EXHIBIT 10.2
SECOND AMENDED AND RESTATED
SUPPLEMENTAL RETIREMENT AGREEMENT
THIS SECOND AMENDED AND RESTATED SUPPLEMENTAL RETIREMENT AGREEMENT (the
"Agreement") is made as of May 12, 2010 by and between ATLANTIC COAST BANK (the
"Bank"), its successors and assigns and XXXXXX X. XXXXXX, XX. (the "Executive").
The original Agreement, effective January 1, 2008, is being amended and restated
to make certain changes to the Agreement's vesting and benefit calculation
provisions.
1. Definitions. In this Agreement, the following words and phrases shall have
the following meanings:
(a) Administrator shall mean the person or committee appointed by the
Board of Directors of the Bank to administer this Agreement. If a
committee is appointed by the Board of Directors, a majority of those
persons shall constitute a quorum and the act of the majority of such
of persons either at a meeting or by written consent, shall be the act
of the Administrator. The administrator may adopt such rules and
procedures, not inconsistent with this Agreement, as it deems
necessary or appropriate in order to administer this Agreement.
(b) Appreciation Benefit shall mean:
(1) an amount equal to the lesser of (A) the Prior Benefit
Component multiplied by the Issue Price (as defined below), or (B) the
Executive's benefit under the Agreement as of December 11, 2009
multiplied by three (3) percent per annum (in the event of a
fractional year, the three (3) percent attributable to the fractional
year will be reduced proportionately); plus
(2) an amount equal to the Stock Award Component (after applying
the weighting requirements of subparagraph 2(q)) multiplied by the
Issue Price; plus
(3) an amount equal to the Stock Ownership Component (after
applying the weighting requirements of subparagraph 2(r)) multiplied
by the Issue Price.
For example, assume the following:
o Second Step Conversion takes place on December 11, 2014
o Executive's benefit as of December 11, 2009 is $28,800
o Prior Benefit Component of 20,000 shares ($28,800 / $1.44)
o Stock Award Component of 30,000 shares
o Stock Ownership Component of 25,000 shares
o Issue Price of $5 ($6.44-$1.44)
o Prior Benefit Component = $33,387.09 [the lesser of $100,000
(20,000 x $5) or $33,387.09 (28,800 x 3% per annum for five
(5) years)]; plus
o Stock Award Component = $37,500 (30,000 x .25 x $5); plus
o Stock Ownership Component = $93,750 (25,000 x .75 x $5);
equals
o Appreciation Benefit = $164,637.09
The Company will pay interest on the unpaid balance of the Executive's
Appreciation Benefit at the rate of three percent per annum.
In the event the Executive dies, becomes Disabled, incurs an
Involuntary Termination or there is a Change in Control prior to the
date of closing of the Second-Step Conversion, the Fair Market Value
of the Company Stock as of the date of death, determination of
Disability, Involuntary Termination or Change in Control will be
substituted for "the average selling price of a share of Company Stock
over the thirty (30) day period immediately preceding the closing of a
Second-Step Conversion" when calculating the Issue Price.
The Executive shall vest in his Appreciation Benefit upon the earliest
to occur of (1) the closing date of a Second-Step Conversion, (2) the
Executive's Involuntary Termination, (3) a Change in Control, (4) the
Executive's death, (5) the Executive's Disability or (6) the date the
Administrator, in its sole discretion, accelerates vesting.
Notwithstanding the preceding provisions, if the Executive resigns at
the request of, or is removed from service by, the Office of Thrift
Supervision, Federal Deposit Insurance Corporation or any other
regulatory authority for the Bank, the Executive shall be ineligible
to participate and shall forfeit any benefits under this Agreement.
(c) Benefit Determination Date shall mean any of the following: (1) the
Executive's Normal Retirement Date; (2) the date the Executive incurs
an Involuntary Termination prior to the Executive's Normal Retirement
Date; (3) the date of the Executive's death; (4) the date the
Executive incurs a Disability; or (5) the date of a Change in Control.
(d) Cause shall mean a Separation from Service due to the Executive's
personal dishonesty, incompetence, willful misconduct, breach of
fiduciary duty involving personal profit, intentional failure to
perform stated duties, and willful violation of any law, rule, or
regulation (other than traffic violations or similar offenses) or
final cease-and-desist order.
