www.eXFILE.com 888-775-4789 --- NEXX SYSTEMS, INC.  FORM S-1


    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 Dr. Richard S. 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 Mr. Walsh serves as President
and Chief Executive Officer.  Executive acknowledges and agrees that
the election of Mr. Walsh as President and Chief Executive Officer and the
responsibilities afforded Mr. Walsh 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:

    


    
      	
               
      

            	
               “(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.

            


    

    


    (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:

    


    
      	
               
      

            	
               “(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.”

            


    

    


    (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:

    


    
      	
               
      

            	
               “(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.”

            


    

    


    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/ Thomas
Walsh                                 
                                

    Thomas Walsh,

    President and

                                                                                                   
Chief Executive Officer

    


     

     

    ACCEPTED
AND AGREED:

    


    


    


    /s/ Richard S.
Post                  

    Dr.
Richard S. 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

    


    
      	
              •  

            	
              Represent
      NEXX at the meetings as the program manager and coordinate the research
      programs with NEXX’s goals.

            


    

    
      	
              •  

            	
              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

            


    

    
      	
              •  

            	
              Bring
      back member company requirements to NEXX for evaluation and inclusion in
      the product plans.

            


    

    
      	
              •  

            	
              Uses
      these programs to assist in developing key technologies which NEXX
      requires for success in the market:

            


    

    
      	
              • 
        

            	
              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.

            


    

    
      	
              • 
        

            	
              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 Haas to work with
  Sematech.

            


    

    


    Technical
Marketing

    


    Use
Dick’s contacts and participation in packaging meetings to

    


    
      	
              •  

            	
              Look
      for market trends

            


    

    
      	
              •  

            	
              Build
      collaboration with technical
leaders

            


    

    
      	
              •  

            	
              Work
      with market consultants to provide

            


    

    
      	
              • 
        

            	
              Market
      opportunity for proposed Strip, Etch and Descum
  tools

            


    

    
      	
              • 
        

            	
              Market
      size

            


    

     

    New
opportunities in our market which are yet to be developed, e.g. probe cards, HB
LED, ubumps, 3D

    


    NEXX
Products

    


    
      	
              •  

            	
              Consult
      on product technical issues with Arthur and
  engineers

            


    

    


    Infrastructure

    


    
      	
              •  

            	
              Identify
      suitable tools for program
management

            


    

    


    Sales
Consultation

    


    
      	
              •  

            	
              Stay
      current on customers where he can add
value

            


    

    
      	
              •  

            	
              Continue
      with the Management Review meeting to stay current with
    issue.

            


    

    


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    EXHIBIT
“C”

    


    MEDICARE
OPION INSURANCE EXAMPLE

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

    
 

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    
      	
              [LOGO]

               

              NEXX
      SYSTEMS

            	 
      	 
      	 
      	 
      	 
      	 
      	 
      	
               

               

               

            	 
      
	
              BlueCross
      BlueShield of Massachusetts Medicare Options

            	 
      	 
      	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      
	 
      	
              9/08-8/09
      Rates

            	
              1/09-12/09
      Rates

            	
              1/09-12/09
      Rates

            	 
      
	 
      	
              BCBSMA

            	
              BCBSMA

            	
              Medicare

            	
              Medicare
      PPO Blue

            	
              BCBSMA

            	
              Blue
      Medicare

            	
              Medicare

            	
              Medicare
      Supplement

            	 
      
	
              Coverage

            	
              Group
      PPO Plan

            	
              Medicare
      PPO Blue

            	
              Part
      B

            	
              plus
      Medicare Part B

            	
              MEDEX
      Bronze

            	
              Rx
      (Premier) Part D

            	
              Part
      B

            	
              plus
      Medicare Part B & D

            	 
      
	
               

            	
               

            	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      
	
              Two-Person
      rate

            	
              $937.71

            	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      
	
              Employee
      rate

            	 
      	
              $180.00

            	
              $96.40

            	
              $276.40

            	
              $162.97

            	
              $80.90

            	
              $96.40

            	
              $340.27

            	 
      
	
              Spouse
      rate

            	 
      	
              $180.00

            	
              $96.40

            	
              $276.40

            	
              $162.97

            	
              $80.90

            	
              $96.40

            	
              $340.27

            	 
      
