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.
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 Company's common
stock, as being subject to more restrictive times for the
making or commencement of payments, shall be subject to such
more restrictive times, regardless of the terms of such
Participant's original election.
If the election as to the form or time of payment is not made
upon initial enrollment or thereafter at least 12 months prior
to the date of retirement or other termination of employment,
the balance credited to the Participant's Account shall be
paid as he or she elected most recently, but at least 12
months prior to the date of termination; provided, however,
that if the termination is due to the Participant's suffering
a disability (as determined by the Plan Administrator,
consistent with Applicable Regulations), the foregoing
12-month restriction will not apply. In the absence of a valid
election, the balance credited to the Account shall be paid in
a lump sum as soon as practical after his or her effective
date of retirement or other termination of employment.
(c) Effect of Applicable Regulations. In the event
Applicable Regulations shall specify minimum or maximum
standards for initial or modified elections as to the form or
time of payments of amounts credited to a Participant's
Account, any such elections shall be subject to compliance
with such standards, as if set forth in this Plan.
(d) Death of Participant. In the event of the death of a
Participant, distribution of the balance credited to his or
her Account as of the date of death shall be made to his or
her Beneficiary(ies) in a lump sum, as soon as practical
thereafter.
(e) Change in Control. In the event that a change in
control of the Company shall occur without the approval of a
majority of the members of the Board having no affiliation
with, and not nominated or otherwise designated for membership
on the Board by, the party or parties acquiring control, the
balances credited to the Account of each Participant shall be
distributed to him or her as soon as practicable thereafter.
For these purposes a "change in control" shall be deemed to
have occurred if any person or group (as such terms are
defined in Section 13(d)(3) of the Securities Exchange Act of
1934, as amended), becomes the holder of 50% or more of the
outstanding shares of the Company's voting common stock,
provided however, that if Applicable Regulations
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specify a more restrictive definition of "change in control,"
then such more restrictive definition shall prevail.
4.4 Early Distributions. Except as expressly provided in this
Section 4.4, no payment of benefits shall be made under this Plan prior to the
distribution date established pursuant to Section 4.3 above. A Participant who
is suffering an unforeseen and severe financial hardship as a result of an
illness or accident affecting the Participant or his or her immediate family, or
loss of Participant's property due to casualty, or of such other similar
extraordinary and unforeseeable circumstances, arising as a result of events
beyond the control of the Participant, as the Plan Administrator may establish
in accordance with Applicable Regulations, may file a written request with the
Plan Administrator for distribution of all or a portion of the amount credited
to his or her Account. The Plan Administrator shall have sole discretion to
determine whether to grant a Participant's hardship request and the amount to
distribute to the Participant. The Plan Administrator shall not authorize
distribution of an amount in excess of that reasonably necessary to alleviate
the hardship, after consideration of both taxes owed on the distribution and
other financial resources available to the Participant. Any Participant who
receives a hardship distribution shall not be eligible to make additional
deferrals of Compensation to the Plan for a period of 12 months immediately
following the date of the distribution. If such Participant becomes eligible
under the preceding sentence prior to the last day of a Plan Year, he or she
must elect to participate within 30 days of the date he becomes so eligible, and
otherwise may not again become a Participant until the first day of the
immediately following Plan Year.
ARTICLE V
PLAN ADMINISTRATOR
5.1 Action. If a committee serves as the Plan Administrator, it
may take action with or without a meeting of committee members; provided,
however, that any action shall be taken only upon the vote or other affirmative
expression of a majority of the committee members qualified to vote with respect
to such action. No member of any such committee, nor the appointed individual,
may participate in any decision that solely affects his or her own Account. The
Plan Administrator shall maintain records of the Plan Administrator's
proceedings and other records and documents pertaining to the administration of
the Plan.