The basis for determining whether Cause exists shall not be deemed to
include any impact on the Company's or the Bank's business,
properties, assets, liabilities, results of operations, financial
condition or business from (a) changes in thrift, banking and similar
laws of general applicability or interpretations thereof by courts or
governmental authorities, or other changes affecting depository
institutions generally, including changes in general economic
conditions and changes in prevailing interest and deposit rates, (b)
changes in GAAP or regulatory accounting requirements applicable to
thrifts, banks and their holding companies generally, or (c) changes
in national or international political or social conditions including
the engagement by the United States in hostilities, whether or not
pursuant to the declaration of a national emergency or war, or the
occurrence of any military or terrorist attack upon or within the
United States, or any of its territories, possessions or diplomatic or
consular offices or upon any military installation, equipment or
personnel in the United States.
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A determination of Cause shall require the affirmative vote of a
majority of the members of the Bank's Board, acting in good faith with
respect to such termination, provided, however, that on or after the
earliest date on which a change in control as defined in Section 1(e)
occurs, such a determination shall require the affirmative vote of at
least three fourths of the members of the Board acting in good faith
and such vote shall not be made prior to the expiration of a 60-day
period following the date on which the Board shall by written notice
to the Executive, furnish him a statement of its grounds for proposing
to make such determination, during which period the Executive shall be
afforded a reasonable opportunity to make oral and written
presentations to the members of the Board, and to be represented by
his legal counsel at such presentations, or to refute the grounds for
the proposed determination.
(e) Change in Control shall mean the following:
(1) A "change in the ownership" of the Bank or Atlantic Coast
Federal Corporation (the "Company"), a "change in the effective
control" of the Bank or the Company, or a "change in the ownership of
a substantial portion of the assets" of the Bank or the Company, each
described below. Notwithstanding anything herein to the contrary, a
Second-Step Conversion shall not be deemed a Change in Control.
(2) A "change in ownership" occurs on the date that anyone
person, or more than one person acting as a group (as defined in
Treasury Regulation Section 1.409A-3(i)(5)(v)(B)), acquires ownership
of stock of the Bank or Company that, together with stock held by such
person or group, constitutes more than 50 percent of the total fair
market value or total voting power of the stock of such corporation.
(3) A "change in the effective control" of the Bank or Company
occurs on the date that either (A) anyone person, or more than one
person acting as a group (as defined in Treasury Regulation Section
1.409A-3(i)(5)(vi)(B)) acquires (or has acquired during the 12-month
period ending on the date of the most recent acquisition by such
person or persons) ownership of stock of the Bank or Company
possessing 30 percent or more of the total voting power of the stock
of the Bank or Company, or (B) a majority of the members of the Bank's
or Company's board of directors is replaced during any 12-month period
by directors whose appointment or election is not endorsed by a
majority of the members of the Bank's or Company's board of directors
prior to the date of the appointment or election, provided that this
subsection (B) is inapplicable where a majority shareholder of the
Bank or Company is another corporation.
(4) A "change in a substantial portion of the assets" of the Bank
or the Company occurs on the date that anyone person or more than one
person acting as a group (as defined in Treasury Regulation Section
1.409A-3(i)(5)(vii)(C)) acquires (or has acquired during the 12-month
period ending on the date of the most recent acquisition by such
person or persons) assets from the Bank or Company that have a total
gross fair market value equal to or more than 40 percent of the total
gross fair market value of (A) all of the assets of the Bank or
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Company, or (B) the value of the assets being disposed of, either of
which is determined without regard to any liabilities associated with
such assets. For all purposes hereunder, the definition of Change in
Control shall be construed to be consistent with the requirements of
Treasury Regulation Section 1.409A-3(i)(5), except to the extent that
such regulations are superseded by subsequent guidance.
(f) Company Stock shall mean the common stock of the Company.
(g) Disabled or Disability shall mean the Executive:
(1) 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 last for a continuous
period of not less than 12 months;
(2) by reason of any medically determinable physical or mental
impairment which can be expected to result in death, or last for a
continuous period of not less than 12 months, is receiving income
replacement benefits for a period of not less than three months under
an accident and health plan covering employees of the Bank; or
(3) is determined to be totally disabled by the Social Security
Administration.
