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EXHIBIT 10.1
AGREEMENT
This Agreement is made by and between PVF Capital Corp. ("PVF") and
Park View Federal Savings Bank (the "Bank") (collectively, the "PVF Parties")
and Steven A. Calabrese, CCAG Limited Partnership and Steven A. Calabrese Profit
Sharing Trust (collectively, the "Calabrese Parties") on behalf of themselves
and their respective affiliates (the PVF Parties and the Calabrese Parties
together, collectively, the "Parties"). In consideration of the covenants,
promises and undertakings set forth herein, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
Parties hereby agree as follows:
1. BOARD EXPANSION AND MEMBERSHIP
(a) At the "Effective Date," as determined below, the board of
directors of PVF (the "Board") will be expanded from eight to ten members, and
Steven A. Calabrese will be appointed as a director of PVF by the Board. Mr.
Calabrese will be appointed to the class of directors with terms expiring at
PVF's 2009 annual meeting of stockholders. At all times from and after the date
of this Agreement, the Board will appoint, at its sole discretion, all other
persons to fill remaining director positions or vacancies on the Board. Mr.
Calabrese shall receive the normal compensation and benefits paid to directors
of PVF and the Bank while he serves as a director thereof. The Effective Date
shall be determined in the manner set forth below, and shall be the day
following the date that to the reasonable satisfaction of PVF none of the
Calabrese Parties is a "management official" of LNB Bancorp, Inc. ("LNB") or a
"depository institution" subsidiary thereof. Such determination that none of the
Calabrese Parties is a "management official" of LNB or a "depository
institution" subsidiary thereof shall be made when all of the following have
occurred: (i) Mr. Calabrese shall have delivered to LNB a written irrevocable
waiver of his right to designate a nominee and successor nominee to the Board of
Directors of LNB, a copy of which Mr. Calabrese shall provide to PVF; (ii) PVF
shall have received a certificate executed by Mr. Calabrese stating that he is
not a "management official" of LNB or a "depository institution" subsidiary
thereof; and (iii) PVF shall have received certificates executed by each of Mr.
Thomas P. Perciak and Mr. Daniel G. Merkel, each of whom currently is serving as
a director of LNB Bancorp, Inc., that each such individual does not have any
agreement, express or implied, with Mr. Calabrese, nor does he have any other
obligation, to act on behalf of Mr. Calabrese with respect to his
responsibilities as a director of LNB or a "depository institution" subsidiary
thereof. The terms "management official" and "depository institution" shall have
the meanings given to them in 12 C.F.R. Part 563f of the Office of Thrift
Supervision Rules and Regulations.
(b) Concurrently with the appointment of Mr. Calabrese as a director
of PVF, the board of directors of the Bank will appoint Mr. Calabrese as a
director of the Bank.
(c) Subject to any limitation imposed by law or by any regulatory
authority having jurisdiction over PVF or the Bank, the Board agrees to
renominate Steven A. Calabrese or such substitute nominee he may designate
pursuant to Section 1(d) herein for election as a director of PVF for a
three-year term at PVF's 2009 annual meeting of stockholders and, if he is
reelected by PVF's stockholders at PVF's 2009 annual meeting of stockholders, to
reelect him as a director of the Bank at the Bank's 2009 annual meeting of
stockholders so long as he does not seasonably give notice to the Company and
the Bank that he does not seek such renomination or reelection at the time of
such occurrence.
(d) Subject to any limitation imposed by law or by any regulatory
authority having jurisdiction over PVF or the Bank, in the event that any time
prior to the scheduled expiration of his initial term as a director or, if,
pursuant to Section 1(c) herein, he is reelected as a director at PVF's 2009
annual meeting of stockholders, prior to the scheduled expiration of the term to
which he is reelected, Mr. Calabrese is unable to serve as a director, whether
because of resignation, removal or otherwise, Mr. Calabrese shall be entitled to
designate a substitute nominee who is reasonably acceptable to the Board, and
PVF shall cause such
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reasonably acceptable nominee to be appointed to the Board to complete Mr.
Calabrese's initial term as a director, provided such substitute nominee shall
agree to be bound by the provisions of Sections 2 and 3 herein. Notwithstanding
the foregoing, if at any time the Calabrese Parties do not beneficially own (as
determined in accordance with Rule 13d-3 promulgated under the Exchange Act), in
the aggregate, at least 4.0% of PVF's outstanding common stock, Mr. Calabrese's
right to designate such substitute nominee shall terminate.
