EXHIBIT 10(z)
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SPIRE CORPORATION
NON-QUALIFIED DEFERRED COMPENSATION PLAN
FOR ROGER LITTLE
Amended and Restated Effective as of January 1, 2005
This SPIRE CORPORATION NON-QUALIFIED DEFERRED COMPENSATION PLAN
FOR
ROGER LITTLE (the "Plan") was entered into and effective as of 1st
day of
January, 2002, by Spire Corporation, a corporation duly organized
and existing
under the laws of the State of Massachusetts (the "Company"). The
Plan has been
amended and restated as of January 1, 2005, to comply with Section
409A of the
Internal Revenue Code and its regulations.
RECITALS:
WHEREAS, the Board of Directors of the Company (the "Board")
recognizes
that Roger Little has contributed to the growth and success of the
Company, and
desires to assure the Company of his continued employment and to
compensate him
therefor; and
WHEREAS, the Board has determined that this Plan will reinforce
and
encourage Mr. Little's continued attention and dedication to the
Company; and
WHEREAS, the Board has determined that this Plan must be amended
and
restated to comply with Section 409A of the Internal Revenue
Code.
NOW, THEREFORE, in consideration of the premises and mutual
covenants
set forth herein, the Company hereby amends and restates the Plan
pursuant to
the following terms and provisions.
1.
Definitions.
1.1. Accounting Date means the last day of each calendar month and
such
other date or dates as the Committee may designate from time to
time as an
Accounting Date.
1.2. Accounting Period means each period beginning on the day
following
an Accounting Date and ending on the following Accounting Date.
1.3. Amounts Not Subject to Section 409A means any Tax-Deferred
Contributions or Employer Contributions that were made before
January 1, 2005.
1.4. Amounts Subject to Section 409A means any Tax-Deferred
Contributions or Employer Contributions that were made on or after
January 1,
2005.
1.5. Beneficiary means the person or persons designated by the
Participant, upon such forms as shall be provided by the Committee,
to receive
payments of the vested portion of the Participant's Accounts after
the
Participant's death. If the Participant shall fail to designate a
Beneficiary,
or if for any reason such designation shall be ineffective, or if
such
Beneficiary shall predecease the Participant or die simultaneously
with him,
then the Beneficiary shall be, in the following order of
preference:
(a) the Participant's surviving spouse, or
(b) the Participant's estate.
1.6. Change of Control
(a) For Amounts Not Subject to Section 409A: shall mean
approval
by the shareholders of the Company of (a) a reorganization,
merger,
consolidation or other form of corporate transaction or series of
transactions,
in each case, with respect to which persons who were the
shareholders of the
Company immediately prior to such reorganization, merger or
consolidation or
other transaction do not, immediately thereafter, own more than 50%
of the
combined voting power entitled to vote generally in the election of
directors of
the reorganized, merged or consolidated
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company's then outstanding voting securities, (b) a liquidation or
dissolution
of the Company or (c) the sale of all or substantially all of the
assets of the
Company (unless such reorganization, merger, consolidation or other
corporate
transaction, liquidation, dissolution or sale is subsequently
abandoned).
(b) For Amounts
Subject to Section 409A: means the occurrence of
any of the following:
(i) any one person, or more than one person acting as a group,
acquires ownership of equity securities of the Company that,
together with
equity securities held by such person or group, constitutes more
than 50% of the
total fair market value or total voting power of the equity
securities of the
Company; provided, however, that if any one person, or more than
one person
acting as a group, is considered to own more than 50% of the total
fair market
value or total voting power of the equity securities of the
Company, the
acquisition of additional equity securities by the same person or
persons will
not be considered a Change of Control under this Plan. An increase
in the
percentage of equity securities of the Company owned by any one
person, or
persons acting as a group, as a result of a transaction in which
the Company
acquires its equity securities in exchange for property will be
treated as an
acquisition of equity securities of the Company for purposes of
this clause (i);
or
(ii) any one person, or more than one person acting as a
group, acquires (or has acquired during the 12-month period ending
on the date
of the most recent acquisition by the person or persons) all or
substantially
all of the assets from the Company. Notwithstanding anything to the
contrary in
this Plan, the following shall not be treated as a Change of
Control under this
Section 1.6:
(A) a transfer of assets from the Company to a equity
owner of the Company (determined immediately before the asset
transfer);
(B) a transfer of assets from the Company to an entity,
50% or more of the total value or voting power of which is owned,
directly or
indirectly, by the Company;
(C) a transfer of assets from the Company to a person,
or more than one person acting as a group, that owns, directly or
indirectly,
50% or more of the total value or voting power of all the
outstanding equity
securities of the Company; or
(D) a transfer of assets from the Company to an entity,
at least 50% of the total value or voting power of which is owned,
directly or
indirectly, by a person described in (C) above.