(h) Fair Market Value shall mean the per share closing price of Company
Stock, as reported by the principal exchange or market over which the
shares of Company Stock are then listed or regularly traded.
(i) Involuntary Termination shall mean Separation from Service other than
for Cause without the Executive's express written consent and
voluntary resignation due to a material diminution of or interference
with the Executive's duties, responsibilities and benefits as Chief
Financial Officer of the Bank, including (without limitation) any of
the following actions unless consented to in writing by the Executive:
(i) a change in the principal workplace of the Executive to a location
outside of a 30 mile radius from the Executive's principal workplace
as of the date hereof; (ii) a material demotion of the Executive;
(iii) a material reduction in the number or seniority of other
personnel reporting to the Executive or a material reduction in the
frequency with which, or on the nature of the matters with respect to
which, such personnel are to report to the Executive, other than as
part of an institution-wide reduction in staff; (iv) a material
adverse change in the Executive's salary, perquisites, benefits,
contingent benefits or vacation, other than as part of an overall
program applied uniformly and with equitable effect to all members of
the senior management of the Bank; and (v) a material permanent
increase in the required hours of work or the workload of the
Executive; provided that the Executive has notified the Bank of the
existence of such a condition no later than 90 days after the initial
existence of such condition and the Bank has at least 30 days to cure
such condition. The term "Involuntary Termination" does not include
termination for Cause or termination of employment due to retirement,
death, Disability or suspension or temporary or permanent prohibition
from participation in the conduct of the Bank's affairs under Section
8 of the Federal Deposit Insurance Act.
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(j) Issue Price Issue Price shall mean the average selling price of a
share of Company Stock over the thirty (30) day period immediately
preceding the closing of a Second-Step Conversion minus $1.44 (the
closing price of Company Stock on December 11, 2009).
(k) Monthly Benefit shall mean an amount, as of a Benefit Determination
Date, equal to the vested Appreciation Benefit divided by 180. For
example, if on a Benefit Determination Date the Appreciation Benefit
is $450,000, then Executive's Monthly Benefit is $2,500 ($450,000 /
180).
(l) Normal Retirement Date shall mean January 1, 2014. The Executive may
change his Normal Retirement Date provided that he files an election
form with the Bank; provided, however, that: (1) the new election will
not take effect until at least 12 months after the date the new
election is filed; (2) the commencement of installment payments with
respect to which such election is made must be deferred for a period
of not less than five years from the date such payment would otherwise
have been made; and (3) the new election is filed at least 12 months
prior to the date of the first scheduled payment under the Plan.
(m) Prior Benefit Component shall mean a number of shares of Company Stock
equal to the Executive's benefit under the Agreement as of December
11, 2009, divided by the Fair Market Value of Company Stock on
December 11, 2009. For example, the Executive's prior benefit under
the terms of the Agreement on December 11, 2009 was $40,000 and the
Fair Market Value of Company Stock on December 11, 2009 was $2.00. The
Executive is deemed to have, for purposes of the Agreement, 20,000
shares of Company Stock ($40,000/$2.00) in the Prior Benefit
Component.
(n) Second-Step Conversion shall mean the conversion and reorganization of
Atlantic Coast Federal, MHC, the Company and the Bank from a mutual
holding company structure to a fully public ownership structure.
(o) Separation from Service shall mean the date of cessation of the
employment relationship (other than an approved leave of absence)
between the Executive and the Bank and its affiliates and subsidiaries
(including any successor in interest, if applicable), and shall be
construed to comply with Code Section 409A and Treasury Regulations
Section 1.409A-1(h).
(p) Specified Employee shall mean a key employee of the Bank within the
meaning of Code Section 4l6(i) without regard to paragraph 5 thereof,
determined in accordance with Code Section 409A and Treasury
Regulations Section 1.409A-1(i).
(q) Stock Award Component shall mean the number of shares of Company Stock
awarded to the Executive under the Atlantic Coast Federal Corporation
2005 Recognition and Retention Plan that are still held by the
Executive on December 11, 2009 times 25 percent. For example, on
December 11, 2009 the Executive had 100 shares awarded to him under
the Atlantic Coast Federal Corporation 2005 Recognition and Retention
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Plan. For purposes of calculating the Appreciation Benefit, only 25
shares would be counted.
