EMS TECHNOLOGIES, INC. Supplemental Retirement Income Agreement with Don T. Scartz
Exhibit 10.22
EMS TECHNOLOGIES, INC.
with
Xxx X. Xxxxxx
THIS SUPPLEMENTAL RETIREMENT INCOME AGREEMENT made and entered into as of this 16th day of
November, 2007, by and between EMS Technologies, Inc., a Georgia corporation (“EMS” or the
“Company”), and Xxx X. Xxxxxx (the “Employee”).
WHEREAS, Employee is a long-term senior management employee of EMS, whose compensation has
from time to time exceeded the amounts with respect to which the Company could, under applicable
Internal Revenue Service rules, set aside amounts for Employee’s retirement through its qualified
Retirement Program; and
WHEREAS, the Company wishes to provide additional amounts for Employee’s retirement, to be
paid to him as provided below; and
WHEREAS, the Company and Employee desire to enter into this Supplemental Retirement Income
Agreement (the “Agreement”) to evidence the Company’s obligations to make such future payments to
Employee.
NOW, THEREFORE, in consideration of the premises and of the covenants and agreements herein
set forth, the parties hereto agree as follows:
ARTICLE I
BENEFITS
1.1 Supplemental Retirement Income Account. (a) By not later than December 31, 2007,
the Company shall establish, and shall thereafter maintain, a supplemental retirement income
account (“Account”) in the Employee’s name on its records. Effective December 31, 2007, the
Account shall be credited with the amount of $100,000. The Company shall thereafter credit to the
Account interest at the rate per annum published from time to time by SunTrust Bank, Atlanta,
Georgia as its prime rate for commercial customers, compounded quarterly, on the daily balance in
the Account. The balance of the account at any time, after crediting with interest and subtracting
payments as provided herein, is referred to herein as the “Account Balance.” The Employee’s
interest in the Account Balance shall at all times be 100% vested and nonforfeitable.
(b) Subject to Section 1.3, the Company shall pay the Employee his Account Balance in payments
of $35,000 each (or the remaining Account Balance if less) commencing on January 10, 2009 and on
each anniversary of such date, until his Account Balance has been paid in full.
(c) Notwithstanding paragraph (b) above, in the event of a Change in Control of the Company,
as defined in the Employee’s Officer’s Protection Agreement with the Company, then the Employee
shall be entitled to receive a lump sum payment of his Account Balance within ten (10) days of the
date of the Change in Control.
1.2 Death Benefit. If Employee dies prior to the full payment of his Account Balance,
his Account Balance shall thereafter be paid, on the schedule specified in paragraph (b) (or in
the event a Change in Control has occurred, paragraph (c)), to such person(s) as Employee shall
designate by written instrument in the form of Schedule “A” attached hereto. Employee shall have
the right to change the designated recipient(s) of this payment by delivering to the Company prior
to his death an amended and updated designation in the form of Schedule “A.” In the event Employee
shall fail to designate a recipient prior to his death in the manner described above, or if all
such designations previously received by the Company have been revoked by Employee under a written
revocation delivered to the Company prior to Employee’s death, the payment shall be made to
Employee’s surviving spouse, or if Employee dies without a spouse surviving him, then to the duly
qualified executor or administrator of Employee’s estate. Any person other than Employee who is to
receive or who receives benefits under this Agreement is herein referred to as a “designated
recipient(s).”
1.3 Conformance with Section 409A.
The Company shall have the authority to delay the commencement of all or a part of the
payments to Employee under this Agreement if Employee is a “key employee” of the Company (as
determined by the Company in accordance with procedures established by the Company that are
consistent with Section 409A) to a date which is six months after the date of separation from
service (and on such date the payments that would otherwise have been made during such six-month
period shall be made) to the extent (but only to the extent) such delay is required under the
provisions of Section 409A to avoid imposition of additional income and other taxes, provided that
the Company and Employee agree to take into account any transitional rules and exemption rules
available under Section 409A.
