FORM OF
ATHENS FEDERAL COMMUNITY BANK
SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN
Effective January 1,
2010
Athens Federal Community Bank
Supplemental Executive Retirement Plan
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Introduction
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1
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Definitions
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1
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Eligibility and
Participation
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3
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Benefits
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3
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Accounts
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5
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Supplemental
Benefit Payments
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5
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Claims
Procedures
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6
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Amendment and
Termination
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7
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General
Provisions
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7
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Section 1.01 Purpose, Design and
Intent .
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(a)
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The
purpose of the Athens Federal Community Bank Supplemental Executive
Retirement Plan (the “Plan”) is to assist Athens
Federal Community Bank (the “Bank”) in retaining the
services of key employees until their retirement, to induce such
employees to use their best efforts to enhance the business of the
Bank and its affiliates, and to provide certain supplemental
retirement benefits to such employees, which cannot otherwise be
provided under certain tax-qualified retirement plans.
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(b)
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The
Plan, in relevant part, is intended to constitute an unfunded
“excess benefit plan” as defined in Section 3(36)
of the Employee Retirement Income Security Act of 1974, as amended.
In this respect, the Plan is specifically designed to provide
certain key employees with retirement benefits that would have been
provided under various tax-qualified retirement plans sponsored by
the Bank but for the applicable limitations placed on benefits and
contributions under such plans by various provisions of the
Internal Revenue Code of 1986, as amended.
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Section 2.01 Definitions
. In this Plan, whenever
the context so indicates, the singular or the plural number and the
masculine or feminine gender shall be deemed to include the other,
the terms “he,” “his,” and
“him,” shall refer to a Participant or a beneficiary of
a Participant, as the case may be, and, except as otherwise
provided, or unless the context otherwise requires, the capitalized
terms shall have the following meanings:
(a)
“401(k) Plan” means [plan]
.
(b)
“Applicable Limitations” means one or
more of the following, as applicable:
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(i)
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the
maximum limitations on annual additions to a tax-qualified defined
contribution plan under Section 415(c) of the Code; and
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(ii)
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the
maximum limitation on the annual amount of compensation that may,
under Section 401(a)(17) of the Code, be taken into account in
determining contributions to and benefits under tax-qualified
plans; and
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(iii)
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the
maximum limitations, under Section 401(k), 401(m), or 402(g)
of the Code, on pre-tax contributions that may be made to a
qualified defined contribution plan.
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(c)
“Bank” means Athens Federal Community
Bank and its successors.
(d)
“Board of Directors” means the Board of
Directors of the Bank.
(e)
“Change in Control” means a change in
control as defined in Section 409A of the Code and rules,
regulations, and guidance of general application thereunder issued
by the Department of the Treasury, including:
1
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(i)
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Change in ownership
: a change in ownership
of the Corporation occurs on the date any one person or group
accumulates ownership of Corporation stock constituting more than
50% of the total fair market value or total voting power of
Corporation stock; or
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(ii)
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Change in effective
control :
(x) any one person or more than one person acting as a group
acquires within a 12-month period ownership of Corporation stock
possessing 30% or more of the total voting power of Corporation
stock, or (y) a majority of the Corporation’s board of
directors is replaced during any 12-month period by directors whose
appointment or election is not endorsed in advance by a majority of
the Corporation’s board of directors; or
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(iii)
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Change in ownership of a substantial
portion of assets : a change in ownership of a
substantial portion of the Corporation’s assets occurs if in
a 12-month period any one person or more than one person acting as
a group acquires from the Corporation assets having a total gross
fair market value equal to or exceeding 40% of the total gross fair
market value of all of the Corporation’s assets immediately
before the acquisition or acquisitions. For this purpose, gross
fair market value means the value of the Corporation’s
assets, or the value of the assets being disposed of, determined
without regard to any liabilities associated with the
assets.
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(f)
“Code” means the Internal Revenue Code of
1986, as amended.
(g)
“Committee” means the person(s)
designated by the Board of Directors, pursuant to Section 9.02
of the Plan, to administer the Plan.
(h)
“Common Stock” means the common stock of
the Corporation.
(i)
“Corporation” means Athens Bancshares
Corporation and its successors.
(j)
“Eligible Individual” means any Employee
who participates in the ESOP or 401(k) Plan, as the case may be,
and whom the Board of Directors determines is one of a
“select group of management or highly compensated
employees,” as such phrase is used for purposes of
Sections 101, 201, and 301 of ERISA.
(k)
“Employee” means any person employed by
the Bank or an Affiliate.
(l)
“Employer” means the Bank or Affiliate
thereof that employs the Employee.
(m)
“ERISA” means the Employee Retirement
Income Security Act of 1974, as amended.
(n)
“ESOP” means the Athens Federal Community
Bank Employee Stock Ownership Plan, as amended from time to
time.
(o)
“ESOP Acquisition Loan” means a loan or
other extension of credit incurred by the trustee of the ESOP in
connection with the purchase of Common Stock on behalf of the
ESOP.
