Male
--------------------------------------
Xxxx X. Male
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SEVERANCE AGREEMENT
AMENDMENT
WHEREAS, PVF Capital Corp. (the "Corporation"), Park View Federal Savings
Bank (the "Bank"), and Xxxx X. Male (the "Executive") previously entered into a
Severance Agreement, originally effective as of October 26, 1999 (the
"Agreement"); and
WHEREAS, the parties desire to amend the Agreement to update the benefits
provided to the Executive and to provide the Executive with certain tax
indemnification in the event of a change in control of the Corporation and the
Bank; and
WHEREAS, Section 13 of the Agreement provides for its amendment by means of
a written instrument signed by the parties.
NOW, THEREFORE, the parties hereby agree to amend the Agreement as follows:
FIRST CHANGE
Section 6(a) of the Agreement shall be deleted in its entirety and replaced
with the following:
(a) Upon the Executive's termination as a result of one of the events
specified in this Paragraph 6, the Bank or Corporation shall pay to
Executive, or in the event of his subsequent death, his beneficiary
or beneficiaries, or his estate, as the case may be, a sum equal to
three (3) times the Executive's annual compensation. For purposes
of this paragraph, "annual compensation" shall be defined as the
Executive's then current base salary plus annual incentive
compensation for the calendar year immediately preceding the year
in which the above-mentioned event occurs. Such payment shall be
paid to the Executive in a lump sum within thirty (30) days of the
Executive's date of termination. The amount payable to the
Executive hereunder shall not be reduced for the time value of
money or discounted to present value.
SECOND CHANGE
The following shall be added as Section 20 of the Agreement:
20. TAX INDEMNIFICATION
(a) For purposes of this Agreement, "Covered Benefits" shall mean any
payment or benefit paid or provided to the Executive by the Bank,
the Corporation or any affiliate or successor in interest (whether
pursuant to this Agreement or otherwise) that, in the opinion of
Tax Counsel (as defined below), might reasonably be expected to be
subject to any excise tax (the "Excise Tax") imposed under Section
4999 of the Internal Revenue Code of 1986, as
amended (the "Code"). In the event that the Executive shall receive
Covered Benefits, the Corporation shall pay to the Executive an
additional amount (the "Gross-Up Payment"), so that the net amount
retained by the Executive from the Gross-Up Payment, after
deduction of any federal, state and local income taxes, Excise Tax,
and FICA and Medicare withholding taxes on the Gross-Up Payment,
shall be equal to the Excise Tax on the Covered Benefits. For
purposes of determining the amount of the Excise Tax on the Covered
Benefits, the amount of the Covered Benefits that shall be taken
into account in calculating the Excise Tax shall be equal to (i)
the Covered Benefits, less (ii) the amount of such Covered Benefits
that, in the opinion of tax counsel selected by the Company and
reasonably acceptable to the Executive ("Tax Counsel"), are not
parachute payments (within the meaning of Section 280G(b)(1) of the
Code).
(b) For purposes of this Section 20, the Executive shall be deemed to
pay federal income taxes at the highest marginal rate of federal
income taxation in the calendar year in which the Excise Tax is
payable and state and local income taxes at the highest marginal
rate of taxation in the state and locality of the Executive's
residence on the effective date of the Executive's termination, net
of the reduction in federal income taxes which could be obtained
from deduction of such state and local taxes. Except as otherwise
provided herein, all determinations required to be made under this
Section 20 shall be made by Tax Counsel, which determinations shall
be conclusive and binding on the Executive, the Bank and the
Corporation, absent manifest error.
(c) The Corporation shall indemnify and hold the Executive harmless
from losses, costs and expenses which the Executive incurs as a
result of any administrative or judicial review of the Executive's
liability under Section 4999 of the Code by the Internal Revenue
Service or any comparable state agency, through and including a
final judicial determination or final administrative settlement of
any dispute arising out of the Executive's liability for the Excise
Tax or otherwise relating to the classification for purposes of
Section 280G of the Code of any of the Covered Benefits or other
payment or benefit in the nature of compensation made or provided
to the Executive by the Corporation. The Executive shall promptly
notify the Corporation in writing whenever the Executive receives
notice of the commencement of any judicial or administrative
proceeding in which the federal tax treatment under Section 4999 of
the Code of any amount paid or payable under this Agreement or
otherwise is being reviewed or is in dispute (including a notice of
audit or other inquiry concerning the reporting of the Executive's
liability under Section 4999). The Corporation may assume control
at its expense over all legal and accounting matters pertaining to
such federal or state tax treatment of the Covered Benefits or any
payment or benefit in the nature of compensation made or provided
to the Executive by
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the Corporation, and the Executive shall cooperate fully with the
Corporation in any such proceeding. The Executive shall not enter
into any compromise or settlement or otherwise prejudice any rights
the Corporation may have in connection therewith without the prior
consent of the Corporation. In the event that the Corporation
elects not to assume control over such matters, the Corporation
shall promptly reimburse the Executive for all expenses related
thereto as and when incurred, upon presentation of appropriate
documentation relating to such expenses.
The parties hereby ratify the above changes and certify that, in all other
respects, the existing terms and provisions of the Agreement remain in full
force and effect.
IN WITNESS WHEREOF, the Bank and the Corporation have caused this Amendment
to the Agreement to be executed by their duly authorized officers, and the
Executive has signed this Amendment, on the 30th day of April, 2007.
ATTEST: PVF CAPITAL CORP.
/s/ Xxxxx Xxx Xxxxxxx By: /s/ Xxxxxx X. Xxxxxx
---------------------------- -----------------------------------------
For the Board of Directors
ATTEST: PARK VIEW FEDERAL SAVINGS BANK
Xxxxx Xxx Xxxxxxx By: /s/ Xxxxxx X. Xxxxxx
---------------------------- -----------------------------------------
For the Board of Directors
WITNESS: EXECUTIVE
/s/ Xxxxx X. Xxxxxx /s/ Xxxx X. Male
---------------------------- --------------------------------------------
Xxxx X. Male
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THIRD AMENDMENT
TO
SEVERANCE AGREEMENT
This Third Amendment to Severance Agreement (this "Third Amendment") is
made to be effective as of July 24, 2007, by and among PVF Capital Corp. (the
"Corporation"), Park View Federal Savings Bank (the "Bank") and Xxxx Male (the
"Executive").
WHEREAS, Executive, the Corporation and the Bank are parties to a
Severance Agreement dated October 26, 1999, as subsequently amended on January
29, 2001 and April 30, 2007 (as amended, the "Agreement");
WHEREAS, the parties desire to amend the Agreement to include a
non-compete provision; and
WHEREAS, Section 13 of the Agreement provides for its amendment by
means of a written instrument signed by the parties;
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration, the Corporation, Bank and Executive agree as follows:
1. The following shall be added as Section 21 of the Agreement:
21. COVENANT NOT TO COMPETE
Commencing on the date of the Executive's termination
of employment (a) by the Corporation, Bank or any successor
organization for cause or in connection with a Change in
Control, or (b) by the Executive for any reason, and ending on
the third anniversary thereof, the Executive agrees that he
shall not, directly or indirectly, either as principal, agent,
owner, shareholder, officer, director, partner, lender,
investor, independent contractor, consultant or in any other
capacity, engage in, have a financial interest in (except the
ownership by Executive of less than 1% of the outstanding
equity securities of any publicly held corporation) or be in
any way connected or affiliated with, or render advice or
services to any natural person, organization or entity of any
type that engages in any activity that would compete in any
way with the Corporation, the Bank or any successor
organization in Ohio, Pennsylvania, Indiana, Michigan, West
Virginia or Kentucky. This Section 21 shall survive the
termination of this Agreement and the obligations and rights
hereunder shall inure to the benefit of any successor
organization.
2. Except as expressly amended hereby, the Agreement, as amended
by this Third Amendment, shall remain in full force and effect.
3. This Third Amendment may be executed in any number of counterparts,
and each of such counterparts, when so executed, shall be deemed to be an
original and all such counterparts shall together constitute but one and the
same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Third
Amendment, to be effective as of the day and year first above written.
CORPORATION:
PVF CAPITAL CORP.
