EXHIBIT 10.1
ATLANTIC COAST BANK
AMENDED AND RESTATED
SPLIT DOLLAR LIFE INSURANCE AGREEMENT
This Split Dollar Agreement ("Agreement") amends and restates and
supercedes in its entirety the split dollar agreement executed by Atlantic Coast
Bank ("Bank") and Xxxxxx X. Xxxxxxx, Xx. ("Insured") on September 1, 2006 with
respect to certain life insurance policies (the "Policy" or "Policies") issued
by a duly licensed life insurance company (the "Insurer").
This Agreement is entered into effective October 1, 2006 ("Effective
Date") by and between the Bank, as the owner of the life insurance Policy or
Policies set forth on Schedule A hereto and the Insured, who is the Chief
Executive Officer of the Bank. The respective rights and duties of the Bank and
Insured in the Policy are set forth herein and on Schedule A attached hereto.
This Agreement is intended to be a non-equity, endorsement split dollar
agreement, such that it is not treated as a impermissible personal loan from the
Bank to the Insured under Section 402 of the Xxxxxxxx-Xxxxx Act of 2002.
1. POLICY TITLE AND OWNERSHIP; ENDORSEMENT.
(a) Policy title and ownership shall reside in the Bank for its use
and for the use of the Insured, all in accordance with this Agreement. The Bank
has purchased each Policy on a single premium basis. Such Policy shall be
treated as "bank owned life insurance" ("BOLI") and is held subject to the
provisions and limitations set forth in the Interagency Statement on the
Purchase and Risk Management of Life Insurance (OCC 2004-56). The Bank may, to
the extent of its interest, exercise the right to borrow or withdraw on the
Policy cash values. Where the Bank and the Insured (or assignee, with the
consent of the Insured) mutually agree to exercise the right to increase the
coverage under the Policy, then, in such event, the rights, duties and benefits
of the parties to such increased coverage shall continue to be subject to the
terms of this Agreement.
(b) An endorsement on the form provided by the Insurer must be
completed and filed with the Insurer for each Policy identified on Schedule A in
order to implement the rights and obligations set forth in this Agreement. The
parties agree that the Policy shall be subject to the terms and conditions of
this Agreement and of the endorsement filed with the Insurer.
(c) The Bank agrees that, except as otherwise provided herein, it
shall not sell, assign, transfer, surrender or cancel the policy, or change the
beneficiary designation without the express written consent of the Employee.
2. BENEFICIARY DESIGNATION RIGHTS. The Insured (or assignee) shall
have the right and power to designate a beneficiary or beneficiaries to receive
the Insured's share of the Policy proceeds payable upon the death of the
Insured, subject to any right or interest the Bank may have in such proceeds, as
provided in this Agreement. The Bank shall not terminate, alter or amend the
Insured's beneficiary designations without the written consent of the Insured.
The Bank shall be the beneficiary of any proceeds remaining under the Policy
after the payment required under this Agreement has been made to the Insured's
designated beneficiary.
3. PREMIUM PAYMENT. The Bank shall pay an amount equal to the
planned premiums and any other premium payments that might become necessary to
keep the Policy in force. Notwithstanding the foregoing, the Bank shall have the
absolute and sole right to terminate and surrender any or all of the Policies
that are subject to this Agreement.
4. TAXABLE BENEFIT. Annually, the Insured will recognize a taxable
benefit equal to the assumed cost of insurance required by the Internal Revenue
Service ("IRS"), as determined from time to time. The Bank (or its
administrator) will timely report to the Insured the amount of such imputed
income each year on IRS Form W-2 or its equivalent. The Bank and the Insured
intend that this Agreement will be subject to taxation under the "economic
benefit regime" set forth in Treasury Regulations section 1.61-22(d), such that
the Insured shall have taxable income equal to the annual cost of the current
life insurance coverage provided under the Policy.
5. DIVISION OF DEATH PROCEEDS. Upon the death of the Insured, the
Bank shall cooperate with the Insured's designated beneficiary to take whatever
action is necessary to collect the death benefit provided under the Policy.
Subject to Sections 6 and 9 below, the division of the death proceeds of the
Policy shall be as follows:
(a) If the Insured is employed by the Bank at the time of his death
or the Insured has retired from employment with the Bank after completion of not
less than ten (10) years of service with the Bank measured from the Effective
Date, then the Insured's beneficiary(ies) designated in accordance with Section
2 shall be entitled to payment from the Policy proceeds directly from the
Insurerof an amount equal to three hundred percent (300%) of:
(i) if the Insured is employed by the Bank at the time of
death, the Insured's highest base annual salary (not including bonus, equity
compensation, or any other forms of compensation) in effect at the Bank at any
time during the last ten calendar years prior to the date of death of the
Insured; or
(ii) if the Insured's death follows the Insured's retirement
from the Bank after completion of not less than ten (10) years of service with
the Bank measured from the Effective Date, the Insured's highest base annual
salary (not including bonus, equity compensation or any other forms of
compensation) paid by the Bank to the Insured during the last ten calendar years
prior to the Insured's retirement date.