(p)
“ESOP Valuation Date” means any day as of
which the investment experience of the trust fund of the ESOP is
determined and individuals’ accounts under the ESOP are
adjusted accordingly.
(q)
“Effective Date” means January 1,
2010.
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(r)
“Participant” means an Eligible Employee
who is entitled to benefits under the Plan.
(s)
“Plan” means this Athens Federal
Community Bank Supplemental Executive Retirement Plan, as amended
from time to time.
(t)
“Separation from Service” means a
termination of a Participant’s services (whether as an
employee or as an independent contractor) to the Bank. Whether a
Separation from Service has occurred shall be determined in
accordance with the requirements of Section 409A of the Code
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 Participant would performed after a certain date
or (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.
(u)
“Supplemental ESOP Account” means an
account established by an Employer, pursuant to Section 5.01 of the
Plan, with respect to a Participant’s Supplemental ESOP
Benefit.
(v)
“Supplemental ESOP Benefit” means the
benefit credited to a Participant pursuant to Section 4.01 of the
Plan.
(w)
“Supplemental Savings Account” means an
account established by an Employer, pursuant to Section 5.03 of the
Plan, with respect to a Participant’s Supplemental Savings
Benefit.
(x)
“Supplemental Savings Benefit” means the
benefit credited to a Participant pursuant to Section 4.03 of the
Plan.
(y)
“Supplemental Stock Ownership Account”
means an account established by an Employer, pursuant to
Section 5.02 of the Plan, with respect to a
Participant’s Supplemental Stock Ownership
Benefit.
(z)
“Supplemental Stock Ownership Benefit”
means the benefit credited to a Participant pursuant to
Section 4.02 of the Plan.
ARTICLE III
ELIGIBILITY AND PARTICIPATION
Section 3.01 Eligibility and
Participation .
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(a)
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Each Eligible Employee may
participate in the Plan. An Eligible Employee shall become a
Participant in the Plan upon designation as such by the Board of
Directors. An Eligible Employee whom the Board of Directors
designates as a Participant in the Plan shall commence
participation as of the date established by the Board of Directors.
The Board of Directors shall establish an Eligible Employee’s
date of participation at the same time it designates the Eligible
Employee as a Participant in the Plan.
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(b)
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The
Board of Directors may, at any time, designate an Eligible Employee
as a Participant for any or all supplemental benefits provided for
under Article IV of the Plan.
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3
Section 4.01 Supplemental ESOP
Benefit .
As of the last
day of each plan year of the ESOP, the Employer shall credit the
Participant’s Supplemental ESOP Account with a Supplemental
ESOP Benefit equal to the excess of (a) over (b),
where:
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(a)
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Equals the annual contributions made
by the Employer and/or the number of shares of Common Stock
released for allocation in connection with the repayment of an ESOP
Acquisition Loan that would otherwise be allocated to the accounts
of the Participant under the ESOP for the applicable plan year, if
the provisions of the ESOP were administered without regard to any
of the Applicable Limitations; and
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(b)
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Equals the annual contributions made
by the Employer and/or the number of shares of common stock
released for allocation in connection with the repayment of an ESOP
Acquisition Loan that are actually allocated to the accounts of the
Participant under the provisions of the ESOP for that particular
plan year, after giving effect to any reduction of such allocation
required by any of the Applicable Limitations.
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Section 4.02 Supplemental Stock
Ownership Benefit .
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(a)
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Upon a Change in Control, the
Employer shall credit to the Participant’s Supplemental Stock
Ownership Account a Supplemental Stock Ownership Benefit equal to
(i) less (ii), the result of which is multiplied by (iii),
where:
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(i)
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Equals the total number of shares of
Common Stock acquired with the proceeds of all ESOP Acquisition
Loans (together with any dividends, cash proceeds, or other medium
related to such ESOP Acquisition Loans) that would have been
allocated or credited for the benefit of the Participant under the
ESOP and/or this Plan, as the case may be, had the Participant
continued in the employ of the Employer through the first ESOP
Valuation Date following the last scheduled payment of principal
and interest on all ESOP Acquisition Loans outstanding at the time
of the Change in Control; and
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(ii)
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Equals the total number of shares of
Common Stock acquired with the proceeds of all ESOP Acquisition
Loans (together with any dividends, cash proceeds, or other medium
related to such ESOP Acquisition Loans) and allocated for the
benefit of the Participant under the ESOP and/or this Plan, as the
case may be, as of the first ESOP Valuation Date following the
Change in Control; and
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(iii)
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Equals the fair market value of the
Common Stock immediately preceding the Change in
Control.
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(b)
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For
purposes of clause (i) of subsection (a) of this
Section 4.02, the total number of shares of Common Stock shall
be determined by multiplying the sum of (i) and (ii) by
(iii), where:
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(i)
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Equals the average of the total
shares of Common Stock acquired with the proceeds of an ESOP
Acquisition Loan and allocated for the benefit of the Participant
under the ESOP as of the three most recent ESOP Valuati
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