EXHIBIT 10.6(a)
THE OHIO VALLEY BANK COMPANY
AMENDED AND RESTATED
DIRECTOR DEFERRED FEE AGREEMENT
This AMENDED AND RESTATED DIRECTOR DEFERRED FEE AGREEMENT (this
"Agreement") is adopted this 28th day of December, 2007 by and between THE OHIO
VALLEY BANK COMPANY, a state-chartered commercial bank located in Gallipolis,
Ohio (the "Company"), and ANNA P. BARNITZ (the "Director"). This Agreement
amends and restates the prior Director Deferred Fee Agreement between the
Company and the Director dated November 19, 2002 and amended on January 20, 2004
(the "Prior Agreement").
The parties intend this amended and restated Agreement to be a material
modification of the Prior Agreement such that all amounts earned and vested
prior to December 31, 2004 shall be subject to the provisions of Section 409A of
the Code and the regulations promulgated thereunder. The purpose of this
Agreement is to provide specified benefits to the Director, a member of a select
group of management or highly compensated employees who contribute materially to
the continued growth, development and future business success of the Company.
This Agreement shall be unfunded for tax purposes.
Article 1
Definitions
Whenever used in this Agreement, the following words and phrases shall have
the meanings specified:
1.1 "Beneficiary" means each designated person or entity, or the estate of the
deceased Director, entitled to any benefits upon the death of the Director
pursuant to Article 6.
1.2 "Beneficiary Designation Form" means the form established from time to time
by the Plan Administrator that the Director completes, signs and returns to
the Plan Administrator to designate one or more beneficiaries.
1.3 "Board" means the Board of Directors of the Company as from time to time
constituted.
1.4 "Code" means the Internal Revenue Code of 1986, as amended, and all
regulations and guidance thereunder, including such regulations and
guidance as may be promulgated after the Effective Date of this Agreement.
1.5 "Deferral Account" means the Company's accounting of the Director's
accumulated Deferrals plus accrued interest.
1.6 "Deferral Election Form" means the form or forms established from time to
time by the
Plan Administrator that the Director completes, signs and returns to the
Plan Administrator to designate the amount of Deferrals.
1.7 "Deferrals" means the amount of Fees which the Director elects to defer
according to this Agreement.
1.8 "Disability" means the Director: (i) is unable to engage in any substantial
gainful activity by reason of any medically determinable physical or mental
impairment which can be expected to result in death or can be expected to
last for a continuous period of not less than twelve (12) months; or (ii)
is, by reason of any medically determinable physical or mental impairment
which can be expected to result in death or can be expected to last for a
continuous period of not less than twelve (12) months, receiving income
replacement benefits for a period of not less than three (3) months under
an accident and health plan covering employees or directors of the Company.
Medical determination of Disability may be made by either the Social
Security Administration or by the provider of an accident or health plan
covering employees or directors of the Company, provided that the
definition of "disability" applied under such insurance program complies
with the requirements of the preceding sentence. Upon the request of the
Plan Administrator, the Director must submit proof to the Plan
Administrator of the Social Security Administration's or the provider's
determination.
1.9 "Effective Date" means January 1, 2005.
1.10 "Fees" means the total fees earned by the Director during a Plan Year.
1.11 "Normal Retirement Age" means the Annual Meeting of Shareholders following
the calendar year in which the Director attains age seventy (70).
1.12 "Plan Administrator" means the plan administrator described in Article 8.
1.13 "Plan Year" means each twelve (12) month period commencing on January 1 and
ending on December 31 of each year.
1.14 "Specified Employee" means an employee who at the time of Termination of
Service is a key employee of the Company, if any stock of the Company is
publicly traded on an established securities market or otherwise. For
purposes of this Agreement, an employee is a key employee if the employee
meets the requirements of Code Section 416(i)(1)(A)(i), (ii), or (iii)
(applied in accordance with the regulations thereunder and disregarding
section 416(i)(5)) at any time during the twelve (12) month period ending
on December 31 (the "identification period"). If the employee is a key
employee during an identification period, the employee is treated as a key
employee for purposes of this Agreement during the twelve (12) month period
that begins on the first day of April following the close of the
identification period.
