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EXHIBIT 10.4
UNITED STATES OF AMERICA
BEFORE THE
OFFICE OF THRIFT SUPERVISION
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)
In the Matter of ) Order No.: CN 09-35
)
)
PVF CAPITAL CORP. ) Effective Date: October 19, 2009
)
Solon, Ohio )
OTS Docket No. H1810 )
)
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ORDER TO CEASE AND DESIST
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WHEREAS, PVF Capital Corp., Solon, Ohio, OTS Docket No. H1810 (Holding
Company), by and through its Board of Directors (Board), has executed a
Stipulation and Consent to Issuance of an Order to Cease and Desist
(Stipulation); and
WHEREAS, the Holding Company, by executing the Stipulation, has
consented and agreed to the issuance of this Order to Cease and Desist (Order)
by the Office of Thrift Supervision (OTS) pursuant to 12 U.S.C. ss. 1818(b); and
WHEREAS, pursuant to delegated authority, the OTS Regional Director for
the Central Region (Regional Director) is authorized to issue Orders to Cease
and Desist where a savings and loan holding company has consented to the
issuance of an order.
NOW, THEREFORE, IT IS ORDERED THAT:
CEASE AND DESIST.
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1. The Holding Company and its directors, officers, employees, and agents
shall cease and desist from any action (alone or with another or others) for or
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toward causing, bringing about, participating in, counseling or the aiding and
abetting in the unsafe or unsound practices that resulted in operating the
Holding Company with an inadequate level of capital protection for the volume,
type, and quality of assets held by the consolidated Holding Company.
CAPITAL PLAN.
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2. (a) By October 31, 2009, the Board shall adopt and submit to
the Regional Director, for review and comment, a detailed
written plan for enhancing the consolidated capital and earnings of the
Holding Company (Capital Plan). The Capital Plan shall cover the period
beginning with the quarter ending September 30, 2009 through the quarter
ending December 31, 2011. At a minimum, the Capital Plan shall include:
(i) establishment of a minimum tangible capital ratio of
tangible equity capital to total tangible assets
commensurate with the Holding Company's consolidated
risk profile;
(ii) specific plans to reduce the risks to the Holding
Company from its current debt levels and debt servicing
requirements;
(iii) operating strategies to achieve net income levels that
will result in profitability and adequate debt service
throughout the term of the Capital Plan;
(iv) quarterly cash flow projections for the Holding Company
on a stand alone basis through calendar year-end
December 31, 2011 that identify both the sources of
funds and the expected uses of funds ithout reliance on
dividends from the Holding Company's wholly-owned
savings association;
(v) detailed quarterly pro forma consolidated and
unconsolidated Holding Company balance sheets and income
statements for the period beginning with the quarter
ending September 30, 2009 through the quarter ending
December 31, 2011 that reflect maintenance throughout
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the period of the Board established minimum tangible
equity capital ratio;
(vi) detailed scenarios to stress-test the consolidated
minimum capital targets based on continuing operating
results, economic conditions and risk profile of
consolidated assets; and
(vii) detailed descriptions of all relevant assumptions and
projections and the supporting documentation for all
relevant assumptions and projections.
(b) Within thirty (30) days after receiving written comments, if
any, from the Regional Director, the Board shall revise and adopt the
Capital Plan based upon such comments. Immediately thereafter, the
Holding Company shall implement and comply with the Capital Plan. Within
five (5) days of Board approval of the Capital Plan, the Holding Company
shall send a copy of the Capital Plan to the Regional Director.
(c) Once the Capital Plan is implemented, the Holding Company shall
operate within the parameters of its Capital Plan. Any proposed material
deviations from or changes to the Capital Plan shall be submitted for
the prior, written non-objection of the Regional Director. Requests for
any material deviations or changes must be submitted at least thirty
(30) days before a proposed deviation or change is implemented.
(d) The Holding Company shall notify the Regional Director regarding
any material event affecting or that may affect the balance sheet,
capital, or the cash flow of the Holding Company within five (5)
business days after such event.