(r) Stock Ownership Component shall mean the number of shares of Company
Stock directly or beneficially owned by the Executive (as that term is
defined in Rule 13d-3 under the Securities Exchange Act of 1934, as
amended, disregarding any beneficial ownership of stock options) as of
December 11, 2009 times 75 percent. For example, on December 11, 2009
the Executive directly and beneficially owns 100 shares. For purposes
of calculating the Appreciation Benefit, only 75 shares would be
counted.
2. Payment of Benefits.
(a) Normal Benefit. If Monthly Benefits have not already started due to
Separation from Service, Disability or Change in Control, the Bank
shall pay the Monthly Benefit to Executive starting on the first
business day of the month following the Normal Retirement Date and on
the first business day of each calendar month thereafter for a total
of 180 months (i.e., monthly payments for 15 years), regardless of
whether the Executive has experienced a Separation from Service;
provided however, that, if the Executive has experienced a Separation
from Service, then, to the extent necessary to avoid penalties under
Code Section 409A and the regulations thereunder, such payments shall
not commence until the first day of the seventh month following the
date of the Executive's Separation from Service if the Executive is a
Specified Employee on his date of Separation from Service.
(b) Death Benefit. If the Executive dies prior to the Normal Retirement
Date, Separation from Service, Disability or Change in Control, the
Bank shall pay to the beneficiary designated on Exhibit A, the
Appreciation Benefit in a lump sum on the first business day of the
month following the Executive's Normal Retirement Date and on the
first business day of each calendar month thereafter for a period of
180 months. If no beneficiary or beneficiaries have been designated,
or if all of the beneficiaries predecease the Executive, the Monthly
Benefit will be paid to the Executive's estate.
(c) Disability Benefit. If the Executive becomes Disabled prior to the
Normal Retirement Date, death, Separation from Service or Change in
Control, the Bank shall pay the Monthly Benefit to him commencing on
the first business day of the month following the date on which the
Executive becomes Disabled and on the first business day of each
calendar month thereafter for a period of 180 months.
(d) Separation from Service Benefit. In the event the Executive incurs a
Separation from Service due to an Involuntary Termination before the
Normal Retirement Date, death or Change in Control, the Bank shall pay
the Monthly Benefit to him commencing on the first business day of the
month following the Separation from Service and on the first business
day of each calendar month thereafter for a period of 180 months.
However, if the Executive is a Specified Employee on the date of his
Separation from Service, such payments shall not commence until the
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first day of the seventh month following the date of the Executive's
Separation from Service.
(e) Change in Control Benefit. If a Change in Control occurs before the
Normal Retirement Date, Separation from Service due to an Involuntary
Termination, Disability or death, then, within 30 calendar days after
such Change in Control, the Bank shall pay the Executive a lump sum
equal to the Appreciation Benefit.
(f) Funding of Monthly Benefit. The Bank reserves the right to purchase a
contract from a life insurance company with a minimum rating of AA
from Standard & Poors and Xxxxx'x in order to provide all or any
portion of the Monthly Benefit described herein. Upon the Bank's
purchase of such contract and distribution of the contract to
Executive or his Beneficiary, the Bank's liability to provide the
Monthly Benefit hereunder shall cease and such contract shall be the
sole source of funds for providing such Monthly Benefit.
(g) Changes in Company Stock. In the event of any change in Company Stock
through stock dividends, split-ups, stock splits or reverse stock
splits, recapitalizations, reclassifications, conversions or
otherwise, then the Board will make appropriate adjustment or
substitution in the aggregate value of the Prior Benefit Component,
the Stock Award Component and the Stock Ownership Component.
3. Required Provisions.
(a) The Bank may terminate Executive's employment at any time, but any
termination by the Bank other than Separation from Service for Cause
as defined above shall not prejudice Executive's right to compensation
or other benefits under this Agreement. Executive shall have no right
to receive compensation or other benefits for any period after
Separation from Service for Cause.
(b) If Executive is suspended from office and/or temporarily prohibited
from participating in the conduct of the Bank's affairs by a notice
served under Section 8(e)(3) [12 USC ss.1818(e)(3)] or 8(g)(l) [12 USC
ss.1818(g)(I)] of the Federal Deposit Insurance Act (the "FDI Act"),
the Bank's obligations under this Agreement shall be suspended as of
the date of service, unless stayed by appropriate proceedings. If the
charges in the notice are dismissed, the Bank may in its discretion
(i) pay Executive all or part of the compensation withheld while its
contract obligations were suspended and (ii) reinstate (in whole or in
part) any of its obligations which were suspended.
