Exhibit 10.38
AMENDMENT TO
EMPLOYMENT
AGREEMENT
THIS AMENDMENT TO EMPLOYMENT
AGREEMENT is by and between Vecco Instruments Inc., a Delaware
corporation (the “Company”), and John R. Peeler
(“Executive”).
RECITALS
A.
The parties hereto entered into an Employment Agreement dated
effective July 1, 2007 (the “Agreement”) and desire to
amend the Agreement as set forth herein.
B.
Capitalized terms used in this Amendment and not defined are
defined in the Agreement.
NOW THEREFORE
, the parties, intending to be
legally bound, hereby agree as follows, effective December 31,
2008; provided, however, that any provision below required to apply
as of a date prior to December 31, 2008 in order for the Agreement
to comply with Code Section 409A shall be effective as of such
earlier date:
1.
Where the Agreement requires the following payments to be made to
the Executive, the following rules shall apply, and any
inconsistent provision in the Agreement shall be
superseded:
(a)
The general release and waiver of
claims in Section 4 of the Agreement must be signed by the
Executive and returned within the reasonable time period designated
by the Company, in order to assure that payment shall be made
within 90 days after the Executive’s termination of
employment. The Executive may not designate the taxable year of
payment within such 90 day period.
(b)
Annual bonus or incentive pay
otherwise payable under the Agreement after the end of a bonus plan
performance period shall be paid within 2½ months after the
end of the calendar year (or, if applicable, the fiscal year of the
Company) to which such bonus or incentive pay relates (or where
performance is measured over more than one year, withi
