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DEFERRED COMPENSATION PLAN

Employee Benefits Plan Agreement

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South Financial Group, Inc

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Title: DEFERRED COMPENSATION PLAN
Governing Law: South Carolina     Date: 8/20/2007
Industry: Regional Banks     Sector: Financial

DEFERRED COMPENSATION PLAN, Parties: south financial group  inc
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The South Financial Group

2005 Executive and Director

Deferred Compensation Plan

 

 

 

 

 

 

 

Effective January 1, 2005

 

 

THE SOUTH FINANCIAL GROUP

2005 EXECUTIVE AND DIRECTOR

DEFERRED COMPENSATION PLAN

 

Effective January 1, 2005

 

Purpose

The South Financial Group 2005 Executive and Director Deferred Compensation Plan (“Plan”) is entered into effective as of January 1, 2005, in order to provide specified benefits to a select group of management or highly compensated Employees and Directors who contribute materially to the continued growth, development and future business success of The South Financial Group, Inc., a South Carolina corporation (“Company”), and its subsidiaries, if any, that sponsor this Plan.

The Company also maintains for the benefit of certain Employees and Directors The South Financial Group Executive and Director Deferred Compensation Plan originally dated March 3, 2000, (as amended and/or restated, the “Prior Plan”). In response to the enactment of Code Section 409A, the Prior Plan was frozen as of December 31, 2004 so that the benefits payable under the Prior Plan are limited to those benefits, including earnings accrued after December 31, 2004, that are not subject to Code Section 409A because they were earned and vested as of December 31, 2004 (i.e., they are “grandfathered” within the meaning of Treasury Regulations Section 409A-6(a)(3)(ii) and (iv).

Accordingly, one of the purposes of this Plan is to continue to provide benefits to Participants that would have been payable under the Prior Plan had the Prior Plan not been frozen, subject to such changes as are required because the “non-grandfathered” benefits payable under this Plan are subject to Code Section 409A. The benefits provided under this Plan include not only all amounts deferred on and after January 1, 2005, but also any amounts deferred under the Prior Plan that were not vested as of December 31, 2004.

This Plan shall be unfunded for tax purposes and for purposes of Title I of ERISA. This Plan is a “Top Hat” plan within the meaning of Section 201(2), 201(a)(3), and 401(a)(1) of ERISA. As such, this Plan is subject to limited ERISA reporting and disclosure requirements, and is exempt from all other ERISA requirements. Distributions required or contemplated by this Plan or actions required to be taken under this Plan shall not be construed as creating a trust of any kind of a fiduciary relationship between the Company and any Participant, any Participant’s designated beneficiary, or any other person.

 

ARTICLE 1

Definitions

For the purposes of this Plan, unless otherwise clearly apparent from the context, the following phrases or terms shall have the following indicated meanings:

1.1

“Account Balance” shall mean, with respect to a Participant, a credit on the records of the Employer equal to the sum of (i) the Deferral Account balance, (ii) the Company Match Account balance, and (iii) the Restricted Stock Award Account balance. The Account Balance, and each other specified account balance, shall be a bookkeeping entry only and shall be utilized solely as a device for the measurement and determination of the amounts to be paid to a Participant, or his or her designated Beneficiary, pursuant to this Plan.

1.2

“Annual Bonus” shall mean any compensation, other than Base Annual Salary, related to services performed by a Participant during a Plan Year, under any Employer’s Annual Bonus and cash incentive plans, excluding stock options.

1.3

“Annual Company Match Amount” shall mean, for any one Plan Year, the amount determined in accordance with Section 3.6.

1.4

“Annual Deferral Amount” shall mean that portion of a Participant’s Base Annual Salary, Annual Bonus, and Director Fees that a Participant defers in accordance with Article 3 for any one Plan Year. In the event of a Participant’s Retirement, death or a Termination of Employment prior to the end of a Plan Year, such year’s Annual Deferral Amount shall be the actual amount withheld prior to such event.