5.2 Right and Duties. The Plan Administrator shall administer and
manage the Plan and shall have all powers necessary to accomplish that purpose,
including (but not limited to) the following:
i. To construe, interpret, and administer the Plan;
ii. To make allocations and determinations required by
the Plan, and to maintain records regarding
Participants' Accounts;
iii. To compute and certify to the Employer the amount and
kinds of benefits payable to Participants or their
Beneficiary(ies), and to determine the time and
manner in which such benefits are to be paid;
iv. To authorize all disbursements by the Employer
pursuant to the Plan;
v. To maintain (or cause to be maintained) all the
necessary records of the administration of the Plan;
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vi. To make and publish such rules for the regulation of
the Plan as are not inconsistent with the terms
hereof;
vii. To delegate to other individuals or entities from
time to time the performance of any duties or
responsibilities hereunder; and
viii. To hire agents, accountants, actuaries, consultants
and legal counsel to assist in operating and
administering the Plan.
The Plan Administrator shall have the exclusive discretionary authority
to construe and to interpret the Plan, to decide all questions of eligibility
for benefits, and to determine the amount and manner of payment of such
benefits, and its decisions on such matters shall be final and conclusive on all
parties.
5.4 Compensation, Indemnity and Liability. The Plan Administrator
shall serve as such without bond and without compensation for services
hereunder. All expenses of the Plan and the Plan Administrator shall be paid by
the Company. If the Plan Administrator is a committee, no member of the
committee shall be liable for any act or omission of any other member of the
committee, nor for any act or omission on his or her own part excepting willful
misconduct. The Company shall indemnify and hold harmless the Plan Administrator
and each member of the committee, if any, against any and all expenses and
liabilities, including reasonable legal fees and expenses, arising out of
membership on the committee, excepting only expenses and liabilities arising out
of his or her own willful misconduct.
5.5 Taxes. If the whole or any part of any Participant's Account
shall become liable for the payment of any estate, inheritance, income or other
tax which the Employer shall be required to pay or withhold, the Employer shall
have the full power and authority to withhold and pay such tax out of any monies
or other property in its hand for the account of the Participant whose interests
hereunder are so liable. The Employer shall provide the Participant notice of
such withholding. Prior to making any payment, the Employer may require such
releases or other documents from any lawful taxing authority as it shall deem
necessary.
ARTICLE VI
CLAIMS PROCEDURE
6.1 Claims for Benefits. If a Participant or Beneficiary(ies)
(hereafter, "Claimant") does not receive timely payment of any benefits which he
or she believes are due and payable under the Plan, he or she may make a claim
for benefits to the Plan Administrator. The claim for benefits must be in
writing and addressed to the Plan Administrator or to the Company. If the claim
is denied, the Plan Administrator shall notify the Claimant in writing within 90
days after the Plan Administrator initially received the benefit claim. However,
if special circumstances require an extension of time for processing the claim,
the Plan Administrator shall furnish notice of the extension to the Claimant
prior to the termination of the initial 90-day period and such extension shall
not exceed one additional, consecutive 90-day period. Any notice of a denial of
benefits shall advise the Claimant of the basis for the denial, any additional
material or information necessary for the Claimant to perfect his or her claim,
and the steps which the Claimant must take to have the claim for benefits
reviewed.
6.2 Appeals. Each Claimant whose claim for benefits has been
denied may file a written request for a review of his claim by the Plan
Administrator. The request for review must be filed within 60 days after receipt
of the written notice denying the claim. The decision of the Plan Administrator
will be made within 60 days after receipt of a request for review and shall be
communicated in writing
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to the Claimant. Such written notice shall set forth the basis for the Plan
Administrator's decision. If there are special circumstances that require an
extension of time for completing the review, the Plan Administrator's decision
shall be rendered not later than 120 days after receipt of a request for review.
ARTICLE VII
AMENDMENT AND TERMINATION
7.1 Amendments. The Board shall have the right in its sole
discretion to amend this Plan in whole or in part at any time, and all
Participants shall be bound thereby; provided, however, that no such amendment
shall reduce either the amounts credited at that time to any Participant's
Account or the interest to be paid on such amounts prior to their distribution
in accordance with each Participant's elections then in effect.
7.2 Termination of Plan. The Company expects to continue the Plan,
but does not obligate itself to do so. The Company reserves the right to
discontinue and terminate the Plan at any time, in whole or in part, for any
reason (including a change, or an impending change, in the tax laws of the
United States or any state thereof). Termination of the Plan shall be binding on
all Participants, but in no event may such termination reduce the amounts
credited at that time to any Participant's Account, or the interest to be paid
on such amounts prior to their distribution. If the Plan is terminated, amounts
theretofore credited to Participants' Accounts shall either be paid in a lump
sum immediately, or distributed in some other manner consistent herewith, as
determined by the Plan Administrator in its sole discretion.
