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EXHIBIT 10.25
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT dated March 7, 1997 ("Employment Agreement") by and
between MKS Instruments, Inc., a Massachusetts Corporation (the "Corporation"),
and Xxxxxx Xxxxx of Wenham, MA (the "Employee").
WHEREAS, the Corporation and the Employee desire to provide for the employment
of the Employee by the Corporation:
NOW, THEREFORE, in consideration of the premises and the mutual promises
contained herein, the Corporation and the Employee hereby agree as follows:
(1) Term of Employment: The Corporation hereby employs the Employee, and
the Employee hereby accepts employment with the Corporation, for a period
commencing as of March 3, 1997 and continuing from month to month thereafter
until terminated as provided in this Section (1). Either the Corporation or the
Employee may terminate the employment of the Employee under this Employment
Agreement at any time after March 3, 1997 by giving written notice to the other
party stating its or his election to terminate the employment of the Employee
under this Employment Agreement. The employment of the Employee under this
Employee Agreement shall terminate thirty (30) days after the date of receipt
by the other party of such notice; provided, however, that the employment of
the Employee under this Employment Agreement is subject to prior termination as
hereinafter provided in Section (5).
(2) Capacity: The Employee shall serve in such capacity as may be assigned
to him consistent with his training and experience for the term of employment
under this Employment Agreement and shall have such authority as is delegated
to him by the President of the Corporation, or his designee.
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(3) Extent of Services: During the term of employment of the Employee
under this Employment Agreement, the Employee shall devote his full time to,
and use his best efforts in the furtherance of, the business of the Corporation
and shall not engage in any other business activity, which interferes in any
way with the Employee performance of his duties to the Corporation, whether or
not such business activity is pursued for gain or any other pecuniary
advantage, without the prior written consent of the Corporation.
(4) Compensation: In consideration of the services to be rendered by the
Employee under this Employment Agreement, the Corporation agrees to pay, and
the Employee agrees to accept, the following compensation:
(a) Base Salary: A base salary at the rate of one hundred fifty-five
thousand dollars ($155,000) per year for the term of employment of the Employee
under this Employment Agreement. The base salary shall be payable in equal
biweekly installments subject to usual withholding requirements. This salary
will be reviewed regularly according to the established practices of the
company. No overtime pay will be paid to the Employee by the Corporation.
(b) Incentive: For each calendar year of the corporation during the
term of employment of the Employee under this Employment Agreement, the
Employee shall be entitled to participate in a Management Incentive Program
pursuant to the terms of which the Employee may receive compensation in
addition to his base salary if the Corporation attains its consolidated
financial goals during such calendar year of the Corporation. The Management
Incentive Program, including the consolidated financial goals established by
the Corporation for the calendar year and the formula to be used to determine
the payment of amounts under the Management Incentive Program, will be
communicated to the Employee in writing prior to the beginning of each calendar
year of the Corporation.
If there shall be any disagreement between the Corporation and the
Employee as to the calculation of the Management Incentive Bonus in any
calendar year of the Corporation during the term of employment of the Employee
under this Employment Agreement, the decision of the independent Public
Accounting firm of the corporation as to the amount of the Management Incentive
Bonus of the Corporation shall be conclusive
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and binding on the corporation and the Employee. The Employee shall have no
right to inspect any of the books, papers or records of the Corporation, except
that the Employee shall be entitled to inspect any certificate of such
independent public accounting firm as to the calculation of the Management
Incentive Bonus of the Corporation in any calendar year of the Corporation
during the term of employment of the Employee under this Employment Agreement.
Incentive payments shall be payable to the Employee on or before
March 31 after the end of each calendar year of the Corporation during the term
of employment of the Employee under this Employment Agreement.
The Employee will not receive any payment under the Management
Incentive Program for any calendar year in which the Employee is not actively
employed on the last day of that calendar year.
(c) MKS Instruments Profit Sharing and Retirement
Savings Plan: The Employee shall be eligible to become a participant
under the profit sharing plan of the Corporation on fulfilling the conditions
set forth in the MKS Instruments Profit Sharing and Retirement Savings Plan of
the Corporation.
(d) Vacation: The Employee shall be entitled to an annual vacation
leave of 20 days at full pay during each year of this Employment Agreement,
subject to the Employee arranging such vacation so as not to affect adversely
the ability of the Corporation to transact its necessary business.
(e) Life Insurance: The Corporation shall provide, and pay all of
the premiums for, term life insurance for the Employee during the term of
employment of the Employee under this Employment Agreement in accordance with
the term life insurance plan of the Corporation.
(f) Medical/Dental Insurance: The Corporation shall provide group
medical/dental insurance for the Employee under the Plans of the Corporation
applicable to the Employee during the term of employment of the Employee under
this Employment Agreement.
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(g) Other Benefits: The Corporation shall provide other benefits for
the employee under the Plans of the Corporation applicable to the Employee
during the term of employment of the Employee under this Employment Agreement.
(5) Termination: The employment of the Employee under this Employment
Agreement shall terminate:
(a) On the expiration of the period of employment as provided in
Section (1).
(b) Upon the death of the Employee.
(c) At the election of the Corporation (i) if the Employee shall
fail, or refuse, to perform the services required of him under this Employment
Agreement, or (ii) if the Employee shall fail, or refuse, to perform the other
covenants and agreements required of him under this Employment Agreement, or
(iii) for "cause", which term shall mean acts or actions detrimental to the
best interests of the Corporation.