By: /s/ C. Xxxxx Xxxxxx
-----------------------------------------
Its President, Chief Operating Officer
and Treasurer
--------------------------------------
PARK VIEW FEDERAL SAVINGS BANK
By: /s/ C. Xxxxx Xxxxxx
-----------------------------------------
Its President, Chief Operating Officer
and Treasurer
--------------------------------------
EXECUTIVE:
/s/ Xxxx X. Male
--------------------------------------------
Xxxx X. Male
SEVERANCE AGREEMENT
This AGREEMENT is made and entered into this 26th day of October, 1999,
by and among PVF Capital Corp. (the "Corporation"), a corporation organized
under the laws of the State of Ohio, Park View Federal Savings Bank (the
"Bank"), an OTS-chartered, FDIC-insured savings association with its main office
located in Cleveland, Ohio and C. Xxxxx Xxxxxx (the "Executive"). Any reference
to the "Board of Directors" herein shall mean the Board of Directors of the
Corporation or the Bank or a committee serving at the pleasure of the Board of
Directors of the Bank. Any reference to "FDIC" herein shall mean the Federal
Deposit Insurance Corporation. Any reference to "OTS" shall mean the Office of
Thrift Supervision.
WHEREAS, the Executive serves as an employee of the Bank;
WHEREAS, the Corporation, the Bank and the Executive are parties to a
Severance Agreement dated July 1, 1998; and
WHEREAS, the parties hereto desire that this Agreement supersede and
replace in its entirety the July 1, 1998 Severance Agreement;
NOW THEREFORE, in consideration of the performance of the
responsibilities of the Executive and upon the other terms and conditions
hereinafter provided, the parties hereto agree as follows:
1. NO EMPLOYMENT CONTRACT
The parties hereto acknowledge and agree that this Agreement is not a
management or employment agreement and that nothing in this Agreement shall give
the Executive any rights or impose any obligations to continued employment by
the Bank or Corporation or any subsidiary or successor of the Bank or
Corporation, nor shall it give the Bank or Corporation any rights or impose any
obligations for the continued performance of duties by the Executive for the
Bank or Corporation or any subsidiary or successor of the Bank or Corporation.
2. TERM OF AGREEMENT
The initial term of this Agreement shall be for a period of three (3)
years commencing November 1st, 1999 (hereafter referred to as the "Anniversary
Date"). Commencing on the first Anniversary Date of this Agreement, and
continuing at each Anniversary Date thereafter, the Agreement shall
automatically renew for one (1) additional year beyond the then effective
expiration date only upon a determination and resolution of the Board of
Directors that the performance of the Executive has met the requirements and
standards of the Board and that such term shall be extended. If the Board of
Directors determines not to extend the term, it shall promptly so notify the
Executive, with such election by the Board not to extend the term not to
otherwise affect the then effective term of this Agreement. Reference herein to
the term of this Agreement shall refer both to such initial term and such
extended terms. Unless sooner terminated as set forth herein, this contract
shall terminate when the Executive reaches age sixty-five (65).
3. TERMINATION FOR CAUSE
If the Corporation or Bank terminates the Executive's employment for
cause (as defined below), all of the Bank's and Corporation's obligations
hereunder shall immediately terminate as of the termination date. For purposes
of this Agreement, termination "for cause" shall mean only the following events:
(i) personal dishonesty; (ii) incompetence; (iii) material breach of any
provision of this Agreement; (iv) breach of fiduciary duty involving personal
profit; (v) intentional failure to perform stated duties; (vi) a material breach
of the reasonable policies and procedures for the operation of the Bank provided
to the Executive by formal action of the Bank's Board of Directors; (vii)
willful violation of any law, rule, regulation (other than a law, rule or
regulation relating to a traffic violation or similar offense) or final
cease-and-desist order; or (viii) willful misconduct.
4. VOLUNTARY TERMINATION OF AGREEMENT
2
This Agreement may be terminated by the Executive at any time upon
ninety (90) days' written notice to either the Bank or the Corporation or upon
such shorter period as may be agreed upon between the Executive and the Board of
Directors.
5. GOVERNMENTAL TERMINATION OF AGREEMENT
(a) If the Executive is removed from office and/or permanently
prohibited from participating in the conduct of the Bank's or the Corporation's
affairs by an order issued under Section 8(e) of the Federal Deposit Insurance
Act, 12 U.S.C. Section 1818(e), all obligations of the Bank and the Corporation
under this Agreement shall terminate, as of the effective date of the order.
(b) If the Bank is in default (as defined in Section 3(x)(1) of the
Federal Deposit Insurance Act), all obligations under this Agreement shall
terminate.
(c) 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, by the Director of the 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) of the
Federal Deposit Insurance Act, or by the Director of the OTS or his or her
designee at the time the Director of the OTS or his or her designee approves a
supervisory merger to resolve problems related to the operation of the Bank or
when the Bank is determined by the Director of the OTS 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.
(d) If the Executive is suspended and/or temporarily prohibited from
participating in the conduct of the Bank's affairs by a notice served under
Section 8(e)(3) or (g)(1) of the Federal Deposit Insurance Act, 12 U.S.C.
Section 1818(e)(3) or (g)(1), the Corporation's and the Bank's obligations under
subparagraphs 6(a),
3
(b) and (c) of this Agreement shall be suspended as the date of service, unless
stayed by appropriate proceedings.
(e) If the charges in the notice referenced in subparagraph 5(d) are
dismissed, the Board of Directors may in its discretion:
(i) pay the Executive all or part of the severance benefits while
the Corporation's and the Bank's contract obligations were
suspended, and
(ii) reinstate (in whole or in part) any of the Corporation's and
the Bank's obligations which were suspended as required in
subparagraph (d) above.
6. SEVERANCE PAYMENTS OR TERMINATION BENEFITS
For purpose of this Agreement, the severance payments and termination
benefits specified in this Paragraph 6 shall be payable to the Executive
subsequent to the occurrence of one of the following events:
(i) Involuntary termination of the Executive's employment with the
Bank or Corporation with or within one (1) year after a Change
in Control, other than for Cause or pursuant to Paragraphs 4
or 5 of this Agreement. For purposes of this section, Change
in Control shall have the same meaning as such term is defined
in Paragraph 8, and Cause shall have the same meaning as such
term is defined in Paragraph 3.
(ii) Voluntary or involuntary termination for Good Reason, as
defined in Paragraph 7, and other than for Cause or pursuant
to Paragraphs 4 or 5 of this Agreement.
(a) Upon the Executive's termination as a result of one of the events
specified in this Paragraph 6, the Bank or Corporation shall pay to Executive,
or in the event of his subsequent death, his beneficiary or beneficiaries, or
his estate as the case may be, as severance pay or liquidated damages, or both,
a sum equal to two times the Executive's annual compensation. For purposes of
this Paragraph, compensation shall be defined as the Executive's then current
base salary, plus annual incentive compensation for the calendar year
immediately preceding the year in which the above-mentioned event occurs. Such
payment
4
shall be paid to the Executive in a lump sum within thirty (30) days of the
Executive's date of termination. The amount payable to the Executive hereunder
shall not be reduced to account for the time value of money or discounted to
present value.
(b) Upon the Executive's termination as a result of one of the events
specified in this Paragraph 6, the Bank or Corporation shall cause the Executive
to become fully vested in any qualified and/or nonqualified plans, programs or
arrangements in which the Executive participated, notwithstanding any provisions
contained in the respective Agreement of the plan, program or arrangement. The
Bank shall also contribute to the Executive's 401(k) Plan Account the Bank's
matching and/or profit sharing which would have been paid had the Executive
remained in the employ of the Bank throughout the remainder of the 401(k) Plan
year.
(c) Upon the Executive's termination as a result of one of the events
specified in this Paragraph 6, the Corporation or Bank will cause to be
continued life, health and disability insurance coverage substantially identical
to the coverage maintained by the Bank or the Corporation for the Executive
prior to his severance. Such coverage shall cease upon the earlier of
Executive's employment by another employer or twelve (12) months from such
termination. Upon the expiration of the twelve (12) month period, Executive
shall have the option of continuing health insurance coverage at his/her own
expense for a period not less than the number of months by which the
Consolidated Omnibus Budget Reconciliation Act (COBRA) continuation period
exceeds twelve (12) months.
(d) The Executive shall not be required to mitigate the amount of any
payment required hereunder by seeking other employment or otherwise nor shall
the amount paid hereunder be reduced or offset by any compensation earned or
received by the Executive as a result of employment with another employer or
self- employment. The amount paid hereunder shall not be reduced by any other
plan, program, policy
5
or arrangement of the Bank or Corporation. Benefits provided under Paragraph
6(c) shall be reduced to the extent comparable benefits are actually received by
the Executive from or through another employer.
