EXHIBIT 10.4
ATLANTIC COAST FEDERAL
SUPPLEMENTAL EXECUTIVE
RETIREMENT PLAN
November 1, 2002
This Atlantic Coast Federal Supplemental Executive Retirement Plan (the
"Plan") is established for the purpose of providing retirement benefits to those
members of senior management who have contributed significantly to the success
and growth of Atlantic Coast Federal, and its 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
Each individual who is selected by the Plan Administrator as eligible to
participate (each a "Participant") in the Plan and who has attained the vesting
requirement of one hundred and twenty (120) full months of service as a
full-time employee of Atlantic Coast Federal following the date of this Plan,
whether continuous or otherwise, shall be entitled to receive the retirement
benefits as provided in this Plan. Atlantic Coast Federal, in its sole
discretion, may allow exceptions to this service requirement for good cause
shown. 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 Atlantic Coast Federal, shall be ineligible
to participate and shall forfeit any benefits under this Plan.
ARTICLE II
RETIREMENT BENEFIT
A. NORMAL RETIREMENT. Atlantic Coast Federal shall pay to the
Participant, following cessation of employment in any capacity and the
attainment of sixty-five (65) years of age ("Retirement Age"), an annual normal
retirement benefit of twenty thousand dollars ($20,000) per year, payable
annually, commencing on January 1st of the year following attainment of the
Retirement Age and on each anniversary thereafter for a period of twenty (20)
years (the "Benefit Period"). The benefits paid under this Article shall be
subject to withholding in accordance with federal and state law.
B. EARLY RETIREMENT OPTION. At the Participant's discretion, in
accordance with the other provisions of the Plan, including eligibility, each
Participant may elect to voluntarily terminate employment with Atlantic Coast
Federal and receive an annual early retirement benefit by filing the election
form in Appendix A with the Plan Administrator prior to the cessation of
employment. The early retirement option may not be elected by any Participant
who ceases to be an employee of
Atlantic Coast Federal prior to the age of fifty-five (55) and is in lieu of the
normal retirement benefit provided under Article II.A. of this Plan.
The annual early retirement benefit shall be calculated as follows: for
each year that the Participant's age is less than the Retirement Age (i.e.,
early retirement), the retirement benefit in Article II.A. shall be reduced by
one thousand dollars ($1,000) per year. The timing of the annual payment and the
Benefit Period for early retirement benefits shall be the same as those set
forth in Article II.A. The Participant's age shall be determined at the end of
the calendar year preceding the year in which benefits are requested to begin.
For example, a Participant who chooses early retirement at age sixty (60) would
receive fifteen thousand dollars ($15,000) per year for twenty (20) years
commencing January 1st in the year following the calendar year in which early
retirement was elected.
C. DEATH DURING BENEFIT PERIOD. If the Participant dies within the
Benefit Period, the remaining annual payments due the Participant shall be paid
to the Participant's designated beneficiary (including any contingent
beneficiary) on file with Atlantic Coast Federal in the form of Appendix B or if
no designation is on file, the spouse shall be the designated beneficiary. In
the absence of any surviving beneficiary or spouse, the benefits shall be paid
to the personal representative of the estate of the Participant.
If the Participant's designated beneficiary begins to receive the annual
payments and thereafter dies without receiving the remaining annual payments,
Atlantic Coast Federal shall pay the installments remaining to the contingent
beneficiary, if any, and then to the personal representative of the estate of
the designated beneficiary.
