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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:
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1.1
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“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.
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1.2
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“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.
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1.3
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“Annual Company Match
Amount” shall mean, for any one
Plan Year, the amount determined in accordance with Section
3.6.
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1.4
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“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.
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1.5
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“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
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“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.
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1.7
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“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.
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1.8
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“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.
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1.9
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“Board” shall mean the board of directors of the Company.
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1.10
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“Change in Control”
shall mean (“Change in Control”
definition):
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(a)
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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:
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(i)
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an acquisition by any employee plan established by
the Company;
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(ii)
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an acquisition by the Company or any of its
affiliates (as defined in Rule 12b-2 promulgated under the Exchange
Act);
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(iii)
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an acquisition by an underwriter temporarily holding
securities pursuant to an offering of such securities;
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(iv)
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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
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(v)
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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)
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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
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(c)
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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.
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1.11
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“Change in Control
Benefit” shall have the meaning set
forth in Article 6.
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1.12
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“Claimant” shall have the meaning set forth in
Section 16.1.
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1.13
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“Code” shall mean the Internal Revenue Code of 1986, as it may be
amended from time to time, and the regulations promulgated
thereunder.
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1.14
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“Committee” shall mean the committee described in
Article 14.
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1.15
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“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.
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1.16
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“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.
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1.17
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“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
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“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.
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1.19
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“Director” shall mean any member of the board of directors of any
Employer.
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1.20
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“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.
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1.21
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“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.
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1.22
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“Disability Benefit”
shall mean the benefit set forth in
Article 9.
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1.23
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“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).
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1.24
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“Employee” shall mean a person who is an employee of any
Employer.
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1.25
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“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.
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1.26
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“Exchange Act” shall mean the Securities Exchange Act of 1934, as
amended.
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1.27
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“ERISA” shall mean the Employee Retirement Income Security Act of 1974,
as it may be amended from time to time.
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1.28
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“In-Service Distribution”
shall mean the distribution set forth in
Section 5.1.
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1.29
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“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.
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1.30
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“Person” shall mean any individual, corporation, bank, partnership,
joint venture, association, joint stock company, trust,
unincorporated corporation or other entity.
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1.31
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“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.
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1.32
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“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.
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1.33
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“Plan Year” shall mean a period beginning on January 1 of each calendar
year and continuing through December 31 of such calendar
year.
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1.34
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“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.
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1.35
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“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.
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1.36
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“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.
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1.37
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“Retirement Benefit”
shall mean the benefit set forth in
Article 7.
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1.38
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“Stock” shall mean Company common stock, or any other equity securities
of the Company designated by the Committee.
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1.39
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“Survivor Benefit”
shall mean the benefit set forth in
Article 10.
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1.40
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“Termination Benefit”
shall mean the benefit set forth in
Article 8.
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1.41
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“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).
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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
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.
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1.42
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“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:
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(i)
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Through reimbursement or compensation by insurance
or otherwise;
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(ii)
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By liquidation of the Participant’s assets, to
the extent the liquidation of such assets would not itself cause
severe financial hardship; or
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(iii)
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By cessation of deferrals under the Plan.
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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.
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1.43
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“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
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2.1
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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.
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2.2
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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.
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2.3
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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.
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2.4
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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
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(a)
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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:
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Deferral
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Minimum Amount
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Base Annual Salary
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$1,000
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Annual Bonus
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$1,000
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Director Fees
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$1,000
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If an election is made for less than the stated
minimum amounts, or if no election is made, the amount deferred
shall be zero.
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(b)
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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:
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Deferral
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Minimum Amount
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Restricted Stock Awards
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100 Shares
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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.
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(c)
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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.
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(a)
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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:
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Deferral
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Maximum Amount
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Base Annual Salary
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80%
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Annual Bonus
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100%
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Director Fees
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100%
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(b)
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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:
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Deferral
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Maximum Amount
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Restricted Stock Awards
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100%
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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.
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(c)
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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.
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3.3
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Election to Defer; Effect of Election
Form.
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(a)
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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.
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(b)
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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.
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(c)
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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.
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3.4
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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.
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3.5
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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.
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3.6
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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.
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(a)
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A Participant shall at all times be 100% vested in
his or her Deferral Account.
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(b)
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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.
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(c)
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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
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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).
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(d)
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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).
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(e)
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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.
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(f)
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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.
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3.8
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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:
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(a)
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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.
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(i)
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Prime Rate Fund. Amounts deferred in
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