As filed
with the Securities and Exchange Commission on March 1, 2010
Registration No. 333-163042
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
PRE-EFFECTIVE
AMENDMENT NO. 2 TO
FORM S-1
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
PVF CAPITAL CORP.
(Exact name of registrant as specified in its charter)
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Ohio
(State or other jurisdiction of
incorporation or organization)
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6035
(Primary Standard Industrial
Classification Code Number)
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34-1659805
(IRS Employer Identification No.)
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30000 Aurora Road
Solon, Ohio 44139
(440) 248-7171
(Address, including zip code, and telephone number,
including area code, of registrants principal executive offices)
Robert J. King, Jr.
President and Chief Executive Officer
30000 Aurora Road
Solon, Ohio 44139
(440) 248-7171
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
Copies to:
Joel E. Rappoport, Esq.
Stephen F. Donahoe, Esq.
Kilpatrick Stockton LLP
607 14
th
Street, NW, Suite 900
Washington, DC 20005
(202) 508-5800
Approximate date of commencement of proposed sale to the public:
As soon as practicable after
this Registration Statement becomes effective.
If any of the securities being registered on this Form are to be offered on a delayed or
continuous basis pursuant to Rule 415 under the Securities Act of 1933, check the following box.
þ
If this Form is filed to register additional securities for an offering pursuant to Rule
462(b) under the Securities Act, check the following box and list the Securities Act registration
statement number of the earlier effective registration statement for the same offering.
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If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities
Act, check the following box and list the Securities Act registration statement number of the
earlier effective registration statement for the same offering.
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If this Form is a post-effective amendment filed pursuant to Rule 462(d) under the Securities
Act, check the following box and list the Securities Act registration statement number of the
earlier effective registration statement for the same offering.
o
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated
filer, a non-accelerated filer, or a smaller reporting company. See the definitions of large
accelerated filer, accelerated filer and smaller reporting company in Rule 12b-2 of the
Exchange Act. (Check one):
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Large accelerated filer
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Accelerated filer
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Non-accelerated filer
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Smaller reporting company
þ
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(Do not check if a smaller reporting company)
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Calculation of Registration Fee
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Title of Each
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Proposed
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Class of Securities
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Amount to be
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Proposed Maximum
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Maximum Aggregate
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Amount of
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to be Registered
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Registered
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Offering Price Per Unit
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Offering Price(1)
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Registration Fee
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Common Stock, $0.01
par value per share
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205,297 (3)
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$1.98
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$406,489
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$23.00 (4)
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Warrants to
purchase Shares of
Common Stock, and underlying Shares of Common Stock (2)
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1,341,694
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$4.00
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$5,366,776
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300.00 (4)
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(1)
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Estimated in accordance with Rule 457(c) under the Securities Act of 1933, as amended (the
Act), solely for the purpose of calculating the registration fee, based on the average of the
high and low prices of PVF Capital Corp. common stock as reported on the Nasdaq Capital Market on
November 6, 2009.
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(2)
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There are being registered hereunder (a) a warrant for the
purchase of 1,341,694 shares of common stock with an initial per share
exercise price of $4.00, (b) the 1,341,694 shares of common stock issuable
upon the exercise of such warrant and (c) such additional number of shares of
common stock, of a currently indeterminable amount, as may from time to time
become issuable by reason of stock splits, stock dividends and certain anti-dilution
provisions set forth in such warrant, which shares of common stock are registered
hereunder pursuant to Rule 416.
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(3)
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Pursuant to Rule 416 under the Act, this registration statement also covers an indeterminate
number of shares that may be issued upon stock splits, stock dividends or similar transactions.
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(4)
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The registration fee was previously paid upon the initial filing of the Form S-1 on November 12, 2009.
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The Registrant hereby amends this Registration Statement on such date or dates as may be necessary
to delay its effective date until the Registrant shall file a further amendment which specifically
states that this Registration Statement shall thereafter become effective in accordance with
Section 8(a) of the Securities Act of 1933 or until the Registration Statement shall become
effective on such date as the Commission, acting pursuant to Section 8(a), may determine.
The
information in this prospectus is not complete and may be
changed. The Selling Shareholder may not sell these securities
until the registration statement filed with the Securities and
Exchange Commission relating to these securities is effective.
This prospectus is not an offer to sell these securities and it
is not a solicitation of an offer to buy these securities in any
state where such offer, solicitation or sale is not
permitted.
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SUBJECT TO COMPLETION, DATED
MARCH 1, 2010
PROSPECTUS
PVF CAPITAL CORP.
205,297 SHARES OF COMMON
STOCK
WARRANTS TO PURCHASE UP TO
1,341,694
SHARES OF COMMON
STOCK
UP TO 1,341,694 SHARES OF
COMMON STOCK
This prospectus relates to the offer and sale of up to
205,297 shares of our common stock and warrants to purchase
up to 1,341,694 shares of our common stock by the Selling
Shareholder. We issued these shares and warrants pursuant to an
Exchange Agreement, dated September 1, 2009 (the
Exchange Agreement), by and between (i) PVF
Capital Corp., (ii) Alesco Preferred Funding IV, Ltd. (the
Selling Shareholder), and
(iii) Cohen & Company Financial Management, LLC,
the Selling Shareholders collateral manager. In accordance
with the terms of the Exchange Agreement, the Selling
Shareholder exchanged $10.0 million in principal amount
trust preferred securities issued by PVF Capital Trust I, a
Delaware business trust and wholly owned subsidiary of PVF
Capital Corp., for 205,297 shares of PVF Capital
Corp.s common stock (the Shares) and two
warrants (collectively, the Warrants) to purchase an
aggregate of up to 1,341,694 shares of PVF Capital Corp.
common stock (the Warrant Shares). We are
registering the Shares, the Warrants and the Warrant Shares
pursuant to the Exchange Agreement we entered into with the
Selling Shareholder and its collateral manager.
The Selling Shareholder may sell all or a portion of these
securities from time to time, in amounts, at prices and on terms
determined at the time of offering. These securities may be sold
by any means described in the section of the prospectus entitled
Plan of Distribution
beginning on
page 18.
We will not receive any proceeds from the sale of the Shares,
the Warrants or the Warrant Shares. We will, however, receive
cash proceeds equal to the total exercise price of any Warrants
that are exercised for cash.
Our common stock is traded on the Nasdaq Capital Market under
the symbol PVFC. On February 26, 2010, the
closing price of our common stock was $1.95 per share.
Investing in the Shares, the Warrants or the Warrant Shares
involves risks. You should carefully read the
Risk
Factors
beginning on page 8 of this prospectus
before investing.
The Shares, the Warrants and the Warrant Shares are equity
securities and are not deposits, savings accounts or other
obligations of a bank or savings institution and are not insured
by the Federal Deposit Insurance Corporation or any other
governmental agency.
Neither the Securities and Exchange Commission nor any state
securities commission has approved or disapproved of these
securities or determined if this prospectus is truthful or
complete. Any representation to the contrary is a criminal
offense.
The date of this prospectus is March , 2010.
TABLE OF CONTENTS
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Page
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3
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8
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10
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11
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EX-23.2
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You
should rely only on the information contained or incorporated by reference in this
prospectus. Neither we nor the Selling Shareholder has authorized anyone to provide you with
different information. If anyone provides you with different or inconsistent information, you
should not rely on it. The Selling Shareholder is not making an offer to sell these securities in
any jurisdiction where the offer or sale of these securities is not permitted. You should assume
that the information appearing in this prospectus is accurate only as of the date on the front
cover of this prospectus and that any information we have incorporated by reference is accurate
only as of the date of the document incorporated by reference, regardless of the time of the
delivery of this prospectus or any sale of these securities. Our business, financial condition,
results of operation and prospects may have changed since these dates.
All references in this prospectus to PVF Capital Corp., the Company, we, us, and
our, refer to PVF Capital Corp. and its subsidiaries on a consolidated basis, unless the context
otherwise requires. References to Park View Federal Savings Bank or the Bank mean Park View
Federal Savings Bank, which is our principal subsidiary.
2
PROSPECTUS SUMMARY
The following summary highlights information contained elsewhere in this prospectus. It may
not contain all the information that may be important to you. You should read the entire
prospectus, including the section entitled Risk Factors, and the information to which we refer
you and which is incorporated by reference, before making an investment decision.
PVF Capital Corp.
PVF Capital Corp. is the holding company for Park View Federal Savings Bank. PVF Capital Corp. owns and operates Park View Federal Savings Bank, PVF Service Corporation, a real estate
subsidiary, and Mid Pines Land Company, a real estate subsidiary. In
addition, the PVF Capital Corp. owns
PVF Holdings, Inc., a financial services subsidiary, currently inactive, and two other subsidiaries
chartered for future operation, but which are also currently inactive. Park View Federal Savings Bank is a federal stock
savings bank operating through seventeen offices located in Cleveland, Ohio and the surrounding
communities. PVF Capital Corp. also created PVF Capital Trust I and PVF Capital Trust II for the sole
purpose of issuing trust preferred securities. Park View Federal Savings Bank has operated continuously for 89 years,
having been founded as an Ohio chartered savings and loan association in 1920. PVF Capital Corp.s
main office is located at 30000 Aurora Road, Solon, Ohio 44139 and its telephone number is (440)
248-7171.
Park View Federal Savings Banks principal business consists of attracting deposits from the general public and
investing these funds primarily in loans secured by first mortgages on real estate located in its
market area, which consists of Portage, Lake, Geauga, Cuyahoga, Summit, Medina and Lorain Counties
in Ohio. Park View Federal Savings Bank emphasizes the origination of loans for the purchase or construction of
residential real estate, commercial real estate and multi-family residential property and land
loans. To a lesser extent, Park View Federal Savings Bank originates loans secured by second mortgages, including home
equity lines of credit and loans secured by savings deposits.
Park View Federal Savings Bank derives its income principally from interest earned on loans and, to a lesser extent,
loan servicing and other fees, gains on the sale of loans and interest earned on investments. Park View Federal Savings
Banks principal expenses are interest expense on deposits and borrowings and noninterest expense
such as compensation and employee benefits, office occupancy expenses and other miscellaneous
expenses. Funds for these activities are provided principally by deposits, Federal Home Loan Bank
advances and other borrowings, repayments of outstanding loans, sales of loans and operating
revenues. The business of PVF Capital Corp. consists primarily of the business of Park View Federal Savings Bank.
At
December 31, 2009, we had total consolidated assets of $869.3 million, total deposits of
$682.9 million and total shareholders equity of $53.6 million.
Recent Developments
Stock Offering.
PVF Capital Corp. has filed a Registration Statement on Form S-1 with the
Securities and Exchange Commission relating to (i) an offering to current shareholders of
non-transferable subscription rights to purchase shares of PVF Capital Corp. common stock and (ii)
a concurrent offering of shares of common stock to standby purchasers comprised of certain
institutional investors and high net worth individuals (the Rights Offering Registration
Statement.) The Rights Offering Registration Statement was
declared effective by the U.S. Securities and
Exchange Commission on February 17, 2010. You may obtain a written prospectus
for that offering meeting the requirements of Section 10 of the Securities Act of 1933, as amended,
by writing to PVF Capital Corp., 30000 Aurora Road, Solon, Ohio 44139, Attention: Jeffrey N. Male,
Corporate Secretary. This prospectus shall not constitute an offer to sell or the solicitation of
an offer to buy the securities covered by the Rights Offering
Registration Statement. There will be no sale of the securities described
in the Rights Offering Registration Statement in any state in which such offer, solicitation or sale
would be unlawful prior to registration or qualification under the securities laws of any state.
3
Regulatory Restrictions.
