Exhibit 10.4
ATLANTIC COAST BANK
AMENDED AND RESTATED
SUPPLEMENTAL EXECUTIVE RETIREMENT
PLAN
This Amended and Restated Atlantic Coast Bank
Supplemental Executive Retirement Plan (the “Plan”) was
originally established on November 1, 2002, and was amended and
restated effective October 1, 2004, and most recently is amended
and restated by this document, effective January 1, 2005, in order
to comply with Section 409A of the Internal Revenue Code of 1986,
as amended (the “Code”) and the 2007 final regulations
issued thereunder.
The purpose of the Plan is to provide
supplemental retirement benefits to those members of senior
management who have contributed significantly to the success and
growth of Atlantic Coast Bank (the “Bank”) and its
holding company, Atlantic Coast Federal Corporation (the
“Company”) (and any successors thereto), and the
Bank’s predecessor, Atlantic Coast Federal Credit Union,
whose services are vital to its continued growth and success in the
future and who are to be encouraged to remain a valuable part of
our future success.
ARTICLE I
ELIGIBILITY AND
VESTING
1.1
Eligibility . Each individual who
is selected by the Plan Administrator shall be eligible to
participate in the Plan. Such individuals are
“Participants.” The Plan is intended to only
be available to a select group of management or highly compensated
employees, and as such, is intended to be a “top hat”
plan that for purposes of the Employee Retirement Income Security
Act of 1974, as amended.
1.2
Vesting . Participants shall be
100% vested in their benefits under this Plan upon completion of
one hundred and twenty (120) full months of service as a full-time
employee of the Bank on or after November 1, 2002, whether
continuous or otherwise. Except as provided in Section
2.4(b) or unless the Plan Administrator accelerates vesting, which
is entirely in the sole discretion of the Plan Administrator, until
completing such service requirement, Participants are 0% vested in
benefits under the Plan. Notwithstanding the preceding
provisions, any Participant who 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, shall be ineligible to participate and shall forfeit any
benefits under this Plan.
ARTICLE II
BENEFITS
(a) Upon
Separation from Service (as defined below) at or after age
sixty-five (65) (“Normal Retirement Age”), the Bank
shall pay the Participant a “Normal Retirement Benefit”
of twenty thousand dollars ($20,000) per year, payable annually,
commencing on January 1 st of
the year following Separation from Service and on each anniversary
thereafter for a period of twenty (20) years (the “Benefit
Period”). Notwithstanding the preceding sentence,
to the extent a Participant is a “Specified Employee”
(as defined below), solely to the extent necessary to avoid
penalties under Code Section 409A, payment shall be delayed until
the first day of the seventh month following the
Participant’s Separation from Service.
(b) “Separation
from Service” means the Participant’s retirement or
termination of employment with the Bank. No Separation
from Service shall be deemed to occur due to military leave, sick
leave or other bona fide leave of absence if the period of such
leave does not exceed six (6) months or, if longer, so long as the
Participant’s right to reemployment is provided by law or
contract. If the leave exceeds six (6) months and the
Participant’s right to reemployment is not provided by law or
by contract, then the Participant shall have a Separation from
Service on the first date immediately following such six-month
period. Whether a termination of employment has occurred is
determined based on whether the facts and circumstances indicate
that the Bank and the Participant reasonably anticipated that no
further services would be performed after a certain date or that
the level of bona fide services the employee would perform after
such date (whether as an employee or as an independent contractor)
would permanently decrease to no more than 20% of the average level
of bona fide services performed over the immediately preceding 36
months (or such lesser period of time in which the Participant has
provided services for the Bank). The determination of
whether a Participant has a Separation from Service shall be made
by applying the presumptions set forth in the Treasury Regulations
under Code Section 409A.
(c) “Specified
Employee” means an employee of the Bank or Company who is
also a “key employee” as such term is defined in Code
Section 416(i), without regard to Paragraph 5 thereof, but only if
the Bank or the Company (or any successors) is a publicly traded
company.
(a) Upon
Separation from Service on or after age fifty-five (55)
(“Early Retirement Age”), but before Normal Retirement
Age, each Participant shall receive an “Early Retirement
Benefit” instead of a Normal Retirement
Benefit. In order to determine the amount of the Early
Retirement Benefit, for each year that the Participant’s
Early Retirement Age is less than the Normal Retirement Age, the
Normal Retirement Benefit shall be reduced by one thousand dollars
($1,000) per year. For purposes of calculating the Early
Retirement Benefit, the Participant’s age shall be determined
at the end of the calendar year preceding the year in which Early
Retirement Benefits will begin. For example, a
Participant who Separates from Service at age sixty (60) would
receive fifteen thousand dollars ($15,000) per year for twenty (20)
years commencing January 1 st in
the year following the calendar year in which the
Participant’s Separation from Service occurred.
(b) Early
Retirement Benefits shall be payable annually, commencing on
January 1 st
of the year following the
Participant’s Separation from Service and on each anniversary
thereafter for a period of twenty (20) years (the “Benefit
Period”). Notwithstanding the preceding sentence,
to the extent a Participant is a Specified Employee, solely to the
extent necessary to avoid penalties under Code Section 409A,
payment shall be delayed until the first day of the seventh month
following the Participant’s Separation from
Service.
2.3
Death During Benefit Period . If
the Participant dies within the Normal Retirement or Early
Retirement Benefit Period, the remaining annual payments due the
Participant shall continue be paid to the Participant’s
“Beneficiary” (as defined below) in the same time and
form as payments were being made to the Participant.
“Beneficiary” means the person(s)
designated by the Participant on the form set forth at Appendix A
to receive any death benefits hereunder. If the
Participant has not designated a Beneficiary, the
Participant’s spouse shall be the Beneficiary. In the absence
of any surviving Beneficiary or spouse, the benefits shall be paid
to the Participant’s estate.
2.4
Death Before Separation from Service
(a)
Death After Vesting . In the event the
Participant is fully vested in his or her benefits hereunder and
dies prior to Separation from Service but before beginning to
receive an Early Retirement Benefit or Normal Retirement Benefit,
the Bank agrees to pay to the Participant’s Beneficiary the
Normal Retirement Benefit that the