ARTICLE VII
MISCELLANEOUS
8.1 Limitation on Participant's Rights. Participation in the Plan
shall not give any Participant the right to be retained in the Company's employ
or any right or interest in the Plan or any assets of the Company other than as
herein provided. The Company and each Employer reserve the right to terminate
the employment of any Participant without any liability for any claim against
the Company under the Plan, except to the extent provided herein.
8.2 Benefits Unfunded. The benefits provided by the Plan shall be
unfunded. All amounts payable hereunder shall be paid from the general assets of
the Company or Employer, and nothing contained herein Plan shall require the
Company or Employer to set aside or hold in trust any amounts or assets for the
purpose of paying benefits to Participants. This Plan shall create only a
contractual obligation on the part of the Company or Employer, and Participants
shall have the status of general unsecured creditors of the Company or Employer
with respect to amounts of Compensation they defer hereunder or any other
obligation of the Company or Employer to pay benefits pursuant hereto. Any funds
available to pay benefits pursuant to the Plan shall be subject to the claims of
general creditors of the Company or Employer, and may be used for any purpose by
the Company or Employer.
Notwithstanding the preceding paragraph, the Company or
Employer may, with the approval of the Board, at any time transfer assets to a
trust for purposes of paying all or any part of its obligations under the Plan.
However, such transferred amounts shall remain subject to the claims of general
creditors of the Company or Employer to the extent specified in, and in
accordance with the terms of, such trust. To the extent that assets are held in
the trust when a Participant's benefits under the Plan become payable, the Plan
Administrator shall direct the trustee to make trust assets available to pay
such benefits to the Participant. Any payments made to a Participant or
Beneficiary(ies) from such trust
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shall relieve the Company and Employer from any further obligations under the
Plan only to the extent of such payment.
8.3 Other Plans. The Plan shall not affect the right of any
Officer or Participant to participate in and receive benefits under and in
accordance with the provisions of any other benefit plans which are now or
hereafter maintained by the Employer, unless the terms of such other benefit
plan or plans specifically provide otherwise.
8.4 Receipt or Release. Any payment to a Participant in accordance
with the provisions of the Plan shall, to the extent thereof, be in full
satisfaction of all claims against the Plan Administrator and the Company, and
the Plan Administrator may require such Participant, as a condition precedent to
such payment, to execute a receipt and release to such effect.
8.5 Governing Law. The Plan shall be construed, administered, and
governed in all respects in accordance with applicable federal law and, to the
extent not preempted by federal law, in accordance with the laws of the State of
Georgia. If any provisions of this instrument shall be held by a court of
competent jurisdiction to be invalid or unenforceable, the remaining provisions
hereof shall continue to be fully effective.
8.6 Employers. Each Employer shall be the primary obligor with
respect to the Plan benefits that are owed to a Participant who is employed by
the Employer, and if a trust is established pursuant to Section 8.2, such
Employer shall make contributions to the trust on behalf of the Participants
that it employs.
8.7 Gender, Tense, and Headings. In this Plan, whenever the
context so indicates, the singular or plural number and the masculine, feminine,
or neuter gender shall be deemed to include the other. Headings and subheadings
are inserted for convenience of reference only and are not considered in the
construction of the provisions hereof.
8.8 Nonalienation of Benefits. The amounts credited to the Account
of a Participant shall not (except as provided in Section 5.5) be subject in any
manner to anticipation, alienation, sale, transfer, assignment, pledge,
encumbrance, charge, garnishment, execution or levy of any kind, either
voluntary or involuntary, and any attempt to anticipate, alienate, sell,
transfer, assign, pledge, encumber, charge or otherwise dispose of any right to
any benefits payable hereunder, including, without limitation, any assignment or
alienation in connection with a separation, divorce, child support or similar
arrangement, shall be null and void and not binding on the Plan or the Company
or Employer.
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