EXHIBIT 10.1
THE SOUTH FINANCIAL GROUP
SUPPLEMENTAL EXECUTIVE RETIREMENT AGREEMENT
BETWEEN
THE SOUTH FINANCIAL GROUP, INC.
AND
MACK I. WHITTLE, JR.
This Supplemental Executive Retirement Agreement (this "Agreement") is made and
entered into as of this 15th day of July, 2003 (the "Effective Date"), by and
between Mack I. Whittle, Jr., an individual (the "Executive"), and The South
Financial Group, Inc., a South Carolina corporation and financial institution
holding company headquartered in Greenville, South Carolina (the "Company"). As
used herein, the term "Company" shall include the Company and any and all of its
subsidiaries where the context so applies.
INTRODUCTION
The Company wishes to provide the Executive with supplemental retirement
benefits and thereby encourage the Executive to continue providing services to
the Company. The Company will pay the benefits from its general assets.
The Agreement is intended to be a top-hat plan (i.e., an unfunded deferred
compensation plan maintained for a member of a select group of management or
highly compensated employees) pursuant to Section 201(2), 301(a)(3), and
401(a)(1) of the Employee Retirement Income Security Act of 1974 (ERISA).
AGREEMENT
The Executive and the Company agree as follows:
Definitions
Whenever used in this Agreement, the following words and phrases shall have the
meanings specified:
"AFFILIATED COMPANY" MEANS ANY COMPANY CONTROLLED BY,
CONTROLLING OR UNDER COMMON CONTROL WITH THE COMPANY.
"BENEFIT BASIS" MEANS THE AVERAGE OF THE HIGHEST THREE FISCAL
YEARS OF COMPENSATION (OR SUCH LESSER NUMBER OF YEARS AS THE EXECUTIVE HAS BEEN
EMPLOYED BY THE COMPANY) EARNED BY THE EXECUTIVE DURING THE TEN FISCAL YEARS OF
THE EXECUTIVE'S EMPLOYMENT PRIOR TO THE TERMINATION OF EMPLOYMENT, OR FOR SUCH
LESSER NUMBER OF FISCAL YEARS THAT THE EXECUTIVE WAS EMPLOYED BY THE COMPANY
PRIOR TO THE TERMINATION OF EMPLOYMENT, INCLUDING THE YEAR IN WHICH TERMINATION
OF EMPLOYMENT OCCURS.
"BOARD" MEANS THE BOARD OF DIRECTORS OF THE COMPANY.
"CAUSE" MEANS (I) THE WILLFUL AND CONTINUED FAILURE OF THE
EXECUTIVE TO PERFORM SUBSTANTIALLY THE EXECUTIVE'S DUTIES WITH THE COMPANY OR
ANY AFFILIATED COMPANY (OTHER THAN ANY SUCH FAILURE RESULTING FROM INCAPACITY
DUE TO PHYSICAL OR MENTAL ILLNESS OR FOLLOWING THE EXECUTIVE'S INVOLUNTARY
TERMINATION), AFTER A WRITTEN DEMAND FOR SUBSTANTIAL PERFORMANCE IS DELIVERED TO
THE EXECUTIVE BY THE BOARD OF THE COMPANY THAT SPECIFICALLY IDENTIFIES THE
MANNER IN WHICH THE BOARD OF THE COMPANY BELIEVES THAT THE EXECUTIVE HAS NOT
SUBSTANTIALLY PERFORMED THE EXECUTIVE'S DUTIES, OR (II) THE WILLFUL ENGAGING BY
THE EXECUTIVE IN ILLEGAL CONDUCT OR GROSS MISCONDUCT, IN EACH CASE, THAT IS
MATERIALLY AND DEMONSTRABLY INJURIOUS TO THE COMPANY. FOR PURPOSES OF THIS
DEFINITION, NO ACT, OR FAILURE TO ACT, ON THE PART OF THE EXECUTIVE SHALL BE
CONSIDERED "WILLFUL" UNLESS IT IS DONE, OR OMITTED TO BE DONE, BY THE EXECUTIVE
IN BAD FAITH OR WITHOUT REASONABLE BELIEF THAT THE EXECUTIVE'S ACTION OR
OMISSION WAS IN THE BEST INTERESTS OF THE COMPANY. ANY ACT, OR FAILURE TO ACT,
BASED UPON AUTHORITY GIVEN PURSUANT TO A RESOLUTION DULY ADOPTED BY THE BOARD OR
BASED UPON THE ADVICE OF COUNSEL FOR THE COMPANY SHALL BE CONCLUSIVELY PRESUMED
TO BE DONE, OR OMITTED TO BE DONE, BY THE EXECUTIVE IN GOOD FAITH AND IN THE
BEST INTERESTS OF THE COMPANY. THE CESSATION OF EMPLOYMENT OF THE EXECUTIVE
SHALL NOT BE DEEMED TO BE FOR CAUSE UNLESS AND UNTIL THERE SHALL HAVE BEEN
DELIVERED TO THE EXECUTIVE A COPY OF A RESOLUTION DULY ADOPTED BY THE
AFFIRMATIVE VOTE OF NOT LESS THAN THREE-QUARTERS OF THE ENTIRE MEMBERSHIP OF THE
BOARD (EXCLUDING THE EXECUTIVE, IF THE EXECUTIVE IS A MEMBER OF THE BOARD) AT A
MEETING OF THE BOARD CALLED AND HELD FOR SUCH PURPOSE (AFTER REASONABLE NOTICE
IS PROVIDED TO THE EXECUTIVE AND THE EXECUTIVE IS GIVEN AN OPPORTUNITY, TOGETHER
WITH COUNSEL FOR THE EXECUTIVE, TO BE HEARD BEFORE THE BOARD), FINDING THAT, IN
THE GOOD FAITH OPINION OF THE BOARD, THE EXECUTIVE IS GUILTY OF THE CONDUCT
DESCRIBED IN CLAUSE (I) OR (II) OF THIS DEFINITION, AND SPECIFYING THE
PARTICULARS THEREOF IN DETAIL.
"CHANGE OF CONTROL" MEANS:
The acquisition by any individual, entity or group
(within the meaning of Section 13(d)(3) or 14(d)(2) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act")) (a "Person") of
beneficial ownership (within the meaning of Rule 13d-3 promulgated
under the Exchange Act) of 20% or more of either (A) the
then-outstanding shares of common stock of the Company (the
"Outstanding Company Common Stock") or (B) the combined voting power of
the then-outstanding voting securities of the Company entitled to vote
generally in the election of directors (the "Outstanding Company Voting
Securities"); provided, however, that, for purposes of this Section
1.5, the following acquisitions shall not constitute a Change of
Control: (i) any acquisition directly from the Company, (ii) any
acquisition by the Company, (iii) any acquisition by any employee
benefit plan (or related trust) sponsored or maintained by the Company
or any Affiliated Company or (iv) any acquisition by any corporation
pursuant to a transaction that complies with Sections 1.5.3(A),
1.5.3(B) and 1.5.3(C);
Any time at which individuals who, as of the date
hereof, constitute the Board (the "Incumbent Board") cease for any
reason to constitute at least a majority of the Board; provided,
however, that any individual becoming a director subsequent to the date
hereof whose election, or nomination for election by the Company's
shareholders, was approved by a vote of at least a majority of the
directors then comprising the Incumbent Board shall be considered as
though such individual were a member of the Incumbent Board, but
excluding, for this purpose, any such individual whose initial
assumption of office occurs as a result of an actual or threatened
election contest with respect to the election or removal of directors
or other actual or threatened solicitation of proxies or consents by or
on behalf of a Person other than the Board;
Consummation of a reorganization, merger, statutory
share exchange or consolidation or similar corporate transaction
involving the Company or any of its subsidiaries, a sale or other
disposition of all or substantially all of the assets of the Company,
or the acquisition of assets or stock of another entity by the Company
or any of its subsidiaries (each, a "Business Combination"), in each
case unless, following such Business Combination, (A) all or
substantially all of the individuals and entities that were the
beneficial owners of the Outstanding Company Common Stock and the
Outstanding Company Voting Securities immediately prior to such
Business Combination beneficially own, directly or indirectly, more
than 50% of the then-outstanding shares of common stock and the
combined voting power of the then-outstanding voting securities
entitled to vote generally in the election of directors, as the case
may be, of the corporation resulting from such Business Combination
(including, without limitation, a corporation that, as a result of such
transaction, owns the Company or all or substantially all of the
Company's assets either directly or through one or more subsidiaries)
in substantially the same proportions as their ownership immediately
prior to such Business Combination of the Outstanding Company Common
Stock and the Outstanding Company Voting Securities, as the case may
be, (B) no Person (excluding any corporation resulting from such
Business Combination or any employee benefit plan (or related trust) of
the Company or such corporation resulting from such Business
Combination) beneficially owns, directly or indirectly, 20% or more of,
respectively, the then-outstanding shares of common stock of the
corporation resulting from such Business Combination or the combined
voting power of the then-outstanding voting securities of such
corporation, except to the extent that such ownership existed prior to
the Business Combination, and (C) at least a majority of the members of
the board of directors of the corporation resulting from such Business
Combination were members of the Incumbent Board at the time of the
execution of the initial agreement or of the action of the Board
providing for such Business Combination; or
Approval by the shareholders of the Company of a
complete liquidation or dissolution of the Company.
"CODE" MEANS THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
"COMPENSATION" MEANS THE EXECUTIVE'S ANNUAL BASE SALARY AND
ANNUAL BONUS UNDER THE COMPANY'S MANAGEMENT INCENTIVE COMPENSATION PLAN, OR ANY
COMPARABLE BONUS UNDER ANY PREDECESSOR OR SUCCESSOR PLAN, INCLUDING ANY BONUS OR
PORTION THEREOF THAT HAS BEEN EARNED BUT DEFERRED (AND ANNUALIZED FOR ANY FISCAL
YEAR CONSISTING OF LESS THAN 12 FULL MONTHS OR DURING WHICH THE EXECUTIVE WAS
EMPLOYED FOR LESS THAN 12 FULL MONTHS) FOR THE RELEVANT FISCAL YEAR. IF THE
TERMINATION OF EMPLOYMENT OCCURS PRIOR TO THE END OF THE FISCAL YEAR, THE BONUS
AMOUNT FOR SUCH FISCAL YEAR SHALL BE EQUAL TO THE HIGHEST OF THE BONUSES EARNED
BY THE EXECUTIVE IN THE PRIOR THREE FISCAL YEARS (OR FOR SUCH LESSER NUMBER OF
FISCAL YEARS PRIOR TO THE TERMINATION OF EMPLOYMENT FOR WHICH THE EXECUTIVE WAS
ELIGIBLE TO EARN SUCH A BONUS, AND ANNUALIZED IN THE CASE OF ANY BONUS EARNED
FOR A PARTIAL FISCAL YEAR).
"DISABILITY" MEANS THE ABSENCE OF THE EXECUTIVE FROM THE
EXECUTIVE'S DUTIES WITH THE COMPANY ON A FULL-TIME BASIS FOR 180 CONSECUTIVE
BUSINESS DAYS AS A RESULT OF INCAPACITY DUE TO MENTAL OR PHYSICAL ILLNESS THAT
IS DETERMINED TO BE TOTAL AND PERMANENT BY A PHYSICIAN SELECTED BY THE COMPANY
OR ITS INSURERS AND ACCEPTABLE TO THE EXECUTIVE OR THE EXECUTIVE'S LEGAL
REPRESENTATIVE.
"EARLY RETIREMENT AGE" MEANS THE DATE THAT THE EXECUTIVE HAS
ATTAINED AGE 55 AND COMPLETED SEVEN YEARS OF SERVICE.
"EARLY RETIREMENT DATE" MEANS THE DATE THAT IS THE LATER OF
THE EARLY RETIREMENT AGE OR THE TERMINATION OF EMPLOYMENT, BUT IS BEFORE THE
NORMAL RETIREMENT DATE.
"EARLY TERMINATION" MEANS THE TERMINATION OF EMPLOYMENT BEFORE
EARLY RETIREMENT AGE FOR REASONS OTHER THAN (I) DEATH, (II) DISABILITY, (III) BY
THE COMPANY FOR CAUSE, (IV) BY THE COMPANY WITHOUT CAUSE DURING THE TWO YEAR
PERIOD FOLLOWING A CHANGE OF CONTROL, (V) INVOLUNTARY TERMINATION.
"EARLY TERMINATION DATE" MEANS THE MONTH, DAY AND YEAR IN
WHICH EARLY TERMINATION OCCURS.
"EFFECTIVE DATE" MEANS JULY 15, 2003.
"INVOLUNTARY TERMINATION" MEANS A TERMINATION OF EMPLOYMENT BY
THE EXECUTIVE FOLLOWING A CHANGE OF CONTROL WHICH, IN THE SOLE JUDGMENT OF THE
EXECUTIVE, IS DUE TO (I) A CHANGE OF THE EXECUTIVE'S RESPONSIBILITIES, POSITION
(INCLUDING THE EXECUTIVE'S OFFICE, TITLE, REPORTING RELATIONSHIPS OR WORKING
CONDITIONS), AUTHORITY OR DUTIES (INCLUDING CHANGES RESULTING FROM THE
ASSIGNMENT TO THE EXECUTIVE OF ANY DUTIES INCONSISTENT WITH HIS POSITIONS,
DUTIES OR RESPONSIBILITIES AS IN EFFECT IMMEDIATELY PRIOR TO THE CHANGE OF
CONTROL); OR (II) A REDUCTION IN THE EXECUTIVE'S ANNUAL BASE SALARY OR ANNUAL
BONUS OPPORTUNITY UNDER THE COMPANY'S MANAGEMENT INCENTIVE COMPENSATION PLAN, OR
ANY COMPARABLE BONUS UNDER ANY PREDECESSOR OR SUCCESSOR PLAN, INCLUDING ANY
BONUS OR PORTION THEREOF THAT HAS BEEN EARNED BUT DEFERRED, OR BENEFITS; OR
(III) A FORCED RELOCATION OF THE EXECUTIVE OUTSIDE THE GREENVILLE, SOUTH
CAROLINA METROPOLITAN AREA; OR (IV) A SIGNIFICANT INCREASE IN THE EXECUTIVE'
TRAVEL REQUIREMENTS (COLLECTIVELY "STATUS CHANGES"); PROVIDED, HOWEVER,
EXECUTIVE MUST ELECT TO TERMINATE EXECUTIVE'S EMPLOYMENT WITHIN TWO (2) YEARS OF
THE STATUS CHANGE ON WHICH EXECUTIVE BASES EXECUTIVE'S EMPLOYMENT TERMINATION.
"NORMAL RETIREMENT AGE" MEANS EXECUTIVE'S 65TH BIRTHDAY.
"NORMAL RETIREMENT DATE" MEANS THE LATER OF THE NORMAL
RETIREMENT AGE OR TERMINATION OF EMPLOYMENT.
"POTENTIAL CHANGE OF CONTROL" SHALL MEAN:
(i) The purchase or other acquisition by any person, entity,
or group of persons, within the meaning of Section 13(d) or 14(d) of
the Exchange Act, or any comparable successor provisions, other than
the trustee of any other trust or plan maintained for the benefit of
employees of the Company, or beneficial ownership (within the meaning
of Rule 13d-3 promulgated under the Exchange Act) of 5% or more of
either the outstanding shares of common stock or the combined voting
power of the Company's then outstanding voting securities entitled to
vote generally;
(ii) The announcement by any Person of an intention to take
actions which might reasonably result in a business combination between
the Company and an entity which has a market capitalization equal to or
greater than 80% of the Company;
(iii) The issuance of a proxy statement with respect to an
election of directors of the Company for which there is proposed one or
more directors who are not recommended by the Board or its nominating
committee, where the election of such proposed director or directors
would result in a Change in Control;
(iv) Submission to the Board of nominations which, if
approved, would change the executive officer configuration of the
Company (at the executive vice president level and above) by 50% or
more of such individuals holding such offices;
(v) The filing of any regulatory application by any person
seeking to effect a Change in Control; or
(vi) The receipt by the Company of any other indication
of the intent by any person to seek to effect a Change in Control.
"RATE" MEANS THE MOODY'S AA CORPORATE BOND RATE AS REPORTED BY
THE SOCIETY OF ACTUARIES AS OF THE EFFECTIVE DATE AND UPDATED ON EACH DECEMBER
31 ANNIVERSARY THEREAFTER.
"TERMINATION OF EMPLOYMENT" MEANS THE TERMINATION OF THE
EXECUTIVE'S EMPLOYMENT WITH THE COMPANY AND ANY OF ITS SUBSIDIARIES OR
AFFILIATES. IF THE EXECUTIVE IS EMPLOYED BY A SUBSIDIARY OR AN AFFILIATE, THE
EXECUTIVE SHALL ALSO BE DEEMED TO INCUR A TERMINATION OF EMPLOYMENT IF THE
SUBSIDIARY OR AFFILIATE CEASES TO BE SUCH A SUBSIDIARY OR AN AFFILIATE, AS THE
CASE MAY BE, AND THE EXECUTIVE DOES NOT IMMEDIATELY THEREAFTER BECOME AN
EMPLOYEE OF THE COMPANY OR ANOTHER SUBSIDIARY OR AFFILIATE. TEMPORARY ABSENCES
FROM EMPLOYMENT BECAUSE OF ILLNESS, VACATION OR LEAVE OF ABSENCE AND TRANSFERS
AMONG THE COMPANY AND ITS SUBSIDIARIES AND AFFILIATES SHALL NOT BE CONSIDERED
TERMINATIONS OF EMPLOYMENT.
"VESTING PERCENTAGE" IS THE PERCENTAGE OF THE ACCRUAL BALANCE
IN WHICH THE EXECUTIVE IS VESTED AS DETERMINED IN ACCORDANCE WITH SCHEDULE A.
"VESTING START DATE" SHALL BE MAY 9, 1986.
"YEAR OF SERVICE" MEANS A TWELVE-MONTH CONTINUOUS PERIOD OF
EMPLOYMENT OR A PORTION OF SUCH PERIOD, INCLUDING PERIODS OF AUTHORIZED
VACATION, AUTHORIZED LEAVE OF ABSENCE AND SHORT-TERM DISABILITY LEAVE, WITH THE
COMPANY OR ANY OF ITS AFFILIATE OR THEIR PREDECESSORS OR SUCCESSORS ROUNDED UP
TO THE NEAREST WHOLE NUMBER COMMENCING ON THE VESTING START DATE.
Lifetime Benefits
NORMAL RETIREMENT BENEFIT. UPON TERMINATION OF EMPLOYMENT (I)
ON OR AFTER THE NORMAL RETIREMENT AGE FOR REASONS OTHER THAN DEATH, OR (II) UPON
TERMINATION OF EMPLOYMENT WITHOUT CAUSE WITHIN TWO YEARS FOLLOWING A CHANGE OF
CONTROL OR (III) UPON EXECUTIVE'S INVOLUNTARY TERMINATION, THE COMPANY SHALL PAY
TO THE EXECUTIVE THE BENEFIT DESCRIBED IN THIS SECTION 2.1 IN LIEU OF ANY OTHER
BENEFIT UNDER THIS AGREEMENT.
Amount of Benefit. The annual benefit under this
Section 2.1 is an amount equal to Sixty percent (60.0%) of the Benefit
Basis.
Payment of Benefit. The Company shall pay the annual
benefit to the Executive in 12 equal monthly installments payable on
the first day of each month commencing with the month following the
Executive's Normal Retirement Date or, if earlier, upon Termination of
Employment without Cause within two years following a Change of Control
or upon Executive's Involuntary Termination, as the case may be. The
annual benefit shall be paid to the Executive (a) for 180 months or (b)
at the Executive's election on the Election Form attached as Exhibit A
during the calendar year immediately preceding the year in which the
Termination of Employment occurs, in a lump sum payment within 30 days
following the Executive's Normal Retirement Date or, if earlier, upon
Termination of Employment without Cause within two years following a
Change of Control or upon Executive's Involuntary Termination, as the
case may be, equal to the present value of the aggregate annual
benefits that would have been payable to the Executive under clause (a)
of this Section 2.1.2, assuming a discount rate equal to the Rate.
Benefit Increases. Commencing on the first
anniversary of the first benefit payment, and continuing on each
subsequent anniversary, the Company's Board of Directors, in its sole
discretion, may increase the benefit.
EARLY RETIREMENT BENEFIT. UPON TERMINATION OF EMPLOYMENT ON OR
AFTER EARLY RETIREMENT AGE BUT BEFORE NORMAL RETIREMENT AGE FOR REASONS OTHER
THAN (I) DEATH, (II) DISABILITY, (III) BY THE COMPANY WITHOUT CAUSE WITHIN TWO
YEARS FOLLOWING A CHANGE OF CONTROL OR (IV) UPON EXECUTIVE'S INVOLUNTARY
TERMINATION, THE COMPANY SHALL PAY TO THE EXECUTIVE THE BENEFIT DESCRIBED IN
THIS SECTION 2.2 IN LIEU OF ANY OTHER BENEFITS UNDER THIS AGREEMENT.
Amount of Benefit. The annual benefit under this
Section 2.2 is an amount equal to the greater of (i) the product of (A)
the sum of (x) Fifty percent (50.0%) and (y) Three percent (3.0%) for
each Year of Service completed by the Executive after the Early
Retirement Age and (B) the Benefit Basis or (ii) the benefit under
Section 2.3; provided that in no event shall the amount payable under
this Section 2.2.1 be greater than the benefit set forth in Section
2.1.1.
Payment of Benefit. The Company shall pay the annual
benefit to the Executive in 12 equal monthly installments payable on
the first day of each month commencing with the month following the
Normal Retirement Age. The annual benefit shall be paid to the
Executive (a) for 180 months or (b) at the Executive's election on the
Election Form attached as Exhibit A during the calendar year
immediately preceding the year in which the Termination of Employment
occurs, in a lump sum payment within 30 days following the Executive's
Termination of Employment on or after Early Retirement Age but before
Normal Retirement Age for reasons other than (i) death, (ii)
Disability, (iii) by the Company without Cause within two years
following a Change of Control or (iv) upon Executive's Involuntary
Termination, as the case may be, equal to the present value of the
aggregate annual benefits that would have been payable to the Executive
under clause (a) of this Section 2.2.2, assuming a discount rate equal
to the Rate.
Benefit Increases. Benefit payments may be increased
as provided in Section 2.1.3.
EARLY TERMINATION BENEFIT. UPON EARLY TERMINATION, THE COMPANY
SHALL PAY TO THE EXECUTIVE THE BENEFIT DESCRIBED IN THIS SECTION 2.3 IN LIEU OF
ANY OTHER BENEFIT UNDER THIS AGREEMENT.
Amount of Benefit. The benefit under this Section 2.3
is the Early Termination Annual Benefit set forth in Schedule A for the
year ending immediately prior to the Early Termination Date.
Payment of Benefit. The Company shall pay the annual
benefit to the Executive in 12 equal monthly installments payable on
the first day of each month commencing with the month following the
Normal Retirement Age. The annual benefit shall be paid to the
Executive for 180 months.
Benefit Increases. Benefit payments may be increased
as provided in Section 2.1.3.
DISABILITY BENEFIT. IF THE EXECUTIVE TERMINATES EMPLOYMENT DUE
TO DISABILITY PRIOR TO NORMAL RETIREMENT AGE, THE COMPANY SHALL PAY TO THE
EXECUTIVE THE BENEFIT DESCRIBED IN THIS SECTION 2.4 IN LIEU OF ANY OTHER BENEFIT
UNDER THIS AGREEMENT.
Amount of Benefit. If the Executive terminates
employment due to Disability prior to Normal Retirement Age, but after
Early Retirement Age, the benefit under this Section 2.4 shall be the
annual benefit set forth in Section 2.2.1. If the Executive terminates
employment due to Disability prior to Early Retirement Age, the benefit
under this Section 2.4 is the Disability Annual Benefit set forth in
Schedule A for the year ending immediately prior to the Early
Termination Date.
Payment of Benefit. The Company shall pay the annual
benefit amount to the Executive in 12 equal monthly installments
payable on the first day of each month commencing with the month
following the Termination of Employment. The annual benefit shall be
paid to the Executive for 180 months.
Benefit Increases. Benefit payments may be increased
as provided in Section 2.1.3.
Death Benefits
DEATH DURING ACTIVE SERVICE. IF THE EXECUTIVE DIES WHILE IN
THE ACTIVE SERVICE OF THE COMPANY, THE COMPANY SHALL PAY TO THE EXECUTIVE'S
BENEFICIARY THE BENEFIT DESCRIBED IN THIS SECTION 3.1. THIS BENEFIT SHALL BE
PAID IN LIEU OF THE LIFETIME BENEFITS OF ARTICLE 2.
Amount of Benefit. The annual benefit under this
Section 3.1 is equal to the Disability Annual Benefit described in
Section 2.4.1.
Payment of Benefit. The Company shall pay the annual
benefit to the Executive's beneficiary in 12 equal monthly installments
payable on the first day of each month commencing with the month
following the Executive's death. The annual benefit shall be paid to
the Executive's beneficiary for 180 months.
DEATH DURING BENEFIT PERIOD. IF THE EXECUTIVE DIES AFTER THE
BENEFIT PAYMENTS HAVE COMMENCED UNDER THIS AGREEMENT BUT BEFORE RECEIVING ALL
SUCH PAYMENTS, THE COMPANY SHALL PAY THE REMAINING BENEFITS TO THE EXECUTIVE'S
BENEFICIARY AT THE SAME TIME AND IN THE SAME AMOUNTS THEY WOULD HAVE BEEN PAID
TO THE EXECUTIVE HAD THE EXECUTIVE SURVIVED.
DEATH AFTER TERMINATION OF EMPLOYMENT BUT BEFORE BENEFIT
PAYMENTS COMMENCE. IF THE EXECUTIVE IS ENTITLED TO BENEFIT PAYMENTS UNDER THIS
AGREEMENT, BUT DIES PRIOR TO THE COMMENCEMENT OF SAID BENEFIT PAYMENTS, THE
COMPANY SHALL PAY TO THE EXECUTIVE'S BENEFICIARY THE BENEFIT PAYMENTS THAT THE
EXECUTIVE WAS ENTITLED TO PRIOR TO DEATH EXCEPT THAT THE BENEFIT PAYMENTS SHALL
COMMENCE ON THE FIRST DAY OF THE MONTH FOLLOWING THE DATE OF THE EXECUTIVE'S
DEATH.
Beneficiaries
BENEFICIARY DESIGNATIONS. THE EXECUTIVE SHALL DESIGNATE A
BENEFICIARY BY FILING A WRITTEN DESIGNATION WITH THE COMPANY. THE EXECUTIVE MAY
REVOKE OR MODIFY THE DESIGNATION AT ANY TIME BY FILING A NEW DESIGNATION.
HOWEVER, DESIGNATIONS WILL ONLY BE EFFECTIVE IF SIGNED BY THE EXECUTIVE AND
ACCEPTED BY THE COMPANY DURING THE EXECUTIVE'S LIFETIME. THE EXECUTIVE'S
BENEFICIARY DESIGNATION SHALL BE DEEMED AUTOMATICALLY REVOKED IF THE BENEFICIARY
PREDECEASES THE EXECUTIVE, OR IF THE EXECUTIVE NAMES A SPOUSE AS BENEFICIARY AND
THE MARRIAGE IS SUBSEQUENTLY DISSOLVED. IF THE EXECUTIVE DIES WITHOUT A VALID
BENEFICIARY DESIGNATION, ALL PAYMENTS SHALL BE MADE TO THE EXECUTIVE'S ESTATE.
FACILITY OF PAYMENT. IF A BENEFIT IS PAYABLE TO A MINOR, TO A
PERSON DECLARED INCAPACITATED, OR TO A PERSON INCAPABLE OF HANDLING THE
DISPOSITION OF HIS OR HER PROPERTY, THE COMPANY MAY PAY SUCH BENEFIT TO THE
GUARDIAN, LEGAL REPRESENTATIVE OR PERSON HAVING THE CARE OR CUSTODY OF SUCH
MINOR, INCAPACITATED PERSON OR INCAPABLE PERSON. THE COMPANY MAY REQUIRE PROOF
OF INCAPACITY, MINORITY OR GUARDIANSHIP AS IT MAY DEEM APPROPRIATE PRIOR TO
DISTRIBUTION OF THE BENEFIT. SUCH DISTRIBUTION SHALL COMPLETELY DISCHARGE THE
COMPANY FROM ALL LIABILITY WITH RESPECT TO SUCH BENEFIT.