On October 19, 2009, PVF Capital Corp. and Park View Federal Savings
Bank each entered into a Stipulation and Consent to the Issuance of an Order to Cease and Desist
with the Office of Thrift Supervision whereby PVF Capital Corp. and Park View Federal Savings Bank
each consented to the issuance of an Order to Cease and Desist without admitting or denying that
grounds exist for the Office of Thrift Supervision to initiate an administrative proceeding against
PVF Capital Corp. and Park View Federal Savings Bank.
The Park View Federal Savings Bank Cease and Desist Order requires Park View Federal Savings
Bank to take several actions, including, but not limited to:
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by December 31, 2009, meet and maintain (i) a tier one (core) capital ratio of at
least 8.0% and (ii) a total risk-based capital ratio of at least 12.0% after the
funding of an adequate allowance for loan and lease losses and submit a detailed plan
to accomplish this; as a result of this requirement Park View Federal Savings Bank may
not be deemed to be well-capitalized under applicable regulations;
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if Park View Federal Savings Bank fails to meet these capital requirements at any
time after December 31, 2009, within 15 days thereafter prepare a written contingency
plan detailing actions to be taken, with specific time frames, providing for (i) a
merger with another federally insured depository institution or holding company
thereof, or (ii) voluntary liquidation;
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adopt revisions to Park View Federal Savings Banks liquidity policy to, among other
things, increase Park View Federal Savings Banks minimum liquidity ratio;
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reduce the level of adversely classified assets to no more than 50% of core capital
plus allowance for loan and lease losses by December 31, 2010 and to reduce the level
of adversely classified assets and assets designated as special mention to no more than
65% of core capital plus allowance for loan and lease losses by December 31, 2010;
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submit for Office of Thrift Supervision approval a new business plan that will
include the requirements contained in the Cease and Desist Order and that also will
include well supported and realistic strategies to achieve consistent profitability by
September 30, 2010;
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restrict quarterly asset growth to an amount not to exceed net interest credited on
deposit liabilities until the Office of Thrift Supervision approves of the new business
plan;
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cease to accept, renew or roll over any brokered deposit or act as a deposit broker,
without the prior written waiver of the Federal Deposit Insurance Corporation; and
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not declare or pay dividends or make any other capital distributions from Park View
Federal Savings Bank without receiving prior Office of Thrift Supervision approval.
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The PVF Capital Corp. Cease and Desist Order requires PVF Capital Corp. to take several
actions, including, but not limited to:
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submit a capital plan that includes, among other things, (i) the establishment of a
minimum tangible capital ratio of tangible equity capital to total tangible assets
commensurate with PVF Capital Corp.s consolidated risk profile, and (ii) specific
plans to reduce the risks to PVF Capital Corp. from its current debt levels and debt
servicing requirements;
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not declare, make or pay any cash dividends or other capital distributions or
purchase, repurchase or redeem or commit to purchase, repurchase or redeem PVF Capital
Corp. equity stock without the prior non-objection of the Office of Thrift Supervision,
except that this provision does not apply to immaterial capital stock redemptions that
arise in the normal course of PVF Capital Corp.s business in connection with its
stock-based compensation plans; and
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not incur, issue, renew, roll over or increase any debt or commit to do so without
the prior non-objection of the Office of Thrift Supervision (debt includes loans,
bonds, cumulative preferred stock, hybrid capital instruments such as subordinated debt
or trust preferred securities, and guarantees of debt).
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The Cease and Desist Orders also impose certain on-going reporting obligations and additional
restrictions on severance and indemnification payments, changes in directors and management,
employment agreements and compensation arrangements that PVF Capital Corp. and Park View Federal
Savings Bank may enter into, third party service contracts and transactions with affiliates.
With exception to the higher capital requirement discussed below, we have complied to date
with all requirements of the Cease and Desist Orders and we will continue to work to comply with
all such requirements in the future. We have submitted a capital plan and a business plan which
plans contemplate a first calendar quarter 2010 closing date for the stock offering discussed above
and which is being reviewed by the Office of Thrift Supervision. Although we did not comply with
the higher capital ratio requirements by the December 31, 2009 required date, based on informal
discussions with the Office of Thrift Supervision and due to the pendency of the stock offering,
management does not expect that any additional material restrictions or penalties will be imposed
by the Office of Thrift Supervision as a result of not complying with the December 31, 2009
deadline, assuming we are able to raise sufficient capital in the stock offering. We have also
submitted to the Office of Thrift Supervision our reduction targets for our adversely classified
assets. Both Cease and Desist Orders will remain in effect until terminated, modified, or
suspended in writing by the Office of Thrift Supervision.
The failure to comply with the Cease and Desist Orders could result in the initiation of
further enforcement action by the Office of Thrift Supervision, including the imposition of further
operating restrictions. The Office of Thrift Supervision could also direct us to seek a merger
partner. We have incurred, and expect to continue to incur, significant additional regulatory
compliance expense in connection with the Cease and Desist Orders.
The regulatory restrictions on asset growth and brokered deposits have not materially impacted
and are not expected to have in the near future a material impact on our operations or asset size.
Our operations have been and are expected to continue to be focused on reducing nonperforming
assets, which, as a result, will reduce our asset size. As our asset size decreases, brokered
deposits are not needed to fund the lower level of assets. Consistent
with managements strategy to
increase capital ratios and reduce problem assets, total assets and
deposits declined slightly during the three months ended
December 31, 2009.
New
Management.
Since October 2009, we have appointed a new Chief Financial Officer, Chief
Lending Officer and Head of Retail Banking. Information on these individuals is included below.
New Chief Financial Officer.
In November 2009, James H. Nicholson was appointed Chief
Financial Officer of PVF Capital Corp. and Park View Federal Savings Bank. From 2006 to 2009, Mr.
Nicholson served Huntington Bank in several capacities, including regional chief operating officer
(Akron/Canton Region) and regional president and chief operating officer (Eastern Ohio Region).
Mr. Nicholson previously served as Executive Vice President and Chief Operating Officer of Unizan
Financial Corp. and President and Chief Executive Officer and director of Unizan Bank, National
Association from 2002 until Huntington Bancshares, Inc.s acquisition of Unizan Financial in 2006.
Previously, Mr. Nicholsons served BancFirst Ohio Corp. and The First National Bank of Zanesville
as Controller of the bank from 1990 to 1994, Chief Financial Officer until 1996, Executive
Vice President and Chief Operating Officer until 1997, and President and Chief Executive Officer
and a director of the bank until the merger with Unizan Financial (formerly UNB Corp.) in 2002. Mr.
Nicholson became a director of BancFirst Ohio Corp. in 2000, and was also serving as its Executive
Vice President and Corporate Secretary at the time of the 2002 merger.
New Chief Lending Officer.
In November 2009, Lonnie L. Shiffert was appointed as Chief
Lending Officer of Park View Federal Savings Bank. Previously, Mr. Shiffert served in several
senior level commercial real estate positions with institutions in the Cleveland area, including
with Citizens Bank as Senior Vice President and Manager, Commercial Real Estate Department (2007 to
2009), Sky Bank as Senior Vice President and Manager, Commercial Real Estate Department (2006 to
2007), Fifth Third Bank as Senior Vice President and Manager, Commercial Real Estate Department
(2004 to 2006), Provident Bank as Senior Vice President and Manager, Commercial Real Estate
Department (1998 to 2004).
5
New Head of Retail Banking.
In October 2009, Jane S. Grebenc was appointed as Executive Vice
President, Retail Banking of Park View Federal Savings Bank. Previously, Ms. Grebenc served as
Executive Vice President, Wealth Segment and Senior Executive, Private Bank at KeyBank National
Association from 2008 to 2009. Ms. Grebenc previously served National City Corporation from 1982
to 2007 in several capacities, including Executive Vice President, Private Client Group (2006 to
2007), Executive Vice President, Loan Operations (2003 to 2006), Executive Vice President, Branch
Network (1999 to 2003) and Executive Vice President, Retail Banking Group (1995 to 1998).
Second Trust Preferred Exchange.
On October 7, 2009, we entered into an agreement with
investors holding trust preferred securities with an aggregate liquidation amount of $10.0 million
issued by PVF Capital Trust II (the Second Trust Preferred Exchange). Pursuant to the agreement,
the investors will tender $10.0 million aggregate liquidation amount of trust preferred securities
to PVF Capital Corp. in exchange for an aggregate of $400,000 in cash, a number of shares of common
stock (the Initial Shares) equal to $600,000 divided by the conversion price and warrants to
acquire 769,608 shares of common stock plus 9.9% of the Initial Shares. Further, PVF Capital Corp.
will issue additional warrants that become exercisable in the event PVF Capital Corp. completes one
or more public offerings or private placements of its common stock within a year. The second group
of warrants will give the holders thereof the right to acquire additional shares of common stock so
that the total number of shares they could acquire under all warrants would entitle them to
purchase an aggregate of 4.9% of the common stock to be outstanding following the public offering
or offerings completed during that one-year period. The consummation of the Second Trust Preferred
Exchange is subject to the approval of PVF Capital Corp.s shareholders at the upcoming annual
meeting of shareholders. Upon consummation of the Second Trust Preferred Exchange, PVF Capital
Corp. intends to submit for cancellation the trust preferred securities, the common securities
issued by PVF Capital Trust II and the related subordinated debentures. The securities to be
issued in connection with the Second Trust Preferred Exchange have not yet been registered under
the Securities Act of 1933, as amended, and may not be offered or sold in the United States absent
registration or an applicable exemption from such registration requirements.
Background of the Transaction
On September 1, 2009, PVF Capital Corp. entered into an Exchange Agreement
with Alesco Preferred Funding IV, Ltd. (the Selling Shareholder) and Cohen & Company
Financial Management, LLC, the Selling Shareholders collateral manager. The Selling Shareholder
is the former holder of $10.0 million principal amount trust preferred securities issued by PVF
Capital Trust I, a special purpose entity which was formed by PVF Capital Corp. in 2004 for the sole
purpose of issuing $10.0 million of variable rate trust preferred securities (the Capital
Securities). PVF Capital Corp. issued subordinated deferrable interest debentures (the Subordinated
Debentures) to PVF Capital Trust I in exchange for the proceeds of the offering of the trust
preferred securities. The trust preferred securities carry a variable interest rate that adjusts to
the three month LIBOR rate plus 260 basis points. The Subordinated Debentures are the sole asset
of PVF Capital Trust I.
Under
the Exchange Agreement, on September 3, 2009, the Selling Shareholder
exchanged its $10.0 million of trust preferred securities for
consideration to be paid by PVF Capital Corp.
The consideration paid by PVF Capital Corp. consisted of (i) a cash payment of $500,000; (ii)
205,297 shares of PVF Capital Corp.s common stock (the Shares); (iii) a warrant (Warrant A) to
purchase 769,608 shares of PVF Capital Corp. common stock (the Warrant A Shares); and (iv) a warrant (Warrant B and together with
Warrant A, the Warrants) to purchase a number of shares
of PVF Capital Corp. common stock equal to 9.9% of
any shares of PVF Capital Corp. common stock issued, exclusive of any warrant or warrant shares, in exchange
for capital securities of PVF Capital Trust II in the event PVF Capital Corp. in the future issues shares
of its common stock in exchange for PVF Capital Trust II capital securities (the Warrant B Shares
and, together with the Warrant A Shares, the Warrant Shares).
