Ibis Technology Corp 8-k (events Or Changes Between Quarterly Reports) 2009-02-23

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UNITED STATES SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549

FORM 8-K CURRENT REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 Date of report (Date of earliest event reported): February 17, 2009

Ibis Technology Corporation (Exact name of Registrant as Specified in its Charter) Massachusetts (State or other jurisdiction of incorporation)

000-26824 (Commission File Number)

04-2987600 (I.R.S. Employer Identification No.)

32 Cherry Hill Drive Danvers, Massachusetts 01923 (Address of Principal Executive Offices) (978) 777-4247 (Registrant’s telephone number, including area code)

(Former Name or Former Address, if Changed Since Last Report) Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below): o o o o

Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

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Item 1.01 Entry into a Material Definitive Agreement Item 5.02 Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers. As previously disclosed on a Current Report on Form 8-K filed on February 17, 2009, on February 13, 2009, Ibis Technology Corporation (the “Company”) filed Articles of Voluntary Dissolution (the “Articles”) with the Commonwealth of Massachusetts. In connection with the filing of the Articles, the Company’s Board of Directors (the “Board”) accepted the resignations of all of the Company’s executive officers, effective as of February 17, 2009. On the same day, the Company’s Board elected Craig R. Jalbert, age 47, as the Company’s President, Chief Administrative Officer, Secretary and Treasurer. The Board also elected Mr. Jalbert and William J. Schmidt to the seats on the Board. Mr. Jalbert is a principal at Verdolino & Lowey, P.C. (“V&L”), an accounting firm that specializes in working with companies liquidating and winding up their operations. Mr. Jalbert joined V&L in 1987 and has been involved in over 2,000 bankruptcy cases, including 200 chapter 11 cases, since 1990. Prior to joining V&L, Mr. Jalbert worked as a Senior Auditor, Commercial Audit Division at Arthur Anderson & Co. Mr. Jalbert currently serves on the board of directors of RNI Winddown Corporation, f/k/a Riverstone Networks, Inc. and MZT Holdings, Inc., f/k/a Matritech, Inc., both Delaware corporations. In connection with Mr. Jalbert’s appointment, the Company entered into an engagement letter with V&L, pursuant to which the Company engaged V&L to assist it with the liquidation and dissolution of the Company, and to perform services necessary or convenient in connection with the liquidation and dissolution. The liquidation and dissolution services are expected to include payment of the Company’s obligations, sales of any remaining assets, distribution of all remaining funds to common stockholders, accounting services and records retention. V&L and Mr. Jalbert will report to the Board. The Company also entered into an indemnification agreement with V&L, pursuant to which the Company agreed to provide Mr. Jalbert with the full benefits of provisions of the Company’s Articles of Organization which indemnify him for his actions as a director of the Company and to indemnify V&L for losses, claims, damages and liabilities resulting from claims and proceedings that are related to the performance of services under the engagement letter. The Company will pay V&L for the services it will provide, but will not pay Mr. Jalbert any additional direct compensation or benefits for his service as a director and officer of the Company. Copies of the engagement letter and indemnification agreement are attached hereto as Exhibits 10.1 and 10.2, respectively, and are hereby incorporated by reference. The description of the foregoing documents contained in this Current Report on Form 8-K are qualified in their entirety by reference to such documents. Prior to his resignation as an executive officer of the Company, Mr. Schmidt was the Chief Financial Officer, Treasurer and Secretary at the Company. Mr. Schmidt will be paid $15,000 for his first year of service on the Company’s Board, and will be paid $5,000 per year for each subsequent year he serves on the Board. 2

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After appointing Mr. Jalbert and Mr. Schmidt to the Board, each of the other directors on the Company’s Board resigned. None of the resignations were based on any dispute with the Company. Upon their resignation, each of the former directors entered into an indemnification agreement substantially the form as Exhibit 10.2. After the resignations were accepted, Mr. Jalbert and Mr. Schmidt appointed Keith Lowey to the vacant seat on the Board. Mr. Lowey is also a principal at V&L. Mr. Lowey joined V&L in 1990 and has been involved in over 2,000 bankruptcy cases, including 200 Chapter 11 cases, since 1990. Prior to joining V&L, Mr. Lowey worked as a Controller and Chief Financial Officer for Stadium Management Corporation and as a Senior Auditor at Arthur Anderson & Co. The Company will pay Mr. Lowey $5,000 per year for his service as a director of the Company. Item 9.01. Financial Statements and Exhibits (d) Exhibits. Exh ibit No.

