SECOND AMENDED AND RESTATED SUPPLEMENTAL RETIREMENT AGREEMENT
SECOND
AMENDED AND RESTATED
THIS SECOND AMENDED AND RESTATED
SUPPLEMENTAL RETIREMENT AGREEMENT (the “Agreement”) is made as of
December 11, 2009 by and between ATLANTIC COAST BANK (the
“Bank”), its successors and assigns and ▇▇▇▇ ▇. ▇▇▇▇▇. (the
“Executive”). The original agreement, which was last amended and
restated effective January 1, 2006, is being amended and restated to make
certain changes to the Agreement’s vesting and benefit calculation
provisions.
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1.
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Definitions.
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In
this Agreement, the following words and phrases shall have the following
meanings:
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(a)
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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.
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(b)
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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.
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(c)
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Appreciation
Benefit shall mean an amount equal to the Prior Benefit Component
plus the Stock Award Component plus the Stock Ownership Component
multiplied by the Issue Price (as defined below) multiplied by the
Exchange Ratio (as defined below). For example, if the
Executive’s Prior Benefit Component had 20,000 shares of Company Stock,
the Stock Award Component had 30,000 shares of Company Stock and the Stock
Ownership Component had 25,000 shares of Company Stock; the Issue Price
was $10.00 and the Exchange Ratio was 60 percent, then the Executive’s
Appreciation Benefit would be equal to $450,000
[(20,000+30,000+25,000)($10.00)(.6)]. The Company will pay
interest on unpaid balance of the Executive’s Appreciation Benefit at the
rate of three percent per annum.
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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 Issue Price and the Exchange Ratio. For
example, the Executive incurs an Involuntary Termination prior to the closing of
the Second-Step Conversion. The Fair Market Value of the Company
Stock on that date is $4.00 per share. In this instance, the
Executive’s Appreciation Benefit is $300,000
[(20,000+30,000+$25,000)*$4.00]. The Company will pay interest on
unpaid balance of the Executive’s Appreciation Benefit at the rate of three
percent per annum.
The
Executive shall vest in his Appreciation Benefit upon the earliest to occur of
(i) the closing date of a Second-Step Conversion, (ii) the Executive’s
Involuntary Termination, (iii) a Change in Control, (iv) the Executive’s death,
(v) the Executive’s Disability or (vi) 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.
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(d)
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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.
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(e)
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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)
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Change
in Control shall mean the
following:
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(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.
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(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 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.
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(g)
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Company
Stock shall mean the common stock of the
Company.
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(h)
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Disabled
or Disability shall mean the
Executive:
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(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.
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(i)
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Exchange
Ratio shall mean the ratio used to determine the number of shares
of common stock in a successor corporation each share of Company Stock
will exchanged for in a Second-Step Conversion. The Exchange
Ratio will be determined as part of the independent valuation conducted in
connection with the Second-Step
Conversion.
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(j)
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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.
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(k)
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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 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; 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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(l)
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Issue
Price shall mean the initial offered price of the common stock of
the newly formed successor corporation that is issued in connection with
the Second-Step Conversion.
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(m)
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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).
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(n)
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Normal
Retirement Date shall mean the date the Executive attains age
55. 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.
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(o)
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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.
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(p)
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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).
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(q)
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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).
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(r)
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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.
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(s)
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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.
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2.
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Payment
of Benefits.
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(a)
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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.
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(b)
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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 death. 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.
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(c)
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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.
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(d)
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Separation
from Service Benefit. In the event the Executive incurs
a Separation from Service due to an Involuntary Termination before the
Normal Retirement Date, Disability, 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 first day of the seventh month following the date of the
Executive’s Separation from
Service.
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(e)
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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.
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(f)
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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 ▇▇▇▇▇’▇ 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.
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(g)
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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.
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3.
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Required
Provisions.
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(a)
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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.
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(b)
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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 §1818(e)(3)] or 8(g)(l) [12 USC §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.
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(c)
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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 §1818(e)(4)] or 8(g)(l) [12 USC §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.
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(d)
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If
the Bank is in default as defined in Section 3(x)(l) [12 USC §1813(x)(1)]
of the FDI Act, all obligations of the Bank under this Agreement shall
terminate as of the date of default, but this paragraph shall not affect
any vested rights of the contracting
parties.
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(e)
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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 §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.
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(f)
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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.
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4.
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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.
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5.
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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. 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.
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6.
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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.
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7.
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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.
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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.
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8.
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Amendment
and Termination.
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(a)
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Amendment. The Bank may at
any time amend the Agreement in whole or in part, provided,
however, that no amendment shall decrease or restrict the amount accrued
to the date of amendment.
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(b)
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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.
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(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. §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.
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(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.
(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.
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9.
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Miscellaneous.
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(a)
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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.
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(b)
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Governing
Law. This Agreement shall be construed under the laws of
the State of Georgia, except to the extent that federal law
applies.
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(c)
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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.
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(d)
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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.
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(e)
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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.
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(f)
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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.
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(g)
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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, ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇.
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(h)
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Headings. Headings
of sections herein are inserted for convenience of reference. They are not
to be considered in the construction of this
Agreement.
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|
(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.
|
|
|
(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.
|
The
parties have caused this Agreement to be executed and delivered as of the date
first above written.
|
ATLANTIC
COAST BANK
|
||
|
December
11, 2009
|
By:
|
/s/
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
|
|
Date
|
Name:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
|
|
|
Title: President
and CEO
|
||
|
|
EXECUTIVE
|
|
|
December
11, 2009
|
/s/
▇▇▇▇ ▇. ▇▇▇▇▇
|
|
|
▇▇▇▇
▇. ▇▇▇▇▇
|
11