This Agreement shall be operated in accordance with the requirements of Section 409A of the
Internal Revenue Code of 1986, as amended. Any action that may be taken (and, to the extent
possible, any action actually taken) by the Administrator or the Company shall not be taken (or
shall be void and without effect), if such action violates the requirements of such Section 409A.
Any provision in this Agreement that is determined to violate the requirements of such Section 409A
shall be void and without effect. In addition, any provision that is required to appear in this
Agreement in accordance with such Section 409A that is not expressly set forth shall be deemed to
be set forth herein, and the Agreement shall be administered in all respects as if such provision
were expressly set forth.
ARTICLE II
UNFUNDED OBLIGATIONS
The Company’s obligations under this Agreement shall be unfunded and unsecured promises to pay
the benefits provided for hereunder. The Company shall not be obligated to set aside the Account
Balance in a “rabbi trust,” nor shall it establish any other trust
or payment mechanism that would result in taxable income to the Employee prior to the actual
payment to him or his designated recipient.
The rights of Employee, any designated recipient of Employee or any other person claiming
through Employee under this Agreement, shall be solely those of an unsecured general creditor of
the Company. Employee, any designated recipient of Employee or any other person claiming through
Employee, shall only have the right to receive from the Company those payments that are specified
under this Agreement. Employee agrees that he, his designated recipient(s) or any other person
claiming through him shall have no rights or interests whatsoever in any asset of the Company.
ARTICLE III
INDEPENDENCE OF BENEFITS
The benefits payable under this Agreement shall be independent of, and in addition to, any
other benefits or compensation payable by the Company to Employee, whether as salary, bonus or
otherwise. This Agreement does not involve a reduction in salary or a foregoing of an increase in
future salary by Employee and does not in any way affect or reduce the existing and future
compensation and other benefits of Employee.
ARTICLE IV
EMPLOYMENT RIGHTS
This Agreement shall not be deemed to constitute a contract of employment between the Company
and Employee and shall not create any rights in Employee to continue in the Company’s employ for
any specific period of time or any other rights in Employee or obligations on the part of the
Company, except as are expressly set forth herein. No provision of this Agreement shall restrict
the right of the Company to discharge Employee, with or without cause, or restrict the right of
Employee to terminate his employment with the Company.
ARTICLE V
NONALIENATION OF BENEFITS
No right or benefit under this Agreement shall be subject to anticipation, alienation, sale,
assignment, pledge, encumbrance or charge, and any attempt to anticipate, alienate, sell, assign,
pledge, encumber or charge the same shall be void. No right or benefit hereunder shall in any
manner be liable for or subject to the debts, contracts, liabilities or torts of Employee or his
designated recipient(s). If Employee or any such recipient shall become bankrupt or attempt to
anticipate, alienate, sell, assign, pledge, encumber or charge any right or benefit hereunder, then
such right or benefit shall, in the discretion of the Board of Directors of the Company, cease and
terminate, and in such event, the Company may hold or apply same or any part thereof for the
benefit of Employee or his designated recipient(s), his spouse, children or other dependents, or
any of them, in such manner and in such proportion as the Board of Directors of the Company may
deem proper under the then existing circumstances.
ARTICLE VI
AGREEMENT BINDING ON SUCCESSORS
This Agreement is solely between the Company and Employee, and Employee and his designated
recipient(s) shall have recourse only against the Company and its successors and assigns for
enforcement hereof. This Agreement will be binding upon Employee’s designated recipient(s), heirs
and personal representatives and upon the successors and assigns of the Company.
ARTICLE VII
ADMINISTRATOR AND CLAIMS PROCEDURE
7.1 Administrator. The Administrator under this Agreement is the Company. The
business address and telephone number of the Administrator under this Agreement are: EMS
Technologies, Inc., ATTN: General Counsel, telephone number: 000-000-0000.