(c) If Executive is removed and/or permanently prohibited from
participating in the conduct of the Bank's affairs by an order issued
under Section 8(e)(4) [12 USC ss.1818(e)(4)] or 8(g)(l) [12 USC
ss.1818(g)(l)] of the FDI Act, all obligations of the Bank under this
Agreement shall terminate as of the effective date of the order, but
vested rights of the contracting parties shall not be affected.
(d) If the Bank is in default as defined in Section 3(x)(l) [12 USC
ss.1813(x)(1)] of the FDI Act, all obligations of the Bank under this
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Agreement shall terminate as of the date of default, but this
paragraph shall not affect any vested rights of the contracting
parties.
(e) All obligations under this Agreement shall be terminated, except to
the extent determined that continuation of this Agreement is necessary
for the continued operation of the Bank, (i) by the Director of the
Office of Thrift Supervision ("OTS") or his or her designee, at the
time the FDIC enters into an agreement to provide assistance to or on
behalf of the Bank under the authority contained in Section B(c) [12
USC ss.1823(c)] of the FDI Act; or (ii) by the Director or his or her
designee at the time the Director or his or her designee approves a
supervisory merger to resolve problems related to operation of the
Bank or when the Bank is determined by the Director to be in an unsafe
or unsound condition. Any rights of the parties that have already
vested, however, shall not be affected by such action.
(f) Notwithstanding anything herein contained to the contrary, any
payments to Executive by the Company, whether pursuant to this
Agreement or otherwise, are subject to and conditioned upon their
compliance with Section 18(k) of the FDI Act, 12 U.S.C. Section
1828(k), and the regulations promulgated thereunder in 12 C.F.R. Part
359.
4. Claims. In the event a claim for benefits is wholly or partially denied
under this Agreement, the Executive or any other person claiming benefits
under this Agreement (a "Claimant") shall be given notice in writing within
30 calendar days after the Administrator's receipt of the claim. For good
cause shown, the Administrator may extend this period for an additional 30
calendar days. Any denial must specifically set forth the reasons for the
denial and any additional information necessary to rescind such denial. The
Claimant shall have the right to seek a review of the denial by filing a
written request with the Administrator within 60 calendar days of receipt
of the denial. Such request may be supported by such documentation and
evidence deemed relevant by the Claimant. Following receipt of this
information, the Administrator shall make a final determination and notify
the Claimant in writing within 60 calendar days of the Administrator's
receipt of the request for review together with the specific reasons for
the decision.
5. General Assets and Funding. The amounts payable under this Agreement are
payable from the general assets of the Bank and no special fund or
arrangement is intended to be established hereby nor shall the Bank be
required to earmark, place in trust or otherwise segregate assets with
respect to this Agreement or any benefits hereunder. The Administrator
reserves the right to determine how the Bank will fund its obligation
undertaken by this Agreement. At its discretion, the Administrator may
establish one or more trusts, with such trustees as the Board may approve,
for the purpose of providing for the payment of such benefits. Such trust
or trusts may be irrevocable, but the assets thereof shall be subject to
the claims of the Bank's creditors. To the extent any benefits provided
under the Plan are actually paid from any such trust, the Bank shall have
no further obligation with respect thereto, but to the extent not so paid,
such benefits shall remain the obligation of, and shall be paid by, the
Bank. Under no circumstances shall a Participant serve as trustee or
co-trustee of any trust established by the Bank pursuant to this Plan.
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Should the Administrator elect to purchase assets relating to this
Agreement, in whole or in part, through the medium of life insurance or
annuities, or both, the Bank shall be the owner and beneficiary of each
such policy unless otherwise provided by this Agreement. Bank reserves the
absolute right, in its sole discretion, to terminate such life insurance or
annuities, as well as any other investment program, at any time, in whole
or in part unless otherwise provided by this Agreement. Such termination
shall in no way affect the Bank's obligation to pay the Executive the
benefits as provided in this Agreement. At no time shall the Executive be
deemed to have any right, title, or interest in or to any specific asset or
assets of the Bank, including but not by way of restriction, any insurance
or annuity contract and contracts or the proceeds therefrom.