1.5

“Annual Installment Method” shall be an annual installment payment (which shall be deemed to be a “single” payment for purposes of Code Section 409A) over the number of years selected by the Participant in accordance with this Plan, calculated as follows: (i) for the first annual installment, the vested Account Balance of the Participant shall be calculated as of the close of business on or around the date on which the Participant Retires, as determined by the Committee in its sole discretion, and (ii) for remaining annual installments, the vested Account Balance of the Participant shall be calculated on every applicable anniversary of the date on which the Participant Retires. Each annual installment shall be calculated by multiplying this balance by a fraction, the numerator of which is one and the denominator of which is the remaining number of annual payments due the Participant. By way of example, if the Participant elects a ten (10) year Annual Installment Method, the first payment shall be 1/10 of the vested Account Balance, calculated as described in this definition. The following year, the payment shall be 1/9 of the vested Account Balance, calculated as described in this definition. Shares of Stock that shall be distributable from The South Financial Group Stock Fund shall be distributable in shares of actual Stock in the same manner previously described. However, the Committee may, in its sole discretion, adjust the annual installments in order to distribute whole shares of actual Stock.

 

 

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1.6

“Base Annual Salary” shall mean the annual cash compensation relating to services performed during any calendar year, excluding bonuses, commissions, overtime, fringe benefits, stock options, relocation expenses, incentive payments, non-monetary awards, director fees and other fees, and automobile and other allowances paid to a Participant for employment services rendered (whether or not such allowances are included in the Employee’s gross income). Base Annual Salary shall be calculated before reduction for compensation voluntarily deferred or contributed by the Participant pursuant to all qualified or non-qualified plans of any Employer and shall be calculated to include amounts not otherwise included in the Participant’s gross income under Code Sections 125, 132(f)(4), 402(e)(3), 402(h), or 403(b) pursuant to plans established by any Employer; provided, however, that all such amounts will be included in compensation only to the extent that had there been no such plan, the amount would have been payable in cash to the Employee.

 

1.7

“Beneficiary” shall mean one or more persons, trusts, estates or other entities, designated in accordance with Article 11, that are entitled to receive benefits under this Plan upon the death of a Participant.

1.8

“Beneficiary Designation Form” shall mean the form established from time to time by the Committee that a Participant completes, signs and returns to the Committee to designate one or more Beneficiaries.

1.9

“Board” shall mean the board of directors of the Company.

1.10

“Change in Control” shall mean (“Change in Control” definition):

 

(a)

when any Person or Persons acting as a “group” (within the meaning of Section 13(d)(3) or 14(d)(2) of the “Exchange Act” and within the meaning of Code Section 409A and applicable regulations thereunder) acquires directly or indirectly, securities of the Company representing an aggregate of more than 50% of the combined voting power of the Company’s then outstanding voting securities other than an acquisition by:

 

(i)

an acquisition by any employee plan established by the Company;

 

(ii)

an acquisition by the Company or any of its affiliates (as defined in Rule 12b-2 promulgated under the Exchange Act);

 

(iii)

an acquisition by an underwriter temporarily holding securities pursuant to an offering of such securities;

 

(iv)

an acquisition by a corporation owned, directly or indirectly, by stockholders of the Company in substantially the same proportions as their ownership of the Company; or

 

(v)

except as provided in clause (c) below, merger or consolidation of the Company with any other corporation which is duly approved by the stockholders of the Company; or

 

 

 

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(b)

when a majority of the board of directors of the Company is replaced during any 12-month period and such new appointments are not approved by a majority of the members of the current Board prior to the date of appointment or election; or

 

(c)

when the stockholders of the Company approve a merger or consolidation of the Company with any other corporation other than (i) a merger or consolidation that would result in the voting securities of the Company outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into voting securities of the surviving entity or any parent thereof), in combination with the ownership of any trustee or other fiduciary holding securities under an employee benefit plan of any Company, at least a majority of the combined voting power of the voting securities of the Company or such surviving entity or any parent thereof outstanding immediately after such merger or consolidation; or (ii) a merger or consolidation effected to implement a recapitalization of the Company (or similar transaction) in which no Person is or becomes the beneficial owner (as defined in clause (a) above), directly or indirectly, of securities of the Company (not including in the securities beneficially owned by such Person any securities acquired directly from the Company) representing a majority of the combined voting power of the Company’s then outstanding voting securities; or (iii) a plan of complete liquidation of the Company or an agreement for the sale or disposition by the Company of all or substantially all of the Company’s assets.

