Unassociated Document


    
      

    

    Exhibit
10.4

     

    ATLANTIC
COAST BANK

    AMENDED
AND RESTATED

    SUPPLEMENTAL
EXECUTIVE RETIREMENT PLAN

    


    This
Amended and Restated Atlantic Coast Bank Supplemental Executive Retirement Plan
(the “Plan”) was originally established on November 1, 2002, and was amended and
restated effective October 1, 2004, and most recently is 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 supplemental retirement benefits to those
members of senior management 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 valuable part of our future success.

    


    ARTICLE
I

    ELIGIBILITY
AND VESTING

    


    1.1           Eligibility.  Each
individual who is selected by the Plan Administrator shall be eligible to
participate in the Plan.  Such individuals are
“Participants.”  The Plan is intended to only be available to a select
group of management or highly compensated employees, and as such, is intended to
be a “top hat” plan that for purposes of the Employee Retirement Income Security
Act of 1974, as amended.

    


    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 full-time employee of the
Bank on or after November 1, 2002, whether continuous or
otherwise.  Except as provided in Section 2.4(b) or unless the Plan
Administrator accelerates vesting, which is entirely in the sole discretion of
the Plan Administrator, 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.

    


    ARTICLE
II

    BENEFITS

    


    
      	
               
      

            	
              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 twenty thousand dollars ($20,000) per year, payable
annually, commencing on January 1st of the
year following Separation from Service and on each anniversary thereafter for a
period of twenty (20) years (the “Benefit Period”).  Notwithstanding
the preceding sentence, to the extent a Participant is a “Specified Employee”
(as defined below), solely to the extent necessary to avoid penalties under Code
Section 409A, payment shall be delayed until the first day of the seventh month
following the Participant’s Separation from Service.


    
      
         


      

      
        1

        
          

        

      

      
         


      

    


    (b)           “Separation
from Service” means the Participant’s retirement or termination of employment
with the Bank.  No Separation from Service shall be deemed to occur
due to military leave, sick leave or other bona fide leave of absence if the
period of such leave does not exceed six (6) months or, if longer, so long as
the Participant’s right to reemployment is provided by law or
contract.  If the leave exceeds six (6) months and the Participant’s
right to reemployment is not provided by law or by contract, then the
Participant shall have a Separation from Service on the first date immediately
following such six-month period. Whether a termination of employment has
occurred is determined based on whether the facts and circumstances indicate
that the Bank and the Participant reasonably anticipated that no further
services would be performed after a certain date or that the level of bona fide
services the employee would perform after such date (whether as an employee or
as an independent contractor) would permanently decrease to no more than 20% of
the average level of bona fide services performed over the immediately preceding
36 months (or such lesser period of time in which the Participant has provided
services for the Bank).  The determination of whether a Participant
has a Separation from Service shall be made by applying the presumptions set
forth in the Treasury Regulations under Code Section 409A.

    


    (c)           “Specified
Employee” means an employee of the Bank or Company who is also a “key employee”
as such term is defined in Code Section 416(i), without regard to Paragraph 5
thereof, but only if the Bank or the Company (or any successors) is a publicly
traded company.

    


    2.2           Early
Retirement.

    


    (a)           Upon
Separation from Service on or after age fifty-five (55) (“Early Retirement
Age”), but before Normal Retirement Age, each Participant shall receive an
“Early Retirement Benefit” instead of a Normal Retirement Benefit.  In
order to determine the amount of the Early Retirement Benefit, for each year
that the Participant’s Early Retirement Age is less than the Normal Retirement
Age, the Normal Retirement Benefit shall be reduced by one thousand dollars
($1,000) per year.  For purposes of calculating the Early Retirement
Benefit, the Participant’s age shall be determined at the end of the calendar
year preceding the year in which Early Retirement Benefits will
begin.  For example, a Participant who Separates from Service 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 the Participant’s Separation from
Service occurred.

