Amended and Restated 2005 Director Retirement Plan

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The Atlantic Coast Bank 2005 Amended and Restated Director Retirement Plan (the “Plan”) was originally established on July 1, 2001, and was amended and restated on December 15, 2005, and is hereby 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 retirement benefits to those non-employee members of the Board of Directors (“Directors”) 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 member of such Boards until retirement.

1.1           Eligibility.  Each individual who is a Director of the Bank (or any predecessors or successors) shall be eligible to participate in the Plan (“Participants”).

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 Director, whether continuous or otherwise.  Except as provided in Section 2.3(b), 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.

2.1           Normal Retirement.

(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 ten thousand dollars ($10,000) per year, payable in equal monthly installments over a period of One Hundred and Twenty (120) months (the “Benefit Period”), commencing on the first day of the month following the Participant’s Separation from Service. Any Director who has at least 240 full months of service, whether continuous or otherwise, may receive such annual benefit for the Benefit Period upon Separation from Service prior to the age of 65.

(b)           “Separation from Service” means the Participant’s retirement or termination from service from the Board.  For these purposes, a Participant shall not be deemed to have a Separation from Service until the Participant no longer serves on the Board of the Bank, the Bank’s holding company, or any member of a controlled group of corporations with the Bank or holding company within the meaning of Final Treasury Regulation §1.409A-1(a)(3).  Whether a Participant has had a Separation from Service shall be determined in accordance with the requirements of Final Treasury Regulation 1.409A-1(h).

 

2.2           Death During Benefit Period.  If the Participant dies within the Benefit Period, the remaining monthly payments due to 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.

2.3           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 a Normal Retirement Benefit, the Bank agrees to pay to the Participant’s Beneficiary the Normal Retirement Benefit that the Participant would have otherwise received as if he or she had attained Normal Retirement Age at his or her death, with such payments commencing on the first day of the month after the Participant’s death.

(b)           Death or Disability Before Vesting.  In the event a Participant who has completed at least sixty (60) full months of service (whether continuous or otherwise), dies or becomes Disabled (as defined below) while serving as a Director, such person shall be eligible for benefits under this Plan whether or not the Participant has attained the Retirement Age.  In the event a Participant dies or become Disabled prior to Separation from Service and such Participant has attained at least sixty (60) full months of service (whether continuous or otherwise), then the amount of the annual benefits payable to the Participant’s Beneficiary shall be equal to the product of ten thousand dollars ($10,000) 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 performed by the Participant. Such benefits shall be paid in equal monthly installments over the Benefit Period, beginning on the first day of the month following the Participant’s date of death or Disability.

A Participant shall be considered “Disabled” if the Participant: (i) 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; (ii) 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 the Bank’s employees; or (iii) is determined to be totally disabled by the Social Security Administration.

2.4           Unforeseeable Emergency.

(a)           Upon an “Unforeseeable Emergency” (as defined below), (i) a Participant who is vested in his or her benefit hereunder but has not yet begun to receive payments; (ii) a Participant who is receiving Normal Retirement Benefits; or (iii) a Beneficiary who is receiving death benefits hereunder, may request a lump sum payment in an amount necessary (but not exceeding the present value of the remaining benefits) to meet the Unforeseeable Emergency, including an amount necessary to pay any taxes due as a result of such lump sum payment from the Plan.  The present value shall be equal to the amount accrued by the Bank in accordance with generally accepted accounting principles.

(b)           “Unforeseeable Emergency” means a severe financial hardship to the Participant or Beneficiary resulting from (i) an illness or accident of the Participant or Beneficiary, his or her spouse, or dependent (as defined in Code Section 152(a)); (ii) loss of the Participant’s or Beneficiary’s property due to casualty; or (iii) other similar extraordinary and unforeseeable circumstances arising as a result of events beyond the control of the Participant or Beneficiary.  The term “Unforeseeable Emergency” shall be construed consistent with Code Section 409A and the final regulations and other guidance issued thereunder.

 

2.5           Tax Withholding.  All benefits paid under this Plan shall be subject to withholding in accordance with federal and state law.

3.1           Plan Administrator.  The Board of Directors of the Bank (the “Board”) is hereby designated the Plan Administrator.

3.2           Powers of Plan Administrator. As Plan Administrator, the Board shall be responsible for the management, control, interpretation and administration of this Plan and may allocate to others certain aspects of the management and operational responsibilities of the Plan including the employment of advisors and the delegation of any ministerial duties to qualified individuals.  All decisions of the Plan Administrator shall be final and binding on all persons.