1.15 "Termination for Cause" has the meaning set forth in Article 7.
1.16 "Termination of Service" means termination of the Director's service with
the Company for reasons other than death or Disability. Whether a
Termination of Service has occurred is determined in accordance with the
requirements of Code Section 409A based on whether the facts and
circumstances indicate that the Company and Director reasonably anticipated
that no further services would be performed after a certain date or that
the level of bona fide services the Director would perform after such date
(whether as an employee or as an independent contractor) would permanently
decrease to no more than twenty percent (20%) of the average level of bona
fide services performed (whether as an employee or an independent
contractor) over the immediately preceding thirty-six (36) month period (or
the full period of services to the Company if the Director has been
providing services to the Company less than thirty-six (36) months).
1.17 "Unforeseeable Emergency" means a severe financial hardship to the Director
resulting from an illness or accident of the Director, the Director's
spouse, the Beneficiary, or the Director's dependent (as defined in Section
152(a) of the Code), loss of the Director's property due to casualty, or
other similar extraordinary and unforeseeable circumstances arising as a
result of events beyond the control of the Director.
Article 2
Deferral Election
2.1 Elections Generally. The Director may annually file a Fees Deferral
Election Form with the Plan Administrator no later than the end of the Plan
Year preceding the Plan Year in which services leading to such Fees will be
performed.
2.2 Initial Election. After being notified by the Plan Administrator of
becoming eligible to participate in this Agreement, the Director may make
an initial deferral election by delivering to the Plan Administrator a
signed Deferral Election Form and a Beneficiary Designation Form within
thirty (30) days of becoming eligible. The Deferral Election Form shall set
forth the amount of Fees to be deferred. However, if the Director was
eligible to participate in any other account balance plans sponsored by the
Company (as referenced in Code Section 409A) prior to becoming eligible to
participate in this Agreement, the initial election to defer Fees under
this Agreement shall not be effective until the Plan Year following the
Plan Year in which the Director became eligible to participate in this
Agreement.
2.3 Election Changes. The Director may modify the amount of Fees to be deferred
annually by filing a new Deferral Election Form with the Company. The
modified deferral shall not be effective until the calendar year following
the year in which such subsequent Deferral Election Form is received by the
Company.
2.4 Hardship. If an Unforeseeable Emergency occurs, the Director, by written
instructions to the Company, may discontinue deferrals hereunder. Any
subsequent Deferral Elections may be made only in accordance with Section
2.3 hereof.
Article 3
Deferral Account
3.1 Establishing and Crediting. The Company shall establish a Deferral Account
on its books for the Director and shall credit to the Deferral Account the
following amounts:
(a) Any Deferrals hereunder; and
(b) Interest as follows:
(i) At the end of each Plan Year and immediately prior to the payment of
any benefits, interest shall be credited on the Deferral Account balance at an
annual rate determined by the Board of Directors in its sole discretion,
compounded annually; and
(ii) At the end of each Plan Year during any applicable installment period,
interest shall be credited on the Deferral Account balance at an annual rate
determined by the Board of Directors in its sole discretion, compounded
annually.
3.2 Statement of Accounts. The Plan Administrator shall provide to the
Director, within one hundred twenty (120) days after the end of each Plan
Year, a statement setting forth the benefits to be distributed under this
Agreement.
3.3 Accounting Device Only. The Deferral Account is solely a device for
measuring amounts to be paid under this Agreement. The Deferral Account is
not a trust fund of any kind. The Director is a general unsecured creditor
of the Company for the distribution of benefits. The benefits represent the
mere Company promise to distribute such benefits. The Director's rights are
not subject in any manner to anticipation, alienation, sale, transfer,
assignment, pledge, encumbrance, attachment or garnishment by the
Director's creditors.
Article 4
Distributions During Lifetime
4.1 Normal Retirement Benefit. Upon Termination of Service, the Company shall
distribute to the Director the benefit described in this Section 4.1 in
lieu of any other benefit under this Article.