7. GOOD REASON
For purposes of this Agreement, "Good Reason" means the occurrence of
any of the events or conditions described in subparagraphs (a) through (f)
hereof without the Executive's express written consent; provided the Executive's
right to terminate his employment pursuant to this Paragraph 7 shall not be
affected by his incapacity due to physical or mental illness.
(a) A change in the Executive's status, title, position or
responsibilities (including reporting responsibilities) which,
in the Executive's reasonable judgment, does not represent a
promotion from his status, title, position or responsibilities
as in effect immediately prior thereto; the assignment to the
Executive of any duties or responsibilities which, in the
Executive's reasonable judgment, are inconsistent with such
status, title, position or responsibilities; or any removal of
the Executive from or failure to reappoint him to any of such
positions, except in connection with the termination of his
employment for (i) Cause, (ii) pursuant to Paragraphs 4 or 5,
(iii) by the Executive other than for Good Reason;
(b) A material reduction by the Bank or the Corporation in the
Executive's base salary;
(c) The relocation of Executive's principal place of employment to
a location that is more than thirty-five (35) miles from the
location where Executive was principally employed immediately
prior to such relocation or the Bank's or the Corporation's
requiring the Executive to be based at any place other than
the location where the Executive was based immediately prior
to such change, except for reasonably required travel (as
determined by the Board of Directors) on the Bank's or the
Corporation's business;
(d) The failure by the Bank or the Corporation to continue to
provide the Executive with benefits substantially similar to
those provided to him under any of the employee benefit plans
in which the Executive becomes a participant, or the taking of
any action by the Bank or the Corporation which would directly
or indirectly materially reduce any of such benefits or
deprive the Executive of any material fringe benefit enjoyed
by him;
(e) Death prior to retirement. If the Executive dies while
actively employed by the Bank or Corporation prior to
retirement; or
(f) Disability prior to retirement. If the Executive becomes
totally disabled while actively employed by the Bank or
Corporation prior to retirement. For purposes of this
agreement, the term "totally disabled" means that because of
injury or sickness, the Executive is unable to perform his
duties.
6
8. CHANGE IN CONTROL
(a) If there is a Change in Control of the Bank or Corporation during
the term of this Agreement, the Executive shall be entitled to severance
payments and/or termination benefits as described in Paragraph 6 if the
Executive's employment with the Bank or the Corporation is involuntarily
terminated in connection with or within one (1) year after the Change in
Control, other than for Cause or pursuant to Paragraphs 4 or 5. This payment
shall also be made in the case of the Executive's voluntary termination of
employment for Good Reason (as defined in Paragraph 7) in connection with or
within one (1) year after a Change in Control of the Bank or Corporation. Such
voluntary termination of employment for Good Reason in connection with or within
one (1) year after a Change in Control of the Bank or Corporation shall not
constitute a termination for Cause or a voluntary termination subject to
Paragraph 4 of this Agreement.
(b) For purposes of this Agreement, "Change in Control of the Bank or
Corporation" means:
(i) The acquisition by a person or persons acting in concert of
the power to vote twenty-five percent (25%) or more of a class
of the Corporation's voting securities;
(ii) the acquisition by a person of the power to direct the Bank's
or Corporation's management or policies, if the Board of
Directors or the OTS has made a determination that such
acquisition constitutes or will constitute an acquisition of
control of the Bank or Corporation for the purposes of the
Savings & Loan Holding Company Act or the Change in Bank
Control Act and the regulations thereunder;
(iii) during any period of two (2) consecutive years during the term
of this Agreement, individuals who at the beginning of such
period constitute the Board of Directors of the Bank or the
Corporation cease, for any reason, to constitute at least a
majority thereof, unless the election of each director who was
not a director at the beginning of such period has been
approved in advance by directors representing at least two-
thirds (2/3) of the directors then in office who were
directors in office at the beginning of the period;
(iv) the Corporation shall have merged into or consolidated with
another corporation, or merged another corporation into the
Corporation, on a basis whereby less than fifty percent (50%)
of the total voting power of the surviving corporation is
represented by
7
shares held by former shareholders of the Corporation prior to
such merger or consolidation; or
(v) the Corporation shall have sold to another person (i)
substantially all of the Corporation's assets or (ii) the
Bank. The term "person" refers to an individual, corporation,
partnership, trust, association, joint venture, pool,
syndicate, sole proprietorship, unincorporated organization or
other entity.
9. WITHHOLDING OF TAXES
The Bank or Corporation may withhold from any benefits payable under
this Agreement all Federal, state, city or other taxes as may be required
pursuant to any law, governmental regulation or ruling.
10. PAYMENT OF LEGAL AND/OR ACCOUNTING FEES
Reasonable legal and/or accounting fees and expenses paid or incurred
by the Executive pursuant to any dispute or question of interpretation relating
to the Agreement shall be paid or reimbursed by the Corporation in accordance
with the following:
(a) If the Executive, the Bank or the Corporation initiates a
proceeding and the Executive prevails, all reasonable legal
and/or accounting fees and expenses shall be paid by the
Corporation.
(b) If the Executive initiates a proceeding and does not prevail
on his claim, then the Corporation shall reimburse the
Executive for all legal and/or accounting fees and expenses
but not to exceed the sum of $25,000.
11. SUCCESSOR ORGANIZATION
The obligations of the Corporation and the Bank as set forth herein
shall continue to be the obligation of any successor organization, any
organization which purchases substantially all of the liabilities of the
Corporation or the Bank, as well as any organization which assumes substantially
all of the liabilities of the Corporation or the Bank whether by merger,
consolidation, or other form of business
8
combination. This Agreement is personal to the Executive and the Executive may
not delegate his duties hereunder.
12. NOTICES
All notices, requests, demands and other communications hereunder shall
be in writing and shall be deemed to have been duly given if delivered by hand
or mailed, certified or registered mail, return receipt requested, with postage
prepaid to the following addresses or to such other address as either party may
designate by like notice.
(a) If to the Corporation, to:
PVF Capital Corp.
Corporate Center
0000 Xxxxx Xxxxxxxx Xxxxxxxxx
Xxxxxxxxx, Xxxx 00000
Attn: Vice President and Secretary
(b) If to the Bank, to:
Park View Federal Savings Bank
Corporate Center
0000 Xxxxx Xxxxxxxx Xxxxxxxxx
Xxxxxxxxx, Xxxx 00000
Attn: Corporate Secretary
(c) If to the Executive, to: C. Xxxxx Xxxxxx
[RESIDENCE ADDRESS NOT SHOWN]
and to such other or additional person or persons as either party shall have
designated to the other party in writing by like notice.
13. AMENDMENTS
No amendments or additions to this Agreement shall be binding unless in
writing and signed by both parties, except as herein otherwise provided.
9
14. PARAGRAPH HEADINGS
The paragraph headings used in this Agreement are included solely for
convenience and shall not affect, or be used in connection with, the
interpretation of this Agreement.
15. SEVERABILITY
The provisions of this Agreement shall be deemed severable and the
invalidity or unenforceability of any provision shall not affect the validity or
enforceability of the other provisions here.
16. GOVERNING LAW
This Agreement shall, except to the extend that federal law (including
any law, rule, or regulations of the OTS or the FDIC) shall be deemed to apply,
be governed by and construed and enforced in accordance with the laws of Ohio.
17. ARBITRATION
Any dispute or controversy arising under or in connection with 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.
18. SAFETY AND SOUNDNESS LIMITATIONS
Notwithstanding any other provision of this Agreement, no severance
benefits under Paragraph 8 shall be paid or payable in respect of any year in
which the Bank (i) fails to meet any applicable capital requirements imposed by
Part 567 of the OTS regulations (or successor regulations) after giving effect
to the payment of severance benefits hereunder, (ii) receives or maintains a
safety and soundness CAMEL rating of 4 or 5 from the OTS, or (iii) is subject to
a proceeding to terminate deposit insurance. Severance benefits can be paid
under clause (i) above to the extent that such payment would not cause the Bank
to fail to meet any applicable capital requirements imposed by part
10
567 of the OTS regulations. In addition, no severance benefits under Paragraph 8
shall be paid or payable if the Executive has committed any fraudulent act or
omission or other fiduciary breach that had or is likely to have a material
adverse affect on the bank or the Corporation.
19. ENTIRE AGREEMENT
This Agreement supersedes the July 1, 1998 Severance Agreement by and
among the Corporation, the Bank and the Executive.
