FIRST AMENDMENT TO EMPLOYMENT AGREEMENT
EXHIBIT
10.9.1
FIRST AMENDMENT TO
EMPLOYMENT AGREEMENT
This First Amendment to Employment
Agreement (the “First Amendment”) is made and entered into as of this 1st day of
January 2009 by and between NEXX Systems, Inc., a Delaware corporation (the
“Company”) and Xx. Xxxxxxx X. Post of Lexington, Massachusetts (the
“Executive”).
For good and valuable consideration,
the sufficiency and receipt whereof are hereby acknowledged, the parties agree
as follows:
1. Recitals. NEXX
Systems, LLC, a Delaware limited liability company and the predecessor to the
Company and the Executive entered into an Employment Agreement as of the 7th day
of August, 2001, a copy of which is attached hereto as Exhibit “A”(the “Original
Agreement”). The Company and the Executive have agreed to amend the
Original Agreement as set forth herein. Except as otherwise set forth
herein, any defined terms contained herein shall have the meaning originally
ascribed to them in the Original Agreement.
2. Change in Title and
Responsibilities. (a) The parties acknowledge and
agree that effective as of October 6, 2008, the Executive serves as the Chairman
of the Corporation in a non-executive capacity and Xx. Xxxxx serves as President
and Chief Executive Officer. Executive acknowledges and agrees that
the election of Xx. Xxxxx as President and Chief Executive Officer and the
responsibilities afforded Xx. Xxxxx and to Executive hereunder, have not, and do
not constitute a basis for, the Executive seeking to terminate his employment
for “Good Reason” as defined in the Original Agreement.
(b) Effective
as of the date of this First Amendment, in addition to Executive’s duties as the
non-executive Chairman of the Board of Directors, the Executive shall serve as
an Internal Consultant to the CEO, providing services as requested the CEO,
which services shall initially consist of those services as set forth in Exhibit
“B” attached hereto.
3. Term of
Services. Subject to the right of the Company to terminate the
Executive’s employment at any time with or without Cause, the Executive shall
continue to remain employed by the Company through December 31, 2009, at which
time, the Chairman’s employment with the Company shall terminate without
Cause. Notwithstanding the foregoing, at the sole election of the
Company, the Company may offer the Executive continuing employment
thereafter. It is anticipated that the Executive shall not be
required to work on a full-time basis but shall provide accurate bi-weekly
reports to the CEO on time spent and services provided and such other
information as reasonably requested by the CEO.
4. Payment for
Services. Section 3(a) of the Original Agreement is hereby
amended to provide that cash compensation shall be paid to the Executive at the
rate of $9,701.04 per payroll period (equivalent to $232,825 on an
annualized basis). During 2009, Executive shall be eligible for
vacation as set forth in the Original Agreement and proper credit shall be
applied for accrued hours for vacation as determined by the Company in
accordance with the Company’s then standard vacation policy.
5. Severance
Arrangements. The hours worked per week (based on a 40
hour work week) shall reduce the amount of Severance Benefits set
forth in the Original Agreement(other than health and dental insurance as
provided herein) proportionally upon termination of the Executive’s
employment. For illustration purposes, if Executive works an average
of 20 hours per week during all of 2009, then severance salary payments due to
him thereafter will be reduced by 50% of the original one-year of base salary
due to him under Sections 10 and 11 of the Original Agreement.
(b) Executive
acknowledges and agrees that he shall not be eligible for a bonus for services
provided in 2009. Executive further acknowledges and agrees that the
stock option granted to Executive on September 26, 2008 to purchase up to
709,931 shares of the Corporation’s Common Stock at $.01 per share be, and
hereby is, cancelled.