General Limitations
TERMINATION FOR CAUSE. NOTWITHSTANDING ANY PROVISION OF THIS
AGREEMENT TO THE CONTRARY, THE COMPANY SHALL NOT PAY ANY BENEFIT UNDER THIS
AGREEMENT IF THE COMPANY TERMINATES THE EXECUTIVE'S EMPLOYMENT FOR CAUSE.
SUICIDE OR MISSTATEMENT. THE COMPANY SHALL NOT PAY ANY BENEFIT
UNDER THIS AGREEMENT IF THE EXECUTIVE COMMITS SUICIDE WITHIN TWO YEARS AFTER THE
DATE OF THIS AGREEMENT.
Claims and Review Procedures
CLAIMS PROCEDURE. THE COMPANY SHALL NOTIFY ANY PERSON OR
ENTITY THAT MAKES A CLAIM AGAINST THE AGREEMENT (THE "CLAIMANT") IN WRITING,
WITHIN 90 DAYS OF CLAIMANT'S WRITTEN APPLICATION FOR BENEFITS, OF HIS OR HER
ELIGIBILITY OR NONELIGIBILITY FOR BENEFITS UNDER THE AGREEMENT. IF THE COMPANY
DETERMINES THAT THE CLAIMANT IS NOT ELIGIBLE FOR BENEFITS OR FULL BENEFITS, THE
NOTICE SHALL SET FORTH (1) THE SPECIFIC REASONS FOR SUCH DENIAL, (2) A SPECIFIC
REFERENCE TO THE PROVISIONS OF THE AGREEMENT ON WHICH THE DENIAL IS BASED, (3) A
DESCRIPTION OF ANY ADDITIONAL INFORMATION OR MATERIAL NECESSARY FOR THE CLAIMANT
TO PERFECT HIS OR HER CLAIM, AND A DESCRIPTION OF WHY IT IS NEEDED, AND (4) AN
EXPLANATION OF THE AGREEMENT'S CLAIMS REVIEW PROCEDURE AND OTHER APPROPRIATE
INFORMATION AS TO THE STEPS TO BE TAKEN IF THE CLAIMANT WISHES TO HAVE THE CLAIM
REVIEWED. IF THE COMPANY DETERMINES THAT THERE ARE SPECIAL CIRCUMSTANCES
REQUIRING ADDITIONAL TIME TO MAKE A DECISION, THE COMPANY SHALL NOTIFY THE
CLAIMANT OF THE SPECIAL CIRCUMSTANCES AND THE DATE BY WHICH A DECISION IS
EXPECTED TO BE MADE, AND MAY EXTEND THE TIME FOR UP TO AN ADDITIONAL 90 DAYS.
REVIEW PROCEDURE. IF THE CLAIMANT IS DETERMINED BY THE COMPANY
NOT TO BE ELIGIBLE FOR BENEFITS, OR IF THE CLAIMANT BELIEVES THAT HE OR SHE IS
ENTITLED TO GREATER OR DIFFERENT BENEFITS, THE CLAIMANT SHALL HAVE THE
OPPORTUNITY TO HAVE SUCH CLAIM REVIEWED BY THE COMPANY BY FILING A PETITION FOR
REVIEW WITH THE COMPANY WITHIN 60 DAYS AFTER RECEIPT OF THE NOTICE ISSUED BY THE
COMPANY. SAID PETITION SHALL STATE THE SPECIFIC REASONS WHICH THE CLAIMANT
BELIEVES ENTITLE HIM OR HER TO BENEFITS OR TO GREATER OR DIFFERENT BENEFITS.
WITHIN 60 DAYS AFTER RECEIPT BY THE COMPANY OF THE PETITION, THE COMPANY SHALL
AFFORD THE CLAIMANT (AND COUNSEL, IF ANY) AN OPPORTUNITY TO PRESENT HIS OR HER
POSITION TO THE COMPANY VERBALLY OR IN WRITING, AND THE CLAIMANT (OR COUNSEL)
SHALL HAVE THE RIGHT TO REVIEW THE PERTINENT DOCUMENTS. THE COMPANY SHALL NOTIFY
THE CLAIMANT OF ITS DECISION IN WRITING WITHIN THE 60-DAY PERIOD, STATING
SPECIFICALLY THE BASIS OF ITS DECISION, WRITTEN IN A MANNER CALCULATED TO BE
UNDERSTOOD BY THE CLAIMANT AND THE SPECIFIC PROVISIONS OF THE AGREEMENT ON WHICH
THE DECISION IS BASED. IF, BECAUSE OF THE NEED FOR A HEARING, THE 60-DAY PERIOD
IS NOT SUFFICIENT, THE DECISION MAY BE DEFERRED FOR UP TO ANOTHER 60 DAYS AT THE
ELECTION OF THE COMPANY, BUT NOTICE OF THIS DEFERRAL SHALL BE GIVEN TO THE
CLAIMANT.
Amendments and Termination
This Agreement may not be amended or modified other than by a written agreement
executed by the parties hereto or their respective successors and legal
representatives.
Miscellaneous
BINDING EFFECT. THIS AGREEMENT SHALL BIND THE EXECUTIVE
AND THE COMPANY, AND THEIR BENEFICIARIES, SURVIVORS, EXECUTORS, SUCCESSORS,
ADMINISTRATORS AND TRANSFEREES.
NO GUARANTEE OF EMPLOYMENT. THIS AGREEMENT IS NOT AN
EMPLOYMENT POLICY OR CONTRACT. IT DOES NOT GIVE THE EXECUTIVE THE RIGHT TO
REMAIN AN EMPLOYEE OF THE COMPANY, NOR DOES IT INTERFERE WITH THE COMPANY'S
RIGHT TO DISCHARGE THE EXECUTIVE. IT ALSO DOES NOT REQUIRE THE EXECUTIVE TO
REMAIN AN EMPLOYEE NOR INTERFERE WITH THE EXECUTIVE'S RIGHT TO TERMINATE
EMPLOYMENT AT ANY TIME.
NON-TRANSFERABILITY. BENEFITS UNDER THIS AGREEMENT CANNOT BE
SOLD, TRANSFERRED, ASSIGNED, PLEDGED, ATTACHED OR ENCUMBERED IN ANY MANNER.
SUCCESSORS. THIS AGREEMENT IS PERSONAL TO THE EXECUTIVE, AND,
WITHOUT THE PRIOR WRITTEN CONSENT OF THE COMPANY, SHALL NOT BE ASSIGNABLE BY THE
EXECUTIVE OTHER THAN BY WILL OR THE LAWS OF DESCENT AND DISTRIBUTION. THIS
AGREEMENT SHALL INURE TO THE BENEFIT OF AND BE ENFORCEABLE BY THE EXECUTIVE'S
LEGAL REPRESENTATIVES. THIS AGREEMENT SHALL INURE TO THE BENEFIT OF AND BE
BINDING UPON THE COMPANY AND ITS SUCCESSORS AND ASSIGNS. SUBJECT TO THE
FOLLOWING SENTENCES OF THIS SECTION 8.4, THIS AGREEMENT SHALL NOT BE ASSIGNABLE
BY THE COMPANY WITHOUT THE PRIOR WRITTEN CONSENT OF THE EXECUTIVE. THE COMPANY
WILL REQUIRE ANY SUCCESSOR (WHETHER DIRECT OR INDIRECT, BY PURCHASE, MERGER,
CONSOLIDATION OR OTHERWISE) TO ALL OR SUBSTANTIALLY ALL OF THE BUSINESS AND/OR
ASSETS OF THE COMPANY TO ASSUME EXPRESSLY AND AGREE TO PERFORM THIS AGREEMENT IN
THE SAME MANNER AND TO THE SAME EXTENT THAT THE COMPANY WOULD BE REQUIRED TO
PERFORM IT IF NO SUCH SUCCESSION HAD TAKEN PLACE. "COMPANY" MEANS THE COMPANY AS
HEREINBEFORE DEFINED AND ANY SUCCESSOR TO ITS BUSINESS AND/OR ASSETS AS
AFORESAID THAT ASSUMES AND AGREES TO PERFORM THIS AGREEMENT BY OPERATION OF LAW
OR OTHERWISE.
TAX WITHHOLDING. THE COMPANY SHALL WITHHOLD ANY TAXES THAT ARE
REQUIRED TO BE WITHHELD FROM THE BENEFITS PROVIDED UNDER THIS AGREEMENT.
APPLICABLE LAW. THE AGREEMENT AND ALL RIGHTS HEREUNDER SHALL
BE GOVERNED BY THE LAWS OF THE STATE OF SOUTH CAROLINA, WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAWS.
UNFUNDED ARRANGEMENT. THE EXECUTIVE AND BENEFICIARY ARE
GENERAL UNSECURED CREDITORS OF THE COMPANY FOR THE PAYMENT OF BENEFITS UNDER
THIS AGREEMENT. THE BENEFITS REPRESENT THE MERE PROMISE BY THE COMPANY TO PAY
SUCH BENEFITS. THE RIGHTS TO BENEFITS ARE NOT SUBJECT IN ANY MANNER TO
ANTICIPATION, ALIENATION, SALE, TRANSFER, ASSIGNMENT, PLEDGE, ENCUMBRANCE,
ATTACHMENT, OR GARNISHMENT BY CREDITORS.
ENTIRE AGREEMENT. THIS AGREEMENT CONSTITUTES THE ENTIRE
AGREEMENT BETWEEN THE COMPANY AND THE EXECUTIVE AS TO THE SUBJECT MATTER HEREOF.
NO RIGHTS ARE GRANTED TO THE EXECUTIVE BY VIRTUE OF THIS AGREEMENT OTHER THAN
THOSE SPECIFICALLY SET FORTH HEREIN. FROM AND AFTER THE EFFECTIVE DATE, THIS
AGREEMENT SHALL SUPERSEDE ANY OTHER AGREEMENT BETWEEN THE PARTIES WITH RESPECT
TO THE SUBJECT MATTER HEREOF INCLUDING WITHOUT LIMITATION THE SUPPLEMENTAL
EXECUTIVE BENEFIT AGREEMENT BETWEEN THE EXECUTIVE AND THE COMPANY DATED AS OF
DECEMBER 13, 2000 (THE "PRIOR AGREEMENT").
ADMINISTRATION AND RECORDKEEPING AUTHORITY. EXCEPT AS
OTHERWISE SPECIFICALLY PROVIDED HEREIN, THE COMPANY SHALL HAVE THE SOLE
RESPONSIBILITY FOR AND THE SOLE CONTROL OF THE OPERATION, ADMINISTRATION, AND
RECORDKEEPING OF THIS AGREEMENT AND SHALL HAVE THE POWER AND AUTHORITY TO TAKE
ALL ACTION AND TO MAKE ALL DECISIONS AND INTERPRETATIONS THAT MAY BE NECESSARY
OR APPROPRIATE IN ORDER TO ADMINISTER AND OPERATE THE AGREEMENT, INCLUDING,
WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, THE POWER, DUTY, AND
RESPONSIBILITY TO:
RESOLVE AND DETERMINE ALL DISPUTES OR QUESTIONS
ARISING UNDER THE AGREEMENT, INCLUDING THE POWER TO
DETERMINE THE RIGHTS OF THE PARTICIPANT AND
BENEFICIARIES AND THEIR RESPECTIVE BENEFITS, AND TO
REMEDY ANY AMBIGUITIES, INCONSISTENCIES, OR OMISSIONS
IN THE AGREEMENT;
ADOPT SUCH RULES OF PROCEDURE AND REGULATIONS AS IN
ITS OPINION MAY BE NECESSARY FOR THE PROPER AND
EFFICIENT ADMINISTRATION OF THE AGREEMENT AND AS ARE
CONSISTENT WITH THE AGREEMENT;
IMPLEMENT THE AGREEMENT IN ACCORDANCE WITH ITS TERMS;
ESTABLISH AND REVISE THE METHOD OF ACCOUNTING FOR THE
AGREEMENT; AND
MAINTAIN A RECORD OF BENEFIT PAYMENTS.
NAMED FIDUCIARY. THE COMPANY SHALL BE THE NAMED FIDUCIARY AND
PLAN ADMINISTRATOR UNDER THE AGREEMENT. THE NAMED FIDUCIARY MAY DELEGATE TO
OTHERS CERTAIN ASPECTS OF THE MANAGEMENT AND OPERATION RESPONSIBILITIES OF THE
PLAN INCLUDING THE EMPLOYMENT OF ADVISORS AND THE DELEGATION OF MINISTERIAL
DUTIES TO QUALIFIED INDIVIDUALS.
CAPTIONS. THE CAPTIONS OF THIS AGREEMENT ARE NOT PART OF THE
PROVISIONS HEREOF AND SHALL HAVE NO FORCE OR EFFECT.
SEVERABILITY. THE INVALIDITY OR UNENFORCEABILITY OF ANY
PROVISION OF THIS AGREEMENT SHALL NOT AFFECT THE VALIDITY OR ENFORCEABILITY OF
ANY OTHER PROVISION OF THIS AGREEMENT.
TRUST. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS
AGREEMENT, COMPANY SHALL ESTABLISH AN IRREVOCABLE TRUST TO FUND AND PAY THE
EXECUTIVE THE MAXIMUM AMOUNT OF OBLIGATIONS WHICH COULD REASONABLY BE EXPECTED
TO BECOME PAYABLE HEREUNDER UNDER ANY CIRCUMSTANCES (WHICH SHALL BE A "RABBI
TRUST" IF SO REQUESTED BY THE EXECUTIVE), WHICH TRUST (I) SHALL HAVE AS TRUSTEE
AN INDIVIDUAL ACCEPTABLE TO THE EXECUTIVE, (II) SHALL BE FULLY FUNDED UPON A
POTENTIAL CHANGE OF CONTROL, AND (III) SHALL CONTAIN SUCH OTHER TERMS AND
CONDITIONS AS ARE REASONABLY NECESSARY IN THE EXECUTIVE'S DETERMINATION TO
ENSURE THE COMPANY'S COMPLIANCE WITH ITS OBLIGATIONS HEREUNDER. IN THE EVENT THE
TRUST IS FUNDED DUE TO A POTENTIAL CHANGE OF CONTROL AND A CHANGE OF CONTROL
DOES NOT OCCUR WITHIN ONE (1) YEAR OF THE LATEST OCCURRENCE OF A POTENTIAL
CHANGE OF CONTROL, THE COMPANY MAY RECOVER ANY AMOUNTS CONTRIBUTED TO AND
REMAINING IN THE TRUST. ANY POTENTIAL CHANGE OF CONTROL OR CHANGE OF CONTROL,
WHICHEVER OCCURS FIRST, ARISING AFTER SUCH RETURN OF FUNDS TO THE COMPANY SHALL
RESULT IN A NEW TRUST FUNDING OBLIGATION UNDER THIS SECTION 8.13. THE COMPANY
WILL PAY ALL MANAGEMENT AND OTHER FEES ASSOCIATED WITH THE ADMINISTRATION OF THE
TRUST ESTABLISHED PURSUANT TO THIS SECTION 8.13.
IN WITNESS WHEREOF, THE EXECUTIVE AND A DULY AUTHORIZED COMPANY OFFICER HAVE
SIGNED THIS AGREEMENT.
EXECUTIVE: COMPANY:
THE SOUTH FINANCIAL GROUP, INC.
/s/ Mack I. Whittle, Jr. By: /s/ Mary A. Jeffrey
- ----------------------------- ------------------------------
MACK I. WHITTLE, JR. MARY A. JEFFREY
Title: Executive Vice President
Director - Human Resources
BENEFICIARY DESIGNATION
THE SOUTH FINANCIAL GROUP
SUPPLEMENTAL EXECUTIVE RETIREMENT AGREEMENT
MACK I. WHITTLE, JR.
I designate the following as beneficiary of any death benefits under this
Supplemental Executive Retirement Agreement:
Primary:
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Contingent:
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NOTE: TO NAME A TRUST AS BENEFICIARY, PLEASE PROVIDE THE NAME OF THE TRUSTEE(S)
AND THE EXACT NAME AND DATE OF THE TRUST AGREEMENT.
I understand that I may change these beneficiary designations by filing a new
written designation with the Company. I further understand that the designations
will be automatically revoked if the beneficiary predeceases me, or, if I have
named my spouse as beneficiary and our marriage is subsequently dissolved.
Signature:
------------------------------------------------
Date:
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Accepted by the Company this ____ day of ____________, 2003.
By:
----------------------------------------------------
Title:
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SCHEDULE A CALCULATIONS
THE SOUTH FINANCIAL GROUP
SUPPLEMENTAL EXECUTIVE RETIREMENT AGREEMENT
TO DETERMINE THE EXECUTIVE'S EARLY TERMINATION BENEFIT OR DISABILITY RETIREMENT
BENEFIT FOR THE YEAR OF THE TERMINATION OF EMPLOYMENT, THE FOLLOWING
CALCULATIONS SHALL BE MADE:
1. Project the Benefit Basis as of Normal Retirement Age by increasing
the Benefit Basis as of the Executive's date of Termination of
Employment by 5% per year, compounded annually, until Normal
Retirement Age (the "Projected Retirement Benefit Basis").
2. Multiply the Projected Retirement Benefit Basis by the applicable
percentage set forth in 2.1.1 (the product, "Annual Projected
Retirement Benefit").
3. Calculate the discounted value at Normal Retirement Age of the
aggregate Annual Projected Retirement Benefit that would have been
paid to the Executive in equal monthly installments over the 180-month
period immediately following the Normal Retirement Date, by using the
Rate, compounded monthly (such discounted value, the "Lump Sum
Projected Retirement Benefit").
4. Calculate the aggregate amount that has accrued through the end of the
year ending immediately prior to the date of the Executive's
Termination of Employment (including the amount of the Executive's
Accrual Balance under the Prior Agreement as of the Effective Date as
set forth on Schedule B) by accruing each month from the Effective
Date through Normal Retirement Age, with interest on such amounts
calculated monthly at the Rate, in order to accumulate to the Lump Sum
Projected Retirement Benefit as of the Normal Retirement Date (the
"Accrual Balance").
IN THE CASE OF EARLY TERMINATION BENEFIT:
5. Multiply the Accrual Balance by 10% per Year of Service, subject to a
maximum of 100% (the "Vested Accrual Balance").
6. Increase the Vested Accrual Balance by the Rate, compounded monthly,
to the Normal Retirement Age (the "Inflated Vested Accrual Balance").
7. Calculate a fixed annuity which is payable in 180 equal monthly
installments, crediting interest on the unpaid balance of the Inflated
Vested Accrual Balance at the Rate, compounded monthly.
IN THE CASE OF DISABILITY RETIREMENT BENEFIT:
5. The Disability Annual Benefit amount is determined by calculating a
fixed annuity which is payable in 180 equal monthly installments,
crediting interest on the unpaid balance of the Accrual Balance at the
Rate, compounded monthly.
SCHEDULE B CALCULATIONS
THE SOUTH FINANCIAL GROUP
SUPPLEMENTAL EXECUTIVE RETIREMENT AGREEMENT
MACK I. WHITTLE, JR.
Accrual Balance under Prior Agreement as of June 30, 2003: $474,724
THE SOUTH FINANCIAL GROUP
SUPPLEMENTAL EXECUTIVE RETIREMENT AGREEMENT
BETWEEN
THE SOUTH FINANCIAL GROUP, INC.
AND
WILLIAM S. HUMMERS, III
This Supplemental Executive Retirement Agreement (this "Agreement") is made and
entered into as of this 15th day of July, 2003 (the "Effective Date"), by and
between William S. Hummers, III, an individual (the "Executive"), and The South
Financial Group, Inc., a South Carolina corporation and financial institution
holding company headquartered in Greenville, South Carolina (the "Company"). As
used herein, the term "Company" shall include the Company and any and all of its
subsidiaries where the context so applies.
INTRODUCTION
The Company wishes to provide the Executive with supplemental retirement
benefits and thereby encourage the Executive to continue providing services to
the Company. The Company will pay the benefits from its general assets.
The Agreement is intended to be a top-hat plan (i.e., an unfunded deferred
compensation plan maintained for a member of a select group of management or
highly compensated employees) pursuant to Section 201(2), 301(a)(3), and
401(a)(1) of the Employee Retirement Income Security Act of 1974 (ERISA).
AGREEMENT
The Executive and the Company agree as follows:
Definitions
Whenever used in this Agreement, the following words and phrases shall have the
meanings specified:
"AFFILIATED COMPANY" MEANS ANY COMPANY CONTROLLED BY,
CONTROLLING OR UNDER COMMON CONTROL WITH THE COMPANY.
"BENEFIT BASIS" MEANS THE AVERAGE OF THE HIGHEST THREE FISCAL
YEARS OF COMPENSATION (OR SUCH LESSER NUMBER OF YEARS AS THE EXECUTIVE HAS BEEN
EMPLOYED BY THE COMPANY) EARNED BY THE EXECUTIVE DURING THE TEN FISCAL YEARS OF
THE EXECUTIVE'S EMPLOYMENT PRIOR TO THE TERMINATION OF EMPLOYMENT, OR FOR SUCH
LESSER NUMBER OF FISCAL YEARS THAT THE EXECUTIVE WAS EMPLOYED BY THE COMPANY
PRIOR TO THE TERMINATION OF EMPLOYMENT, INCLUDING THE YEAR IN WHICH TERMINATION
OF EMPLOYMENT OCCURS.
"BOARD" MEANS THE BOARD OF DIRECTORS OF THE COMPANY.
"CAUSE" MEANS (I) THE WILLFUL AND CONTINUED FAILURE OF THE
EXECUTIVE TO PERFORM SUBSTANTIALLY THE EXECUTIVE'S DUTIES WITH THE COMPANY OR
ANY AFFILIATED COMPANY (OTHER THAN ANY SUCH FAILURE RESULTING FROM INCAPACITY
DUE TO PHYSICAL OR MENTAL ILLNESS OR FOLLOWING THE EXECUTIVE'S INVOLUNTARY
TERMINATION), AFTER A WRITTEN DEMAND FOR SUBSTANTIAL PERFORMANCE IS DELIVERED TO
THE EXECUTIVE BY THE CHIEF EXECUTIVE OFFICER THAT SPECIFICALLY IDENTIFIES THE
MANNER IN WHICH THE CHIEF EXECUTIVE OFFICER BELIEVES THAT THE EXECUTIVE HAS NOT
SUBSTANTIALLY PERFORMED THE EXECUTIVE'S DUTIES, OR (II) THE WILLFUL ENGAGING BY
THE EXECUTIVE IN ILLEGAL CONDUCT OR GROSS MISCONDUCT, IN EACH CASE, THAT IS
MATERIALLY AND DEMONSTRABLY INJURIOUS TO THE COMPANY. FOR PURPOSES OF THIS
DEFINITION, NO ACT, OR FAILURE TO ACT, ON THE PART OF THE EXECUTIVE SHALL BE
CONSIDERED "WILLFUL" UNLESS IT IS DONE, OR OMITTED TO BE DONE, BY THE EXECUTIVE
IN BAD FAITH OR WITHOUT REASONABLE BELIEF THAT THE EXECUTIVE'S ACTION OR
OMISSION WAS IN THE BEST INTERESTS OF THE COMPANY. ANY ACT, OR FAILURE TO ACT,
BASED UPON AUTHORITY GIVEN PURSUANT TO A RESOLUTION DULY ADOPTED BY THE BOARD,
OR UPON INSTRUCTIONS FROM THE CHIEF EXECUTIVE OFFICER, OR BASED UPON THE ADVICE
OF COUNSEL FOR THE COMPANY SHALL BE CONCLUSIVELY PRESUMED TO BE DONE, OR OMITTED
TO BE DONE, BY THE EXECUTIVE IN GOOD FAITH AND IN THE BEST INTERESTS OF THE
COMPANY. THE CESSATION OF EMPLOYMENT OF THE EXECUTIVE SHALL NOT BE DEEMED TO BE
FOR CAUSE UNLESS AND UNTIL THERE SHALL HAVE BEEN DELIVERED TO THE EXECUTIVE A
COPY OF A RESOLUTION DULY ADOPTED BY THE AFFIRMATIVE VOTE OF NOT LESS THAN
THREE-QUARTERS OF THE ENTIRE MEMBERSHIP OF THE BOARD (EXCLUDING THE EXECUTIVE,
IF THE EXECUTIVE IS A MEMBER OF THE BOARD) AT A MEETING OF THE BOARD CALLED AND
HELD FOR SUCH PURPOSE (AFTER REASONABLE NOTICE IS PROVIDED TO THE EXECUTIVE AND
THE EXECUTIVE IS GIVEN AN OPPORTUNITY, TOGETHER WITH COUNSEL FOR THE EXECUTIVE,
TO BE HEARD BEFORE THE BOARD), FINDING THAT, IN THE GOOD FAITH OPINION OF THE
BOARD, THE EXECUTIVE IS GUILTY OF THE CONDUCT DESCRIBED IN CLAUSE (I) OR (II) OF
THIS DEFINITION, AND SPECIFYING THE PARTICULARS THEREOF IN DETAIL.
"CHANGE OF CONTROL" MEANS:
The acquisition by any individual, entity or group
(within the meaning of Section 13(d)(3) or 14(d)(2) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act")) (a "Person") of
beneficial ownership (within the meaning of Rule 13d-3 promulgated
under the Exchange Act) of 20% or more of either (A) the
then-outstanding shares of common stock of the Company (the
"Outstanding Company Common Stock") or (B) the combined voting power of
the then-outstanding voting securities of the Company entitled to vote
generally in the election of directors (the "Outstanding Company Voting
Securities"); provided, however, that, for purposes of this Section
1.5, the following acquisitions shall not constitute a Change of
Control: (i) any acquisition directly from the Company, (ii) any
acquisition by the Company, (iii) any acquisition by any employee
benefit plan (or related trust) sponsored or maintained by the Company
or any Affiliated Company or (iv) any acquisition by any corporation
pursuant to a transaction that complies with Sections 1.5.3(A),
1.5.3(B) and 1.5.3(C);
Any time at which individuals who, as of the date
hereof, constitute the Board (the "Incumbent Board") cease for any
reason to constitute at least a majority of the Board; provided,
however, that any individual becoming a director subsequent to the date
hereof whose election, or nomination for election by the Company's
shareholders, was approved by a vote of at least a majority of the
directors then comprising the Incumbent Board shall be considered as
though such individual were a member of the Incumbent Board, but
excluding, for this purpose, any such individual whose initial
assumption of office occurs as a result of an actual or threatened
election contest with respect to the election or removal of directors
or other actual or threatened solicitation of proxies or consents by or
on behalf of a Person other than the Board;
Consummation of a reorganization, merger, statutory
share exchange or consolidation or similar corporate transaction
involving the Company or any of its subsidiaries, a sale or other
disposition of all or substantially all of the assets of the Company,
or the acquisition of assets or stock of another entity by the Company
or any of its subsidiaries (each, a "Business Combination"), in each
case unless, following such Business Combination, (A) all or
substantially all of the individuals and entities that were the
beneficial owners of the Outstanding Company Common Stock and the
Outstanding Company Voting Securities immediately prior to such
Business Combination beneficially own, directly or indirectly, more
than 50% of the then-outstanding shares of common stock and the
combined voting power of the then-outstanding voting securities
entitled to vote generally in the election of directors, as the case
may be, of the corporation resulting from such Business Combination
(including, without limitation, a corporation that, as a result of such
transaction, owns the Company or all or substantially all of the
Company's assets either directly or through one or more subsidiaries)
in substantially the same proportions as their ownership immediately
prior to such Business Combination of the Outstanding Company Common
Stock and the Outstanding Company Voting Securities, as the case may
be, (B) no Person (excluding any corporation resulting from such
Business Combination or any employee benefit plan (or related trust) of
the Company or such corporation resulting from such Business
Combination) beneficially owns, directly or indirectly, 20% or more of,
respectively, the then-outstanding shares of common stock of the
corporation resulting from such Business Combination or the combined
voting power of the then-outstanding voting securities of such
corporation, except to the extent that such ownership existed prior to
the Business Combination, and (C) at least a majority of the members of
the board of directors of the corporation resulting from such Business
Combination were members of the Incumbent Board at the time of the
execution of the initial agreement or of the action of the Board
providing for such Business Combination; or
Approval by the shareholders of the Company of a
complete liquidation or dissolution of the Company.
