THE SOUTH FINANCIAL GROUP
AMENDED AND RESTATED EMPLOYEE STOCK PURCHASE PLAN
I. PURPOSE
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The purpose of the Amended and Restated Employee Stock Purchase Plan
(the "Plan") is to provide employees of The South Financial Group (formerly
known as Carolina First Corporation)(the "Company") and its Subsidiaries with
the opportunity to acquire proprietary interest in the Company through the
purchase of Common Stock through a payroll deduction plan. The Plan is designed
to qualify as a employee stock purchase plan under Section 423 of the Code and
shall be deemed to incorporate by reference any provisions from Section 423
which are necessary to its qualification thereunder.
II. DEFINITIONS
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For purposes of the Plan and its administration, the following terms
shall have the meanings indicated:
Administrator shall have the meaning set forth in Section IV.
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Base Compensation means the regular base earnings and commissions paid
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to an Eligible Employee by the Company during such individual's period of
participation in the Plan, plus any salary deferral contributions made by such
individual to the Company's 401(k) Plan during such period, but excluding all
overtime payments, bonuses and other incentive-type payments and all
contributions (other than Code Section 125 or Section 401(k) contributions) made
by the Company for such individual's benefit under any employee benefit or
welfare plan now or hereafter established.
Board means the Board of Directors of the Company.
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Code means the Internal Revenue Code of 1986, as amended.
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Company means The South Financial Group (formerly known as Carolina
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First Corporation), a South Carolina corporation, and where the context so
permits, each of its Subsidiaries.
Common Stock means shares of the common stock of the Company, $1.00 par
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value per share.
Effective Date means July 1, 1994.
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Eligible Employee means any person who is regularly engaged for a
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period of 20 hours or more per week and more than five months per calendar year
in the rendition of personal services to the Company or one or more of its
Subsidiaries for earnings considered wages under Section 3121(a) of the Code.
Notwithstanding the foregoing or anything to the contrary herein and as
contemplated in Section 423(b)(3) of the Code, no person may be an Eligible
Employee if such person, immediately after purchase of any shares of Common
Stock hereunder, owns stock possessing 5% or more of the total combined voting
power or value of all classes of stock of the Company.
Fair Market Value for a share of Common Stock on any date means the
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average of the high and low sale prices of the Common Stock on the Nasdaq
National Market (or principal exchange on which the Common Stock is listed) on
the five business days preceding the date in question, as reported in The Wall
Street Journal or other authoritative source.
Participant means any Eligible Employee who is actively participating
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in the Plan.
Plan means this Amended and Restated Employee Stock Purchase Plan of
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The South Financial Group.
Purchase Period means the three month period beginning on February 1,
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May 1, August 1 and November 1 of each year during which the Plan is in effect.
Quarterly Purchase Date means January 31, April 30, July 31 and October
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31, if business days, or if not business days, the next preceding business day.
Subsidiary means a subsidiary corporation of the Company, as determined
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in accordance with Section 422 of the Code.
III. EFFECTIVENESS OF THE PLAN AND ISSUANCE OF COMMON STOCK
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A. The Plan shall become effective on the Effective Date, provided that
no shares of Common Stock shall be issued hereunder, until (i) the Plan shall
have been approved by the Company's stockholders and (ii) the Company shall have
complied with all applicable requirements of the Securities Act of 1933 (as
amended), all applicable listing requirements of any securities exchange on
which the Common Stock is listed and all other applicable requirements
established by law or regulation.
B. Common Stock shall be offered for purchase under the Plan until such
time as (i) the maximum number of shares of Common Stock available for issuance
under the Plan shall have been issued pursuant to the Plan or (ii) the Plan
shall have been sooner terminated in accordance with Section X hereof.
IV. ADMINISTRATION
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The Plan shall be administered by a committee (the "Administrator")
comprised of two or more non-employee Board members appointed from time to time
by the Board. The Administrator shall have full authority to administer the
Plan, including, without limitation, authority to interpret and construe any
provision of the Plan, to adopt such rules and regulations for administering the
Plan as it may deem necessary, and to appoint such other employees of the
Company as it deems appropriate to aid in the administration of the Plan. In
addition to the foregoing, the Administrator shall have full authority to
administer the Plan, including authority to interpret and construe any provision
of the Plan and to adopt such rules and regulations for administering the Plan
as it may deem necessary in order to comply with the requirements of Section 423
of the Code. Decisions of the Administrator shall be final and binding on all
parties who have an interest in the Plan. All costs and expenses incurred in the
administration of the Plan shall be paid by the Company.
V. ELIGIBILITY AND PARTICIPATION
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A. Each Eligible Employee may begin participation in the Plan on the
first day of any Purchase Period following his/her completion of one year of
continuous service with the Company or a Subsidiary or an aggregate of two years
of service with the Company or a Subsidiary even if such service is not
continuous.