IN WITNESS WHEREOF, the parties have executed this Agreement on the day
and year first herein above written.
WITNESSES: PVF CAPITAL CORP.
/s/ Xxxxxxx Xxxxx By: /s/ Xxxxx X. Male
-------------------------- -------------------------------------------
Xxxxx X. Male
/s/ Xxxxx Xxx Xxxxxxx Its: Chairman of the Board
--------------------------
PARK VIEW FEDERAL SAVING BANK
By: /s/ Xxxxxx X. Xxxxxx
-------------------------------------------
Xxxxxx X. Xxxxxx
Its: Chairman of the Compensation
Committee
EXECUTIVE
/s/ C. Xxxxx Xxxxxx
------------------------------------------------
C. Xxxxx Xxxxxx
11
County of Cuyahoga )
) ss:
State of Ohio )
Before me this 8th day of December, 1999, personally appeared the above
named Xxxxx X. Male, Xxxxxx X. Xxxxxx and C. Xxxxx Xxxxxx, who acknowledged that
they did sign the foregoing instrument and that the same was their free act and
deed.
/s/ Xxxxxxx Xxxxxxx
--------------------------------
(Notary Seal) Notary Public
XXXXXXX XXXXXXX, Notary Public
State of Ohio
My Commission Expires Jan. 26, 2004
12
[PARK VIEW FEDERAL SAVINGS BANK LETTERHEAD]
January 29, 2001
Mr. C. Xxxxx Xxxxxx
Park View Federal Savings Bank
Corporate Center
00000 Xxxxxx Xxxx
Xxxxx, XX 00000
RE: Amendment to Severance Agreement
Dear Xxxxx:
The purpose of this letter is to memorialize in writing certain changes to
your Severance Agreement dated the 26th day of October, 1999 (the "Agreement"),
which changes, we, PVF Capital Corp. (the "Corporation") and Park View Federal
Savings Bank (the "Bank"), have agreed to. In accordance with the terms of the
Agreement, particularly Section 13 ("Amendments") thereof, please signify your
consent to these changes by executing this letter and returning it to the Bank.
The changes we have agreed to are as follows:
1. Section 3 ("Termination for Cause") of the Agreement shall be revised by
deleting the second sentence in its entirety ("As used herein, "for cause"
shall mean....") and inserting the following:
For purposes of this Agreement, termination "for cause" shall mean
only the following events: (i) personal dishonesty; (ii) incompetence;
(iii) material breach of any provision of this Agreement; (iv) breach
of fiduciary duty involving personal profit; (v) intentional failure
to perform stated duties; (vi) a material breach of the reasonable
policies and procedures for the operation of the Bank provided to the
Executive by formal action of the Bank's Board of Directors; (vii)
willful violation of any law, rule, regulation (other than a law, rule
or regulation relating to a traffic violation or similar offense) or
final cease-and-desist order; or (viii) willful misconduct.
2. Section 12 ("Notices") of the Agreement shall be revised by deleting the
Corporation and Bank addresses listed in subsection (a) and (b),
respectively, and inserting the following:
(a) If to the Corporation, to:
PVF Capital Corp.
Corporate Center
00000 Xxxxxx Xxxx
Xxxxx, XX 00000
Amendment to Severance Agreement
January 29, 2001
Pg 2
(b) If to the Bank, to:
Park View Federal Savings Bank
Corporate Center
00000 Xxxxxx Xxxx
Xxxxx, XX 00000
Please signify your acceptance of and agreement to the foregoing changes by
executing this letter in the space provided and returning it to the Bank. The
changes will become effective upon receipt by the Bank of this letter executed
by you.
PVF CAPITAL CORP.
By: /s/ Xxxx X. Male
--------------------------------------
Xxxx X. Male
Its: Chairman of the Board
PARK VIEW FEDERAL SAVINGS BANK
By: /s/ Xxxxxxx X. Xxxxx
--------------------------------------
Xxxxxxx X. Xxxxx
Its: Chairman of the Compensation Committee
Accepted and agreed to this 30th day of January, 2001, by the undersigned
Executive.
EXECUTIVE
/s/ C. Xxxxx Xxxxxx
--------------------------------------
C. Xxxxx Xxxxxx
2
SEVERANCE AGREEMENT
AMENDMENT
WHEREAS, PVF Capital Corp. (the "Corporation"), Park View Federal Savings
Bank (the "Bank"), and C. Xxxxx Xxxxxx (the "Executive") previously entered into
a Severance Agreement, originally effective as of October 26, 1999 (the
"Agreement"); and
WHEREAS, the parties desire to amend the Agreement to update the benefits
provided to the Executive and to provide the Executive with certain tax
indemnification in the event of a change in control of the Corporation and the
Bank; and
WHEREAS, Section 13 of the Agreement provides for its amendment by means of
a written instrument signed by the parties.
NOW, THEREFORE, the parties hereby agree to amend the Agreement as follows:
FIRST CHANGE
Section 6(a) of the Agreement shall be deleted in its entirety and replaced
with the following:
(c) Upon the Executive's termination as a result of one of the events
specified in this Paragraph 6, the Bank or Corporation shall pay to
Executive, or in the event of his subsequent death, his beneficiary
or beneficiaries, or his estate, as the case may be, a sum equal to
three (3) times the Executive's annual compensation. For purposes
of this paragraph, "annual compensation" shall be defined as the
Executive's then current base salary plus annual incentive
compensation for the calendar year immediately preceding the year
in which the above-mentioned event occurs. Such payment shall be
paid to the Executive in a lump sum within thirty (30) days of the
Executive's date of termination. The amount payable to the
Executive hereunder shall not be reduced for the time value of
money or discounted to present value.
SECOND CHANGE
The following shall be added as Section 20 of the Agreement:
20. TAX INDEMNIFICATION
(a) For purposes of this Agreement, "Covered Benefits" shall mean any
payment or benefit paid or provided to the Executive by the Bank,
the Corporation or any affiliate or successor in interest (whether
pursuant to this Agreement or otherwise) that, in the opinion of
Tax Counsel (as defined below), might reasonably be expected to be
subject to any excise tax (the "Excise Tax") imposed under Section
4999 of the Internal Revenue Code of 1986, as
amended (the "Code"). In the event that the Executive shall receive
Covered Benefits, the Corporation shall pay to the Executive an
additional amount (the "Gross-Up Payment"), so that the net amount
retained by the Executive from the Gross-Up Payment, after
deduction of any federal, state and local income taxes, Excise Tax,
and FICA and Medicare withholding taxes on the Gross-Up Payment,
shall be equal to the Excise Tax on the Covered Benefits. For
purposes of determining the amount of the Excise Tax on the Covered
Benefits, the amount of the Covered Benefits that shall be taken
into account in calculating the Excise Tax shall be equal to (i)
the Covered Benefits, less (ii) the amount of such Covered Benefits
that, in the opinion of tax counsel selected by the Company and
reasonably acceptable to the Executive ("Tax Counsel"), are not
parachute payments (within the meaning of Section 280G(b)(1) of the
Code).
(b) For purposes of this Section 20, the Executive shall be deemed to
pay federal income taxes at the highest marginal rate of federal
income taxation in the calendar year in which the Excise Tax is
payable and state and local income taxes at the highest marginal
rate of taxation in the state and locality of the Executive's
residence on the effective date of the Executive's termination, net
of the reduction in federal income taxes which could be obtained
from deduction of such state and local taxes. Except as otherwise
provided herein, all determinations required to be made under this
Section 20 shall be made by Tax Counsel, which determinations shall
be conclusive and binding on the Executive, the Bank and the
Corporation, absent manifest error.
(c) The Corporation shall indemnify and hold the Executive harmless
from losses, costs and expenses which the Executive incurs as a
result of any administrative or judicial review of the Executive's
liability under Section 4999 of the Code by the Internal Revenue
Service or any comparable state agency, through and including a
final judicial determination or final administrative settlement of
any dispute arising out of the Executive's liability for the Excise
Tax or otherwise relating to the classification for purposes of
Section 280G of the Code of any of the Covered Benefits or other
payment or benefit in the nature of compensation made or provided
to the Executive by the Corporation. The Executive shall promptly
notify the Corporation in writing whenever the Executive receives
notice of the commencement of any judicial or administrative
proceeding in which the federal tax treatment under Section 4999 of
the Code of any amount paid or payable under this Agreement or
otherwise is being reviewed or is in dispute (including a notice of
audit or other inquiry concerning the reporting of the Executive's
liability under Section 4999). The Corporation may assume control
at its expense over all legal and accounting matters pertaining to
such federal or state tax treatment of the Covered Benefits or any
payment or benefit in the nature of compensation made or provided
to the Executive by
2
the Corporation, and the Executive shall cooperate fully with the
Corporation in any such proceeding. The Executive shall not enter
into any compromise or settlement or otherwise prejudice any rights
the Corporation may have in connection therewith without the prior
consent of the Corporation. In the event that the Corporation
elects not to assume control over such matters, the Corporation
shall promptly reimburse the Executive for all expenses related
thereto as and when incurred, upon presentation of appropriate
documentation relating to such expenses.
