Exhibit 10.1 


 


CONSULTING AGREEMENT


 


THIS CONSULTING
AGREEMENT (this “Agreement”)
is entered into by and between Atlantic
Coast Bank, a federal savings association and its parent,
Atlantic Coast Financial Corporation, a Maryland corporation (collectively the “Bank”),
and James D. Hogan (the “Consultant”),
each may be referred to individually as a “Party” and collectively as the “Parties.”


 


WITNESSETH:


 


WHEREAS,
the Consultant has
knowledge and expertise that is beneficial to the Bank
including, but not limited to enterprise risk management, public accounting, finance, and executive leadership (the “Consulting
Project”); and


 


WHEREAS,
due to the Consultant’s knowledge and expertise, the Bank
wishes to have the cooperation of,
and access to, the
Consultant in connection with the Consulting Project; and


 


WHEREAS,
the Bank and the Consultant
have mutually agreed that the Consultant shall serve as an advisor to the Bank
for the period of time and according to the terms and conditions
hereinafter specified.


 


NOW,
THEREFORE, for
good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged by the
parties, the Bank
and the Consultant
hereby agree as follows:


 


		1.	Consulting Period. The Consultant shall render consulting services,
on the terms and conditions set forth in this Agreement, for the period
beginning on the date last signed, below (the
“Effective Date”)
and ending December 31, 2015 (the “Consulting
Period”) or ending on such other date as mutually
agreed upon, in writing, by the Parties.



 


		2.	Consulting Project. During the
Consulting Period, the
Consultant shall (i)
provide consulting services to the Bank,
in respect of the Consulting
Project, including reviewing documents,
attending meetings and providing other information and
services, relating to enterprise risk management, public accounting matters, finance and (ii) make himself reasonably available
to the Bank to consult on Consulting Project-specific activities
for the Bank for such amount of time as may be reasonably
requested from time
to time by the Bank
..



 


		3.	Consideration.
In consideration for agreeing to provide the consulting
services set forth in Section
2, the Consultant
shall be receive a one-time payment
of Fifty Thousand and 00/100 Dollars (the “Consulting Fee”). Consultant shall receive
a 1099 from the Bank for the Consulting Fee.



 






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		4.	Sole Consideration.
Excepting Consultant’s role as a member of the Board of Directors of the Bank and its
parent, Atlantic Coast Financial Corporation, Consultant shall not be
entitled to compensation or benefits from the Bank
or any of its affiliates
with respect to the Consulting Project and will
be credited with no service or age
credit for purposes of eligibility, vesting or benefit accrual under any employee benefit
plan of the Bank or
any of its affiliates. The Consulting Fee paid to Consultant
under this Agreement shall not
be considered compensation for purposes of any employee
benefit plan of the Bank
or any of its affiliates.



 


		5.	Status as an Independent
Contractor. The Bank and the Consultant acknowledge
and agree that the Bank shall not exercise general
supervision or control over the time, place or manner in which the Consultant
provides consulting services hereunder,
and that in performing consulting services pursuant
to this Agreement the Consultant shall be acting and shall
act at all times as an
independent contractor only and not as
an employee, agent, partner
or joint venturer of
or with the Bank or
any entity
for which the Bank provides services.
The Consultant acknowledges that he is solely
responsible for the
payment of all federal,
state, and local taxes
that are required by applicable laws
or regulations to be paid
with respect to the Consulting Fee
payable hereunder. Neither party will have, and will not represent to any third party that it has, any authority to act on behalf
of the other party. 



 


		6.	Termination of Consulting
Arrangement. The Parties
hereto expect that
this Agreement will continue for the
full term of the Consulting
Period, and that
it may be extended as mutually agreed upon in writing by the Parties. Either party may terminate this Agreement with ten (10) days
advance notice to the other Party.



 