"CODE" MEANS THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
"COMPENSATION" MEANS THE EXECUTIVE'S ANNUAL BASE SALARY AND
ANNUAL BONUS UNDER THE COMPANY'S MANAGEMENT INCENTIVE COMPENSATION PLAN, OR ANY
COMPARABLE BONUS UNDER ANY PREDECESSOR OR SUCCESSOR PLAN, INCLUDING ANY BONUS OR
PORTION THEREOF THAT HAS BEEN EARNED BUT DEFERRED (AND ANNUALIZED FOR ANY FISCAL
YEAR CONSISTING OF LESS THAN 12 FULL MONTHS OR DURING WHICH THE EXECUTIVE WAS
EMPLOYED FOR LESS THAN 12 FULL MONTHS) FOR THE RELEVANT FISCAL YEAR. IF THE
TERMINATION OF EMPLOYMENT OCCURS PRIOR TO THE END OF THE FISCAL YEAR, THE BONUS
AMOUNT FOR SUCH FISCAL YEAR SHALL BE EQUAL TO THE HIGHEST OF THE BONUSES EARNED
BY THE EXECUTIVE IN THE PRIOR THREE FISCAL YEARS (OR FOR SUCH LESSER NUMBER OF
FISCAL YEARS PRIOR TO THE TERMINATION OF EMPLOYMENT FOR WHICH THE EXECUTIVE WAS
ELIGIBLE TO EARN SUCH A BONUS, AND ANNUALIZED IN THE CASE OF ANY BONUS EARNED
FOR A PARTIAL FISCAL YEAR).
"DISABILITY" MEANS THE ABSENCE OF THE EXECUTIVE FROM THE
EXECUTIVE'S DUTIES WITH THE COMPANY ON A FULL-TIME BASIS FOR 180 CONSECUTIVE
BUSINESS DAYS AS A RESULT OF INCAPACITY DUE TO MENTAL OR PHYSICAL ILLNESS THAT
IS DETERMINED TO BE TOTAL AND PERMANENT BY A PHYSICIAN SELECTED BY THE COMPANY
OR ITS INSURERS AND ACCEPTABLE TO THE EXECUTIVE OR THE EXECUTIVE'S LEGAL
REPRESENTATIVE.
"EARLY RETIREMENT AGE" MEANS THE DATE THAT THE EXECUTIVE HAS
ATTAINED AGE 55 AND COMPLETED SEVEN YEARS OF SERVICE.
"EARLY RETIREMENT DATE" MEANS THE DATE THAT IS THE LATER OF
THE EARLY RETIREMENT AGE OR THE TERMINATION OF EMPLOYMENT, BUT IS BEFORE THE
NORMAL RETIREMENT DATE.
"EARLY TERMINATION" MEANS THE TERMINATION OF EMPLOYMENT BEFORE
EARLY RETIREMENT AGE FOR REASONS OTHER THAN (I) DEATH, (II) DISABILITY, (III) BY
THE COMPANY FOR CAUSE, (IV) BY THE COMPANY WITHOUT CAUSE DURING THE TWO YEAR
PERIOD FOLLOWING A CHANGE OF CONTROL, (V) INVOLUNTARY TERMINATION.
"EARLY TERMINATION DATE" MEANS THE MONTH, DAY AND YEAR IN
WHICH EARLY TERMINATION OCCURS.
"EFFECTIVE DATE" MEANS JULY 15, 2003.
"INVOLUNTARY TERMINATION" MEANS A TERMINATION OF EMPLOYMENT BY
THE EXECUTIVE FOLLOWING A CHANGE OF CONTROL WHICH, IN THE SOLE JUDGMENT OF THE
EXECUTIVE, IS DUE TO (I) A CHANGE OF THE EXECUTIVE'S RESPONSIBILITIES, POSITION
(INCLUDING THE EXECUTIVE'S OFFICE, TITLE, REPORTING RELATIONSHIPS OR WORKING
CONDITIONS), AUTHORITY OR DUTIES (INCLUDING CHANGES RESULTING FROM THE
ASSIGNMENT TO THE EXECUTIVE OF ANY DUTIES INCONSISTENT WITH HIS POSITIONS,
DUTIES OR RESPONSIBILITIES AS IN EFFECT IMMEDIATELY PRIOR TO THE CHANGE OF
CONTROL); OR (II) A REDUCTION IN THE EXECUTIVE'S ANNUAL BASE SALARY OR ANNUAL
BONUS OPPORTUNITY UNDER THE COMPANY'S MANAGEMENT INCENTIVE COMPENSATION PLAN, OR
ANY COMPARABLE BONUS UNDER ANY PREDECESSOR OR SUCCESSOR PLAN, INCLUDING ANY
BONUS OR PORTION THEREOF THAT HAS BEEN EARNED BUT DEFERRED, OR BENEFITS; OR
(III) A FORCED RELOCATION OF THE EXECUTIVE OUTSIDE THE GREENVILLE, SOUTH
CAROLINA METROPOLITAN AREA; OR (IV) A SIGNIFICANT INCREASE IN THE EXECUTIVE'
TRAVEL REQUIREMENTS (COLLECTIVELY "STATUS CHANGES"); PROVIDED, HOWEVER,
EXECUTIVE MUST ELECT TO TERMINATE EXECUTIVE'S EMPLOYMENT WITHIN TWO (2) YEARS OF
THE STATUS CHANGE ON WHICH EXECUTIVE BASES EXECUTIVE'S EMPLOYMENT TERMINATION.
"NORMAL RETIREMENT AGE" MEANS EXECUTIVE'S 65TH BIRTHDAY.
"NORMAL RETIREMENT DATE" MEANS THE LATER OF THE NORMAL
RETIREMENT AGE OR TERMINATION OF EMPLOYMENT.
"POTENTIAL CHANGE OF CONTROL" SHALL MEAN:
(i) The purchase or other acquisition by any person, entity,
or group of persons, within the meaning of Section 13(d) or 14(d) of
the Exchange Act, or any comparable successor provisions, other than
the trustee of any other trust or plan maintained for the benefit of
employees of the Company, or beneficial ownership (within the meaning
of Rule 13d-3 promulgated under the Exchange Act) of 5% or more of
either the outstanding shares of common stock or the combined voting
power of the Company's then outstanding voting securities entitled to
vote generally;
(ii) The announcement by any Person of an intention to take
actions which might reasonably result in a business combination between
the Company and an entity which has a market capitalization equal to or
greater than 80% of the Company;
(iii) The issuance of a proxy statement with respect to an
election of directors of the Company for which there is proposed one or
more directors who are not recommended by the Board or its nominating
committee, where the election of such proposed director or directors
would result in a Change in Control;
(iv) Submission to the Board of nominations which, if
approved, would change the executive officer configuration of the
Company (at the executive vice president level and above) by 50% or
more of such individuals holding such offices;
(v) The filing of any regulatory application by any person
seeking to effect a Change in Control; or
(vi) The receipt by the Company of any other indication
of the intent by any person to seek to effect a Change in Control.
"RATE" MEANS THE MOODY'S AA CORPORATE BOND RATE AS REPORTED BY
THE SOCIETY OF ACTUARIES AS OF THE EFFECTIVE DATE AND UPDATED ON EACH DECEMBER
31 ANNIVERSARY THEREAFTER.
"TERMINATION OF EMPLOYMENT" MEANS THE TERMINATION OF THE
EXECUTIVE'S EMPLOYMENT WITH THE COMPANY AND ANY OF ITS SUBSIDIARIES OR
AFFILIATES. IF THE EXECUTIVE IS EMPLOYED BY A SUBSIDIARY OR AN AFFILIATE, THE
EXECUTIVE SHALL ALSO BE DEEMED TO INCUR A TERMINATION OF EMPLOYMENT IF THE
SUBSIDIARY OR AFFILIATE CEASES TO BE SUCH A SUBSIDIARY OR AN AFFILIATE, AS THE
CASE MAY BE, AND THE EXECUTIVE DOES NOT IMMEDIATELY THEREAFTER BECOME AN
EMPLOYEE OF THE COMPANY OR ANOTHER SUBSIDIARY OR AFFILIATE. TEMPORARY ABSENCES
FROM EMPLOYMENT BECAUSE OF ILLNESS, VACATION OR LEAVE OF ABSENCE AND TRANSFERS
AMONG THE COMPANY AND ITS SUBSIDIARIES AND AFFILIATES SHALL NOT BE CONSIDERED
TERMINATIONS OF EMPLOYMENT.
"VESTING PERCENTAGE" IS THE PERCENTAGE OF THE ACCRUAL BALANCE
IN WHICH THE EXECUTIVE IS VESTED AS DETERMINED IN ACCORDANCE WITH SCHEDULE A.
"VESTING START DATE" SHALL BE JUNE 1, 1988.
"YEAR OF SERVICE" MEANS A TWELVE-MONTH CONTINUOUS PERIOD OF
EMPLOYMENT OR A PORTION OF SUCH PERIOD, INCLUDING PERIODS OF AUTHORIZED
VACATION, AUTHORIZED LEAVE OF ABSENCE AND SHORT-TERM DISABILITY LEAVE, WITH THE
COMPANY OR ANY OF ITS AFFILIATE OR THEIR PREDECESSORS OR SUCCESSORS ROUNDED UP
TO THE NEAREST WHOLE NUMBER COMMENCING ON THE VESTING START DATE.
Lifetime Benefits
NORMAL RETIREMENT BENEFIT. UPON TERMINATION OF EMPLOYMENT (I)
ON OR AFTER THE NORMAL RETIREMENT AGE FOR REASONS OTHER THAN DEATH, OR (II) UPON
TERMINATION OF EMPLOYMENT WITHOUT CAUSE WITHIN TWO YEARS FOLLOWING A CHANGE OF
CONTROL OR (III) UPON EXECUTIVE'S INVOLUNTARY TERMINATION, THE COMPANY SHALL PAY
TO THE EXECUTIVE THE BENEFIT DESCRIBED IN THIS SECTION 2.1 IN LIEU OF ANY OTHER
BENEFIT UNDER THIS AGREEMENT.
Amount of Benefit. The annual benefit under this
Section 2.1 is an amount equal to Sixty percent (60.0%) of the Benefit
Basis.
Payment of Benefit. The Company shall pay the annual
benefit to the Executive in 12 equal monthly installments payable on
the first day of each month commencing with the month following the
Executive's Normal Retirement Date or, if earlier, upon Termination of
Employment without Cause within two years following a Change of Control
or upon Executive's Involuntary Termination, as the case may be. The
annual benefit shall be paid to the Executive (a) for 180 months or (b)
at the Executive's election on the Election Form attached as Exhibit A
during the calendar year immediately preceding the year in which the
Termination of Employment occurs, in a lump sum payment within 30 days
following the Executive's Normal Retirement Date or, if earlier, upon
Termination of Employment without Cause within two years following a
Change of Control or upon Executive's Involuntary Termination, as the
case may be, equal to the present value of the aggregate annual
benefits that would have been payable to the Executive under clause (a)
of this Section 2.1.2, assuming a discount rate equal to the Rate.
Benefit Increases. Commencing on the first
anniversary of the first benefit payment, and continuing on each
subsequent anniversary, the Company's Board of Directors, in its sole
discretion, may increase the benefit.
EARLY RETIREMENT BENEFIT. UPON TERMINATION OF EMPLOYMENT ON OR
AFTER EARLY RETIREMENT AGE BUT BEFORE NORMAL RETIREMENT AGE FOR REASONS OTHER
THAN (I) DEATH, (II) DISABILITY, (III) BY THE COMPANY WITHOUT CAUSE WITHIN TWO
YEARS FOLLOWING A CHANGE OF CONTROL OR (IV) UPON EXECUTIVE'S INVOLUNTARY
TERMINATION, THE COMPANY SHALL PAY TO THE EXECUTIVE THE BENEFIT DESCRIBED IN
THIS SECTION 2.2 IN LIEU OF ANY OTHER BENEFITS UNDER THIS AGREEMENT.
Amount of Benefit. The annual benefit under this
Section 2.2 is an amount equal to the greater of (i) the product of (A)
the sum of (x) Fifty percent (50.0%) and (y) Three percent (3.0%) for
each Year of Service completed by the Executive after the Early
Retirement Age and (B) the Benefit Basis or (ii) the benefit under
Section 2.3; provided that in no event shall the amount payable under
this Section 2.2.1 be greater than the benefit set forth in Section
2.1.1.
Payment of Benefit. The Company shall pay the annual
benefit to the Executive in 12 equal monthly installments payable on
the first day of each month commencing with the month following the
Normal Retirement Age. The annual benefit shall be paid to the
Executive (a) for 180 months or (b) at the Executive's election on the
Election Form attached as Exhibit A during the calendar year
immediately preceding the year in which the Termination of Employment
occurs, in a lump sum payment within 30 days following the Executive's
Termination of Employment on or after Early Retirement Age but before
Normal Retirement Age for reasons other than (i) death, (ii)
Disability, (iii) by the Company without Cause within two years
following a Change of Control or (iv) upon Executive's Involuntary
Termination, as the case may be, equal to the present value of the
aggregate annual benefits that would have been payable to the Executive
under clause (a) of this Section 2.2.2, assuming a discount rate equal
to the Rate.
Benefit Increases. Benefit payments may be increased
as provided in Section 2.1.3.
EARLY TERMINATION BENEFIT. UPON EARLY TERMINATION, THE COMPANY
SHALL PAY TO THE EXECUTIVE THE BENEFIT DESCRIBED IN THIS SECTION 2.3 IN LIEU OF
ANY OTHER BENEFIT UNDER THIS AGREEMENT.
Amount of Benefit. The benefit under this Section 2.3
is the Early Termination Annual Benefit set forth in Schedule A for the
year ending immediately prior to the Early Termination Date.
Payment of Benefit. The Company shall pay the annual
benefit to the Executive in 12 equal monthly installments payable on
the first day of each month commencing with the month following the
Normal Retirement Age. The annual benefit shall be paid to the
Executive for 180 months.
Benefit Increases. Benefit payments may be increased
as provided in Section 2.1.3.
DISABILITY BENEFIT. IF THE EXECUTIVE TERMINATES EMPLOYMENT DUE
TO DISABILITY PRIOR TO NORMAL RETIREMENT AGE, THE COMPANY SHALL PAY TO THE
EXECUTIVE THE BENEFIT DESCRIBED IN THIS SECTION 2.4 IN LIEU OF ANY OTHER BENEFIT
UNDER THIS AGREEMENT.
Amount of Benefit. If the Executive terminates
employment due to Disability prior to Normal Retirement Age, but after
Early Retirement Age, the benefit under this Section 2.4 shall be the
annual benefit set forth in Section 2.2.1. If the Executive terminates
employment due to Disability prior to Early Retirement Age, the benefit
under this Section 2.4 is the Disability Annual Benefit set forth in
Schedule A for the year ending immediately prior to the Early
Termination Date.
Payment of Benefit. The Company shall pay the annual
benefit amount to the Executive in 12 equal monthly installments
payable on the first day of each month commencing with the month
following the Termination of Employment. The annual benefit shall be
paid to the Executive for 180 months.
Benefit Increases. Benefit payments may be increased
as provided in Section 2.1.3.
Death Benefits
DEATH DURING ACTIVE SERVICE. IF THE EXECUTIVE DIES WHILE IN
THE ACTIVE SERVICE OF THE COMPANY, THE COMPANY SHALL PAY TO THE EXECUTIVE'S
BENEFICIARY THE BENEFIT DESCRIBED IN THIS SECTION 3.1. THIS BENEFIT SHALL BE
PAID IN LIEU OF THE LIFETIME BENEFITS OF ARTICLE 2.
Amount of Benefit. The annual benefit under this
Section 3.1 is equal to the Disability Annual Benefit described in
Section 2.4.1.
Payment of Benefit. The Company shall pay the annual
benefit to the Executive's beneficiary in 12 equal monthly installments
payable on the first day of each month commencing with the month
following the Executive's death. The annual benefit shall be paid to
the Executive's beneficiary for 180 months.
DEATH DURING BENEFIT PERIOD. IF THE EXECUTIVE DIES AFTER THE
BENEFIT PAYMENTS HAVE COMMENCED UNDER THIS AGREEMENT BUT BEFORE RECEIVING ALL
SUCH PAYMENTS, THE COMPANY SHALL PAY THE REMAINING BENEFITS TO THE EXECUTIVE'S
BENEFICIARY AT THE SAME TIME AND IN THE SAME AMOUNTS THEY WOULD HAVE BEEN PAID
TO THE EXECUTIVE HAD THE EXECUTIVE SURVIVED.
DEATH AFTER TERMINATION OF EMPLOYMENT BUT BEFORE BENEFIT
PAYMENTS COMMENCE. IF THE EXECUTIVE IS ENTITLED TO BENEFIT PAYMENTS UNDER THIS
AGREEMENT, BUT DIES PRIOR TO THE COMMENCEMENT OF SAID BENEFIT PAYMENTS, THE
COMPANY SHALL PAY TO THE EXECUTIVE'S BENEFICIARY THE BENEFIT PAYMENTS THAT THE
EXECUTIVE WAS ENTITLED TO PRIOR TO DEATH EXCEPT THAT THE BENEFIT PAYMENTS SHALL
COMMENCE ON THE FIRST DAY OF THE MONTH FOLLOWING THE DATE OF THE EXECUTIVE'S
DEATH.
Beneficiaries
BENEFICIARY DESIGNATIONS. THE EXECUTIVE SHALL DESIGNATE A
BENEFICIARY BY FILING A WRITTEN DESIGNATION WITH THE COMPANY. THE EXECUTIVE MAY
REVOKE OR MODIFY THE DESIGNATION AT ANY TIME BY FILING A NEW DESIGNATION.
HOWEVER, DESIGNATIONS WILL ONLY BE EFFECTIVE IF SIGNED BY THE EXECUTIVE AND
ACCEPTED BY THE COMPANY DURING THE EXECUTIVE'S LIFETIME. THE EXECUTIVE'S
BENEFICIARY DESIGNATION SHALL BE DEEMED AUTOMATICALLY REVOKED IF THE BENEFICIARY
PREDECEASES THE EXECUTIVE, OR IF THE EXECUTIVE NAMES A SPOUSE AS BENEFICIARY AND
THE MARRIAGE IS SUBSEQUENTLY DISSOLVED. IF THE EXECUTIVE DIES WITHOUT A VALID
BENEFICIARY DESIGNATION, ALL PAYMENTS SHALL BE MADE TO THE EXECUTIVE'S ESTATE.
FACILITY OF PAYMENT. IF A BENEFIT IS PAYABLE TO A MINOR, TO A
PERSON DECLARED INCAPACITATED, OR TO A PERSON INCAPABLE OF HANDLING THE
DISPOSITION OF HIS OR HER PROPERTY, THE COMPANY MAY PAY SUCH BENEFIT TO THE
GUARDIAN, LEGAL REPRESENTATIVE OR PERSON HAVING THE CARE OR CUSTODY OF SUCH
MINOR, INCAPACITATED PERSON OR INCAPABLE PERSON. THE COMPANY MAY REQUIRE PROOF
OF INCAPACITY, MINORITY OR GUARDIANSHIP AS IT MAY DEEM APPROPRIATE PRIOR TO
DISTRIBUTION OF THE BENEFIT. SUCH DISTRIBUTION SHALL COMPLETELY DISCHARGE THE
COMPANY FROM ALL LIABILITY WITH RESPECT TO SUCH BENEFIT.
General Limitations
TERMINATION FOR CAUSE. NOTWITHSTANDING ANY PROVISION OF THIS
AGREEMENT TO THE CONTRARY, THE COMPANY SHALL NOT PAY ANY BENEFIT UNDER THIS
AGREEMENT IF THE COMPANY TERMINATES THE EXECUTIVE'S EMPLOYMENT FOR CAUSE.
SUICIDE OR MISSTATEMENT. THE COMPANY SHALL NOT PAY ANY BENEFIT
UNDER THIS AGREEMENT IF THE EXECUTIVE COMMITS SUICIDE WITHIN TWO YEARS AFTER THE
DATE OF THIS AGREEMENT.
Claims and Review Procedures
CLAIMS PROCEDURE. THE COMPANY SHALL NOTIFY ANY PERSON OR
ENTITY THAT MAKES A CLAIM AGAINST THE AGREEMENT (THE "CLAIMANT") IN WRITING,
WITHIN 90 DAYS OF CLAIMANT'S WRITTEN APPLICATION FOR BENEFITS, OF HIS OR HER
ELIGIBILITY OR NONELIGIBILITY FOR BENEFITS UNDER THE AGREEMENT. IF THE COMPANY
DETERMINES THAT THE CLAIMANT IS NOT ELIGIBLE FOR BENEFITS OR FULL BENEFITS, THE
NOTICE SHALL SET FORTH (1) THE SPECIFIC REASONS FOR SUCH DENIAL, (2) A SPECIFIC
REFERENCE TO THE PROVISIONS OF THE AGREEMENT ON WHICH THE DENIAL IS BASED, (3) A
DESCRIPTION OF ANY ADDITIONAL INFORMATION OR MATERIAL NECESSARY FOR THE CLAIMANT
TO PERFECT HIS OR HER CLAIM, AND A DESCRIPTION OF WHY IT IS NEEDED, AND (4) AN
EXPLANATION OF THE AGREEMENT'S CLAIMS REVIEW PROCEDURE AND OTHER APPROPRIATE
INFORMATION AS TO THE STEPS TO BE TAKEN IF THE CLAIMANT WISHES TO HAVE THE CLAIM
REVIEWED. IF THE COMPANY DETERMINES THAT THERE ARE SPECIAL CIRCUMSTANCES
REQUIRING ADDITIONAL TIME TO MAKE A DECISION, THE COMPANY SHALL NOTIFY THE
CLAIMANT OF THE SPECIAL CIRCUMSTANCES AND THE DATE BY WHICH A DECISION IS
EXPECTED TO BE MADE, AND MAY EXTEND THE TIME FOR UP TO AN ADDITIONAL 90 DAYS.
REVIEW PROCEDURE. IF THE CLAIMANT IS DETERMINED BY THE COMPANY
NOT TO BE ELIGIBLE FOR BENEFITS, OR IF THE CLAIMANT BELIEVES THAT HE OR SHE IS
ENTITLED TO GREATER OR DIFFERENT BENEFITS, THE CLAIMANT SHALL HAVE THE
OPPORTUNITY TO HAVE SUCH CLAIM REVIEWED BY THE COMPANY BY FILING A PETITION FOR
REVIEW WITH THE COMPANY WITHIN 60 DAYS AFTER RECEIPT OF THE NOTICE ISSUED BY THE
COMPANY. SAID PETITION SHALL STATE THE SPECIFIC REASONS WHICH THE CLAIMANT
BELIEVES ENTITLE HIM OR HER TO BENEFITS OR TO GREATER OR DIFFERENT BENEFITS.
WITHIN 60 DAYS AFTER RECEIPT BY THE COMPANY OF THE PETITION, THE COMPANY SHALL
AFFORD THE CLAIMANT (AND COUNSEL, IF ANY) AN OPPORTUNITY TO PRESENT HIS OR HER
POSITION TO THE COMPANY VERBALLY OR IN WRITING, AND THE CLAIMANT (OR COUNSEL)
SHALL HAVE THE RIGHT TO REVIEW THE PERTINENT DOCUMENTS. THE COMPANY SHALL NOTIFY
THE CLAIMANT OF ITS DECISION IN WRITING WITHIN THE 60-DAY PERIOD, STATING
SPECIFICALLY THE BASIS OF ITS DECISION, WRITTEN IN A MANNER CALCULATED TO BE
UNDERSTOOD BY THE CLAIMANT AND THE SPECIFIC PROVISIONS OF THE AGREEMENT ON WHICH
THE DECISION IS BASED. IF, BECAUSE OF THE NEED FOR A HEARING, THE 60-DAY PERIOD
IS NOT SUFFICIENT, THE DECISION MAY BE DEFERRED FOR UP TO ANOTHER 60 DAYS AT THE
ELECTION OF THE COMPANY, BUT NOTICE OF THIS DEFERRAL SHALL BE GIVEN TO THE
CLAIMANT.
Amendments and Termination
This Agreement may not be amended or modified other than by a written agreement
executed by the parties hereto or their respective successors and legal
representatives.
Miscellaneous
BINDING EFFECT. THIS AGREEMENT SHALL BIND THE EXECUTIVE
AND THE COMPANY, AND THEIR BENEFICIARIES, SURVIVORS, EXECUTORS, SUCCESSORS,
ADMINISTRATORS AND TRANSFEREES.
NO GUARANTEE OF EMPLOYMENT. THIS AGREEMENT IS NOT AN
EMPLOYMENT POLICY OR CONTRACT. IT DOES NOT GIVE THE EXECUTIVE THE RIGHT TO
REMAIN AN EMPLOYEE OF THE COMPANY, NOR DOES IT INTERFERE WITH THE COMPANY'S
RIGHT TO DISCHARGE THE EXECUTIVE. IT ALSO DOES NOT REQUIRE THE EXECUTIVE TO
REMAIN AN EMPLOYEE NOR INTERFERE WITH THE EXECUTIVE'S RIGHT TO TERMINATE
EMPLOYMENT AT ANY TIME.
NON-TRANSFERABILITY. BENEFITS UNDER THIS AGREEMENT CANNOT BE
SOLD, TRANSFERRED, ASSIGNED, PLEDGED, ATTACHED OR ENCUMBERED IN ANY MANNER.
SUCCESSORS. THIS AGREEMENT IS PERSONAL TO THE EXECUTIVE, AND,
WITHOUT THE PRIOR WRITTEN CONSENT OF THE COMPANY, SHALL NOT BE ASSIGNABLE BY THE
EXECUTIVE OTHER THAN BY WILL OR THE LAWS OF DESCENT AND DISTRIBUTION. THIS
AGREEMENT SHALL INURE TO THE BENEFIT OF AND BE ENFORCEABLE BY THE EXECUTIVE'S
LEGAL REPRESENTATIVES. THIS AGREEMENT SHALL INURE TO THE BENEFIT OF AND BE
BINDING UPON THE COMPANY AND ITS SUCCESSORS AND ASSIGNS. SUBJECT TO THE
FOLLOWING SENTENCES OF THIS SECTION 8.4, THIS AGREEMENT SHALL NOT BE ASSIGNABLE
BY THE COMPANY WITHOUT THE PRIOR WRITTEN CONSENT OF THE EXECUTIVE. THE COMPANY
WILL REQUIRE ANY SUCCESSOR (WHETHER DIRECT OR INDIRECT, BY PURCHASE, MERGER,
CONSOLIDATION OR OTHERWISE) TO ALL OR SUBSTANTIALLY ALL OF THE BUSINESS AND/OR
ASSETS OF THE COMPANY TO ASSUME EXPRESSLY AND AGREE TO PERFORM THIS AGREEMENT IN
THE SAME MANNER AND TO THE SAME EXTENT THAT THE COMPANY WOULD BE REQUIRED TO
PERFORM IT IF NO SUCH SUCCESSION HAD TAKEN PLACE. "COMPANY" MEANS THE COMPANY AS
HEREINBEFORE DEFINED AND ANY SUCCESSOR TO ITS BUSINESS AND/OR ASSETS AS
AFORESAID THAT ASSUMES AND AGREES TO PERFORM THIS AGREEMENT BY OPERATION OF LAW
OR OTHERWISE.
TAX WITHHOLDING. THE COMPANY SHALL WITHHOLD ANY TAXES THAT ARE
REQUIRED TO BE WITHHELD FROM THE BENEFITS PROVIDED UNDER THIS AGREEMENT.
APPLICABLE LAW. THE AGREEMENT AND ALL RIGHTS HEREUNDER SHALL
BE GOVERNED BY THE LAWS OF THE STATE OF SOUTH CAROLINA, WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAWS.
UNFUNDED ARRANGEMENT. THE EXECUTIVE AND BENEFICIARY ARE
GENERAL UNSECURED CREDITORS OF THE COMPANY FOR THE PAYMENT OF BENEFITS UNDER
THIS AGREEMENT. THE BENEFITS REPRESENT THE MERE PROMISE BY THE COMPANY TO PAY
SUCH BENEFITS. THE RIGHTS TO BENEFITS ARE NOT SUBJECT IN ANY MANNER TO
ANTICIPATION, ALIENATION, SALE, TRANSFER, ASSIGNMENT, PLEDGE, ENCUMBRANCE,
ATTACHMENT, OR GARNISHMENT BY CREDITORS.
ENTIRE AGREEMENT. THIS AGREEMENT CONSTITUTES THE ENTIRE
AGREEMENT BETWEEN THE COMPANY AND THE EXECUTIVE AS TO THE SUBJECT MATTER HEREOF.
