EXHIBIT 10.17


 


RESTATED
AGREEMENT


 


This Agreement is entered into as of the 24th day of
March, 2005 by and between Ibis Technology Corporation, a Massachusetts
corporation (the “Company”) and Martin J. Reid (the “Executive”).


 


WHEREAS the Executive and the Company previously
executed a Retention Agreement, dated as of September 20, 1999 (the “Previous
Agreement”);


 


WHEREAS the Executive and Company wish to restate and
amend the Previous Agreement in its entirety, replacing it with this Agreement;


 


WHEREAS the Executive desires to enter into this
Agreement to provide him with certain financial protection in the event that
his employment terminates for certain reasons in connection with or within a
period of time after a change of control of the Company; and


 


WHEREAS the Board of Directors of the Company has
determined that it is in the best interests of the Company to enter into this
Agreement.


 


NOW, THEREFORE, for good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the Company and
the Executive agree as follows:


 


1.             DEFINITIONS.


 


(a)  Cause. 
As used herein, the term “Cause” shall be as defined in the employment
agreement by and between the Company and the Executive,
dated November 12, 2003 (the “Employment Agreement”).


 


(b)  Change Of Control.  As used
herein, a “Change of Control” shall be deemed to have occurred if
(i) there is a sale or transfer of all or substantially all of the
assets of the Company in one or a series of transactions; (ii) any “person,”
as such term is used in Section 13(d) of the Securities Exchange Act of
1934, as amended (or any successor provision) (the “Exchange Act”), together
with all “affiliates” and “associates” (as such terms are defined in Rule 12b-2
under the Exchange Act or any successor provision) of such person, shall become
the “beneficial owner” or “beneficial owners” (as defined in Rules 13d-3 and
13d-5 under the Exchange Act or any successor provision), directly or
indirectly, of securities of the Company representing in the aggregate thirty
percent (30%) or more of either (1) the then outstanding shares of common
stock of the Company or (2) the combined voting power of all then
outstanding securities of the Company having the right under ordinary
circumstances to vote in an election of the Board of Directors of the Company
(hereafter referred to as an “Acquisition”); PROVIDED, that, notwithstanding
the foregoing, an Acquisition shall not be deemed to have occurred for purposes
of this clause (ii) solely as the result of an acquisition of securities by the
Company which, by reducing the number of shares of common stock or other voting
securities outstanding, increases 


 


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(x) the proportionate number of shares
of common stock beneficially owned by any person to thirty percent (30%) or
more of the common stock then outstanding or (y) the proportionate voting
power represented by the voting securities beneficially owned by any person to
thirty percent (30%) or more of the combined voting power of all then
outstanding voting securities; or (iii) there is a merger or consolidation
between the Company and an entity other than a subsidiary of the Company in
which the Company is not the continuing or surviving corporation and pursuant
to which the holders of the Company’s voting stock immediately prior to such
merger or consolidation would not be the holders immediately after such merger
or consolidation of at least 50% of the voting stock of the continuing or
surviving corporation.


 


©  Good Reason.  As used
herein, a “Good Reason” shall mean either a good faith determination by the
Executive following a Change of Control that he can no longer fulfill his
duties as specified in the Employment Agreement or a material change in the
Executive’s authority, functions, duties or responsibilities as President and
Chief Executive Officer of the Company(including, without limitation, material
changes in the control or managerial structure of the Company) which would
cause his position with the Company to become of less dignity, responsibility,
importance or scope than his position on the date hereof or as of any
subsequent date prior to the Change of Control, a reduction in the Executive’s
salary or a material reduction in benefits from the amount of salary paid or
the value of the benefits available on the date hereof or as of any subsequent
date prior to the Change of Control, a transfer of the principal location of
the place of performance of the Executive’s duties from the Danvers,
Massachusetts area without the Executive’s consent, or the failure of the Board
of Directors of the Company to elect the Executive as President and Chief
Executive Officer of the Company at any time such elections are made, or
removal from such office of the Company, PROVIDED that such material change is
not in connection with a termination of the Executive’s employment for Cause,
and, PROVIDED, FURTHER, that any notice of termination by the Executive for
Good Reason shall be given by him within ninety (90) days of when he becomes
aware of such change, of such failure or removal.


 


2.             SEVERANCE
COMPENSATION.  In the event that at or
near the time of, in connection with, or within a period of two (2) years
after, a Change of Control, the Executive’s employment with the Company is
terminated either (i) by the Company other than for Cause or (ii) by
the Executive for a Good Reason, then the Company, within ten (10) days of the
applicable termination date, shall pay to the Executive, in addition to any
amounts due to Executive for services rendered prior to the termination date, a
lump sum amount equal to two (2) times the Executive’s highest Annual Salary
during the preceding three year period, including the year of such
termination.  Annual Salary shall mean
Executive’s annual base salary and bonus, excluding reimbursements and amounts
attributable to stock options and other non-cash compensation.