(c) The
parties acknowledge and agree that the provisions of Sections 3(c) and 10(c) of
the Original Agreement are hereby terminated and the provisions of Section
11(a)(ii)(b) and (c) of the Original Agreement are hereby modified to
read as follows:
“…(b) severance pay in an
amount equal to the sums due the Executive under Section 5(a) of this First
Amendment as described above;
(c) health insurance
coverage as described in Sections 6(a) and (b) of this First Amendment as
described below;…”
EXECUTIVE
ACKNOWLEDGES AND AGREES THAT THERE ARE NO OTHER SUMS DUE TO HIM UNDER THE
ORIGINAL AGREEMENT EXCEPT THOSE SUMS SET FORTH IN THIS FIRST
AMENDMENT.
6. Health
Benefits. (a) The provisions of Section 10(a)(ii) of the
Original Agreement (which provides that following termination without Cause, the
Company shall provide “Executive with health insurance coverage for a period of
sixty (60) months that is the same or substantially similar to that provided to
the Executive while employed by the Company at substantially the same cost to
the Executive”) is hereby deleted and replaced with the following:
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“(ii)
pay Executive through December 31, 2013 a monthly lump sum equal to
$734.60 for health insurance coverage and $155.60 per month for dental
insurance.
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(b)
The provisions of Section 10(e) of the Original Agreement
(which provides that following termination due to the death of the
Executive, the Company shall also provide “health insurance coverage
for a period of sixty (60) months to the Executive’s widow that is the same or
substantially similar to that provided to the Executive while employed by the
Company”) is hereby deleted and replaced with the following:
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“(ii)
pay the Executive’s spouse following his death the amounts that would be
paid to the Executive under Section 6(a) of this First Amendment above if
the Executive were then still
alive.”
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(c) The
provision of Section 10(f) of the Original Agreement which provides
that following termination due to the disability of the Executive, the Company’s
obligations shall include “… the provision of health insurance
coverage to the Executive for a period of sixty (60) months that is the same or
substantially similar to that provided to the Executive while employed by the
Company at substantially the same cost to the Executive” is hereby deleted and
replaced with the following:
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“(ii)
pay the Executive following such disability the amounts that would be paid
to the Executive under Section 6(a) of this First Amendment above.”
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7. Payment
of Severance Benefits
Following Termination without Cause. Following the termination
of Executive’s employment without Cause, the Severance Benefits set forth in
Sections 5 and 6 of this First Amendment shall be paid in the
manner set forth herein. upon receipt of a customary general release
against the Company relating to all employment matters through such
date.
8. Ratification. Except
as specifically modified herein, all of the terms and conditions of the Original
Agreement are hereby ratified and confirmed in all respects.
Very truly yours,
NEXX Systems, Inc.
/s/ Xxxxxx
Xxxxx
Xxxxxx Xxxxx,
President and
Chief Executive Officer
ACCEPTED
AND AGREED:
/s/ Xxxxxxx X.
Post
Xx.
Xxxxxxx X. Post
EXHIBIT
“A”
ORIGINAL
AGREEMENT
EXHIBIT
B
INITIAL
CONSULTING SERVICES
Statement of work (subject
to change at direction of CEO):
Sematech,
IBM, IMEC R&D Programs – Main activity
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Represent
NEXX at the meetings as the program manager and coordinate the research
programs with NEXX’s goals.
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•
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Learn
member company needs and determine how to position our products to meet
those needs. Develop relationships with where NEXX would have
business opportunity and report back to management for integration of
these opportunities to the company sales
plans
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•
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Bring
back member company requirements to NEXX for evaluation and inclusion in
the product plans.
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Uses
these programs to assist in developing key technologies which NEXX
requires for success in the market:
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Develop
a tool which Intel would buy – work with Sematech to get particle and
performance data and assist in integrating this data into NEXX development
plans.
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•
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Develop
wet see and barrier which is critical to competing with Semitool’s claim
that they have an eNi wet seed and barrier. Get chemical
suppliers, Atotech and Rohm and Xxxx to work with
Sematech.