Notwithstanding the foregoing, the maximum payment due to the Insured's
beneficiary(ies) from the Insurer under this Agreement and the Policies shall
not exceed the amount set forth on Schedule A. To the extent possible, an equal
amount of each Policy's proceeds shall be payable to the Insured's
beneficiary(ies) not to exceed such Policy proceeds. Any amount payable in
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accordance with this subsection (a) in excess of a Policy's proceeds shall
thereafter be paid by any remaining Policy proceeds pro rata.
(b) Coverage under this Agreement for the Insured who terminates
employment with the Bank (for reasons other than death) prior to completion of
less than ten (10) years of service with the Bank measured from the Effective
Date (and prior to the occurrence of a Change in Control, as defined below) will
cease on his last day of employment with the Bank.
(c) The Bank shall be entitled to the remainder of such Policy
proceeds.
6. OWNERSHIP OF THE CASH SURRENDER VALUE OF THE POLICIES.
(a) The Bank shall at all times be entitled to one hundred percent
(100%) of the Policy's cash value, as that term is defined in the Policy
contract, less any policy loans and unpaid interest or cash withdrawals
previously incurred by the Bank. Such cash value shall be determined as of the
date of surrender or death, as the case may be.
(b) The Bank may pledge or assign the Policy, subject to the terms
and conditions of this Agreement, for the sole purposes of securing a loan from
the Insurer. The amount of such loan, including accumulated interest thereon,
shall not exceed the lesser or (i) the amount of the premiums on the Policy paid
by the Bank, or (ii) the cash surrender value of the Policy (as defined in the
Policy). Interest charges on such loan shall be paid by the Bank.
7. CHANGE IN CONTROL OF BANK.
(a) If a Change in Control of the Bank shall occur prior to the
Insured's termination of employment or retirement, then the death benefit
coverage set forth in Section 5 shall remain in effect until the Insured's
death, unless this Agreement is otherwise terminated pursuant to its terms prior
to such time.
(b) "Change in Control" shall mean: (i) a merger, consolidation,
reorganization, liquidation or similar extraordinary transaction involving the
Bank whereby the Bank is not the surviving entity or an on-going entity; (ii)
the ownership, holding or power to vote more than 25% of the Bank's (or its
holding company's) outstanding voting stock by any person other than those
persons who are stockholders on the effective date of this Agreement; (iii) the
control of the election of a majority of the Bank's (or its holding company's)
directors or trustees, if, during any three-year period, the composition of the
Board of the Bank (or its holding company) shall change, such that the members
of the Board at the beginning of such period shall no longer constitute a
majority of such Board at the end of such three-year period (provided that any
member of the Board appointed or nominated for election as a member of the Board
by a vote of at least a majority of the members then in office shall be
considered to have been members as of the beginning of such three-year period);
(iv) the exercise of a controlling influence over the management or policies of
the Bank by any person or persons acting as a group within the meaning of
Section 13(d) of the Securities Exchanges Act of 1934; or (v) a plan of
reorganization, merger, consolidation, sale of all or substantially all the
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assets of the Bank (or its holding company) or similar transaction in which the
Bank (or its holding company) is not the surviving institution occurs, excluding
any transaction in which Atlantic Coast Federal, MHC, the majority stockholder
of the Bank's holding company, undergoes a full stock conversion. The term
"person" means an individual other than the Insured and shall also include a
corporation, partnership, trust, association, joint venture, pool, syndicate,
sole proprietorship, unincorporated organization or any other form of entity not
specifically listed herein.
8. RIGHTS OF INSURED OR ASSIGNEES. The Insured may not, without the
written consent of the Bank, assign to any individual, trust or other
organization, any right, title or interest in the subject Policy nor any rights,
options, privileges or duties created under this Agreement.
9. TERMINATION OF AGREEMENT.
(a) This Agreement shall terminate upon the occurrence of any one of
the following:
(1) The Insured shall be discharged from employment with the
Bank for cause, as defined in his employment agreement, or, if there is no
employment agreement or the employment agreement does not have a definition,
"cause" shall mean any of the following that results in an adverse effect on the
Bank: the Insured's personal dishonesty, incompetence, willful misconduct,
breach of fiduciary duty involving personal profit, intentional failure to
perform stated duties, willful violation of any law, rule or regulation (other
than traffic violations or similar offenses) or final cease-and-desist order; or
(2) Surrender, lapse or other termination of the Policy by
the Bank. The Policy (and all rights of the Insured and his beneficiary(ies))
will also terminate if any regulatory agency requires the Bank to sever its
relationship with the Insured, if the Bank is subjected to banking regulatory
restrictions limiting its ability to pay such compensation to the Insured, upon
the occurrence of the bankruptcy, insolvency, receivership or dissolution of the
Bank, or as may otherwise be determined by the Bank in good faith.
(b) Upon such termination, the Insured (or assignee) shall have a
sixty (60) day option to receive from the Bank an absolute assignment of the
Policy in consideration of a cash payment to the Bank, whereupon this Agreement
shall terminate. Such cash payment shall equal the cash value of the Policy on
the date of such assignment. The Insured expressly agrees that this Agreement
shall constitute sufficient written notice to the Insured of the Insured's
option to receive an absolute assignment of the policy as set forth herein.