 


3.             CONTINUATION
OF BENEFITS.  In the event that at the
time of, in connection with, or within a period of (2) two years after a Change
in Control, the Executive’s employment with the Company is terminated either
(i) by the Company other than for Cause or (ii) by the Executive
for a Good Reason, then the Company shall arrange to provide the Executive with
life, disability, group dental and health insurance benefits substantially
similar to those the Executive was receiving, immediately prior to the
termination, until the earlier of (a) two (2) years following his


 





















 


termination date, or
(b) the date upon which he becomes eligible for such coverage offered by a
subsequent employer.  Executive’s
termination date shall be the date of any qualifying event under the
Consolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”) and the COBRA
coverage that may be available to Executive, if any, shall be offset by any
period of coverage provided hereunder.


 


3A.          SPECIFIED
EMPLOYEE.  Notwithstanding the provisions
of Sections 2 and 3, if the Executive is a “specified employee” within the
meaning of Section 409A(a)(2)(B) of the Internal Revenue Code of 1986, as
amended (the “Code”), then payment of the amount described in Section 2(a)
shall be made on the date which is six (6) months after the applicable
termination date or, if earlier, the date of death of the Executive, and the
benefit described in Section 3 shall commence on the date which is six (6)
months after the applicable termination date and, subject to the other
provisions of Section 3, continue until thirty (30) months after the applicable
termination date.


 


4.             NO
DUPLICATION OF COMPENSATION OR BENEFITS. 
The Executive’s severance compensation and benefits set forth in
Sections 2 and 3 above shall replace, and be provided in lieu of, any
severance compensation and benefits that may be provided to Executive under any
other agreement, including but not limited to those provided under Section 3(b)
of the Employment Agreement; PROVIDED, that this prohibition against
duplication shall not be construed to otherwise limit Executive’s rights as to
payments or benefits provided under any pension plan (as defined in Section
3(2) of the Employee Retirement Income Security Act of 1974, as amended),
deferred compensation, stock, stock option or similar plan sponsored by the
Company; and FURTHER PROVIDED, that notwithstanding the foregoing, all other
rights and obligations set forth in the Employment Agreement shall continue as
provided for therein.


 


5.             ENFORCEABILITY;
REDUCTION.


 


(a)  If any
provision of this Agreement shall be deemed invalid or unenforceable as
written, this Agreement shall be construed, to the greatest extent
possible, or modified, to the extent allowable by law, in a manner which shall
render it valid and enforceable and any limitation on the scope or duration of
any provision necessary to make it valid and enforceable shall be deemed to be
a part thereof.  No invalidity or
unenforceability of any provision contained herein shall affect any other
portion of this Agreement.


 


(b) 
Notwithstanding anything provided herein, if the Executive is a “disqualified
individual” (as defined in Section 280G of the Code, and the severance
compensation and continuation of benefits provided for in Sections 2 and 3
hereof (collectively “Severance Compensation”) together with any other payments
which the Executive has the right to receive from the Company (or its
affiliates and subsidiaries), would constitute a “parachute payment” (as
defined in Section 280G(b)(2) of the Code), the Severance Compensation shall be
reduced.  The reduction shall be in an
amount so that the present value of the total amount received by the Executive
from the Company (or its affiliates and subsidiaries) will be one dollar
($1.00) less than three (3) times the Executive’s Base Amount (as defined in
Section 280G of the Code) so


 


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that no portion of
the amounts received by the Executive shall be subject to the excise tax
imposed by Section 4999 of the Code (excise tax).


 


The determination as to whether any reduction in
Severance Compensation is necessary and the amount of any such reduction shall
be made by the Company’s independent public accountants (the “Accounting
Firm”) which shall provide detailed supporting
calculations both to the Company and to the Executive within fifteen (15)
business days of the Executive’s termination date.  Any such determination by the Accounting Firm
shall be conclusive and binding upon the Executive and the Company.  The Executive shall determine which part of
the Severance Compensation shall be eliminated or reduced consistent with the
requirements of this Section 5 and shall notify the Company promptly in
writing; PROVIDED, that if the Executive does not make such determination
within ten (10) business days of the receipt of the calculations made by the
Accounting Firm, the Company shall determine which part of the Severance
Compensation shall be eliminated or reduced consistent with the requirements of
this Section 5 and shall notify the Executive promptly in writing of such
election.


 


If through error or otherwise the Executive should
receive payments under this Agreement, together with other payments the
Executive has the right to receive from the Company (or its affiliates and
subsidiaries), in excess of one dollar ($1.00) less than three times his Base
Amount, the Executive shall immediately repay the excess to the Company upon
notification that an overpayment has been made.


 


6.             MITIGATION.  The Executive shall not be required to
mitigate the amount of any payment provided for in this Agreement by seeking
other employment or otherwise, nor shall the amount of any
payment provided for herein be reduced by any compensation earned by the
Executive as the result of employment by another employer or by retirement
benefits after the termination date or otherwise.


 


7.             NOTICES.  All notices, requests, consents and other
communications hereunder shall be in writing, shall be addressed to the
receiving party’s address set forth below or to such other
address as a party may designate by notice hereunder, and shall be either
(i) delivered by hand, (ii) made by telex, telecopy or facsimile
transmission, (iii) sent by overnight courier, or (iv) sent by
registered or certified mail, return receipt requested, postage prepaid.


