Exhibit 10.6
AGREEMENT
THIS AGREEMENT, effective as of this
day of
, 200___, by and between EMS TECHNOLOGIES, INC., a Georgia
corporation (the “Company”), and
(the “Executive”).
W I T N E S S
E T H :
WHEREAS, the Company wishes to assure
both itself and its key employees of continuity of management and
objective judgment in the event of any Change in Control (as
defined below) of the Company and to provide certain other
benefits, and the Executive is a key employee of the Company and an
integral part of its management;
NOW, THEREFORE, for and in
consideration of the premises and the mutual covenants herein
contained, the parties hereby agree as follows:
I. TERM OF AGREEMENT
.
This Agreement shall be effective
immediately upon its execution by the parties hereto. The term of
this Agreement shall be for a rolling, three-year term commencing
on the date hereof, and shall be deemed automatically (without
further action by either the Company or the Executive) to extend
each day for an additional day such that the remaining term of the
Agreement shall continue to be three years.
II. DEFINITIONS .
1. Board — The
Board of Directors of the Company, or its successor.
2. Cause — The
term “Cause” as used herein shall mean: (i) any
act that constitutes, on the part of the Executive, (a) fraud,
dishonesty, gross negligence, or willful misconduct and
(b) that directly results in material injury to the Company,
or (ii) the Executive’s conviction of a felony or crime
involving moral turpitude. A termination of the Executive for
“Cause” based on clause (i) of the preceding
sentence shall take effect 30 days after the Company gives
written notice of such termination to the Executive specifying the
conduct deemed to qualify as Cause, unless the Executive shall,
during such 30-day period, remedy the events or circumstances
constituting Cause to the reasonable satisfaction of the Company. A
termination for Cause based on clause (ii) above shall take
effect immediately upon giving of the termination notice.
3. Change in Control
— The term “Change in Control” as used herein
shall mean the occurrence of one of the following:
(i) the
Company consolidates or merges with or into another corporation, or
is otherwise reorganized, if the Company is not the surviving
corporation in such transaction or if after such transaction any
other corporation, association or other person, entity or group or
the shareholders thereof own, directly or indirectly,
more than 50%
of the then-outstanding shares of common stock or more than 50% of
the assets of the Company; or
(ii) more
than 35% of the then-outstanding shares of common stock of the
Company are, in a single transaction or in a series of related
transactions, sold or otherwise transferred to or are acquired by
any other corporation, association or other person, entity or
group, whether or not any such shareholder or any shareholders
included in such group were shareholders of the Company prior to
the Change in Control; or
(iii) an
election, or series of related elections, of members of the Board
of Directors shall occur such that a majority of such members
following such election(s) shall not have been nominated or
recommended for election by a majority of the members of the Board
of Directors who were serving immediately prior to such
election(s); or
(iv) the
occurrence of any other event or circumstance which is not covered
by (i) through (iii) above which the Board determines affects
control of the Company and constitutes a Change in Control for
purposes of this Agreement;
in each
such case without the approval prior to the occurrence of such
event or circumstance by the Board of Directors
4. Disability —
The term “Disability” shall mean the Executive’s
inability as a result of physical or mental incapacity to
substantially perform his duties for the Company on a full-time
basis for a period of six months.
5. Excess Severance
Payment — The term “Excess Severance Payment”
shall have the same meaning as the term “excess parachute
payment” defined in Section 280G(b) (1) of the
Code.
6. Severance Payment
— The term “Severance Payment” shall have the
same meaning as the term “parachute payment” defined in
Section 280G(b) (2) of the Code.
7. Present Value —
The term “Present Value” shall have the same meaning as
provided in Section 280G(d) (4) of the Code.
8. Reasonable
Compensation — The term “Reasonable
Compensation” shall have the same meaning as provided in
Section 280G(b) (4) of the Code.
III. BENEFITS UPON TERMINATION
.
1. Termination Upon Change
in Control — If a Change in Control occurs during the
term of this Agreement and the Executive’s employment is
terminated within 24 months thereafter, and such termination
is a result of Involuntary Termination or Voluntary Termination, as
defined below, then the benefits described in Section 2 below
shall, subject to Article IV of this Agreement, be paid or
provided to the Executive. The fact that Executive is eligible for
early, normal or delayed retirement under a Company retirement plan
at the time of his termination shall not make him ineligible to
receive benefits hereunder.
(a)
Involuntary Termination — For purposes hereof,
“Involuntary Termination” shall mean termination of
employment that is involuntary on the part of the Executive and
that occurs for reasons other than Cause, Disability or
death.
(b)
Voluntary Termination — For purposes hereof,
“Voluntary Termination” shall mean termination of
employment that is voluntary on the part of the Executive, and, in
the judgment of the Executive, is due to, and which occurs within
six months of:
(i) the
assignment to the Executive of any duties inconsistent with the
Executive’s title and status in effect prior to the Change in
Control, a material increase or decrease in the Executive’s
responsibilities at the Company from those in effect immediately
prior to the Change in Control, or an adverse alteration in the
nature or status of such responsibilities (other than any such
alteration to the extent incidental to the fact that the Company
may no longer be a public company);
(ii) a
reduction by the Company of the Executive’s base salary from
such salary in effect prior to the Change in Control;
(iii) the
relocation of the Company’s principal executive offices to a
location outside the Atlanta, Georgia metropolitan area, or the
Company’s requiring the Executive to be based anywhere other
than the Company’s principal executive offices, except for
required travel on the Company’s business to an extent
substantially consistent with the Executive’s business travel
obligations prior to the Change in Control;
(iv) the
failure by the Company, without the Executive’s consent, to
pay to the Executive any portion of the Executive’s
then-current compensation (including base salary and annual bonus),
or to pay to the Executive any portion of an installment of
deferred compensation under any deferred compensation program of
the Company, in each case within seven days of the date such
compensation is due;
(v) the
failure by the Company to continue in effect any compensation plan
in which the Executive participates immediately prior to the Change
in Control, which is material to the Executive’s total
compensation, including but not limited to the Company’s
annual bonus plan, stock option plan, or any similar or substitute
plans adopted prior to the Change in Control, unless an equitable
arrangement (embodied in an ongoing substitute or alternative plan)
has been made with respect to such plan, or the failure by the
Company to continue the Executive’s participation in such
plan (or in such substitute or alternative plan) on a basis not
materially less favorable, both in terms of the amount of benefits
provided and the level of the Executive’s participation
relative to other participants, as existed immediately prior to the
Change in Control; or
(vi) the
failure by the Company to continue to provide the Executive with
benefits substantially similar to those enjoyed by the Executive
under any of the Company’s life insurance, medical, health
and accident or d
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