    


    (b)           Early
Retirement Benefits shall be payable annually, commencing on January 1st of the
year following the Participant’s Separation from Service and on each anniversary
thereafter for a period of twenty (20) years (the “Benefit
Period”).  Notwithstanding the preceding sentence, to the extent a
Participant is a Specified Employee, solely to the extent necessary to avoid
penalties under Code Section 409A, payment shall be delayed until the first day
of the seventh month following the Participant’s Separation from
Service.


    
      
         


      

      
        2

        
          

        

      

      
         


      

    


    2.3           Death
During Benefit Period.  If the
Participant dies within the Normal Retirement or Early Retirement Benefit
Period, the remaining annual payments due 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.

    


    2.4          
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 an Early Retirement
Benefit or 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 January 1st of the
first year after the Participant’s death.

    


    (b)           Death Before
Vesting.  In the event a Participant dies 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 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 performed by the Participant. Such benefits
shall be paid in equal annual installments for twenty (20) years, on January
1st
of each year, beginning with the January 1 following the Participant’s date of
death.

    


    2.5           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 either Early or 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.


    
      
         


      

      
        3

        
          

        

      

      
         


      

    


    (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.

     

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

    


    ARTICLE
III

    ADMINISTRATION;
CLAIMS PROCEDURES

    


    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.

    


    
      ARTICLE
IV

    

    AMENDMENT
AND TERMINATION

    


    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

        
          

        

      

      
         


      

    


    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”
(as defined in Code Section 409A and the regulations thereunder), 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.

     

    
      ARTICLE
V

    

    
      UNFUNDED
ARRANGEMENT

    

    


    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

        
          

        

      

      
         


      

    


    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.

    


    ARTICLE
VI

    MISCELLANEOUS

    


    6.1           No
Employment Contract.  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 the Bank.

    


    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.

    


    
      
         

      

      
        6

        
          

        

      

      
         

      

    

    


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

    


    


    
      
        
          	 
      	 
      	
                  ATLANTIC
      COAST BANK

                	 
	 
      	 
      	 
      	 
      	 
	 
      	 
      	 
      	 
      	 
	
                  October 30, 2008

                	 
      	
                  By:

                	
                  /s/ Robert J. Larison, Jr.

                	 
	
                  Date

                	 
      	 
      	
                  Robert
      J. Larison, Jr. President and

                	 
	 
      	 
      	 
      	
                  Chief
      Executive Officer

                	 


        

      

    


    
      
         


      

      
        7

        
          

        

      

      
         


      

    


    Appendix
A

    


    ATLANTIC
COAST BANK

    AMENDED
AND RESTATED

    SUPPLEMENTAL
EXECUTIVE RETIREMENT PLAN

    FOR
VICE PRESIDENTS

    


    BENEFICIARY
DESIGNATION

    


    


    
      
        
          	
                  Name:

                	
                    

                


        

      

    

     

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

     

    PRIMARY
BENEFICIARY:

    
      


      
        
          
            
              
                
                  
                    
                      
                        
                          
                            
                              
                                	
                                        Name:

                                      	 
      	
                                        %
      of Benefit:

                                      	 
      
	 	 	 	 
	
                                        Name:

                                      	 
      	
                                        %
      of Benefit:

                                      	 
      
	 	 	 	 
	
                                        Name:

                                      	 
      	
                                        %
      of Benefit:

                                      	 
      


                              

                            

                          

                        

                      

                    

                  

                

              

            

          

        

      

       

    

    SECONDARY
BENEFICIARY (if all Primary Beneficiaries pre-decease the
Executive):

     

    
      
        
          
            
              
                
                  
                    
                      
                        
                          
                            
                              
                                	
                                        Name:

                                      	 
      	
                                        %
      of Benefit:

                                      	 
      
	 	 	 	 
	
                                        Name:

                                      	 
      	
                                        %
      of Benefit:

                                      	 
      
	 	 	 	 
	
                                        Name:

                                      	 
      	
                                        %
      of Benefit:

                                      	 
      


                              

                            

                          

                        

                      

                    

                  

                

              

            

          

        

      

       

    

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

     

    


    
      
        
          
            	 
      	 
      	 
      	 
      
	
                    Date

                  	 
      	
                    Participant

                  	 
      


          

        

      

    

     

     

     8