Exhibit 10.20(b)
NONQUALIFIED
SUPPLEMENTAL
DEFERRED COMPENSATION
PLAN
ADOPTION AGREEMENT
NONQUALIFIED
SUPPLEMENTAL
DEFERRED COMPENSATION
PLAN
ADOPTION AGREEMENT
ADOPTION OF PLAN — [Select
one]
o
Adoption
- The undersigned
(the
“Employer”) hereby adopts as a Nonqualified Deferred
Compensation Plan for the individuals identified in Item 5 herein
the form of Plan known as the Nonqualified Supplemental Deferred
Compensation Plan.
o
Amendment of Previous
Nonqualified Deferred Compensation Plan — With “Grandfathered”
Amounts (the
“Employer”) previously has adopted a Nonqualified
Deferred Compensation Plan, known as the
[enter name of previous plan], and the execution of
this Adoption Agreement constitutes an amendment to that Plan,
effective only for Deferrals, Contributions, earnings, gains,
losses, depreciation and appreciation vested and credited thereto
or debited therefrom on and after the Effective Date listed in
Section 2 below, or, if otherwise determined by the Employer,
on and after January 1, 2005 with respect to Plan provisions
required under Section 409A of the Internal Revenue Code and
the regulations thereunder. All other amounts in the plan shall be
subject to the provisions of the previous plan document. This
option is appropriate if the previous plan contains grandfathered
amounts not subject to Section 409A of the Internal Revenue
Code. Grandfathered amounts were contributed to the plan prior to
January 1, 2005 under the terms of the plan in effect prior to
October 4, 2004, and those plan terms have not since been
materially modified. Grandfathered amounts and earnings will be
administered under the terms of the prior plan document.
x
Restatement of Previous
Nonqualified Deferred Compensation Plan — Affymetrix, Inc.
(the “Employer”) previously has adopted a Nonqualified
Deferred Compensation Plan, known as the
Affymetrix, Inc. Deferred Compensation Plan
[enter name of previous plan], and the execution of this
Adoption Agreement constitutes a restatement of that Plan,
effective as of the Effective Date listed in Section 2 below
for all funds under the Plan. This option is appropriate if the
previous plan does not contain “grandfathered” amounts
(see description above), or if Employer wishes to apply
Section 409A rules to all amounts in the plan (even
pre-2005 amounts), or if previous plan has been materially modified
and thus become subject to Section 409A.
NAME OF PLAN
The name of this Plan as adopted by the Employer
is the [enter name of Plan]
Affymetrix, Inc. Deferred Compensation Plan (the
“Plan”).
INDIVIDUALIZED PLAN INFORMATION
With respect to the variable features contained
in the Plan, the Employer hereby makes the following selections
granted under the provisions of the Plan:
1.
Adopting Entity.
The Employer adopts the Plan
as:
1
List type of business entity
(corporation, partnership, controlled group of corporations, etc.)
Corporation
List each Employer adopting
the Plan and Employer Identification Number (EIN)
:
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Name of Employer:
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Affymetrix, Inc.
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EIN:
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77-0319159
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Name of Employer:
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EIN:
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Name of Employer:
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EIN:
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Name of Employer:
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EIN:
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Name of Employer:
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EIN:
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(attach additional lists as
necessary)
The adopting Employers and the
Employer are referred to herein collectively as the
“Employer.”
Select state of controlling
law (see Section 10.7 of Plan Document):
x
State of incorporation;
Delaware
o
State of domicile
2.
Effective Date
. The “Effective Date”
of the adoption of this Plan, this Plan amendment or this Plan
restatement is [enter date] December 31,
2008.
3.
Plan Year . The “Plan year” of the Plan shall
be [select one] :
x
the calendar year.
o
the fiscal year or other 12- month
period ending on the last day of [specify month]
.
o
a short Plan year beginning on
, and ending on
, ; and thereafter the Plan year
shall be as indicated in (a) or (b) above.
4.
Plan Administrator
. The “Administrator” of
the Plan is Senior Director, Compensation, Benefits and
HRIS.
[fill in the
name(s) of the individual(s) or job title(s) or
entity (such as a committee) that is (are) responsible for
administration of the Plan] , and such other
person(s) or entity as the Employer shall appoint from time to
time.
5.
Eligible Individuals
. The following shall be eligible to
participate in the Plan: [select all that apply –
do not list individual names]:
x
A select group of management or
highly-compensated Employees as designated by the Employer in
separate resolutions or agreements;
2
o
Employee Board Members;
x
Non-Employee Board
Members;
o
Other Service Providers (i.e.,
independent contractors, consultants, etc.)
o
Employees or other Service Providers
above the following Compensation threshold: [enter
dollar amount]
$ ;
o
Employees with the following job
titles: [enter job title(s); for example, “Vice
President and above”]
o
Other: [enter
description]
6.