		7.	Section 409A of
the Code. It is
intended that this Agreement shall comply with the provisions
of Section 409A of
the Internal Revenue
Code of 1986, as
amended (the “Code”),
and the Treasury regulations
relating thereto, or an
exemption to Section
409A of the Code. Any payments
that qualify for the “short-term deferral” exception
shall be paid under such exception.
For purposes of Section 409A
of the Code, each payment
under this Agreement shall be treated as a separate
payment for purposes
of the exclusion
for certain short-term deferral
amounts. All payments, if
any, to be made
upon a termination of
services under this
Agreement may only be made
upon a “separation
from service” under
Section 409A of the
Code. In no
event may the Consultant,
directly or indirectly,
designate the calendar year of any payment under this
Agreement. Notwithstanding anything to the contrary in
this Agreement, all reimbursements
provided under this Agreement shall be made or
provided in accordance with the requirements of Section
409A of the Code, including, where applicable, the requirement
that (i) any reimbursement
is for expenses incurred during
the Consultant’s lifetime (or during
a shorter period
of time specified in
this Agreement), (ii) the
amount of expenses eligible for reimbursement, or in-kind
benefits provided, during a calendar year may
not affect the expenses eligible for reimbursement, or
in-kind benefits to be provided, in
any other calendar year, (iii) the reimbursement of
an eligible expense will be
made no later than the
last day of the calendar year following the
year in which the expense
is incurred and (iv) the
right to reimbursement
is not subject to liquidation or exchange for another benefit.
Within the time period permitted by
the applicable Treasury regulations (or such later
time as may be permitted under Section 409A of the Code
or any Internal Revenue Service or Department
of Treasury rules or other guidance issued thereunder),
the Bank may, in consultation
with Consultant, modify the Agreement in
order to cause the
provisions of the Agreement
to comply with the requirements of Section 409A of the
Code.



 






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		8.	Confidential Information.
The fact of and the circumstances regarding
the existence of this Agreement and any documents, files,
materials and other
information provided to Consultant
in connection with or related to his performance
of the consulting
services under this
Agreement (such information collectively,
the “Confidential
Information”) are each highly confidential in nature.
Consultant acknowledges the highly confidential
nature of the Confidential Information and hereby agrees
that:



 


		a.	Consultant shall keep the Confidential Information strictly confidential,
privileged and secure
at all times.



 


		b.	Consultant shall not use the
Confidential Information other
than for the purpose of providing
the consulting services under this Agreement, and shall
not issue, disclose, disseminate,
make available, publish,
provide copies or otherwise reveal the
Confidential Information to
any other third party whatsoever or copy or duplicate any
of the Confidential Information, except as may be
necessary to provide the
consulting services under
this Agreement (or submit a bid
or proposal with respect
thereto) . No license, express or implied, in the Confidential
Information is granted to Consultant other than to use the Confidential Information in the manner and to the extent authorized
by this Agreement. Consultant acknowledges and agrees that any and all Confidential Information (including any intellectual property
rights therein) is and will remain the sole property of Bank. Consultant shall
promptly return all Confidential Information and
other materials received in connection with Consultant’s
performance of the
consulting services under
this Agreement upon
completion of such services and,
in any event, upon request by the Bank. No copies of the
Confidential Information
shall be retained by
Consultant following completion of
the consulting services. 



 


		c.	If Consultant receives
a subpoena, discovery request, court order,
Freedom of Information
request, or any other request or
demand authorized by
law seeking disclosure
of any Confidential Information, Consultant
must immediately notify
the Bank thereof in order to permit the
Bank to seek to quash the
subpoena, to seek a protective order, or
to take such action
regarding the request as it deems
appropriate, and Consultant will fully
cooperate in the Bank’s
efforts in this
regard so as to assure
that confidential treatment will be afforded the Confidential
Information. In the
absence of a protective order,
disclosure will be
made by Consultant
of only that part
of the Confidential
Information as is required to be
disclosed, after advising and consulting with the Bank
and its counsel as
to such disclosure and the nature and wording of such disclosure.
Consultant will use his best efforts to obtain confidential treatment therefor. Consultant
agrees that, if, at any time, he discovers that Confidential
Information has been inappropriately disclosed, he will immediately report the fact of and the circumstances regarding such disclosure
to the Bank.



 






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		d.	THE UNAUTHORIZED DISCLOSURE OR HANDLING OF
CONFIDENTIAL INFORMATION COULD CAUSE
SUBSTANTIAL AND IRREPARABLE DAMAGE TO THE COMPANY AND ITS AFFILIATES AND
COULD RESULT IN FINES,
PENALTIES AND/OR MONETARY
DAMAGES; THAT DAMAGES AT
LAW MAY BE AN INADEQUATE
REMEDY FOR ANY BREACH, OR THREATENED BREACH, OF THIS AGREEMENT;
AND THAT THE COMPANY SHALL
BE ENTITLED, IN ADDITION TO ALL OTHER RIGHTS OR REMEDIES,
TO SEEK SUCH RESTRAINING ORDERS AND INJUNCTIONS AS
IT MAY DEEM APPROPRIATE FOR
ANY SUCH BREACH, WITHOUT BEING REQUIRED TO SHOW ANY ACTUAL
DAMAGE OR TO POST ANY BOND OR OTHER SECURITY, AND
CONSULTANT HEREBY CONSENTS THERETO.