NO RIGHTS ARE GRANTED TO THE EXECUTIVE BY VIRTUE OF THIS AGREEMENT OTHER THAN
THOSE SPECIFICALLY SET FORTH HEREIN. FROM AND AFTER THE EFFECTIVE DATE, THIS
AGREEMENT SHALL SUPERSEDE ANY OTHER AGREEMENT BETWEEN THE PARTIES WITH RESPECT
TO THE SUBJECT MATTER HEREOF INCLUDING WITHOUT LIMITATION THE SUPPLEMENTAL
EXECUTIVE BENEFIT AGREEMENT BETWEEN THE EXECUTIVE AND THE COMPANY DATED AS OF
DECEMBER 14, 2002 (THE "PRIOR AGREEMENT").
ADMINISTRATION AND RECORDKEEPING AUTHORITY. EXCEPT AS
OTHERWISE SPECIFICALLY PROVIDED HEREIN, THE COMPANY SHALL HAVE THE SOLE
RESPONSIBILITY FOR AND THE SOLE CONTROL OF THE OPERATION, ADMINISTRATION, AND
RECORDKEEPING OF THIS AGREEMENT AND SHALL HAVE THE POWER AND AUTHORITY TO TAKE
ALL ACTION AND TO MAKE ALL DECISIONS AND INTERPRETATIONS THAT MAY BE NECESSARY
OR APPROPRIATE IN ORDER TO ADMINISTER AND OPERATE THE AGREEMENT, INCLUDING,
WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, THE POWER, DUTY, AND
RESPONSIBILITY TO:
RESOLVE AND DETERMINE ALL DISPUTES OR QUESTIONS
ARISING UNDER THE AGREEMENT, INCLUDING THE POWER TO
DETERMINE THE RIGHTS OF THE PARTICIPANT AND
BENEFICIARIES AND THEIR RESPECTIVE BENEFITS, AND TO
REMEDY ANY AMBIGUITIES, INCONSISTENCIES, OR OMISSIONS
IN THE AGREEMENT;
ADOPT SUCH RULES OF PROCEDURE AND REGULATIONS AS IN
ITS OPINION MAY BE NECESSARY FOR THE PROPER AND
EFFICIENT ADMINISTRATION OF THE AGREEMENT AND AS ARE
CONSISTENT WITH THE AGREEMENT;
IMPLEMENT THE AGREEMENT IN ACCORDANCE WITH ITS TERMS;
ESTABLISH AND REVISE THE METHOD OF ACCOUNTING FOR THE
AGREEMENT; AND
MAINTAIN A RECORD OF BENEFIT PAYMENTS.
NAMED FIDUCIARY. THE COMPANY SHALL BE THE NAMED FIDUCIARY AND
PLAN ADMINISTRATOR UNDER THE AGREEMENT. THE NAMED FIDUCIARY MAY DELEGATE TO
OTHERS CERTAIN ASPECTS OF THE MANAGEMENT AND OPERATION RESPONSIBILITIES OF THE
PLAN INCLUDING THE EMPLOYMENT OF ADVISORS AND THE DELEGATION OF MINISTERIAL
DUTIES TO QUALIFIED INDIVIDUALS.
CAPTIONS. THE CAPTIONS OF THIS AGREEMENT ARE NOT PART OF THE
PROVISIONS HEREOF AND SHALL HAVE NO FORCE OR EFFECT.
SEVERABILITY. THE INVALIDITY OR UNENFORCEABILITY OF ANY
PROVISION OF THIS AGREEMENT SHALL NOT AFFECT THE VALIDITY OR ENFORCEABILITY OF
ANY OTHER PROVISION OF THIS AGREEMENT.
TRUST. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS
AGREEMENT, COMPANY SHALL ESTABLISH AN IRREVOCABLE TRUST TO FUND AND PAY THE
EXECUTIVE THE MAXIMUM AMOUNT OF OBLIGATIONS WHICH COULD REASONABLY BE EXPECTED
TO BECOME PAYABLE HEREUNDER UNDER ANY CIRCUMSTANCES (WHICH SHALL BE A "RABBI
TRUST" IF SO REQUESTED BY THE EXECUTIVE), WHICH TRUST (I) SHALL HAVE AS TRUSTEE
AN INDIVIDUAL ACCEPTABLE TO THE EXECUTIVE, (II) SHALL BE FULLY FUNDED UPON A
POTENTIAL CHANGE OF CONTROL, AND (III) SHALL CONTAIN SUCH OTHER TERMS AND
CONDITIONS AS ARE REASONABLY NECESSARY IN THE EXECUTIVE'S DETERMINATION TO
ENSURE THE COMPANY'S COMPLIANCE WITH ITS OBLIGATIONS HEREUNDER. IN THE EVENT THE
TRUST IS FUNDED DUE TO A POTENTIAL CHANGE OF CONTROL AND A CHANGE OF CONTROL
DOES NOT OCCUR WITHIN ONE (1) YEAR OF THE LATEST OCCURRENCE OF A POTENTIAL
CHANGE OF CONTROL, THE COMPANY MAY RECOVER ANY AMOUNTS CONTRIBUTED TO AND
REMAINING IN THE TRUST. ANY POTENTIAL CHANGE OF CONTROL OR CHANGE OF CONTROL,
WHICHEVER OCCURS FIRST, ARISING AFTER SUCH RETURN OF FUNDS TO THE COMPANY SHALL
RESULT IN A NEW TRUST FUNDING OBLIGATION UNDER THIS SECTION 8.13. THE COMPANY
WILL PAY ALL MANAGEMENT AND OTHER FEES ASSOCIATED WITH THE ADMINISTRATION OF THE
TRUST ESTABLISHED PURSUANT TO THIS SECTION 8.13.
IN WITNESS WHEREOF, THE EXECUTIVE AND A DULY AUTHORIZED COMPANY OFFICER HAVE
SIGNED THIS AGREEMENT. EXECUTIVE:
COMPANY:
THE SOUTH FINANCIAL GROUP, INC.
/s/ William S. Hummers, III By: /s/ Mary A. Jeffrey
- ------------------------------- ----------------------------
WILLIAM S. HUMMERS, III MARY A. JEFFREY
Title: Executive Vice President
BENEFICIARY DESIGNATION
THE SOUTH FINANCIAL GROUP
SUPPLEMENTAL EXECUTIVE RETIREMENT AGREEMENT
WILLIAM S. HUMMERS, III
I designate the following as beneficiary of any death benefits under this
Supplemental Executive Retirement Agreement:
Primary:
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Contingent:
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NOTE: TO NAME A TRUST AS BENEFICIARY, PLEASE PROVIDE THE NAME OF THE TRUSTEE(S)
AND THE EXACT NAME AND DATE OF THE TRUST AGREEMENT.
I understand that I may change these beneficiary designations by filing a new
written designation with the Company. I further understand that the designations
will be automatically revoked if the beneficiary predeceases me, or, if I have
named my spouse as beneficiary and our marriage is subsequently dissolved.
Signature:
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Date:
-------------------------------------------
Accepted by the Company this ____ day of ____________, 2003.
By:
----------------------------------------------
Title:
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SCHEDULE A CALCULATIONS
THE SOUTH FINANCIAL GROUP
SUPPLEMENTAL EXECUTIVE RETIREMENT AGREEMENT
TO DETERMINE THE EXECUTIVE'S EARLY TERMINATION BENEFIT OR DISABILITY RETIREMENT
BENEFIT FOR THE YEAR OF THE TERMINATION OF EMPLOYMENT, THE FOLLOWING
CALCULATIONS SHALL BE MADE:
8. Project the Benefit Basis as of Normal Retirement Age by increasing
the Benefit Basis as of the Executive's date of Termination of
Employment by 5% per year, compounded annually, until Normal
Retirement Age (the "Projected Retirement Benefit Basis").
9. Multiply the Projected Retirement Benefit Basis by the applicable
percentage set forth in 2.1.1 (the product, "Annual Projected
Retirement Benefit").
10. Calculate the discounted value at Normal Retirement Age of the
aggregate Annual Projected Retirement Benefit that would have been
paid to the Executive in equal monthly installments over the 180-month
period immediately following the Normal Retirement Date, by using the
Rate, compounded monthly (such discounted value, the "Lump Sum
Projected Retirement Benefit").
11. Calculate the aggregate amount that has accrued through the end of the
year ending immediately prior to the date of the Executive's
Termination of Employment (including the amount of the Executive's
Accrual Balance under the Prior Agreement as of the Effective Date as
set forth on Schedule B) by accruing each month from the Effective
Date through Normal Retirement Age, with interest on such amounts
calculated monthly at the Rate, in order to accumulate to the Lump Sum
Projected Retirement Benefit as of the Normal Retirement Date (the
"Accrual Balance").
IN THE CASE OF EARLY TERMINATION BENEFIT:
12. Multiply the Accrual Balance by 10% per Year of Service, subject to a
maximum of 100% (the "Vested Accrual Balance").
13. Increase the Vested Accrual Balance by the Rate, compounded monthly,
to the Normal Retirement Age (the "Inflated Vested Accrual Balance").
14. Calculate a fixed annuity which is payable in 180 equal monthly
installments, crediting interest on the unpaid balance of the Inflated
Vested Accrual Balance at the Rate, compounded monthly.
IN THE CASE OF DISABILITY RETIREMENT BENEFIT:
5. The Disability Annual Benefit amount is determined by calculating a
fixed annuity which is payable in 180 equal monthly installments,
crediting interest on the unpaid balance of the Accrual Balance at the
Rate, compounded monthly.
SCHEDULE B CALCULATIONS
THE SOUTH FINANCIAL GROUP
SUPPLEMENTAL EXECUTIVE RETIREMENT AGREEMENT
WILLIAM S. HUMMERS, III
Accrual Balance under Prior Agreement as of June 30, 2003: $256,478.00
THE SOUTH FINANCIAL GROUP
SUPPLEMENTAL EXECUTIVE RETIREMENT AGREEMENT
BETWEEN
THE SOUTH FINANCIAL GROUP, INC.
AND
JAMES W. TERRY, JR.
This Supplemental Executive Retirement Agreement (this "Agreement") is made and
entered into as of this 15th day of July, 2003 (the "Effective Date"), by and
between James W. Terry, Jr., an individual (the "Executive"), and The South
Financial Group, Inc., a South Carolina corporation and financial institution
holding company headquartered in Greenville, South Carolina (the "Company"). As
used herein, the term "Company" shall include the Company and any and all of its
subsidiaries where the context so applies.
INTRODUCTION
The Company wishes to provide the Executive with supplemental retirement
benefits and thereby encourage the Executive to continue providing services to
the Company. The Company will pay the benefits from its general assets.
The Agreement is intended to be a top-hat plan (i.e., an unfunded deferred
compensation plan maintained for a member of a select group of management or
highly compensated employees) pursuant to Section 201(2), 301(a)(3), and
401(a)(1) of the Employee Retirement Income Security Act of 1974 (ERISA).
AGREEMENT
The Executive and the Company agree as follows:
Definitions
Whenever used in this Agreement, the following words and phrases shall have the
meanings specified:
"AFFILIATED COMPANY" MEANS ANY COMPANY CONTROLLED BY,
CONTROLLING OR UNDER COMMON CONTROL WITH THE COMPANY.
"BENEFIT BASIS" MEANS THE AVERAGE OF THE HIGHEST THREE FISCAL
YEARS OF COMPENSATION (OR SUCH LESSER NUMBER OF YEARS AS THE EXECUTIVE HAS BEEN
EMPLOYED BY THE COMPANY) EARNED BY THE EXECUTIVE DURING THE TEN FISCAL YEARS OF
THE EXECUTIVE'S EMPLOYMENT PRIOR TO THE TERMINATION OF EMPLOYMENT, OR FOR SUCH
LESSER NUMBER OF FISCAL YEARS THAT THE EXECUTIVE WAS EMPLOYED BY THE COMPANY
PRIOR TO THE TERMINATION OF EMPLOYMENT, INCLUDING THE YEAR IN WHICH TERMINATION
OF EMPLOYMENT OCCURS.
"BOARD" MEANS THE BOARD OF DIRECTORS OF THE COMPANY.
"CAUSE" MEANS (I) THE WILLFUL AND CONTINUED FAILURE OF THE
EXECUTIVE TO PERFORM SUBSTANTIALLY THE EXECUTIVE'S DUTIES WITH THE COMPANY OR
ANY AFFILIATED COMPANY (OTHER THAN ANY SUCH FAILURE RESULTING FROM INCAPACITY
DUE TO PHYSICAL OR MENTAL ILLNESS OR FOLLOWING THE EXECUTIVE'S INVOLUNTARY
TERMINATION), AFTER A WRITTEN DEMAND FOR SUBSTANTIAL PERFORMANCE IS DELIVERED TO
THE EXECUTIVE BY THE CHIEF EXECUTIVE OFFICER THAT SPECIFICALLY IDENTIFIES THE
MANNER IN WHICH THE CHIEF EXECUTIVE OFFICER OF THE COMPANY BELIEVES THAT THE
EXECUTIVE HAS NOT SUBSTANTIALLY PERFORMED THE EXECUTIVE'S DUTIES, OR (II) THE
WILLFUL ENGAGING BY THE EXECUTIVE IN ILLEGAL CONDUCT OR GROSS MISCONDUCT, IN
EACH CASE, THAT IS MATERIALLY AND DEMONSTRABLY INJURIOUS TO THE COMPANY. FOR
PURPOSES OF THIS DEFINITION, NO ACT, OR FAILURE TO ACT, ON THE PART OF THE
EXECUTIVE SHALL BE CONSIDERED "WILLFUL" UNLESS IT IS DONE, OR OMITTED TO BE
DONE, BY THE EXECUTIVE IN BAD FAITH OR WITHOUT REASONABLE BELIEF THAT THE
EXECUTIVE'S ACTION OR OMISSION WAS IN THE BEST INTERESTS OF THE COMPANY. ANY
ACT, OR FAILURE TO ACT, BASED UPON AUTHORITY GIVEN PURSUANT TO A RESOLUTION DULY
ADOPTED BY THE BOARD, OR UPON INSTRUCTIONS OF THE CHIEF EXECUTIVE OFFICER OR
SENIOR OFFICER, OR BASED UPON THE ADVICE OF COUNSEL FOR THE COMPANY SHALL BE
CONCLUSIVELY PRESUMED TO BE DONE, OR OMITTED TO BE DONE, BY THE EXECUTIVE IN
GOOD FAITH AND IN THE BEST INTERESTS OF THE COMPANY. THE CESSATION OF EMPLOYMENT
OF THE EXECUTIVE SHALL NOT BE DEEMED TO BE FOR CAUSE UNLESS AND UNTIL THERE
SHALL HAVE BEEN DELIVERED TO THE EXECUTIVE A COPY OF A RESOLUTION DULY ADOPTED
BY THE AFFIRMATIVE VOTE OF NOT LESS THAN THREE-QUARTERS OF THE ENTIRE MEMBERSHIP
OF THE BOARD (EXCLUDING THE EXECUTIVE, IF THE EXECUTIVE IS A MEMBER OF THE
BOARD) AT A MEETING OF THE BOARD CALLED AND HELD FOR SUCH PURPOSE (AFTER
REASONABLE NOTICE IS PROVIDED TO THE EXECUTIVE AND THE EXECUTIVE IS GIVEN AN
OPPORTUNITY, TOGETHER WITH COUNSEL FOR THE EXECUTIVE, TO BE HEARD BEFORE THE
BOARD), FINDING THAT, IN THE GOOD FAITH OPINION OF THE BOARD, THE EXECUTIVE IS
GUILTY OF THE CONDUCT DESCRIBED IN CLAUSE (I) OR (II) OF THIS DEFINITION, AND
SPECIFYING THE PARTICULARS THEREOF IN DETAIL.
"CHANGE OF CONTROL" MEANS:
The acquisition by any individual, entity or group
(within the meaning of Section 13(d)(3) or 14(d)(2) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act")) (a "Person") of
beneficial ownership (within the meaning of Rule 13d-3 promulgated
under the Exchange Act) of 20% or more of either (A) the
then-outstanding shares of common stock of the Company (the
"Outstanding Company Common Stock") or (B) the combined voting power of
the then-outstanding voting securities of the Company entitled to vote
generally in the election of directors (the "Outstanding Company Voting
Securities"); provided, however, that, for purposes of this Section
1.5, the following acquisitions shall not constitute a Change of
Control: (i) any acquisition directly from the Company, (ii) any
acquisition by the Company, (iii) any acquisition by any employee
benefit plan (or related trust) sponsored or maintained by the Company
or any Affiliated Company or (iv) any acquisition by any corporation
pursuant to a transaction that complies with Sections 1.5.3(A),
1.5.3(B) and 1.5.3(C);
Any time at which individuals who, as of the date
hereof, constitute the Board (the "Incumbent Board") cease for any
reason to constitute at least a majority of the Board; provided,
however, that any individual becoming a director subsequent to the date
hereof whose election, or nomination for election by the Company's
shareholders, was approved by a vote of at least a majority of the
directors then comprising the Incumbent Board shall be considered as
though such individual were a member of the Incumbent Board, but
excluding, for this purpose, any such individual whose initial
assumption of office occurs as a result of an actual or threatened
election contest with respect to the election or removal of directors
or other actual or threatened solicitation of proxies or consents by or
on behalf of a Person other than the Board;
Consummation of a reorganization, merger, statutory
share exchange or consolidation or similar corporate transaction
involving the Company or any of its subsidiaries, a sale or other
disposition of all or substantially all of the assets of the Company,
or the acquisition of assets or stock of another entity by the Company
or any of its subsidiaries (each, a "Business Combination"), in each
case unless, following such Business Combination, (A) all or
substantially all of the individuals and entities that were the
beneficial owners of the Outstanding Company Common Stock and the
Outstanding Company Voting Securities immediately prior to such
Business Combination beneficially own, directly or indirectly, more
than 50% of the then-outstanding shares of common stock and the
combined voting power of the then-outstanding voting securities
entitled to vote generally in the election of directors, as the case
may be, of the corporation resulting from such Business Combination
(including, without limitation, a corporation that, as a result of such
transaction, owns the Company or all or substantially all of the
Company's assets either directly or through one or more subsidiaries)
in substantially the same proportions as their ownership immediately
prior to such Business Combination of the Outstanding Company Common
Stock and the Outstanding Company Voting Securities, as the case may
be, (B) no Person (excluding any corporation resulting from such
Business Combination or any employee benefit plan (or related trust) of
the Company or such corporation resulting from such Business
Combination) beneficially owns, directly or indirectly, 20% or more of,
respectively, the then-outstanding shares of common stock of the
corporation resulting from such Business Combination or the combined
voting power of the then-outstanding voting securities of such
corporation, except to the extent that such ownership existed prior to
the Business Combination, and (C) at least a majority of the members of
the board of directors of the corporation resulting from such Business
Combination were members of the Incumbent Board at the time of the
execution of the initial agreement or of the action of the Board
providing for such Business Combination; or
Approval by the shareholders of the Company of a
complete liquidation or dissolution of the Company.
"CODE" MEANS THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
"COMPENSATION" MEANS THE EXECUTIVE'S ANNUAL BASE SALARY AND
ANNUAL BONUS UNDER THE COMPANY'S MANAGEMENT INCENTIVE COMPENSATION PLAN, OR ANY
COMPARABLE BONUS UNDER ANY PREDECESSOR OR SUCCESSOR PLAN, INCLUDING ANY BONUS OR
PORTION THEREOF THAT HAS BEEN EARNED BUT DEFERRED (AND ANNUALIZED FOR ANY FISCAL
YEAR CONSISTING OF LESS THAN 12 FULL MONTHS OR DURING WHICH THE EXECUTIVE WAS
EMPLOYED FOR LESS THAN 12 FULL MONTHS) FOR THE RELEVANT FISCAL YEAR. IF THE
TERMINATION OF EMPLOYMENT OCCURS PRIOR TO THE END OF THE FISCAL YEAR, THE BONUS
AMOUNT FOR SUCH FISCAL YEAR SHALL BE EQUAL TO THE HIGHEST OF THE BONUSES EARNED
BY THE EXECUTIVE IN THE PRIOR THREE FISCAL YEARS (OR FOR SUCH LESSER NUMBER OF
FISCAL YEARS PRIOR TO THE TERMINATION OF EMPLOYMENT FOR WHICH THE EXECUTIVE WAS
ELIGIBLE TO EARN SUCH A BONUS, AND ANNUALIZED IN THE CASE OF ANY BONUS EARNED
FOR A PARTIAL FISCAL YEAR).
"DISABILITY" MEANS THE ABSENCE OF THE EXECUTIVE FROM THE
EXECUTIVE'S DUTIES WITH THE COMPANY ON A FULL-TIME BASIS FOR 180 CONSECUTIVE
BUSINESS DAYS AS A RESULT OF INCAPACITY DUE TO MENTAL OR PHYSICAL ILLNESS THAT
IS DETERMINED TO BE TOTAL AND PERMANENT BY A PHYSICIAN SELECTED BY THE COMPANY
OR ITS INSURERS AND ACCEPTABLE TO THE EXECUTIVE OR THE EXECUTIVE'S LEGAL
REPRESENTATIVE.
"EARLY RETIREMENT AGE" MEANS THE DATE THAT THE EXECUTIVE HAS
ATTAINED AGE 55 AND COMPLETED SEVEN YEARS OF SERVICE.
"EARLY RETIREMENT DATE" MEANS THE DATE THAT IS THE LATER OF
THE EARLY RETIREMENT AGE OR THE TERMINATION OF EMPLOYMENT, BUT IS BEFORE THE
NORMAL RETIREMENT DATE.
"EARLY TERMINATION" MEANS THE TERMINATION OF EMPLOYMENT BEFORE
EARLY RETIREMENT AGE FOR REASONS OTHER THAN (I) DEATH, (II) DISABILITY, (III) BY
THE COMPANY FOR CAUSE, (IV) BY THE COMPANY WITHOUT CAUSE DURING THE TWO YEAR
PERIOD FOLLOWING A CHANGE OF CONTROL, (V) INVOLUNTARY TERMINATION.
"EARLY TERMINATION DATE" MEANS THE MONTH, DAY AND YEAR IN
WHICH EARLY TERMINATION OCCURS.
"EFFECTIVE DATE" MEANS JULY 15, 2003.
"INVOLUNTARY TERMINATION" MEANS A TERMINATION OF EMPLOYMENT BY
THE EXECUTIVE FOLLOWING A CHANGE OF CONTROL WHICH, IN THE SOLE JUDGMENT OF THE
EXECUTIVE, IS DUE TO (I) A CHANGE OF THE EXECUTIVE'S RESPONSIBILITIES, POSITION
(INCLUDING THE EXECUTIVE'S OFFICE, TITLE, REPORTING RELATIONSHIPS OR WORKING
CONDITIONS), AUTHORITY OR DUTIES (INCLUDING CHANGES RESULTING FROM THE
ASSIGNMENT TO THE EXECUTIVE OF ANY DUTIES INCONSISTENT WITH HIS POSITIONS,
DUTIES OR RESPONSIBILITIES AS IN EFFECT IMMEDIATELY PRIOR TO THE CHANGE OF
CONTROL); OR (II) A REDUCTION IN THE EXECUTIVE'S ANNUAL BASE SALARY OR ANNUAL
BONUS OPPORTUNITY UNDER THE COMPANY'S MANAGEMENT INCENTIVE COMPENSATION PLAN, OR
ANY COMPARABLE BONUS UNDER ANY PREDECESSOR OR SUCCESSOR PLAN, INCLUDING ANY
BONUS OR PORTION THEREOF THAT HAS BEEN EARNED BUT DEFERRED, OR BENEFITS; OR
(III) A FORCED RELOCATION OF THE EXECUTIVE OUTSIDE THE GREENVILLE, SOUTH
CAROLINA METROPOLITAN AREA; OR (IV) A SIGNIFICANT INCREASE IN THE EXECUTIVE'
TRAVEL REQUIREMENTS (COLLECTIVELY "STATUS CHANGES"); PROVIDED, HOWEVER,
EXECUTIVE MUST ELECT TO TERMINATE EXECUTIVE'S EMPLOYMENT WITHIN TWO (2) YEARS OF
THE STATUS CHANGE ON WHICH EXECUTIVE BASES EXECUTIVE'S EMPLOYMENT TERMINATION.
"NORMAL RETIREMENT AGE" MEANS EXECUTIVE'S 65TH BIRTHDAY.
"NORMAL RETIREMENT DATE" MEANS THE LATER OF THE NORMAL
RETIREMENT AGE OR TERMINATION OF EMPLOYMENT.
"RATE" MEANS THE MOODY'S AA CORPORATE BOND RATE AS REPORTED BY
THE SOCIETY OF ACTUARIES AS OF THE EFFECTIVE DATE AND UPDATED ON EACH DECEMBER
31ST THEREAFTER.
"TERMINATION OF EMPLOYMENT" MEANS THE TERMINATION OF THE
EXECUTIVE'S EMPLOYMENT WITH THE COMPANY AND ANY OF ITS SUBSIDIARIES OR
AFFILIATES. IF THE EXECUTIVE IS EMPLOYED BY A SUBSIDIARY OR AN AFFILIATE, THE
EXECUTIVE SHALL ALSO BE DEEMED TO INCUR A TERMINATION OF EMPLOYMENT IF THE
SUBSIDIARY OR AFFILIATE CEASES TO BE SUCH A SUBSIDIARY OR AN AFFILIATE, AS THE
CASE MAY BE, AND THE EXECUTIVE DOES NOT IMMEDIATELY THEREAFTER BECOME AN
EMPLOYEE OF THE COMPANY OR ANOTHER SUBSIDIARY OR AFFILIATE. TEMPORARY ABSENCES
FROM EMPLOYMENT BECAUSE OF ILLNESS, VACATION OR LEAVE OF ABSENCE AND TRANSFERS
AMONG THE COMPANY AND ITS SUBSIDIARIES AND AFFILIATES SHALL NOT BE CONSIDERED
TERMINATIONS OF EMPLOYMENT.
"VESTING PERCENTAGE" IS THE PERCENTAGE OF THE ACCRUAL BALANCE
IN WHICH THE EXECUTIVE IS VESTED AS DETERMINED IN ACCORDANCE WITH SCHEDULE A.
"VESTING START DATE" SHALL BE MAY 23, 1991.
"YEAR OF SERVICE" MEANS A TWELVE-MONTH CONTINUOUS PERIOD OF
EMPLOYMENT OR A PORTION OF SUCH PERIOD, INCLUDING PERIODS OF AUTHORIZED
VACATION, AUTHORIZED LEAVE OF ABSENCE AND SHORT-TERM DISABILITY LEAVE, WITH THE
COMPANY OR ANY OF ITS AFFILIATE OR THEIR PREDECESSORS OR SUCCESSORS ROUNDED UP
TO THE NEAREST WHOLE NUMBER COMMENCING ON THE VESTING START DATE.
Lifetime Benefits
NORMAL RETIREMENT BENEFIT. UPON TERMINATION OF EMPLOYMENT (I)
ON OR AFTER THE NORMAL RETIREMENT AGE FOR REASONS OTHER THAN DEATH, OR (II) UPON
TERMINATION OF EMPLOYMENT WITHOUT CAUSE WITHIN TWO YEARS FOLLOWING A CHANGE OF
CONTROL OR (III) UPON EXECUTIVE'S INVOLUNTARY TERMINATION, THE COMPANY SHALL PAY
TO THE EXECUTIVE THE BENEFIT DESCRIBED IN THIS SECTION 2.1 IN LIEU OF ANY OTHER
BENEFIT UNDER THIS AGREEMENT.
Amount of Benefit. The annual benefit under this
Section 2.1 is an amount equal to Sixty percent (60.0%) of the Benefit
Basis.
Payment of Benefit. The Company shall pay the annual
benefit to the Executive in 12 equal monthly installments payable on
the first day of each month commencing with the month following the
Executive's Normal Retirement Date or, if earlier, upon Termination of
Employment without Cause within two years following a Change of Control
or upon Executive's Involuntary Termination, as the case may be. The
annual benefit shall be paid to the Executive (a) for 180 months or (b)
at the Executive's election on the Election Form attached as Exhibit A
during the calendar year immediately preceding the year in which the
Termination of Employment occurs, in a lump sum payment within 30 days
following the Executive's Normal Retirement Date or, if earlier, upon
Termination of Employment without Cause within two years following a
Change of Control or upon Executive's Involuntary Termination, as the
case may be, equal to the present value of the aggregate annual
benefits that would have been payable to the Executive under clause (a)
of this Section 2.1.2, assuming a discount rate equal to the Rate.