4.1.1 Amount of Benefit. The benefit under this Section 4.1 is the Deferral
Account balance at Termination of Service.
4.1.2 Payment of Benefit. The Company shall distribute the benefit to the
Director in one hundred twenty (120) consecutive monthly installments commencing
on the first day of the month following Termination of Service.
4.2 Disability Benefit. If the Director experiences a Disability which results
in Termination
of Service, the Company shall distribute to the Director the benefit
described in this Section 4.2 in lieu of any other benefit under this
Article.
4.2.1 Amount of Benefit. The benefit under this Section 4.2 is the Deferral
Account balance at Termination of Service.
4.2.2 Payment of Benefit. The Company shall distribute the benefit to the
Director in one hundred twenty (120) consecutive monthly installments commencing
on the first day of the month following Termination of Service.
4.3 Hardship Distribution. If an Unforeseeable Emergency occurs, the Director
may petition the Board to receive a distribution from the Agreement (a
"Hardship Distribution"). The Board in its sole discretion may grant such
petition. If granted, the Director shall receive, within sixty (60) days, a
distribution from the Agreement only to the extent deemed necessary by the
Board to remedy the Unforeseeable Emergency, plus an amount necessary to
pay taxes reasonably anticipated as a result of the distribution. In any
event, the maximum amount which may be paid out pursuant to this Section
4.3 is the Deferral Account balance as of the day the Director petitioned
the Board to receive a Hardship Distribution. Such a distribution shall
reduce the Deferral Account balance.
4.4 Restriction on Commencement of Distributions. Notwithstanding any provision
of this Agreement to the contrary, if the Director is considered a
Specified Employee, the provisions of this Section 4.4 shall govern all
distributions hereunder. If benefit distributions which would otherwise be
made to the Director due to Termination of Service are limited because the
Director is a Specified Employee, then such distributions shall not be made
during the first six (6) months following Termination of Service. Rather,
any distribution which would otherwise be paid to the Director during such
period shall be accumulated and paid to the Director in a lump sum on the
first day of the seventh month following Termination of Service. All
subsequent distributions shall be paid in the manner specified.
4.5 Distributions Upon Taxation of Amounts Deferred. If, pursuant to Code
Section 409A, the Federal Insurance Contributions Act or other state, local
or foreign tax, the Director becomes subject to tax on the amounts deferred
hereunder, then the Company may make a limited distribution to the Director
in a manner that conforms to the requirements of Code section 409A. Any
such distribution will decrease the Director's benefits distributable under
this Agreement.
4.6 Change in Form or Timing of Distributions. All changes in the form or
timing of distributions hereunder must comply with the following
requirements. The changes:
(a) may not accelerate the time or schedule of any distribution, except as
provided in Code Section 409A and the regulations thereunder;
(b) must, for benefits distributable under Sections 4.1 and 4.2, delay the
commencement of distributions for a minimum of five (5) years from the
date the first distribution was originally scheduled to be made; and
(c) must take effect not less than twelve (12) months after the election is
made.
Article 5
Distributions at Death
5.1 Death During Active Service. If the Director dies while in active service
to the Company, the Company shall distribute to the Beneficiary the benefit
described in this Section 5.1. This benefit shall be distributed in lieu of
the benefits under Article 4.
5.1.1 Amount of Benefit. The benefit under Section 5.1 is the greater of:
a) the Deferral Account balance as of the Director's death; or b) the projected
Deferral Account balance had the Director continued to defer at the current rate
until Normal Retirement Age.
5.1.2 Payment of Benefit. The Company shall distribute the benefit to the
Beneficiary in one hundred twenty (120) consecutive monthly installments
commencing on the first day of the fourth month following the Director's death.
5.2 Death During Distribution of a Benefit. If the Director dies after any
benefit distributions have commenced under this Agreement but before
receiving all such distributions, the Company shall distribute to the
Beneficiary the remaining benefits at the same time and in the same amounts
that would have been distributed to the Director had the Director survived.
