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EXHIBIT NO. 10.3 - FORM OF SEVERANCE AGREEMENT
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SEVERANCE AGREEMENT
This AGREEMENT is made and entered into this 26th day of October, 1999,
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 Cleveland, Ohio and (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.
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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. 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.
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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. sec. 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.
sec. 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:
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(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 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
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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 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
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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.
8. CHANCE 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
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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 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.
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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 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
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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.
2618 North Moreland Boulevard
Cleveland, Ohio 44120
Attn: Vice President and Secretary
(b) If to the Bank, to:
Park View Federal Savings Bank
2618 North Moreland Boulevard
Cleveland, Ohio 44120
Attn: Corporate Secretary
(c) 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.
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.
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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 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.
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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.
_______________________ By: _____________________________
James W. Male
_______________________ Its: Chairman of the Board
WITNESSES: PARK VIEW FEDERAL SAVING BANK
_______________________ By: _____________________________
Stuart D. Neidus
_______________________ Its: Chairman of the Compensation
Committee
WITNESSES: EXECUTIVE
_______________________ __________________________
_______________________
County of Cuyahoga )
) ss:
State of Ohio )
Before me this _______ day of _____________, 1999, personally appeared
the above named James W. Male, Stuart D. Neidus and , who
acknowledged that they did sign the foregoing instrument and that the same was
their free act and deed.
___________________________
(Notary Seal) Notary Public
My Commission Expires:
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