Attached files
file | filename |
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EX-99.1 - ATLANTIC COAST FEDERAL CORP | v169198_ex99-1.htm |
EX-10.3 - ATLANTIC COAST FEDERAL CORP | v169198_ex10-3.htm |
EX-10.1 - ATLANTIC COAST FEDERAL CORP | v169198_ex10-1.htm |
EX-10.2 - ATLANTIC COAST FEDERAL CORP | v169198_ex10-2.htm |
EX-10.5 - ATLANTIC COAST FEDERAL CORP | v169198_ex10-5.htm |
EX-10.6 - ATLANTIC COAST FEDERAL CORP | v169198_ex10-6.htm |
EX-10.7 - ATLANTIC COAST FEDERAL CORP | v169198_ex10-7.htm |
EX-10.4 - ATLANTIC COAST FEDERAL CORP | v169198_ex10-4.htm |
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
————————————————
FORM
8-K
CURRENT
REPORT
Pursuant
to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of
Report (Date of earliest event reported): December 11,
2009
ATLANTIC COAST FEDERAL
CORPORATION
(Exact
name of Registrant as specified in its charter)
Federal | 000-50962 |
59-3764686
|
(State
or Other Jurisdiction
of
Incorporation)
|
(Commission
File
Number)
|
(I.R.S.
Employer
Identification
No.)
|
505 Haines Avenue, Waycross,
Georgia 31501
(Address of principal
executive offices)
(800)
342-2824
Registrant's
telephone number, including area code
Not
Applicable
(Former
Name or former address, if changed since last report)
Check
the appropriate box below if the Form 8-K filing is intended to
simultaneously satisfy the filing obligation of the registrant under any
of the following provisions:
|
|
¨
|
Written
communications pursuant to Rule 425 under the Securities Act (17 CFR
230.425)
|
¨
|
Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
|
¨
|
Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange
Act
(17
CFR 240.14d-2(b))
|
¨
|
Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange
Act
(17
CFR 240.13e-4(c))
|
Item
5.02. Departure of Directors or Certain
Officers; Election of Directors; Appointment of Certain Officers;
Compensatory Arrangements of Certain Officers.
(e) As
part of its expense reduction initiatives, on May 8, 2009, Atlantic Coast
Federal Corporation (the “Company”) terminated the following nonqualified
deferred compensation plans: (1) the 2005 Amended and Restated Director
Retirement Plan; (2) the Amended and Restated Supplemental Executive Retirement
Plan (covering certain mid-level executives); (3) the Second Amended and
Restated Supplemental Retirement Agreement for Robert J. Larison, Jr.; (4) the
Amended and Restated Supplemental Retirement Agreement for Carl W. Insel; (5)
the Supplemental Retirement Agreement for Jon C. Parker, Sr. (deceased); and (6)
the Supplemental Retirement Agreement for Thomas B. Wagers, Sr. On December 11,
2009 as an action to increase capital in its banking subsidiary, the Company
reinstated the supplemental executive retirement plans with
significant changes to the vesting and value of the benefits under the plans
(with the exception of the plan for Mr. Parker) which will permit the Company to
reverse previous costs associated with the plans totaling approximately $3.0
million in the fourth quarter of 2009. A press release dated December 17, 2009,
describing the above actions is attached as Exhibit 99.1 to this Current Report
on Form 8-K.
Under the
terminated plans, distributions would not have been made before May 8, 2010 and
would have been completed no later than May 8, 2011, but in the interim,
benefits would continue to accrue. The estimated payments for the
accrued benefit for each of Messrs. Larison’s, Wagers’ and Insel’s agreements
are $1,528,000, $418,000 and $387,000, respectively, under the terminated
plans. The estimated payment for the accrued benefit for each of the
termination of the Director Retirement Plan and the Amended and Restated
Executive Retirement Plan is $258,000 and $592,000.