1.11

“Change in Control Benefit” shall have the meaning set forth in Article 6.

1.12

“Claimant” shall have the meaning set forth in Section 16.1.

1.13

“Code” shall mean the Internal Revenue Code of 1986, as it may be amended from time to time, and the regulations promulgated thereunder.

1.14

“Committee” shall mean the committee described in Article 14.

1.15

“Company” shall mean The South Financial Group, Inc., a South Carolina corporation, and any successor to all or substantially all of the Company’s assets or business.

1.16

“Company Match Account” shall mean (i) that portion of a Participant’s Account Balance which is represented by the Participant’s aggregate 10% company match described in Section 3.7 of the Prior Plan, which was transferred to and is being held under the terms of this Plan, as well as any appreciation (or depreciation) specifically attributable to such matching amounts accumulated under the Prior Plan, plus (ii) the sum of the Participant’s Annual Company Match Amounts, plus (iii) amounts credited or debited in accordance with all the applicable crediting and debiting provisions of this Plan that relate to the Participant’s Company Match Account, less (iv) all distributions made to the Participant or his or her Beneficiary pursuant to this Plan that relate to the Participant’s Company Match Account.

1.17

“Deduction Limitation” shall mean the limitation on a benefit that may otherwise be distributable pursuant to the provisions of this Plan, as set forth in Article 4.

 

 

 

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1.18

“Deferral Account” shall mean (i) the sum of all of a Participant’s Annual Deferral Amounts, plus (ii) amounts credited in accordance with all the applicable crediting and debiting provisions of this Plan that relate to the Participant’s Deferral Account, less (iii) all distributions made to the Participant or his or her Beneficiary pursuant to this Plan that relate to his or her Deferral Account.

1.19

“Director” shall mean any member of the board of directors of any Employer.

1.20

“Director Fees” shall mean the annual fees paid by any Employer, including retainer fees and meetings fees, as compensation for serving on the board of directors.

1.21

“Disability” or “Disabled” shall mean any medically determinable physical or mental impairment that can be expected to result in death or can be expected to last for a continuous period of not less than 12 months which results in (i) the Participant being unable to engage in any substantial gainful activity or (ii) the Participant receiving income replacement benefits for a period of not less than 3 months under an accident and health plan covering employees of the Company. In addition, the Participant will be deemed disabled if determined to be totally disabled by the Social Security Administration, or if determined to be disabled in accordance with a disability insurance program provided the definition of disability applied under such disability insurance program complies with the requirements of the preceding sentence.

1.22

“Disability Benefit” shall mean the benefit set forth in Article 9.

1.23

“Election Form” shall mean the form established from time to time by the Committee that a Participant completes, signs and returns to the Committee to make an election under the Plan. Notwithstanding anything to the contrary, any subsequent election that delays a payment or changes a form of payment under the Plan as a result of the completion of a new Election Form shall comply with the requirements of Code Section 409A(a)(4)(C).

1.24

“Employee” shall mean a person who is an employee of any Employer.

1.25

“Employer(s)” shall mean the Company and/or any of its subsidiaries (now in existence or hereafter formed or acquired) that have been selected by the Board to participate in the Plan and have adopted the Plan as a sponsor.

1.26

“Exchange Act” shall mean the Securities Exchange Act of 1934, as amended.

1.27

“ERISA” shall mean the Employee Retirement Income Security Act of 1974, as it may be amended from time to time.

1.28

“In-Service Distribution” shall mean the distribution set forth in Section 5.1.