De scription

10.1

Engagement Letter dated February 17, 2009 by and between Ibis Technology Corporation and Verdolino & Lowey, P.C.

10.2

Indemnification Agreement dated February 17, 2009 by and between Ibis Technology Corporation and Verdolino & Lowey, P.C. 3

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SIGNATURES

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized. Date: February 19, 2009

IBIS TECHNOLOGY CORPORATION By: /s/ Craig R. Jalbert Name: Craig R. Jalbert Title: President and Chief Administrative Officer 4 Exhibit 10.1 February 17, 2009

The Board of Directors Ibis Technology Corporation 32 Cherry Hill Drive Danvers, MA 01923 Re:

Ibis Dissolution and Liquidation

Dear Sirs: This letter will serve as the agreement between Ibis Technology Corporation (the “Company”) and Verdolino & Lowey, P.C. (the “Firm”) as to the terms and condition of the Firm’s retention. The Firm’s services will include assisting the Company executing the wind-down and dissolution of the Company. The Firm and the Company acknowledge that the purpose of the wind-down and dissolution is to cause all of the Company’s liabilities to be paid and to distribute any and all remaining funds to common stockholders in accordance with the laws of the Commonwealth of Massachusetts. Retention of the Firm will be on the following terms and conditions: 1.

The Company hereby retains the Firm to assist the Company in planning for the efficient and cost-effective wind-down and dissolution of the Company to perform all services necessary or convenient in connection with the wind-down and dissolution including, but not limited to: payment of the Company’s obligations and distribution of all remaining funds to common stockholders, including addressing any necessary personnel issues such as payroll, benefits and COBRA implementation; evaluating and monitoring the Company’s current reserves for unknown or unanticipated expenses; identifying and causing the Company to pay federal, state and local tax obligations; personal property liquidation; payables payments; records retention; telephone inquiries from vendors, customers and stockholders; and mail receipt and review. The Firm shall also perform all accounting services, including the preparation and filing of any and all state, federal and local tax returns. All services will be performed by the Firm under and subject to the direction of the Board of Directors of the Company (the “Board”) or its designee. Unless otherwise terminated pursuant to Paragraph 10 below, the Firm’s services shall terminate on the date on which the final distribution of proceeds is made to common stockholders of record of the Company as of the Final Record Date (as defined in the Company’s Plan of Complete Liquidation and Dissolution).

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2.

As of the date Mr. Reid’s resignation, the Board shall elect Craig R. Jalbert of the firm Verdolino & Lowey, P.C. (“Jalbert”) as Chief Administrative Officer and President of the Company, with full authority and discretion to take such actions as are necessary or convenient to effectuate the wind-down and dissolution of the Company, subject to oversight and direction of the Board. The Firm acknowledges that Jalbert is its employee and agent and the Firm assumes full responsibility for Jalbert’s performance of services to the Company as an officer or in any other capacity. The Board anticipates that it will require reports from Jalbert not less frequently than quarterly. All such reports shall set forth in reasonable detail and be substantiated by documentation, where appropriate, the actions taken, amounts paid on behalf of the Company, including to third parties for legal, accounting, consulting and other services rendered to the Firm in connection with the performance of its services pursuant to this Agreement, charges billed by and paid to the Firm for work performed during such period, all court filings and actions and all other matters relevant to the wind-down and dissolution. Jalbert shall be available to attend meetings or otherwise communicate with the Board as it directs upon reasonable prior notice.

3.

As of the date of Mr. Schmidt’s resignation, the Board shall further elect Jalbert as Treasurer and Secretary of the Company.

4.

If the Board determines that the dissolution process should be effected through a liquidating trust or an assignment for the benefit of creditors, the Board will authorize Jalbert and/or the Firm to act as liquidation agent under the liquidating trust or assignee under an assignment for the benefit of creditors. The Board may authorize the Firm to act in some other similar position as appropriate to wind- down the Company.

5.

The basis for the Firm’s charges will be the time spent by the Firm’s professionals, including Jalbert’s services as President and Chief Administrative Officer, Treasurer and Secretary of the Company, as well as the Firm’s managers, staff, bookkeepers and clerical staff, multiplied by their respective hourly rates in effect from time to time. The Firm’s rates, which may be changed from time to time but no more frequently than annually, are currently as set forth in Exhibit A, attached hereto. There is a minimum charge of one-tenth of an hour for each item billed, and the Company will be charged for all professional time devoted to this matter, including telephone calls, intra-firm conferences and travel. The Firm agrees that it shall not increase its rates on this project prior to September 1, 2009.