5.3 Death After Termination of Service But Before Payment of a Lifetime Benefit
Commences. If the Director is entitled to benefit distributions under this
Agreement, but dies prior to the commencement of said benefit
distributions, the Company shall pay to the Director's beneficiary the same
benefits that the Director was entitled to prior to death except that the
benefit distributions shall commence on the first day of the fourth month
following the Director's death.
Article 6
Beneficiaries
6.1 In General. The Director shall have the right, at any time, to designate a
Beneficiary to receive any benefit distributions under this Agreement upon
the death of the Director. The Beneficiary designated under this Agreement
may be the same as or different from the beneficiary designated under any
other plan of the Company in which the Director participates.
6.2 Designation. The Director shall designate a Beneficiary by completing and
signing the Beneficiary Designation Form and delivering it to the Plan
Administrator or its designated agent. If the Director names someone other
than the Director's spouse as a
Beneficiary, the Plan Administrator may, in its sole discretion, determine
that spousal consent is required to be provided in a form designated by the
Plan Administrator, executed by the Director's spouse and returned to the
Plan Administrator. The Director's beneficiary designation shall be deemed
automatically revoked if the Beneficiary predeceases the Director or if the
Director names a spouse as Beneficiary and the marriage is subsequently
dissolved. The Director shall have the right to change a Beneficiary by
completing, signing and otherwise complying with the terms of the
Beneficiary Designation Form and the Plan Administrator's rules and
procedures. Upon the acceptance by the Plan Administrator of a new
Beneficiary Designation Form, all Beneficiary designations previously filed
shall be cancelled. The Plan Administrator shall be entitled to rely on the
last Beneficiary Designation Form filed by the Director and accepted by the
Plan Administrator prior to the Director's death.
6.3 Acknowledgment. No designation or change in designation of a Beneficiary
shall be effective until received, accepted and acknowledged in writing by
the Plan Administrator or its designated agent.
6.4 No Beneficiary Designation. If the Director dies without a valid
Beneficiary designation, or if all designated Beneficiaries predecease the
Director, then the Director's spouse shall be the designated Beneficiary.
If the Director has no surviving spouse, any benefit shall be paid to the
personal representative of the Director's estate.
6.5 Facility of Distribution. If the Plan Administrator determines in its
discretion that a benefit is to be distributed to a minor, to a person
declared incompetent or to a person incapable of handling the disposition
of that person's property, the Plan Administrator may direct distribution
of such benefit to the guardian, legal representative or person having the
care or custody of such minor, incompetent person or incapable person. The
Plan Administrator may require proof of incompetence, minority or
guardianship as it may deem appropriate prior to distribution of the
benefit. Any distribution of a benefit shall be a distribution for the
account of the Director and the Beneficiary, as the case may be, and shall
completely discharge any liability under this Agreement for such
distribution amount.
Article 7
General Limitations
7.1 Termination for Cause. Notwithstanding any provision of this Agreement to
the contrary, the Company shall not distribute any benefit under this
Agreement in excess of the Deferrals if the Company terminates the
Director's service for:
(a) Gross negligence or gross neglect of duties to the Company;
(b) Commission of a felony or of a gross misdemeanor involving moral turpitude;
or
(c) Fraud, disloyalty, dishonesty or willful violation of any law or
significant Company policy committed in connection with the Director's
service and resulting in a material adverse effect on the Company.
7.2 Suicide or Misstatement. Notwithstanding any provision of this Agreement to
the contrary, the Company shall not distribute any benefit under this
Agreement in excess of the Deferrals if the Director commits suicide within
two (2) years after the Effective Date, or if an insurance company which
issued a life insurance policy covering the Director and owned by the
Company denies coverage (i) for material misstatements of fact made by the
Director on an application for such life insurance, or (ii) for any other
reason.
7.3 Removal. Notwithstanding any provision of this Agreement to the contrary,
the Company shall not distribute any benefit under this Agreement in excess
of the Deferrals (i.e., Deferral Account minus interest credited thereon)
if the Director is subject to a final removal or prohibition order issued
by an appropriate federal banking agency pursuant to Section 8(e) of the
Federal Deposit Insurance Act.