1.7. Code shall mean the Internal Revenue Code of 1986, as amended,
and
successor tax laws.
1.8. Committee shall mean the persons designated by the Company as
the
Administrative Committee for the Plan, as it may from time to time
be
constituted, pursuant to Section 6.1.
1.9. Company shall mean Spire Corporation, a Massachusetts
corporation,
its successors and assigns.
1.10. Deferral Agreement shall mean the agreement entered into by
the
Participant in accordance with Section 2.1 hereof pursuant to which
the
Participant shall elect the amount of his Tax-Deferred
Contributions (if any)
for the Plan Year.
1.11. Disability shall mean a disability as that term is defined in
the
Long Term Disability Plan of the Company, if any, or if there is no
Long Term
Disability Plan, disability shall mean a physical or mental
condition that
renders, or is expected to render, the Participant permanently and
totally
unable to perform his usual duties or any comparable duties for the
Company. The
determination of the existence of a Disability shall be made by the
Committee
and shall be final and binding upon the Participant and all other
parties. The
Committee may require the submission of such medical evidence, as
it may deem
necessary in order to arrive at its determination.
1.12. Effective Date of Plan shall mean January 1, 2002; however,
the
Plan is amended and restated effective January 1, 2005.
1.13. Eligible Compensation shall mean the base salary and bonuses
paid
by the Company to the Participant for the Plan Year.
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1.14. Employer Contributions shall mean any contributions credited
to
the Participant's Account in accordance with Section 2.2 of the
Plan.
1.15. Employer Contribution Account means the account maintained
under
the Plan for the Participant that is credited with Employer
Contributions.
Separate sub-accounts shall be kept for Amounts Subject to Section
409A and
Amounts Not Subject to Section 409A.
1.16. Investment Funds means those investment options that shall
from
time to time be made available as investment options under the
Plan, as
determined by the Committee.
1.17. Leave of Absence shall mean any absence authorized by the
Company
under its standard personnel practices.
1.18. Normal Retirement Age shall mean the date on which the
Participant reaches the age of sixty-five.
1.19. Participant shall mean Roger Little.
1.20. Participant's Account means the total amount credited to
the
account maintained in the Plan in accordance with the provisions of
the Plan for
the Participant as of any Accounting Date, and which consists of
his
Tax-Deferred Contributions Account and his Employer Contributions
Account.
1.21. Plan shall mean the Spire Corporation Non-Qualified
Deferred
Compensation Plan for Roger Little, as herein set forth and as it
may be amended
from time to time.
1.22. Plan Year shall mean each calendar year that begins on or
after
January 1, 2002.
1.23. Section 409A means Section 409A of the Code.
1.24. Separation from Service means, as to each Participant's
subaccount, the earliest date on which a Participant has incurred a
separation
from service, within the meaning of Section 409A(a)(2) of the Code,
with the
Service Recipient.
1.25. Service Recipient means the person for whom the services
resulting in the rights to compensation were performed, and with
respect to whom
the legally binding right to compensation arises, and all persons
with whom such
person would be considered a single employer under Section 414(b)
of the Code
(employees of a controlled group of corporations), and all persons
with whom
such person would be considered a single employer under Section
414(c) of the
Code (employees of partnerships, proprietorships, etc. or other
entities under
common control).
1.26. Specified Employee shall mean any Participant who, at the
time of
his or her Separation from Service, is a "key employee", within the
meaning of
Section 416(i) of the Code, of any Service Recipient any of the
stock in which
is publicly traded on an established securities market or
otherwise. The
determination as to whether a Participant is a Specified Employee
shall be
determined in a manner consistent with applicable Treasury
Regulations under
Section 409A.
1.27. Tax-Deferred Contributions means the contributions credited
to
the Participant's Account under Section 2.1 of the Plan.
1.28. Tax-Deferred Contributions Account means the account
maintained
by the Company under the Plan for the Participant that is credited
with the
Participant's Tax-Deferred Contributions. Separate sub-accounts
shall be kept
for Amounts Subject to Section 409A and Amounts Not Subject to
Section 409A.
1.29. Trust means Spire Corporation Non-Qualified Deferred
Compensation
Plan Trust for Roger Little between the Company and the
Trustee.
1.30. Trustee shall mean the persons or entity that shall from time
to
time be serving as the Trustee of the Trust.
1.31. Unforeseeable Emergency
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(a) For Amounts Not Subject to Section 409A: shall mean an
unanticipated emergency, such as a sudden and unexpected illness or
accident of
the Participant or a dependent of the Participant or loss of the
Participant's
property due to casualty, that is caused by an event beyond the
control of the
Participant and that would result in severe financial hardship if
the withdrawal
were not permitted. The need to pay the Participant's child's or
grandchild's
tuition to college and the desire to purchase a home shall not be
considered
unforeseeable emergencies.