2. STANDSTILL
The Calabrese Parties each agree that, beginning as of the date hereof
and continuing for a period of two years from the date of this Agreement, (the
"Standstill Period"), they and their affiliates or associates (as defined in
Rule 12b-2 promulgated pursuant to the Securities Exchange Act of 1934, as
amended (the "Exchange Act")) will not (and they will not assist or encourage
others to), directly or indirectly, in any manner, without prior written
approval of the Board:
(i) make, or in any way participate in, alone or in concert with
others, any "solicitation" of "proxies" to vote (as such terms are used in the
proxy rules of the Securities and Exchange Commission promulgated pursuant to
Section 14 of the Exchange Act) or seek to advise or influence in any manner
whatsoever any person with respect to the voting of any voting securities of
PVF, except pursuant to PVF's publication of its proxy statement;
(ii) form, join or in any way participate in a "group" within the
meaning of Section 13(d)(3) of the Exchange Act with respect to any voting
securities of PVF;
(iii) acquire, offer to acquire or agree to acquire, alone or in
concert with others, by purchase, exchange or otherwise, (a) any of the assets,
tangible and intangible, of PVF or (b) direct or indirect rights, warrants or
options to acquire any assets of PVF;
(iv) otherwise act, alone or in concert with others (except in his
expressing views as a director at meetings of the board of directors or a
committee of the board of directors of PVF or the Bank), to seek to offer to PVF
or any of its stockholders any business combination, tender or exchange offer,
restructuring, recapitalization or similar transaction to or with PVF or
otherwise seek, alone or in concert with others to control or change the
management, Board or policies of PVF or nominate any person as a director of PVF
or the Bank who is not nominated by the then incumbent directors, or propose any
matter to be voted upon by the stockholders of PVF;
(v) make or cause to be made a proposal for consideration by the
stockholders of PVF; or
(vi) announce an intention to do, or enter into any arrangement or
understanding with others to do, any of the actions restricted or prohibited
under clauses (i) through (v) of this Section 2, or publicly announce or
disclose any request to be excused from any of the foregoing obligations of this
Section 2.
At the 2008 PVF annual meeting of stockholders, the Calabrese Parties
agree to vote all the shares they collectively beneficially own, including
shares owned by Mr. Calabrese's wife or minor children, in favor of the nominees
for election or reelection as director of PVF selected by the Board and
otherwise to support such director candidates. Thereafter, during the Standstill
Period, the Calabrese Parties agree to vote all shares of PVF they or any of
them beneficially own, including shares owned by Mr. Calabrese's wife or minor
children, in favor of the nominees for election or reelection as director of PVF
selected by the Board and agree otherwise to support such director candidates.
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Any of the Calabrese Parties may acquire securities (or beneficial
ownership thereof) of PVF provided that such acquisitions are not made in
connection with any of the actions prohibited by this Section 2.
3. NON-DISPARAGEMENT
During the Standstill Period, the Calabrese Parties agree not to
disparage either of the PVF Parties or any officers or directors (including
director nominees) of the PVF Parties or their affiliated entities in any public
forum, and the PVF Parties agree not to disparage any of the Calabrese Parties
or any officers of the Calabrese Parties or their affiliated entities in any
public forum.
4. AUTHORITY
Each of the Parties which is a corporation or other legal entity and
each individual Party executing this Agreement on behalf of a corporation or
other legal entity, represents and warrants that: (a) such corporation or other
legal entity is duly organized, validly authorized and in good standing, and
possesses full power and authority to enter into and perform the terms of this
Agreement; (b) the execution and delivery, and performance of the terms of this
Agreement have been duly and validly authorized by all requisite acts and
consents of the Party or other legal entity and do not contravene the terms of
any other obligation to which the corporation or other legal entity is subject;
and (c) this Agreement constitutes a legal, binding and valid obligation of each
such entity, enforceable in accordance with its terms.
5. AMENDMENT IN WRITING
This Agreement and each of its terms may only be amended, waived,
supplemented or modified in a writing signed by the signatories hereto or their
respective clients.
6. TERMINATION
(a) This Agreement shall terminate, the Standstill Period shall end
immediately and the Parties will have no further obligations hereunder if Mr.
Calabrese has not been appointed as a director at PVF within 14 days following
the date hereof.
(b) This Agreement shall terminate and the Standstill Period shall
end immediately and the Parties shall have no further obligations hereunder upon
the receipt by the Secretary of each of PVF and the Bank of written resignations
from Mr. Calabrese or any substitute nominee he has selected pursuant to Section
1(d) herein from the respective boards of directors of PVF and the Bank or if
Mr. Calabrese notifies the Board of his intention not to stand for reelection as
director of PVF at PVF's 2009 annual meeting of stockholders, provided that Mr.
Calabrese also has delivered to the Company and the Bank a written irrevocable
waiver of his rights to be renominated pursuant to Section 1(c) herein and to
designate a successor nominee pursuant to Section 1(d) herein.