6
The number of shares of PVF Capital Corp. common stock issuable pursuant to each of Warrant A and
Warrant B may not exceed certain limits. Specifically, the number of shares issuable upon the exercise
of Warrant A or Warrant B may not exceed the maximum number of shares of PVF Capital Corp.s common stock
such that the Selling Shareholder, upon its exercise of the
applicable Warrant, shall own 9.9% of PVF Capital Corp.s common stock then issued and outstanding, except that in the event the Selling
Shareholder receives comfort from the Office of Thrift Supervision that allows it to rebut the presumption that its holdings
of PVF Capital Corp.s common stock constitute control of PVF Capital Corp. for the purpose of the applicable
Office of Thrift Supervision regulations, this limitation shall have no effect. In addition, the number of shares of PVF Capital Corp.
common stock issuable upon the exercise of Warrant B may not exceed a number of shares equal to
1,546,991 shares minus the sum of 205,297 and 769,608 shares of common stock.
Accordingly, the maximum number of shares of PVF Capital Corp. common stock issuable upon the exercise of the
Warrants is 1,341,694. At February 26, 2010, the maximum number of shares issuable upon the
exercise of the Warrants was approximately 648,874.
Warrant A is exercisable at any time before September 3, 2011 at a price equal to the lesser
of (i) $4.00 per share, (ii) the offering price for shares of PVF Capital Corp. common stock issued solely
for cash in any subsequent public offering or private placement of PVF Capital Corp.s common stock, or
(iii) the Conversion Price (as defined below) for any subsequent exchange of PVF Capital Corp. common stock
for capital securities of PVF Capital Trust II.
Warrant B is exercisable at any time before September 3, 2011 at the conversion price utilized
in any subsequent exchange of PVF Capital Corp. common stock for capital securities of PVF Capital Trust II
pursuant to an exchange agreement executed within one year of September 3, 2009. The conversion
price is defined in the Exchange Agreement as the price, if any, utilized in any subsequent
exchange of PVF Capital Corp. common stock for capital securities of PVF Capital Trust II to determine the
number of shares of PVF Capital Corp. common stock to be exchanged for PVF Capital Trust II capital
securities exclusive of any warrants, warrant shares or warrant prices. For example, if the
subsequent exchange agreement for the capital securities of PVF Capital Trust II provided for terms
identical to those provided in the Exchange Agreement, then the conversion price would be the daily
average closing price of PVF Capital Corp.s common stock for the 20 business days prior to the date of
the subsequent agreement.
Upon consummation of the transaction, the Capital Securities, common securities issued by PVF
Capital Trust and the Subordinated Debentures were cancelled and are no longer outstanding.
Pursuant to the terms of the Exchange Agreement, PVF Capital Corp. agreed to file a registration
statement with the Securities and Exchange Commission within 60 days of the closing date with
respect to the Shares, the Warrants and the Warrant Shares.
PVF Capital Corp. and the Selling Shareholder mutually agreed to extend the deadline for the filing of
the registration statement with respect to the Shares and the
Warrants to November 12, 2009.
Terms of the Transaction
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Shares Offered
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205,297 shares of common stock
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Warrants Offered
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Warrants to purchase up to 1,341,694 shares of common stock
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Selling Shareholder
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Alesco Preferred Funding IV, Ltd. We are not selling any Shares,
Warrants or Warrant Shares in this offering.
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7
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Use of Proceeds
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We will not receive any proceeds from the resale of Shares, Warrants or Warrant Shares by the
Selling Shareholder. We will, however, receive cash proceeds equal to the total exercise price of
any Warrants that are exercised for cash. See
Use of Proceeds.
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Plan of Distribution
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See
Plan of Distribution
for a discussion of the methods that may be used by
the Selling Shareholder in its offer and sale of our Shares, Warrants and Warrant Shares.
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Risk Factors
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See
Risk Factors
for a discussion of certain factors you should consider before
investing in our Shares, Warrants or Warrant Shares.
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RISK FACTORS
You should carefully consider the risk factors set forth under Risk Factors included in Part
I, Item 1A of our Annual Report on Form 10-K for the year ended June 30, 2009 and in Part II, Item
1A of our Quarterly Reports on Form 10-Q for the quarters ended
September 30, 2009 and December 31, 2009, which are
incorporated by reference in this prospectus. Any of those risks could materially and adversely
affect our business, financial condition or results of operations. If any risks materially and adversely
affect our business, financial condition or results of operations, the trading price of our common
shares could decline and you may lose all or part of your investment.
In
addition to the risks in our Annual Report on Form 10-K and Quarterly Reports on Form 10-Q,
we have also identified the following additional risk factors:
Our adjustable-rate mortgage loans may expose us to increased lending risks.
At
December 31, 2009, we had $574.7 million in adjustable-rate
mortgage loans, or 86.2% of
our total loan portfolio. In addition, $327.5 million, or 57.0%, of our adjustable-rate mortgage
loans will have interest rate adjustments on or prior to
December 31, 2010. While adjustable-rate
loans better offset the adverse effects of an increase in interest rates as compared to fixed-rate
mortgages, the increased mortgage payments required of adjustable-rate loan borrowers upon an
interest rate adjustment in a rising interest rate environment could cause an increase in
delinquencies and defaults. The marketability of the underlying property also may be adversely
affected in a high interest rate environment. In addition, although adjustable-rate mortgage loans
help make our asset base more responsive to changes in interest rates, the extent of this interest
sensitivity is limited by the annual and lifetime interest rate adjustment limits.
Our emphasis on construction and commercial real estate lending and land loans may expose us to
increased lending risks.
At
December 31, 2009, we had $205.0 million in loans secured
by commercial real estate, $33.6
million in real estate construction loans, which included $20.8 million in residential construction
loans, $3.8 million in loans for the construction of
multi-family properties and $9.0 million for
the construction of commercial properties and $58.1 million in loans secured by land. Commercial
real estate loans, construction loans and land loans represented
31.4%, 5.1% and 8.9%,
respectively, of our net loan portfolio. At December 31, 2009,
we had $15.1 million of reserves
specifically allocated to these loan types. While commercial real estate, construction and land
loans are generally more interest rate sensitive and carry higher yields than do residential
mortgage loans, these types of loans generally expose a lender to greater risk of non-payment and
loss than single-family residential mortgage loans because repayment of the loans often depends on
the successful operation of the property, the income stream of the borrowers and, for construction
loans, the accuracy of the estimate of the propertys value at completion of construction and the
estimated cost of construction. Such loans typically involve larger loan balances to single
borrowers or groups of related borrowers compared to single-family residential mortgage loans.
Stockholders will face significant dilution as a result of a contemplated stock offering and
warrants issued or to be issued in exchange for trust preferred securities.
8
We have filed a Registration Statement on Form S-1 with the Securities and Exchange Commission
relating to (i) an offering to current shareholders of PVF Capital Corp. of non-transferable
subscription rights to purchase shares of PVF Capital Corp. common stock and (ii) a concurrent
offering of shares of common stock to standby purchasers comprised of certain institutional
investors and high net worth individuals (the Rights Offering Registration Statement). See
Prospectus SummaryRecent DevelopmentsStock Offering.
If the offering described in the Rights
Offering Registration Statement is completed, the Companys existing stockholders will incur
substantial dilution of their voting interests and will own a significantly smaller percentage of
PVF Capital Corp.s outstanding common stock following such offering. The dilutive effect of that
offering may have a significant impact on the market price of PVF Capital Corp.s common stock.
In addition, pursuant to the Exchange Agreement between PVF Capital Corp. and the Selling
Shareholder, we issued a warrant to acquire a number of shares of common stock equal to 769,608
shares, and upon completion of the Second Trust Preferred Exchange we
will issue a warrant to acquire 9.9% of the shares to be issued in the Second Trust Preferred Exchange (exclusive of
shares issuable upon the exercise of warrants). In addition, pursuant to the Second Trust Preferred Exchange,
the investors will tender $10.0 million aggregate liquidation amount of trust preferred securities
to PVF in exchange for an aggregate of $400,000 in cash, the Initial Shares and warrants to acquire
769,608 shares of common stock plus 9.9% of the Initial Shares. Further, we will issue additional
warrants that become exercisable in the event we complete one or more public offerings or private
placements of our common stock (including the stock offering
contemplated by the Rights Offering Registration Statement) within a
year. The second group of warrants will give the holders the right to acquire additional shares of
common stock so that the total number of shares they could acquire under all warrants would be an
aggregate of 4.9% of the common stock to be outstanding following the public offering or offerings
completed during that one-year period. The dilutive effect of this second group of warrants may
also have a significant impact on the market price of PVF Capital Corp.s common stock.
We could, as a result of our stock offering or future investments in our common stock by 5%
holders, experience an ownership change for tax purposes that could cause us to permanently lose
a portion of our U.S. federal deferred tax assets.
The completion of our stock offering could cause PVF Capital Corp. to experience an ownership
change as defined for U.S. federal income tax purposes. Even if these transactions do not cause
PVF Capital Corp. to experience an ownership change, these transactions materially increase the
risk that PVF could experience an ownership change in the future. As a result, issuances or sales
of common stock or other securities in the future (including common stock issued in the stock
offering), or certain other direct or indirect changes in ownership, could result in an ownership
change under Section 382 of the Internal Revenue Code of 1986, as amended. In the event an
ownership change were to occur, PVF Capital Corp. could realize a permanent loss on a portion of
its U.S. federal deferred tax assets as a result of certain limitations on certain built-in losses
that have not been recognized for tax purposes, including, for example, losses on existing
nonperforming assets. The amount of the permanent loss would depend on the size of the annual
limitation (which is in part a function of PVF Capital Corp.s market capitalization at the time of
an ownership change) and the applicable carryforward period for losses that have been limited (U.S.
federal net operating losses generally may be carried forward for a period of 20 years). Any
permanent loss could have a material adverse effect on PVF Capital Corp.s results of operations
and financial condition.
PVF Capital Corp. has not established a valuation allowance against its U.S. federal deferred
tax assets of December 31, 2009, as PVF Capital Corp. believed, based on its analysis as of that
date, that it was more likely than not that all of these assets would be realized. Section 382 of
the Internal Revenue Code imposes restrictions on the use of a corporations net operating losses,
certain recognized built-in losses and other carryovers after an ownership change occurs. An
ownership change is generally a greater than 50 percentage point increase by certain 5%
shareholders during the testing period, which is generally the three year-period ending on the
transaction date. Upon an ownership change, a corporation generally is subject to an annual
limitation on its pre-change losses and certain recognized built-in losses equal to the value of
the corporations market capitalization immediately before the ownership change multiplied by the
long-term tax-exempt rate (subject to certain adjustments). The annual limitation is increased
each year to the extent that there is an unused limitation in a prior year. Since U.S. federal net
operating losses generally may be carried forward for up to 20 years, the annual limitation also
effectively provides a cap on the cumulative amount of pre-change losses and certain recognized
built-in losses that may be utilized. Pre-change losses and certain recognized built-in losses in
excess of the cap are effectively lost. Thus, if an ownership change were to occur, it is
possible that the limitations imposed could cause a net increase in our U.S. Federal income tax
liability and cause U.S. Federal income taxes to be paid earlier than if such limitations were not
in effect.
The relevant calculations under Section 382 of the Internal Revenue Code are technical and
highly complex. The stock offering, combined with other ownership changes in recent years, could
cause PVF Capital Corp. to experience an ownership change. If an ownership change were to
occur, PVF Capital Corp. believes it could permanently lose the ability to realize a portion of its
deferred tax asset, resulting in reduction to PVF Capital Corp.s total shareholders equity. This
could also decrease Park View Federal Savings Banks regulatory capital. PVF Capital Corp. does
not believe, however, that any such decrease in regulatory capital would be material.
9
INCORPORATION BY REFERENCE
Securities and Exchange Commission regulations permit us to incorporate by reference
information into this prospectus, which means that we can disclose important information to you by
referring you to another document filed separately with the Securities and Exchange Commission.
