Exhibit 10.39
AMENDMENT TO
EMPLOYMENT
AGREEMENT
THIS AMENDMENT TO EMPLOYMENT
AGREEMENT is by and between Vecco Instruments Inc., a Delaware
corporation (the “Company”), and John F. Rein, Jr.
(“Executive”).
RECITALS
A.
The parties hereto entered into an Employment Agreement dated
effective April 1, 2003, which was amended by Amendments to
Employment Agreement dated June 9, 2006 and September 16, 2008
(collectively, 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 IRC Section 409A shall be effective as of such
earlier date:
1.
In Section 1 of the Agreement, the following paragraph is added to
the definition of Termination for “Good
Reason”:
Notwithstanding the foregoing,
within a period of ninety (90) days after the initial existence of
one of the foregoing conditions, Executive must notify the Company
of the existence of such condition and the Company shall have a
period of thirty (30) days after receipt of such notice within
which to remedy the condition and, if the Company remedies such
condition within such period, no Termination for Good Reason will
be deemed to have occurred.
2.
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superseded: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)
To the extent that the Agreement
provides for the reimbursement of specified expenses incurred by
the Executive, such reimbursement shall be made in accordance with
the provisions of the Agreement, but in no event later than the
last day of the Executive’s taxable year following the
taxable yea
