OFFICERS’ DEFERRED
COMPENSATION PLAN
(As Amended And Restated October 30, 2008,
Effective as of January 1, 2005)
INTRODUCTION AND
ESTABLISHMENT
EMS
Technologies, Inc. (the “Company”) hereby amends and
restates the EMS Technologies, Inc. Officers’ Deferred
Compensation Plan (the “Plan”) which benefits certain
management employees of the Company. The Plan was originally
adopted by the Company’s Board of Directors (the
“Board”) on, and was effective as of, November 13,
2003 and is amended and restated October 30, 2008, effective
as of January 1, 2005, subject to the transition rules of
Section 409A.
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 “
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.
2.3 “
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.
2.4 “
Disability ” means the Participant has been determined
to be disabled by the Plan Administrator based upon the information
provided to it and in a manner consistent with Section
409A.
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.
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.
2.11 “
Section 409A ” means Section 409A of the
Internal Revenue Code of 1986, as amended, and the regulations and
rulings thereunder, including any transition rules.
2.12 “
Unforeseeable Emergency ” means a severe financial
hardship of the Participant as defined in
Section 409A.
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 or her 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
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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), except that an election with respect to incentive
compensation payable under the Company’s Executive Annual
Incentive Compensation Plan, or its Senior Management Annual
Incentive Compensation Plan, may be made not later than
June 30 of the year to which the potential incentive
compensation pertains if: (i) such incentive compensation
qualifies as “performance-based compensation” under
Section 409A; (ii) the specified performance criteria are
not substantially certain to be met at the time of such election;
and (iii) the determination of whether any subjective
performance criteria are met is made by the Compensation Committee
or Chief Executive Officer, as applicable, and must be based on the
performance of the Participant, a group or business unit including
the Participant, or the Company.
The deferral
election or elections, as applicable, for an Officer who is a
Participant for a Plan Year shall remain in effect for each
succeeding Plan Year until a new applicable Election Form is
properly submitted. 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.
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. 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.
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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 . Subject to the
other provisions of this Section 4.3, each Participant may, at
the time of making a deferral election for the year, designate the
date or dates (which may be before termination of employment, at
termination of employment, or later) on which amounts deferred as a
result of such election for such year (together with interest
earned thereon) shall be distributed, and the form of distribution.
No such distribution shall be paid for a period exceeding ten
years, nor commence sooner than two years after the Plan Year of
the deferral. If the Participant does not designate a date for
payments, the payment shall be made upon termination of employment.
All such distributions must be completed not later than ten years
following the Participant’s termination of employment. Any
amount credited to the Participant’s Account remaining unpaid
10 years after termination of employment shall automatically
be paid to the Participant in a lump sum within 90 days after
such date. If permitted by the Plan Administrator, separate dates
may be specified for deferrals of salary, bonus or other forms of
cash compensation. Any such designation of a payment date for
deferrals for a year may be changed on one occasion to further
defer the distribution date (“Further Deferral
Election”) by submission of a revised Election Form. To be
effective, the Further Deferral Election (i) must be submitted
at least 12 months prior to the date of the first scheduled
payment; (ii) must defer the scheduled payment date for at
least 5 years (except in the event of Disability or death);
(iii) will not be given effect until at least 12 months after
the date the election is made; and (iv) cannot provide for
distribution later than 10 years following the
Participant’s termination of employment.
(b)
Termination of Employment . In the event the Participant
terminates 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 in not more than one Further Deferral Election
meeting the requirements in (a) above, 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 within 90 days after such
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
as a Further Deferral Election meeting the requirements in
(a) above; and provided, however, if the Participant is or
could likely be considered a Key Employee (as determined by the
Plan Administrator, in accordance with ru
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