The information incorporated by reference is considered to be part of this prospectus. Information
incorporated by reference from earlier documents is superseded by information set forth in this
prospectus and by information that has been incorporated by reference from more recent documents.
The following documents filed by us with the Securities and Exchange Commission are
incorporated by reference in this prospectus:
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Our Annual Report on Form 10-K for the fiscal year ended June 30, 2009, filed with
the Securities and Exchange Commission on September 28, 2009 and amended on October
28, 2009;
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Our Quarterly Reports on Form 10-Q for the quarters ended
September 30, 2009 and December 31, 2009, as filed
with the Securities and Exchange Commission on November 9, 2009 and
January 29, 2010; and
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Our Current Reports on Form 8-K, as amended, filed with the Securities and Exchange
Commission on September 4, 2009 and amended on September 10,
2009, September 10, 2009, September 21, 2009, September 29,
2009, October 5, 2009, October 16, 2009, October 23,
2009, November 3, 2009, November 16, 2009, December 1, 2009,
December 17, 2009, January 7, 2010, January 20, 2010, February 3,
2010 and February 23, 2010.
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In accordance with Securities and Exchange Commission rules that allow incorporation by
reference, we have incorporated by reference from these reports the description of our business,
our properties, any legal proceedings, our financial statements and our managements discussion and
analysis of our financial condition and results of operations. We have also incorporated by
reference disclosure with respect to
the security ownership of certain beneficial owners and management,
our officers and directors, their compensation and any related
party transactions between us and our officers and directors.
You can obtain any of the reports that are incorporated by reference from the Securities and
Exchange Commissions website at www.sec.gov. Reports incorporated by reference also are available
from us without charge, including any exhibits specifically incorporated into this prospectus by
reference. You may obtain documents by requesting them in writing or by telephone as follows:
PVF Capital Corp.
Corporate Secretary
30000 Aurora Road
Solon, Ohio 44139
(440) 914-3900
These reports are also accessible through our website located at www.parkviewfederal.com.
You should rely only on the information provided in or incorporated by reference into this
prospectus or any supplement. We have not authorized anyone else to provide you with different
information. You should not assume that the information in this prospectus or any supplement is
accurate as of any date other than the date on the front of these documents.
10
CAUTIONARY NOTE REGARDING FORWARD-LOOKING STATEMENTS
Some of our statements contained in, or incorporated by reference into, this prospectus are
forward-looking statements within the meaning of the Section 27A of the Securities Act of 1933
and Section 21E of the Securities Exchange Act of 1934. We intend such forward-looking statements
to be covered by the safe harbor provisions for forward-looking statements contained in the Private
Securities Litigation Reform Act of 1995 and are including this statement for purposes of invoking
these safe harbor provisions. Forward-looking statements are not guarantees of performance or
results. When we use words like may, plan, contemplate, anticipate, believe, intend,
continue, expect, project, predict, estimate, target, could, is likely, should,
would, will, and similar expressions, you should consider them as identifying forward-looking
statements, although we may use other phrasing. These forward-looking statements involve risks and
uncertainties and are based on our beliefs and assumptions, and on the information available to us
at the time that these disclosures were prepared. These forward-looking statements involve risks
and uncertainties and may not be realized due to a variety of factors, including, but not limited
to, the following:
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the unfavorable effects of future economic conditions, including
inflation, recession or a continuing decrease in real estate values;
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the failure of assumptions underlying the establishment of our
allowance for loan losses, that may prove to be materially incorrect
or may not be borne out by subsequent events;
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adverse changes in the securities markets;
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changes in governmental monetary and fiscal policies, as well as legislative and regulatory changes;
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the risks of changes in interest rates on the level and composition of
deposits, loan demand and the values of loan collateral, securities
and interest sensitive assets and liabilities;
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the imposition of a formal enforcement action by bank regulatory
authorities upon Park View Federal Savings Bank or PVF Capital Corp.;
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the effects of terrorism and efforts to combat it;
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our ability to effectively manage market risk, credit risk and operational risk;
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the effects of competition from other commercial banks, thrifts,
mortgage banking firms, consumer finance companies, credit unions,
securities brokerage firms, insurance companies, money market and
other mutual funds and other financial institutions operating in our
market area and elsewhere, including institutions operating
regionally, nationally and internationally, together with competitors
offering banking products and services by mail, telephone and the
Internet;
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the effect of any mergers, acquisitions or other transactions to which
we or our subsidiaries may from time to time be a party, including our
ability to successfully integrate any businesses that we acquire; and
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the risks described in this prospectus and our most recent Annual
Report on Form 10-K and Quarterly Report on Form 10-Q.
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All written or oral forward-looking statements attributable to us are expressly qualified in
their entirety by this Cautionary Note. Our actual results may differ significantly from those we
discuss in these forward-looking statements. For other factors, risks and uncertainties that could
cause our actual results to differ materially from estimates and projections contained in these
forward-looking statements, please read the
Risk Factors
section of this prospectus. Any
forward-looking statement speaks only as of the date which such statement was made, and, except as
required by law, we expressly disclaim any obligation or undertaking to disseminate any updates or
revisions to any forward-looking statement to reflect events or circumstances after the date on
which such statement is made or to reflect the occurrence of unanticipated events.
11
DESCRIPTION OF COMMON STOCK
The following description does not purport to be complete and is subject to, and qualified in
its entirety by reference to, our Articles of Incorporation, Code of Regulations, and our Bylaws,
as amended to date.
Common Stock
We are currently authorized to issue 15,000,000 shares of common stock, $.01 par value. There
were
7,979,120 shares of common stock outstanding as of as of
February 26, 2010.
Dividend Rights
Holders of our common stock are entitled to receive such dividends as may be declared by our
board of directors out of legally available funds, and to receive pro rata any assets distributable
to holders of our common stock upon our liquidation.
In December 2008, PVF Capital Corp. deferred the payment of dividends on its subordinated
debentures. Under the terms of the debentures, if PVF Capital Corp. defers the payment of interest on the
debentures, PVF Capital Corp. generally may not pay dividends or distributions, or redeem, purchase, or
make a liquidation payment with respect to any of its capital stock. Accordingly, at such time,
PVF Capital Corp. discontinued the payment of cash dividends on the common stock. Pursuant to the Cease and
Desist Order, PVF Capital Corp. may not declare or pay a dividend, including the repurchase or redemption
of capital stock, without the prior non-objection of the Office of Thrift Supervision.
Voting Rights
Holders of our common stock are entitled to vote for the election of directors and upon all
other matters, which may be submitted to a vote of shareholders generally, with each share being
entitled to one vote. Our common shareholders do not possess cumulative voting rights. This means
that holders of more than 50% of our common stock (on a fully diluted basis) voting for the
election of directors can elect all of the directors, and holders of the remaining shares will not
be able to elect any directors.
Directors are elected by a plurality of the votes cast at the meeting, i.e., the nominees
receiving the highest number of votes will be elected regardless of whether such votes constitute a
majority of the shares represented at the meeting. Any other corporate action shall be authorized
by a majority of the votes cast at the meeting unless otherwise provided by Chapter 1701 of the
Ohio Revised Code, our First Amended and Restated Articles of Incorporation, Amended and Restated
Code of Regulations, or our Amended and Restated Bylaws.
Liquidation Rights
In the event of any liquidation, dissolution or winding up of our holding company, the holders
of our common stock would be entitled to receive, after payment or provision for payment of all our
debts and liabilities, all of our assets available for distribution. Holders of our serial
preferred stock, if any such shares are then outstanding, may have a priority over the holders of
common stock in the event of any liquidation or dissolution. We have no serial preferred stock
currently outstanding.
Other Rights
Common shareholders have no preemptive rights to purchase additional securities that may be
issued by us in the future. There are no redemption or conversion provisions applicable to our
common stock, and common shareholders are not liable for any further capital call or assessment.
12
Anti-Takeover Effects
First Amended and Restated Articles of Incorporation.
Our First Amended and Restated Articles
of Incorporation provide for a classified board to which approximately one-third of our board of
directors is elected each year at our annual meeting of shareholders. Accordingly, our directors
serve three-year terms rather than one-year terms. The classification of our board of directors
has the effect of making it more difficult for shareholders to change the composition of our board
of directors. At least two annual meetings of shareholders, instead of one, will generally be
required to effect a change in a majority of our board of directors. The classification of our
board of directors could also have the effect of discouraging a third party from initiating a proxy
contest, making a tender offer or otherwise attempting to obtain control of us, even though such an
attempt might be beneficial to us and our shareholders. The classification of our board of
directors could thus increase the likelihood that incumbent directors will retain their positions.
Our First Amended and Restated Articles of Incorporation require the affirmative vote of the
holders of not less than eighty percent (80%) of the outstanding common stock of the Company
entitled to vote with respect to each such transaction: (a) any merger, share exchange or
consolidation of the Company with or into a related person (as defined therein); (b) any sale,
lease, exchange, transfer or other disposition, including without limitation, a mortgage, or any
other security device, of all or any substantial part (as defined therein) of the assets of the
Company (including, without limitation, any voting securities of a subsidiary) or of a subsidiary
to a related person; (c) any merger or consolidation of a related person with or into the Company
or a subsidiary; (d) any sale, lease, exchange, transfer or other disposition, including without
limitation, a mortgage, or any other capital device, of all or any substantial part of the assets
of related person to the Company or a subsidiary; (e) the issuance of any securities of the Company
or a subsidiary of a related person; (f) the acquisition by the Company or a subsidiary of any
securities of a related person; (g) any reclassification of the common stock of the Company, or any
recapitalization involving the common stock of the Company; and (h) any agreement, contract or
other arrangement providing for any of the transactions described in (a) through (g) above (the
Special Voting Requirement). The Special Voting Requirement shall not apply to any such merger,
consolidation, sale or exchange, issuance or delivery of stock or other securities, or dissolution
which was approved by the affirmative vote of at least two-thirds of the continuing directors (as
defend therein), provided such approval was obtained at a meeting in which a continuing director
quorum (as defined therein) was present, nor shall it apply to any such transactions solely between
the Company and another entity ninety percent (90%) or more of the voting stock or voting equity
interests of which is owned by the Company provided that Chapter 1704 of the Ohio Revised Code does
not prevent such transaction from being effected.
Our First Amended and Restated Articles of Incorporation also contain additional provisions
that may make takeover attempts and other acquisitions of interests in us more difficult where the
takeover attempt or other acquisition has not been approved by our board of directors. These
provisions include:
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a requirement that a shareholder wishing to nominate directors for election comply
with certain procedures, including advance notice requirements; and
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the affirmative vote of the holders of not less than eighty percent (80%) of the
outstanding common stock of the Company shall be required to:
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remove any directory or the entire board of directors of the Company unless
for cause; and
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amend or repeal certain articles in our First Amended and Restated Articles
of Incorporation, some of which include: the article regarding actions by
shareholders (Article Ninth); the article regarding the classification of our
board of directors (Article Tenth); the article regarding the removal of
directors (Article Eleventh); the article regarding the Special Voting
Requirement (Article Fourteenth); and the article regarding the repeal or
amendment of the Companys Code of Regulations (Article Fifteenth), except that
such repeal, alteration, amendment or rescission of the above referenced
articles may be made by the affirmative vote of the holders of a majority of
the
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outstanding shares of capital stock of the Company entitled to vote at a
meeting of stockholders if the same is first approved by a majority of the
directors.
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Control Share Acquisitions.