The parties hereby ratify the above changes and certify that, in all other
respects, the existing terms and provisions of the Agreement remain in full
force and effect.
IN WITNESS WHEREOF, the Bank and the Corporation have caused this Amendment
to the Agreement to be executed by their duly authorized officers, and the
Executive has signed this Amendment, on the 30th day of April, 2007.
ATTEST: PVF CAPITAL CORP.
/s/ Xxxxx Xxx Xxxxxxx By: /s/ Xxxxxx X. Xxxxxx
---------------------------- -----------------------------------------
For the Board of Directors
ATTEST: PARK VIEW FEDERAL SAVINGS BANK
/s/ Xxxxx Xxx Xxxxxxx By: /s/ Xxxxxx X. Xxxxxx
---------------------------- -----------------------------------------
For the Board of Directors
WITNESS: EXECUTIVE
/s/ Xxxxx X. Xxxxxx /s/ C. Xxxxx Xxxxxx
---------------------------- --------------------------------------------
C. Xxxxx Xxxxxx
3
THIRD AMENDMENT
TO
SEVERANCE AGREEMENT
This Third Amendment to Severance Agreement (this "Third Amendment") is
made to be effective as of July 24, 2007, by and among PVF Capital Corp. (the
"Corporation"), Park View Federal Savings Bank (the "Bank") and C. Xxxxx Xxxxxx
(the "Executive").
WHEREAS, Executive, the Corporation and the Bank are parties to a
Severance Agreement dated October 26, 1999, as subsequently amended on January
29, 2001 and April 30, 2007 (as amended, the "Agreement");
WHEREAS, the parties desire to amend the Agreement to include a
non-compete provision; and
WHEREAS, Section 13 of the Agreement provides for its amendment by
means of a written instrument signed by the parties;
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration, the Corporation, Bank and Executive agree as follows:
1. The following shall be added as Section 21 of the Agreement:
21. COVENANT NOT TO COMPETE
Commencing on the date of the Executive's termination
of employment (a) by the Corporation, Bank or any successor
organization for cause or in connection with a Change in
Control, or (b) by the Executive for any reason, and ending on
the third anniversary thereof, the Executive agrees that he
shall not, directly or indirectly, either as principal, agent,
owner, shareholder, officer, director, partner, lender,
investor, independent contractor, consultant or in any other
capacity, engage in, have a financial interest in (except the
ownership by Executive of less than 1% of the outstanding
equity securities of any publicly held corporation) or be in
any way connected or affiliated with, or render advice or
services to any natural person, organization or entity of any
type that engages in any activity that would compete in any
way with the Corporation, the Bank or any successor
organization in Ohio, Pennsylvania, Indiana, Michigan, West
Virginia or Kentucky. This Section 21 shall survive the
termination of this Agreement and the obligations and rights
hereunder shall inure to the benefit of any successor
organization.
2. Except as expressly amended hereby, the Agreement, as amended by
this Third Amendment, shall remain in full force and effect.
3. This Third Amendment may be executed in any number of counterparts,
and each of such counterparts, when so executed, shall be deemed to be an
original and all such counterparts shall together constitute but one and the
same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Third
Amendment, to be effective as of the day and year first above written.
CORPORATION:
PVF CAPITAL CORP.
By: /s/ Xxxx X. Male
----------------------------------
Its Chairman of the Board and
Chief Executive Officer
------------------------------
PARK VIEW FEDERAL SAVINGS BANK
By: /s/ Xxxx X. Male
----------------------------------
Its Chairman of the Board and
Chief Executive Officer
------------------------------
EXECUTIVE:
/s/ C. Xxxxx Xxxxxx
--------------------------------------
C. Xxxxx Xxxxxx
-2-
SEVERANCE AGREEMENT
This AGREEMENT is made and entered into this 26th day of October, 1999,
by and among PVF Capital Corp. (the "Corporation"), a corporation organized
under the laws of the State of Ohio, Park View Federal Savings Bank (the
"Bank"), an OTS-chartered, FDIC-insured savings association with its main office
located in Cleveland, Ohio and Xxxxxxx X. Male (the "Executive"). Any reference
to the "Board of Directors" herein shall mean the Board of Directors of the
Corporation or the Bank or a committee serving at the pleasure of the Board of
Directors of the Bank. Any reference to "FDIC" herein shall mean the Federal
Deposit Insurance Corporation. Any reference to "OTS" shall mean the Office of
Thrift Supervision.
WHEREAS, the Executive serves as an employee of the Bank;
WHEREAS, the Corporation, the Bank and the Executive are parties to a
Severance Agreement dated July 1, 1998; and
WHEREAS, the parties hereto desire that this Agreement supersede and
replace in its entirety the July 1, 1998 Severance Agreement;
NOW THEREFORE, in consideration of the performance of the
responsibilities of the Executive and upon the other terms and conditions
hereinafter provided, the parties hereto agree as follows:
1. NO EMPLOYMENT CONTRACT
The parties hereto acknowledge and agree that this Agreement is not a
management or employment agreement and that nothing in this Agreement shall give
the Executive any rights or impose any obligations to continued employment by
the Bank or Corporation or any subsidiary or successor of the Bank or
Corporation, nor shall it give the Bank or Corporation any rights or impose any
obligations for the continued performance of duties by the Executive for the
Bank or Corporation or any subsidiary or successor of the Bank or Corporation.
2. TERM OF AGREEMENT
The initial term of this Agreement shall be for a period of three (3)
years commencing November 1st, 1999 (hereafter referred to as the "Anniversary
Date"). Commencing on the first Anniversary Date of this Agreement, and
continuing at each Anniversary Date thereafter, the Agreement shall
automatically renew for one (1) additional year beyond the then effective
expiration date only upon a determination and resolution of the Board of
Directors that the performance of the Executive has met the requirements and
standards of the Board and that such term shall be extended. If the Board of
Directors determines not to extend the term, it shall promptly so notify the
Executive, with such election by the Board not to extend the term not to
otherwise affect the then effective term of this Agreement. Reference herein to
the term of this Agreement shall refer both to such initial term and such
extended terms. Unless sooner terminated as set forth herein, this contract
shall terminate when the Executive reaches age sixty-five (65).
3. TERMINATION FOR CAUSE
If the Corporation or Bank terminates the Executive's employment for
cause (as defined below), all of the Bank's and Corporation's obligations
hereunder shall immediately terminate as of the termination date. For purposes
of this Agreement, termination "for cause" shall mean only the following events:
(i) personal dishonesty; (ii) incompetence; (iii) material breach of any
provision of this Agreement; (iv) breach of fiduciary duty involving personal
profit; (v) intentional failure to perform stated duties; (vi) a material breach
of the reasonable policies and procedures for the operation of the Bank provided
to the Executive by formal action of the Bank's Board of Directors; (vii)
willful violation of any law, rule, regulation (other than a law, rule or
regulation relating to a traffic violation or similar offense) or final
cease-and-desist order; or (viii) willful misconduct.
4. VOLUNTARY TERMINATION OF AGREEMENT
2
This Agreement may be terminated by the Executive at any time upon
ninety (90) days' written notice to either the Bank or the Corporation or upon
such shorter period as may be agreed upon between the Executive and the Board of
Directors.
5. GOVERNMENTAL TERMINATION OF AGREEMENT
(a) If the Executive is removed from office and/or permanently
prohibited from participating in the conduct of the Bank's or the Corporation's
affairs by an order issued under Section 8(e) of the Federal Deposit Insurance
Act, 12 U.S.C. Section 1818(e), all obligations of the Bank and the Corporation
under this Agreement shall terminate, as of the effective date of the order.
(b) If the Bank is in default (as defined in Section 3(x)(1) of the
Federal Deposit Insurance Act), all obligations under this Agreement shall
terminate.