Benefit Increases. Commencing on the first
anniversary of the first benefit payment, and continuing on each
subsequent anniversary, the Company's Board of Directors, in its sole
discretion, may increase the benefit.
EARLY RETIREMENT BENEFIT. UPON TERMINATION OF EMPLOYMENT ON OR
AFTER EARLY RETIREMENT AGE BUT BEFORE NORMAL RETIREMENT AGE FOR REASONS OTHER
THAN (I) DEATH, (II) DISABILITY, (III) BY THE COMPANY WITHOUT CAUSE WITHIN TWO
YEARS FOLLOWING A CHANGE OF CONTROL OR (IV) UPON EXECUTIVE'S INVOLUNTARY
TERMINATION, THE COMPANY SHALL PAY TO THE EXECUTIVE THE BENEFIT DESCRIBED IN
THIS SECTION 2.2 IN LIEU OF ANY OTHER BENEFITS UNDER THIS AGREEMENT.
Amount of Benefit. The annual benefit under this
Section 2.2 is an amount equal to the greater of (i) the product of (A)
the sum of (x) Thirty percent (30.0%) and (y) Three percent (3.0%) for
each Year of Service completed by the Executive after the Early
Retirement Age and (B) the Benefit Basis or (ii) the benefit under
Section 2.3; provided that in no event shall the amount payable under
this Section 2.2.1 be greater than the benefit set forth in Section
2.1.1.
Payment of Benefit. The Company shall pay the annual
benefit to the Executive in 12 equal monthly installments payable on
the first day of each month commencing with the month following the
Normal Retirement Age. The annual benefit shall be paid to the
Executive (a) for 180 months or (b) at the Executive's election on the
Election Form attached as Exhibit A during the calendar year
immediately preceding the year in which the Termination of Employment
occurs, in a lump sum payment within 30 days following the Executive's
Termination of Employment on or after Early Retirement Age but before
Normal Retirement Age for reasons other than (i) death, (ii)
Disability, (iii) by the Company without Cause within two years
following a Change of Control or (iv) upon Executive's Involuntary
Termination, as the case may be, equal to the present value of the
aggregate annual benefits that would have been payable to the Executive
under clause (a) of this Section 2.2.2, assuming a discount rate equal
to the Rate.
Benefit Increases. Benefit payments may be increased
as provided in Section 2.1.3.
EARLY TERMINATION BENEFIT. UPON EARLY TERMINATION, THE COMPANY
SHALL PAY TO THE EXECUTIVE THE BENEFIT DESCRIBED IN THIS SECTION 2.3 IN LIEU OF
ANY OTHER BENEFIT UNDER THIS AGREEMENT.
Amount of Benefit. The benefit under this Section 2.3
is the Early Termination Annual Benefit set forth in Schedule A for the
year ending immediately prior to the Early Termination Date.
Payment of Benefit. The Company shall pay the annual
benefit to the Executive in 12 equal monthly installments payable on
the first day of each month commencing with the month following the
Normal Retirement Age. The annual benefit shall be paid to the
Executive for 180 months.
Benefit Increases. Benefit payments may be increased
as provided in Section 2.1.3.
DISABILITY BENEFIT. IF THE EXECUTIVE TERMINATES EMPLOYMENT DUE
TO DISABILITY PRIOR TO NORMAL RETIREMENT AGE, THE COMPANY SHALL PAY TO THE
EXECUTIVE THE BENEFIT DESCRIBED IN THIS SECTION 2.4 IN LIEU OF ANY OTHER BENEFIT
UNDER THIS AGREEMENT.
Amount of Benefit. If the Executive terminates
employment due to Disability prior to Normal Retirement Age, but after
Early Retirement Age, the benefit under this Section 2.4 shall be the
annual benefit set forth in Section 2.2.1. If the Executive terminates
employment due to Disability prior to Early Retirement Age, the benefit
under this Section 2.4 is the Disability Annual Benefit set forth in
Schedule A for the year ending immediately prior to the Early
Termination Date.
Payment of Benefit. The Company shall pay the annual
benefit amount to the Executive in 12 equal monthly installments
payable on the first day of each month commencing with the month
following the Termination of Employment. The annual benefit shall be
paid to the Executive for 180 months.
Benefit Increases. Benefit payments may be increased
as provided in Section 2.1.3.
Death Benefits
DEATH DURING ACTIVE SERVICE. IF THE EXECUTIVE DIES WHILE IN
THE ACTIVE SERVICE OF THE COMPANY, THE COMPANY SHALL PAY TO THE EXECUTIVE'S
BENEFICIARY THE BENEFIT DESCRIBED IN THIS SECTION 3.1. THIS BENEFIT SHALL BE
PAID IN LIEU OF THE LIFETIME BENEFITS OF ARTICLE 2.
Amount of Benefit. The annual benefit under this
Section 3.1 is equal to the Disability Annual Benefit described in
Section 2.4.1.
Payment of Benefit. The Company shall pay the annual
benefit to the Executive's beneficiary in 12 equal monthly installments
payable on the first day of each month commencing with the month
following the Executive's death. The annual benefit shall be paid to
the Executive's beneficiary for 180 months.
DEATH DURING BENEFIT PERIOD. IF THE EXECUTIVE DIES AFTER THE
BENEFIT PAYMENTS HAVE COMMENCED UNDER THIS AGREEMENT BUT BEFORE RECEIVING ALL
SUCH PAYMENTS, THE COMPANY SHALL PAY THE REMAINING BENEFITS TO THE EXECUTIVE'S
BENEFICIARY AT THE SAME TIME AND IN THE SAME AMOUNTS THEY WOULD HAVE BEEN PAID
TO THE EXECUTIVE HAD THE EXECUTIVE SURVIVED.
DEATH AFTER TERMINATION OF EMPLOYMENT BUT BEFORE BENEFIT
PAYMENTS COMMENCE. IF THE EXECUTIVE IS ENTITLED TO BENEFIT PAYMENTS UNDER THIS
AGREEMENT, BUT DIES PRIOR TO THE COMMENCEMENT OF SAID BENEFIT PAYMENTS, THE
COMPANY SHALL PAY TO THE EXECUTIVE'S BENEFICIARY THE BENEFIT PAYMENTS THAT THE
EXECUTIVE WAS ENTITLED TO PRIOR TO DEATH EXCEPT THAT THE BENEFIT PAYMENTS SHALL
COMMENCE ON THE FIRST DAY OF THE MONTH FOLLOWING THE DATE OF THE EXECUTIVE'S
DEATH.
Beneficiaries
BENEFICIARY DESIGNATIONS. THE EXECUTIVE SHALL DESIGNATE A
BENEFICIARY BY FILING A WRITTEN DESIGNATION WITH THE COMPANY. THE EXECUTIVE MAY
REVOKE OR MODIFY THE DESIGNATION AT ANY TIME BY FILING A NEW DESIGNATION.
HOWEVER, DESIGNATIONS WILL ONLY BE EFFECTIVE IF SIGNED BY THE EXECUTIVE AND
ACCEPTED BY THE COMPANY DURING THE EXECUTIVE'S LIFETIME. THE EXECUTIVE'S
BENEFICIARY DESIGNATION SHALL BE DEEMED AUTOMATICALLY REVOKED IF THE BENEFICIARY
PREDECEASES THE EXECUTIVE, OR IF THE EXECUTIVE NAMES A SPOUSE AS BENEFICIARY AND
THE MARRIAGE IS SUBSEQUENTLY DISSOLVED. IF THE EXECUTIVE DIES WITHOUT A VALID
BENEFICIARY DESIGNATION, ALL PAYMENTS SHALL BE MADE TO THE EXECUTIVE'S ESTATE.
FACILITY OF PAYMENT. IF A BENEFIT IS PAYABLE TO A MINOR, TO A
PERSON DECLARED INCAPACITATED, OR TO A PERSON INCAPABLE OF HANDLING THE
DISPOSITION OF HIS OR HER PROPERTY, THE COMPANY MAY PAY SUCH BENEFIT TO THE
GUARDIAN, LEGAL REPRESENTATIVE OR PERSON HAVING THE CARE OR CUSTODY OF SUCH
MINOR, INCAPACITATED PERSON OR INCAPABLE PERSON. THE COMPANY MAY REQUIRE PROOF
OF INCAPACITY, MINORITY OR GUARDIANSHIP AS IT MAY DEEM APPROPRIATE PRIOR TO
DISTRIBUTION OF THE BENEFIT. SUCH DISTRIBUTION SHALL COMPLETELY DISCHARGE THE
COMPANY FROM ALL LIABILITY WITH RESPECT TO SUCH BENEFIT.
General Limitations
TERMINATION FOR CAUSE. NOTWITHSTANDING ANY PROVISION OF THIS
AGREEMENT TO THE CONTRARY, THE COMPANY SHALL NOT PAY ANY BENEFIT UNDER THIS
AGREEMENT IF THE COMPANY TERMINATES THE EXECUTIVE'S EMPLOYMENT FOR CAUSE.
SUICIDE OR MISSTATEMENT. THE COMPANY SHALL NOT PAY ANY BENEFIT
UNDER THIS AGREEMENT IF THE EXECUTIVE COMMITS SUICIDE WITHIN TWO YEARS AFTER THE
DATE OF THIS AGREEMENT.
Claims and Review Procedures
CLAIMS PROCEDURE. THE COMPANY SHALL NOTIFY ANY PERSON OR
ENTITY THAT MAKES A CLAIM AGAINST THE AGREEMENT (THE "CLAIMANT") IN WRITING,
WITHIN 90 DAYS OF CLAIMANT'S WRITTEN APPLICATION FOR BENEFITS, OF HIS OR HER
ELIGIBILITY OR NONELIGIBILITY FOR BENEFITS UNDER THE AGREEMENT. IF THE COMPANY
DETERMINES THAT THE CLAIMANT IS NOT ELIGIBLE FOR BENEFITS OR FULL BENEFITS, THE
NOTICE SHALL SET FORTH (1) THE SPECIFIC REASONS FOR SUCH DENIAL, (2) A SPECIFIC
REFERENCE TO THE PROVISIONS OF THE AGREEMENT ON WHICH THE DENIAL IS BASED, (3) A
DESCRIPTION OF ANY ADDITIONAL INFORMATION OR MATERIAL NECESSARY FOR THE CLAIMANT
TO PERFECT HIS OR HER CLAIM, AND A DESCRIPTION OF WHY IT IS NEEDED, AND (4) AN
EXPLANATION OF THE AGREEMENT'S CLAIMS REVIEW PROCEDURE AND OTHER APPROPRIATE
INFORMATION AS TO THE STEPS TO BE TAKEN IF THE CLAIMANT WISHES TO HAVE THE CLAIM
REVIEWED. IF THE COMPANY DETERMINES THAT THERE ARE SPECIAL CIRCUMSTANCES
REQUIRING ADDITIONAL TIME TO MAKE A DECISION, THE COMPANY SHALL NOTIFY THE
CLAIMANT OF THE SPECIAL CIRCUMSTANCES AND THE DATE BY WHICH A DECISION IS
EXPECTED TO BE MADE, AND MAY EXTEND THE TIME FOR UP TO AN ADDITIONAL 90 DAYS.
REVIEW PROCEDURE. IF THE CLAIMANT IS DETERMINED BY THE COMPANY
NOT TO BE ELIGIBLE FOR BENEFITS, OR IF THE CLAIMANT BELIEVES THAT HE OR SHE IS
ENTITLED TO GREATER OR DIFFERENT BENEFITS, THE CLAIMANT SHALL HAVE THE
OPPORTUNITY TO HAVE SUCH CLAIM REVIEWED BY THE COMPANY BY FILING A PETITION FOR
REVIEW WITH THE COMPANY WITHIN 60 DAYS AFTER RECEIPT OF THE NOTICE ISSUED BY THE
COMPANY. SAID PETITION SHALL STATE THE SPECIFIC REASONS WHICH THE CLAIMANT
BELIEVES ENTITLE HIM OR HER TO BENEFITS OR TO GREATER OR DIFFERENT BENEFITS.
WITHIN 60 DAYS AFTER RECEIPT BY THE COMPANY OF THE PETITION, THE COMPANY SHALL
AFFORD THE CLAIMANT (AND COUNSEL, IF ANY) AN OPPORTUNITY TO PRESENT HIS OR HER
POSITION TO THE COMPANY VERBALLY OR IN WRITING, AND THE CLAIMANT (OR COUNSEL)
SHALL HAVE THE RIGHT TO REVIEW THE PERTINENT DOCUMENTS. THE COMPANY SHALL NOTIFY
THE CLAIMANT OF ITS DECISION IN WRITING WITHIN THE 60-DAY PERIOD, STATING
SPECIFICALLY THE BASIS OF ITS DECISION, WRITTEN IN A MANNER CALCULATED TO BE
UNDERSTOOD BY THE CLAIMANT AND THE SPECIFIC PROVISIONS OF THE AGREEMENT ON WHICH
THE DECISION IS BASED. IF, BECAUSE OF THE NEED FOR A HEARING, THE 60-DAY PERIOD
IS NOT SUFFICIENT, THE DECISION MAY BE DEFERRED FOR UP TO ANOTHER 60 DAYS AT THE
ELECTION OF THE COMPANY, BUT NOTICE OF THIS DEFERRAL SHALL BE GIVEN TO THE
CLAIMANT.
Amendments and Termination
This Agreement may not be amended or modified other than by a written agreement
executed by the parties hereto or their respective successors and legal
representatives.
Miscellaneous
BINDING EFFECT. THIS AGREEMENT SHALL BIND THE EXECUTIVE
AND THE COMPANY, AND THEIR BENEFICIARIES, SURVIVORS, EXECUTORS, SUCCESSORS,
ADMINISTRATORS AND TRANSFEREES.
NO GUARANTEE OF EMPLOYMENT. THIS AGREEMENT IS NOT AN
EMPLOYMENT POLICY OR CONTRACT. IT DOES NOT GIVE THE EXECUTIVE THE RIGHT TO
REMAIN AN EMPLOYEE OF THE COMPANY, NOR DOES IT INTERFERE WITH THE COMPANY'S
RIGHT TO DISCHARGE THE EXECUTIVE. IT ALSO DOES NOT REQUIRE THE EXECUTIVE TO
REMAIN AN EMPLOYEE NOR INTERFERE WITH THE EXECUTIVE'S RIGHT TO TERMINATE
EMPLOYMENT AT ANY TIME.
NON-TRANSFERABILITY. BENEFITS UNDER THIS AGREEMENT CANNOT BE
SOLD, TRANSFERRED, ASSIGNED, PLEDGED, ATTACHED OR ENCUMBERED IN ANY MANNER.
SUCCESSORS. THIS AGREEMENT IS PERSONAL TO THE EXECUTIVE, AND,
WITHOUT THE PRIOR WRITTEN CONSENT OF THE COMPANY, SHALL NOT BE ASSIGNABLE BY THE
EXECUTIVE OTHER THAN BY WILL OR THE LAWS OF DESCENT AND DISTRIBUTION. THIS
AGREEMENT SHALL INURE TO THE BENEFIT OF AND BE ENFORCEABLE BY THE EXECUTIVE'S
LEGAL REPRESENTATIVES. THIS AGREEMENT SHALL INURE TO THE BENEFIT OF AND BE
BINDING UPON THE COMPANY AND ITS SUCCESSORS AND ASSIGNS. SUBJECT TO THE
FOLLOWING SENTENCES OF THIS SECTION 8.4, THIS AGREEMENT SHALL NOT BE ASSIGNABLE
BY THE COMPANY WITHOUT THE PRIOR WRITTEN CONSENT OF THE EXECUTIVE. THE COMPANY
WILL REQUIRE ANY SUCCESSOR (WHETHER DIRECT OR INDIRECT, BY PURCHASE, MERGER,
CONSOLIDATION OR OTHERWISE) TO ALL OR SUBSTANTIALLY ALL OF THE BUSINESS AND/OR
ASSETS OF THE COMPANY TO ASSUME EXPRESSLY AND AGREE TO PERFORM THIS AGREEMENT IN
THE SAME MANNER AND TO THE SAME EXTENT THAT THE COMPANY WOULD BE REQUIRED TO
PERFORM IT IF NO SUCH SUCCESSION HAD TAKEN PLACE. "COMPANY" MEANS THE COMPANY AS
HEREINBEFORE DEFINED AND ANY SUCCESSOR TO ITS BUSINESS AND/OR ASSETS AS
AFORESAID THAT ASSUMES AND AGREES TO PERFORM THIS AGREEMENT BY OPERATION OF LAW
OR OTHERWISE.
TAX WITHHOLDING. THE COMPANY SHALL WITHHOLD ANY TAXES THAT ARE
REQUIRED TO BE WITHHELD FROM THE BENEFITS PROVIDED UNDER THIS AGREEMENT.
APPLICABLE LAW. THE AGREEMENT AND ALL RIGHTS HEREUNDER SHALL
BE GOVERNED BY THE LAWS OF THE STATE OF SOUTH CAROLINA, WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAWS.
UNFUNDED ARRANGEMENT. THE EXECUTIVE AND BENEFICIARY ARE
GENERAL UNSECURED CREDITORS OF THE COMPANY FOR THE PAYMENT OF BENEFITS UNDER
THIS AGREEMENT. THE BENEFITS REPRESENT THE MERE PROMISE BY THE COMPANY TO PAY
SUCH BENEFITS. THE RIGHTS TO BENEFITS ARE NOT SUBJECT IN ANY MANNER TO
ANTICIPATION, ALIENATION, SALE, TRANSFER, ASSIGNMENT, PLEDGE, ENCUMBRANCE,
ATTACHMENT, OR GARNISHMENT BY CREDITORS.
ENTIRE AGREEMENT. THIS AGREEMENT CONSTITUTES THE ENTIRE
AGREEMENT BETWEEN THE COMPANY AND THE EXECUTIVE AS TO THE SUBJECT MATTER HEREOF.
NO RIGHTS ARE GRANTED TO THE EXECUTIVE BY VIRTUE OF THIS AGREEMENT OTHER THAN
THOSE SPECIFICALLY SET FORTH HEREIN. FROM AND AFTER THE EFFECTIVE DATE, THIS
AGREEMENT SHALL SUPERSEDE ANY OTHER AGREEMENT BETWEEN THE PARTIES WITH RESPECT
TO THE SUBJECT MATTER HEREOF INCLUDING WITHOUT LIMITATION THE SUPPLEMENTAL
EXECUTIVE BENEFIT AGREEMENT BETWEEN THE EXECUTIVE AND THE COMPANY DATED AS OF
JUNE 29, 2001 (THE "PRIOR AGREEMENT").
ADMINISTRATION AND RECORDKEEPING AUTHORITY. EXCEPT AS
OTHERWISE SPECIFICALLY PROVIDED HEREIN, THE COMPANY SHALL HAVE THE SOLE
RESPONSIBILITY FOR AND THE SOLE CONTROL OF THE OPERATION, ADMINISTRATION, AND
RECORDKEEPING OF THIS AGREEMENT AND SHALL HAVE THE POWER AND AUTHORITY TO TAKE
ALL ACTION AND TO MAKE ALL DECISIONS AND INTERPRETATIONS THAT MAY BE NECESSARY
OR APPROPRIATE IN ORDER TO ADMINISTER AND OPERATE THE AGREEMENT, INCLUDING,
WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, THE POWER, DUTY, AND
RESPONSIBILITY TO:
RESOLVE AND DETERMINE ALL DISPUTES OR QUESTIONS
ARISING UNDER THE AGREEMENT, INCLUDING THE POWER TO
DETERMINE THE RIGHTS OF THE PARTICIPANT AND
BENEFICIARIES AND THEIR RESPECTIVE BENEFITS, AND TO
REMEDY ANY AMBIGUITIES, INCONSISTENCIES, OR OMISSIONS
IN THE AGREEMENT;
ADOPT SUCH RULES OF PROCEDURE AND REGULATIONS AS IN
ITS OPINION MAY BE NECESSARY FOR THE PROPER AND
EFFICIENT ADMINISTRATION OF THE AGREEMENT AND AS ARE
CONSISTENT WITH THE AGREEMENT;
IMPLEMENT THE AGREEMENT IN ACCORDANCE WITH ITS TERMS;
ESTABLISH AND REVISE THE METHOD OF ACCOUNTING FOR THE
AGREEMENT; AND
MAINTAIN A RECORD OF BENEFIT PAYMENTS.
NAMED FIDUCIARY. THE COMPANY SHALL BE THE NAMED FIDUCIARY AND
PLAN ADMINISTRATOR UNDER THE AGREEMENT. THE NAMED FIDUCIARY MAY DELEGATE TO
OTHERS CERTAIN ASPECTS OF THE MANAGEMENT AND OPERATION RESPONSIBILITIES OF THE
PLAN INCLUDING THE EMPLOYMENT OF ADVISORS AND THE DELEGATION OF MINISTERIAL
DUTIES TO QUALIFIED INDIVIDUALS.
CAPTIONS. THE CAPTIONS OF THIS AGREEMENT ARE NOT PART OF THE
PROVISIONS HEREOF AND SHALL HAVE NO FORCE OR EFFECT.
SEVERABILITY. THE INVALIDITY OR UNENFORCEABILITY OF ANY
PROVISION OF THIS AGREEMENT SHALL NOT AFFECT THE VALIDITY OR ENFORCEABILITY OF
ANY OTHER PROVISION OF THIS AGREEMENT.
IN WITNESS WHEREOF, the Executive and a duly authorized Company officer have
signed this Agreement.
EXECUTIVE: COMPANY:
THE SOUTH FINANCIAL GROUP, INC.
/s/ James W. Terry, Jr. /s/ Mary A. Jeffrey
- ------------------------------- By:--------------------------------
JAMES W. TERRY, JR. MARY A. JEFFREY
Title: Executive Vice President
Director - Human Resources
BENEFICIARY DESIGNATION
THE SOUTH FINANCIAL GROUP
SUPPLEMENTAL EXECUTIVE RETIREMENT AGREEMENT
JAMES W. TERRY, JR.
I designate the following as beneficiary of any death benefits under this
Supplemental Executive Retirement Agreement:
Primary:
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Contingent:
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NOTE: TO NAME A TRUST AS BENEFICIARY, PLEASE PROVIDE THE NAME OF THE TRUSTEE(S)
AND THE EXACT NAME AND DATE OF THE TRUST AGREEMENT.
I understand that I may change these beneficiary designations by filing a new
written designation with the Company. I further understand that the designations
will be automatically revoked if the beneficiary predeceases me, or, if I have
named my spouse as beneficiary and our marriage is subsequently dissolved.
Signature:
-----------------------------------------
Date:
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Accepted by the Company this ____ day of ____________, 2003.
By:
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Title:
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SCHEDULE A CALCULATIONS
THE SOUTH FINANCIAL GROUP
SUPPLEMENTAL EXECUTIVE RETIREMENT AGREEMENT
TO DETERMINE THE EXECUTIVE'S EARLY TERMINATION BENEFIT OR DISABILITY RETIREMENT
BENEFIT FOR THE YEAR OF THE TERMINATION OF EMPLOYMENT, THE FOLLOWING
CALCULATIONS SHALL BE MADE:
15. Project the Benefit Basis as of Normal Retirement Age by increasing
the Benefit Basis as of the Executive's date of Termination of
Employment by 5% per year, compounded annually, until Normal
Retirement Age (the "Projected Retirement Benefit Basis").
16. Multiply the Projected Retirement Benefit Basis by the applicable
percentage set forth in 2.1.1 (the product, "Annual Projected
Retirement Benefit").
17. Calculate the discounted value at Normal Retirement Age of the
aggregate Annual Projected Retirement Benefit that would have been
paid to the Executive in equal monthly installments over the 180-month
period immediately following the Normal Retirement Date, by using the
Rate, compounded monthly (such discounted value, the "Lump Sum
Projected Retirement Benefit").
18. Calculate the aggregate amount that has accrued through the end of the
year ending immediately prior to the date of the Executive's
Termination of Employment (including the amount of the Executive's
Accrual Balance under the Prior Agreement as of the Effective Date as
set forth on Schedule B) by accruing each month from the Effective
Date through Normal Retirement Age, with interest on such amounts
calculated monthly at the Rate, in order to accumulate to the Lump Sum
Projected Retirement Benefit as of the Normal Retirement Date (the
"Accrual Balance").
IN THE CASE OF EARLY TERMINATION BENEFIT:
19. Multiply the Accrual Balance by 10% per Year of Service, subject to a
maximum of 100% (the "Vested Accrual Balance").
20. Increase the Vested Accrual Balance by the Rate, compounded monthly,
to the Normal Retirement Age (the "Inflated Vested Accrual Balance").
21. Calculate a fixed annuity which is payable in 180 equal monthly
installments, crediting interest on the unpaid balance of the Inflated
Vested Accrual Balance at the Rate, compounded monthly.
IN THE CASE OF DISABILITY RETIREMENT BENEFIT:
5. The Disability Annual Benefit amount is determined by calculating a
fixed annuity which is payable in 180 equal monthly installments,
crediting interest on the unpaid balance of the Accrual Balance at the
Rate, compounded monthly.
SCHEDULE B CALCULATIONS
THE SOUTH FINANCIAL GROUP
SUPPLEMENTAL EXECUTIVE RETIREMENT AGREEMENT
JAMES W. TERRY, JR.
Accrual Balance under Prior Agreement as of June 30, 2003: $136,784
THE SOUTH FINANCIAL GROUP
SUPPLEMENTAL EXECUTIVE RETIREMENT AGREEMENT
BETWEEN
THE SOUTH FINANCIAL GROUP, INC.
AND
ANDREW B. CHENEY
This Supplemental Executive Retirement Agreement (this "Agreement") is made and
entered into as of this 15th day of July, 2003 (the "Effective Date"), by and
between Andrew B. Cheney, an individual (the "Executive"), and The South
Financial Group, Inc., a South Carolina corporation and financial institution
holding company headquartered in Greenville, South Carolina (the "Company"). As
used herein, the term "Company" shall include the Company and any and all of its
subsidiaries where the context so applies.
INTRODUCTION
The Company wishes to provide the Executive with supplemental retirement
benefits and thereby encourage the Executive to continue providing services to
the Company. The Company will pay the benefits from its general assets.
The Agreement is intended to be a top-hat plan (i.e., an unfunded deferred
compensation plan maintained for a member of a select group of management or
highly compensated employees) pursuant to Section 201(2), 301(a)(3), and
401(a)(1) of the Employee Retirement Income Security Act of 1974 (ERISA).
AGREEMENT
The Executive and the Company agree as follows:
Definitions
Whenever used in this Agreement, the following words and phrases shall have the
meanings specified:
"AFFILIATED COMPANY" MEANS ANY COMPANY CONTROLLED BY,
CONTROLLING OR UNDER COMMON CONTROL WITH THE COMPANY.
"BENEFIT BASIS" MEANS THE AVERAGE OF THE HIGHEST THREE FISCAL
YEARS OF COMPENSATION (OR SUCH LESSER NUMBER OF YEARS AS THE EXECUTIVE HAS BEEN
EMPLOYED BY THE COMPANY) EARNED BY THE EXECUTIVE DURING THE TEN FISCAL YEARS OF
THE EXECUTIVE'S EMPLOYMENT PRIOR TO THE TERMINATION OF EMPLOYMENT, OR FOR SUCH
LESSER NUMBER OF FISCAL YEARS THAT THE EXECUTIVE WAS EMPLOYED BY THE COMPANY
PRIOR TO THE TERMINATION OF EMPLOYMENT, INCLUDING THE YEAR IN WHICH TERMINATION
OF EMPLOYMENT OCCURS.
"BOARD" MEANS THE BOARD OF DIRECTORS OF THE COMPANY.