D. DEATH OF PARTICIPANT PRIOR TO RETIREMENT BUT AFTER VESTING. In
the event the Participant should die prior to attaining Retirement Age and prior
to electing early retirement benefits, Atlantic Coast Federal agrees to pay to
the Participant's designated beneficiary the retirement benefit the Participant
would have otherwise received as if he or she had attained Retirement Age at his
or her death commencing January 1st of the year following the Participant's
death. If the designated beneficiary (including any contingent beneficiary) dies
before receiving all the annual installments, Atlantic Coast Federal shall pay
the remaining installments to the personal representative of the estate of the
designated beneficiary. If the Participant dies prior to retirement with no
surviving designated beneficiary (including any spouse or contingent
beneficiary), Atlantic Coast Federal shall pay the installments to the personal
representative of the estate of the Participant. Notwithstanding any other terms
of this Plan, no death benefit shall be payable under this Plan if it is
determined that the Participant's death was caused by suicide.
E. DEATH PRIOR TO FULL VESTING. In the event a Participant dies
while employed by Atlantic Coast Federal, and has attained at least sixty (60)
full months of service (whether continuous or otherwise), such person shall be
eligible for benefits as a Participant in this Plan whether or not the
Participant has met the Retirement Age. The amount of the annual benefits
payable to such person or his or her designated beneficiary, as the case may be,
over the Benefit Period shall be equal to the product of twenty thousand dollars
($20,000) multiplied by a fraction the denominator of which is one-hundred and
twenty (120) and the numerator of which is the number of full months of
service as an employee. Such benefits shall be paid in equal annual installments
over the Benefit Period on January 1st of each year.
F. PRESENT VALUE OF DISTRIBUTION BENEFITS. Upon the request of the
designated beneficiary or the personal representative and for good cause shown,
Atlantic Coast Federal may (but is not obligated to do so) pay in a lump sum:
(1) eighty percent (80%) of the present value of the remaining benefits as set
forth in Articles II.C, D or E, as applicable, to the designated beneficiary or
(2) an amount necessary (but not exceeding the present value of the remaining
benefits) to meet any unforeseeable emergency caused by an event beyond the
control of the beneficiary or personal representative that would result in
severe financial hardship if the distribution was not permitted. Any remaining
future payments shall be adjusted to reflect the distribution under this Article
II.F. The present value determination shall be equal to the amount accrued by
Atlantic Coast Federal in accordance with generally accepted accounting
principles.
ARTICLE III
STATUS OF PLAN
This Plan does not constitute a contract of employment for any
Participant, nor shall any provision of this Plan be construed as giving the
Participant the right to continued service as an employee of Atlantic Coast
Federal.
ARTICLE IV
BINDING EFFECT
This Plan shall be binding upon the parties hereto and upon the
successors and assigns of Atlantic Coast Federal, and upon the heirs and legal
representatives of the Participant.
ARTICLE V
ASSIGNMENT OF RIGHTS
Neither the Participant nor the any beneficiary or personal
representative of the Participant can assign any of the rights to benefits under
this Plan. Any attempt to anticipate, sell, transfer, assign, pledge, encumber
or change the Participant's right to receive benefits shall be void. The rights
to benefits are not subject in any manner to anticipation, alienation, sale,
transfer, assignment, pledge, encumbrance, attachment or garnishment by
creditors.
ARTICLE VI
CHOICE OF LAW
This Plan shall be construed under and governed by the laws of the State
of Georgia, except to the extent preempted by the laws of the United States of
America.
ARTICLE VII
UNFUNDED ARRANGEMENT
The Participant and any beneficiary are general unsecured creditors of
Atlantic Coast Federal for the payment of benefits under this Plan. The benefits
represent the mere promise by Atlantic Coast Federal to pay such benefits. The
benefits payable under this Plan are payable from the general assets of Atlantic
Coast Federal and no special fund or arrangement is intended to be established
hereby nor shall Atlantic Coast Federal be required to earmark, place in trust
or otherwise segregate assets with respect to this Plan or any benefits
hereunder.