(c) 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, by the Director of the 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) of the
Federal Deposit Insurance Act, or by the Director of the OTS or his or her
designee at the time the Director of the OTS or his or her designee approves a
supervisory merger to resolve problems related to the operation of the Bank or
when the Bank is determined by the Director of the OTS 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.
(d) If the Executive is suspended and/or temporarily prohibited from
participating in the conduct of the Bank's affairs by a notice served under
Section 8(e)(3) or (g)(1) of the Federal Deposit Insurance Act, 12 U.S.C.
Section 1818(e)(3) or (g)(1), the Corporation's and the Bank's obligations under
subparagraphs 6(a),
3
(b) and (c) of this Agreement shall be suspended as the date of service, unless
stayed by appropriate proceedings.
(e) If the charges in the notice referenced in subparagraph 5(d) are
dismissed, the Board of Directors may in its discretion:
(i) pay the Executive all or part of the severance benefits while
the Corporation's and the Bank's contract obligations were
suspended, and
(ii) reinstate (in whole or in part) any of the Corporation's and
the Bank's obligations which were suspended as required in
subparagraph (d) above.
6. SEVERANCE PAYMENTS OR TERMINATION BENEFITS
For purpose of this Agreement, the severance payments and termination
benefits specified in this Paragraph 6 shall be payable to the Executive
subsequent to the occurrence of one of the following events:
(i) Involuntary termination of the Executive's employment with the
Bank or Corporation with or within one (1) year after a Change
in Control, other than for Cause or pursuant to Paragraphs 4
or 5 of this Agreement. For purposes of this section, Change
in Control shall have the same meaning as such term is defined
in Paragraph 8, and Cause shall have the same meaning as such
term is defined in Paragraph 3.
(ii) Voluntary or involuntary termination for Good Reason, as
defined in Paragraph 7, and other than for Cause or pursuant
to Paragraphs 4 or 5 of this Agreement.
(a) Upon the Executive's termination as a result of one of the events
specified in this Paragraph 6, the Bank or Corporation shall pay to Executive,
or in the event of his subsequent death, his beneficiary or beneficiaries, or
his estate as the case may be, as severance pay or liquidated damages, or both,
a sum equal to two times the Executive's annual compensation. For purposes of
this Paragraph, compensation shall be defined as the Executive's then current
base salary, plus annual incentive compensation for the calendar year
immediately preceding the year in which the above-mentioned event occurs. Such
payment
4
shall be paid to the Executive in a lump sum within thirty (30) days of the
Executive's date of termination. The amount payable to the Executive hereunder
shall not be reduced to account for the time value of money or discounted to
present value.
(b) Upon the Executive's termination as a result of one of the events
specified in this Paragraph 6, the Bank or Corporation shall cause the Executive
to become fully vested in any qualified and/or nonqualified plans, programs or
arrangements in which the Executive participated, notwithstanding any provisions
contained in the respective Agreement of the plan, program or arrangement. The
Bank shall also contribute to the Executive's 401(k) Plan Account the Bank's
matching and/or profit sharing which would have been paid had the Executive
remained in the employ of the Bank throughout the remainder of the 401(k) Plan
year.
(c) Upon the Executive's termination as a result of one of the events
specified in this Paragraph 6, the Corporation or Bank will cause to be
continued life, health and disability insurance coverage substantially identical
to the coverage maintained by the Bank or the Corporation for the Executive
prior to his severance. Such coverage shall cease upon the earlier of
Executive's employment by another employer or twelve (12) months from such
termination. Upon the expiration of the twelve (12) month period, Executive
shall have the option of continuing health insurance coverage at his/her own
expense for a period not less than the number of months by which the
Consolidated Omnibus Budget Reconciliation Act (COBRA) continuation period
exceeds twelve (12) months.
(d) The Executive shall not be required to mitigate the amount of any
payment required hereunder by seeking other employment or otherwise nor shall
the amount paid hereunder be reduced or offset by any compensation earned or
received by the Executive as a result of employment with another employer or
self- employment. The amount paid hereunder shall not be reduced by any other
plan, program, policy
5
or arrangement of the Bank or Corporation. Benefits provided under Paragraph
6(c) shall be reduced to the extent comparable benefits are actually received by
the Executive from or through another employer.
7. GOOD REASON
For purposes of this Agreement, "Good Reason" means the occurrence of
any of the events or conditions described in subparagraphs (a) through (f)
hereof without the Executive's express written consent; provided the Executive's
right to terminate his employment pursuant to this Paragraph 7 shall not be
affected by his incapacity due to physical or mental illness.
(a) A change in the Executive's status, title, position or
responsibilities (including reporting responsibilities) which,
in the Executive's reasonable judgment, does not represent a
promotion from his status, title, position or responsibilities
as in effect immediately prior thereto; the assignment to the
Executive of any duties or responsibilities which, in the
Executive's reasonable judgment, are inconsistent with such
status, title, position or responsibilities; or any removal of
the Executive from or failure to reappoint him to any of such
positions, except in connection with the termination of his
employment for (i) Cause, (ii) pursuant to Paragraphs 4 or 5,
(iii) by the Executive other than for Good Reason;
(b) A material reduction by the Bank or the Corporation in the
Executive's base salary;
(c) The relocation of Executive's principal place of employment to
a location that is more than thirty-five (35) miles from the
location where Executive was principally employed immediately
prior to such relocation or the Bank's or the Corporation's
requiring the Executive to be based at any place other than
the location where the Executive was based immediately prior
to such change, except for reasonably required travel (as
determined by the Board of Directors) on the Bank's or the
Corporation's business;
(d) The failure by the Bank or the Corporation to continue to
provide the Executive with benefits substantially similar to
those provided to him under any of the employee benefit plans
in which the Executive becomes a participant, or the taking of
any action by the Bank or the Corporation which would directly
or indirectly materially reduce any of such benefits or
deprive the Executive of any material fringe benefit enjoyed
by him;
(e) Death prior to retirement. If the Executive dies while
actively employed by the Bank or Corporation prior to
retirement; or
(f) Disability prior to retirement. If the Executive becomes
totally disabled while actively employed by the Bank or
Corporation prior to retirement. For purposes of this
agreement, the term "totally disabled" means that because of
injury or sickness, the Executive is unable to perform his
duties.
6
8. CHANGE IN CONTROL
(a) If there is a Change in Control of the Bank or Corporation during
the term of this Agreement, the Executive shall be entitled to severance
payments and/or termination benefits as described in Paragraph 6 if the
Executive's employment with the Bank or the Corporation is involuntarily
terminated in connection with or within one (1) year after the Change in
Control, other than for Cause or pursuant to Paragraphs 4 or 5. This payment
shall also be made in the case of the Executive's voluntary termination of
employment for Good Reason (as defined in Paragraph 7) in connection with or
within one (1) year after a Change in Control of the Bank or Corporation. Such
voluntary termination of employment for Good Reason in connection with or within
one (1) year after a Change in Control of the Bank or Corporation shall not
constitute a termination for Cause or a voluntary termination subject to
Paragraph 4 of this Agreement.
(b) For purposes of this Agreement, "Change in Control of the Bank or
Corporation" means:
(i) The acquisition by a person or persons acting in concert of
the power to vote twenty-five percent (25%) or more of a class
of the Corporation's voting securities;
(ii) the acquisition by a person of the power to direct the Bank's
or Corporation's management or policies, if the Board of
Directors or the OTS has made a determination that such
acquisition constitutes or will constitute an acquisition of
control of the Bank or Corporation for the purposes of the
Savings & Loan Holding Company Act or the Change in Bank
Control Act and the regulations thereunder;
(iii) during any period of two (2) consecutive years during the term
of this Agreement, individuals who at the beginning of such
period constitute the Board of Directors of the Bank or the
Corporation cease, for any reason, to constitute at least a
majority thereof, unless the election of each director who was
not a director at the beginning of such period has been
approved in advance by directors representing at least two-
thirds (2/3) of the directors then in office who were
directors in office at the beginning of the period;
(iv) the Corporation shall have merged into or consolidated with
another corporation, or merged another corporation into the
Corporation, on a basis whereby less than fifty percent (50%)
of the total voting power of the surviving corporation is
represented by
7
shares held by former shareholders of the Corporation prior to
such merger or consolidation; or
(v) the Corporation shall have sold to another person (i)
substantially all of the Corporation's assets or (ii) the
Bank. The term "person" refers to an individual, corporation,
partnership, trust, association, joint venture, pool,
syndicate, sole proprietorship, unincorporated organization or
other entity.
