EX-10.3 DEFERRED COMPENSATION PLAN



 





Exhibit 10.3




EMS TECHNOLOGIES, INC.




OFFICERS’ DEFERRED COMPENSATION PLAN

(As Amended And Restated May 19, 2006,

Effective as of January 1, 2005)




ARTICLE I




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. The Plan, as amended and restated, is effective as of
January 1, 2005.




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 “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.



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



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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.




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. 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. Each
Participant may, at the time of making a deferral election for the year,
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 made for over a period exceeding ten years, nor
commence sooner than two years after the Plan Year of the deferral, provided
that all 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 as
soon as practical after such date. 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) and (iii) will
not be given effect until at least 12 months after the date the election is
made.




(b) Retirement or Other Termination of Employment. In
the event the Participant retires or otherwise 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 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 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 (within the meaning of Section 409A as determined by the Plan
Administrator), distributions to such Participant may not be made before the date
which is 6 months after the date of the Participant’s termination of employment
(or, if earlier, the date of death of the Participant), and any distribution that
would otherwise be payable before the 6-month anniversary shall be delayed and
shall be paid within 30 days following such 6-month anniversary.




(c) Death of Participant. In the event of the death of a Participant
(whether before or after termination of employment), distribution of the balance
credited to



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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.




(d) 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 in a lump sum. 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 more than 50% of the outstanding shares of the Company’s
voting common stock, provided however, that the occurrence of a “change in control”
shall be determined in a manner consistent with Section 409A.



     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 suffers an Unforeseeable Emergency 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 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.



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     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;
	 
	 	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; provided, however, that all such determinations and decisions shall be
consistent with and subject to Applicable Regulations and the express provisions of the Plan.




     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



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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 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



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time to any Participant’s Account, or the interest to be paid on such amounts prior to their distribution.
If, upon Plan termination, the Company also terminates all other arrangements that would be
aggregated with the Plan under Section 409A and the Company does not within five years following
the date of termination adopt any other arrangements that would be aggregated with the Plan under
Section 409A, the Plan Administrator shall direct the payment of the Participants Accounts. Such
payments shall be made in a lump sum and
shall not be made earlier than 12 months after the date of termination of the Plan (unless the
Participant is otherwise entitled to a distribution during such period) and shall be completed
within 24 months after the date of termination.



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 established under the laws of a jurisdiction within
the United States, 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 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.



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     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.



     8.9 Conformance with Section 409A. At all times during each Plan Year, this Plan
shall be operated in accordance with the requirements of Section 409A. Any action that may be
taken (and, to the extent possible, any action actually taken) by the Plan Administrator or the
Company shall not be taken (or shall be void and without effect), if such action violates the
requirements of Section 409A. Any provision in this Plan document that is determined to violate
the requirements of Section 409A shall be void and without effect. In addition, any provision that
is required to appear in this Plan document in accordance with Section 409A that is not expressly
set forth shall be deemed to be set forth herein, and the Plan shall be administered in all
respects as if such provision were expressly set forth.



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