Under the
reinstated plans for Messrs. Larison, Wagers and Insel, the amount of each
executive’s benefit is the sum of (1) the prior benefit component under the
terminated plan; (2) the stock award component (i.e., the number of shares of
Company stock awarded to the executive under the Atlantic Coast Federal
Corporation 2005 Recognition and Retention Plan held by the executive on
December 11, 2009); and (3) the stock ownership component (i.e., the number of
shares of Company stock directly or beneficially owned by the executive as of
December 11, 2009, excluding vested stock options) then multiplying that total
by either (A) (1) the initial offered price of the common stock of a newly
formed successor corporation that is issued in connection with a second-step
conversion of the Company and further multiplying that amount by (2) the
exchange ratio (i.e., the ratio used to determine the number of shares of common
stock in a successor corporation each outstanding share of Company stock will be
exchanged for in a second-step conversion of the Company); or (B) the fair
market value of the Company Stock as of the date of the executive’s death,
disability, involuntary termination of employment or change in control, if such
death, disability, involuntary termination of employment or change in control
occurs before the closing of a second-step conversion of the
Company.
Messrs.
Larison, Wagers and Insel will each become vested in their plan benefits upon
the earliest to occur of (1) the closing date of a second-step conversion of the
Company; (2) his involuntary termination of employment other than for cause; (3)
a change in control; (4) his death; (5) his disability; or (6) the date the
administrator of the plan (as appointed by the Company’s Board of Directors), in
its sole discretion, accelerates vesting.
Following
vesting, Messrs. Larison, Wagers and Insel will each be paid upon the earliest
of (1) involuntary termination of employment other than for cause; (2)
disability; (3) death; (4) change in control; or (5) attainment of the normal
retirement date stated in the plan. Mr. Larison’s normal retirement
date is February 9, 2012, Mr. Wager’s normal retirement date is January 1, 2014,
and Mr. Insel’s normal retirement date is attainment of age
55. Benefits are paid as a cash lump sum within 30 days after the
change in control, but otherwise are paid in 180 monthly installments starting
on the first day of the month after the date of the payment triggering event,
subject to a six month delay if the employee is a “specified employee” under
Section 409A of the Internal Revenue Code of 1986, as amended.
Similar
changes were made to the reinstated Atlantic Coast Bank 2005 Amended and
Restated Director Retirement Plan and to the Atlantic Coast Bank Amended and
Restated Supplemental Executive Retirement Plan, except the benefits for
participants in the latter plan are calculated only with respect to their
accrued benefits under the prior version of that plan, without including their
Company stock ownership.
The termination of Mr. Parker’s plan
has been reversed, such that benefits will be paid out under the terms of the
original plan.
Effective on December 11, 2009,
Atlantic Coast Bank (the “Bank”), the wholly owned subsidiary of the Company,
entered into a new employment agreement with its President and Chief Executive
Officer, Robert J. Larison, Jr. (the “Agreement”). This Agreement
supercedes Mr. Larison’s existing agreement. The Agreement provides
for a three-year term with an initial salary of $250,000. In addition
to the base salary, the Agreement provides for, among other things,
participation in bonus programs and other employee pension benefit and fringe
benefit plans applicable to executive employees. Upon each
anniversary date of the Agreement, the term may be extended for an additional
year subject to the board of directors conducting a performance review of Mr.
Larison and approving such renewal. Under the Agreement, Mr.
Larison’s employment may be terminated for cause at any time, in which event he
would have no right to receive compensation or other benefits for any period
after termination.
Certain
events resulting in Mr. Larison’s termination or resignation will entitle him to
payments of severance benefits following termination of
employment. Mr. Larison will be entitled to severance benefits under
the Agreement in the event (A) his employment is involuntarily terminated (for
reasons other than cause, death, disability or retirement) or (B) he resigns
during the term of the agreement within two years after any of the following
events: (i) the failure to elect or reelect or to appoint or reappoint him
to his executive position, (ii) a material change in his functions, duties
or responsibilities, which change would cause his position to become of lesser
responsibility, importance or scope of authority, (iii) a material reduction in
his salary or benefits other than as part of an employee wide reduction, (iv) a
relocation of his principal place of employment by more than 50 miles from
either Waycross, Georgia or Jacksonville, Florida or (v) a material breach
of the Agreement by the Bank, which would entitle him to a severance payment
equal to three times his highest annual rate of base salary at any time during
the term of the Agreement and three times his highest annual bonus and
non-equity compensation received during the latest three calendar years prior to
the termination. In addition, he would be entitled, at no expense to
him, to the continuation of substantially comparable life, disability and
non-taxable medical and dental insurance coverage for such period.