B. In order to participate in the Plan, an Eligible Employee must
complete the enrollment forms prescribed by the Administrator (including a
purchase agreement and a payroll deduction authorization) and file such forms
with the Administrator (or its designee) prior to the commencement of a Purchase
Period. Such election to participate in the Plan shall become effective on the
first day of the next subsequent Purchase Period.
C. The payroll deduction authorized by a Participant for purposes of
acquiring Common Stock under the Plan may be any whole percentage not in excess
of 10% of the Base Compensation paid to the Participant during the period of
participation. The deduction rate so authorized shall continue in effect, unless
the Participant shall change the rate by filing the appropriate form with the
Administrator (or its designate). An authorization to increase the payroll
deduction rate shall not be effective until the first day of the next subsequent
Purchase Period. A reduction in the payroll deduction rate may be made at any
time during a Purchase Period and shall become effective as soon as practicable
following the filing of such form.
D. Notwithstanding anything to the contrary herein and as contemplated
in Section 423(b)(8) of the Code, no participant may acquire more than $25,000
of Common Stock through the Plan in any calendar year.
E. The acquisition of Common Stock through participation in the Plan
shall neither limit nor require the acquisition of Common Stock by the
Participant under the Plan in any subsequent Purchase Period.
VI. COMMON STOCK SUBJECT TO PLAN
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A. The Common Stock purchasable by Participants under the Plan shall be
authorized but unissued Common Stock. The total number of shares which may be
issued under the Plan shall not exceed 250,000 shares (subject to adjustment
under Section VI.B. below).
B. In the event any change is made to the Common Stock purchasable
under the Plan by reason of any stock dividend, stock split, combination of
shares, recapitalization or other change affecting the outstanding Common Stock
as a class without receipt of consideration, appropriate equitable adjustments
shall be made by the Administrator to the class and maximum number of shares
issuable pursuant to and over the term of the Plan.
VII. PURCHASE OF COMMON STOCK
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A. Each Eligible Employee who participates in the Plan for a particular
Purchase Period shall have the right to purchase Common Stock upon the terms and
conditions set forth herein and shall execute a purchase agreement embodying
such terms and conditions and such other provisions (not inconsistent with the
Plan) as the Administrator may deem advisable. The Purchase Price per share of
Common Stock shall be 95% of the Fair Market Value of a share of Common Stock on
the Quarterly Purchase Date.
B. The Company will maintain on its books a "plan account" in the name
of each Participant on which amounts collected from the Participant through
payroll deductions will be credited. As of the close of business of the
Quarterly Purchase Date, the amount then in the Participant's plan account will
be divided by the Purchase Price and the Participant's plan account will be
credited with the number of whole and fractional shares which results. The
Company may, in its discretion, pay interest on funds held in plan accounts
pending purchase of Common Stock. Interest, if paid, will be credited to the
Participant's plan account and utilized to purchase Common Stock.
C. In the event the number of shares subscribed for at the end of any
Purchase Period exceeds the number of shares available for sale under the Plan,
the available shares shall be allocated among the Participants in proportion to
their plan account balances, exclusive of any amounts carried forward pursuant
to the preceding sentence and the remaining amounts will be refunded in cash.
VIII. TERMINATION OF EMPLOYMENT/CHANGE OF STATUS
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A. A Participant may, at any time, terminate his/her participation
under the Plan by filing the prescribed notification form with the
Administrator. No further payroll deductions shall be collected from the
Participant during such Purchase Period, and the Participant shall have such
payroll deductions that have already been deducted held for the purchase of
shares at the end of the Purchase Period.
B. A termination of participation in the Plan shall be irrevocable
during the Purchase Period during which it was effected, and, accordingly, a
Participant may not subsequently elect to participate in the Plan during the
Purchase Period in which such termination was effected. In order to resume
participation in any subsequent Purchase Period, such individual must re-enroll
in the Plan (by filing a new purchase agreement and payroll deduction
authorization).
C. Should a Participant's employment with Company or a Subsidiary
terminate or a change occur in a Participant's employee status so that he/she is
no longer an Eligible Employee, then his/her participation shall immediately
terminate upon such termination or change in status and all payroll deductions
that have already been deducted shall be held for the purchase of shares at the
end of the Purchase Period.
D. Within a reasonable period of time after the Quarterly Purchase Date
immediately following a Participant's termination of eligibility or termination
of employment, share certificates (for whole shares) and a check for fractional
shares will be issued in connection with the closing of the Participant's plan
account. Share certificates (for whole shares) may also be issued (as soon as
reasonably practicable) upon the written request of a Participant.
IX. RIGHTS AS STOCKHOLDERS
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A. A Participant shall have no rights as a stockholder with respect to
shares covered under the Plan until the shares are actually purchased on the
Participant's behalf in accordance with Section VII. No adjustments shall be
made for dividends, distributions or other rights for which the record date is
prior to the relevant Quarterly Purchase Date.