9. WITHHOLDING OF TAXES
The Bank or Corporation may withhold from any benefits payable under
this Agreement all Federal, state, city or other taxes as may be required
pursuant to any law, governmental regulation or ruling.
10. PAYMENT OF LEGAL AND/OR ACCOUNTING FEES
Reasonable legal and/or accounting fees and expenses paid or incurred
by the Executive pursuant to any dispute or question of interpretation relating
to the Agreement shall be paid or reimbursed by the Corporation in accordance
with the following:
(a) If the Executive, the Bank or the Corporation initiates a
proceeding and the Executive prevails, all reasonable legal
and/or accounting fees and expenses shall be paid by the
Corporation.
(b) If the Executive initiates a proceeding and does not prevail
on his claim, then the Corporation shall reimburse the
Executive for all legal and/or accounting fees and expenses
but not to exceed the sum of $25,000.
11. SUCCESSOR ORGANIZATION
The obligations of the Corporation and the Bank as set forth herein
shall continue to be the obligation of any successor organization, any
organization which purchases substantially all of the liabilities of the
Corporation or the Bank, as well as any organization which assumes substantially
all of the liabilities of the Corporation or the Bank whether by merger,
consolidation, or other form of business
8
combination. This Agreement is personal to the Executive and the Executive may
not delegate his duties hereunder.
12. NOTICES
All notices, requests, demands and other communications hereunder shall
be in writing and shall be deemed to have been duly given if delivered by hand
or mailed, certified or registered mail, return receipt requested, with postage
prepaid to the following addresses or to such other address as either party may
designate by like notice.
(a) If to the Corporation, to:
PVF Capital Corp.
0000 Xxxxx Xxxxxxxx Xxxxxxxxx
Xxxxxxxxx, Xxxx 00000
Attn: Vice President and Secretary
(b) If to the Bank, to:
Park View Federal Savings Bank
0000 Xxxxx Xxxxxxxx Xxxxxxxxx
Xxxxxxxxx, Xxxx 00000
Attn: Corporate Secretary
(c) If to the Executive, to:
Xxxxxxx X. Male
[RESIDENCE ADDRESS NOT SHOWN]
and to such other or additional person or persons as either party shall have
designated to the other party in writing by like notice.
13. AMENDMENTS
No amendments or additions to this Agreement shall be binding unless in
writing and signed by both parties, except as herein otherwise provided.
9
14. PARAGRAPH HEADINGS
The paragraph headings used in this Agreement are included solely for
convenience and shall not affect, or be used in connection with, the
interpretation of this Agreement.
15. SEVERABILITY
The provisions of this Agreement shall be deemed severable and the
invalidity or unenforceability of any provision shall not affect the validity or
enforceability of the other provisions here.
16. GOVERNING LAW
This Agreement shall, except to the extend that federal law (including
any law, rule, or regulations of the OTS or the FDIC) shall be deemed to apply,
be governed by and construed and enforced in accordance with the laws of Ohio.
17. ARBITRATION
Any dispute or controversy arising under or in connection with 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.
18. SAFETY AND SOUNDNESS LIMITATIONS
Notwithstanding any other provision of this Agreement, no severance
benefits under Paragraph 8 shall be paid or payable in respect of any year in
which the Bank (i) fails to meet any applicable capital requirements imposed by
Part 567 of the OTS regulations (or successor regulations) after giving effect
to the payment of severance benefits hereunder, (ii) receives or maintains a
safety and soundness CAMEL rating of 4 or 5 from the OTS, or (iii) is subject to
a proceeding to terminate deposit insurance. Severance benefits can be paid
under clause (i) above to the extent that such payment would not cause the Bank
to fail to meet any applicable capital requirements imposed by part
10
567 of the OTS regulations. In addition, no severance benefits under Paragraph 8
shall be paid or payable if the Executive has committed any fraudulent act or
omission or other fiduciary breach that had or is likely to have a material
adverse affect on the bank or the Corporation.
19. ENTIRE AGREEMENT
This Agreement supersedes the July 1, 1998 Severance Agreement by and
among the Corporation, the Bank and the Executive.
IN WITNESS WHEREOF, the parties have executed this Agreement on the day
and year first herein above written.
WITNESSES: PVF CAPITAL CORP.
/S/ Xxxxxxx Xxxxx By: /s/ Xxxxx X. Male
-------------------------- ----------------------------
/s/ Xxxxx Xxx Xxxxxxx Xxxxx X. Male
-------------------------- Its: Chairman of the Board
PARK VIEW FEDERAL SAVING BANK
By: /s/ Xxxxxx X. Xxxxxx
------------------------------
Xxxxxx X. Xxxxxx
Its: Chairman of the Compensation
Committee
EXECUTIVE
/s/ Xxxxx X. Male
----------------------------
Xxxxx X. Male
11
County of Cuyahoga )
) ss:
State of Ohio )
Before me this 6th day of December, 1999, personally appeared
the above named Xxxxx X. Male, Xxxxxx X. Xxxxxx and Xxxxxxx X. Male, who
acknowledged that they did sign the foregoing instrument and that the same was
their free act and deed.
/s/ Xxxxxxx Xxxxxxx
--------------------------------
(Notary Seal) Notary Public
My Commission Expires:
XXXXXXX XXXXXXX, Notary Public
State of Ohio
My Commission Expires Jan. 26, 2004
12
[PARK VIEW FEDERAL SAVINGS BANK LETTERHEAD]
January 29, 2001
Xx. Xxxxxxx X.. Male
Park View Federal Savings Bank
Corporate Center
00000 Xxxxxx Xxxx
Xxxxx, XX 00000
RE: Amendment to Severance Agreement
Dear Xxxxxxx,
The purpose of this letter is to memorialize in writing certain changes to
your Severance Agreement dated the 26th day of October, 1999 (the "Agreement"),
which changes, we, PVF Capital Corp. (the "Corporation") and Park View Federal
Savings Bank (the "Bank"), have agreed to. In accordance with the terms of the
Agreement, particularly Section 13 ("Amendments") thereof, please signify your
consent to these changes by executing this letter and returning it to the Bank.
The changes we have agreed to are as follows:
1. Section 3 ("Termination for Cause") of the Agreement shall be revised by
deleting the second sentence in its entirety ("As used herein, "for cause"
shall mean....") and inserting the following:
For purposes of this Agreement, termination "for cause" shall mean
only the following events: (i) personal dishonesty; (ii) incompetence;
(iii) material breach of any provision of this Agreement; (iv) breach
of fiduciary duty involving personal profit; (v) intentional failure
to perform stated duties; (vi) a material breach of the reasonable
policies and procedures for the operation of the Bank provided to the
Executive by formal action of the Bank's Board of Directors; (vii)
willful violation of any law, rule, regulation (other than a law, rule
or regulation relating to a traffic violation or similar offense) or
final cease-and-desist order; or (viii) willful misconduct.
2. Section 12 ("Notices") of the Agreement shall be revised by deleting the
Corporation and Bank addresses listed in subsection (a) and (b),
respectively, and inserting the following:
(a) If to the Corporation, to:
PVF Capital Corp.
Corporate Center
00000 Xxxxxx Xxxx
Xxxxx, XX 00000
Amendment to Severance Agreement
January 29, 2001
Pg 2
(b) If to the Bank, to:
Park View Federal Savings Bank
Corporate Center
00000 Xxxxxx Xxxx
Xxxxx, XX 00000
Please signify your acceptance of and agreement to the foregoing changes by
executing this letter in the space provided and returning it to the Bank. The
changes will become effective upon receipt by the Bank of this letter executed
by you.
PVF CAPITAL CORP.
By: /s/ Xxxx X. Male
--------------------------------------
Xxxx X. Male
Its: Chairman of the Board
PARK VIEW FEDERAL SAVINGS BANK
By: /s/ Xxxxxxx X. Xxxxx
--------------------------------------
Xxxxxxx X. Xxxxx
Its: Chairman of the Compensation Committee
Accepted and agreed to this 29th day of January, 2001, by the undersigned
Executive.