7.2 Claims Procedure. Benefits shall be paid in accordance with the provisions of
this Agreement. The Administrator shall make all determinations as to the right of Employee or any
other person to a benefit under this Agreement, and any requests for such a benefit must be made in
writing mailed or delivered to the Administrator. If such a request is wholly or partially denied,
notice of the decision shall be mailed to the claiming person no later than 60 days after the
receipt of the request by the Administrator. The claim review procedure is available upon written
request by the claimant to the Administrator within 30 days after receipt by the claimant of
written notice of the denial of the claim and includes the right to examine pertinent documents and
submit issues and comments in writing to the Administrator. The decision on review will be in
writing and will be made within 60 days after receipt of the request for review, unless
circumstances warrant an extension of time not to exceed an additional 60 days. The Administrator
shall have the exclusive discretionary authority to make all determinations relating to the
Employee’s rights to benefits hereunder, but such authority shall not affect or reduce Employee’s
right to receive such benefits or to enforce such rights by judicial action in a court of
appropriate jurisdiction.
ARTICLE VIII
GENERAL PROVISIONS
8.1 Any and all notices or any other communication provided for herein shall be given in
writing personally or by registered or certified mail, postage prepaid, which shall be addressed in
the case of the Company to the Administrator at the address specified in Section 7.1 hereof, and in
the case of Employee or his designated recipient(s), to the business or residence address of such
person last known to the Company (if mailed, the second business day after the date of mailing
shall constitute the date such notice or other communication is given).
8.2 This Agreement contains the entire agreement between the parties hereto relating to the
matters provided herein, and no agreement not expressly contained herein shall be of any force or
effect. This Agreement shall not be modified or amended in any manner
except by an instrument in writing executed by the parties. This Agreement shall be governed,
construed and enforced in accordance with applicable Federal law and, where such law is not
applicable, by Georgia law. Its provisions are severable, and the validity of one or more of the
provisions herein shall not have any effect upon the validity or enforceability of any other
provision.
8.3 For purposes of this Agreement, Employee shall be considered as being employed by the
Company if he is employed by any corporation controlled by the Company (such as a subsidiary or a
subsidiary of a subsidiary) or a corporation which is a successor of the Company.
8.4 If all or any part of any payment to Employee (or his beneficiaries) becomes liable for
the payment of any income, estate, inheritance or other tax which the Company shall be required to
pay or withhold, the Company shall have the full power and authority to withhold and pay such tax
out of any amounts due hereunder.
IN WITNESS WHEREOF, the parties hereto have caused this amended and restated Agreement to be
duly executed the day and year first above written.
| EMS TECHNOLOGIES, INC. | ||||||||||
Attest: |
||||||||||
| /s/ Xxxxxxx X. Xxxxxx | By: | /s/ Xxxx X. Xxxxxxxx | ||||||||
Secretary (CORPORATE SEAL) |
Title: | President and CEO | ||||||||
| /s/ Xxx X. Xxxxxx | (L.S.) | |||||||||
| Xxx X. Xxxxxx | ||||||||||
SCHEDULE “A”
Designation of
Death Benefit Recipient
Death Benefit Recipient
I, Xxx X. Xxxxxx, request that the Company show on its records that I have designated
as the primary designated recipient(s), and
and
as the secondary designated recipient(s) of the death benefit payable under
Section 1.2 of my Supplemental Retirement Income Agreement with the Company dated November ,
2007, and that the Company pay such death benefit to the above designated recipient(s) as provided
under the terms of such Agreement.
The above secondary designated recipient(s), if any, shall receive the above-described
payments only if none of my primary designated recipient(s) is living at the time such payments are
to commence.
You are instructed to retain the above designated recipient(s) on your records until such time
as you receive a new “Designation of Death Benefit Recipient” form from me which changes this
Designation. If I have previously filed a Designation of this kind, it is hereby revoked and this
Designation shall take its place.
Received By Company: |
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