Section 1701.831 of the Ohio Revised Code provides that certain
notice and informational filings and special shareholder meeting and voting procedures must be
followed prior to consummation of a proposed control share acquisition. The Ohio Revised Code
defines a control share acquisition as any acquisition of an issuers shares which would entitle
the acquirer, immediately after that acquisition, directly or indirectly, to exercise or direct the
exercise of voting power of the issuer in the election of directors within any one of the following
ranges of that voting power:
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one-fifth or more but less than one-third of that voting power;
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one-third or more but less than a majority of that voting power; or
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a majority or more of that voting power.
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Assuming compliance with the notice and information filings prescribed by the statute, the
proposed control share acquisition may be made only if, at a special meeting of shareholders, the
acquisition is approved by at least a majority of the voting power of the issuer represented at the
meeting and at least a majority of the voting power remaining after excluding the combined voting
power of the interested shares. Interested shares are the shares held by the intended acquirer
and the employee-directors and officers of the issuer, as well as certain shares that were acquired
after the date of the first public disclosure of the acquisition but before the record date for the
meeting of shareholders and shares that were transferred, together with the voting power thereof,
after the record date for the meeting of shareholders.
Nasdaq.
In addition, under existing Nasdaq Stock Market regulations, approval of a majority
of the holders of common stock would be required in connection with any transaction or series of
related transactions that would result in the original issuance of additional shares of common
stock for a price less than the greater of book or market value, other than in a public offering
for cash, (i) if the common stock (including securities convertible into or exercisable for common
stock) has, or will have upon issuance, voting power equal to or in excess of 20% of the voting
power outstanding before the issuance of such common stock; or (ii) if the number of shares of
common stock to be issued is or will be equal to or in excess of 20% of the number of shares
outstanding before the issuance of the common stock.
14
DESCRIPTION OF THE WARRANTS
On
September 3, 2009, pursuant to the terms of the Exchange Agreement, we issued to the
Selling Shareholder: (i) a warrant (Warrant A) to purchase 769,608 shares of Company common
stock (the Warrant A Shares); and (ii) a warrant (Warrant B and together with Warrant A, the Warrants) to purchase a
number of shares of Company common stock equal to 9.9% of any shares of Company common stock
issued, exclusive of any warrant or warrant shares, in exchange for capital securities of PVF
Capital Trust II in the event PVF Capital Corp. in the future issues shares of its common stock in
exchange for PVF Capital Trust II capital securities (the Warrant B Shares and, together with the Warrant A Shares, the Warrant Shares).
The number of shares of Company common stock issuable pursuant to each of Warrant A and
Warrant B may not exceed certain limits. Specifically, the number shares issuable upon the exercise
of Warrant A or Warrant B may not exceed the maximum number of shares of PVF Capital Corp.s common stock
such that the Selling Shareholder, upon its exercise of the applicable Warrant, shall own 9.9% of
PVF Capital Corp.s common stock then issued and outstanding, except that in the event the Selling
Shareholder receives comfort from the Office of Thrift Supervision that allows it to rebut the presumption that its holdings
of PVF Capital Corp.s common stock constitute control of PVF Capital Corp. for the purpose of the applicable
Office of Thrift Supervision regulations, this limitation shall have no effect. In addition, the number of shares of Company
common stock issuable upon the exercise of Warrant B may not exceed a number of shares equal to
1,546,991 shares minus the sum of 205,297 and 769,608 shares of PVF Capital Corp.s common stock.
Accordingly, the maximum number of shares of Company common stock issuable upon the exercise of the
Warrants is 1,341,694. At February 26, 2010, the maximum number of shares issuable upon the
exercise of the Warrants was approximately 648,874.
Warrant A is exercisable at any time before September 3, 2011 at a price equal to the lesser
of (i) $4.00 per share, (ii) the offering price for shares of Company common stock issued solely
for cash in any subsequent public offering or private placement of PVF Capital Corp.s common stock, or
(iii) the Conversion Price (as defined below) for any subsequent exchange of Company common stock
for capital securities of PVF Capital Trust II.
Warrant B is exercisable at any time before September 3, 2011 at the Conversion Price utilized
in any subsequent exchange of Company common stock for capital securities of PVF Capital Trust II
pursuant to an exchange agreement executed within one year of September 3, 2009. The Conversion
Price is defined in the Exchange Agreement as the price, if any, utilized in any subsequent
exchange of Company common stock for capital securities of PVF Capital Trust II to determine the
number of shares of Company common stock to be exchanged for PVF Capital Trust II capital
securities exclusive of any warrants, warrant shares or warrant prices. For example, if the
subsequent exchange agreement for the capital securities of PVF Capital Trust II provided for terms
identical to those provided in the Exchange Agreement, then the Conversion Price would be the daily
average closing price of PVF Capital Corp.s common stock for the 20 business days prior to the date of
the subsequent agreement.
15
MARKET AND SHARE PRICE INFORMATION
The Companys common stock trades under the symbol PVFC on the Nasdaq Capital Market. The
Company had
7,979,120
shares of common stock outstanding and approximately 154 holders of
record of the common stock at February 26, 2010. On February 26, 2010, the most recent practicable date
before the date of this prospectus, the closing price of our common stock as reported on the Nasdaq
Capital Market was $1.95 per share.
Office of Thrift Supervision regulations applicable to all federal savings banks,
such as Park View Federal Savings Bank, limit the dividends
that may be paid by the Park View Federal Savings Bank to PVF Capital
Corp..
Any dividends paid may not reduce Park View Federal Savings Banks capital
below minimum regulatory requirements. Pursuant to the Cease and Desist Order, Park View Federal Savings Bank may not
declare or pay a dividend without receiving prior Office of Thrift Supervision approval.
Quarterly cash dividends of $.074 per share were declared on PVF Capital Corps outstanding common
stock in fiscal 2008, and cash dividends of $.0025 per share were declared on PVF Capital Corps
outstanding common stock during the first quarter of fiscal 2009. In
December 2008, PVF Capital Corp.
discontinued the payment of cash dividends on the common stock. Pursuant to the Cease and Desist
Order, PVF Capital Corp. may not declare or pay a dividend, including the repurchase or redemption of
capital stock, without the prior non-objection of the Office of Thrift Supervision.
The following table sets forth, for the periods indicated, the high and low sales prices per
share of PVF Capital Corps common stock as reported on the Nasdaq Capital Market.
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Fiscal Year Ending June 30, 2010
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High
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Low
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Third
quarter (through February 26, 2010)
|
|
$
|
4.39
|
|
|
$
|
1.75
|
|
Second
quarter
|
|
|
2.60
|
|
|
|
1.58
|
|
First quarter
|
|
|
3.00
|
|
|
|
1.70
|
|
|
|
|
|
|
|
|
|
|
Fiscal Year Ended June 30, 2009
|
|
High
|
|
Low
|
|
Fourth quarter
|
|
$
|
2.60
|
|
|
$
|
1.67
|
|
Third quarter
|
|
|
3.19
|
|
|
|
1.25
|
|
Second quarter
|
|
|
4.76
|
|
|
|
1.50
|
|
First quarter
|
|
|
7.40
|
|
|
|
4.00
|
|
|
|
|
|
|
|
|
|
|
Fiscal Year Ended June 30, 2008
|
|
High
|
|
Low
|
|
Fourth quarter
|
|
$
|
10.51
|
|
|
$
|
7.15
|
|
Third quarter
|
|
|
11.88
|
|
|
|
9.62
|
|
Second quarter
|
|
|
15.53
|
|
|
|
11.01
|
|
First quarter
|
|
|
15.93
|
|
|
|
12.55
|
|
16
SELLING SHAREHOLDER
The table below sets forth information concerning the resale of our Shares and Warrants by the
Selling Shareholder. The Selling Shareholder acquired the Shares and Warrants pursuant to the
terms of the Exchange Agreement.
Pursuant to the Exchange Agreement we entered into with the Selling Shareholder, we agreed to file
with the Securities and Exchange Commission a registration statement, of which this prospectus is a part, to register the resale
of our Shares, Warrants and Warrant Shares by the Selling Shareholder, the Selling Shareholder has not held
any position or office or had any other material relationship with us or any of our predecessors or
affiliates within the past three years.
The following table is based on information provided to us by the Selling Shareholder and is
as of the date of this prospectus. Because the Selling Shareholder may offer all or some portion
of our common stock, no estimate can be given as to the amount of shares of PVF Capital Corp. common stock
that will be held by the Selling Shareholder upon termination of this offering. For purposes of
the table below, however, we have assumed that after termination of this offering, none of the
Shares, Warrants or Warrant Shares covered by this prospectus will be held by the Selling Shareholder.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Maximum
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
number of
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
shares of
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
common
|
|
|
|
|
|
|
|
|
|
|
Number of
|
|
stock issuable
|
|
|
|
|
|
Number of
|
|
|
|
|
shares of
|
|
upon
|
|
|
|
|
|
shares of
|
|
Percentage
|
|
|
common
|
|
exercise of
|
|
Percentage of
|
|
Common
|
|
of Common
|
|
|
stock owned
|
|
warrants
|
|
Common Stock
|
|
Stock owned
|
|
Stock owned
|
|
|
before the
|
|
being
|
|
owned before
|
|
after the
|
|
after the
|
Selling Shareholder
|
|
offering
|
|
registered
|
|
the offering
|
|
offering
|
|
offering
|
Alesco Preferred Funding IV, Ltd.
|
|
|
205,297
|
|
|
|
1,341,694
|
(1)
|
|
|
9.9
|
%(2)
|
|
|
|
|
|
|
|
|
|
|
|
|
(1)
|
|
Beneficial ownership is determined in accordance with the
rules of the SEC and generally includes voting or investment power
with respect to securities. On the basis of an investment management
agreement between Alesco Preferred Funding IV, Ltd. and Cohen &
Company Financial Management, LLC, Cohen & Company Financial
Management, LLC may be deemed to share beneficial ownership of the
shares of PVF Capital Corp. common stock directly owned by Alesco Preferred
Funding IV, Ltd. The sole member of Cohen & Company
Financial Management, LLC is Dekania Investors, LLC, the sole member
of which is Cohen Brothers, LLC. A majority of the voting power of
the outstanding equity interests of Cohen Brothers, LLC is controlled
by Cohen Bros. Financial, LLC, the sole member of which is Daniel G.
Cohen. Accordingly, Dekania Investors, LLC, Cohen Brothers, LLC,
Cohen Bros. Financial, LLC and Daniel G. Cohen also may be deemed to
share beneficial ownership of the shares of Company common stock
directly owned by Alesco Preferred Funding IV, Ltd. However,
each such person expressly disclaims beneficial ownership of the
shares of Company common stock beneficially owned by each other such
person.
|
|
(2)
|
|
As of February 26, 2010, the maximum number of shares issuable upon the exercise of the
Warrants was approximately 648,874. See
Prospectus SummaryBackground of the Transaction
and
Description of the Warrants.
|
|
17
PLAN OF DISTRIBUTION
We are registering the Shares, the Warrants and the Warrant Shares
issued or issuable to the Selling Shareholder to permit the
resale of the Shares, the Warrants and the Warrant Shares from time to time after the date of this prospectus. We will not
receive any of the proceeds from the sale of the Shares, the Warrants or the Warrant Shares by the Selling Shareholder. We
will bear all fees and expenses incident to the registration of the Shares, the Warrants and the Warrant Shares.