7.4 Excess Parachute Payment. Notwithstanding any provision of this Agreement
to the contrary, the Company shall not distribute any benefit under this
Agreement in excess of the Deferrals to the extent the benefit would be an
excess parachute payment under Section 280G of the Code.
Article 8
Administration of Agreement
8.1 Plan Administrator Duties. The Plan Administrator shall administer this
Agreement according to its express terms and shall also have the discretion
and authority to (i) make, amend, interpret and enforce all appropriate
rules and regulations for the administration of this Agreement and (ii)
decide or resolve any and all questions, including interpretations of this
Agreement, as may arise in connection with this Agreement to the extent the
exercise of such discretion and authority does not conflict with Code
Section 409A.
8.2 Agents. In the administration of this Agreement, the Plan Administrator may
employ agents and delegate to them such administrative duties as the Plan
Administrator sees fit, including acting through a duly appointed
representative, and may from time to time consult with counsel who may be
counsel to the Company.
8.3 Binding Effect of Decisions. Any decision or action of the Plan
Administrator with respect to any question arising out of or in connection
with the administration, interpretation or application of this Agreement
and the rules and regulations promulgated hereunder shall be final and
conclusive and binding upon all persons having any interest in this
Agreement.
8.4 Indemnity of Plan Administrator. The Company shall indemnify and hold
harmless the Plan Administrator against any and all claims, losses,
damages, expenses or liabilities arising from any action or failure to act
with respect to this Agreement, except in the case of willful misconduct by
the Plan Administrator.
8.5 Bank Information. To enable the Plan Administrator to perform its
functions, the Company shall supply full and timely information to the Plan
Administrator on all matters relating to the date and circumstances of the
Director's death, Disability or Termination of Service, and such other
pertinent information as the Plan Administrator may reasonably require.
Article 9
Claims and Review Procedures
9.1 Claims Procedure. The Director or Beneficiary ("claimant") who has not
received benefits under the Agreement that he or she believes should be
paid shall make a claim for such benefits as follows:
9.1.1 Initiation - Written Claim. The claimant initiates a claim by
submitting to the Company a written claim for the benefits. If such a claim
relates to the contents of a notice received by the claimant, the claim must be
made within sixty (60) days after such notice was received by the claimant. All
other claims must be made within one hundred eighty (180) days of the date on
which the event that caused the claim to arise occurred. The claim must state
with particularity the determination desired by the claimant.
9.1.2 Timing of Company Response. The Company shall respond to such
claimant within ninety (90) days after receiving the claim. If the Company
determines that special circumstances require additional time for processing the
claim, the Company can extend the response period by an additional ninety (90)
days by notifying the claimant in writing, prior to the end of the initial
ninety (90) day period, which an additional period is required. The notice of
extension must set forth the special circumstances and the date by which the
Company expects to render its decision.
9.1.3 Notice of Decision. If the Company denies part or all of the claim,
the Company shall notify the claimant in writing of such denial. The Company
shall write the notification in a manner calculated to be understood by the
claimant. The notification shall set forth:
(a) The specific reasons for the denial,
(b) A reference to the specific provisions of the Agreement on which the denial
is based,
(c) A description of any additional information or material necessary for the
claimant to perfect the claim and an explanation of why it is needed,
(d) An explanation of the Agreement's review procedures and the time limits
applicable to such procedures, and
(e) A statement of the claimant's right to bring a civil action following an
adverse benefit determination on review.
9.2 Review Procedure. If the Company denies part or all of the claim, the
claimant shall have the opportunity for a full and fair review by the
Company of the denial, as follows:
9.2.1 Initiation - Written Request. To initiate the review, the claimant,
within sixty (60) days after receiving the Company's notice of denial, must file
with the Company a written request for review.