(b) For Amounts Subject to Section 409A: shall mean a severe
financial hardship to the Participant resulting from an illness or
accident of
the Participant, the Participant's spouse, the Participant's
Beneficiary, or the
Participant's dependent (as defined in Section 152 of the Code,
without regard
to Section 152(b)(1), (b)(2) and (d)(1)(B); loss of the
Participant's property
due to casualty (including the need to rebuild a home following
damage to a home
not otherwise covered by insurance, for example, not as a result of
a natural
disaster); or other similar extraordinary and unforeseeable
circumstances
arising as a result of events beyond the control of the
Participant.
Whether an Unforeseeable Emergency has occurred shall be determined
by the
Committee based on the relevant facts and circumstances of each
case.
2.
Contributions.
2.1. Tax-Deferred Contributions. The Participant, so long as he
remains
a Participant, may elect (pursuant to a Deferral Agreement
furnished by the
Committee prior to the beginning of the Plan Year and in accordance
with
Committee rules) to reduce and defer receipt pursuant to this Plan
of an amount
not to exceed one hundred percent (100%) (in whole percentages) of
his base
salary and any bonuses earned during the Plan Year. Deferral
Agreements are
effective on a Plan Year basis, and must be filed before the
beginning of the
Plan Year to which they relate. Deferral Agreements may not be
amended or
revoked after the beginning of the Plan Year. The Company shall
withhold, by
payroll deduction, the Eligible Compensation deferred pursuant to
this Section
2.1 (if any) from the current Eligible Compensation payments of the
Participant
and credit such withheld amounts to the Participant's Tax-Deferred
Contributions
Account under the Plan. The Deferral Agreement may not be amended
or revoked
during the Plan Year for which it is made.
2.2. Employer Contributions. For each Plan Year, the Company
shall
credit to the Participant's Employer Contribution Account an amount
not
exceeding Two Hundred Fifty Thousand Dollars and No Cents
($250,000), which may,
in the Company's discretion, be credited in equal monthly
installments
throughout the Plan Year as of the first day of each calendar
month. The Company
hereby agrees that the amount to be credited for the Plan Year
beginning on
January 1, 2002 shall be $250,000, which shall be credited in equal
monthly
installments of $20,833.33 as of the first day of each calendar
month. In each
Plan Year commencing on or after January 1, 2003, the Company shall
credit the
full $250,000 to the Participant's Employer Contribution Account,
unless the
Board determines, reasonably and in good faith, that there is
insufficient
Available Cash (as hereinafter defined) to make such contribution
in full, in
which case the Company shall contribute to the Participant's
Employer
Contribution Account the full amount of Available Cash. If in any
Plan Year the
Company fails to make the full contribution due to a lack of
Available Cash, the
Company shall make catch-up contributions in each subsequent Plan
Year in an
amount equal to all Available Cash remaining after deducting the
$250,000
contribution for the then current Plan Year, until such time as the
amount
credited by the Company to the Participant's Employer Contribution
Account
equals $250,000 times the number of Plan Years that have elapsed.
The term
"Available Cash" with respect to any Plan Year shall mean the
excess of the
gross receipts of the Company from whatever source for the Plan
Year immediately
preceding the current Plan Year over the sum of the following
amounts: (a) the
amount of cash disbursed during the Plan Year immediately preceding
the current
Plan Year to make payments then due on accrued liabilities and
obligations of
the Company and to pay capital expenditures and ordinary and
necessary costs and
expenses incident to the operation of the Company's business; and
(b) the amount
which the Board allocates to reasonable reserves to pay costs,
expenses and
liabilities of the type described in clause (a) for which the Board
does not,
reasonably and in good faith, expect the Company to have the
necessary cash at
the time such payments are required to be made.
In addition, for each Plan Year, the Company may credit to the
Participant's Employer Contribution Account such additional
contributions, if
any, as the Company shall determine based upon such criteria
(including but not
limited to those listed above) as the Company, in its discretion,
shall from
time to time determine.
3.
Vesting.
3.1. Participant's Account. The Participant's interest in his
Participant's Account shall be fully vested and nonforfeitable at
all times.
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4.
Investment of Participant's Account and Trust.
4.1. Investment. Amounts credited to a Participant's Account shall
be
contributed by the Company to the Trust as soon as practicable
after they are so
credited. The value of a Participant's Account shall be measured as
if amounts
credited to such Account were actually invested in the Investment
Funds selected
by the Participant in accordance with the Plan, and shall be
credited with gains
and losses allocable thereto at such times and in such manner as
shall be
determined by the Committee reasonably and in good faith. The
Participant shall
elect on the Participant Election and Enrollment Form the portion
of the
Participant's Account, in whole percentages, that are to be treat