The Selling Shareholder, and its pledgees, donees, transferees, assignees and other successors
in interest, may sell all or a portion of the Shares or Warrant Shares or one or both Warrants beneficially owned by
it or them, as applicable, and offered hereby from time to time directly or through one or more
underwriters, broker-dealers or agents. If the Shares, the Warrants or the Warrant Shares are sold through underwriters or
broker-dealers, the Selling Shareholder will be responsible for underwriting discounts or
commissions or agents commissions. The Shares and the Warrant Shares may be sold on any national securities exchange or
quotation service on which the securities may be listed or quoted at the time of sale, in the
over-the-counter market or in transactions, including private transactions, otherwise than on these
exchanges or systems or in the over-the-counter market and in one or more transactions at fixed
prices, at prevailing market prices at the time of sale, at varying prices determined at the time
of sale or at negotiated prices. These sales may be effected in transactions which may involve
crosses or block transactions. The Selling Shareholder may use any one or more of the following
methods when selling the Shares, the Warrants or the Warrant Shares:
|
|
|
ordinary brokerage transactions and transactions in which the broker-dealer
solicits purchasers;
|
|
|
|
|
|
block trades in which the broker-dealer will attempt to sell the Shares or Warrant Shares as agent
but may position and resell a portion of the block as principal to facilitate the
transaction;
|
|
|
|
|
|
purchases by a broker-dealer as principal and resale by the broker-dealer for its
account;
|
|
|
|
|
an exchange distribution in accordance with the rules of the applicable exchange;
|
|
|
|
|
privately negotiated transactions;
|
|
|
|
|
settlement of short sales entered into after the effective date of the registration
statement of which this prospectus is a part;
|
|
|
|
|
|
broker-dealers may agree with the Selling Shareholder to sell a specified number of
Shares or Warrant Shares at a stipulated price per share;
|
|
|
|
|
|
through the writing or settlement of options or other hedging transactions, whether
such options are listed on an options exchange or otherwise;
|
|
|
|
|
a combination of any such methods of sale; and
|
|
|
|
|
any other method permitted pursuant to applicable law.
|
The Selling Shareholder also may resell all or a portion of the Shares or Warrant Shares or one or both Warrants
in open market transactions in reliance upon Rule 144 under the Securities Act, as permitted by
that rule, or Section 4(1) under the Securities Act, if available, rather than under this
prospectus, provided that they meet the criteria and conform to the requirements of those
provisions.
Broker-dealers engaged by the Selling Shareholder may arrange for other broker-dealers to
participate in sales. If the Selling Shareholder effects such transactions by selling Shares,
Warrants or Warrant Shares to or through underwriters, broker-dealers or agents, such underwriters, broker-dealers or
agents may receive commissions in the form of discounts, concessions or commissions from the
Selling Shareholder or commissions from purchasers of the Shares, Warrants or Warrant Shares for whom they may act
as agent or to whom they may sell as principal. Such commissions will be in amounts to be
negotiated, but, except as set forth in a supplement to this prospectus, in the case of an agency
transaction will not be in excess of a customary brokerage commission in compliance with
applicable regulations of FINRA.
18
In connection with sales of Shares, Warrants, Warrant Shares or otherwise, the Selling Shareholder may enter
into hedging transactions with broker-dealers or other financial institutions, which may in turn
engage in short sales in the course of hedging in positions they assume. The Selling Shareholder
may also sell common stock short and if such short sale shall take place after the date that this
registration statement is declared effective the Selling Shareholder may deliver Shares or Warrant Shares covered by
this prospectus to close out short positions and to return borrowed Shares or Warrant Shares in connection with such
short sales.
The Selling Shareholder may also loan or pledge Shares, Warrants or Warrant Shares to broker-dealers that in
turn may sell such Shares, Warrants or Warrant Shares, to the extent permitted by applicable law. The Selling
Shareholder may also enter into option or other transactions with broker-dealers or other financial
institutions or the creation of one or more derivative securities which require the delivery to
such broker-dealer or other financial institution of Shares, Warrants or Warrant Shares offered by this prospectus,
which Shares, Warrants or Warrant Shares such broker-dealer or other financial institution may resell pursuant to
this prospectus (as supplemented or amended to reflect such transaction). Notwithstanding the
foregoing, the Selling Shareholder has been advised that it may not use Shares, Warrants or Warrant Shares
registered on this registration statement to cover short sales made prior to the date the
registration statement, of which this prospectus forms a part, has been declared effective by the
Securities and Exchange Commission.
The Selling Shareholder may, from time to time, pledge or grant a security interest in some or
all of the Shares, Warrants or Warrant Shares owned by it and, if it defaults in the performance of its secured
obligations, the pledgees or secured parties may offer and sell the Shares, Warrants or Warrant Shares from time to
time pursuant to this prospectus or any amendment to this prospectus under Rule 424(b)(3) or other
applicable provision of the Securities Act of 1933, as amended, amending, if necessary, the list of
Selling Shareholders to include the pledgee, donees, transferees, assignees or other successors in
interest as Selling Shareholders under this prospectus. The Selling Shareholder also may pledge,
donates, transfer or assign the Shares, Warrants or Warrant Shares in other circumstances, in which case the
pledgees, donees, transferees, assignees or other successors in interest will be the selling
beneficial owners for purposes of this prospectus.
The Selling Shareholder and any broker-dealer or agents participating in the distribution of
the Shares, Warrants or Warrant Shares may be deemed to be underwriters within the meaning of Section 2(11) of
the Securities Act in connection with such sales. In such event, any commissions paid, or any
discounts or concessions allowed to, any such broker-dealer or agent and any profit on the resale
of the Shares, Warrants or Warrant Shares purchased by them may be deemed to be underwriting commissions or
discounts under the Securities Act. Selling shareholders who are underwriters within the meaning
of Section 2(11) of the Securities Act will be subject to the applicable prospectus delivery
requirements of the Securities Act and may be subject to certain statutory liabilities, including
but not limited to, Sections 11, 12 and 17 of the Securities Act and Rule 10b-5 under the
Securities Exchange Act of 1934, as amended.
The Selling Shareholder does not have any written or oral agreement or understanding, directly
or indirectly, with any person to distribute the Shares, Warrants or Warrant Shares. Upon our being notified in
writing by the Selling Shareholder that any material arrangement has been entered into with a
broker-dealer for the sale of Shares, Warrants or Warrant Shares through a block trade, special offering, exchange
distribution or secondary distribution or a purchase by a broker or dealer, a supplement to this
prospectus will be filed, if required, pursuant to Rule 424(b) under the Securities Act, disclosing
(i) the name of each such Selling Shareholder and of the participating broker-dealer(s), (ii) the
number of Shares, Warrants or Warrant Shares involved, (iii) the price at which such Shares,
Warrants or Warrant Shares were sold, (iv) the commissions paid or discounts or concessions allowed to such
broker-dealer(s), where applicable, (v) that such broker-dealer(s) did not conduct any
investigation to verify the information set out or incorporated by reference in this prospectus,
and (vi) other facts material to the transaction. In compliance with FINRA guidelines, the maximum
consideration or discount to be received by any FINRA member or independent broker dealer may not
exceed 8% of the aggregate amount of the securities offered pursuant to this prospectus and any
applicable prospectus supplement.
19
Under the securities laws of some states, the Shares, Warrants and Warrant Shares may be sold in such states
only through registered or licensed brokers or dealers. In addition, in some states the Shares,
Warrants and Warrant Shares may not be sold unless such Shares, Warrants and Warrant Shares have been registered or qualified for sale
in such state or an exemption from registration or qualification is available and is complied with.
There can be no assurance that the Selling Shareholder will sell any or all of the Shares,
Warrants or Warrant Shares registered pursuant to the registration statement, of which this prospectus forms a part.
The Selling Shareholder and any other person participating in such distribution will be
subject to applicable provisions of the Securities Exchange Act of 1934 and the rules and
regulations thereunder, including, without limitation, to the extent applicable, Regulation M of
the Securities Exchange Act of 1934, which may limit the timing of purchases and sales of any of
the Shares, Warrants and Warrant Shares by the Selling Shareholder and any other participating person. To the
extent applicable, Regulation M may also restrict the ability of any person engaged in the
distribution of the Shares, Warrants and Warrant Shares to engage in market-making activities with respect to the
Shares, Warrants and Warrant Shares. All of the foregoing may affect the marketability of the Shares, Warrants
and Warrant Shares and the ability of any person or entity to engage in market-making activities with respect to the
Shares, Warrants or Warrant Shares.
In addition, we will make copies of this prospectus available to the Selling Shareholder, and
its pledgees, donees, transferees, assignees and other successors in interest, for the purpose of
satisfying the prospectus delivery requirements of the Securities Act, which may include delivery
through the facilities of the Nasdaq Capital Market pursuant to Rule 153 under the Securities Act.
USE OF PROCEEDS
We will receive no proceeds from the sale of Shares, Warrants or Warrant Shares by the Selling Shareholder.
We will, however, receive cash proceeds equal to the total exercise price of any Warrants that are
exercised for cash. See
Description of the Warrants
for more information on the exercise of the
Warrants. To the extent we receive proceeds from the cash exercise of the Warrants, we intend to
use the proceeds for working capital and other general corporate purposes.
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly, and current reports, proxy statements, and other information with
the Securities and Exchange Commission. You may read and copy any reports, statements, or other
information that we file with the SEC at the SECs public reference room at 100 F Street, NE,
Washington, D.C. 20549. Please call the SEC at 1-800-SEC-0330 for further information on the
public reference room. Our SEC filings are also available to the public on the SEC website at
www.sec.gov
. You may also find copies of reports, statements, and other information we
file electronically with the SEC through Investor Relations link found on our website at
www.parkviewfederal.com
We have filed a Registration Statement on Form S-1 to register the shares of common stock to
be sold by the Selling Shareholder. This prospectus is a part of that Registration Statement. As
allowed by Securities and Exchange Commission rules, this prospectus does not contain all the
information you can find in the Registration Statement or the exhibits to that Registration
Statement, which additional information can be found and reviewed as described above.
INDEMNIFICATION
As permitted by law, our directors and officers are entitled to indemnification under certain
circumstances against liabilities and expenses incurred in connection with legal proceedings in
which they become involved as a result of serving as a director or officer. Insofar as
indemnification for liabilities arising under the Securities Act of 1933 may be permitted to
directors, officers or controlling persons, we have been informed that in the opinion of the
Securities and Exchange Commission such indemnification is against public policy as expressed in
the Securities Act and is therefore unenforceable.
20
LEGAL MATTERS
The validity of our common stock has been passed upon by Kilpatrick Stockton LLP, Washington
D.C.
EXPERTS
The financial statements incorporated in this prospectus by reference from our Annual Report
on Form 10-K for the year ended June 30, 2009 have been audited by Crowe Horwath LLP, an
independent registered public accounting firm, as stated in their report, which is incorporated
herein by reference, and has been so incorporated in reliance upon the report of such firm given
upon their authority as experts in accounting and auditing.
21
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 13. Other Expenses of Issuance and Distribution.
|
|
|
|
|
SEC filing fee (1)
|
|
$
|
325
|
|
EDGAR fees
|
|
|
2,000
|
|
Legal fees and expenses
|
|
|
10,000
|
|
Accounting fees and expenses
|
|
|
3,000
|
|
Miscellaneous
|
|
|
2,000
|
|
|
|
|
|
Total
|
|
$
|
17,325
|
|
|
|
|
|
|
|
|
(1)
|
|
Estimated based on registration of 205,297 shares of common stock at $1.98 per share and
1,341,694 warrants to purchase shares of common stock with an exercise price of $4.00 per
share.
|
Item 14. Indemnification of Directors and Officers.
Under Section 1701.13 of the Ohio Revised Code, Ohio corporations are authorized to indemnify
directors, officers, employees and agents within prescribed limits and must indemnify them under
certain circumstances. Ohio law does not provide statutory authorization for a corporation to
indemnify directors, officers, employees and agents for settlements, fines or judgments in the
context of derivative suits. However, it provides that directors (but not officers, employees or
agents) are entitled to mandatory advance of expenses, including attorneys fees, incurred in
defending any action, including derivative actions, brought against the director, provided that the
director agrees to cooperate with the corporation concerning the matter and to repay the amount
advanced if it is proved by clear and convincing evidence that the directors act or failure to act
was done with deliberate intent to cause injury to the corporation or with reckless disregard for
the corporations best interests.