3.3           Claims Procedures.  Claims for benefits hereunder shall be submitted to the President of the Bank, as agent for the Plan Administrator.  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 of the denial in writing within thirty (30) calendar days after the Plan Administrator’s receipt of the claim.  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 perfect the claim for benefits.  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 after receipt of the initial 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 within sixty (60) calendar days of the Plan Administrator’s receipt of the request for review together with the specific reasons for the decision.

4.1           Amendments.  The Board may amend this Plan any time, but no such amendment shall affect the rights of, or reduce the benefits to, any Participant without their written consent.

4.2           Termination.  The Board may completely terminate the Plan.  Subject to the requirements of Code Section 409A, in the event of complete termination with respect to such benefits, the Plan shall cease to operate and the Bank shall pay out to each Participant his or her account as if that Participant had terminated service as of the effective date of the complete termination.  Such complete termination of the Plan shall occur only under the following circumstances and conditions:

(a)           The Board may terminate the Plan 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 deferred under the Plan are included in each Participant’s gross income in the latest of (i) the calendar year in which the Plan 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 Board may terminate the Plan within the 30 days preceding a Change in Control (but not following a Change in Control), provided that the Plan shall only be treated as terminated if all substantially similar arrangements sponsored by the Bank are terminated so that the Participants 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.

 

(c)           The Board may terminate the Plan provided that (i) the termination and liquidation does not occur proximate to a downturn in the financial health of the Bank or Company, (ii) all arrangements sponsored by the Bank that would be aggregated with this Plan under Final Regulations Section 1.409A-1(c) if the Participant covered by this Plan was also covered by any of those other arrangements are also terminated; (iii) 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; (iv) all payments are made within 24 months of the termination of the arrangements; and (v) the Bank does not adopt a new arrangement that would be aggregated with any terminated arrangement under Final Regulations Section 1.409A-1(c) if the Participant participated in both arrangements, at any time within three years following the date of termination of the arrangement.

 

(d)           The Board may terminate the Plan pursuant to such other terms and conditions as the Internal Revenue Service may permit from time to time.

5.1           Unsecured General Creditors.  The Participant and Beneficiaries are general unsecured creditors of the Bank for the payment of benefits under this Plan.  The benefits represent the mere promise by the Bank to pay such benefits.  The benefits payable under this Plan 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 Plan or any benefits hereunder.

5.2           Rabbi Trust.  The Bank shall be responsible for the payment of all benefits provided under the Plan. At its discretion, the Bank may establish one or more trusts, with such trustees as the Board may approve, for the purpose of providing for the payment of such benefits. Such trust or trusts may be irrevocable, but the assets thereof shall be subject to the claims of the Bank’s creditors. To the extent any benefits provided under the Plan are actually paid from any such trust, the Bank shall have no further obligation with respect thereto, but to the extent not so paid, such benefits shall remain the obligation of, and shall be paid by, the Bank.  Under no circumstances shall a Participant serve as trustee or co-trustee of any trust established by the Bank pursuant to this Plan.

6.1           No Guarantee of Continued Service on the Board.  This Plan does not constitute a guaranty of continued service on the Board.

6.2           Binding Effect.  This Plan shall be binding upon the Bank, the Company and their successors and assigns, and upon the Participants and the Beneficiaries and legal representatives of the Participant.

6.3           No Assignment.  Neither the Participant nor 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.

6.4           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.

6.5           Payment to Guardians.  If a Participant’s benefit is payable to a minor or a person declared incompetent or to a person incapable of handling the disposition of his property, the Plan Administrator may direct payment of such Plan benefit to the guardian, legal representative or person having the care and custody of such minor, incompetent or person. The Plan Administrator may require proof of incompetency, minority, incapacity or guardianship as it may deem appropriate prior to distribution of the Plan benefit. Such distribution shall completely discharge the Plan Administrator and the Bank from all liability with respect to such benefit.

IN WITNESS WHEREOF, and the Bank has caused this amended and restated Plan to be executed by its duly authorized officer.

I hereby designate the following Beneficiary(ies) to receive any guaranteed payments or death benefits under such Plan, following my death:

This Beneficiary Designation hereby revokes any prior Beneficiary Designation which may have been in effect and this Beneficiary Designation is revocable.