"CAUSE" MEANS (I) THE WILLFUL AND CONTINUED FAILURE OF THE
EXECUTIVE TO PERFORM SUBSTANTIALLY THE EXECUTIVE'S DUTIES WITH THE COMPANY OR
ANY AFFILIATED COMPANY (OTHER THAN ANY SUCH FAILURE RESULTING FROM INCAPACITY
DUE TO PHYSICAL OR MENTAL ILLNESS OR FOLLOWING THE EXECUTIVE'S INVOLUNTARY
TERMINATION), AFTER A WRITTEN DEMAND FOR SUBSTANTIAL PERFORMANCE IS DELIVERED TO
THE EXECUTIVE BY THE CHIEF EXECUTIVE OFFICER THAT SPECIFICALLY IDENTIFIES THE
MANNER IN WHICH THE CHIEF EXECUTIVE OFFICER OF THE COMPANY BELIEVES THAT THE
EXECUTIVE HAS NOT SUBSTANTIALLY PERFORMED THE EXECUTIVE'S DUTIES, OR (II) THE
WILLFUL ENGAGING BY THE EXECUTIVE IN ILLEGAL CONDUCT OR GROSS MISCONDUCT, IN
EACH CASE, THAT IS MATERIALLY AND DEMONSTRABLY INJURIOUS TO THE COMPANY. FOR
PURPOSES OF THIS DEFINITION, NO ACT, OR FAILURE TO ACT, ON THE PART OF THE
EXECUTIVE SHALL BE CONSIDERED "WILLFUL" UNLESS IT IS DONE, OR OMITTED TO BE
DONE, BY THE EXECUTIVE IN BAD FAITH OR WITHOUT REASONABLE BELIEF THAT THE
EXECUTIVE'S ACTION OR OMISSION WAS IN THE BEST INTERESTS OF THE COMPANY. ANY
ACT, OR FAILURE TO ACT, BASED UPON AUTHORITY GIVEN PURSUANT TO A RESOLUTION DULY
ADOPTED BY THE BOARD, OR UPON INSTRUCTIONS OF THE CHIEF EXECUTIVE OFFICER OR
SENIOR OFFICER, OR BASED UPON THE ADVICE OF COUNSEL FOR THE COMPANY SHALL BE
CONCLUSIVELY PRESUMED TO BE DONE, OR OMITTED TO BE DONE, BY THE EXECUTIVE IN
GOOD FAITH AND IN THE BEST INTERESTS OF THE COMPANY. THE CESSATION OF EMPLOYMENT
OF THE EXECUTIVE SHALL NOT BE DEEMED TO BE FOR CAUSE UNLESS AND UNTIL THERE
SHALL HAVE BEEN DELIVERED TO THE EXECUTIVE A COPY OF A RESOLUTION DULY ADOPTED
BY THE AFFIRMATIVE VOTE OF NOT LESS THAN THREE-QUARTERS OF THE ENTIRE MEMBERSHIP
OF THE BOARD (EXCLUDING THE EXECUTIVE, IF THE EXECUTIVE IS A MEMBER OF THE
BOARD) AT A MEETING OF THE BOARD CALLED AND HELD FOR SUCH PURPOSE (AFTER
REASONABLE NOTICE IS PROVIDED TO THE EXECUTIVE AND THE EXECUTIVE IS GIVEN AN
OPPORTUNITY, TOGETHER WITH COUNSEL FOR THE EXECUTIVE, TO BE HEARD BEFORE THE
BOARD), FINDING THAT, IN THE GOOD FAITH OPINION OF THE BOARD, THE EXECUTIVE IS
GUILTY OF THE CONDUCT DESCRIBED IN CLAUSE (I) OR (II) OF THIS DEFINITION, AND
SPECIFYING THE PARTICULARS THEREOF IN DETAIL.
"CHANGE OF CONTROL" MEANS:
The acquisition by any individual, entity or group
(within the meaning of Section 13(d)(3) or 14(d)(2) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act")) (a "Person") of
beneficial ownership (within the meaning of Rule 13d-3 promulgated
under the Exchange Act) of 20% or more of either (A) the
then-outstanding shares of common stock of the Company (the
"Outstanding Company Common Stock") or (B) the combined voting power of
the then-outstanding voting securities of the Company entitled to vote
generally in the election of directors (the "Outstanding Company Voting
Securities"); provided, however, that, for purposes of this Section
1.5, the following acquisitions shall not constitute a Change of
Control: (i) any acquisition directly from the Company, (ii) any
acquisition by the Company, (iii) any acquisition by any employee
benefit plan (or related trust) sponsored or maintained by the Company
or any Affiliated Company or (iv) any acquisition by any corporation
pursuant to a transaction that complies with Sections 1.5.3(A),
1.5.3(B) and 1.5.3(C);
Any time at which individuals who, as of the date
hereof, constitute the Board (the "Incumbent Board") cease for any
reason to constitute at least a majority of the Board; provided,
however, that any individual becoming a director subsequent to the date
hereof whose election, or nomination for election by the Company's
shareholders, was approved by a vote of at least a majority of the
directors then comprising the Incumbent Board shall be considered as
though such individual were a member of the Incumbent Board, but
excluding, for this purpose, any such individual whose initial
assumption of office occurs as a result of an actual or threatened
election contest with respect to the election or removal of directors
or other actual or threatened solicitation of proxies or consents by or
on behalf of a Person other than the Board;
Consummation of a reorganization, merger, statutory
share exchange or consolidation or similar corporate transaction
involving the Company or any of its subsidiaries, a sale or other
disposition of all or substantially all of the assets of the Company,
or the acquisition of assets or stock of another entity by the Company
or any of its subsidiaries (each, a "Business Combination"), in each
case unless, following such Business Combination, (A) all or
substantially all of the individuals and entities that were the
beneficial owners of the Outstanding Company Common Stock and the
Outstanding Company Voting Securities immediately prior to such
Business Combination beneficially own, directly or indirectly, more
than 50% of the then-outstanding shares of common stock and the
combined voting power of the then-outstanding voting securities
entitled to vote generally in the election of directors, as the case
may be, of the corporation resulting from such Business Combination
(including, without limitation, a corporation that, as a result of such
transaction, owns the Company or all or substantially all of the
Company's assets either directly or through one or more subsidiaries)
in substantially the same proportions as their ownership immediately
prior to such Business Combination of the Outstanding Company Common
Stock and the Outstanding Company Voting Securities, as the case may
be, (B) no Person (excluding any corporation resulting from such
Business Combination or any employee benefit plan (or related trust) of
the Company or such corporation resulting from such Business
Combination) beneficially owns, directly or indirectly, 20% or more of,
respectively, the then-outstanding shares of common stock of the
corporation resulting from such Business Combination or the combined
voting power of the then-outstanding voting securities of such
corporation, except to the extent that such ownership existed prior to
the Business Combination, and (C) at least a majority of the members of
the board of directors of the corporation resulting from such Business
Combination were members of the Incumbent Board at the time of the
execution of the initial agreement or of the action of the Board
providing for such Business Combination; or
Approval by the shareholders of the Company of a
complete liquidation or dissolution of the Company.
"CODE" MEANS THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
"COMPENSATION" MEANS THE EXECUTIVE'S ANNUAL BASE SALARY AND
ANNUAL BONUS UNDER THE COMPANY'S MANAGEMENT INCENTIVE COMPENSATION PLAN, OR ANY
COMPARABLE BONUS UNDER ANY PREDECESSOR OR SUCCESSOR PLAN, INCLUDING ANY BONUS OR
PORTION THEREOF THAT HAS BEEN EARNED BUT DEFERRED (AND ANNUALIZED FOR ANY FISCAL
YEAR CONSISTING OF LESS THAN 12 FULL MONTHS OR DURING WHICH THE EXECUTIVE WAS
EMPLOYED FOR LESS THAN 12 FULL MONTHS) FOR THE RELEVANT FISCAL YEAR. IF THE
TERMINATION OF EMPLOYMENT OCCURS PRIOR TO THE END OF THE FISCAL YEAR, THE BONUS
AMOUNT FOR SUCH FISCAL YEAR SHALL BE EQUAL TO THE HIGHEST OF THE BONUSES EARNED
BY THE EXECUTIVE IN THE PRIOR THREE FISCAL YEARS (OR FOR SUCH LESSER NUMBER OF
FISCAL YEARS PRIOR TO THE TERMINATION OF EMPLOYMENT FOR WHICH THE EXECUTIVE WAS
ELIGIBLE TO EARN SUCH A BONUS, AND ANNUALIZED IN THE CASE OF ANY BONUS EARNED
FOR A PARTIAL FISCAL YEAR).
"DISABILITY" MEANS THE ABSENCE OF THE EXECUTIVE FROM THE
EXECUTIVE'S DUTIES WITH THE COMPANY ON A FULL-TIME BASIS FOR 180 CONSECUTIVE
BUSINESS DAYS AS A RESULT OF INCAPACITY DUE TO MENTAL OR PHYSICAL ILLNESS THAT
IS DETERMINED TO BE TOTAL AND PERMANENT BY A PHYSICIAN SELECTED BY THE COMPANY
OR ITS INSURERS AND ACCEPTABLE TO THE EXECUTIVE OR THE EXECUTIVE'S LEGAL
REPRESENTATIVE.
"EARLY RETIREMENT AGE" MEANS THE DATE THAT THE EXECUTIVE HAS
ATTAINED AGE 55 AND COMPLETED SEVEN YEARS OF SERVICE.
"EARLY RETIREMENT DATE" MEANS THE DATE THAT IS THE LATER OF
THE EARLY RETIREMENT AGE OR THE TERMINATION OF EMPLOYMENT, BUT IS BEFORE THE
NORMAL RETIREMENT DATE.
"EARLY TERMINATION" MEANS THE TERMINATION OF EMPLOYMENT BEFORE
EARLY RETIREMENT AGE FOR REASONS OTHER THAN (I) DEATH, (II) DISABILITY, (III) BY
THE COMPANY FOR CAUSE, (IV) BY THE COMPANY WITHOUT CAUSE DURING THE TWO YEAR
PERIOD FOLLOWING A CHANGE OF CONTROL, (V) INVOLUNTARY TERMINATION.
"EARLY TERMINATION DATE" MEANS THE MONTH, DAY AND YEAR IN
WHICH EARLY TERMINATION OCCURS.
"EFFECTIVE DATE" MEANS JULY 15, 2003.
"INVOLUNTARY TERMINATION" MEANS A TERMINATION OF EMPLOYMENT BY
THE EXECUTIVE FOLLOWING A CHANGE OF CONTROL WHICH, IN THE SOLE JUDGMENT OF THE
EXECUTIVE, IS DUE TO (I) A CHANGE OF THE EXECUTIVE'S RESPONSIBILITIES, POSITION
(INCLUDING THE EXECUTIVE'S OFFICE, TITLE, REPORTING RELATIONSHIPS OR WORKING
CONDITIONS), AUTHORITY OR DUTIES (INCLUDING CHANGES RESULTING FROM THE
ASSIGNMENT TO THE EXECUTIVE OF ANY DUTIES INCONSISTENT WITH HIS POSITIONS,
DUTIES OR RESPONSIBILITIES AS IN EFFECT IMMEDIATELY PRIOR TO THE CHANGE OF
CONTROL); OR (II) A REDUCTION IN THE EXECUTIVE'S ANNUAL BASE SALARY OR ANNUAL
BONUS OPPORTUNITY UNDER THE COMPANY'S MANAGEMENT INCENTIVE COMPENSATION PLAN, OR
ANY COMPARABLE BONUS UNDER ANY PREDECESSOR OR SUCCESSOR PLAN, INCLUDING ANY
BONUS OR PORTION THEREOF THAT HAS BEEN EARNED BUT DEFERRED, OR BENEFITS; OR
(III) A FORCED RELOCATION OF THE EXECUTIVE OUTSIDE THE GREENVILLE, SOUTH
CAROLINA METROPOLITAN AREA; OR (IV) A SIGNIFICANT INCREASE IN THE EXECUTIVE'
TRAVEL REQUIREMENTS (COLLECTIVELY "STATUS CHANGES"); PROVIDED, HOWEVER,
EXECUTIVE MUST ELECT TO TERMINATE EXECUTIVE'S EMPLOYMENT WITHIN TWO (2) YEARS OF
THE STATUS CHANGE ON WHICH EXECUTIVE BASES EXECUTIVE'S EMPLOYMENT TERMINATION.
"NORMAL RETIREMENT AGE" MEANS EXECUTIVE'S 65TH BIRTHDAY.
"NORMAL RETIREMENT DATE" MEANS THE LATER OF THE NORMAL
RETIREMENT AGE OR TERMINATION OF EMPLOYMENT.
"RATE" MEANS THE MOODY'S AA CORPORATE BOND RATE AS REPORTED BY
THE SOCIETY OF ACTUARIES AS OF THE EFFECTIVE DATE AND UPDATED ON EACH DECEMBER
31ST THEREAFTER.
"TERMINATION OF EMPLOYMENT" MEANS THE TERMINATION OF THE
EXECUTIVE'S EMPLOYMENT WITH THE COMPANY AND ANY OF ITS SUBSIDIARIES OR
AFFILIATES. IF THE EXECUTIVE IS EMPLOYED BY A SUBSIDIARY OR AN AFFILIATE, THE
EXECUTIVE SHALL ALSO BE DEEMED TO INCUR A TERMINATION OF EMPLOYMENT IF THE
SUBSIDIARY OR AFFILIATE CEASES TO BE SUCH A SUBSIDIARY OR AN AFFILIATE, AS THE
CASE MAY BE, AND THE EXECUTIVE DOES NOT IMMEDIATELY THEREAFTER BECOME AN
EMPLOYEE OF THE COMPANY OR ANOTHER SUBSIDIARY OR AFFILIATE. TEMPORARY ABSENCES
FROM EMPLOYMENT BECAUSE OF ILLNESS, VACATION OR LEAVE OF ABSENCE AND TRANSFERS
AMONG THE COMPANY AND ITS SUBSIDIARIES AND AFFILIATES SHALL NOT BE CONSIDERED
TERMINATIONS OF EMPLOYMENT.
"VESTING PERCENTAGE" IS THE PERCENTAGE OF THE ACCRUAL BALANCE
IN WHICH THE EXECUTIVE IS VESTED AS DETERMINED IN ACCORDANCE WITH SCHEDULE A.
"VESTING START DATE" SHALL BE JANUARY 17, 2000.
"YEAR OF SERVICE" MEANS A TWELVE-MONTH CONTINUOUS PERIOD OF
EMPLOYMENT OR A PORTION OF SUCH PERIOD, INCLUDING PERIODS OF AUTHORIZED
VACATION, AUTHORIZED LEAVE OF ABSENCE AND SHORT-TERM DISABILITY LEAVE, WITH THE
COMPANY OR ANY OF ITS AFFILIATE OR THEIR PREDECESSORS OR SUCCESSORS ROUNDED UP
TO THE NEAREST WHOLE NUMBER COMMENCING ON THE VESTING START DATE.
Lifetime Benefits
NORMAL RETIREMENT BENEFIT. UPON TERMINATION OF EMPLOYMENT (I)
ON OR AFTER THE NORMAL RETIREMENT AGE FOR REASONS OTHER THAN DEATH, OR (II) UPON
TERMINATION OF EMPLOYMENT WITHOUT CAUSE WITHIN TWO YEARS FOLLOWING A CHANGE OF
CONTROL OR (III) UPON EXECUTIVE'S INVOLUNTARY TERMINATION, THE COMPANY SHALL PAY
TO THE EXECUTIVE THE BENEFIT DESCRIBED IN THIS SECTION 2.1 IN LIEU OF ANY OTHER
BENEFIT UNDER THIS AGREEMENT.
Amount of Benefit. The annual benefit under this
Section 2.1 is an amount equal to Forty percent (40.0%) of the Benefit
Basis, provided that in the event that the Executive has completed five
Years of Service, the annual benefit under this Section 2.1 is an
amount equal to Sixty percent (60.0%) of the Benefit Basis.
Payment of Benefit. The Company shall pay the annual
benefit to the Executive in 12 equal monthly installments payable on
the first day of each month commencing with the month following the
Executive's Normal Retirement Date or, if earlier, upon Termination of
Employment without Cause within two years following a Change of Control
or upon Executive's Involuntary Termination, as the case may be. The
annual benefit shall be paid to the Executive (a) for 180 months or (b)
at the Executive's election on the Election Form attached as Exhibit A
during the calendar year immediately preceding the year in which the
Termination of Employment occurs, in a lump sum payment within 30 days
following the Executive's Normal Retirement Date or, if earlier, upon
Termination of Employment without Cause within two years following a
Change of Control or upon Executive's Involuntary Termination, as the
case may be, equal to the present value of the aggregate annual
benefits that would have been payable to the Executive under clause (a)
of this Section 2.1.2, assuming a discount rate equal to the Rate.
Benefit Increases. Commencing on the first
anniversary of the first benefit payment, and continuing on each
subsequent anniversary, the Company's Board of Directors, in its sole
discretion, may increase the benefit.
EARLY RETIREMENT BENEFIT. UPON TERMINATION OF EMPLOYMENT ON OR
AFTER EARLY RETIREMENT AGE BUT BEFORE NORMAL RETIREMENT AGE FOR REASONS OTHER
THAN (I) DEATH, (II) DISABILITY, (III) BY THE COMPANY WITHOUT CAUSE WITHIN TWO
YEARS FOLLOWING A CHANGE OF CONTROL OR (IV) UPON EXECUTIVE'S INVOLUNTARY
TERMINATION, THE COMPANY SHALL PAY TO THE EXECUTIVE THE BENEFIT DESCRIBED IN
THIS SECTION 2.2 IN LIEU OF ANY OTHER BENEFITS UNDER THIS AGREEMENT.
Amount of Benefit. The annual benefit under this
Section 2.2 is an amount equal to the greater of (i) the product of (A)
the sum of (x) Thirty percent (30.0%) and (y) Three percent (3.0%) for
each Year of Service completed by the Executive after the Early
Retirement Age and (B) the Benefit Basis or (ii) the benefit under
Section 2.3; provided that in no event shall the amount payable under
this Section 2.2.1 be greater than the benefit set forth in Section
2.1.1.
Payment of Benefit. The Company shall pay the annual
benefit to the Executive in 12 equal monthly installments payable on
the first day of each month commencing with the month following the
Normal Retirement Age. The annual benefit shall be paid to the
Executive (a) for 180 months or (b) at the Executive's election on the
Election Form attached as Exhibit A during the calendar year
immediately preceding the year in which the Termination of Employment
occurs, in a lump sum payment within 30 days following the Executive's
Termination of Employment on or after Early Retirement Age but before
Normal Retirement Age for reasons other than (i) death, (ii)
Disability, (iii) by the Company without Cause within two years
following a Change of Control or (iv) upon Executive's Involuntary
Termination, as the case may be, equal to the present value of the
aggregate annual benefits that would have been payable to the Executive
under clause (a) of this Section 2.2.2, assuming a discount rate equal
to the Rate.
Benefit Increases. Benefit payments may be increased
as provided in Section 2.1.3.
EARLY TERMINATION BENEFIT. UPON EARLY TERMINATION, THE COMPANY
SHALL PAY TO THE EXECUTIVE THE BENEFIT DESCRIBED IN THIS SECTION 2.3 IN LIEU OF
ANY OTHER BENEFIT UNDER THIS AGREEMENT.
Amount of Benefit. The benefit under this Section 2.3
is the Early Termination Annual Benefit set forth in Schedule A for the
year ending immediately prior to the Early Termination Date.
Payment of Benefit. The Company shall pay the annual
benefit to the Executive in 12 equal monthly installments payable on
the first day of each month commencing with the month following the
Normal Retirement Age. The annual benefit shall be paid to the
Executive for 180 months.
Benefit Increases. Benefit payments may be increased
as provided in Section 2.1.3.
DISABILITY BENEFIT. IF THE EXECUTIVE TERMINATES EMPLOYMENT DUE
TO DISABILITY PRIOR TO NORMAL RETIREMENT AGE, THE COMPANY SHALL PAY TO THE
EXECUTIVE THE BENEFIT DESCRIBED IN THIS SECTION 2.4 IN LIEU OF ANY OTHER BENEFIT
UNDER THIS AGREEMENT.
Amount of Benefit. If the Executive terminates
employment due to Disability prior to Normal Retirement Age, but after
Early Retirement Age, the benefit under this Section 2.4 shall be the
annual benefit set forth in Section 2.2.1. If the Executive terminates
employment due to Disability prior to Early Retirement Age, the benefit
under this Section 2.4 is the Disability Annual Benefit set forth in
Schedule A for the year ending immediately prior to the Early
Termination Date.
Payment of Benefit. The Company shall pay the annual
benefit amount to the Executive in 12 equal monthly installments
payable on the first day of each month commencing with the month
following the Termination of Employment. The annual benefit shall be
paid to the Executive for 180 months.
Benefit Increases. Benefit payments may be increased
as provided in Section 2.1.3.
Death Benefits
DEATH DURING ACTIVE SERVICE. IF THE EXECUTIVE DIES WHILE IN
THE ACTIVE SERVICE OF THE COMPANY, THE COMPANY SHALL PAY TO THE EXECUTIVE'S
BENEFICIARY THE BENEFIT DESCRIBED IN THIS SECTION 3.1. THIS BENEFIT SHALL BE
PAID IN LIEU OF THE LIFETIME BENEFITS OF ARTICLE 2.
Amount of Benefit. The annual benefit under this
Section 3.1 is equal to the Disability Annual Benefit described in
Section 2.4.1.
Payment of Benefit. The Company shall pay the annual
benefit to the Executive's beneficiary in 12 equal monthly installments
payable on the first day of each month commencing with the month
following the Executive's death. The annual benefit shall be paid to
the Executive's beneficiary for 180 months.
DEATH DURING BENEFIT PERIOD. IF THE EXECUTIVE DIES AFTER THE
BENEFIT PAYMENTS HAVE COMMENCED UNDER THIS AGREEMENT BUT BEFORE RECEIVING ALL
SUCH PAYMENTS, THE COMPANY SHALL PAY THE REMAINING BENEFITS TO THE EXECUTIVE'S
BENEFICIARY AT THE SAME TIME AND IN THE SAME AMOUNTS THEY WOULD HAVE BEEN PAID
TO THE EXECUTIVE HAD THE EXECUTIVE SURVIVED.
DEATH AFTER TERMINATION OF EMPLOYMENT BUT BEFORE BENEFIT
PAYMENTS COMMENCE. IF THE EXECUTIVE IS ENTITLED TO BENEFIT PAYMENTS UNDER THIS
AGREEMENT, BUT DIES PRIOR TO THE COMMENCEMENT OF SAID BENEFIT PAYMENTS, THE
COMPANY SHALL PAY TO THE EXECUTIVE'S BENEFICIARY THE BENEFIT PAYMENTS THAT THE
EXECUTIVE WAS ENTITLED TO PRIOR TO DEATH EXCEPT THAT THE BENEFIT PAYMENTS SHALL
COMMENCE ON THE FIRST DAY OF THE MONTH FOLLOWING THE DATE OF THE EXECUTIVE'S
DEATH.
Beneficiaries
BENEFICIARY DESIGNATIONS. THE EXECUTIVE SHALL DESIGNATE A
BENEFICIARY BY FILING A WRITTEN DESIGNATION WITH THE COMPANY. THE EXECUTIVE MAY
REVOKE OR MODIFY THE DESIGNATION AT ANY TIME BY FILING A NEW DESIGNATION.
HOWEVER, DESIGNATIONS WILL ONLY BE EFFECTIVE IF SIGNED BY THE EXECUTIVE AND
ACCEPTED BY THE COMPANY DURING THE EXECUTIVE'S LIFETIME. THE EXECUTIVE'S
BENEFICIARY DESIGNATION SHALL BE DEEMED AUTOMATICALLY REVOKED IF THE BENEFICIARY
PREDECEASES THE EXECUTIVE, OR IF THE EXECUTIVE NAMES A SPOUSE AS BENEFICIARY AND
THE MARRIAGE IS SUBSEQUENTLY DISSOLVED. IF THE EXECUTIVE DIES WITHOUT A VALID
BENEFICIARY DESIGNATION, ALL PAYMENTS SHALL BE MADE TO THE EXECUTIVE'S ESTATE.
FACILITY OF PAYMENT. IF A BENEFIT IS PAYABLE TO A MINOR, TO A
PERSON DECLARED INCAPACITATED, OR TO A PERSON INCAPABLE OF HANDLING THE
DISPOSITION OF HIS OR HER PROPERTY, THE COMPANY MAY PAY SUCH BENEFIT TO THE
GUARDIAN, LEGAL REPRESENTATIVE OR PERSON HAVING THE CARE OR CUSTODY OF SUCH
MINOR, INCAPACITATED PERSON OR INCAPABLE PERSON. THE COMPANY MAY REQUIRE PROOF
OF INCAPACITY, MINORITY OR GUARDIANSHIP AS IT MAY DEEM APPROPRIATE PRIOR TO
DISTRIBUTION OF THE BENEFIT. SUCH DISTRIBUTION SHALL COMPLETELY DISCHARGE THE
COMPANY FROM ALL LIABILITY WITH RESPECT TO SUCH BENEFIT.
General Limitations
TERMINATION FOR CAUSE. NOTWITHSTANDING ANY PROVISION OF THIS
AGREEMENT TO THE CONTRARY, THE COMPANY SHALL NOT PAY ANY BENEFIT UNDER THIS
AGREEMENT IF THE COMPANY TERMINATES THE EXECUTIVE'S EMPLOYMENT FOR CAUSE.
SUICIDE OR MISSTATEMENT. THE COMPANY SHALL NOT PAY ANY BENEFIT
UNDER THIS AGREEMENT IF THE EXECUTIVE COMMITS SUICIDE WITHIN TWO YEARS AFTER THE
DATE OF THIS AGREEMENT.
Claims and Review Procedures
CLAIMS PROCEDURE. THE COMPANY SHALL NOTIFY ANY PERSON OR
ENTITY THAT MAKES A CLAIM AGAINST THE AGREEMENT (THE "CLAIMANT") IN WRITING,
WITHIN 90 DAYS OF CLAIMANT'S WRITTEN APPLICATION FOR BENEFITS, OF HIS OR HER
ELIGIBILITY OR NONELIGIBILITY FOR BENEFITS UNDER THE AGREEMENT. IF THE COMPANY
DETERMINES THAT THE CLAIMANT IS NOT ELIGIBLE FOR BENEFITS OR FULL BENEFITS, THE
NOTICE SHALL SET FORTH (1) THE SPECIFIC REASONS FOR SUCH DENIAL, (2) A SPECIFIC
REFERENCE TO THE PROVISIONS OF THE AGREEMENT ON WHICH THE DENIAL IS BASED, (3) A
DESCRIPTION OF ANY ADDITIONAL INFORMATION OR MATERIAL NECESSARY FOR THE CLAIMANT
TO PERFECT HIS OR HER CLAIM, AND A DESCRIPTION OF WHY IT IS NEEDED, AND (4) AN
EXPLANATION OF THE AGREEMENT'S CLAIMS REVIEW PROCEDURE AND OTHER APPROPRIATE
INFORMATION AS TO THE STEPS TO BE TAKEN IF THE CLAIMANT WISHES TO HAVE THE CLAIM
REVIEWED. IF THE COMPANY DETERMINES THAT THERE ARE SPECIAL CIRCUMSTANCES
REQUIRING ADDITIONAL TIME TO MAKE A DECISION, THE COMPANY SHALL NOTIFY THE
CLAIMANT OF THE SPECIAL CIRCUMSTANCES AND THE DATE BY WHICH A DECISION IS
EXPECTED TO BE MADE, AND MAY EXTEND THE TIME FOR UP TO AN ADDITIONAL 90 DAYS.
REVIEW PROCEDURE. IF THE CLAIMANT IS DETERMINED BY THE COMPANY
NOT TO BE ELIGIBLE FOR BENEFITS, OR IF THE CLAIMANT BELIEVES THAT HE OR SHE IS
ENTITLED TO GREATER OR DIFFERENT BENEFITS, THE CLAIMANT SHALL HAVE THE
OPPORTUNITY TO HAVE SUCH CLAIM REVIEWED BY THE COMPANY BY FILING A PETITION FOR
REVIEW WITH THE COMPANY WITHIN 60 DAYS AFTER RECEIPT OF THE NOTICE ISSUED BY THE
COMPANY. SAID PETITION SHALL STATE THE SPECIFIC REASONS WHICH THE CLAIMANT
BELIEVES ENTITLE HIM OR HER TO BENEFITS OR TO GREATER OR DIFFERENT BENEFITS.
WITHIN 60 DAYS AFTER RECEIPT BY THE COMPANY OF THE PETITION, THE COMPANY SHALL
AFFORD THE CLAIMANT (AND COUNSEL, IF ANY) AN OPPORTUNITY TO PRESENT HIS OR HER
POSITION TO THE COMPANY VERBALLY OR IN WRITING, AND THE CLAIMANT (OR COUNSEL)
SHALL HAVE THE RIGHT TO REVIEW THE PERTINENT DOCUMENTS. THE COMPANY SHALL NOTIFY
THE CLAIMANT OF ITS DECISION IN WRITING WITHIN THE 60-DAY PERIOD, STATING
SPECIFICALLY THE BASIS OF ITS DECISION, WRITTEN IN A MANNER CALCULATED TO BE
UNDERSTOOD BY THE CLAIMANT AND THE SPECIFIC PROVISIONS OF THE AGREEMENT ON WHICH
THE DECISION IS BASED. IF, BECAUSE OF THE NEED FOR A HEARING, THE 60-DAY PERIOD
IS NOT SUFFICIENT, THE DECISION MAY BE DEFERRED FOR UP TO ANOTHER 60 DAYS AT THE
ELECTION OF THE COMPANY, BUT NOTICE OF THIS DEFERRAL SHALL BE GIVEN TO THE
CLAIMANT.