(c) The provisions of clauses (i) through (vi) of Section 2 of this
Agreement (other than the commitment in clause (iv) of Section 2 not to nominate
any person as a director of PVF or the Bank, which commitment will not terminate
under the circumstances set forth in this Section 6(c)) shall terminate upon a
decision by the Board after the date hereof to engage in substantive
negotiations with any prospective merger partner or partners identified through
a solicitation of indications of interest or otherwise, with respect to (i) any
merger, consolidation, reorganization, recapitalization or other transaction or
series of related transactions that would result in the acquisition, directly or
indirectly, by another person or "group" (within the meaning of Section 13(d)(3)
of the Exchange Act), of securities entitling such person or group to exercise
at least a majority of the total voting power of PVF in the election of
directors (or if PVF is not the
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surviving or resulting corporation in such a transaction, if the transaction
would result in the acquisition, directly or indirectly, by such person or group
of securities entitling such person or group to exercise at least a majority of
the total voting power of such surviving or resulting corporation), or (ii) the
sale of all or substantially all of the PVF's assets (each of the transactions
referred to in clauses (i) and (ii) of this Section 6(c) are hereinafter
referred to as a "Sale Transaction"). For purposes of this Section 6(c), the
parties agree that the term "substantive negotiations" shall not extend to any
discussions between PVF and any other party prior to the earlier of the time
that such other party has made a written or oral proposal to PVF with respect to
a Sale Transaction (specifying price) and PVF has provided non-public business
or financial information to such other party.
7. SPECIFIC PERFORMANCE
The Parties acknowledge and agree that irreparable injury to the other
party would occur in the event any of the provisions of this Agreement were not
performed in accordance with their specific terms or were otherwise breached and
that such injury would not be adequately compensable in damages. Therefore,
without prejudice to the rights and remedies otherwise available to it, the
Parties agree that each Party hereto (the "Moving Party") shall be entitled to
specific enforcement of, and injunctive relief to prevent any violation of, the
terms hereof, and the other Parties hereto will not take action, directly or
indirectly, in opposition to the Moving Party seeking such relief on the grounds
that any other remedy or relief is available at law or in equity.
8. GOVERNING LAW/VENUE/JURISDICTION
This Agreement, and the rights and liabilities of the Parties hereto,
shall be governed by and construed in accordance with the laws of the State of
Ohio without regard to conflict of law provisions.
9. COUNTERPARTS
This Agreement may be executed in counterparts, each of which shall be
considered to be an original or true copy of this Agreement. Faxed signatures
shall be presumed valid.
10. NONWAIVER
The failure of any one of the Parties to insist upon strict adherence
to any term of this Agreement on any occasion shall not be considered a waiver
thereof or deprive the Parties of the right thereafter to insist upon strict
adherence to that term or any other term of this Agreement.
11. DISCLOSURE OF THIS AGREEMENT
The parties contemplate PVF will file a Form 8-K attaching this
Agreement and that there will be no other public comments (except as required by
applicable SEC regulations) by the Parties regarding this Agreement other than a
press release by PVF mutually agreed upon factually summarizing this Agreement
and referring to the Form 8-K filing.
12. ENTIRE AGREEMENT
This Agreement constitutes the full, complete and entire understanding,
agreement, and arrangement of and between the Parties with respect to the
subject matter hereof and supersedes any and all prior oral and written
understandings, agreements and arrangements between them. There are no other
agreements, covenants, promises or arrangements between the Parties other than
those set forth in this Agreement.
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13. NOTICE
All notices and other communications which are required or permitted
hereunder shall be in writing, and sufficient if by same-day hand delivery
(including delivery by courier) or sent by fax, addressed as follows:
If to the PVF Parties:
Mr. John R. Male
Chairman of the Board
30000 Aurora Road
Solon, Ohio 44139
Fax: (440) 914-3916
with a copy to:
Joel E. Rappoport, Esq.
Kilpatrick Stockton LLP
607 14th Street, N.W.
Suite 900
Washington, DC 20005-2018
Fax: (202) 204-5620
If to the Calabrese Parties:
Mr. Steven A. Calabrese
1110 Euclid Avenue, Suite 300
Cleveland, OH 44115
Fax: (216) 696-5499
with a copy to:
Marc C. Krantz, Esq.
Kohrman Jackson & Krantz PLL
One Cleveland Center
20th Floor
1375 East Ninth Street
Cleveland, Ohio 44114-1793
Fax: (216) 621-6536
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IN WITNESS WHEREOF, the Parties hereto have each executed this
Agreement on the date set forth below.
Dated: September 30, 2008
For Steven A. Calabrese: For PVF Capital Corp.:
/s/ Steven A. Calabrese By: /s/ John R. Male
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Steven A. Calabrese John R. Male
Chairman of the Board
For CCAG Limited Partnership: For Park View Federal Savings Bank:
By: TGF, Inc., its general partner
/s/ Steven A. Calabrese By: /s/ John R. Male
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Steven A. Calabrese John R. Male
President Chairman of the Board
For Steven A. Calabrese Profit Sharing Trust:
/s/ Steven A. Calabrese
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Steven A. Calabrese
Co-Trustee
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