Notwithstanding any provision to the contrary in the Agreement, payments under
the Agreement following a change in control are limited so that they will not
constitute an excess parachute payment under Section 280G of the Internal
Revenue Code.
On
December 11, 2009, the Bank also entered into a Non-Compete and Non-Solicitation
Agreement with Mr. Larison, which provides that, in order to protect the
business, trade secrets and other confidential and proprietary information of
the Bank and Company known to Mr. Larison following his termination of
employment for any reason other than cause (as defined in his employment
agreement), for a period of two years following such termination of employment,
(i) Mr. Larison will not directly or indirectly solicit any officer or employee
to terminate their employment with the Bank or the Company; (ii) Mr. Larison
will not accept employment or become affiliated with any competitor of the Bank
or the Company in the same geographic locations where the Bank or the Company
has material business interests; and (ii) Mr. Larison will not solicit or cause
any customer of the Bank to terminate an existing business or commercial
relationship with the Bank.
No later
than 30 days after such termination of Mr. Larison’s employment, the Bank or the
Company shall pay Mr. Larison a cash lump sum equal to two times (i) the highest
annual rate of base salary (as defined in Mr. Larison’s employment agreement)
paid to him at any time under the employment agreement and (ii) the highest
annual bonus and non-equity incentive compensation (as defined in the employment
agreement) paid to him over the most recent two calendar years prior to the
termination of employment; provided, however, that any payment owed to Mr.
Larison under the Non-Compete and Non-Solicitation Agreement shall be reduced by
an amount equal to the amount of any severance pay that Mr. Larison receives
under his employment agreement upon an “event of termination” (as defined in the
employment agreement). Payment may be delayed six months in order to
comply with Section 409A of the Internal Revenue Code of 1986, as amended, if
Mr. Larison is a “specified employee” of the Company as defined in Code Section
409A.
The
Atlantic Coast Bank 2005 Amended and Restated Director Retirement Plan, the
Atlantic Coast Bank Amended and Restated Supplemental Executive Retirement Plan,
the Third Amended and Restated Supplemental Retirement Agreement for Robert J.
Larison, Jr., the Second Amended and Restated Supplemental Retirement Agreement
for Carl W. Insel, the Amended and Restated Supplemental Retirement Agreement
for Thomas B. Wagers, Sr., the Employment Agreement between Atlantic Coast Bank
and Robert J. Larison, Jr. and the Non-Compete and Non-Solicitation Agreement
between Atlantic Coast Bank and Robert J. Larison, Jr. are attached as Exhibits
10.1, 10.2, 10.3, 10.4, 10.5, 10.6 and 10.7, respectively to this Current Report
on Form 8-K.
Item
9.01. Financial Statements and Exhibits.
(a)
|
Financial Statements of
Businesses Acquired: None
|
(b)
|
Pro Forma Financial
Information: None
|
(c)
|
Shell company transactions:
None
|
(d)
|
Exhibits:
|
Exhibit
10.1: Atlantic
Coast Bank 2005 Amended and Restated Director Retirement
Plan
Exhibit
10.2: Atlantic
Coast Bank Amended and Restated Supplemental Executive Retirement
Plan
|
|
|
Exhibit
10.3: Third Amended and Restated Supplemental Retirement Agreement for
Robert J. Larison, Jr.
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|
Exhibit
10.4: Second Amended and Restated Supplemental Retirement Agreement for
Carl W. Insel
|
|
Exhibit
10.5: Amended
and Restated Supplemental Retirement Agreement for Thomas B.
Wagers, Sr.
|
|
Exhibit
10.6: Employment Agreement between Atlantic Coast Bank and Robert J.
Larison, Jr.
|
|
Exhibit
10.7: Non-Compete
and Non-Solicitation Agreement between Atlantic Coast Bank and Robert J.
Larison, Jr.
|
|
Exhibit
99.1: Press Release dated December 17,
2009
|
SIGNATURES
Pursuant to the requirements of the
Securities Exchange Act of 1934, the registrant has duly caused this report to
be signed on its behalf by the undersigned hereunto duly
authorized.
ATLANTIC COAST FEDERAL CORPORATION | |||
Date: December
17, 2009
|
By:
|
/s/ Robert J. Larison, Jr. | |
Robert
J. Larison, Jr.
President
and Chief Executive Officer
(Duly
Authorized Representative)
|
|||