1.29

“Participant” shall mean any Employee or Director (i) who is selected to participate in the Plan, (ii) who elects to participate in the Plan, (iii) who signs a Plan Agreement, an Election Form and a Beneficiary Designation Form, (iv) whose signed Plan Agreement, Election Form and Beneficiary Designation Form are accepted by the Committee, (v) who commences participation

 

 

 

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in the Plan, and (vi) whose Plan Agreement has not terminated. A spouse or former spouse of a Participant shall not be treated as a Participant in the Plan or have an account balance under the Plan, even if he or she has an interest in the Participant’s benefits under the Plan as a result of applicable law or property settlements resulting from legal separation or divorce.

1.30

“Person” shall mean any individual, corporation, bank, partnership, joint venture, association, joint stock company, trust, unincorporated corporation or other entity.

1.31

“Plan” shall mean The South Financial Group 2005 Executive and Director Deferred Compensation Plan, which shall be evidenced by this instrument and by each Plan Agreement, as they may be amended from time to time.

1.32

“Plan Agreement” shall mean a written agreement, as may be amended from time to time, which is entered into by and between an Employer and a Participant. Each Plan Agreement executed by a Participant and the Participant’s Employer shall provide for the entire benefit to which such Participant is entitled under the Plan; should there be more than one Plan Agreement, the Plan Agreement bearing the latest date of acceptance by the Employer shall supersede all previous Plan Agreements in their entirety and shall govern such entitlement. The terms of any Plan Agreement may be different for any Participant, and any Plan Agreement may provide additional benefits not set forth in the Plan or limit the benefits otherwise provided under the Plan; provided, however, that any such additional benefits or benefit limitations must be agreed to by both the Employer and the Participant.

1.33

“Plan Year” shall mean a period beginning on January 1 of each calendar year and continuing through December 31 of such calendar year.

1.34

“Restricted Stock Award(s)” shall mean any performance share grant award that a Participant elects to defer with respect to The South Financial Group, Inc. Long Term Incentive Plan (January 1, 2001); any restricted stock award that a Participant elects to defer with respect to The South Financial Group, Inc. 2004 Long Term Incentive Plan; or any restricted stock award that a Participant elects to defer with respect to any other plan or program sponsored by the Company that provides for restricted stock awards and allows Participants to defer receipt of such restricted stock awards. Notwithstanding any other provision of this Plan, Restricted Stock Awards may not be deferred by a Participant after December 31, 2006.

1.35

“Restricted Stock Award Account” shall mean the aggregate value, measured on any given date, of (i) the number of all shares of Stock deferred into the Plan by a Participant as a result of all Restricted Stock Awards, including all such shares of Stock that were deferred into the Prior Plan but which were transferred to and are being held under the terms of this Plan because such shares were not vested as of December 31, 2004 under the Code Section 409A grandfathering rules, plus (ii) the number of additional shares of Stock credited as a result of the deemed reinvestment of dividends in accordance with the applicable crediting provisions of The South Financial Group Stock Fund, less (iii) the number of shares of Stock distributed to the Participant or his or her Beneficiary pursuant to this Plan, subject in each case to any adjustments to the number of such shares determined by the Committee with respect to The South Financial Group

 

 

 

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Stock Fund pursuant to Section 3.8. This portion of a Participant’s Account Balance shall only be distributable in actual shares of Stock.

1.36

“Retirement” , “Retire(s)” or “Retired” shall mean, with respect to an Employee, separation from service from all Employers within the meaning of Treasury Regulations Section 1.409A-1(h) (and from all entities that are considered a single employer with the Employers under Code Sections 414(b) and 414(c)), for any reason other than a leave of absence, death or Disability on or after the earlier of the attainment of age sixty-five (65), or age fifty-five (55) with five (5) Years of Service; and shall mean with respect to a Director who is not an Employee, severance of his or her directorships with all Employers and related entities as described in the previous sentence. If a Participant is both an Employee and a Director, Retirement shall be deemed to be a Retirement as an Employee under the provisions of this Section 1.36. In other words, Employees who also serve as Directors are only eligible to participate in plans available to them as employees of the Company and are not eligible to participate in plans available to them as Directors.

1.37

“Retirement Benefit” shall mean the benefit set forth in Article 7.