ARTICLE VIII
PLAN ADMINISTRATOR
Atlantic Coast Federal is hereby designated the Plan Administrator. As
Plan Administrator, Atlantic Coast Federal shall be responsible for the
management, control, interpretation and administration of this Plan as
established herein and may allocate to others certain aspects of the management
and operation responsibilities of the Plan including the employment of advisors
and the delegation of any ministerial duties to qualified individuals. The Plan
Administrator shall allow such exceptions to the requirements from this Plan for
good cause shown. All decisions of the Plan Administrator shall be final and
benefits under this Plan shall be paid only if the Plan Administrator decides in
its discretion that the applicant is entitled to such benefits. Any notices or
claims under this Plan shall be filed with the Plan Administrator in care of the
President of Atlantic Coast Federal.
ARTICLE IX
CLAIMS
In the event a claim for benefits is wholly or partially denied under
this Plan, the Participant or any other person claiming benefits under this Plan
(a "Claimant"), shall be given notice in writing within thirty (30) calendar
days after the Plan Administrator's receipt of the claim. For good cause shown,
the Plan Administrator may extend this period for an additional thirty (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 Plan Administrator within sixty (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 Plan
Administrator shall make a final determination and notify the Claimant in
writing within sixty (60) calendar days of the Plan Administrator's receipt of
the request for review together with the specific reasons for the decision.
ARTICLE X
AMENDMENTS
This Plan may be amended by Atlantic Coast Federal any time, but no such
amendment shall affect the rights of, or reduce the benefits to, any Participant
without their written consent.
ARTICLE XI
TOP HAT PLAN
For purposes of the Internal Revenue Code, Atlantic Coast Federal
intends this Plan to be an unfunded, unsecured promise to pay on the part of
Atlantic Coast Federal . For purposes of ERISA, Atlantic Coast Federal intends
this Plan to be an unfunded Plan solely for the benefit of a select group of
management or highly compensated employees of Atlantic Coast Federal for the
purpose of qualifying this Plan for the "top hat" Plan exception under sections
201(2), 301(a)(3) and 401(a)(1) of ERISA.
Acknowledgment
I hereby acknowledge receipt of a copy of this Plan and agree to comply with its
terms.
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PARTICIPANT'S SIGNATURE DATE
APPENDIX A
EARLY RETIREMENT ELECTION
I, ___________________________, hereby elect to receive, following my voluntary
termination of employment with Atlantic Coast Federal, the benefits under the
Atlantic Coast Federal Supplemental Executive Retirement Plan beginning on
_____________. I understand that my benefits will be reduced for each year that
my age is under the age of 65. I understand that I may change this designation
only by filing a new written designation with Atlantic Coast Federal.
Consented to by Participant's spouse:
Participant's Spouse's
Signature ______________________ Signature _______________________
Date ______________________ Date _______________________
Accepted by Atlantic Coast Federal this ____ day of ______, 200__.
By: ______________________
Title: ______________________
APPENDIX B
BENEFICIARY DESIGNATION
I, ___________________________, designate the following as beneficiary of any
death benefits payable under the Atlantic Coast Federal Supplemental Executive
Retirement Plan.
PRIMARY BENEFICIARY
Name ___________________________________ Relationship ____________________
Address ______________________________________________________________________
CONTINGENT BENEFICIARY (to receive the benefits if there is no surviving Primary
Beneficiary)
Name ___________________________________ Relationship ____________________
Address ______________________________________________________________________
NOTE: TO NAME A TRUST AS BENEFICIARY, PLEASE PROVIDE THE NAME OF THE TRUSTEE AND
THE EXACT DATE OF THE TRUST AGREEMENT.
I understand that I may change these beneficiary designations only by filing a
new written designation with Atlantic Coast Federal. I further understand that
the designations will be automatically revoked if the beneficiary predeceases
me, or, if I have named my spouse as beneficiary, in the event of the
dissolution of our marriage.
Consented to by Participant's spouse:
Participant's Spouse's
Signature ______________________ Signature _______________________
Date ______________________ Date _______________________
Accepted by Atlantic Coast Federal this ____ day of ______, 200__.
By: ______________________
Title: ______________________