DIRECTOR RETIREMENT AGREEMENT
Exhibit 10.23
THE OHIO VALLEY BANK COMPANY
This DIRECTOR RETIREMENT AGREEMENT (this "Agreement") is adopted this 20th day of December, 2017 by and between THE OHIO VALLEY BANK COMPANY, a state-chartered commercial bank located in Gallipolis, Ohio (the "Company"), and Xxxx X. Xxxxx (the "Director").
This Agreement provides 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
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 4.
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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.
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1.3 |
"Board" means the Board of Directors of the Company as from time to time constituted.
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1.4 |
"Code" means the Internal Revenue Code of 1986, as amended, and all regulations and guidance thereunder, as may be amended from time to time.
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1.5 |
"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.
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1.6 |
"Effective Date" means January 1, 2018.
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1.7 |
"Fees" means the total annual board retainer and monthly fees paid to all directors, earned by the Director during a Plan Year. For purposes of clarity, Fees does not include committee fees of any type, lead director fees or other special director fees.
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1.8 |
"Normal Retirement Age" means the Annual Meeting of Shareholders following the date on which the Director attains age seventy (70).
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1.9 |
"Normal Retirement Date" means the later of Normal Retirement Age or Termination of Service.
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1.10 |
"Plan Administrator" means the plan administrator described in Article 6.
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1.11 |
"Plan Year" means each twelve (12) month period commencing on January 1 and ending on December 31 of each year.
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1.12 |
"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.
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1.13 |
"Termination for Cause" has the meaning set forth in Article 5.
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1.14 |
"Termination of Service" means a "separation from service" within the meaning of Treasury Regulation Β§1.409A-1(h) of the Director's service with the Company and any person with whom the Company would be considered a single employer under Code Sections 414(b) and (c) for reasons other than death or Disability.
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1.15 |
"Years of Service" means the total number of twelve (12) month periods during which the Director has served on the Board.
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Article 2
2.5 |
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:
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(a) |
may not accelerate the time or schedule of any distribution, except as provided in Code Section 409A and the regulations thereunder;
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(b) |
must, for benefits distributable under Sections 2.1 and 2.2, 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
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(c) |
must take effect not less than twelve (12) months after the election is made.
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Article 3
Article 4
Article 5
(a) |
Gross negligence or gross neglect of duties to the Company;
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(b) |
Commission of a felony or of a gross misdemeanor involving moral turpitude; or
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(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.
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Article 6
Article 7
(a) |
The specific reasons for the denial;
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(b) |
A reference to the specific provisions of the Agreement on which the denial is based;
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(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;
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(d) |
An explanation of the Agreement's review procedures and the time limits applicable to such procedures;
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(e) |
A statement of the claimant's right to bring a civil action following an adverse benefit determination on review; and
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(f) |
In the case of an adverse determination of a claim on account of disability, the information to the claimant shall include, to the extent necessary, the information set forth in Department of Labor Regulation Section 2560.503-1(g)(1).
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(a) |
The specific reasons for the denial;
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(b) |
A reference to the specific provisions of the Agreement on which the denial is based;
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(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;
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(d) |
A statement of the claimant's right to bring a civil action; and
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(e) |
In the case of an adverse determination of a claim on account of disability, if an internal rule, guideline, protocol, or other similar criterion was relied upon in making the adverse determination, either (i) the specific rule, guideline, protocol, or other similar criterion; or (ii) a statement that such rule, guideline, protocol, or other similar criterion was relied upon in making the adverse determination and that a copy of the rule, guideline, protocol, or other similar criterion will be provided free of charge to the claimant upon request.
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Article 8
(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 (as defined below) are required to receive all amounts of compensation deferred under the terminated arrangements within twelve (12) months of the termination of the arrangements;
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(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
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(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;
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the Company may distribute the amount the Bank has accrued with respect to the Bank's obligations hereunder, determined as of the date of the termination of the Agreement, to the Director in a lump sum subject to the above terms.
Article 9
9.5 |
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.
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The Ohio Valley Bank Company
Attn: BOLI Administrator
X X Xxx 000 000 Xxxxx Xxxxxx
Xxxxxxxxxx XX 00000-0000
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.
DIRECTOR:
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THE OHIO VALLEY BANK COMPANY
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By: |
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Xxxx X. Xxxxx
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Title:
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