 


If to the Company:


 


	
   

  	
  Ibis Technology Corporation

  
	
   

  	
   

  
	
   

  	
  32 Cherry Hill Drive

  
	
   

  	
   

  
	
   

  	
  Danvers, MA 01923

  
	
   

  	
   

  
	
   

  	
  Attn: Board of Directors

  



 





















 


If to the Executive:


 


	
   

  	
  Martin J. Reid

  



 


All notices, requests, consents and other
communications hereunder shall be deemed to have been given either (i) if
by hand, at the time of the delivery thereof to the receiving
party at the address of such party set forth above, (ii) if made by telex,
telecopy or facsimile transmission, at the time that receipt thereof has been
acknowledged by electronic confirmation or otherwise, (iii) if sent by
overnight courier, on the next business day following the day such notice is
delivered to the courier service, or (iv) if sent by registered or
certified mail, on the 5th business day following the day such mailing is made.


 


8.             ENTIRE
AGREEMENT.  The Previous Agreement is
hereby restated and amended in its entirety with this Agreement.  This Agreement embodies the entire agreement
and understanding between the parties hereto with respect to the subject matter
hereof and supersedes all prior oral or written agreements and
understandings relating to the subject matter hereof.  No statement, representation, warranty,
covenant or agreement of any kind not expressly set forth in this Agreement
shall affect, or be used to interpret, change or restrict, the express terms
and provisions of this Agreement.


 


9.             MODIFICATIONS
AND AMENDMENTS.  The terms and provisions
of this Agreement may be modified or amended only by written agreement executed
by all parties hereto.


 


10.           WAIVERS
AND CONSENTS.  The terms and provisions
of this Agreement may be waived, or consent for the departure therefrom
granted, only by written document executed by the party
entitled to the benefits of such terms or provisions.  No such waiver or consent shall be deemed to
be or shall constitute a waiver or consent with respect to any other terms or
provisions of this Agreement, whether or not similar.  Each such waiver or consent shall be
effective only in the specific instance and for the purpose for which it was
given, and shall not constitute a continuing waiver or consent.


 


11.           ASSIGNMENT.  The rights and obligations under this
Agreement may not be assigned by either party hereto without the prior written
consent of the other party.


 


12.           BENEFIT.  All statements, representations, warranties,
covenants and agreements in this Agreement shall be binding on the parties
hereto and shall inure to the benefit of the respective successors
and permitted assigns of each party hereto. 
Nothing in this Agreement shall be construed to create any rights or
obligations except among the parties hereto, and no person or entity shall be
regarded as a third-party beneficiary of this Agreement.


 


13.           GOVERNING
LAW.  This Agreement and the rights and
obligations of the parties hereunder shall be construed in accordance with and
governed by the law of the Commonwealth of Massachusetts, without giving
effect to the conflict of law principles thereof.


 


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14.           JURISDICTION
AND SERVICE OF PROCESS.  Any legal action
or proceeding with respect to this Agreement may be brought in the courts of
the Commonwealth of Massachusetts or of the United States of America for
the District of Massachusetts.  By
execution and delivery of this Agreement, each of the parties hereto accepts
for itself and in respect of its property, generally and unconditionally, the
jurisdiction of the aforesaid courts. 
Each of the parties hereto irrevocably consents to the service of
process of any of the aforementioned courts in any such action or proceeding by
the mailing of copies thereof by certified mail, postage prepaid, to the party
at its address set forth in Section 7 hereof.


 


15.           NO
WAIVER OF RIGHTS, POWERS AND REMEDIES. 
No failure or delay by a party hereto in exercising any right, power or
remedy under this Agreement, and no course of dealing between
the parties hereto, shall operate as a waiver of any such right, power or
remedy of the party.  No single or
partial exercise of any right, power or remedy under this Agreement by a party
hereto, nor any abandonment or discontinuance of steps to enforce any such
right, power or remedy, shall preclude such party from any other or further
exercise thereof or the exercise of any other right, power or remedy
hereunder.  The election of any remedy by
a party hereto shall not constitute a waiver of the right of such party to
pursue other available remedies.  No
notice to or demand on a party not expressly required under this Agreement
shall entitle the party receiving such notice or demand to any other or further
notice or demand in similar or other circumstances or constitute a waiver of
the rights of the party giving such notice or demand to any other or further
action in any circumstances without such notice or demand.


 


16.           COUNTERPARTS.  This Agreement may be executed in one or more
counterparts, and by different parties hereto on separate counterparts, each of
which shall be deemed an original, but all of which together shall
constitute one and the same instrument.


 





















 


IN WITNESS WHEREOF, the parties have executed this
Agreement as of the day and year first above written.


 


	
   

  	
  COMPANY:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  IBIS TECHNOLOGY

  CORPORATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Authorized Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  EXECUTIVE:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  MARTIN J. REID

  



 


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