3. (a) On a quarterly basis, beginning with the quarter ending December
31, 2009, the Board shall review a written report that compares
projected operating results contained within the Capital Plan to actual
results (Capital Plan Variance Report). The Board shall review each
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Capital Plan Variance Report and address external and internal risks
that may affect the Holding Company's ability to successfully implement
the Capital Plan. This review shall include, but not be limited to,
adverse scenarios relating to asset or liability mixes, interest rates,
staffing levels and expertise, operating expenses, marketing costs, and
economic conditions in the markets where the Holding Company is
operating. The Board's review of each Capital Plan Variance Report and
assessment of the Holding Company's compliance with the Capital Plan
shall be fully documented in the appropriate Board meeting minutes.
(b) Within sixty (60) days after the close of each quarter beginning
with the quarter ending December 31, 2009, the Board shall provide the
Regional Director with a copy of each Capital Plan Variance Report.
DIVIDENDS.
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4. Effective immediately, the Holding Company shall not declare, make, or
pay any cash dividends or other capital distributions or purchase, repurchase or
redeem or commit to purchase, repurchase, or redeem any Holding Company equity
stock without the prior written non-objection of the Regional Director. This
provision shall not apply to immaterial capital stock redemptions that arise in
the normal course of the Holding Company's business in connection with its
stock-based compensation plans. The Holding Company shall submit its written
request for non-objection to the Regional Director at least forty-five (45) days
prior to the anticipated date of the proposed dividend, capital distribution, or
stock transaction. The written request for such notice of non-objection shall:
(a) contain current and pro forma projections regarding the Holding Company's
capital, asset quality, and earnings; and (b) address compliance with the
Capital Plan required by Paragraph 2 of this Order.
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DEBT RESTRICTIONS.
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5. Effective immediately, the Holding Company shall not, directly or
indirectly, incur, issue, renew, roll over, or increase any debt or commit to do
so without the prior written non-objection of the Regional Director. The Holding
Company shall submit its written request for non-objection to the Regional
Director at least forty-five (45) days prior to the anticipated date of the
proposed debt transaction. The Holding Company's written requests for Regional
Director non-objection to engage in such debt transactions, at a minimum, shall:
(a) describe the purpose of the proposed debt; (b) set forth and analyze the
terms of the proposed debt and covenants; (c) analyze the Holding Company's
current cash flow resources available to satisfy such debt repayment; and (d)
set forth the anticipated source(s) of repayment of the proposed debt. For
purposes of this Paragraph of the Order, the term "debt" includes, but is not
limited to loans, bonds, cumulative preferred stock, hybrid capital instruments
such as subordinated debt or trust preferred securities, and guarantees of debt.
For purposes of this Paragraph of the Order, the term "debt" does not include
liabilities incurred in the ordinary course of business to acquire goods and
services and that are normally recorded as accounts payable under generally
accepted accounting principles.
TRANSACTIONS WITH AFFILIATES.
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6. Effective immediately, the Holding Company shall not engage in
transactions with any subsidiary or affiliate without the prior written
non-objection of the Regional Director, except: (a) exempt transactions under 12
C.F.R. Part 223; and (b) intercompany cost-sharing transactions identified in
executed written agreements between the parties. The Holding Company shall
provide thirty (30) days advance written notice to the Regional Director of any
proposed affiliate transaction and shall include a full description of the
transaction.
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SEVERANCE AND INDEMNIFICATION PAYMENTS.
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7. Effective immediately, the Holding Company shall not make any golden
parachute payment(1) or any prohibited indemnification payment(2) unless, with
respect to each such payment, the Holding Company has complied with the
requirements of 12 C.F.R. Part 359.
DIRECTORATE AND MANAGEMENT CHANGES.
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8. Effective immediately, the Holding Company shall comply with the prior
notification requirements for changes in directors and Senior Executive
Officers(3) set forth in 12 C.F.R. Part 563, Subpart H.
EMPLOYMENT CONTRACTS AND COMPENSATION ARRANGEMENTS.
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9. Effective immediately, the Holding Company shall not enter into, renew,
extend, or revise any contractual arrangement related to compensation or
benefits with any director or Senior Executive Officer of the Holding Company,
unless it first provides the Regional Director with not less than thirty (30)
days prior written notice of the proposed transaction. The notice to the
Regional Director shall include a copy of the proposed employment contract or
compensation arrangement, or a detailed written description of the compensation
arrangement to be offered to such director or officer, including all benefits
and perquisites. The Board shall ensure that any contract, agreement, or
arrangement submitted to the Regional Director fully complies with the
requirements of 12 C.F.R. Part 359.