Amendments and Termination
This Agreement may not be amended or modified other than by a written agreement
executed by the parties hereto or their respective successors and legal
representatives.
Miscellaneous
BINDING EFFECT. THIS AGREEMENT SHALL BIND THE EXECUTIVE
AND THE COMPANY, AND THEIR BENEFICIARIES, SURVIVORS, EXECUTORS, SUCCESSORS,
ADMINISTRATORS AND TRANSFEREES.
NO GUARANTEE OF EMPLOYMENT. THIS AGREEMENT IS NOT AN
EMPLOYMENT POLICY OR CONTRACT. IT DOES NOT GIVE THE EXECUTIVE THE RIGHT TO
REMAIN AN EMPLOYEE OF THE COMPANY, NOR DOES IT INTERFERE WITH THE COMPANY'S
RIGHT TO DISCHARGE THE EXECUTIVE. IT ALSO DOES NOT REQUIRE THE EXECUTIVE TO
REMAIN AN EMPLOYEE NOR INTERFERE WITH THE EXECUTIVE'S RIGHT TO TERMINATE
EMPLOYMENT AT ANY TIME.
NON-TRANSFERABILITY. BENEFITS UNDER THIS AGREEMENT CANNOT BE
SOLD, TRANSFERRED, ASSIGNED, PLEDGED, ATTACHED OR ENCUMBERED IN ANY MANNER.
SUCCESSORS. THIS AGREEMENT IS PERSONAL TO THE EXECUTIVE, AND,
WITHOUT THE PRIOR WRITTEN CONSENT OF THE COMPANY, SHALL NOT BE ASSIGNABLE BY THE
EXECUTIVE OTHER THAN BY WILL OR THE LAWS OF DESCENT AND DISTRIBUTION. THIS
AGREEMENT SHALL INURE TO THE BENEFIT OF AND BE ENFORCEABLE BY THE EXECUTIVE'S
LEGAL REPRESENTATIVES. THIS AGREEMENT SHALL INURE TO THE BENEFIT OF AND BE
BINDING UPON THE COMPANY AND ITS SUCCESSORS AND ASSIGNS. SUBJECT TO THE
FOLLOWING SENTENCES OF THIS SECTION 8.4, THIS AGREEMENT SHALL NOT BE ASSIGNABLE
BY THE COMPANY WITHOUT THE PRIOR WRITTEN CONSENT OF THE EXECUTIVE. THE COMPANY
WILL REQUIRE ANY SUCCESSOR (WHETHER DIRECT OR INDIRECT, BY PURCHASE, MERGER,
CONSOLIDATION OR OTHERWISE) TO ALL OR SUBSTANTIALLY ALL OF THE BUSINESS AND/OR
ASSETS OF THE COMPANY TO ASSUME EXPRESSLY AND AGREE TO PERFORM THIS AGREEMENT IN
THE SAME MANNER AND TO THE SAME EXTENT THAT THE COMPANY WOULD BE REQUIRED TO
PERFORM IT IF NO SUCH SUCCESSION HAD TAKEN PLACE. "COMPANY" MEANS THE COMPANY AS
HEREINBEFORE DEFINED AND ANY SUCCESSOR TO ITS BUSINESS AND/OR ASSETS AS
AFORESAID THAT ASSUMES AND AGREES TO PERFORM THIS AGREEMENT BY OPERATION OF LAW
OR OTHERWISE.
TAX WITHHOLDING. THE COMPANY SHALL WITHHOLD ANY TAXES THAT ARE
REQUIRED TO BE WITHHELD FROM THE BENEFITS PROVIDED UNDER THIS AGREEMENT.
APPLICABLE LAW. THE AGREEMENT AND ALL RIGHTS HEREUNDER SHALL
BE GOVERNED BY THE LAWS OF THE STATE OF SOUTH CAROLINA, WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAWS.
UNFUNDED ARRANGEMENT. THE EXECUTIVE AND BENEFICIARY ARE
GENERAL UNSECURED CREDITORS OF THE COMPANY FOR THE PAYMENT OF BENEFITS UNDER
THIS AGREEMENT. THE BENEFITS REPRESENT THE MERE PROMISE BY THE COMPANY TO PAY
SUCH BENEFITS. THE RIGHTS TO BENEFITS ARE NOT SUBJECT IN ANY MANNER TO
ANTICIPATION, ALIENATION, SALE, TRANSFER, ASSIGNMENT, PLEDGE, ENCUMBRANCE,
ATTACHMENT, OR GARNISHMENT BY CREDITORS.
ENTIRE AGREEMENT. THIS AGREEMENT CONSTITUTES THE ENTIRE
AGREEMENT BETWEEN THE COMPANY AND THE EXECUTIVE AS TO THE SUBJECT MATTER HEREOF.
NO RIGHTS ARE GRANTED TO THE EXECUTIVE BY VIRTUE OF THIS AGREEMENT OTHER THAN
THOSE SPECIFICALLY SET FORTH HEREIN. FROM AND AFTER THE EFFECTIVE DATE, THIS
AGREEMENT SHALL SUPERSEDE ANY OTHER AGREEMENT BETWEEN THE PARTIES WITH RESPECT
TO THE SUBJECT MATTER HEREOF INCLUDING WITHOUT LIMITATION THE SUPPLEMENTAL
EXECUTIVE BENEFIT AGREEMENT BETWEEN THE EXECUTIVE AND THE COMPANY DATED AS OF
DECEMBER 1, 2000 (THE "PRIOR AGREEMENT").
ADMINISTRATION AND RECORDKEEPING AUTHORITY. EXCEPT AS
OTHERWISE SPECIFICALLY PROVIDED HEREIN, THE COMPANY SHALL HAVE THE SOLE
RESPONSIBILITY FOR AND THE SOLE CONTROL OF THE OPERATION, ADMINISTRATION, AND
RECORDKEEPING OF THIS AGREEMENT AND SHALL HAVE THE POWER AND AUTHORITY TO TAKE
ALL ACTION AND TO MAKE ALL DECISIONS AND INTERPRETATIONS THAT MAY BE NECESSARY
OR APPROPRIATE IN ORDER TO ADMINISTER AND OPERATE THE AGREEMENT, INCLUDING,
WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, THE POWER, DUTY, AND
RESPONSIBILITY TO:
RESOLVE AND DETERMINE ALL DISPUTES OR QUESTIONS
ARISING UNDER THE AGREEMENT, INCLUDING THE POWER TO
DETERMINE THE RIGHTS OF THE PARTICIPANT AND
BENEFICIARIES AND THEIR RESPECTIVE BENEFITS, AND TO
REMEDY ANY AMBIGUITIES, INCONSISTENCIES, OR OMISSIONS
IN THE AGREEMENT;
ADOPT SUCH RULES OF PROCEDURE AND REGULATIONS AS IN
ITS OPINION MAY BE NECESSARY FOR THE PROPER AND
EFFICIENT ADMINISTRATION OF THE AGREEMENT AND AS ARE
CONSISTENT WITH THE AGREEMENT;
IMPLEMENT THE AGREEMENT IN ACCORDANCE WITH ITS TERMS;
ESTABLISH AND REVISE THE METHOD OF ACCOUNTING FOR THE
AGREEMENT; AND
MAINTAIN A RECORD OF BENEFIT PAYMENTS.
NAMED FIDUCIARY. THE COMPANY SHALL BE THE NAMED FIDUCIARY AND
PLAN ADMINISTRATOR UNDER THE AGREEMENT. THE NAMED FIDUCIARY MAY DELEGATE TO
OTHERS CERTAIN ASPECTS OF THE MANAGEMENT AND OPERATION RESPONSIBILITIES OF THE
PLAN INCLUDING THE EMPLOYMENT OF ADVISORS AND THE DELEGATION OF MINISTERIAL
DUTIES TO QUALIFIED INDIVIDUALS.
CAPTIONS. THE CAPTIONS OF THIS AGREEMENT ARE NOT PART OF THE
PROVISIONS HEREOF AND SHALL HAVE NO FORCE OR EFFECT.
SEVERABILITY. THE INVALIDITY OR UNENFORCEABILITY OF ANY
PROVISION OF THIS AGREEMENT SHALL NOT AFFECT THE VALIDITY OR ENFORCEABILITY OF
ANY OTHER PROVISION OF THIS AGREEMENT.
IN WITNESS WHEREOF, the Executive and a duly authorized Company officer have
signed this Agreement.
EXECUTIVE: COMPANY:
THE SOUTH FINANCIAL GROUP, INC.
/s/ Andrew B. Cheney By: /s/ Mary A. Jeffrey
- -------------------------- ------------------------------
ANDREW B. CHENEY MARY A. JEFFREY
Title: Executive Vice President
Director - Human Resources
BENEFICIARY DESIGNATION
THE SOUTH FINANCIAL GROUP
SUPPLEMENTAL EXECUTIVE RETIREMENT AGREEMENT
ANDREW B. CHENEY
I designate the following as beneficiary of any death benefits under this
Supplemental Executive Retirement Agreement:
Primary:
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Contingent:
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NOTE: TO NAME A TRUST AS BENEFICIARY, PLEASE PROVIDE THE NAME OF THE TRUSTEE(S)
AND THE EXACT NAME AND DATE OF THE TRUST AGREEMENT.
I understand that I may change these beneficiary designations by filing a new
written designation with the Company. I further understand that the designations
will be automatically revoked if the beneficiary predeceases me, or, if I have
named my spouse as beneficiary and our marriage is subsequently dissolved.
Signature:
---------------------------------------------
Date:
---------------------------------------------
Accepted by the Company this ____ day of ____________, 2003.
By:
--------------------------------------------
Title:
--------------------------------------------
SCHEDULE A CALCULATIONS
THE SOUTH FINANCIAL GROUP
SUPPLEMENTAL EXECUTIVE RETIREMENT AGREEMENT
TO DETERMINE THE EXECUTIVE'S EARLY TERMINATION BENEFIT OR DISABILITY RETIREMENT
BENEFIT FOR THE YEAR OF THE TERMINATION OF EMPLOYMENT, THE FOLLOWING
CALCULATIONS SHALL BE MADE:
22. Project the Benefit Basis as of Normal Retirement Age by increasing
the Benefit Basis as of the Executive's date of Termination of
Employment by 5% per year, compounded annually, until Normal
Retirement Age (the "Projected Retirement Benefit Basis").
23. Multiply the Projected Retirement Benefit Basis by the applicable
percentage set forth in 2.1.1 (the product, "Annual Projected
Retirement Benefit").
24. Calculate the discounted value at Normal Retirement Age of the
aggregate Annual Projected Retirement Benefit that would have been
paid to the Executive in equal monthly installments over the 180-month
period immediately following the Normal Retirement Date, by using the
Rate, compounded monthly (such discounted value, the "Lump Sum
Projected Retirement Benefit").
25. Calculate the aggregate amount that has accrued through the end of the
year ending immediately prior to the date of the Executive's
Termination of Employment (including the amount of the Executive's
Accrual Balance under the Prior Agreement as of the Effective Date as
set forth on Schedule B) by accruing each month from the Effective
Date through Normal Retirement Age, with interest on such amounts
calculated monthly at the Rate, in order to accumulate to the Lump Sum
Projected Retirement Benefit as of the Normal Retirement Date (the
"Accrual Balance").
IN THE CASE OF EARLY TERMINATION BENEFIT:
26. Multiply the Accrual Balance by 10% per Year of Service, subject to a
maximum of 100% (the "Vested Accrual Balance").
27. Increase the Vested Accrual Balance by the Rate, compounded monthly,
to the Normal Retirement Age (the "Inflated Vested Accrual Balance").
28. Calculate a fixed annuity which is payable in 180 equal monthly
installments, crediting interest on the unpaid balance of the Inflated
Vested Accrual Balance at the Rate, compounded monthly.
IN THE CASE OF DISABILITY RETIREMENT BENEFIT:
5. The Disability Annual Benefit amount is determined by calculating a
fixed annuity which is payable in 180 equal monthly installments,
crediting interest on the unpaid balance of the Accrual Balance at the
Rate, compounded monthly.
SCHEDULE B CALCULATIONS
THE SOUTH FINANCIAL GROUP
SUPPLEMENTAL EXECUTIVE RETIREMENT AGREEMENT
ANDREW B. CHENEY
Accrual Balance under Prior Agreement as of June 30, 2003: $71,076
THE SOUTH FINANCIAL GROUP
SUPPLEMENTAL EXECUTIVE RETIREMENT AGREEMENT
BETWEEN
THE SOUTH FINANCIAL GROUP, INC.
AND
JOHN DUBOSE
This Supplemental Executive Retirement Agreement (this "Agreement") is made and
entered into as of this 15th day of July, 2003 (the "Effective Date"), by and
between John DuBose, an individual (the "Executive"), and The South Financial
Group, Inc., a South Carolina corporation and financial institution holding
company headquartered in Greenville, South Carolina (the "Company"). As used
herein, the term "Company" shall include the Company and any and all of its
subsidiaries where the context so applies.
INTRODUCTION
The Company wishes to provide the Executive with supplemental retirement
benefits and thereby encourage the Executive to continue providing services to
the Company. The Company will pay the benefits from its general assets.
The Agreement is intended to be a top-hat plan (i.e., an unfunded deferred
compensation plan maintained for a member of a select group of management or
highly compensated employees) pursuant to Section 201(2), 301(a)(3), and
401(a)(1) of the Employee Retirement Income Security Act of 1974 (ERISA).
AGREEMENT
The Executive and the Company agree as follows:
Definitions
Whenever used in this Agreement, the following words and phrases shall have the
meanings specified:
"AFFILIATED COMPANY" MEANS ANY COMPANY CONTROLLED BY,
CONTROLLING OR UNDER COMMON CONTROL WITH THE COMPANY.
"BENEFIT BASIS" MEANS THE AVERAGE OF THE HIGHEST THREE FISCAL
YEARS OF COMPENSATION (OR SUCH LESSER NUMBER OF YEARS AS THE EXECUTIVE HAS BEEN
EMPLOYED BY THE COMPANY) EARNED BY THE EXECUTIVE DURING THE TEN FISCAL YEARS OF
THE EXECUTIVE'S EMPLOYMENT PRIOR TO THE TERMINATION OF EMPLOYMENT, OR FOR SUCH
LESSER NUMBER OF FISCAL YEARS THAT THE EXECUTIVE WAS EMPLOYED BY THE COMPANY
PRIOR TO THE TERMINATION OF EMPLOYMENT, INCLUDING THE YEAR IN WHICH TERMINATION
OF EMPLOYMENT OCCURS.
"BOARD" MEANS THE BOARD OF DIRECTORS OF THE COMPANY.
"CAUSE" MEANS (I) THE WILLFUL AND CONTINUED FAILURE OF THE
EXECUTIVE TO PERFORM SUBSTANTIALLY THE EXECUTIVE'S DUTIES WITH THE COMPANY OR
ANY AFFILIATED COMPANY (OTHER THAN ANY SUCH FAILURE RESULTING FROM INCAPACITY
DUE TO PHYSICAL OR MENTAL ILLNESS OR FOLLOWING THE EXECUTIVE'S INVOLUNTARY
TERMINATION), AFTER A WRITTEN DEMAND FOR SUBSTANTIAL PERFORMANCE IS DELIVERED TO
THE EXECUTIVE BY THE CHIEF EXECUTIVE OFFICER THAT SPECIFICALLY IDENTIFIES THE
MANNER IN WHICH THE CHIEF EXECUTIVE OFFICER OF THE COMPANY BELIEVES THAT THE
EXECUTIVE HAS NOT SUBSTANTIALLY PERFORMED THE EXECUTIVE'S DUTIES, OR (II) THE
WILLFUL ENGAGING BY THE EXECUTIVE IN ILLEGAL CONDUCT OR GROSS MISCONDUCT, IN
EACH CASE, THAT IS MATERIALLY AND DEMONSTRABLY INJURIOUS TO THE COMPANY. FOR
PURPOSES OF THIS DEFINITION, NO ACT, OR FAILURE TO ACT, ON THE PART OF THE
EXECUTIVE SHALL BE CONSIDERED "WILLFUL" UNLESS IT IS DONE, OR OMITTED TO BE
DONE, BY THE EXECUTIVE IN BAD FAITH OR WITHOUT REASONABLE BELIEF THAT THE
EXECUTIVE'S ACTION OR OMISSION WAS IN THE BEST INTERESTS OF THE COMPANY. ANY
ACT, OR FAILURE TO ACT, BASED UPON AUTHORITY GIVEN PURSUANT TO A RESOLUTION DULY
ADOPTED BY THE BOARD OR UPON THE INSTRUCTIONS OF THE CHIEF EXECUTIVE OFFICER OF
THE COMPANY OR A SENIOR OFFICER OF THE COMPANY OR BASED UPON THE ADVICE OF
COUNSEL FOR THE COMPANY SHALL BE CONCLUSIVELY PRESUMED TO BE DONE, OR OMITTED TO
BE DONE, BY THE EXECUTIVE IN GOOD FAITH AND IN THE BEST INTERESTS OF THE
COMPANY. THE CESSATION OF EMPLOYMENT OF THE EXECUTIVE SHALL NOT BE DEEMED TO BE
FOR CAUSE UNLESS AND UNTIL THERE SHALL HAVE BEEN DELIVERED TO THE EXECUTIVE A
COPY OF A RESOLUTION DULY ADOPTED BY THE AFFIRMATIVE VOTE OF NOT LESS THAN
THREE-QUARTERS OF THE ENTIRE MEMBERSHIP OF THE BOARD (EXCLUDING THE EXECUTIVE,
IF THE EXECUTIVE IS A MEMBER OF THE BOARD) AT A MEETING OF THE BOARD CALLED AND
HELD FOR SUCH PURPOSE (AFTER REASONABLE NOTICE IS PROVIDED TO THE EXECUTIVE AND
THE EXECUTIVE IS GIVEN AN OPPORTUNITY, TOGETHER WITH COUNSEL FOR THE EXECUTIVE,
TO BE HEARD BEFORE THE BOARD), FINDING THAT, IN THE GOOD FAITH OPINION OF THE
BOARD, THE EXECUTIVE IS GUILTY OF THE CONDUCT DESCRIBED IN CLAUSE (I) OR (II) OF
THIS DEFINITION, AND SPECIFYING THE PARTICULARS THEREOF IN DETAIL.
"CHANGE OF CONTROL" MEANS:
The acquisition by any individual, entity or group
(within the meaning of Section 13(d)(3) or 14(d)(2) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act")) (a "Person") of
beneficial ownership (within the meaning of Rule 13d-3 promulgated
under the Exchange Act) of 20% or more of either (A) the
then-outstanding shares of common stock of the Company (the
"Outstanding Company Common Stock") or (B) the combined voting power of
the then-outstanding voting securities of the Company entitled to vote
generally in the election of directors (the "Outstanding Company Voting
Securities"); provided, however, that, for purposes of this Section
1.5, the following acquisitions shall not constitute a Change of
Control: (i) any acquisition directly from the Company, (ii) any
acquisition by the Company, (iii) any acquisition by any employee
benefit plan (or related trust) sponsored or maintained by the Company
or any Affiliated Company or (iv) any acquisition by any corporation
pursuant to a transaction that complies with Sections 1.5.3(A),
1.5.3(B) and 1.5.3(C);
Any time at which individuals who, as of the date
hereof, constitute the Board (the "Incumbent Board") cease for any
reason to constitute at least a majority of the Board; provided,
however, that any individual becoming a director subsequent to the date
hereof whose election, or nomination for election by the Company's
shareholders, was approved by a vote of at least a majority of the
directors then comprising the Incumbent Board shall be considered as
though such individual were a member of the Incumbent Board, but
excluding, for this purpose, any such individual whose initial
assumption of office occurs as a result of an actual or threatened
election contest with respect to the election or removal of directors
or other actual or threatened solicitation of proxies or consents by or
on behalf of a Person other than the Board;
Consummation of a reorganization, merger, statutory
share exchange or consolidation or similar corporate transaction
involving the Company or any of its subsidiaries, a sale or other
disposition of all or substantially all of the assets of the Company,
or the acquisition of assets or stock of another entity by the Company
or any of its subsidiaries (each, a "Business Combination"), in each
case unless, following such Business Combination, (A) all or
substantially all of the individuals and entities that were the
beneficial owners of the Outstanding Company Common Stock and the
Outstanding Company Voting Securities immediately prior to such
Business Combination beneficially own, directly or indirectly, more
than 50% of the then-outstanding shares of common stock and the
combined voting power of the then-outstanding voting securities
entitled to vote generally in the election of directors, as the case
may be, of the corporation resulting from such Business Combination
(including, without limitation, a corporation that, as a result of such
transaction, owns the Company or all or substantially all of the
Company's assets either directly or through one or more subsidiaries)
in substantially the same proportions as their ownership immediately
prior to such Business Combination of the Outstanding Company Common
Stock and the Outstanding Company Voting Securities, as the case may
be, (B) no Person (excluding any corporation resulting from such
Business Combination or any employee benefit plan (or related trust) of
the Company or such corporation resulting from such Business
Combination) beneficially owns, directly or indirectly, 20% or more of,
respectively, the then-outstanding shares of common stock of the
corporation resulting from such Business Combination or the combined
voting power of the then-outstanding voting securities of such
corporation, except to the extent that such ownership existed prior to
the Business Combination, and (C) at least a majority of the members of
the board of directors of the corporation resulting from such Business
Combination were members of the Incumbent Board at the time of the
execution of the initial agreement or of the action of the Board
providing for such Business Combination; or
Approval by the shareholders of the Company of a
complete liquidation or dissolution of the Company.
"CODE" MEANS THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
"COMPENSATION" MEANS THE EXECUTIVE'S ANNUAL BASE SALARY AND
ANNUAL BONUS UNDER THE COMPANY'S MANAGEMENT INCENTIVE COMPENSATION PLAN, OR ANY
COMPARABLE BONUS UNDER ANY PREDECESSOR OR SUCCESSOR PLAN, INCLUDING ANY BONUS OR
PORTION THEREOF THAT HAS BEEN EARNED BUT DEFERRED (AND ANNUALIZED FOR ANY FISCAL
YEAR CONSISTING OF LESS THAN 12 FULL MONTHS OR DURING WHICH THE EXECUTIVE WAS
EMPLOYED FOR LESS THAN 12 FULL MONTHS) FOR THE RELEVANT FISCAL YEAR. IF THE
TERMINATION OF EMPLOYMENT OCCURS PRIOR TO THE END OF THE FISCAL YEAR, THE BONUS
AMOUNT FOR SUCH FISCAL YEAR SHALL BE EQUAL TO THE HIGHEST OF THE BONUSES EARNED
BY THE EXECUTIVE IN THE PRIOR THREE FISCAL YEARS (OR FOR SUCH LESSER NUMBER OF
FISCAL YEARS PRIOR TO THE TERMINATION OF EMPLOYMENT FOR WHICH THE EXECUTIVE WAS
ELIGIBLE TO EARN SUCH A BONUS, AND ANNUALIZED IN THE CASE OF ANY BONUS EARNED
FOR A PARTIAL FISCAL YEAR).
"DISABILITY" MEANS THE ABSENCE OF THE EXECUTIVE FROM THE
EXECUTIVE'S DUTIES WITH THE COMPANY ON A FULL-TIME BASIS FOR 180 CONSECUTIVE
BUSINESS DAYS AS A RESULT OF INCAPACITY DUE TO MENTAL OR PHYSICAL ILLNESS THAT
IS DETERMINED TO BE TOTAL AND PERMANENT BY A PHYSICIAN SELECTED BY THE COMPANY
OR ITS INSURERS AND ACCEPTABLE TO THE EXECUTIVE OR THE EXECUTIVE'S LEGAL
REPRESENTATIVE.
"EARLY RETIREMENT AGE" MEANS THE DATE THAT THE EXECUTIVE HAS
ATTAINED AGE 55 AND COMPLETED SEVEN YEARS OF SERVICE.
"EARLY RETIREMENT DATE" MEANS THE DATE THAT IS THE LATER OF
THE EARLY RETIREMENT AGE OR THE TERMINATION OF EMPLOYMENT, BUT IS BEFORE THE
NORMAL RETIREMENT DATE.
"EARLY TERMINATION" MEANS THE TERMINATION OF EMPLOYMENT BEFORE
EARLY RETIREMENT AGE FOR REASONS OTHER THAN (I) DEATH, (II) DISABILITY, (III) BY
THE COMPANY FOR CAUSE, (IV) BY THE COMPANY WITHOUT CAUSE DURING THE TWO YEAR
PERIOD FOLLOWING A CHANGE OF CONTROL, (V) INVOLUNTARY TERMINATION.
"EARLY TERMINATION DATE" MEANS THE MONTH, DAY AND YEAR IN
WHICH EARLY TERMINATION OCCURS.
"EFFECTIVE DATE" MEANS JULY 15, 2003.
"INVOLUNTARY TERMINATION" MEANS A TERMINATION OF EMPLOYMENT BY
THE EXECUTIVE FOLLOWING A CHANGE OF CONTROL WHICH, IN THE SOLE JUDGMENT OF THE
EXECUTIVE, IS DUE TO (I) A CHANGE OF THE EXECUTIVE'S RESPONSIBILITIES, POSITION
(INCLUDING THE EXECUTIVE'S OFFICE, TITLE, REPORTING RELATIONSHIPS OR WORKING
CONDITIONS), AUTHORITY OR DUTIES (INCLUDING CHANGES RESULTING FROM THE
ASSIGNMENT TO THE EXECUTIVE OF ANY DUTIES INCONSISTENT WITH HIS POSITIONS,
DUTIES OR RESPONSIBILITIES AS IN EFFECT IMMEDIATELY PRIOR TO THE CHANGE OF
CONTROL); OR (II) A REDUCTION IN THE EXECUTIVE'S ANNUAL BASE SALARY OR ANNUAL
BONUS OPPORTUNITY UNDER THE COMPANY'S MANAGEMENT INCENTIVE COMPENSATION PLAN, OR
ANY COMPARABLE BONUS UNDER ANY PREDECESSOR OR SUCCESSOR PLAN, INCLUDING ANY
BONUS OR PORTION THEREOF THAT HAS BEEN EARNED BUT DEFERRED, OR BENEFITS; OR
(III) A FORCED RELOCATION OF THE EXECUTIVE OUTSIDE THE GREENVILLE, SOUTH
CAROLINA METROPOLITAN AREA; OR (IV) A SIGNIFICANT INCREASE IN THE EXECUTIVE'
TRAVEL REQUIREMENTS (COLLECTIVELY "STATUS CHANGES"); PROVIDED, HOWEVER,
EXECUTIVE MUST ELECT TO TERMINATE EXECUTIVE'S EMPLOYMENT WITHIN TWO (2) YEARS OF
THE STATUS CHANGE ON WHICH EXECUTIVE BASES EXECUTIVE'S EMPLOYMENT TERMINATION.
"NORMAL RETIREMENT AGE" MEANS EXECUTIVE'S 65TH BIRTHDAY.
"NORMAL RETIREMENT DATE" MEANS THE LATER OF THE NORMAL
RETIREMENT AGE OR TERMINATION OF EMPLOYMENT.
"RATE" MEANS THE MOODY'S AA CORPORATE BOND RATE AS REPORTED BY
THE SOCIETY OF ACTUARIES AS OF THE EFFECTIVE DATE AND UPDATED ON EACH DECEMBER
31ST THEREAFTER.
"TERMINATION OF EMPLOYMENT" MEANS THE TERMINATION OF THE
EXECUTIVE'S EMPLOYMENT WITH THE COMPANY AND ANY OF ITS SUBSIDIARIES OR
AFFILIATES. IF THE EXECUTIVE IS EMPLOYED BY A SUBSIDIARY OR AN AFFILIATE, THE
EXECUTIVE SHALL ALSO BE DEEMED TO INCUR A TERMINATION OF EMPLOYMENT IF THE
SUBSIDIARY OR AFFILIATE CEASES TO BE SUCH A SUBSIDIARY OR AN AFFILIATE, AS THE
CASE MAY BE, AND THE EXECUTIVE DOES NOT IMMEDIATELY THEREAFTER BECOME AN
EMPLOYEE OF THE COMPANY OR ANOTHER SUBSIDIARY OR AFFILIATE. TEMPORARY ABSENCES
FROM EMPLOYMENT BECAUSE OF ILLNESS, VACATION OR LEAVE OF ABSENCE AND TRANSFERS
AMONG THE COMPANY AND ITS SUBSIDIARIES AND AFFILIATES SHALL NOT BE CONSIDERED
TERMINATIONS OF EMPLOYMENT.
