1
FORM OF SEVERANCE AGREEMENT
This AGREEMENT is made and entered into this 1st day of July, 1998 by and among
PVF Capital Corporation (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 Bedford Heights, Ohio and ____________________ (the "Executive"). Any
reference to the "Board of Directors" herein shall mean the Board of Directors
of 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 has heretofore served as an employee of the Bank:
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 July 1, 1998 (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
1
2
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. As used herein, "for cause"
shall mean (i) gross misconduct by the Executive that is materially inconsistent
with the terms hereof, or (ii) material failure by the Executive to perform his
duties, either of which continues after written notice thereof and a fifteen
(15) day chance to cure or (iii) the Executive's conviction for committing a
felony.
4. Voluntary Termination of Agreement
----------------------------------
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.
ss.1818(e), all obligations of the Bank and the Corporation under this Agreement
shall terminate, as of the effective date of the order.
2
3
(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.
ss.1818(e)(3) or (g)(1), the Corporation's and the Bank's obligations under
subparagraphs 6(a), (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
its contract obligations were suspended, and
(ii) reinstate (in whole or in part) any of its obligations which
were suspended as required in subparagraph (d) above.
3
4
6. Severance Payments or Termination Benefits
------------------------------------------
For purposes 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:
- 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.
- Voluntary of 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 base salary and 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.
(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 in subject to the limitations
described in Paragraph 6(d) and 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.
4
5
(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) Notwithstanding any provision in this Agreement to the contrary, if the
compensation and benefits provided to the Executive pursuant to or under this
Agreement, either alone or in combination with other compensation and benefits
received by the Executive from the Bank or Corporation, would constitute
"parachute payments" within the meaning of Section 280G of the Internal Revenue
Code of 1986 as amended (the "Code") or the regulations adopted or proposed
thereunder, then the compensation and benefits payable pursuant to or under this
Agreement shall be reduced to the extent necessary so that no portion thereof
shall be subject to any excise tax imposed by Section 4999 or other Section of
the Code. The determination of what amounts would constitute "parachute
payments" within the meaning of Section 280G of the Code shall be made by an
independent accounting firm or other independent tax counsel selected by the
Corporation and approved by the Executive or any other party entitled to receive
compensation or benefits provided hereunder. In the event that any reduction of
amounts to be paid is required under this Paragraph, the Corporation and the
Bank shall consult with the Executive in determining the order in which
compensation and benefits shall be reduced.
(e) 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 or arrangement of the Bank or Corporation provided such
amounts are not included in the computation of the Executive's "parachute
payment" as defined by Section 280G(b)(2) and as determined by the independent
accounting firm referred to
5
6
in Paragraph 6(d). 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" shall mean the occurrence 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. For purpose of this Agreement, The determination of whether a reduction
in the executives base salary is considered material shall be at the discretion
of the Board.
(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 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
6
7
Executive becomes a participant, or 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. For purposes of this Agreement, the
determination of a direct or material indirect reduction or material fringe
benefit shall be made by the Board of Directors in its sole discretion.
(e) Death prior to retirement. In the event the Executive should die while
actively employed by the Bank or Corporation prior to retirement.
(f) Disability prior to retirement. Should the Executive become totally disabled
while actively employed by the Bank or Corporation prior to retirement. For
purpose of this agreement, the term "Totally disabled" means that because of
injury or sickness, Executive is unable to perform the duties of his occupation.
8. Change in Control
-----------------
(a) If, during the term of this Agreement, there is a Change in Control of the
Bank or Corporation, the Executive shall be entitled to severance payments
and/or termination benefits as described in Paragraph 6 in the event 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, a "Change in Control of the Bank or
Corporation" shall mean:
7
8
(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, or 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;
(ii) 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.
(iii) 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 shares held by former shareholders of the
Corporation prior to such merger or consolidation; or
(iv) the Corporation shall have sold (i) substantially all of its
assets; or, (ii) the Bank, to another person. The term
"person" refers to an individual, corporation, partnership,
trust, association, joint venture, pool, syndicate, sole
proprietorship, unincorporated organization or other entity.
8
9
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 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/her
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 combination. This Agreement is personal to the Executive
and the Executive may not delegate his duties hereunder.
9
10
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 Bank, to:
Park View Federal Savings Bank
------------------------------
2618 N. Moreland Blvd.
------------------------------
Cleveland, OH 44120
------------------------------
------------------------------
(b) If to the Executive, to:
------------------------------
------------------------------
------------------------------
------------------------------
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.
10
11
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 hereof.
16. Governing Law
-------------
This Agreement shall, except to the extent 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 567 of the OTS
regulations. In addition, no severance benefits under Paragraph 8
11
12
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.
IN WITNESS WHEREOF, the parties have executed this Agreement on the day and year
first herein above written.
WITNESSES: PVF CAPITAL CORP.
BY:
- --------------------------------- --------------------------------
ITS:
- --------------------------------- --------------------------------
WITNESSES: PARK VIEW FEDERAL SAVINGS BANK
BY:
- --------------------------------- --------------------------------
ITS:
- --------------------------------- --------------------------------
WITNESSES:
("Executive)
- --------------------------------- -------------------------
- ---------------------------------
12