Filed by Bowne Pure Compliance






EXHIBIT 10.18




ULTRATECH, INC.




NON-QUALIFIED SUPPLEMENTAL DEFERRED COMPENSATION PLAN




PLAN AMENDMENT NO.1




     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.




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          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 In-Service Distribution,
provided that such election is made in accordance with procedures established by the Administrator,
and further provided that any such election must be made no later than 12 calendar months prior to
the originally elected In-Service Distribution Date. Participants may elect any deferred payment
date, but such date must be no fewer than five years from the original In-Service Distribution
Date.



     6. Section 9.2 of the Plan is hereby amended in its entirety to read as follows:



     To the extent authorized by the Employer in the Adoption Agreement, a Participant may, in lieu
of a lump sum distribution under Section 9.1, elect to receive payments from one or more of his
Accounts in a series of annual installments over a period not to exceed the maximum installment
period specified by the Employer in the Adoption Agreement. To the extent a



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Participant fails to make an election, the Participant shall be deemed to have elected to
receive his distribution for that Plan Year in the form of a single lump sum. To the extent
authorized by the Employer in the Adoption Agreement, a Participant may make a separate election
with respect to his Performance-Based Bonus Deferrals for each year (as adjusted for gains and
losses thereon) that provides for a different method of distribution from the method of
distribution such Participant elects with respect to his Compensation Deferrals (as adjusted for
gains and losses thereon) for that year. The Participant’s Employer Contributions Account
attributable to such year, if any (as adjusted for gains and losses thereon), shall be distributed
in the same manner as his Compensation Deferral Account for such year.





	 	(a)	 	Installment Elections. A Participant will be required to make his
installment distribution election with respect to a particular year’s Account prior to
the commencement of the calendar year to which that Account relates (or, in the event
of an election with respect to Performance-Based Bonuses, prior to six months before
the end of the applicable performance period), or such earlier date as determined by
the Administrator.
	 
	 	(b)	 	Installment Payments. The first installment payment shall be within
the 90-day period following the Participant’s Termination Date Succeeding payments
shall be made on or after January 1 of each succeeding calendar year, but in no event
later than the last day of each such succeeding calendar year. The amount to be
distributed in each installment payment shall be determined by dividing the value of
the Participant’s Accounts as of a Valuation Date preceding the date of each
distribution by the number of installment payments remaining to be made, in accordance
with rules established by the Administrator. In the event of the death of the
Participant prior to the full payment of his Account in accordance with the elected
installment distribution, the entire unpaid vested balance of that Account will be paid
to the Participant’s Beneficiary in a single lump sum distribution within the 90-day
period following the date of the Participant’s death or as soon as administratively
practicable, but in no event later than the later of (i) the close of the calendar year
in which the Participant’s death occurs or (ii) the fifteenth day of the third calendar
month following the date of the Participant’s death.





     An installment distribution elected by a Participant in accordance with this Section 9.2 shall
be treated as a single payment for purposes of Section 409A of the Code. To the extent authorized
by the Employer in the Adoption Agreement, Participants who have elected payment of a particular
Account balance in installments may make a subsequent election to receive the payment of that
Account in the form of a lump sum, provided the installment distribution of that Account has not
yet commenced. Such election must be made in accordance with procedures established by the
Administrator, and any such election must be made no later than 12 calendar months prior to the
originally elected payment date of the first installment. The new payment date for the lump sum
distribution must be deferred to a date that is at least five years after the date the initial
installment payment would otherwise have been made. To the extent authorized by the Employer in
the Adoption Agreement, Participants who have elected payment of a particular Account balance in
installments may make a subsequent election to change the number of those installments (but no
fewer than the minimum number, and not to exceed the maximum number of installments authorized by
the Employer in the Adoption Agreement), if the



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installment distribution of that Account has not yet commenced. Such election must be made in
accordance with procedures established by the Administrator, and any such election must be made no
later than 12 calendar months prior to the originally elected payment date of the first
installment. The payment date for the first installment of the newly elected installment
distribution must be deferred for a period of not less than five years from the date the initial
installment of the originally elected installment distribution would have otherwise been made in
the absence of the new election. In the event the Participant has elected to receive the
distribution of a particular Account balance in the form of a lump sum (or in the event payment of
that Account is to be made to the Participant in the form of a lump sum under the terms of the Plan
in the absence of or in lieu of the Participant’s election), then the lump sum form shall be deemed
to be a separately identifiable form of payment, and the Participant may make a subsequent deferral
election to receive payment of that Account in the form of installments (to the extent authorized
by the Employer in the Adoption Agreement). Such election must be made in accordance with
procedures established by the Administrator, and any such election must be made no later than 12
calendar months prior to the originally elected payment date for the lump sum distribution of the
Account. The payment date for the first installment of the newly elected installment distribution
must be deferred to a date that is at least five years after the date the lump sum distribution of
the Account would otherwise have been made in the absence of the new installment election.
Participants will be permitted to make such a change under this Section 9.2 only once with respect
to any year’s Deferral Elections.