	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      
	
               Total
      Monthly Premium

            	
              $937.71

            	
              $360.00

            	
              $192.80

            	
              $552.80

            	
              $325.94

            	
              $161.80

            	
              $192.80

            	
              $680.54

            	 
      
	
              $
      Change from Current

            	
               

            	 
      	 
      	
              ($384.91)

            	 
      	 
      	 
      	
              ($257.17)

            	 
      
	
              %
      Change from Current

            	 
      	 
      	 
      	
              -41.0%

            	 
      	 
      	 
      	
              -27.4%

            	 
      
	
              Plan
      Type

            	
              Group
      Plan

            	
              Medicare
      Advantage (Part C) Plan

            	 
      	
              Medicare
      Supplement plus Part D

            	 
      	 
      	 
      
	
              Required
      residence

            	 
      	
              Permanent
      residence in MA

            	 
      	
              Primary
      residence in MA

            	 
      	 
      	 
      	 
      
	
               

            	
              Enhanced
      Value

              PPO

            	
              Medicare
      PPO

              includes
      BluePremierRx

            	 
      	 
      	
              MEDEX
      Bronze

              Freedom
      of  Choice

              Indemnity
      plan

            	
              Part
      D Rx Drug Plan

            	 
      	 
      	 
      
	
              Network
      Information

            	
              Nationwide
      PPO

            	
              Not
      a nationwide PPO network

            	 
      	
              No
      PPO network requirement

            	 
      	 
      	 
      	 
      
	
              In Network Benefits

            	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      
	
              Office
      Visit Copay

            	
              $20

            	
              $15
      PCP/$25 Specialist

            	 
      	 
      	
              Medicare
      Part A and Part B pay

            	 
      	 
      	 
      	 
      
	
              ER
      Copay

            	
              $75

            	
              $50

            	 
      	 
      	
              and
      MEDEX supplements by paying

            	 
      	 
      	 
      
	
              Inpatient
      Hospitalization Copay

            	
              $500

            	
              $100/day
      up to $500 out-of-pocket maximum per year

            	
              the
      member deductible/coinsurance

            	 
      	 
      	 
      
	
              Day
      Surgery Copay

            	
              $250

            	
              $100

            	 
      	 
      	 
      	 
      	 
      	 
      	 
      
	
              Retail
      Rx Drug Copays (30 day supply)

            	
              $15/$30/$50

            	
              $10/$28/$58

            	 
      	 
      	
              Drugs
      are not part of

            	
              $8/$24/$60
      (up to $2,700 total cost) then

            	 
      
	
              Mail
      Order Rx Drug Copays (90 day supply)

            	
              $15/$30/$50

            	
              $20/$56/$116

            	 
      	 
      	
              MEDEX
      plan

            	
              $8
      (for generic only
      from $2,701 to $4,350 total cost) then

            	 
      	 
      	 
      
	
              Out-of-Network Benefits

            	 
      	 
      	 
      	 
      	 
      	
              $2.40
      or $6 depending on drug type ($4,351+ total cost)

            	 
      
	
              Deductible
      (single/family)

            	
              $500/$1,000

            	
              $500

            	 
      	 
      	 
      	 
      	 
      	 
      	 
      
	
              Coinsurance
      (member portion)

            	
              20%

            	
              20%

            	 
      	 
      	 
      	 
      	 
      	 
      	 
      
	
              Coinsurance
      Maximum (single/family)

            	
              $1,000/$2,000

            	
              $4,000
      out-of-pocket limit

            	 
      	 
      	 
      	 
      	 
      	 
      	 
      
	
              Additional
      Services:

            	 
      	
              Dental

            	 
      	 
      	 
      	 
      	 
      	 
      	 
      
	
               

            	
               

            	
              Hearing

            	 
      	 
      	
               

            	 
      	 
      	 
      	 
      
	 
      	 
      	
              Vision

            	 
      	 
      	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	
              Physical
      exams

            	 
      	 
      	 
      	 
      	 
      	 
      	 
      
	
              Note:

            	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      
	
              All
      Medicare options include Medicare Part A

            	 
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      
	
              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.

            	 
      
	
              Details
      of these BlueCross BlueShield of Massachusetts plans are available at
      www.bluecrossma.com/medicare-options/

            	 
      
	
              The
      website includes tools to determine whether doctors/pharmacies are
      in-network and certain prescriptions are covered