6. Certain Reductions. Notwithstanding any other provision of this Agreement,
if the value and amounts of benefits under this Agreement, together with
any other amounts and the value of benefits received or to be received by
the Executive in connection with a Change in Control would cause any amount
to be nondeductible for federal income tax purposes by the Bank or the
consolidated group of which the Bank is a member pursuant to Section 280G
of the Code, then amounts and benefits under this Agreement shall be
reduced (not less than zero) to the extent necessary so as to maximize
amounts and the value of benefits to the Employee without causing any
amount to become nondeductible by Bank pursuant to or by reason of such
Section 280G. The Employee shall determine the allocation of such reduction
among payments and benefits to the Employee.
7. Beneficiary Designations. The Executive shall designate a beneficiary by
filing with Bank a written designation of beneficiary on a form
substantially similar to the form attached as Exhibit A. The Executive may
revoke or modify the designation at any time by filing a new designation.
However, designations will only be effective if signed by the Executive and
accepted by the Bank during the Executive's lifetime. The Executive's
beneficiary designation shall be deemed automatically revoked if the
beneficiary predeceases the Executive, or if the Executive names a spouse
as beneficiary and the marriage is subsequently dissolved. If the Executive
dies without a valid beneficiary designation, all payments shall be made to
the Executive's surviving spouse, if any, and if none, to the Executive's
surviving children and the descendants of any deceased child by right of
representation, and if no children or descendants survive, to the
Executive's estate.
If a benefit is payable to a minor, to a person declared incompetent, or to
a person incapable of handling the disposition of his or her property, the
Bank may pay such benefit to the guardian, legal representative or person
having the care or custody of such minor, incompetent person or incapable
person, or to a custodian selected by the Bank under the Georgia Uniform
Transfers to Minors Act for the benefit of such minor. The Bank may require
proof of incompetency, minority or guardianship as it may deem appropriate
prior to distribution of the benefit. Such distribution shall completely
discharge the Bank from all liability with respect to such benefit.
8. Amendment and Termination.
(a) Amendment. This Agreement may be amended at any time by a written
instrument signed by the Bank and the Executive.
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(b) Termination. The Bank may at any time partially or completely
terminate the Agreement, if, in its judgment, the tax, accounting, or
other effects of the continuance of the Agreement, or potential
payments thereunder, would not be in the best interests of the Bank.
(1) Partial Termination. In the event of a partial termination,
the Agreement shall continue to operate and be effective with regard
to benefits accrued prior to the effective date of such partial
termination, but no further benefits shall accrue after the date of
such partial termination.
(2) Complete Termination. Subject to the requirements of Code
Section 409A, in the event of complete termination, the Agreement
shall cease to operate and the Bank shall pay the Executive his
Account as if he had terminated service as of the effective date of
the complete termination. Such complete termination of the Agreement
shall occur only under the following circumstances and conditions.
(A) The Bank may terminate the Agreement within 12 months of
a corporate dissolution taxed under Code section 331, or with
approval of a bankruptcy court pursuant to 11 U.S.C.
ss.503(b)(1)(A), provided that the amounts accrued under the
Agreement are included in the Executive'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 payment is administratively
practicable.
(B) The Bank may terminate the Agreement within the 30 days
preceding a Change in Control (but not following a Change in
Control), provided that the Agreement shall only be treated as
terminated if all substantially similar arrangements sponsored by
the Bank are terminated so that the Executive and all
participants under substantially similar arrangements are
required to receive all amounts of compensation deferred under
the terminated arrangements within 12 months of the date of the
termination of the arrangements.
(C) The Bank may terminate the Agreement provided that (i)
all arrangements sponsored by the Bank that would be aggregated
with this Agreement under Treasury Regulations section
1.409A-l(c) if any individual; covered by this Agreement was also
covered by any of those other arrangements are also terminated;
(ii) no payments other than payments that would be payable under
the terms of the arrangement if the termination had not occurred
are made within 12 months of the termination of the arrangement;
(iii) all payments are made within 24 months of the termination
of the arrangements; and (iv) the Bank does not adopt a new
arrangement that would be aggregated with any terminated
arrangement under Treasury Regulations section 1.409A-1(c) if the
same individual participated in both arrangements, at any time
within three years following the date of termination of the
arrangement.