Eligibility Timing.
Eligibility timing selected below
shall apply uniformly to all Participant Deferrals (including
Performance-Based Bonus Deferrals), as well as Employer Matching
Contributions and Other Employer Contributions, unless otherwise
indicated. If the Employer wishes to provide for separate
eligibility rules for different types of Compensation (for
example, Salary vs. Bonus), or for types of Contributions (for
example, Employer Matching Contributions vs. Participant
Deferrals), mark “Other” below and attach exhibits as
necessary [select one]:
x
Eligible immediately upon properly
completed designation by the Plan administrator or
Employer;
o
Eligible after the following period
of employment, Board service, etc. [enter number of days,
months or years, for example, 90 days]
;
o
Other [enter
description]:
7.
Types and Amounts of Participant
Deferrals [ select all that apply and enter minimum and maximum
percentages in increments of one percent (for example, Salary
minimum 0% maximum 100%). Note that no Deferral election can reduce
a Participant’s Compensation below the amount necessary to
satisfy required withholding for FICA/Medicare/income taxes,
required Participant Contributions into another Employer-sponsored
benefit plan such as medical insurance, 401(k) loan
repayments, etc.]:
x
Salary [select one]
:
x
percentage
[enter minimum 0 % and
maximum 75 %]
or
x
fixed dollar amount
[enter minimum $ 5000 annual minimum for all deferral
sources ] .
o
Non-Performance-Based Bonus
[select one] :
o
percentage
[enter minimum %
and maximum
%]
or
3
o
fixed dollar amount
[enter minimum $ ]
.
x
Performance-Based Bonus
[select one and enter performance period (for example,
12-month period ending each March 31 ] : performance
period from
to
.
x
percentage
[enter minimum 0 % and
maximum 90 %]
or
x
fixed dollar amount
[enter minimum $ 5000 annual minimum for all deferral
sources ] .
o
Commissions [select
one] :
o
percentage
[enter minimum %
and, maximum %]
or
o
fixed dollar amount
[enter minimum $
] .
x
Board of Directors Fees/Retainer
(note — should not include expense
reimbursements):
x
percentage
[enter minimum 0 % and,
maximum 100 %]
or
x
fixed dollar amount
[enter minimum $ 5000 annual minimum for all deferral
sources ] .
o
Other Service Provider Fees or other
earned income from the Employer:
o
percentage
[enter minimum %
and, maximum %]
or
o
fixed dollar amount
[enter minimum $ ]
.
o
401(k) Refund (amount
deferred from Participant’s regular Compensation equal in
value to any refund paid to Participant in that year resulting from
excess deferrals in Employer’s 401(k) plan — see
Subsection 2.9 of Plan document for definition.)
o
Other [enter
description]:
8.
Definition of Compensation for
Purposes of Making Plan Contributions [select
one]:
o
Same definition of Compensation as
in Employer’s 401(k) or other applicable qualified
retirement plan, earned while the Participant is an Eligible
Individual, as determined by the Employer.
o
Participant’s total wages,
salary, commissions, overtime, bonus, etc. for a given year which
the Employer is required to report on Form W-2 or other
appropriate form, (or, in the case of Board members, Board fees and
retainer only, but not including expense reimbursements)(or, in the
case of Other Service Providers,
4
the Participant’s total
remuneration from the Employer for a given year pursuant to the
agreement to provide services to the Employer), earned while the
Participant is an Eligible Individual as determined by the
Employer.
x
Other [enter
description]: (a) Participant’s total
annual cash compensation relating to services performed during any
calendar year, including commissions, overtime, bonus, which the
Employer is required to report on Form W-2 or other
appropriate form, or, (b) in the case of Board members, Board
fees and retainer only, but not including expense reimbursements
or, (c) in the case of Other Service Providers, the
Participant’s total remuneration from the Employer for a
given year pursuant to the agreement to provide services to the
Employer, earned, in each case, while the Participant is an
Eligible Individual as determined by the Employer, but in each
case, excluding distributions from nonqualified deferred
compensation plans, fringe benefits, stock options, relocation
expenses, severance pay, automobile and other allowances and
non-monetary awards made to a Participant.
9.