"VESTING PERCENTAGE" IS THE PERCENTAGE OF THE ACCRUAL BALANCE
IN WHICH THE EXECUTIVE IS VESTED AS DETERMINED IN ACCORDANCE WITH SCHEDULE A.
"VESTING START DATE" SHALL BE DECEMBER 1, 1998.
"YEAR OF SERVICE" MEANS A TWELVE-MONTH CONTINUOUS PERIOD OF
EMPLOYMENT OR A PORTION OF SUCH PERIOD, INCLUDING PERIODS OF AUTHORIZED
VACATION, AUTHORIZED LEAVE OF ABSENCE AND SHORT-TERM DISABILITY LEAVE, WITH THE
COMPANY OR ANY OF ITS AFFILIATE OR THEIR PREDECESSORS OR SUCCESSORS ROUNDED UP
TO THE NEAREST WHOLE NUMBER COMMENCING ON THE VESTING START DATE.
Lifetime Benefits
NORMAL RETIREMENT BENEFIT. UPON TERMINATION OF EMPLOYMENT (I)
ON OR AFTER THE NORMAL RETIREMENT AGE FOR REASONS OTHER THAN DEATH, OR (II) UPON
TERMINATION OF EMPLOYMENT WITHOUT CAUSE WITHIN TWO YEARS FOLLOWING A CHANGE OF
CONTROL OR (III) UPON EXECUTIVE'S INVOLUNTARY TERMINATION, THE COMPANY SHALL PAY
TO THE EXECUTIVE THE BENEFIT DESCRIBED IN THIS SECTION 2.1 IN LIEU OF ANY OTHER
BENEFIT UNDER THIS AGREEMENT.
Amount of Benefit. The annual benefit under this
Section 2.1 is an amount equal to Forty percent (40.0%) of the Benefit
Basis, provided that in the event that the Executive has completed five
Years of Service, the annual benefit under this Section 2.1 is an
amount equal to Sixty percent (60.0%) of the Benefit Basis.
Payment of Benefit. The Company shall pay the annual
benefit to the Executive in 12 equal monthly installments payable on
the first day of each month commencing with the month following the
Executive's Normal Retirement Date or, if earlier, upon Termination of
Employment without Cause within two years following a Change of Control
or upon Executive's Involuntary Termination, as the case may be. The
annual benefit shall be paid to the Executive (a) for 180 months or (b)
at the Executive's election on the Election Form attached as Exhibit A
during the calendar year immediately preceding the year in which the
Termination of Employment occurs, in a lump sum payment within 30 days
following the Executive's Normal Retirement Date or, if earlier, upon
Termination of Employment without Cause within two years following a
Change of Control or upon Executive's Involuntary Termination, as the
case may be, equal to the present value of the aggregate annual
benefits that would have been payable to the Executive under clause (a)
of this Section 2.1.2, assuming a discount rate equal to the Rate.
Benefit Increases. Commencing on the first
anniversary of the first benefit payment, and continuing on each
subsequent anniversary, the Company's Board of Directors, in its sole
discretion, may increase the benefit.
EARLY RETIREMENT BENEFIT. UPON TERMINATION OF EMPLOYMENT ON OR
AFTER EARLY RETIREMENT AGE BUT BEFORE NORMAL RETIREMENT AGE FOR REASONS OTHER
THAN (I) DEATH, (II) DISABILITY, (III) BY THE COMPANY WITHOUT CAUSE WITHIN TWO
YEARS FOLLOWING A CHANGE OF CONTROL OR (IV) UPON EXECUTIVE'S INVOLUNTARY
TERMINATION, THE COMPANY SHALL PAY TO THE EXECUTIVE THE BENEFIT DESCRIBED IN
THIS SECTION 2.2 IN LIEU OF ANY OTHER BENEFITS UNDER THIS AGREEMENT.
Amount of Benefit. The annual benefit under this
Section 2.2 is an amount equal to the greater of (i) the product of (A)
the sum of Thirty percent (30.0%) and (y) Three percent (3.0%) for each
Year of Service completed by the Executive after the Early Retirement
Age and (B) the Benefit Basis or (ii) the benefit under Section 2.3;
provided that in no event shall the amount payable under this Section
2.2.1 be greater than the benefit set forth in Section 2.1.1.
Payment of Benefit. The Company shall pay the annual
benefit to the Executive in 12 equal monthly installments payable on
the first day of each month commencing with the month following the
Normal Retirement Age. The annual benefit shall be paid to the
Executive (a) for 180 months or (b) at the Executive's election on the
Election Form attached as Exhibit A during the calendar year
immediately preceding the year in which the Termination of Employment
occurs, in a lump sum payment within 30 days following the Executive's
Termination of Employment on or after Early Retirement Age but before
Normal Retirement Age for reasons other than (i) death, (ii)
Disability, (iii) by the Company without Cause within two years
following a Change of Control or (iv) upon Executive's Involuntary
Termination, as the case may be, equal to the present value of the
aggregate annual benefits that would have been payable to the Executive
under clause (a) of this Section 2.2.2, assuming a discount rate equal
to the Rate.
Benefit Increases. Benefit payments may be increased
as provided in Section 2.1.3.
EARLY TERMINATION BENEFIT. UPON EARLY TERMINATION, THE COMPANY
SHALL PAY TO THE EXECUTIVE THE BENEFIT DESCRIBED IN THIS SECTION 2.3 IN LIEU OF
ANY OTHER BENEFIT UNDER THIS AGREEMENT.
Amount of Benefit. The benefit under this Section 2.3
is the Early Termination Annual Benefit set forth in Schedule A for the
year ending immediately prior to the Early Termination Date.
Payment of Benefit. The Company shall pay the annual
benefit to the Executive in 12 equal monthly installments payable on
the first day of each month commencing with the month following the
Normal Retirement Age. The annual benefit shall be paid to the
Executive for 180 months.
Benefit Increases. Benefit payments may be increased
as provided in Section 2.1.3.
DISABILITY BENEFIT. IF THE EXECUTIVE TERMINATES EMPLOYMENT DUE
TO DISABILITY PRIOR TO NORMAL RETIREMENT AGE, THE COMPANY SHALL PAY TO THE
EXECUTIVE THE BENEFIT DESCRIBED IN THIS SECTION 2.4 IN LIEU OF ANY OTHER BENEFIT
UNDER THIS AGREEMENT.
Amount of Benefit. If the Executive terminates
employment due to Disability prior to Normal Retirement Age, but after
Early Retirement Age, the benefit under this Section 2.4 shall be the
annual benefit set forth in Section 2.2.1. If the Executive terminates
employment due to Disability prior to Early Retirement Age, the benefit
under this Section 2.4 is the Disability Annual Benefit set forth in
Schedule A for the year ending immediately prior to the Early
Termination Date.
Payment of Benefit. The Company shall pay the annual
benefit amount to the Executive in 12 equal monthly installments
payable on the first day of each month commencing with the month
following the Termination of Employment. The annual benefit shall be
paid to the Executive for 180 months.
Benefit Increases. Benefit payments may be increased
as provided in Section 2.1.3.
Death Benefits
DEATH DURING ACTIVE SERVICE. IF THE EXECUTIVE DIES WHILE IN
THE ACTIVE SERVICE OF THE COMPANY, THE COMPANY SHALL PAY TO THE EXECUTIVE'S
BENEFICIARY THE BENEFIT DESCRIBED IN THIS SECTION 3.1. THIS BENEFIT SHALL BE
PAID IN LIEU OF THE LIFETIME BENEFITS OF ARTICLE 2.
Amount of Benefit. The annual benefit under this
Section 3.1 is equal to the Disability Annual Benefit described in
Section 2.4.1.
Payment of Benefit. The Company shall pay the annual
benefit to the Executive's beneficiary in 12 equal monthly installments
payable on the first day of each month commencing with the month
following the Executive's death. The annual benefit shall be paid to
the Executive's beneficiary for 180 months.
DEATH DURING BENEFIT PERIOD. IF THE EXECUTIVE DIES AFTER THE
BENEFIT PAYMENTS HAVE COMMENCED UNDER THIS AGREEMENT BUT BEFORE RECEIVING ALL
SUCH PAYMENTS, THE COMPANY SHALL PAY THE REMAINING BENEFITS TO THE EXECUTIVE'S
BENEFICIARY AT THE SAME TIME AND IN THE SAME AMOUNTS THEY WOULD HAVE BEEN PAID
TO THE EXECUTIVE HAD THE EXECUTIVE SURVIVED.
DEATH AFTER TERMINATION OF EMPLOYMENT BUT BEFORE BENEFIT
PAYMENTS COMMENCE. IF THE EXECUTIVE IS ENTITLED TO BENEFIT PAYMENTS UNDER THIS
AGREEMENT, BUT DIES PRIOR TO THE COMMENCEMENT OF SAID BENEFIT PAYMENTS, THE
COMPANY SHALL PAY TO THE EXECUTIVE'S BENEFICIARY THE BENEFIT PAYMENTS THAT THE
EXECUTIVE WAS ENTITLED TO PRIOR TO DEATH EXCEPT THAT THE BENEFIT PAYMENTS SHALL
COMMENCE ON THE FIRST DAY OF THE MONTH FOLLOWING THE DATE OF THE EXECUTIVE'S
DEATH.
Beneficiaries
BENEFICIARY DESIGNATIONS. THE EXECUTIVE SHALL DESIGNATE A
BENEFICIARY BY FILING A WRITTEN DESIGNATION WITH THE COMPANY. THE EXECUTIVE MAY
REVOKE OR MODIFY THE DESIGNATION AT ANY TIME BY FILING A NEW DESIGNATION.
HOWEVER, DESIGNATIONS WILL ONLY BE EFFECTIVE IF SIGNED BY THE EXECUTIVE AND
ACCEPTED BY THE COMPANY DURING THE EXECUTIVE'S LIFETIME. THE EXECUTIVE'S
BENEFICIARY DESIGNATION SHALL BE DEEMED AUTOMATICALLY REVOKED IF THE BENEFICIARY
PREDECEASES THE EXECUTIVE, OR IF THE EXECUTIVE NAMES A SPOUSE AS BENEFICIARY AND
THE MARRIAGE IS SUBSEQUENTLY DISSOLVED. IF THE EXECUTIVE DIES WITHOUT A VALID
BENEFICIARY DESIGNATION, ALL PAYMENTS SHALL BE MADE TO THE EXECUTIVE'S ESTATE.
FACILITY OF PAYMENT. IF A BENEFIT IS PAYABLE TO A MINOR, TO A
PERSON DECLARED INCAPACITATED, OR TO A PERSON INCAPABLE OF HANDLING THE
DISPOSITION OF HIS OR HER PROPERTY, THE COMPANY MAY PAY SUCH BENEFIT TO THE
GUARDIAN, LEGAL REPRESENTATIVE OR PERSON HAVING THE CARE OR CUSTODY OF SUCH
MINOR, INCAPACITATED PERSON OR INCAPABLE PERSON. THE COMPANY MAY REQUIRE PROOF
OF INCAPACITY, MINORITY OR GUARDIANSHIP AS IT MAY DEEM APPROPRIATE PRIOR TO
DISTRIBUTION OF THE BENEFIT. SUCH DISTRIBUTION SHALL COMPLETELY DISCHARGE THE
COMPANY FROM ALL LIABILITY WITH RESPECT TO SUCH BENEFIT.
General Limitations
TERMINATION FOR CAUSE. NOTWITHSTANDING ANY PROVISION OF THIS
AGREEMENT TO THE CONTRARY, THE COMPANY SHALL NOT PAY ANY BENEFIT UNDER THIS
AGREEMENT IF THE COMPANY TERMINATES THE EXECUTIVE'S EMPLOYMENT FOR CAUSE.
SUICIDE OR MISSTATEMENT. THE COMPANY SHALL NOT PAY ANY BENEFIT
UNDER THIS AGREEMENT IF THE EXECUTIVE COMMITS SUICIDE WITHIN TWO YEARS AFTER THE
DATE OF THIS AGREEMENT.
Claims and Review Procedures
CLAIMS PROCEDURE. THE COMPANY SHALL NOTIFY ANY PERSON OR
ENTITY THAT MAKES A CLAIM AGAINST THE AGREEMENT (THE "CLAIMANT") IN WRITING,
WITHIN 90 DAYS OF CLAIMANT'S WRITTEN APPLICATION FOR BENEFITS, OF HIS OR HER
ELIGIBILITY OR NONELIGIBILITY FOR BENEFITS UNDER THE AGREEMENT. IF THE COMPANY
DETERMINES THAT THE CLAIMANT IS NOT ELIGIBLE FOR BENEFITS OR FULL BENEFITS, THE
NOTICE SHALL SET FORTH (1) THE SPECIFIC REASONS FOR SUCH DENIAL, (2) A SPECIFIC
REFERENCE TO THE PROVISIONS OF THE AGREEMENT ON WHICH THE DENIAL IS BASED, (3) A
DESCRIPTION OF ANY ADDITIONAL INFORMATION OR MATERIAL NECESSARY FOR THE CLAIMANT
TO PERFECT HIS OR HER CLAIM, AND A DESCRIPTION OF WHY IT IS NEEDED, AND (4) AN
EXPLANATION OF THE AGREEMENT'S CLAIMS REVIEW PROCEDURE AND OTHER APPROPRIATE
INFORMATION AS TO THE STEPS TO BE TAKEN IF THE CLAIMANT WISHES TO HAVE THE CLAIM
REVIEWED. IF THE COMPANY DETERMINES THAT THERE ARE SPECIAL CIRCUMSTANCES
REQUIRING ADDITIONAL TIME TO MAKE A DECISION, THE COMPANY SHALL NOTIFY THE
CLAIMANT OF THE SPECIAL CIRCUMSTANCES AND THE DATE BY WHICH A DECISION IS
EXPECTED TO BE MADE, AND MAY EXTEND THE TIME FOR UP TO AN ADDITIONAL 90 DAYS.
REVIEW PROCEDURE. IF THE CLAIMANT IS DETERMINED BY THE COMPANY
NOT TO BE ELIGIBLE FOR BENEFITS, OR IF THE CLAIMANT BELIEVES THAT HE OR SHE IS
ENTITLED TO GREATER OR DIFFERENT BENEFITS, THE CLAIMANT SHALL HAVE THE
OPPORTUNITY TO HAVE SUCH CLAIM REVIEWED BY THE COMPANY BY FILING A PETITION FOR
REVIEW WITH THE COMPANY WITHIN 60 DAYS AFTER RECEIPT OF THE NOTICE ISSUED BY THE
COMPANY. SAID PETITION SHALL STATE THE SPECIFIC REASONS WHICH THE CLAIMANT
BELIEVES ENTITLE HIM OR HER TO BENEFITS OR TO GREATER OR DIFFERENT BENEFITS.
WITHIN 60 DAYS AFTER RECEIPT BY THE COMPANY OF THE PETITION, THE COMPANY SHALL
AFFORD THE CLAIMANT (AND COUNSEL, IF ANY) AN OPPORTUNITY TO PRESENT HIS OR HER
POSITION TO THE COMPANY VERBALLY OR IN WRITING, AND THE CLAIMANT (OR COUNSEL)
SHALL HAVE THE RIGHT TO REVIEW THE PERTINENT DOCUMENTS. THE COMPANY SHALL NOTIFY
THE CLAIMANT OF ITS DECISION IN WRITING WITHIN THE 60-DAY PERIOD, STATING
SPECIFICALLY THE BASIS OF ITS DECISION, WRITTEN IN A MANNER CALCULATED TO BE
UNDERSTOOD BY THE CLAIMANT AND THE SPECIFIC PROVISIONS OF THE AGREEMENT ON WHICH
THE DECISION IS BASED. IF, BECAUSE OF THE NEED FOR A HEARING, THE 60-DAY PERIOD
IS NOT SUFFICIENT, THE DECISION MAY BE DEFERRED FOR UP TO ANOTHER 60 DAYS AT THE
ELECTION OF THE COMPANY, BUT NOTICE OF THIS DEFERRAL SHALL BE GIVEN TO THE
CLAIMANT.
Amendments and Termination
This Agreement may not be amended or modified other than by a written agreement
executed by the parties hereto or their respective successors and legal
representatives.
Miscellaneous
BINDING EFFECT. THIS AGREEMENT SHALL BIND THE EXECUTIVE AND
THE COMPANY, AND THEIR BENEFICIARIES, SURVIVORS, EXECUTORS, SUCCESSORS,
ADMINISTRATORS AND TRANSFEREES.
NO GUARANTEE OF EMPLOYMENT. THIS AGREEMENT IS NOT AN
EMPLOYMENT POLICY OR CONTRACT. IT DOES NOT GIVE THE EXECUTIVE THE RIGHT TO
REMAIN AN EMPLOYEE OF THE COMPANY, NOR DOES IT INTERFERE WITH THE COMPANY'S
RIGHT TO DISCHARGE THE EXECUTIVE. IT ALSO DOES NOT REQUIRE THE EXECUTIVE TO
REMAIN AN EMPLOYEE NOR INTERFERE WITH THE EXECUTIVE'S RIGHT TO TERMINATE
EMPLOYMENT AT ANY TIME.
NON-TRANSFERABILITY. BENEFITS UNDER THIS AGREEMENT CANNOT BE
SOLD, TRANSFERRED, ASSIGNED, PLEDGED, ATTACHED OR ENCUMBERED IN ANY MANNER.
SUCCESSORS. THIS AGREEMENT IS PERSONAL TO THE EXECUTIVE, AND,
WITHOUT THE PRIOR WRITTEN CONSENT OF THE COMPANY, SHALL NOT BE ASSIGNABLE BY THE
EXECUTIVE OTHER THAN BY WILL OR THE LAWS OF DESCENT AND DISTRIBUTION. THIS
AGREEMENT SHALL INURE TO THE BENEFIT OF AND BE ENFORCEABLE BY THE EXECUTIVE'S
LEGAL REPRESENTATIVES. THIS AGREEMENT SHALL INURE TO THE BENEFIT OF AND BE
BINDING UPON THE COMPANY AND ITS SUCCESSORS AND ASSIGNS. SUBJECT TO THE
FOLLOWING SENTENCES OF THIS SECTION 8.4, THIS AGREEMENT SHALL NOT BE ASSIGNABLE
BY THE COMPANY WITHOUT THE PRIOR WRITTEN CONSENT OF THE EXECUTIVE. THE COMPANY
WILL REQUIRE ANY SUCCESSOR (WHETHER DIRECT OR INDIRECT, BY PURCHASE, MERGER,
CONSOLIDATION OR OTHERWISE) TO ALL OR SUBSTANTIALLY ALL OF THE BUSINESS AND/OR
ASSETS OF THE COMPANY TO ASSUME EXPRESSLY AND AGREE TO PERFORM THIS AGREEMENT IN
THE SAME MANNER AND TO THE SAME EXTENT THAT THE COMPANY WOULD BE REQUIRED TO
PERFORM IT IF NO SUCH SUCCESSION HAD TAKEN PLACE. "COMPANY" MEANS THE COMPANY AS
HEREINBEFORE DEFINED AND ANY SUCCESSOR TO ITS BUSINESS AND/OR ASSETS AS
AFORESAID THAT ASSUMES AND AGREES TO PERFORM THIS AGREEMENT BY OPERATION OF LAW
OR OTHERWISE.
TAX WITHHOLDING. THE COMPANY SHALL WITHHOLD ANY TAXES THAT ARE
REQUIRED TO BE WITHHELD FROM THE BENEFITS PROVIDED UNDER THIS AGREEMENT.
APPLICABLE LAW. THE AGREEMENT AND ALL RIGHTS HEREUNDER SHALL
BE GOVERNED BY THE LAWS OF THE STATE OF SOUTH CAROLINA, WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAWS.
UNFUNDED ARRANGEMENT. THE EXECUTIVE AND BENEFICIARY ARE
GENERAL UNSECURED CREDITORS OF THE COMPANY FOR THE PAYMENT OF BENEFITS UNDER
THIS AGREEMENT. THE BENEFITS REPRESENT THE MERE PROMISE BY THE COMPANY TO PAY
SUCH BENEFITS. THE RIGHTS TO BENEFITS ARE NOT SUBJECT IN ANY MANNER TO
ANTICIPATION, ALIENATION, SALE, TRANSFER, ASSIGNMENT, PLEDGE, ENCUMBRANCE,
ATTACHMENT, OR GARNISHMENT BY CREDITORS.
ENTIRE AGREEMENT. THIS AGREEMENT CONSTITUTES THE ENTIRE
AGREEMENT BETWEEN THE COMPANY AND THE EXECUTIVE AS TO THE SUBJECT MATTER HEREOF.
NO RIGHTS ARE GRANTED TO THE EXECUTIVE BY VIRTUE OF THIS AGREEMENT OTHER THAN
THOSE SPECIFICALLY SET FORTH HEREIN. FROM AND AFTER THE EFFECTIVE DATE, THIS
AGREEMENT SHALL SUPERSEDE ANY OTHER AGREEMENT BETWEEN THE PARTIES WITH RESPECT
TO THE SUBJECT MATTER HEREOF INCLUDING WITHOUT LIMITATION THE SUPPLEMENTAL
EXECUTIVE BENEFIT AGREEMENT BETWEEN THE EXECUTIVE AND THE COMPANY DATED AS OF
DECEMBER 1, 2000 (THE "PRIOR AGREEMENT").
ADMINISTRATION AND RECORDKEEPING AUTHORITY. EXCEPT AS
OTHERWISE SPECIFICALLY PROVIDED HEREIN, THE COMPANY SHALL HAVE THE SOLE
RESPONSIBILITY FOR AND THE SOLE CONTROL OF THE OPERATION, ADMINISTRATION, AND
RECORDKEEPING OF THIS AGREEMENT AND SHALL HAVE THE POWER AND AUTHORITY TO TAKE
ALL ACTION AND TO MAKE ALL DECISIONS AND INTERPRETATIONS THAT MAY BE NECESSARY
OR APPROPRIATE IN ORDER TO ADMINISTER AND OPERATE THE AGREEMENT, INCLUDING,
WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, THE POWER, DUTY, AND
RESPONSIBILITY TO:
RESOLVE AND DETERMINE ALL DISPUTES OR QUESTIONS
ARISING UNDER THE AGREEMENT, INCLUDING THE POWER TO
DETERMINE THE RIGHTS OF THE PARTICIPANT AND
BENEFICIARIES AND THEIR RESPECTIVE BENEFITS, AND TO
REMEDY ANY AMBIGUITIES, INCONSISTENCIES, OR OMISSIONS
IN THE AGREEMENT;
ADOPT SUCH RULES OF PROCEDURE AND REGULATIONS AS IN
ITS OPINION MAY BE NECESSARY FOR THE PROPER AND
EFFICIENT ADMINISTRATION OF THE AGREEMENT AND AS ARE
CONSISTENT WITH THE AGREEMENT;
IMPLEMENT THE AGREEMENT IN ACCORDANCE WITH ITS TERMS;
ESTABLISH AND REVISE THE METHOD OF ACCOUNTING FOR THE
AGREEMENT; AND
MAINTAIN A RECORD OF BENEFIT PAYMENTS.
NAMED FIDUCIARY. THE COMPANY SHALL BE THE NAMED FIDUCIARY AND
PLAN ADMINISTRATOR UNDER THE AGREEMENT. THE NAMED FIDUCIARY MAY DELEGATE TO
OTHERS CERTAIN ASPECTS OF THE MANAGEMENT AND OPERATION RESPONSIBILITIES OF THE
PLAN INCLUDING THE EMPLOYMENT OF ADVISORS AND THE DELEGATION OF MINISTERIAL
DUTIES TO QUALIFIED INDIVIDUALS.
CAPTIONS. THE CAPTIONS OF THIS AGREEMENT ARE NOT PART OF THE
PROVISIONS HEREOF AND SHALL HAVE NO FORCE OR EFFECT.
SEVERABILITY. THE INVALIDITY OR UNENFORCEABILITY OF ANY
PROVISION OF THIS AGREEMENT SHALL NOT AFFECT THE VALIDITY OR ENFORCEABILITY OF
ANY OTHER PROVISION OF THIS AGREEMENT.
IN WITNESS WHEREOF, the Executive and a duly authorized Company officer have
signed this Agreement.
EXECUTIVE: COMPANY:
THE SOUTH FINANCIAL GROUP, INC.
/s/ John DuBose By: /s/ Mary A. Jeffrey
- -------------------------- ------------------------------
JOHN DUBOSE MARY A. JEFFREY
Title: Executive Vice President
Director - Human Resources
BENEFICIARY DESIGNATION
THE SOUTH FINANCIAL GROUP
SUPPLEMENTAL EXECUTIVE RETIREMENT AGREEMENT
JOHN DUBOSE
I designate the following as beneficiary of any death benefits under this
Supplemental Executive Retirement Agreement:
Primary:
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Contingent:
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NOTE: TO NAME A TRUST AS BENEFICIARY, PLEASE PROVIDE THE NAME OF THE TRUSTEE(S)
AND THE EXACT NAME AND DATE OF THE TRUST AGREEMENT.
I understand that I may change these beneficiary designations by filing a new
written designation with the Company. I further understand that the designations
will be automatically revoked if the beneficiary predeceases me, or, if I have
named my spouse as beneficiary and our marriage is subsequently dissolved.
Signature:
------------------------------------------
Date:
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Accepted by the Company this ____ day of ____________, 2003.
By:
------------------------------------------
Title:
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SCHEDULE A CALCULATIONS
THE SOUTH FINANCIAL GROUP
SUPPLEMENTAL EXECUTIVE RETIREMENT AGREEMENT
TO DETERMINE THE EXECUTIVE'S EARLY TERMINATION BENEFIT OR DISABILITY RETIREMENT
BENEFIT FOR THE YEAR OF THE TERMINATION OF EMPLOYMENT, THE FOLLOWING
CALCULATIONS SHALL BE MADE:
29. Project the Benefit Basis as of Normal Retirement Age by increasing
the Benefit Basis as of the Executive's date of Termination of
Employment by 5% per year, compounded annually, until Normal
Retirement Age (the "Projected Retirement Benefit Basis").
30. Multiply the Projected Retirement Benefit Basis by the applicable
percentage set forth in 2.1.1 (the product, "Annual Projected
Retirement Benefit").
31. Calculate the discounted value at Normal Retirement Age of the
aggregate Annual Projected Retirement Benefit that would have been
paid to the Executive in equal monthly installments over the 180-month
period immediately following the Normal Retirement Date, by using the
Rate, compounded monthly (such discounted value, the "Lump Sum
Projected Retirement Benefit").
32. Calculate the aggregate amount that has accrued through the end of the
year ending immediately prior to the date of the Executive's
Termination of Employment (including the amount of the Executive's
Accrual Balance under the Prior Agreement as of the Effective Date as
set forth on Schedule B) by accruing each month from the Effective
Date through Normal Retirement Age, with interest on such amounts
calculated monthly at the Rate, in order to accumulate to the Lump Sum
Projected Retirement Benefit as of the Normal Retirement Date (the
"Accrual Balance").
IN THE CASE OF EARLY TERMINATION BENEFIT:
33. Multiply the Accrual Balance by 10% per Year of Service, subject to a
maximum of 100% (the "Vested Accrual Balance").
34. Increase the Vested Accrual Balance by the Rate, compounded monthly,
to the Normal Retirement Age (the "Inflated Vested Accrual Balance").
35. Calculate a fixed annuity which is payable in 180 equal monthly
installments, crediting interest on the unpaid balance of the Inflated
Vested Accrual Balance at the Rate, compounded monthly.
IN THE CASE OF DISABILITY RETIREMENT BENEFIT:
5. The Disability Annual Benefit amount is determined by calculating a
fixed annuity which is payable in 180 equal monthly installments,
crediting interest on the unpaid balance of the Accrual Balance at the
Rate, compounded monthly.
SCHEDULE B CALCULATIONS
THE SOUTH FINANCIAL GROUP
SUPPLEMENTAL EXECUTIVE RETIREMENT AGREEMENT
JOHN DUBOSE
Accrual Balance under Prior Agreement as of June 30, 2003: $104,565