COMPLIANCE COMMITTEE AND PROGRESS REPORTS.
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10. Within thirty (30) days, the Board shall appoint a committee of three (3) or
more directors to monitor and coordinate the Holding Company's compliance with
the Order (Compliance Committee). The Compliance Committee may be an existing
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(1) The term "golden parachute payment" is defined at 12 C.F.R. ss. 359.1(f).
(2) The term "prohibited indemnification payment" is defined at 12 C.F.R. ss.
359.1(l).
(3) The term "Senior Executive Officer" is defined at 12 C.F.R. ss.
563.555.
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Board Committee that meets the criteria of this provision. The Committee shall
be comprised of independent(4) directors.
11. Within forty-five (45) days of the end of each quarter beginning with
the quarter ending December 31, 2009, the Compliance Committee shall provide a
written progress report to the Board, describing the actions taken by the
Holding Company to comply with each provision of this Order and the results of
those actions. The Board's consideration of the Compliance Committee's progress
report for the period, including comments and questions concerning the progress
report and additional actions taken or directed by the Board, shall be reflected
in the minutes of the Board's meetings.
12. Within sixty (60) days of the end of each quarter, beginning with the
quarter ending December 31, 2009, a copy of the progress report for the period
with any revisions or comments by the Board shall be provided to the Regional
Director.
EFFECTIVE DATE, INCORPORATION OF STIPULATION.
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13. This Order is effective on the Effective Date as shown on the first
page. The Stipulation is made a part hereof and is incorporated herein by this
reference.
DURATION.
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14. This Order shall remain in effect until terminated, modified, or
suspended by written notice of such action by the OTS, acting by and through its
authorized representatives.
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(4) For this purpose the term "independent" means that the director is
not: (1) a current or former officer or employee of the Holding Company or of an
affiliate or service provider of the Holding Company; (2) a member of
the immediate family (defined in 12 C.F.R. ss. 561.24) of a director, officer or
employee of the Holding Company or its affiliates; (3) a controlling person of
the Holding Company as defined in 12 C.F.R. ss. 561.14; (4) does not have
outstanding extensions of credit from the Holding Company or its affiliates
except for loans secured by a lien on the borrower's primary residence, and (5)
and has not served as a consultant, advisor, service provider, underwriter, or
legal counsel to the Holding Company or its affiliates.
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TIME CALCULATIONS.
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15. Calculation of time limitations for compliance with the terms of this
Order run from the Effective Date and shall be based on calendar days, unless
otherwise noted.
16. The Regional Director, or an OTS authorized representative, may extend
any of the deadlines set forth in the provisions of this Order upon written
request by the Holding Company that includes reasons in support for any such
extension. Any OTS extension shall be made in writing.
SUBMISSIONS AND NOTICES.
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17. All submissions, including any reports, to the OTS that are required by
or contemplated by this Order shall be submitted within the specified
timeframes.
18. Except as otherwise provided herein, all submissions, requests,
communications, consents, or other documents relating to this Order shall be in
writing and sent by first class U.S. mail (or by reputable overnight carrier,
electronic facsimile transmission, or hand delivery by messenger) addressed as
follows:
(a) TO THE OTS:
Regional Director
Office of Thrift Supervision
One South Wacker Drive, Suite 2000
Chicago, Illinois 60606
Facsimile: (312) 917-5001
(b) TO THE HOLDING COMPANY:
Chairman of the Board
PVF Capital Corp.
30000 Aurora Road
Solon, Ohio 44139-2728
Facsimile: (440) 914-3916
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NO VIOLATIONS AUTHORIZED.
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19. Nothing in this Order or the Stipulation shall be construed as allowing
the Holding Company, its Board, officers, or employees to violate any law, rule,
or regulation.
IT IS SO ORDERED.
OFFICE OF THRIFT SUPERVISION
By: /s/ Daniel T. McKee
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Daniel T. McKee
Regional Director, Central Region
Date: See Effective Date on page 1