 


		e.	The obligations of confidentiality
contained herein shall extend indefinitely until such obligations are released in writing by the
Bank. The provisions of
this Agreement shall not be affected by bankruptcy, receivership, assignment, attachment or
seizure procedures, whether initiated by or against Consultant,
nor by the rejection of any agreement between the Bank and Consultant,
by a trustee of
Consultant in bankruptcy, or by
the Consultant as a debtor-in-possession or the equivalent of any of the foregoing under local
law. 



 


		9.	Indemnification. Consultant shall indemnify, defend and hold harmless Bank, its parents,
affiliates, and its officers, directors, shareholders, members, managers, employees and agents, from and against any and all losses,
claims, damages, liabilities, costs or expenses payable to a third party resulting from an action brought by such third party (including
reasonable attorney’s fees) that arise out of or are based upon Consultant’s negligent acts or omissions, willful misconduct,
or breach of any warranty or representation of Consultant hereunder.



 


Consultant’s indemnification
obligations hereunder shall be subject to Bank’s prompt notification to Consultant with respect to the pertinent third-party
claims, although failure to provide such notification shall not excuse Consultant from its obligations hereunder except to the
extent of any material prejudice as a direct result of such failure. Bank will provide reasonable assistance to Consultant, at
Consultant’s expense, in defending the claim.


 


		10.	Miscellaneous.



 


		a.	Successors and Assigns. This Agreement will be binding upon,
inure to the benefit of and be enforceable by, as applicable,
the Bank and the Consultant
and their respective personal or legal representatives,
executors, administrators,
successors, assigns, heirs, distributees and legatees.
This Agreement is personal
in nature and the Consultant shall not,
without the written consent of
the Bank, assign, transfer or delegate this Agreement or
any rights or obligations hereunder.



 


		b.	Governing Law. This
Agreement shall be governed
by and construed in accordance with
the laws of
the State of Florida without giving effect to such
state’s laws and principles
regarding the conflict of
laws. Both Parties irrevocably consent to the jurisdiction of the federal and state courts
presiding in Duval County, Florida for any disputes related to this Agreement, waive any objections based on inconvenient forum
or improper venue, and agree that all proceedings arising out of or in connection with this Agreement or the transactions contemplated
hereby shall be brought solely in such courts.



 






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		c.	Amendment. No provision
of this Agreement may be amended, modified, waived or discharged
unless such amendment, waiver, modification or
discharge is agreed to in writing and such writing is
signed by the Consultant
and the Bank. Any waiver or failure to enforce on
one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.



 


		d.	Survival of Certain Provisions. Notwithstanding the termination or expiration of
this Agreement, the provisions of Sections 8 (Confidential Information), Section 9 (Indemnification) and Section 11 (Miscellaneous)
shall survive and continue and shall bind the parties and their legal representatives, successors and permitted assigns.



 


		e.	Notice. All
notices and other communications hereunder
shall be in writing
and shall be given
by hand delivery to the other party or by registered or
certified mail, return receipt requested , postage
prepaid, addressed as follows:



 





	If to the Consultant:	If to the Bank:
	James D. Hogan	Atlantic Coast Bank
	4223 Piaffe Ave.	Attn: General Counsel
	Mint Hill, NC 28227	4655 Salisbury Rd., #110
	 	Jacksonville, FL 32256



 


or
to such other address as either party shall have
furnished to the other
in writing in accordance herewith. Notice and
communications shall be effective
when actually received by the addressee.


 


		f.	Headings. The headings of this Agreement
are for reference purposes only
and shall not affect in
any way the meaning or
interpretation of this Agreement.



 


		g.	Counterparts. This Agreement may
be executed in one or more counterparts, each of which shall be
deemed an original but all of which
together will constitute
one and the same instrument. The parties may utilize electronic
means (including facsimile) to execute and transmit this Agreement and all such electronically and/or transmitted copies of the
Agreement shall be deemed as valid as originals.



 


 


Signature page follows


 



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IN WITNESS WHEREOF, the Parties have caused this Agreement
to be duly executed and delivered as of the date first above written.


 


	ATLANTIC COAST BANK	 	 	 	 
	 	 	 	 	 	 
	 	 	 	 	 	 
	By:	/s/ Tracy
L. Keegan	 	Date:	August 24, 2015	 
	 	Tracy
L. Keegan	 	 	 	 
	 	Executive
Vice President, CFO	 	 	 	 
	 	 	 	 	 	 
	CONSULTANT	 	 	 	 
	 	 	 	 	 	 
	 	 	 	 	 	 
	By:	/s/ James D. Hogan	 	Date:	August 24, 2015	 
	 	James D. Hogan	 	 	 	 
	 	 	 	 	 	 



 



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