As amended and restated
October 30, 2008, effective
as of January 1, 2005
(Subject to the transition
rules of Section 409A
DEFERRED COMPENSATION PLAN
FOR
NON-EMPLOYEE DIRECTORS
ARTICLE I
DEFERRAL OF COMPENSATION
1.1 PURPOSE
AND ELIGIBILITY. This
deferred compensation plan (this “Plan”) for persons
serving as members of the Board of Directors (the
“Board”) of EMS Technologies, Inc. (the
“Company”) who are not employed by the Company
(“Non-Employee Directors”) is adopted in order to allow
each Non-Employee Director to (i) automatically defer a
portion of his or her annual retainer for service on the Board (the
“Retainer”) as set forth in Section 1.2 below, and
(ii) defer the receipt of all or part of the balance of his or
her Retainer and of his or her other compensation for service as a
member of the Board or committees thereof (collectively,
“Eligible Compensation”) as set forth in
Section 1.3 below, all subject to and in compliance with the
requirements of Section 409A of the Internal Revenue Code of 1986,
as amended, and the regulations and rulings thereunder, including
any transition rules (“Section 409A”).
1.2
AUTOMATIC DEFERRAL. Each
Non-Employee Director will have a portion of his or her Retainer
then in effect automatically deferred and credited to his or her
Deferral Account as set forth in Sections 2.1 and 2.2 below.
The portion of the Retainer subject to such automatic deferral
shall be determined from time to time, prior to the beginning of
the calendar year, by the Governance Committee of the Board (the
“Committee”), but shall be not less than 40%. Subject
to the provisions of Article III, all amounts deferred under
this Section shall be payable within 30 days after the date on
which the participant ceases to be a member of the
Board.
1.3
IRREVOCABLE ELECTION FOR ADDITIONAL DEFERRAL
A. Except as
provided in paragraph 1.3(B), prior to the first day of each
calendar year, each Non-Employee Director shall be entitled to make
an irrevocable election on a form provided by the Company to
receive Eligible Compensation payable during such year in cash or
to defer payment of all or any portion thereof into his or her
Deferral Account.
Subject
to the provisions of Article III, all amounts deferred under
this Section with respect to a calendar year shall be payable on
the earlier of a date: (i) within 30 days after the
participant ceases to be a member of the Board; or (ii) within
the first 30 days of the fifth year following the year of
deferral, subject to the right of the participant to elect to defer
payment of all or a portion of the amount then payable in
accordance with Article III.
B. Each
person who becomes a Non-Employee Director during a calendar year
shall, within 30 days after the date of becoming a Non-Employee
Director, be entitled to make the irrevocable election described in
paragraph 1.3(A) for the remainder of such calendar year, which
election shall be effective only as to Eligible Compensation earned
after the date thereof.
C. Failure to
file an election for any year as specified in paragraphs 1.3(A) and
(B) shall be deemed to be an election to receive in cash all
Eligible Compensation for such year.
Page 1 of 5
ARTICLE II
DEFERRAL ACCOUNT; DEFERRED STOCK UNITS
2.1 DEFERRAL
ACCOUNT. Amounts deferred
under this Plan shall be credited to a notional bookkeeping account
(a “Deferral Account”) established for each
participant. For certain recordkeeping purposes, a
participant’s Deferral Account shall be divided into two
subaccounts, an Automatic Deferral Subaccount and an Elective
Deferral Subaccount.
2.2 DEFERRED
STOCK UNITS. Amounts
credited to each participant’s Deferral Account will be
deemed to be invested in the form of deferred stock units
(“DSU’s”) representing shares of the
Company’s $1.00 par value common stock (“EMS
Shares”). DSU’s are not actual EMS Shares, and cannot
be settled in or surrendered for EMS Shares. Instead, they are
bookkeeping units that will be administered by the Company to
provide a return on each Deferral Account equal to the return that
would occur if the amounts credited to the Deferral Account were
used to purchase EMS Shares on the dates so credited, including the
effects of immediate reinvestment of any cash dividends paid from
time to time on the EMS Shares. Holders of DSU’s have no
voting rights or any attributes of stock ownership other than such
equivalent economic return. The number of DSU’s received upon
each deferral shall be equal to the amount thereof divided by the
Fair Market Value (as then defined in the Company’s 2007
Stock Incentive Plan or any similar successor plan) of the EMS
Shares on the date of the deferral.
2.3
RECAPITALIZATION. If, as
a result of a recapitalization of the Company (including stock
splits), the EMS Shares shall be changed into a greater or smaller
number of shares, the number of DSU’s credited to each
Deferral Account shall be appropriately adjusted on the same basis
as such recapitalization. If the Company shall make a distribution
in kind on the EMS Shares, or the EMS Shares shall as a result of a
merger, recapitalization or similar transaction be converted into
different property or shares, each DSU shall thereafter be deemed
to include or consist of the property or shares so distributed with
respect to each EMS Share, or into which each EMS Share was so
converted. The provisions of this Section shall apply to successive
transactions of the type specified herein that may affect the value
of the property deemed from time to time to be included in the
DSU’s.
ARTICLE III
PAYMENT OF DEFERRED COMPENSATION
3.1 METHOD
OF PAYMENT OF DEFERRED COMPENSATION. The amounts deferred by the participant under
Sections 1.2 or 1.3 above shall be payable in accordance with
this Article III. Subject to Sections 3.3, 3.4 and 3.5
below and to Section 4.1, the participant’s Deferral
Account shall be payable as follows:
A.
Automatic Deferral Subaccount . The participant’s
Automatic Deferral Subaccount shall be payable on (or commencing
on) a date within 30 days of the date the participant
separates from service as a member of the Board. The payment shall
be made in a lump sum, provided that the participant may elect
prior to commencement of a calendar year with respect to the
deferrals for such calendar year (or in accordance with the
transition rules of Sectio
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