9.2.2 Additional Submissions - Information Access. The claimant shall then
have the opportunity to submit written comments, documents, records and other
information relating to the claim. The Company shall also provide the claimant,
upon request and free of charge, reasonable access to, and copies of, all
documents, records and other information relevant to the claimant's claim for
benefits.
9.2.3 Considerations on Review. In considering the review, the Company
shall take into account all materials and information the claimant submits
relating to the claim, without regard to whether such information was submitted
or considered in the initial benefit determination.
9.2.4 Timing of Company Response. The Company shall respond in writing to
such claimant within sixty (60) days after receiving the request for review. If
the Company determines that special circumstances require additional time for
processing the claim, the Company can extend the response period by an
additional sixty (60) days by notifying the claimant in writing prior to the end
of the initial sixty (60) day period that an additional period is required. The
notice of extension must set forth the special circumstances and the date by
which the Company expects to render its decision.
9.2.5 Notice of Decision. The Company shall notify the claimant in writing
of its decision on review. The Company shall write the notification in a manner
calculated to be understood by the claimant. The notification shall set forth:
(a) The specific reasons for the denial,
(b) A reference to the specific provisions of the Agreement on which the denial
is based,
(c) A statement that the claimant is entitled to receive, upon request and free
of charge, reasonable access to, and copies of, all documents, records and
other information relevant to the claimant's claim for benefits, and
(d) A statement of the claimant's right to bring a civil action.
Article 10
Amendments and Termination
10.1 Amendments. This Agreement may be amended only by a written agreement
signed by the Company and the Director. However, the Company may
unilaterally amend this
Agreement to conform to written directives to the Company from its auditors
or banking regulators or to comply with legislative changes or tax law,
including without limitation Section 409A of the Code and any and all
Treasury regulations and guidance promulgated thereunder.
10.2 Plan Termination Generally. This Agreement may be terminated only by a
written agreement signed by the Company and the Director. Except as
provided in Section 10.3, the termination of this Agreement shall not cause
a distribution of benefits under this Agreement. Rather, after such
termination benefit distributions will be made at the earliest distribution
event permitted under Article 4 or Article 5.
10.3 Plan Terminations Under Section 409A. Notwithstanding anything to the
contrary in Section 10.2, if this Agreement terminates in the following
circumstances:
(a) Within thirty (30) days before or twelve (12) months after a change in the
ownership or effective control of the Company, or in the ownership of a
substantial portion of the assets of the Company as described in Section
409A(a)(2)(A)(v) of the Code, provided that all distributions are made no
later than twelve (12) months following such termination of the Agreement
and further provided that all the Company's arrangements which are
substantially similar to the Agreement are terminated so the Director and
all participants in the similar arrangements are required to receive all
amounts of compensation deferred under the terminated arrangements within
twelve (12) months of the termination of the arrangements;
(b) Upon the Company's dissolution or with the approval of a bankruptcy court
provided that the amounts deferred under the Agreement are included in the
Director's gross income in the latest of (i) the calendar year in which the
Agreement terminates; (ii) the calendar year in which the amount is no
longer subject to a substantial risk of forfeiture; or (iii) the first
calendar year in which the distribution is administratively practical; or
(c) Upon the Company's termination of this and all other arrangements that
would be aggregated with this Agreement pursuant to Treasury Regulations
Section 1.409A-1(c) if the Director participated in such arrangements
("Similar Arrangements"), provided that (i) the termination and liquidation
does not occur proximate to a downturn in the financial health of the
Company, (ii) all termination distributions are made no earlier than twelve
(12) months and no later than twenty-four (24) months following such
termination, and (iii) the Company does not adopt any new arrangement that
would be a Similar Arrangement for a minimum of three (3) years following
the date the Company takes all necessary action to irrevocably terminate
and liquidate the Agreement;
the Company may distribute Deferral Account balance, determined as of the date
of the termination of the Agreement, to the Director in a lump sum subject to
the above terms.
Article 11
Miscellaneous
11.1 Binding Effect. This Agreement shall bind the Director and the Company and
their beneficiaries, survivors, executors, administrators and transferees.