EXECUTIVE
/s/ Xxxxxxx X. Male
--------------------------------------
Xxxxxxx X. Male
2
SEVERANCE AGREEMENT
AMENDMENT
WHEREAS, PVF Capital Corp. (the "Corporation"), Park View Federal Savings
Bank (the "Bank"), and Xxxxxxx X. Male (the "Executive") previously entered into
a Severance Agreement, originally effective as of October 26, 1999 (the
"Agreement"); and
WHEREAS, the parties desire to amend the Agreement to update the benefits
provided to the Executive and to provide the Executive with certain tax
indemnification in the event of a change in control of the Corporation and the
Bank; and
WHEREAS, Section 13 of the Agreement provides for its amendment by means of
a written instrument signed by the parties.
NOW, THEREFORE, the parties hereby agree to amend the Agreement as follows:
FIRST CHANGE
Section 6(a) of the Agreement shall be deleted in its entirety and replaced
with the following:
(b) Upon the Executive's termination as a result of one of the events
specified in this Paragraph 6, the Bank or Corporation shall pay to
Executive, or in the event of his subsequent death, his beneficiary
or beneficiaries, or his estate, as the case may be, a sum equal to
three (3) times the Executive's annual compensation. For purposes
of this paragraph, "annual compensation" shall be defined as the
Executive's then current base salary plus annual incentive
compensation for the calendar year immediately preceding the year
in which the above-mentioned event occurs. Such payment shall be
paid to the Executive in a lump sum within thirty (30) days of the
Executive's date of termination. The amount payable to the
Executive hereunder shall not be reduced for the time value of
money or discounted to present value.
SECOND CHANGE
The following shall be added as Section 20 of the Agreement:
20. TAX INDEMNIFICATION
(a) For purposes of this Agreement, "Covered Benefits" shall mean any
payment or benefit paid or provided to the Executive by the Bank,
the Corporation or any affiliate or successor in interest (whether
pursuant to this Agreement or otherwise) that, in the opinion of
Tax Counsel (as defined below), might reasonably be expected to be
subject to any excise tax (the "Excise Tax") imposed under Section
4999 of the Internal Revenue Code of 1986, as
amended (the "Code"). In the event that the Executive shall receive
Covered Benefits, the Corporation shall pay to the Executive an
additional amount (the "Gross-Up Payment"), so that the net amount
retained by the Executive from the Gross-Up Payment, after
deduction of any federal, state and local income taxes, Excise Tax,
and FICA and Medicare withholding taxes on the Gross-Up Payment,
shall be equal to the Excise Tax on the Covered Benefits. For
purposes of determining the amount of the Excise Tax on the Covered
Benefits, the amount of the Covered Benefits that shall be taken
into account in calculating the Excise Tax shall be equal to (i)
the Covered Benefits, less (ii) the amount of such Covered Benefits
that, in the opinion of tax counsel selected by the Company and
reasonably acceptable to the Executive ("Tax Counsel"), are not
parachute payments (within the meaning of Section 280G(b)(1) of the
Code).
(b) For purposes of this Section 20, the Executive shall be deemed to
pay federal income taxes at the highest marginal rate of federal
income taxation in the calendar year in which the Excise Tax is
payable and state and local income taxes at the highest marginal
rate of taxation in the state and locality of the Executive's
residence on the effective date of the Executive's termination, net
of the reduction in federal income taxes which could be obtained
from deduction of such state and local taxes. Except as otherwise
provided herein, all determinations required to be made under this
Section 20 shall be made by Tax Counsel, which determinations shall
be conclusive and binding on the Executive, the Bank and the
Corporation, absent manifest error.
(c) The Corporation shall indemnify and hold the Executive harmless
from losses, costs and expenses which the Executive incurs as a
result of any administrative or judicial review of the Executive's
liability under Section 4999 of the Code by the Internal Revenue
Service or any comparable state agency, through and including a
final judicial determination or final administrative settlement of
any dispute arising out of the Executive's liability for the Excise
Tax or otherwise relating to the classification for purposes of
Section 280G of the Code of any of the Covered Benefits or other
payment or benefit in the nature of compensation made or provided
to the Executive by the Corporation. The Executive shall promptly
notify the Corporation in writing whenever the Executive receives
notice of the commencement of any judicial or administrative
proceeding in which the federal tax treatment under Section 4999 of
the Code of any amount paid or payable under this Agreement or
otherwise is being reviewed or is in dispute (including a notice of
audit or other inquiry concerning the reporting of the Executive's
liability under Section 4999). The Corporation may assume control
at its expense over all legal and accounting matters pertaining to
such federal or state tax treatment of the Covered Benefits or any
payment or benefit in the nature of compensation made or provided
to the Executive by
2
the Corporation, and the Executive shall cooperate fully with the
Corporation in any such proceeding. The Executive shall not enter
into any compromise or settlement or otherwise prejudice any rights
the Corporation may have in connection therewith without the prior
consent of the Corporation. In the event that the Corporation
elects not to assume control over such matters, the Corporation
shall promptly reimburse the Executive for all expenses related
thereto as and when incurred, upon presentation of appropriate
documentation relating to such expenses.
The parties hereby ratify the above changes and certify that, in all other
respects, the existing terms and provisions of the Agreement remain in full
force and effect.
IN WITNESS WHEREOF, the Bank and the Corporation have caused this Amendment
to the Agreement to be executed by their duly authorized officers, and the
Executive has signed this Amendment, on the 30th day of April, 2007.
ATTEST: PVF CAPITAL CORP.
/s/ Xxxxx Xxx Xxxxxxx By: /s/ Xxxxxx X. Xxxxxx
---------------------------- -----------------------------------------
For the Board of Directors
ATTEST: PARK VIEW FEDERAL SAVINGS BANK
/s/ Xxxxx Xxx Xxxxxxx By: /s/ Xxxxxx X. Xxxxxx
---------------------------- -----------------------------------------
For the Board of Directors
WITNESS: EXECUTIVE
/s/ Xxxxx X. Xxxxxx /s/ Xxxxxxx X. Male
---------------------------- --------------------------------------------
Xxxxxxx X. Male
3
THIRD AMENDMENT
TO
SEVERANCE AGREEMENT
This Third Amendment to Severance Agreement (this "Third Amendment") is
made to be effective as of July 24, 2007, by and among PVF Capital Corp. (the
"Corporation"), Park View Federal Savings Bank (the "Bank") and Xxxxxxx Male
(the "Executive").
WHEREAS, Executive, the Corporation and the Bank are parties to a
Severance Agreement dated October 26, 1999, as subsequently amended on January
29, 2001 and April 30, 2007 (as amended, the "Agreement");
WHEREAS, the parties desire to amend the Agreement to include a
non-compete provision; and
WHEREAS, Section 13 of the Agreement provides for its amendment by
means of a written instrument signed by the parties;
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration, the Corporation, Bank and Executive agree as follows:
1. The following shall be added as Section 21 of the Agreement:
21. COVENANT NOT TO COMPETE
Commencing on the date of the Executive's termination
of employment (a) by the Corporation, Bank or any successor
organization for cause or in connection with a Change in
Control, or (b) by the Executive for any reason, and ending on
the third anniversary thereof, the Executive agrees that he
shall not, directly or indirectly, either as principal, agent,
owner, shareholder, officer, director, partner, lender,
investor, independent contractor, consultant or in any other
capacity, engage in, have a financial interest in (except the
ownership by Executive of less than 1% of the outstanding
equity securities of any publicly held corporation) or be in
any way connected or affiliated with, or render advice or
services to any natural person, organization or entity of any
type that engages in any activity that would compete in any
way with the Corporation, the Bank or any successor
organization in Ohio, Pennsylvania, Indiana, Michigan, West
Virginia or Kentucky. This Section 21 shall survive the
termination of this Agreement and the obligations and rights
hereunder shall inure to the benefit of any successor
organization.
2. Except as expressly amended hereby, the Agreement, as amended
by this Third Amendment, shall remain in full force and effect.
3. This Third Amendment may be executed in any number of counterparts,
and each of such counterparts, when so executed, shall be deemed to be an
original and all such counterparts shall together constitute but one and the
same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Third
Amendment, to be effective as of the day and year first above written.
CORPORATION:
PVF CAPITAL CORP.
By: /s/ Xxxx X. Male
----------------------------------
Its Chairman of the Board and
Chief Executive Officer
------------------------------
PARK VIEW FEDERAL SAVINGS BANK
By: /s/ Xxxx X. Male
----------------------------------
Its Chairman of the Board and
Chief Executive Officer
------------------------------
EXECUTIVE:
/s/ Xxxxxxx X. Male
--------------------------------------
Xxxxxxx X. Male
