Exhibit 10.40


 


FORM OF AMENDMENT TO


LETTER AGREEMENT


 


THIS AMENDMENT TO LETTER AGREEMENT is by and between
Vecco Instruments Inc., a Delaware corporation (the “Company”), and                             
(“Executive”).


 


RECITALS


 


A.            The
parties hereto entered into a Letter Agreement dated                                   ,
(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 Section 409A of the Internal Revenue Code of 1986,
as amended, and the rules and regulations promulgated thereunder (the “Code”), shall
be effective as of such earlier date:


 


1.             Good Reason. If a condition constituting Good
Reason exists, then within a period of ninety (90) days after the
initial existence of such condition, you 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 Good Reason
entitling you to resign will be deemed to have occurred.


 


2.             Timing
of Payments. 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provision in the Agreement shall be superseded: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)                                  A payment to be made
upon termination of employment shall be made no later than 90 days after the
occurrence of such event. If payment is contingent upon a release agreement,
the Executive shall sign and return the agreement within the reasonable time
period designated by the Company, in order to assure that payment shall be made
within such 90 day period. 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 21⁄2 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, within 21⁄2 months after the end of the last such year of the
performance period).


 


3              Section
409A Compliance. Each of the severance payments and benefits provided under
the Agreement is designated as a separate payment for purposes of the
short-term deferral rules under Treasury Regulation Section
1.409A-1(b)(4)(i)(F) and the exemption for involuntary terminations under
separation pay plans under Treasury Regulation Section 1.409A-1(b)(9)(iii). As
a result, (1) any payments that become vested as a result of a qualifying 


 

















 


termination that are made on or
before the 15th day of the third month following the later of the end of the
Company’s taxable year or the end of the Executive’s taxable year during which
the Executive’s termination of employment occurs, and (2) any additional
payments that are made on or before the last day of the second calendar year
following the year of the Executive’s termination and do not exceed the lesser
of two times Base Salary or two times the limit under Code Section 401(a)(17)
then in effect, are exempt from the requirements of Code Section 409A.


 


The parties understand and agree that certain payments
contemplated by this Agreement, including severance pay, may be “deferred
compensation” for purposes of Code Section 409A. Notwithstanding any provision
of this Agreement to the contrary, any payments constituting deferred
compensation required to be made upon or in respect of your termination of
employment hereunder shall not be paid prior to six months after your
termination of employment, to the extent necessary to comply with Code Section
409A(2)(B)(i). The Company shall identify in writing delivered to you any
payments it reasonably determines are subject to delay hereunder and shall
promptly pay any such delayed payments, without interest, at the conclusion of
the applicable six month period (or, if later, when scheduled to be paid under
the terms of the Agreement.)  No deferred
compensation payable hereunder shall be subject to acceleration or to any
change in the specified time or method of payment, except as otherwise provided
under this Agreement and consistent with Code Section 409A. In no event shall
the Company have any liability or obligation with respect to taxes for which
you may become liable as a result of the application of Code Section 409A.


 


Notwithstanding anything to
the contrary contained in this Section, if you die prior to the expiration
of  the six month period set forth
herein, payment of any amounts previously withheld due to application of this
Section shall be paid to your beneficiary as soon as practicable following your
death. Whether you are a “specified employee” within the meaning of Code
Section 409A to which the six month delay period may apply will be determined by Company policy.


 


IN WITNESS
WHEREOF, this Amendment is executed to be effective on the date and year first
above written.


 


 


	
  VEECO INSTRUMENTS INC.

  	
   

  	
  EXECUTIVE

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
   

  
	
  Name:

  	
   

  	
   

  	
   

  
	
  Title:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  DATE: December     , 2008

  	
   

  	
  DATE: December     , 2008

  



 


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