11.2 No Guarantee of Service. This Agreement is not a contract for employment.
It does not give the Director the right to remain as a member of the Board,
nor does it interfere with the Company's right to discharge the Director.
It also does not require the Director to remain a member of the Board nor
interfere with the Director's right to terminate service at any time.
11.3 Non-Transferability. Benefits under this Agreement cannot be sold,
transferred, assigned, pledged, attached or encumbered in any manner.
11.4 Tax Withholding and Reporting. The Company shall withhold any taxes that
are required to be withheld, including but not limited to taxes owed under
Section 409A of the Code and regulations thereunder, from the benefits
provided under this Agreement. Director acknowledges that the Company's
sole liability regarding taxes is to forward any amounts withheld to the
appropriate taxing authorities. The Company shall satisfy all applicable
reporting requirements, including those under Section 409A of the Code and
regulations thereunder.
11.5 Applicable Law. This Agreement and all rights hereunder shall be governed
by the laws of the State of Ohio, except to the extent preempted by the
laws of the United States of America.
11.6 Unfunded Arrangement. The Director and the Beneficiary are general
unsecured creditors of the Company for the distribution of benefits under
this Agreement. The benefits represent the mere promise by the Company to
distribute such benefits. The rights to benefits are not subject in any
manner to anticipation, alienation, sale, transfer, assignment, pledge,
encumbrance, attachment, or garnishment by creditors. Any insurance on the
Director's life or other informal funding asset is a general asset of the
Company to which the Director and the Beneficiary have no preferred or
secured claim.
11.7 Reorganization. The Company shall not merge or consolidate into or with
another Company, or reorganize, or sell substantially all of its assets to
another bank, firm, or person unless such succeeding or continuing bank,
firm, or person agrees to assume and discharge the obligations of the
Company under this Agreement. Upon the occurrence of such event, the term
"Company" as used in this Agreement shall be deemed to refer to the
successor or survivor bank.
11.8 Entire Agreement. This Agreement constitutes the entire agreement between
the Company and the Director as to the subject matter hereof. No rights are
granted to the
Director by virtue of this Agreement other than those specifically set
forth herein.
11.9 Interpretation. Wherever the fulfillment of the intent and purpose of this
Agreement requires, and the context will permit, the use of the masculine
gender includes the feminine and use of the singular includes the plural
11.10 Alternative Action. In the event it shall become impossible for the
Company or the Plan Administrator to perform any act required by this
Agreement, the Company or Plan Administrator may in its discretion perform
such alternative act as most nearly carries out the intent and purpose of
this Agreement and is in the best interests of the Company, provided that
such alternative acts do not violate Section 409A of the Code.
11.11 Headings. Article and section headings are for convenient reference only
and shall not control or affect the meaning or construction of any of its
provisions.
11.12 Validity. In case any provision of this Agreement shall be illegal or
invalid for any reason, said illegality or invalidity shall not affect the
remaining parts hereof, but this Agreement shall be construed and enforced
as if such illegal and invalid provision has never been inserted herein.
11.13 Notice. Any notice or filing required or permitted to be given to the Plan
Administrator under this Agreement shall be sufficient if in writing and
hand-delivered, or sent by registered or certified mail, to the address
below:
The Ohio Valley Bank Company
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Attn: BOLI Administrator
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P O Box 240 420 Third Avenue
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Gallipolis OH 45631-0240
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Such notice shall be deemed given as of the date of delivery or, if
delivery is made by mail, as of the date shown on the postmark or the
receipt for registration or certification.
Any notice or filing required or permitted to be given to the Director
under this Agreement shall be sufficient if in writing and hand-delivered,
or sent by mail, to the last known address of the Director.
11.14 Compliance with Section 409A. This Agreement shall be interpreted and
administered consistent with Code Section 409A.
IN WITNESS WHEREOF, the Director and an authorized representative of
the Company have signed this Agreement.
DIRECTOR: THE OHIO VALLEY BANK COMPANY
/s/ Anna P. Barnitz By: /s/ Paula W. Clay
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Anna P. Barnitz Title: AVP and Assistant Secretary