Expiration of Participant’s
Deferral Elections [select all that apply]:
x
Renewed Each
Year: Participant’s Deferral Elections must be
renewed each year during the open enrollment period ending no later
than December 31 prior to the effective Plan year (or, in the
case of Performance-Based Bonuses, no less than 6 months prior to
the end of the applicable performance period).
x
For all types of Compensation
Deferrals.
o
For Salary Deferrals only
— other types of Deferrals are
“evergreen”.
o
For Performance-Based Bonus
only — other types of Deferrals are
“evergreen”.
o
Other:
[specify]
o
Evergreen:
Participant’s Deferral
Elections will be “evergreen” (i.e., will continue
indefinitely until the Participant’s Termination Date unless
changed by the Participant — so each year the Participant
will be deemed to have the same election in place as the prior year
unless actively changed by the Participant during the open
enrollment period ending no later than December 31 prior to
the effective Plan year or, in the case of Performance-Based
Bonuses, no less than 6 months prior to the end of the applicable
performance period).
o
For all types of Compensation
Deferrals.
o
For Salary Deferrals only
— other types of Deferrals are renewed each year.
o
For Performance-Based Bonus
only — other types of Deferrals are renewed each
year.
o
Other:
[specify]
10.
Employer Contributions [select
all that apply]: .
o
(a)
No Employer
Contributions.
5
o
(b)
Matching Contributions on all
Participant Compensation Deferrals [also complete Items 11
through 14 ].
o
(c)
Matching Contributions on certain
types of Compensation Deferrals (for example, Matching
Contributions on Participant Performance-Based Bonus Deferrals,
etc.) [attach explanation describing which types of deferrals
will be matched and also complete Items 11 through
14]
x
(d)
Employer Contributions other than
Matching Contributions [complete Item 15]
(amount or formula for determining and allocating such
contributions should be documented in writing when determined, and
such writings will form part of the Plan).
11.
Amount of Matching Contribution
on Participant Compensation Deferrals . If the Employer has specified in Item
10(b) or (c) that it will make Matching Contributions on
behalf of Participants based on their Compensation Deferrals, such
Matching Contributions will be in an amount determined as follows
for the applicable period selected in Item 13 below:
[Select (a), (b), (c), (d) or (e) below — if
Employer has indicated in 10(c) above that Matching
Contributions will be made on certain types of Participant
Compensation Deferrals and if Employer wishes for different
Matching formulas to be used for different types of Participant
Compensation Deferrals, Employer should attach additional copies of
this Item 11 completed for each type of Participant Compensation
Deferral that is matched. ]
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o
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(a)
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% of
the Compensation Deferrals made by each Participant during the
applicable period.
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o
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(b)
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At a percentage determined from time to time in
the discretion of the Employer of each Participant’s
Compensation Deferrals for the applicable period (percentage should
be documented in writing when determined, and such writings will
form part of the plan).
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[ Optional: If
11(a) or (b) above is selected, the Employer may also
specify here that it will not match Compensation Deferrals in
excess of $ or % of each
Participant’s Compensation during the applicable period
— specify either a dollar amount or
a whole percentage. If no limit is entered here, the
assumption is that 100% of the Participant’s Compensation
Deferrals will be matched at the applicable percentage.]
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o
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(c)
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%
of the portion of each Participant’s Compensation Deferral
Contributions during the applicable period which does not exceed
% of the Participant’s Compensation for
such period; plus % of the portion, if any, of
each Participant’s Compensation Deferral Contributions during
the applicable period which exceeds % but does
not exceed % of the Participant’s Compensation
for such period.
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[ Note:
Example for 11(c) above — select this option if
Employer wants to match different percentages and different levels
of deferral — for example, 100% of the first 3% of
compensation deferred, and 50% of the next 2%]
6
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o
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(d)
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%
of the Compensation of each Participant who made Compensation
Deferral Contributions during the applicable period of at least
% of Compensation.
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o
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(e)
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Other: [describe]
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12.
Applicable Period for Matching
Contributions . Employer
Matching Contributions elected under Item 10(b) or
(c) shall be allocated and credited to eligible
Participants’ Accounts as soon as administratively feasible
after the end of each “Applicable Period” after the
amounts have been determined by the Employer. For purposes of
determining a Participant’s share of Matching Contributions
under Item 10, the Applicable Period shall be [Select
one ]:
o
the Plan Year.
o
the payroll period.
o
other (specify calendar month, Plan
year quarter, etc.) .
13.
Employees Eligible to Receive
Employer Matching Contributions. Matching Contributions made for each Plan Year
(if applicable) shall be allocated and credited to the
Accounts of the following Participants: [Select one if
applicable]
o
Participants who were employed by
the Employer (or, in the case of non-Employee Board Members, served
on the Board) during that Plan Year, or, in the case of Other
Service Providers, who provided services to the Employer during
that Plan Year.
o
Participants who were employed by
the Employer (or, in the case of non-Employee Board Members, served
on the Board) on the la