6.

The Firm’s charges to the Company will include expenses reasonably incurred in connection with the services rendered pursuant to this Agreement. These expenses include copying, communication, travel; storage, tax computer charges, and office and storage supplies, and any other out-of-pocket expenses directly related to services rendered. The Firm will charge the exact amount of expenses 2

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incurred from any outside vendor, without any mark-up or administrative charge. When services are supplied by the Firm (for example, photocopying and telefacsimile transmission), the Firm will charge its standard rate applicable at the particular time. 7.

The Board will pay the Firm a retainer of $10,000 for services to be rendered pursuant to this Agreement. The Firm will render bills on a monthly or quarterly basis, and immediately pay them from the retainer account. Jalbert, as President and Treasurer of the Company, will be authorized to remit to the Firm the amount of each of its bills promptly in order to replenish the retainer. The Firm will supply a copy of each invoice to the Board at the time such invoice is rendered. It is the intention of the parties that the Firm shall have the cushion of this retainer until termination of the Firm’s services by the Board, which shall occur no later than contemporaneously with the final distribution to the common stockholders of the Company as of the Final Record Date (as defined in the Company’s Plan of Complete Liquidation and Dissolution). Upon termination of the Firm’s services hereunder, any amount remaining in the retainer account shall be refunded to the Company.

8.

For the period of the Firm’s retention, the Company shall maintain such director and officer liability insurance as the Board deems appropriate (taking into consideration the cost, risk profile, insurance market and other factors the Board deems relevant). The Company shall also purchase coverage for such tail period after its final dissolution, as it deems appropriate. In his capacity as President, Treasurer and Secretary of the Company, Craig R. Jalbert shall be indemnified by the Company to the full extent provided to Company officers in the charter, by-laws and Board resolutions of the Company as well as by an director and officer liability insurance maintained by the Company. The Company and the Firm may enter into a separate Indemnification Agreement.

9.

Subject to the direction and approval of the Board, the Firm shall have the authority to engage, and to cause the Company to compensate, legal counsel, including Choate Hall & Stewart and/or other firms, or individual attorneys, to represent the Company and to provide legal advice and assistance concerning the wind-down and dissolution of the Company and the performance of the Firm’s services pursuant to this Agreement.

10.

This Agreement may be terminated at any time, with or without cause, by either party. In the event of termination by the Company, the Company shall provide the Firm with 30 days prior written notice of termination. In the event of termination by the Firm, the Firm shall provide the Board of Directors with 60 days prior written notice of termination. The Firm shall ensure that Jalbert shall tender his resignation as President, Treasurer and Secretary contemporaneously with termination of the Firm’s services. Termination of this Agreement shall not terminate the Company’s obligation to insure and indemnify Jalbert and to 3

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indemnify the Firm for claims incurred during the period prior to termination as set forth elsewhere herein. 11.

This Agreement shall take effect upon execution by the Firm and the Chairman of the Board on behalf of the Company.

