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EXHIBIT 10.4
EMS TECHNOLOGIES, INC.
OFFICERS' DEFERRED COMPENSATION PLAN
ARTICLE I
INTRODUCTION AND ESTABLISHMENT
EMS Technologies, Inc. (the "Company") hereby establishes the
EMS
Technologies, Inc. Officers' Deferred
Compensation Plan (the "Plan") for the
benefit of certain management employees of
the Company. The Plan was adopted by
the Company's Board of Directors (the
"Board") on, and shall be effective as of,
November 13, 2003.
ARTICLE II
DEFINITIONS
When used in this Plan, the following terms shall have the meanings
set
forth below unless a different meaning is
plainly required by the context:
2.1 "Account"
means the records maintained by the Plan
Administrator to determine each
Participant's interest under this Plan. Such
Account may be reflected as an entry in the
Employer's records, or as a separate
account under any trust established to
provide benefits under the Plan, or as a
combination of both. The Plan Administrator
may establish additional subaccounts
as it deems necessary for the proper
administration of the Plan.
2.2
"Applicable Regulations" means any provisions of the Internal
Revenue Code or of regulations adopted
thereunder, either as in effect from time
to time, compliance with which is specified
therein as a requirement for
deferral into a subsequent tax year of
recognition as taxable income of
Compensation with respect to any Plan
Year.
2.3
"Beneficiary" means the person or persons last designated in
writing by a Participant to receive the
amount in his or her Account in the
event of such Participant's death; or if no
designation shall be in effect at
the time of a Participant's death or if all
designated Beneficiaries shall have
predeceased the Participant, then the
Beneficiary shall be such Participant's
surviving spouse, if any, and if none, the
Participant's estate.
2.4
"Compensation" with respect to any Plan Year means (i) all
salary paid during such year in accordance
with the Employer's normal payroll
practices, and (ii) all bonus and other
cash compensation earned during or in
respect of services provided during such
Year, regardless of whether paid during
or subsequent to such Year.
2.5 "Election
Form" means the form prescribed by the Plan
Administrator on which a Participant may
specify the amount of his or her
Compensation that is to be deferred
pursuant to the provisions of Article III,
and the times and form of payment pursuant
to Article IV.
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2.6 "Employer"
means the Company and each direct or indirect
wholly owned subsidiary of the Company that
is the employer of a Participant.
2.7 "Officer"
means any employee of the Company or any direct or
indirect wholly owned subsidiary of the
Company who holds a title, at either the
Company or divisional level, of vice
president or higher, controller or general
counsel.
2.8
"Participant" means any eligible Officer who has satisfied the
requirements for participation in this Plan
and who has an Account.
2.9 "Plan
Administrator" means the committee or individual
appointed pursuant to the provisions of
this Plan to administer the Plan. In the
absence of such appointment, the Company
shall be the Plan Administrator.
2.10
"Plan Year" means the calendar year.
ARTICLE III
PARTICIPATION
3.1
Eligibility to Participate. Each Officer shall be eligible to
participate in the Plan and shall become a
Participant upon completion of the
Election Form provided for in Section 3.3
below. A Participant shall continue to
be eligible to participate in the Plan for
so long as he or she shall continue
to be an Officer.
3.2 Deferral
Election. Each Participant may elect to defer under
the Plan any whole percentage of his or her
Compensation (but not less than 10 %
of the Compensation to which the election
pertains), in the manner described in
Section
3.3.
The amount deferred by the Participant shall be deducted each
pay period in which the Participant has
Compensation during his period of
participation in the Plan, but the
Participant shall nonetheless be responsible
for FICA, Medicare and other applicable
taxes required at the time to be
withheld by the Employer.
3.3 Time and
Manner of Election. An eligible Officer desiring to
become a Participant shall complete an
Election Form indicating the percentage
or dollar amount of Compensation with
respect to a Plan Year to be deferred
under the Plan. Such election may be
separately stated with respect to salary,
bonus or other forms of cash compensation.
Such election must be made prior to
the period of service for which the subject
Compensation would otherwise be
payable, but in any event prior to the
beginning of such Plan Year (or within 30
days of his or her initial eligibility to
participate).