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Technical
Marketing
Use
Dick’s contacts and participation in packaging meetings to
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•
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Look
for market trends
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•
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Build
collaboration with technical
leaders
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•
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Work
with market consultants to provide
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•
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Market
opportunity for proposed Strip, Etch and Descum
tools
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•
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Market
size
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New
opportunities in our market which are yet to be developed, e.g. probe cards, HB
LED, ubumps, 3D
NEXX
Products
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•
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Consult
on product technical issues with Xxxxxx and
engineers
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Infrastructure
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•
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Identify
suitable tools for program
management
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Sales
Consultation
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•
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Stay
current on customers where he can add
value
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•
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Continue
with the Management Review meeting to stay current with
issue.
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EXHIBIT
“C”
MEDICARE
OPION INSURANCE EXAMPLE
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[LOGO]
NEXX
SYSTEMS
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BlueCross
BlueShield of Massachusetts Medicare Options
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9/08-8/09
Rates
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1/09-12/09
Rates
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1/09-12/09
Rates
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BCBSMA
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BCBSMA
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Medicare
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Medicare
PPO Blue
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BCBSMA
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Blue
Medicare
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Medicare
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Medicare
Supplement
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Coverage
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Group
PPO Plan
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Medicare
PPO Blue
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Part
B
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plus
Medicare Part B
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MEDEX
Bronze
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Rx
(Premier) Part D
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Part
B
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plus
Medicare Part B & D
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Two-Person
rate
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$937.71
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Employee
rate
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$180.00
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$96.40
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$276.40
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$162.97
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$80.90
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$96.40
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$340.27
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Spouse
rate
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$180.00
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$96.40
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$276.40
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$162.97
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$80.90
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$96.40
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$340.27
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Total
Monthly Premium
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$937.71
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$360.00
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$192.80
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$552.80
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$325.94
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$161.80
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$192.80
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$680.54
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$
Change from Current
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($384.91)
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($257.17)
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%
Change from Current
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-41.0%
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-27.4%
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Plan
Type
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Group
Plan
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Medicare
Advantage (Part C) Plan
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Medicare
Supplement plus Part D
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Required
residence
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Permanent
residence in MA
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Primary
residence in MA
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Enhanced
Value
PPO
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Medicare
PPO
includes
BluePremierRx
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MEDEX
Bronze
Freedom
of Choice
Indemnity
plan
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Part
D Rx Drug Plan
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Network
Information
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Nationwide
PPO
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Not
a nationwide PPO network
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No
PPO network requirement
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In Network Benefits
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Office
Visit Copay
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$20
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$15
PCP/$25 Specialist
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Medicare
Part A and Part B pay
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ER
Copay
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$75
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$50
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and
MEDEX supplements by paying
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Inpatient
Hospitalization Copay
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$500
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$100/day
up to $500 out-of-pocket maximum per year
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the
member deductible/coinsurance
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Day
Surgery Copay
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$250
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$100
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Retail
Rx Drug Copays (30 day supply)
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$15/$30/$50
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$10/$28/$58
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Drugs
are not part of
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$8/$24/$60
(up to $2,700 total cost) then
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Mail
Order Rx Drug Copays (90 day supply)
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$15/$30/$50
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$20/$56/$116
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MEDEX
plan
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$8
(for generic only
from $2,701 to $4,350 total cost) then
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Out-of-Network Benefits
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$2.40
or $6 depending on drug type ($4,351+ total cost)
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Deductible
(single/family)
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$500/$1,000
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$500
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Coinsurance
(member portion)
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20%
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20%
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Coinsurance
Maximum (single/family)
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$1,000/$2,000
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$4,000
out-of-pocket limit
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Additional
Services:
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Dental
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Hearing
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Vision
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Physical
exams
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Note:
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All
Medicare options include Medicare Part A
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This
is only a brief description of medical benefits. Please refer
to the respective insurance company provided plan descriptions for
questions and plan design verifications.
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Details
of these BlueCross BlueShield of Massachusetts plans are available at
xxx.xxxxxxxxxxx.xxx/xxxxxxxx-xxxxxxx/
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The
website includes tools to determine whether doctors/pharmacies are
in-network and certain prescriptions are covered
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