1.38

“Stock” shall mean Company common stock, or any other equity securities of the Company designated by the Committee.

1.39

“Survivor Benefit” shall mean the benefit set forth in Article 10.

1.40

“Termination Benefit” shall mean the benefit set forth in Article 8.

1.41

“Termination of Employment” means the termination of the Executive's employment with the Company and all of its subsidiaries or affiliates that are considered a single employer within the meaning of Code Sections 414(b) and 414(c), provided that in applying Code Sections 1563(a)(1), (2) and (3) for purposes of determining a controlled group of corporations under Code Section 414(b), the language "at least 50 percent" is used instead of "at least 80 percent" each place it appears, and in applying Treasury Regulation Section 1.414(c)-2 for purposes of determining trades or businesses (whether or not incorporated) that are under common control for purposes of Code Section 414(c), "at least 50 percent" is used instead of "at least 80 percent" each place it appears. Whether a Termination of Employment has occurred is determined based on whether the facts and circumstances indicate that the employer and Executive reasonably anticipated that no further services would be performed after a certain date or that the level of bona fide services the Executive would perform after such date (whether as an employee or as an independent contractor) would permanently decrease to no more than 20 percent of the average level of bona fide services performed (whether as an employee or an independent contractor) over the immediately preceding 36-month period (or the full period of services to the employer if the Executive has been providing services to the employer less than 36 months).

Temporary absences from employment while the Executive is on military leave, sick leave, or other bona fide leave of absence will not be considered a Termination of Employment if the period of such leave does not exceed six months, or if longer, so long as the Executive's right to reemployment with the Company is provided either by statute or by contract. However, if the

 

 

 

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period of leave exceeds six months and the Executive's right to reemployment is not provided either by statute or by contract, a Termination of Employment is deemed to occur on the first day immediately following such six-month period. Notwithstanding the foregoing, where a leave of absence is due to any medically determinable physical or mental impairment that can be expected to result in death or can be expected to last for a continuous period of not less than six months, where such impairment causes the Executive to be unable to perform the duties of his or her position of employment or any substantially similar position of employment, a 29-month period of absence may be substituted for such six-month period.

1.42

“Unforeseeable Emergency” shall mean unforeseeable emergency, consistent with Code Section 409A and the treasury regulations thereunder, that would result in severe financial hardship to the Participant resulting from (i) an illness or accident of the Participant, or the Participant’s spouse, Beneficiary or dependent (as defined in Code Section 152(a)), (ii) a loss of the Participant’s property due to casualty, or (iii) other such similar, extraordinary and unforeseeable circumstances arising as a result of events beyond the control of the Participant. The existence of an Unforeseeable Emergency will be determined by the Committee on the basis of the relevant facts and circumstances of each case, including information supplied by the Participant in accordance with uniform guidelines prescribed from time to time by the Committee; provided, the Participant will be deemed not to have an Unforeseeable Emergency to the extent that such hardship is or may be relieved:

 

(i)

Through reimbursement or compensation by insurance or otherwise;

 

(ii)

By liquidation of the Participant’s assets, to the extent the liquidation of such assets would not itself cause severe financial hardship; or

 

(iii)

By cessation of deferrals under the Plan.

For example, the purchase of a home and the payment of college tuition generally may not be considered an Unforeseeable Emergency. The imminent foreclosure of or eviction from the Participant’s primary residence may constitute an Unforeseeable Emergency. In addition, the need to pay for medical expenses, including nonrefundable deductibles, as well as for the costs of prescription drug medication, may constitute an Unforeseeable Emergency. Finally, the need to pay for the funeral expense of a Participant’s spouse, a Beneficiary, or a dependent (as defined in Section 152(a), without regard to Section 152(b)(1), (b)(2), and (d)(1)(B)) may also constitute an Unforeseeable Emergency.

1.43

“Years of Service” shall mean the total number of full years in which a Participant has been employed by one or more Employers. For purposes of this definition, a year of employment shall be a 365 day period (or 366 day period in the case of a leap year) that, for the first year of employment, commences on the Employee’s date of hiring and that, for any subsequent year, commences on an anniversary of that hiring date. The Committee shall make a determination as to whether any partial year of employment shall be counted as a Year of Service.