     7. Section 9.3 of the Plan is hereby amended in its entirety to read as follows:



          Notwithstanding anything herein to the contrary, and subject to Code Section 409A, no payment
under subsections 9.3 or 9.4 shall be made or commence as a result of the Participant’s Termination
Date to any Participant who is at that time a specified employee (as defined below) before the date
that is not less than six months after the Participant’s Termination Date. In the event amounts
are payable to a specified employee in installments in accordance with subsection 9.2, the first
installment shall be delayed by six months, with all other installment payments payable as
originally scheduled. For purposes of the foregoing, a specified employee shall be any employee
who is, pursuant to procedures established by the Administrator in accordance with the applicable
standards of Code Section 409A and the Treasury Regulations thereunder and applied on a consistent
basis for all non-qualified deferred compensation plans of the Employer subject to Code Section
409A, deemed on his or her Termination Date to be a “specified employee” within the meaning of that
term under Code Section 409A. The specified employees shall be identified on December 31 of each
calendar year and shall and shall include each Employee who is a “key employee” (within the meaning
of that term under Code Section 416(i)) of the Employer at any time during the twelve (12)-month
period ending with such date. An individual who is so identified as a specified employee will
have that status for the twelve (12)-month period beginning on April 1 of the following calendar
year. To the extent not otherwise designated by the Employer in a separate document forming a part
of the Plan, the definition of compensation used to determine specified employee status shall be
determined under Treasury Regulation Section 1.415(c)-2(a).




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     8. Section 9.4 of the Plan is hereby amended in its entirety to read as follows:



          If the aggregate balance of the Participant’s Accounts under this Plan is not greater than the
applicable dollar amount in effect under Code Section 402(g)(1)(B) on the Participant’s Termination
Date and the Participant is not otherwise at that time participating in any other non-qualified
elective account balance plan subject to Code Section 409A and maintained by one or more members of
the Employer group, then that balance shall be distributed to the Participant in a lump sum
distribution on such Termination Date or as soon as administratively practical thereafter, whether
or not the Participant elected that form of distribution or distribution event, but in no event
shall such lump sum distribution be made later than the later of (i) the end of the calendar year
in which such Termination Date occurs or (ii) the fifteenth (15th) day of the third (3rd) calendar
month following such Termination Date.




          If the Participant is receiving installment distributions from his or her Accounts under the
Plan following his or her Termination Date and the aggregate present value of all the remaining
unpaid installments for those Accounts is at any time during the installment period less than
Twenty Thousand Dollars ($20,000.00), then those remaining installments shall be paid to the
Participant in a single lump sum within thirty (30) days thereafter.




     9. Section 9.7 of the Plan is hereby amended in its entirety to read as follows:



          Except as otherwise provided herein and in Section 12, Account balances of Participants in
this Plan shall not be distributed earlier than the applicable date or dates described in this
Section 9. Notwithstanding the foregoing, in the case of payments: (i) the deduction for which
would be limited or eliminated by the application of Section 162(m) of the Code or (ii) that would
violate securities or other applicable laws; deferral of such payments may be made by the Employer
at the Employer’s discretion. In the case of a payment described in (i) above, the payment must be
deferred either to a date in the first year in which the Employer or Administrator reasonably
anticipates that a payment of such amount would not result in a limitation of a deduction with
respect to the payment of such amount under Section 162(m), or the year in which the Participant’s
Termination Date occurs. In the case of a payment described in (ii) above, payment will be made in
the first calendar year in which the Employer or Administrator reasonably anticipates that the
payment would not result in a violation of securities or other applicable laws.




          Payments intended to pay employment taxes or payments made as a result of income inclusion of
an amount in a Participant’s Accounts as a result of a failure to satisfy Section 409A of the Code
shall be permitted in accordance with Section 1.409A-3(j)(vi) and (vii) of the final Treasury
Regulations under Section 409A of the Code. “Employment taxes” shall include Federal Income
Contributions Act (FICA) tax imposed under Sections 3101 and 3121(v)(2) of the Code on compensation
deferred under the Plan (the “FICA Amount”), the income tax imposed under Section 3401 of the Code
on the FICA Amount, and to pay the additional income tax under Section 3401 of the Code
attributable to the pyramiding Section 3401 wages and taxes.




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     10. The first sentence of Section 9.9 of the Plan is hereby deleted and replaced with the
following two sentences:



          In the event of the occurrence of a Change in Control of the Employer or a member of the
Employer’s controlled group (as designated by the Employer in the Adoption Agreement, and to the
extent certified by the Administrator that a Change in Control has occurred), distributions shall
be made to Participants in a single lump sum, to the extent those Participants have elected to
receive such a distribution from one or more of their Accounts under the Plan upon the occurrence
of a Change in Control. The distribution shall be made on the closing date of the Change in
Control or as soon as administratively practicable thereafter, but in no event later than the later
of (i) the close of the calendar year in which the Change in Control is effected or (ii) the
fifteenth day of the third calendar month following such effective date.




     11. The following paragraph is hereby added to the end of Section 9.10 of the Plan:



          The distribution under this Section 9.10 shall be in lieu of the amounts credited to the
unpaid vested balances of the Participant’s Accounts under the Plan. The distribution shall be in
the form of a single lump sum payment made to the Participant’s Beneficiary within the 90-day
period following the date of the Participant’s death or as soon as administratively practicable
thereafter, but in no event but in no event later than the later of (i) the close of the calendar
year in which the Participant’s death occurs or (ii) the fifteenth day of the third calendar month
following the date of the Participant’s death..




     12. Section 10.18 of the Plan is hereby deleted.



     13. Except as modified by this Plan Amendment, all the terms and provisions of the Plan (as
amended and restated effective as of January 1, 2005) shall continue in full force and effect.



     IN WITNESS WHEREOF, Ultratech, Inc. has caused this Plan Amendment to be executed by its
duly-authorized officer on this 16 day of October, 2008.



	 	 	 	 	 
	 	 	ULTRATECH, INC.
	 
	 	 	 	 
	 

	 	By:	 	/s/ Bruce Wright
	 

	 	 	 	 





	 	 	 	 	 	 
	 

	 	  Title:	 	Chief Financial Officer	 






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