(c) Except as noted in subsections (a) and (b) above, this Agreement
shall terminate upon distribution of the death benefit proceeds in accordance
with Section 5.
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10. AMENDMENT AND REVOCATION. The Insured and the Bank agree that,
during the Insured's lifetime, this Agreement may be amended or revoked at any
time or times, in whole or in part, by the mutual written consent of the Insured
and the Bank.
11. ERISA PROVISIONS.
To the extent this Agreement is treated as a "welfare benefit plan"
within the meaning of Section 3(1) of the Employee Retirement Income Security
Act of 1974, as amended ("ERISA"), the following provisions shall apply.
(a) The Bank shall be the named fiduciary for purposes of ERISA
under this Agreement. Accordingly, the Bank shall have authority to control and
manage the operation and administration of this Agreement, including the right
to interpret any provision of this Agreement, and such interpretation shall be
binding on all parties.
(b) All premiums paid with respect to the Policy shall be remitted
to the Insurer when due in accordance with the Agreement.
(c) Benefits under this Agreement shall be paid directly by the
Insurer, with those benefits in turn being based on the payment of premiums as
provided in this Agreement.
(d) For purposes of handling claims with respect to this Agreement,
the "Claims Reviewer" shall be the Bank, unless another person or organizational
unit is designated by the Bank as Claims Reviewer.
(e) An initial claim for benefits under this Agreement must be made
by the Insured or his beneficiary in accordance with the terms of the Agreement
or policy through which the benefits are provided. Not later than 90 days after
receipt of such claim, the Claims Reviewer shall provide its written decision on
the claim to the claimant, unless special circumstances require the extension of
such 90-day period. If such extension is necessary, the Claims Reviewer shall
provide the Insured or the Insured's beneficiary with written notification of
such extension before the expiration of the initial 90-day period.
(f) In the event the Claims Reviewer denies the claim of an Insured
or the Insured's beneficiary in whole or in part, the Claims Reviewer's written
notification shall specify, in a manner calculated to be understood by the
claimant, the reason for the denial; a description of any additional material or
information necessary for the claimant to perfect the claim; an explanation as
to why such information or material is necessary; and an explanation of the
applicable claims procedure.
(g) Should the claimant be dissatisfied with the Claims Reviewer's
disposition of the claim, the claimant may have a full and fair review of the
denied claim by the Bank upon written request therefore submitted by the
claimant or the claimant's duly authorized representative and received by the
Bank within 60 days after the claimant receives written notification that the
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claim has been denied. In connection with such appeal, the claimant or the
claimant's duly authorized representative shall be entitled to review pertinent
documents and submit the claimant's views as to the issues in writing. The Bank
shall act to deny or accept the appealed claim within 60 days after receipt of
the claimant's written request for review unless special circumstances require
the extension of such 60-day period. If such extension is necessary, the Bank
shall provide the claimant with written notification of such extension before
the expiration of such initial 60-day period. In all events, the Bank shall act
to deny or accept the claim within 120 days of the receipt of the claimant's
written request for review. The action of the Bank shall be in the form of a
written notice to the claimant and its contents shall include all of the
requirements for action on the original claim.
(h) In no event may a claimant commence legal action for benefits
the claimant believes are due to the claimant until the claimant has exhausted
all of the remedies and procedures set forth in this Section and under ERISA.
12. MISCELLANEOUS.
(a) BINDING AGREEMENT. The Insured and the Bank agree that this
Agreement shall be binding on their heirs, successors, personal representatives
and assigns.
(b) INSURANCE COMPANY NOT A PARTY TO THIS AGREEMENT. The Insurer
shall not be deemed a party to this Agreement, but will respect the rights of
the Bank and the Insured hereunder by receiving an executed copy of this
Agreement. Payment or other performance in accordance with the Policy provisions
shall fully discharge the Insurer from any and all liability.
(c) SEVERABILITY. If a provision of this Agreement is held to be
invalid or unenforceable, the remaining provisions shall nonetheless be
enforceable according to their terms.
(d) GOVERNING LAW. This Agreement shall be governed by the laws of
the State of Georgia, to the extent not pre-empted by federal law, without
regard to conflict of law provisions.
(e) NOTICES. Any notice, consent or demand required or permitted to
be given hereunder shall be in writing and shall be signed by the party giving
such notice, consent or demand. If such notice, consent or demand is mailed to a
party hereto, it shall be sent by United States certified mail, FedEx (or other
reputable overnight delivery service) to such party's last known address as
shown on the Bank's records. The date of the mailing shall be deemed to be the
date of the notice.
[Signatures on next page]
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IN WITNESS WHEREOF, the Bank and the Insured have executed this
Agreement as of the date first set forth above.
ATLANTIC COAST BANK
11/08/06 By: /s/ Xxxxxxx X. Xxxxx, Xx.
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Date Xxxxxxx X. Xxxxx, Xx.
Vice-Chairman/BOD
Date
INSURED
11/08/06 /s/ Xxxxxx X. Xxxxxxx, Xx.
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Date Xxxxxx X. Xxxxxxx, Xx.
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