 

 

 

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ARTICLE 2

Selection, Enrollment, and Eligibility

2.1

Selection by Committee. Participation in the Plan shall be limited to a select group of management or highly compensated Employees (as defined in Sections 201(2), 301(a)(3) and 401(a)(1) of ERISA) and Directors of the Employer, as determined by the Committee in its sole discretion. From that group, the Committee shall select, in its sole discretion, Employees and Directors to participate in the Plan.

2.2

Enrollment Requirements. As a condition of participation in the Plan, each selected Employee or Director shall complete, execute and return to the Committee a Plan Agreement, an Election Form for each Plan Year, and a Beneficiary Designation Form for the initial deferral or for any subsequent change in Beneficiary. Deferral elections and Election Forms shall be provided as described in Section 3.3. In addition, each Employee must be an active participant in The South Financial Group, Inc., 401(k) Plan or a similar Code Section 401(k) plan sponsored by any Employer. Also, the Committee shall establish from time to time such other enrollment requirements as it determines in its sole discretion are necessary, provided such enrollment requirements are consistent with Code Section 409A and applicable treasury regulations and published regulatory or other guidance.

2.3

Eligibility; Commencement of Participation. Provided an Employee or Director selected to participate in the Plan has met all enrollment requirements set forth in this Plan and required by the Committee, including returning all required documents to the Committee within the specified time period, that Employee or Director shall commence participation in the Plan on the first day of the month following the month in which the Employee completes all enrollment requirements. If an Employee or Director fails to meet all such requirements within the period required, in accordance with Sections 2.2 and 3.3, that Employee or Director shall not be eligible to participate in the Plan until the first day of the Plan Year following the delivery to and acceptance by the Committee of the required documents.

2.4

Termination of Participation and/or Deferrals. If the Committee determines in good faith that a Participant who is an Employee no longer qualifies as a member of a select group of management or highly compensated employees, as membership in such group is determined in accordance with Sections 201(2), 301(a)(3) and 401(a)(1) of ERISA and is not also a Director, the Committee shall have the right, in its sole discretion, to (i) terminate any deferral election the Participant has made effective as of the last day of the Plan Year in which the Participant’s membership status changes, (ii) prevent the Participant from making future deferral elections and/or (iii) terminate the Participant’s participation in the Plan effective as of the last day of a Plan Year. If a Participant who is a Director ceases to be a Director and is not an Employee, the Committee shall have the right, in its sole discretion, to terminate the Participant’s participation in the Plan.

 

 

 

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ARTICLE 3

Deferral Commitments/Company Match Amounts/Vesting/Crediting/Taxes

3.1

Minimum Deferrals.

 

(a)

Annual Deferral Amount . For each Plan Year, a Participant may elect to defer, as his or her Annual Deferral Amount, Base Annual Salary, Annual Bonus, and/or Director Fees in the following minimum amounts for each deferral elected:

Deferral

Minimum Amount

Base Annual Salary

$1,000

Annual Bonus

$1,000

Director Fees

$1,000

If an election is made for less than the stated minimum amounts, or if no election is made, the amount deferred shall be zero.

 

(b)

Restricted Stock Awards . A Participant may elect to defer into the Plan his or her Restricted Stock Awards in the following minimum number of shares for each Plan Year:

Deferral

Minimum Amount

Restricted Stock Awards

100 Shares

 

If an election is made for less than the stated minimum number of shares, or if no election is made, the shares deferred shall be zero. Notwithstanding any other provision of this Plan, Restricted Stock Awards may not be deferred by a Participant after December 31, 2006.

 

(c)

Short Plan Year . Notwithstanding the foregoing, if a Participant first becomes a Participant after the first day of a Plan Year, the minimum Annual Deferral Amount shall be an amount equal to the minimum set forth above, multiplied by a fraction, the numerator of which is the number of complete months remaining in the Plan Year and the denominator of which is 12.