Ohio law does not authorize payment of judgments to a director, officer, employee or agent
after a finding of negligence or misconduct in a derivative suit absent a court order.
Indemnification is permitted, however, to the extent such person succeeds on the merits. In all
other cases, if a director, officer, employee or agent acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the corporation,
indemnification is discretionary except as otherwise provided by a corporations articles of
incorporation, code of regulations or by contract except with respect to the advancement of
expenses of directors.
Under Ohio law, a director is not liable for monetary damages unless it is provided by clear
and convincing evidence that his action or failure to act was undertaken with deliberate intent to
cause injury to the corporation or with reckless disregard for the best interests of the
corporation. There is, however, no comparable provision limiting the liability of officers,
employees or agents of a corporation. The statutory right to indemnification is not exclusive in
Ohio, and Ohio corporations may, among other things, procure insurance for such persons.
Article Sixth of our First Amended and Restated Articles of Incorporation provides:
SIXTH: By resolution adopted by the directors in the manner set forth in
division (E) of Section 1701.13 of the Revised Code of Ohio or its
successor, the Corporation shall indemnify or agree to indemnify:
1. Any person who was or is a party or is threatened to be made a party, to
any threatened, pending, or completed action, suit, or proceeding, whether
civil, criminal, administrative, or investigative, other than an action by
or in the right of the Corporation, by reason of the fact that he is or was
a director, officer, employee, or agent of the Corporation, or is or was
serving at the request of the Corporation as a director, trustee, officer,
employee, or agent of another corporation, domestic or foreign,
nonprofit or for
II-1
profit, partnership, joint venture, trust, or other enterprise, against expenses, including attorneys
fees, judgments, fines, and amounts paid in settlement actually and
reasonably incurred by him in connection with such action, suit, or
proceeding if he acted in good faith and in a manner he reasonably believed
to be in or not opposed to the best interests of the Corporation, and with
respect to any criminal action or proceeding, had no reasonable cause to
believe his conduct was unlawful. The termination of any action, suit, or
proceeding by judgment, order, settlement, or conviction, or upon a plea of
nolo contendere or its equivalent, shall not, of itself, create a
presumption that the person did not act in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
Corporation and, with respect to any criminal action or proceeding, he had
reasonable cause to believe that his conduct was unlawful; and
2. Any person who was or is a party or is threatened to be made a party, to
any threatened, pending, or completed action or suit by or in the right of
the Corporation to procure a judgment in its favor by reason of the fact
that he is or was a director, officer, employee, or agent of the
Corporation, or is or was serving at the request of the Corporation as a
director, trustee, officer, employee, or agent of another corporation,
domestic or foreign, nonprofit or for profit, partnership, joint venture,
trust or other enterprise, against expenses, including attorneys fees,
actually and reasonably incurred by him in connection with the defense or
settlement of such action or suit if he acted in good faith and in a manner
he reasonably believed to be in or not opposed to the best interests of the
Corporation, except that no indemnification shall be made in respect of any
of the following:
a. Any claim, issue or matter as to which such person is adjudged to
be liable for negligence or misconduct in the performance of his
duty to the Corporation unless, and only to the extent that the
court of common pleas or the court in which such action or suit was
brought determines upon application that, despite the adjudication
of liability, but in view of all the circumstances of the case, such
person is fairly and reasonably entitled to indemnity for such
expenses as the court of common pleas or such other court shall deem
proper;
b. Any action or suit in which the only liability asserted against a
director is pursuant to section 1701.95 of the Revised Code of Ohio.
3. To the extent that a director, trustee, officer, employee, or agent has
been successful on the merits or otherwise in defense of any action, suit,
or proceeding referred to in subsections (1) and (2) of this Article Sixth,
or in defense of any claim, issue, or matter therein, he shall be
indemnified against expenses, including attorneys fees, actually and
reasonably incurred by him in connection with the action, suit or
proceeding.
4. Any indemnification under subsections (1) and (2) of this Article Sixth,
unless ordered by a court, shall be made by the Corporation only as
authorized in the specific case upon a determination that indemnification of
the director, trustee, officer, employee, or agent is proper in the
circumstances because he has met the applicable standard of conduct set
forth in subsections (1) and (2) of this Article Sixth. Such determination
shall be made by the directors of the Corporation in the manner set forth in
division (E)(4) of Section 1701.13 of the Revised Code of Ohio.
II-2
Item 15. Recent Sales of Unregistered Securities.
On September 1, 2009, PVF Capital Corp.
entered into an Exchange Agreement
(the Alesco Exchange Agreement) with Alesco Preferred Funding IV, Ltd. (the Alesco CDO) and
Cohen & Company Financial Management, LLC (Cohen). The Alesco CDO is the holder of $10.0 million
principal amount trust preferred securities issued by PVF Capital Trust I, and
Cohen is the collateral manager for the Alesco CDO. In
June 2004, PVF Capital Corp. formed PVF Capital Trust I as
a special purpose entity for the sole purpose of issuing $10.0 million of variable-rate trust
preferred securities (the Capital Securities I). PVF Capital Corp. issued subordinated deferrable
interest debentures (the Subordinated Debentures I) to PVF Capital Trust I in exchange for the proceeds
of the offering of the trust preferred securities. The trust preferred securities carry a variable
interest rate that adjusts to the three month LIBOR rate plus 260 basis points. The Subordinated
Debentures I are the sole asset of PVF Capital Trust I.
Under
the Alesco Exchange Agreement, on September 3, 2009,
the Alesco CDO exchanged its $10.0 million of trust preferred securities for consideration to
be paid by PVF Capital Corp.. The consideration to be paid by PVF Capital Corp. will consist of (i) a cash
payment of $500,000; (ii) a number of shares of Company common stock equal to $500,000 divided by
the average daily closing price of PVF Capital Corp.s common stock for the twenty (20) business days
prior to September 1, 2009 (the Initial Shares); (iii) a warrant (Warrant A) to purchase
769,608 shares of PVF Capital Corp. common stock; and (iv) a warrant (Warrant B and together with Warrant
A, the Alesco Warrants) to purchase a number of shares of PVF Capital Corp. common stock equal to 9.9% of
any shares of PVF Capital Corp. common stock issued, exclusive of any warrant or warrant shares, in exchange
for capital securities of PVF Capital Trust II in the event the Company in the future
issues shares of its common stock in exchange for PVF Capital Trust II capital securities.
The number of shares of PVF Capital Corp. common stock issuable pursuant to each of Warrant A and
Warrant B may not exceed certain limits. Specifically, the number shares issuable upon the exercise
of Warrant A or Warrant B may not exceed the maximum number of shares of PVF Capital Corp.s common stock
such that the Alesco CDO, upon its exercise of the applicable Alesco Warrant, shall own 9.9% of
PVF Capital Corp.s common stock then issued and outstanding, except that in the event the Alesco CDO
receives comfort from the Office of Thrift Supervision that allows it to rebut the
presumption that its holdings of PVF Capital Corp.s common stock constitute control of PVF Capital Corp. for
the purpose of the applicable Office of Thrift Supervision regulations, this limitation shall have no effect. In addition,
the number of shares of PVF Capital Corp. common stock issuable upon the exercise of Warrant B may not exceed
a number of shares equal to 1,546,991 shares minus the sum of the Initial Shares and 769,608
shares.
Based on the closing date of September 3, 2009, Warrant A is exercisable at any time before
September 3, 2011 at a price equal to the lesser of (i) $4.00 per share, (ii) the offering price
for shares of PVF Capital Corp. common stock issued solely for cash in any subsequent public offering or
private placement of the Companys common stock, or (iii) the Conversion Price (as defined below)
for any subsequent exchange of PVF Capital Corp. common stock for capital securities of PVF Capital Trust II.
Based on the closing date of September 3, 2009, Warrant B is exercisable at any time before
September 3, 2011 at the Conversion Price utilized in any subsequent exchange of PVF Capital Corp. common
stock for capital securities of PVF Capital Trust II pursuant to an exchange agreement executed within one year
of the closing date.
The Conversion Price is defined in the Alesco Exchange Agreement as the price, if any,
utilized in any subsequent exchange of PVF Capital Corp. common stock for capital securities of PVF Capital Trust II to
determine the number of shares of PVF Capital Corp. common stock to be exchanged for PVF Capital Trust II capital
securities exclusive of any warrants, warrant shares or warrant prices. For example, if the
subsequent exchange agreement for the capital securities of PVF Capital Trust II provided for terms identical
to those provided in the Alesco Exchange Agreement, then the
conversion price would be the daily
average closing price of PVF Capital Corp.s common stock for the 20 business days prior to the date of
the subsequent agreement.
The
issuance of PVF Capital Corp. common stock pursuant to the Alesco Exchange Agreement was made by PVF Capital Corp.
pursuant to an exemption from the registration requirements of the Securities Act of 1933,
as amended, contained in Section 4(2) of such Act and Rule 506 promulgated thereunder.
II-3
On October 9, 2009, PVF Capital Corp. entered into an Exchange Agreement (the Investors Exchange
Agreement) with Marty E. Adams, Umberto P. Fedeli, Robert J. King, Jr., James E. Pastore, John S.
Loeber, Lee Burdman, Jonathan A. Levy, Richard R. Hollington, Jr. and Richard R. Hollington, III
(collectively, the Investors). Marty E. Adams is a director of PVF Capital Corp.s wholly owned
subsidiary, Park View Federal Savings Bank, and served as the Interim Chief Executive
Officer of PVF Capital Corp. and Park View Federal Savings Bank until September 10, 2009. Robert J. King, Jr., is the President
and Chief Executive Officer and a director of the PVF Capital Corp. and Park View Federal Savings Bank. Umberto P. Fedeli is a
director of PVF Capital Corp. and Park View Federal Savings Bank.
The Investors hold trust preferred securities with an aggregate liquidation amount of $10.0
million issued by PVF Capital Trust II. In July 2006, PVF Capital Corp. formed PVF Capital Trust II as a special purpose
entity for the sole purpose of issuing $10.0 million of trust preferred securities (the Capital
Securities II). PVF Capital Corp. issued subordinated deferrable interest debentures (the Subordinated
Debentures II) to PVF Capital Trust II in exchange for the proceeds of the offering of
the trust preferred
securities. The trust preferred securities carry a fixed rate of 7.462% until September 15, 2011
and thereafter a variable interest rate that adjusts to the three month LIBOR rate plus 175 basis
points. The Subordinated Debentures II are the sole asset of the Trust II.
The Investors Exchange Agreement provides that on the closing date, the Investors will
exchange the $10.0 million of trust preferred securities for aggregate consideration consisting of
(i) $400,000 in cash, (ii) shares of common stock valued at $600,000 based on the average daily
closing price of the common stock over the 20 trading days prior to the closing of the transaction
(the 20-Day Average Closing Price) and (the Investor Initial Shares) (iii) warrants to purchase
769,608 shares of common stock plus a number of shares of common stock equal to 9.9% of the shares
to be issued to the Investors as described in clause (ii) above (the Investor Warrants). In
addition, the Investors will receive additional warrants that become exercisable in the event
PVF Capital Corp. completes one or more public or private offerings of its common stock within a year.
