NON-QUALIFIED SUPPLEMENTAL
DEFERRED COMPENSATION PLAN
The Ultratech,
Inc. Non-Qualified Supplemental Deferred Compensation Plan, as
amended and restated effective as of January 1, 2005 (the
“ Plan ”), is hereby further amended,
effective as of January 1, 2005, in order to maintain the
Plan’s compliance with the documentary requirements of
Section 409A of the Internal Revenue Code of 1986, as amended
(the “ Code ”), and the final Treasury
Regulations thereunder.
1. Section 2.30
of the Plan is hereby amended in its entirety to read as
follows:
“Termination
Date” means:
(i) with
respect to an Employee Participant, the Participant’s
separation from service (within the meaning of Section 409A of
the Code and the regulations, notices and other guidance
thereunder, including death or Disability) with the Employer and
any subsidiary or affiliate of the Employer as defined in Sections
414(b) and (c) of the Code, except that in applying
Sections 1563(1), (2) and (3) for purposes of
determining the controlled group of corporations under
Section 414(b), the phrase “at least
50 percent” shall be used instead of “at least
80 percent” each place the latter phrase appears in such
sections, and in applying Section 1.414(c)-2 of the Treasury
Regulations for purposes of determining trades or businesses that
are under common control for purposes of Section 414(c), the phrase
“at least 50 percent” shall be used instead of
“at least 80 percent” each place the latter phrase
appears in Section 1.4.14(c)-2 of the Treasury
Regulations.
(ii) with
respect to a Board Member Participant, the Participant’s
resignation or removal from the Board (for any reason, including
death or Disability); and
(iii) with
respect to any Other Service Provider, the expiration of all
agreements to provide services to the Employer (for any reason,
including death or Disability).
The date that an
Employee’s, Board Member’s, or Other Service
Provider’s performance of services for all the Employers is
reduced to a level less than 20% of the average level of services
performed in the preceding 36-month period shall be considered a
Termination Date, and the performance of services at a level of 50%
or more of the average level of services performed in the preceding
36-month period shall not be considered a Termination Date, based
on the parties’ reasonable expectations as of the applicable
date. If a Participant is both a Board Member Participant and an
Employee Participant, “Termination Date” means, with
respect to Compensation earned for services as an Employee, the
date the Participant satisfies criteria (i) above and means,
with respect to Compensation earned for services as a Board member,
the date the Participant satisfies criteria
(ii) above.
2. The third
paragraph of Section 4.2 of the Plan is hereby amended to read
as follows:
An
election to make Performance-Based Bonus Deferrals under this
subsection 4.2 shall remain in effect through the end of the
performance period to which the election applies (except as
provided in subsection 4.5), and shall be irrevocable. If a
Participant fails to make a Performance-Based Bonus Deferral
Election for a given performance period, such Participant’s
Performance-Based Bonus Deferral Election for that performance
period shall be deemed to be zero.
3. The first
sentence of Section 4.5 of the Plan is hereby amended to read
as follows:
A
Participant shall not be permitted to change or revoke his Deferral
Election (except as otherwise described in subsection 4.1), except
that if a Participant’s status changes such that he becomes
ineligible for the Plan, the Participant’s Deferrals under
the Plan shall cease as described in subsection 3.2
4. Section 4.7
of the Plan is hereby amended in its entirety to read as
follows:
Any
Participant Deferrals or Employer Contributions to be credited to a
Participant’s Account under this Section may be reduced by an
amount equal to the Federal or state income, payroll, or other
taxes required to be withheld on such deferrals or contributions or
to satisfy any effective elections made by the Participant under
any cafeteria benefit plan maintained by the Employer under
Section 125 of the Code. A Participant shall be entitled only
to the net amount of such deferral or contribution (as adjusted
from time to time pursuant to the terms of the Plan). The
Administrator may limit the Deferral Election that would otherwise
become effective for the Participant for any upcoming Plan Year, to
the extent that election would reduce the Participant’s
Compensation from the Employer for that Plan Year to an amount
insufficient to cover taxes, withholding, and other required
deductions applicable to the Participant for that Plan
Year.
5. Section 9.1
of the Plan is hereby amended in its entirety to read as
follows:
The
Participant’s vested Account balances shall be distributed to
the Participant in the form of a single lump sum payment, or, if
subsection 9.2 applies, in the form of installment payments as
permitted by the Employer in the Adoption Agreement. Subject to
subsection 9.3 hereof, distribution of the Participant’s
Accounts shall be made within the 90-day period following his or
her Termination Date. In the event of the Participant’s death
prior to the distribution of the entire amount of his vested
Account balances, whether the Participant’s death occurs
before or after a distribution has commenced from those Account
balances, the entire amount of those unpaid vested Account balances
shall be distributed in a single lump sum payment to the
Participant’s Beneficiary as determined in accordance with
Section 9.5. Subject to subsection 9.3 hereof, distribution of
a deceased Participant’s Accounts shall be made within the
90-day period following the date of his death. Notwithstanding any
provision of the Plan to the contrary, for purposes of this
subsection, a Participant’s Accounts shall be valued as of a
Valuation Date as soon as administratively feasible preceding the
date such distribution is made, in accordance with rules
established by the Administrator.
2
Notwithstanding
the foregoing, to the extent designated by the Employer in the
Adoption Agreement, a Participant may elect, in accordance with
this subsection, a distribution date for his Compensation Deferral
Accounts that is prior to his Termination Date (an
“In-Service Distribution”). A Participant’s
election of an In-Service Distribution date must: (i) be made
at the time of his Deferral Election for a Plan Year and
(ii) apply only to amounts deferred pursuant to that election,
and any earnings, gains, losses, appreciation and depreciation
credited thereto or debited therefrom with respect to such amounts.
To the extent authorized by the Employer in the Adoption Agreement,
a Participant may elect an In-Service Distribution date with
respect to Performance-Based Bonus Deferrals that is separate from
an In-Service Distribution date with respect to Compensation
Deferrals other than Performance-Based Bonus Deferrals for the same
year. In no event, however, may the applicable In-Service
Distribution date be earlier than the number of years designated by
the Employer in the Adoption Agreement following the year in which
the applicable Compensation would have been paid absent the
deferral, or as further determined or limited in accordance with
rules established by the Administrator. Payments made pursuant to
an In-Service Distribution election shall be made in a lump sum as
soon as administratively feasible following January 1 of the
calendar year in which the elected In-Service Distribution date
occurs, but in no event later than the end of that calendar year.
For purposes of such payment, the value of the Participant’s
Accounts for the applicable Plan Year shall be determined as of a
Valuation Date preceding the date that such distribution is made,
in accordance with rules established by the Administrator. In the
event a Participant’s Termination Date occurs (or, if
permitted by the Employer in the Adoption Agreement, in the event a
Change in Control of the Employer occurs) prior to the date the
Participant had previously elected to have an In-Service
Distribution payment made to him, such amount shall be paid to the
Participant under the rules applicable for payment on Termination
of Employment in accordance with this subsection 9.1 and subsection
9.2 or, in the event the Participant has also elected a Change in
Control distribution for the Account, such amount shall be paid to
the Participant under the rules applicable to an earlier Change in
Control distribution in accordance with subsection 9.9. No
In-Service Distribution shall be applicable to any amounts deferred
in a year in which the Participant fails to make an affirmative
election, and payment of such amounts for such year shall be made
in accordance with his most recent election on file with the
Administrator (if no election is on file, then such amounts shall
be paid to him in a single lump sum).
To the extent
authorized by the Employer in the Adoption Agreement, Participants
whose Termination Date has not yet occurred may elect to defer
payment of any
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