3.2

Maximum Deferral.

 

(a)

Annual Deferral Amount . For each Plan Year, a Participant may elect to defer, as his or her Annual Deferral Amount, Base Annual Salary, Annual Bonus, and/or Director Fees up to the following maximum percentages for each deferral elected:

Deferral

Maximum Amount

Base Annual Salary

80%

Annual Bonus

100%

Director Fees

100%

 

 

 

 

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(b)

Restricted Stock Awards . A Participant may elect to defer into the Plan his or her Restricted Stock Awards up to the following maximum percentage for each Plan Year:

Deferral

Maximum Amount

Restricted Stock Awards

100%

 

Restricted Stock Awards may also be limited by other terms or conditions set forth in the Company’s applicable Long Term Incentive Plan or other Company-sponsored plan or program that allows Participants to defer receipt of such Restricted Stock Awards. Notwithstanding any other provision of this Plan, Restricted Stock Awards may not be deferred by a Participant after December 31, 2006.

 

(c)

Short Plan Year . Notwithstanding the foregoing, if a Participant first becomes a Participant after the first day of a Plan Year, the maximum Annual Deferral Amount (i) with respect to Base Annual Salary and Director Fees shall be limited to the amount of compensation not yet earned by the Participant as of the date the Participant submits a Plan Agreement and Election Form to the Committee for acceptance, and (ii) with respect to Annual Bonus, shall be limited to those amounts deemed eligible for deferral, in the sole discretion of the Committee, provided such discretion is exercised in a manner which is consistent with Code Section 409A and applicable treasury regulations and other published regulatory or other guidance.

3.3

Election to Defer; Effect of Election Form.

 

(a)

First Plan Year . In the case of the first Plan Year in which a selected Employee or Director becomes eligible to participate in the Plan, he or she may make an irrevocable initial deferral election within thirty (30) days after the date he or she first becomes eligible to participate under this plan or a similar plan as determined under Code Section 409A and related treasury regulations, with respect to compensation paid for services to be rendered subsequent to the election, along with such other elections as the Committee deems necessary or desirable under the Plan. For these elections to be valid, the Election Form must be completed and signed by the Participant, and timely delivered to the Committee and accepted by the Committee.

 

(b)

Subsequent Plan Years . For each succeeding Plan Year, an irrevocable deferral election for that Plan Year, and such other elections as the Committee deems necessary or desirable under the Plan, shall be made by timely delivering a new Election Form to the Committee, in accordance with its rules and procedures, before the end of the Plan Year preceding the Plan Year for which the election is made. If no such Election Form is timely delivered for a Plan Year, the Annual Deferral Amount shall be zero for that Plan Year.

 

(c)

Deferral Election for Performance-Based Compensation . Notwithstanding the preceding, in the case of any “performance-based compensation” based on services performed over a period of at least twelve (12) months as determined by the Committee in accordance with

 

 

 

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Code Section 409A and regulations and applicable guidance thereunder (including Treasury Regulations Section 1.409A-1(e)), an initial deferral election may be made with respect to such performance-based compensation no later than the date that is six months before the end of the performance period, provided that the Participant performs services continuously from the later of the beginning of the performance period or the date upon which the performance criteria are established through the date the Participant makes an initial deferral election hereunder, and provided further that in no event may an election to defer performance-based compensation be made after such compensation has become readily ascertainable.

3.4

Withholding and Crediting of Annual Deferral Amounts. For each Plan Year, the Base Annual Salary portion of the Annual Deferral Amount or deferred Director Fees shall be withheld from each regularly scheduled Base Annual Salary or Director Fees payroll in equal amounts, as adjusted from time to time for increases and decreases in Base Annual Salary or Director Fees. The Annual Bonus portion of the Annual Deferral Amount shall be withheld at the time the Annual Bonus would be paid to the Participant, whether or not this occurs during the Plan Year itself. Annual Deferral Amounts and deferred Director Fees shall be credited to a Participant’s Deferral Account at the time such amounts would otherwise have been paid to the Participant.

