SUPPLEMENTAL RETIREMENT AGREEMENTEmployee Benefits Plan Agreement |
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ATLANTIC COAST FEDERAL CORP | JON C. PARKER, SR. RealDealDocs™ contains millions of easily searchable legal documents and clauses from top law firms. Search for free - click here. |
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EXHIBIT 10.4
SUPPLEMENTAL
RETIREMENT AGREEMENT
THIS SUPPLEMENTAL RETIREMENT
AGREEMENT is made as of January 1, 2006 by
and between ATLANTIC COAST FEDERAL (the "Bank"), its successors and
assigns and
JON C. PARKER, SR. (the "Executive").
1. DEFINITIONS. In this Agreement,
the following words and phrases shall
have the following meanings:
(A) ACCRUED BENEFIT PERCENTAGE shall mean,
except as otherwise
provided in this
Agreement, 1.15% for each full calendar quarter
of the Executive's
employment with the Bank since January 1,
2006, calculated through
the last day of the calendar quarter in
which the Executive (i)
experiences a Separation from Service or
(ii) attains the Normal
Retirement Date, whichever shall first
occur; PROVIDED, HOWEVER,
that in no event shall the Accrued
Benefit Percentage exceed 60%.
(B) 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.
(C) AVERAGE COMPENSATION shall mean the amount
determined by
dividing by three (3) the
total monetary compensation earned by
the Executive from the
Bank and its affiliates and subsidiaries
(or any successors
thereto by merger or purchase) during the
three annual periods in
the ten year period prior to his
Separation from Service
that results in the largest total,
including but not limited
to salary, bonuses and incentive
compensation (but
excluding specifically stock-based
compensation, such as
restricted stock, stock options and stock
appreciation rights). An
annual period shall consist of any
twelve (12) month
consecutive period not including any portion
of another twelve (12)
month period.
(D) BENEFIT COMMENCEMENT DATE shall mean the
first business day of
the calendar month
following the earliest of (i) the Executive's
Normal Retirement Date;
(ii) the Executive's Separation from
Service; (iii) the
Executive's death; (iv) the Executive's
Disability; or (v) a
Change in Control.
(E) 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.
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(F) CHANGE IN CONTROL shall mean the
following:
(1)
"Change in Control" shall mean (i) a change in the
ownership of the Bank or
Atlantic Coast Federal Corporation (the
"Company"),
(ii) a change in the effective control of the Bank
or Company, or (iii) a
change in the ownership of a substantial
portion of the assets of
the Bank or Company, as described
below. Notwithstanding
anything herein to the contrary, the
reorganization of
Atlantic Coast Federal, MHC by way of a
"second-step
conversion" shall not be deemed a Change in
Control.
(2) A change in ownership occurs on the date
that any one
person, or more than one
person acting as a group (as defined in
Proposed Treasury
Regulations section 1.409A-3(g)(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% 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 (i) any one person, or more than
one person acting as a
group (as defined in Proposed Treasury
Regulations section
1.409A-3(g)(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 35% or more of the total
voting power of the stock
of the Bank or Company, or (ii) 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
sub-section
"(ii)" is inapplicable where a majority shareholder
of the Bank or Company is
another corporation.
(4) A change in a substantial portion of the
Bank's or
Company's assets occurs
on the date that any one person or more
than one person acting as
a group (as defined in Proposed
Treasury Regulations
section 1.409A-3(g)(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% of the total gross fair market
value of (i) all of the
assets of the Bank or Company, or (ii)
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 Proposed Treasury
Regulations section
1.409A-3(g)(5), except to
the extent that such proposed
regulations are
superseded by subsequent guidance.
(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;
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(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) INVOLUNTARY TERMINATION shall mean
Separation from Service
without the Executive's
express written consent, and shall
include a material
diminution of or interference with the
Executive's duties,
responsibilities and benefits as Executive
Vice President 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. 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.
(I) MONTHLY BENEFIT shall mean the Average
Compensation multiplied
by the Accrued Benefit
Percentage and then divided by twelve
(12), calculated at the
Benefit Commencement Date.
(J) NORMAL RETIREMENT DATE shall mean the date
the Executive attains
age 55.
(K) 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 Proposed
Treasury Regulations Section 1.409A-1(h).
(L) SPECIFIED EMPLOYEE shall mean a key
employee of the Bank within
the meaning of Code
Section 416(i) without regard to paragraph 5
thereof, determined in accordance
with Code Section 409A and
Proposed Treasury
Regulations Section 1.409A-1(i).
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2. PAYMENT OF BENEFITS.
(A) NORMAL BENEFIT.
If the Executive is
living on the Benefit Commencement Date, the
Bank shall pay the
Monthly Benefit to him on such 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 comply with
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.
(i) DEATH DURING OR AFTER SERVICE. If the
Executive
dies
prior to the Normal Retirement Date, the
Bank
shall pay to the beneficiary designated on