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(D) The Bank may terminate the Agreement pursuant to such
other terms and conditions as the Internal Revenue Service may
permit from time to time.
9. Miscellaneous.
(a) Withholding. To the extent amounts payable under this Agreement are
determined by the Administrator, in good faith, to be subject to
federal, state or local income tax, the Bank may withhold from each
such payment an amount necessary to meet the Bank's obligation to
withhold amounts under the applicable federal, state or local law.
(b) Governing Law. This Agreement shall be construed under the laws of the
State of Georgia, except to the extent that federal law applies.
(c) Future Employment. This Agreement shall not be construed as providing
the Executive the right to be continued in the employ of the Bank or
its affiliates or subsidiaries.
(d) No Pledge or Attachment. No benefit which is or may become payable
under this Agreement shall be subject to any anticipation, alienation,
sale, transfer, pledge, encumbrance or hypothecation or subject to any
attachment, levy or similar process and any attempt to effect any such
action shall be null and void.
(e) Successors and Assigns. This Agreement and the obligations of the Bank
herein shall be binding upon the successors and assigns of the Bank.
This Agreement may not be assigned by the Bank without the prior
written consent of the Executive or any other beneficiary receiving
payments under this Agreement.
(f) Participation in Plans. Nothing contained in this Agreement shall be
construed to alter, abridge, or in any manner affect the rights and
privileges of the Executive to participate in and be covered by any
pension, profit sharing, group insurance, bonus, incentive, or other
employee plans which the Bank or its affiliates or subsidiaries may
now or hereafter have.
(g) Notices. Any notices under this Agreement shall be provided to the
Executive at his last address on file with the Administrator and shall
be provided to the Administrator in care of President, Atlantic Coast
Federal, 000 Xxxxxx Xxxxxx, Xxxxxxxx, Xxxxxxx 00000.
(h) Headings. Headings of sections herein are inserted for convenience of
reference. They are not to be considered in the construction of this
Agreement.
(i) Savings Clause. If any provision of this Agreement shall be for any
reason invalid or unenforceable, the remaining provisions shall be
carried into effect.
(j) Entire Agreement. This Agreement constitutes the entire agreement
between the Bank and the Executive as to the subject matter hereof. No
rights are granted to the Executive be virtue of this Agreement other
than as specifically set forth herein.
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(k) Suicide. No benefits shall be payable if the Executive commits suicide
within two (2) years after the date of this Agreement, or if the
Executive has made any material misstatement of fact on any
application for life insurance purchased by the Bank.
(l) Top Hat Agreement. For purposes of the Internal Revenue Code, the Bank
intends this Agreement to be an unfunded, unsecured promise to pay on
the part of the Bank. For purposes of ERISA, the Bank intends this
Agreement to be an unfunded obligation solely for the benefit of the
Executive for the purpose of qualifying this Agreement for the "top
hat" exception under sections 201(2), 301 (a)(3) and 401 (a) of ERISA.
10. Arbitration. Any dispute or controversy arising under or in connection with
this Agreement shall be settled exclusively by binding arbitration, as an
alternative to civil litigation and without any trial by jury to resolve
such claims, conducted by a panel of three arbitrators sitting in a
location selected by Executive within 50 miles from the main office of the
Bank, in accordance with the rules of the American Arbitration
Association's National Rules for the Resolution of Employment Disputes
("National Rules") then in effect. One arbitrator shall be selected by
Executive, one arbitrator shall be selected by the Bank and the third
arbitrator shall be selected by the arbitrators selected by the parties. If
the arbitrators are unable to agree within 15 days upon a third arbitrator,
the arbitrator shall be appointed for them from a panel of arbitrators
selected in accordance with the National Rules. Judgment may be entered on
the arbitrator's award in any court having jurisdiction.
The parties have caused this Agreement to be executed and delivered as of
the date first above written.
ATLANTIC COAST BANK
May 12, 2010 By: /s/ Xxxxxx X. Xxxxxxx, Xx.
----------------------------- -----------------------------------
Date Xxxxxx X. Xxxxxxx, Xx.
EXECUTIVE
May 12, 2010 /s/ Xxxxxx X. Xxxxxx, Xx.
----------------------------- -----------------------------------
Date Xxxxxx X. Xxxxxx, Xx.
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