If an Officer who is a Participant for a Plan Year fails to file
a
properly completed and duly executed
Election Form with the Plan Administrator
prior to the first day of the succeeding
Plan Year, he or she will be deemed to
have elected the same deferral
percentage(s) as in his or her most recent prior
deferral election, which shall remain in
effect for each succeeding Plan Year
until a new Election Form is properly
submitted, except to the extent the Plan
Administrator in its sole discretion
permits an extension of the election
period. Except as provided in Section 3.4,
a Participant may not, after the
applicable election date, discontinue his
or her election to participate or
change the percentage of Compensation he or
she has elected to defer for a Plan
Year.
The Participant shall designate on the Election Form (or on a
separate
form provided by the Plan Administrator) a
Beneficiary to receive payment of
amounts in his or her Account in the event
of death.
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3.4 Change of
Election. A Participant may at any time during the
Plan Year terminate an election and
discontinue future deferrals of Compensation
under this Plan by providing written notice
to the Plan Administrator prior to
the start of the next payroll period for
which Compensation will be payable,
unless such termination and discontinuance
would not be consistent with
Applicable Regulations. In such event,
Compensation earned for services
subsequent to such termination notice will
be paid directly to the Participant
and will not be subject to the prior
deferral election. A Participant who elects
to discontinue participation in the Plan
for a Plan Year may not recommence
participation in the Plan until the next
following Plan Year (or such later Plan
Year in which he or she is again eligible
to participate), provided the
Participant completes and executes the
required Election Form prior to the
beginning of the subsequent Plan Year.
Increases or decreases in the amount a
Participant elects to defer (other than a
suspension of deferrals) shall not be
permitted during the Plan Year.
ARTICLE IV
INTEREST OF PARTICIPANTS
4.1 Accounting
for Participants' Interests.
(a) Deferrals.
Each Participant's Account shall be
credited with the amounts of Compensation deferred by the
Participant under this Plan, for each pay period during which
he or she is a Participant, until such time as the Account is
fully distributed. The timing and manner in which amounts are
credited to Participants' Accounts under this Plan shall
otherwise be determined by the Employer and the Plan
Administrator in their discretion.
(b) Account
Interest. The Participant's Account shall be
credited with interest, compounded semi-annually, at the prime
rate for commercial borrowers specified by SunTrust Bank in
effect on the first day of each calendar quarter, except that
(i) a Participant may agree with respect to any particular
category of Compensation deferred under the Plan that no, or a
lesser amount of, interest shall be credited with respect
thereto, and (ii) no interest shall accrue or be payable after
the Participant ceases to be an employee of the Company or a
direct or indirect wholly owned subsidiary, unless as a result
either of retirement with the consent of the Employer or of a
disability (as determined by the Plan Administrator).
4.2 Vesting of
a Participant's Account. A Participant's interest
in the value of his or her Account shall at
all times be 100% vested and
nonforfeitable.
4.3
Distribution of a Participant's Account. A Participant's
Account shall be distributed as provided in
this Section 4.3.
(a) Date
Specified in Participant's Election. Each
Participant may, at the time of making a deferral election,
designate the date or dates on which amounts deferred as a
result of such election (together with interest earned
thereon) shall be distributed. No such distribution shall be
over a period exceeding ten years, nor commence sooner than
the calendar year immediately succeeding the Plan Year of the
deferral, and all distributions must be completed not later
than ten years following the Participant's termination of
employment. Separate dates may be specified for deferrals of
salary, bonus or other forms of cash compensation. Any such
designation may be changed on
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one occasion by submission of a revised Election Form not
later than 12 months prior the specified distribution date.
(b) Retirement
or Other Termination of Employment. In the
event the Participant retires or has an other termination of
employment, the amount credited to his or her Account shall be
paid to such Participant in a lump sum, unless the Participant
shall have designated at the time of his or her initial
enrollment, or on not more than one subsequent revised
Election Form that is submitted at least 12 months prior to
the event giving rise to payment, that payment be made in
substantially equal annual installments over a period of years
(not to exceed ten).
Payment shall be made or shall commence as soon as practical
after such retirement or other termination of employment;
provided, however, the Participant may elect to delay the
commencement of
payment until the date specified on the
Election Form (subject to the requirements of paragraph (a)
above), if such election to defer payment is made at the time
of his or her initial enrollment or thereafter on one occasion
at least 12 months prior to the date of retirement or other
termination; and provided further, however, that any
Participant designated in Applicable Regulations, based on his
or her compensation and/or ownership of the