B. The Administrator may, in its discretion, implement a designated
broker program and direct the Company to issue a single stock certificate
representing all of the shares of Common Stock purchased during a Purchase
Period on behalf of all Participants to a broker designated by the
Administrator. Such designated broker shall establish an account for each
Participant in the Plan and shall effect transfers and sales from each such
account at the direction of the specified Participant. To facilitate the
designated broker program, the Administrator may require, as a condition to
participation in the Plan, that a Participant agree to the issuance of his or
her stock certificate directly to the designated broker.
X. AMENDMENT AND TERMINATION OF THE PLAN
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A. The Board may from time to time alter, amend, suspend or discontinue
the Plan; provided, however, that no such action of the Board may, without the
approval of the Company's stockholders, (i) increase the number of shares
issuable under the Plan or the maximum level of participation by an Eligible
Employee (provided, that the Administrator shall have the authority to effect
adjustments pursuant to Sections VI.B. without stockholder approval), (ii) alter
the purchase price formula so as to reduce the purchase price specified in the
Plan, (iii) otherwise materially increase the benefits accruing to Participants
under the Plan, or (iv) materially modify the requirements for eligibility to
participate in the Plan.
B. The Plan shall terminate upon the earlier of (i) May 1, 2004 or (ii)
the date on which all shares available for issuance under the Plan shall have
been sold pursuant to the Plan.
XI. MISCELLANEOUS PROVISIONS
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A. No rights under the Plan shall be assignable or transferable by the
Participant.
B. Neither the action of the Company in establishing the Plan, nor any
action taken under the Plan by the Board or the Administrator, nor any provision
of the Plan itself shall be construed so as to grant any person the right to
remain in the employ of the Company or any of its subsidiaries for any period of
specific duration, and such person's employment may be terminated at any time,
with or without cause.
C. The provisions of the Plan shall be governed by the laws of the
State of South Carolina.
THE SOUTH FINANCIAL GROUP EMPLOYEE STOCK PURCHASE AGREEMENT
I hereby elect to participate in the Employee Stock Purchase Plan (the "Plan")
beginning with the Purchase Period immediately following the date of this
Agreement and I accordingly subscribe to purchase shares of The South Financial
Group Common Stock in accordance with this Agreement and the Plan. I hereby
authorize payroll deductions from each of my paychecks during the Purchase
Period in the 1% multiple of compensation up to a maximum of 10% as specified in
my attached Enrollment and Change Form.
I understand that my payroll deductions will be accumulated for the purchase of
Common Stock on the Quarterly Purchase Date (as defined in the Plan). The
purchase price will be 95% of the Fair Market Value (as defined in the Plan) of
the Common Stock on such date.
I understand that this enrollment will be effective beginning with the Purchase
Period immediately following the date of this Agreement. I understand that my
participation will automatically remain in effect for subsequent Purchase
Periods in accordance with my payroll deduction authorization unless I withdraw
from the Plan, change the rate of my payroll deduction or terminate my
employment.
I acknowledge that I have a copy of, and am familiar with, the prospectus filed
by the Company with respect to the Plan.
I understand that I will receive a stock certificate for the shares purchased on
my behalf following the termination of my eligibility for the Plan, or upon the
termination of my employment, unless I request otherwise.
I understand that the Company has the right, exercisable in its sole discretion,
to amend or terminate the Plan at any time. Should the Company elect to
terminate the Plan, I will have no further rights to purchase shares of Common
Stock pursuant to this Agreement.
I have read this Agreement and the Plan and agree to be bound by the terms of
both this Agreement and the Plan. The effectiveness of this Agreement is
dependent upon my eligibility to participate in the Plan.
Date:
Signature of Employee
Printed Name
THE SOUTH FINANCIAL GROUP
AMENDED AND RESTATED EMPLOYEE STOCK PURCHASE PLAN
Enrollment and Change Form
I have a copy of, and am familiar with, the prospectus for the AMENDED AND
RESTATED EMPLOYEE STOCK PURCHASE PLAN for THE SOUTH FINANCIAL GROUP. I
understand that the terms and conditions, as outlined in the prospectus and
Plan, govern all transactions in my account. My elections for participation in
the Plan are as follows.
_____ New Enrollment ______ Change in Amount _____ Terminate Participation
_____ I elect to participate in the Plan. I would like to defer ___% of my
salary to the Plan. (Amount must be a whole percentage of your salary,
between 1% and 10%).
_____ I elect NOT to participate in the Amended and Restated Employee Stock
Purchase Plan at this time.
_____ I wish to terminate my participation in the Plan. Payroll deductions
collected prior to my termination date will be held for the purchase of
shares at the end of the Purchase Period.
I understand that an election to participate in the Plan is effective on the
first day of the next purchase period and will continue in effect, so long as I
am eligible to participate, until changed by a subsequent election filed by me.
I understand that an election to terminate participation in the Plan or reduce
my deferral amount will be effective immediately. Such elections are accepted as
set out in THE SOUTH FINANCIAL GROUP AMENDED AND RESTATED EMPLOYEE STOCK
PURCHASE PLAN and its prospectus.
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Signature Date
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