In order to accept these terms and arrangements, please have an authorized officer of the Company sign this agreement on behalf of the Company in the space provided below and return a copy to me. Very truly yours, Verdolino & Lowey, P.C. By: Craig R. Jalbert, CIRA, a duly-authorized representative of the Firm Agreed on behalf of the Company and with the Approval of its Board of Directors Ibis Technology Corporation By: Name: Martin J. Reid 4 Exhibit 10.2 INDEMNIFICATION AGREEMENT This agreement is entered into as of this 17th day of February, 2009, by and between Verdolino & Lowey, P.C. (the “Firm”) and Ibis Technology Corporation (the “Company”), as follows: Background A. On February , 2009, the Company and the Firm entered into an agreement (the “Engagement Agreement”) whereby the Company retained the Firm to assist the Company in preparing for and executing the wind-down of the Company. B. The Engagement Agreement provides that, upon Martin J. Reid’s resignation, (the “Board”), the Board shall elect Craig R. Jalbert (“Jalbert”) as Chief Administrative Officer and President of the Company, with full authority and discretion to take such actions as are necessary or convenient to effectuate the wind-down of the Company, subject to oversight and direction of the Board. The Firm has, pursuant to the Engagement Letter, agreed to assume full responsibility for Jalbert’s performance of services to the Company as an officer or in any other capacity. The Company has agreed to indemnify Jalbert to the full extent provided to Company officers in the Restated Articles of Organization of the Company in connection with his services as Chief Administrative Officer, President, Treasurer and Secretary of the Company. C. In consideration of the foregoing, the Company and the Firm have agreed to the following: Terms of Agreement 1. Indemnification of Jalbert as Director of the Company. Jalbert, as a director of the Company, shall have the full benefit of the provisions of Article 6B of the Company’s Restated Articles of Organization. A copy of the provisions of this Article 6B is attached hereto as Exhibit A and incorporated herein by reference. 2. Indemnification of the Firm. The Company agrees to indemnify and hold harmless the Firm and its respective employees and agents (collectively, the “Indemnitees”) from and against all losses, claims, damages and liabilities resulting from an Indemnitee being (i) made a party or threatened to be made a party to or (ii) involved in any threatened or pending action, suit or proceeding, whether civil, criminal, administrative or investigative (a “Proceeding”) and whether or not by or in the right of the Company or otherwise, which are related to or result from the performance by the Firm of the services contemplated by the Engagement Agreement. The Company will promptly reimburse any Indemnitee for all reasonable expenses (including reasonable counsel fees and expenses) as they are incurred in connection with the defense of any claim made or threatened against such Indemnitee; provided that the Indemnitee undertakes to repay to the Company any and all such advanced reimbursed expenses to the extent that it is finally judicially determined that the loss, claim, damage or liability resulted from the Firm’s or the Indemnitee’s willful misconduct, bad faith or gross negligence. The Company will not be liable to any Indemnitee under the foregoing indemnification and reimbursement provisions, (i) for any settlement by an Indemnitee effected without the Company’s prior written

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consent, such

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consent not to be unreasonably withheld, or (ii) to the extent that any loss, claim, damage or liability is found in a final, non-appealable judgment by a court of competent jurisdiction to have resulted primarily from the Firm’s or the Indemnitee’s willful misconduct, bad faith or gross negligence. Indemnification shall continue as to any Indemnitee who has ceased to perform services for the Firm and after the Firm has ceased to perform services under the Engagement Agreement; such indemnification by the Company shall continue through any period during which the Company has directors’ and officers’ liability insurance, including without limitation any tail period. 3. Required Notice of Claim of Indemnification. Promptly after receipt by an Indemnitee of notice of any intention or threat to commence an action, suit or Proceeding or notice of the commencement of any action, suit or Proceeding, such Indemnitee will, if a claim in respect thereof is to be made against the Company pursuant hereto, promptly notify the Board of the Company in writing of the same. In case any such action is brought against any Indemnitee and such Indemnitee complies with the notice provisions hereof, the Company may elect to assume the defense of any such action, with counsel reasonably satisfactory to such Indemnitee, and an Indemnitee may employ additional counsel to participate in the defense of any such action provided, that the employment of such additional counsel shall be at the Indemnitee’s own expense, unless: (i)

the employment of such counsel has been authorized in writing by the Board of Directors of the Company;

(ii)

the Indemnitee has reasonably concluded (based upon advice of counsel to the Indemnitee) that there may be legal defenses available to it or other Indemnitees that are different from or in addition to those available to the Company, or that a conflict or potential conflict exists (based upon advice of counsel to the Indemnitee) between the Indemnitee and the Company that makes it impossible or inadvisable for counsel to the Indemnitee to conduct the defense of both the Company and the Indemnitee (in which case the Company will not have the right to direct the defense of such action on behalf of the Indemnitee); or

(iii)

the Company has not in fact employed counsel reasonably satisfactory to the Indemnitee to assume the defense of such action within a reasonable time after receiving notice of the action, suit or Proceeding,

in each of which cases the reasonable fees, disbursements and other charges of such counsel will be at the expense of the Company; provided, further, that in no event shall the Company be required to pay fees and expenses for more than one firm of attorneys representing Indemnitees unless the defense of one Indemnitee is unique or separate from that of another Indemnitee subject to the same claim or action. 4. Breach of Agreement. In the event of a breach or alleged breach of this Indemnification Agreement that results in litigation, the prevailing party in such litigation shall be entitled to recover all expenses, including reasonable attorneys’ fees, incurred in connection

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with the litigation. 5. Termination of Jalbert or the Firm by the Company shall not terminate the Company’s obligation to insure and indemnify Jalbert and to indemnify the Firm for claims incurred during the period prior to termination. Executed as of the date first written above.

VERDOLINO & LOWEY, P.C. By: Craig R. Jalbert, CIRA, a duly-authorized representative of the Firm IBIS TECHNOLOGY CORPORATION By: Martin J. Reid, President and CEO