3.5

Transfer and Crediting of Restricted Stock Awards. For each Plan Year prior to January 1, 2007, the Restricted Stock Award that a Participant elects to defer (which deferral must occur on or before December 31, 2006) shall be transferred and credited to the Plan as of the date provided in the plan or program providing the Restricted Stock Award. Shares of stock included in the Restricted Stock Award shall be maintained in The South Financial Group Stock Fund as provided in Section 3.8(c) of the Plan.

3.6

Annual Company Match Amount. For each Plan Year, the Company shall match a Participant’s Annual Deferral Amount up to a maximum of 10% of such deferrals. The Annual Company Match Amount shall be credited to a Participant’s Annual Company Match Account at the same time the Annual Deferral Amounts are made. Notwithstanding this provision, deferred Directors Fees are not eligible for an Annual Company Match. In addition, the Company shall match amounts deferred under The South Financial Group Securities Division Annual Incentive Plan prior to January 1, 2008 at 100% of such deferrals.

3.7

Vesting.

 

(a)

A Participant shall at all times be 100% vested in his or her Deferral Account.

 

(b)

A Participant shall not vest in his or her Restricted Stock Award Account until such time or times, and pursuant to the terms and conditions, set forth in the Company-sponsored plan or program that provided the Restricted Stock Award.

 

(c)

A Participant shall not vest to any extent in an Annual Company Match Amount until the January 1 immediately following the fifth year anniversary of the Annual Company Match Amount, at which point the Participant shall become 100% vested  in such

 

 

 

12

 

Amount, provided that he has remained continuously employed by one or more Employers during such period. For example, for Annual Company Match Amounts made for the 2002 Plan Year, a Participant will vest 100% in those amounts on January 1, 2008 (assuming he was continuously employed by one or more Employers from the 2002 Plan Year through January 1, 2008).

 

(d)

Notwithstanding anything to the contrary contained in this Section 3.7, in the event of a Change in Control, or upon a Participant’s Retirement, death while employed by an Employer, or Disability, a Participant’s Company Match Account shall immediately become 100% vested (if it is not already vested in accordance with the above vesting schedules).

 

(e)

Notwithstanding subsection 3.7(d) above, the vesting schedule for a Participant’s Company Match Account shall not be accelerated to the extent that the Committee determines that such acceleration would cause the deduction limitations of Section 280G of the Code to become effective. In the event that all of a Participant’s Company Match Account is not vested pursuant to such a determination, the Participant may request independent verification of the Committee’s calculations with respect to the application of Section 280G. In such case, the Committee must provide to the Participant within ninety (90) days of such a request an opinion from a nationally recognized accounting firm selected by the Participant (the “Accounting Firm”). The opinion shall state the Accounting Firm’s opinion that any limitation in the vested percentage hereunder is necessary to avoid the limits of Section 280G and contain supporting calculations. The cost of such opinion shall be paid for by the Company.

 

(f)

Section 3.7(e) shall not prevent the acceleration of the vesting schedule applicable to a Participant’s Company Match Account if such Participant is entitled to a “gross-up” payment, to eliminate the effect of the Code section 4999 excise tax, pursuant to his or her employment agreement or other agreement entered into between such Participant and the Employer.

3.8

Crediting/Debiting of Account Balances. In accordance with, and subject to, the rules and procedures that are established from time to time by the Committee, in its sole discretion, amounts shall be credited or debited to a Participant’s Account Balance in accordance with the following rules:

 

(a)

Measurement Funds . Subject to the restrictions found in Section 3.8.(c) below, the Participant may elect one or more of the measurement funds selected by the Committee, in its sole discretion, which are based on certain mutual funds (the “Measurement Funds”), for the purpose of crediting or debiting additional amounts to his or her Account Balance. As necessary, the Committee may, in its sole discretion, discontinue, substitute or add a Measurement Fund. Each such action will take effect as of the first day of the first calendar quarter that begins at least thirty (30) days after the day on which the Committee gives Participants advance written notice of such change.

 

 

 

13

 

 

(i)

Prime Rate Fund. Amounts deferred in


 
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