The
additional warrants will give the Investors the right to acquire additional shares of common stock
so that the total number of shares they could acquire under all warrants would entitle them to
purchase an aggregate of 4.9% of PVF Capital Corp.s common stock outstanding following the offering or
offerings completed during that one-year period. The exercise price for the warrants is the lesser
of (i) $4.00 per share, (ii) the 20-Day Average Closing Price, or (iii) if during the term of the
warrants PVF Capital Corp. sells shares of common stock in a public or private offering, the price at
which shares are sold in that offering. The Investor Warrants are exercisable for five years
following the closing.
The issuance of PVF Capital Corp. common stock pursuant to the Investors Exchange Agreement will be made
by PVF Capital Corp. pursuant to an exemption from the registration requirements of the Securities Act of
1933, as amended, contained in Section 4(2) of such Act and Rule 506 promulgated thereunder.
Consummation of the Investors Exchange is subject to the approval of the Investors Exchange by
the shareholders of PVF Capital Corp. pursuant to the rules and regulations of The Nasdaq Stock Market,
Inc. PVF Capital Corp. intends to submit a proposal for the approval of the Investors Exchange to its
shareholders at PVF Capital Corp.s upcoming 2009 annual meeting of stockholders. The directors of
PVF Capital Corp. have executed voting agreements agreeing to vote shares of PVF Capital Corp. common stock they hold in favor
of the Investors Exchange. Consummation of the Investors Exchange also is subject to other
customary closing conditions.
II-4
Item 16. Exhibits and Financial Statement Schedules.
The exhibits and financial statement schedules filed as a part of this registration statement are
as follows:
(a)
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List of Exhibits (filed herewith unless otherwise noted)
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1.1
1
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Engagement Letter between PVF Capital Corp. and Stifel Nicolaus & Company, Incorporated
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3.1
2
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Articles of Incorporation, as amended and restated
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3.2
3
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Code of Regulations, as amended and restated
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3.3
4
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Bylaws, as amended and restated
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4.1
5
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Specimen Common Stock Certificate
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4.2
6
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Form of Common Stock Warrant issued to Alesco Preferred Funding IV, Ltd.
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4.3
6
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Form of Common Stock Warrant issued to Alesco Preferred Funding IV, Ltd.
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5.1*
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Opinion of Kilpatrick Stockton LLP re: Legality
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10.1
6
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Exchange Agreement by and among Alesco Preferred Funding IV, Ltd.,
Cohen & Company Financial Management, LLC and PVF Capital Corp., dated
September 1, 2009
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10.2
6
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Joint Cancellation Direction and Release by and among PVF Capital
Corp., PVF Capital Trust I and The Bank of New York Mellon, dated
September 3, 2009
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10.3
6
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Exchange Agreement between PVF Capital Corp., Marty E. Adams, Umberto
P. Fedeli, Robert J. King, Jr., James B. Pastore, John S. Loeber, Lee
Burdman, Jonathan A. Levy, Richard R. Hollington, Jr. and Richard R.
Hollington, III, dated October 9, 2009
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10.4
5
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Park View Federal Savings Bank Conversion Stock Option Plan
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10.5
5
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PVF Capital Corp. 1996 Incentive Stock Option Plan
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10.6
7
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PVF Capital Corp. 2000 Incentive Stock Option Plan and Deferred
Compensation Plan
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10.7
8
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PVF Capital Corp. 2008 Equity Incentive Plan
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10.8
9
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Management Incentive Compensation Plan
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10.9
10
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Amended and Restated Severance Agreement by and between PVF Capital
Corp., Park View Federal Savings Bank and Jeffrey N. Male
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10.10
10
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Amended and Restated Severance Agreement by and between PVF Capital
Corp., Park View Savings Bank and Edward B. Debevec
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10.11
11
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Form of Employment Agreement between PVF Capital Corp., Park View
Federal Savings Bank and Robert J. King, Jr. **
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10.12
11
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Letter Agreement between PVF Capital Corp. and John R. Male, dated July
27, 2009 ***
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10.13
12
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Agreement by and between PVF Capital Corp., Park View Federal Savings
Bank, Steven A. Calabrese, CCAG Limited Partnership and Steven A.
Calabrese Profit Sharing Trust, dated September 30, 2008
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10.14
12
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Agreement by and between PVF Capital Corp., Park View Federal Savings
Bank, Richard M. Osborne and Richard M. Osborne Trust, dated September
30, 2008
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10.15
13
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Agreement among PVF Capital Corp., Park View Federal Savings Bank and
Marty Adams Consulting LLC, dated February 26, 2009
****
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10.16
14
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Stipulation and Consent to the Issuance of an Order to Cease and Desist
between Park View Federal Savings Bank and the Office of Thrift
Supervision
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10.17
14
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Order to Cease and Desist issued by the Office of Thrift Supervision
for Park View Federal Savings Bank
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10.18
14
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Stipulation and Consent to the Issuance of an Order to Cease and Desist
between PVF Capital Corp. and the Office of Thrift Supervision
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10.19
14
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Order to Cease and Desist issued by the Office of Thrift Supervision
for PVF Capital Corp.
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10.20
15
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Repurchase Agreement between Citigroup Global Markets, Inc. and Park View Federal Savings Bank
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21.0
1
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Subsidiaries of the Registrant
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23.1*
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Consent of Kilpatrick Stockton LLP
(included in Exhibit 5.1)
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23.2
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Consent of Crowe Horwath LLP
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24.1*
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Power of Attorney
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Management contract or compensatory plan or arrangement.
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II-5
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*
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Previously filed
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**
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Not currently effective. Subject to OTS approval.
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***
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The provision in the Letter Agreement pertaining to Mr. Males consulting arrangement with
the Company is subject to OTS approval.
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****
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The agreement was terminated on September 10, 2009 in accordance with its terms.
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(1)
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Incorporated by reference to the Registrants Registration Statement on Form S-1 filed on November 9, 2009 (Commission File No. 333-163037).
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(2)
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Incorporated by reference to the Registrants Annual Report on Form 10-K for the year ended
June 30, 2002 (Commission File No. 0-24948).
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(3)
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Incorporated by reference to the Registrants Current Report on Form 8-K filed on February 6,
2008 (Commission File No. 0-24948).
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(4)
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Incorporated by reference to Pre-Effective Amendment No. 1 to the Registrants Registration Statement on Form S-1 filed on December 9, 2009 (Commission File No. 333-163037).
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(5)
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Incorporated by reference to the Registrants Annual Report on Form 10-K for the year ended
June 30, 1996 (Commission File No. 0-24948).
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(6)
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Incorporated by reference to the Registrants Quarterly Report on Form 10-Q for the quarter
ended September 30, 2009 (Commission File No. 0-24948).
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(7)
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Incorporated by reference to the Registrants Annual Report on Form 10-K for the year ended
June 30, 2003 (Commission File No. 0-24948).
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(8)
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Incorporated by reference to the Registrants Definitive Proxy Statement filed on October 17,
2008 (Commission File No. 0-24948).
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(9)
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Incorporated by reference to the Registrants Annual Report on Form 10-K for the year ended
June 30, 2007 (Commission File No. 0-24948).
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(10)
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Incorporated by reference to the Registrants Quarterly Report on Form 10-Q for the quarter
ended December 31, 2008 (Commission File No. 0-24948).
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(11)
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Incorporated by reference to the Registrants Annual Report on Form 10-K for the year ended June 30, 2009 (Commission File No. 0-24948).
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(12)
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Incorporated by reference to the Registrants Current Report on Form 8-K filed on October 6,
2008 (Commission File No. 0-24948).
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(13)
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Incorporated by reference to the Registrants Current Report on Form 8-K filed on March 4,
2009 (Commission File No. 0-24948).
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(14)
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Incorporated by reference to the Registrants Current Report on Form 8-K filed on October 23,
2009 (Commission File No. 0-24948).
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(15)
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Incorporated by reference to Pre-Effective Amendment No. 2 to the Registrants Registration Statement on Form S-1 filed on January 7, 2010 (Commission File No. 333-163037).
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(b)
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Financial Statement Schedules
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No financial statement schedules are filed because the required information is not applicable
or is included in the consolidated financial statements or related notes.
II-6
Item 17. Undertakings.
The undersigned registrant hereby undertakes:
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(1)
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To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
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(i)
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To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
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(ii)
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To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the registration
statement. Notwithstanding the forgoing, any increase or decrease in volume of
securities offered (if the total dollar value of securities offered would not
exceed that which was registered) and any deviation from the low or high end of
the estimated maximum offering range may be reflected in the form of prospectus
filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20% change in the maximum
aggregate offering price set forth in the Calculation of Registration Fee
table in the effective registration statement;
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(iii)
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To include any material information with respect to the plan
of distribution not previously disclosed in the registration statement or any
material change to such information in the registration statement.
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(2)
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That, for the purpose of determining any liability under the Securities Act of
1933, each such post-effective amendment shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering thereof.
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(3)
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To remove from registration by means of a post-effective amendment any of the
securities being registered which remain unsold at the termination of the offering.
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(4)
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That, for the purpose of determining any liability under the Securities Act of
1933, each post-effective amendment that contains a form of prospectus shall be deemed
to be a new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona fide
offering thereof.
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(5)
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That, for the purpose of determining liability of the registrant under the
Securities Act of 1933 to any purchaser in the initial distribution of the securities:
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The undersigned registrant undertakes that in a primary offering of securities of the
undersigned registrant pursuant to this registration statement, regardless of the underwriting
method used to sell the securities to the purchaser, if the securities are offered or sold to such
purchaser by means of any of the following communications, the undersigned registrant will be a
seller to the purchaser and will be considered to offer or sell such securities to such purchaser:
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(i)
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Any preliminary prospectus or prospectus of the undersigned
registrant relating to the offering required to be filed pursuant to Rule 424;
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(ii)
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Any free writing prospectus relating to the offering prepared
by or on behalf of the undersigned registrant or used or referred to by the undersigned registrant;
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II-7
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(iii)
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The portion of any other free writing prospectus relating to the
offering containing material information about the undersigned registrant or
its securities provided by or on behalf of the undersigned registrant; and
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(iv)
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Any other communication that is an offer in the offering made
by the undersigned registrant to the purchaser.
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Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be
permitted to directors, officers and controlling persons of the registrant pursuant to the
foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public policy as expressed in
the Act and is, therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the registrant of expenses incurred or paid by a
director, officer or controlling person of the registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person in connection with
the securities being registered, the registrant will, unless in the opinion of its counsel the
matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the
question whether such indemnification by it is against public policy as expressed in the Act and
will be governed by the final adjudication of such issue.
II-8
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant has duly caused
this registration statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Solon, State of Ohio, on March 1, 2010
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PVF Capital Corp.
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By:
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/s/ Robert J. King, Jr.
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Robert J. King, Jr.
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President, Chief Executive Officer and Director
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Pursuant to the requirements of the Securities Act of 1933, this registration statement has
been signed by the following persons in the capacities and on the dates indicated.
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Name
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Title
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Date
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/s/ Robert
J. King, Jr.
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President, Chief Executive Officer
and Director
(principal executive officer)
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March 1, 2010
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/s/ James H. Nicholson
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Chief Financial Officer
(principal financial officer)
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March 1, 2010
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/s/ Edward
B. Debevec
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Treasurer
(principal accounting officer)
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March 1, 2010
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*
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Chairman of the Board
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*
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Director
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*
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Director
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*
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Director
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*
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Director
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*
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Director
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Name
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Title
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Date
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Director
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Director
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Director
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Director
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Director
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*
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Pursuant to the Power of Attorney filed with Pre-effective Amendment No. 1
to the Registration Statement on Form S-1 of PVF Capital Corp.
(Commission File No. 333-163042) filed with the Securities and Exchange Commission on January 12, 2010.
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/s/ Robert J. King, Jr.
Robert J. King, Jr.
Attorney-in-Fact
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Date: March 1, 2010
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