(6) Payment Upon Termination:
(a) If the employment of the Employee is terminated on the expiration
of the period of employment as provided in Section (1), the Employee shall not
be entitled to any compensation, and the Corporation shall have no obligation
to pay the Employee any compensation, except as is provided in this Employment
Agreement.
(b) If the employment of the Employee is terminated by death, the
Corporation shall pay to the estate of the Employee the compensation which
would otherwise be payable to the Employee at the end of the month in which his
death occurs.
(c) In the event the employment of the Employee is terminated at the
election of the Corporation pursuant to Section (5)(c) hereof, the Employee
shall only be
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entitled to his base salary through the last day of actual employment or the
date of termination, whichever is earlier.
(7) Trade Secrets: The Employee covenants and agrees that he will
communicate to the Corporation, and will not divulge or communicate to any
other person, partnership, corporation or other entity without the prior
written consent of the Corporation, any trade secrets of the Corporation or
confidential information relating to the business of the Corporation or any one
connected with the Corporation, and that such trade secrets and confidential
information shall not be used by the Employee either on his own behalf or for
the benefit of others or disclosed by the Employee to any one, except to the
Corporation, during or after the term of employment of the Employee under this
Employment Agreement.
(8) Inventions and Patents:
(a) The Employee shall make prompt full disclosure in writing
to the Corporation of all inventions, improvements and discoveries, whether or
not patentable, which the Employee conceives, devises, makes, discovers,
develops, perfects or first reduces to practice, either alone or jointly with
others, during the term of employment of the Employee under this Employment
Agreement, which relate in any way to the fields, products or business of the
Corporation, including development and research, whether during or out of the
usual hours of work or on or off premises of the Corporation or by use of the
facilities of the Corporation or otherwise and whether at the request or
suggestion of the Corporation or otherwise (all such inventions, improvements
and discoveries being hereinafter called the "Inventions"), including any
Inventions, whether or not patentable, conceived, devised, made, discovered,
developed, perfected or first reduced to practice by the Employee after the
employment of the Employee under this Employment Agreement is terminated if the
Inventions were conceived by the Employee during the term of employment of the
Employee under this Employment Agreement. Any Inventions, whether or not
patentable, conceived, devised, made, discovered, developed, perfected or first
reduced to practice by the Employee within six (6) months of the date of
termination
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of the employment of the Employee under this Employment Agreement shall be
conclusively presumed to have been conceived during the term of employment of
the Employee under this Employment Agreement.
(b) The Employee agrees that the Inventions shall be the sole and
exclusive property of the Corporation.
(c) The Employee agrees to assist the Corporation and its nominees in
every reasonable way (entirely at its or their expense) to obtain for the
benefit of the Corporation letters patent for the Inventions and trademarks,
trade names and copyrights relating to the Inventions, and any renewals,
extensions or reissues thereof, in any and all countries, and agrees to make,
execute, acknowledge and deliver, at the request of the Corporation, all
written applications for letters patent, trademarks, trade names and copyrights
relating to the Inventions and any renewals, extensions or reissues thereof, in
any and all countries, and all documents with respect thereto, and all powers
of attorney relating thereto and, without further compensation, to assign to
the Corporation or its nominee all the right, title and interest of the
Employee in and to such applications and to any patents, trademarks, trade
names or copyrights which shall thereafter issue on any such applications, and
to execute, acknowledge and deliver all other documents deemed necessary by the
Corporation to transfer to or vest in the Corporation all of the right, title
and interest of the Employee in and to the Inventions, and to such trademarks,
trade names, patents and copyrights together with the exclusive rights to make,
use, license and sell them throughout the world.
(d) The Employee agrees that even though his employment is terminated
under this Employment Agreement he will, at any time such termination of
employment, carry out and perform all of the agreements of Subsections (8)(a)
and (8)(c) above, and will at any time and at all times cooperate with the
Corporation in the prosecution and/or defense of any litigation which may arise
in connection with the Inventions, provided, however, that should such services
be rendered after termination of employment of the Employee under this
Employment Agreement, the Employee shall be paid reasonable compensation on a
per diem basis.
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(e) The Employee agrees to make and maintain adequate and current
written records of all Inventions in the form of notes, sketches, drawings, or
reports relating thereto, which records shall be and remain the property of,
and available to, the Corporation at all times.
(f) The Employee agrees that he will, upon leaving the employment of
the Corporation, promptly deliver to the Corporation all originals and copies
of disclosures, drawings, prints, letters, notes, and reports either typed,
handwritten or otherwise memorialized, belonging to the Corporation which are
in his possession or under his control and the Employee agrees that he will not
retain or give away or make copies of the originals or copies of any such
disclosures, drawings, prints, letters, notes or reports.
(9) Property of Corporation: All files, records, reports, documents,
drawings, specifications, equipment, and similar items relating to the business
of the Corporation, whether prepared by the Employee or otherwise coming into
his possession, shall remain the exclusive property of the Corporation and shall
not be removed by the Employee from the premises of the Corporation under any
circumstances whatsoever without the prior written consent of the Corporation.
(10) Non-Competition:
(a) During the term of employment of the Employee under this
Employment Agreement, and during a period of one (1) year after termination of
employment of the Employee under this Employment Agreement without regard to
the cause of termination of employment and whether or not such termination of
employment was caused by the Employee or by the Corporation, (i) the Employee
shall not engage, either directly or indirectly, in any manner or capacity, in
any business or activity which is competitive with any business or activity
conducted by the Corporation in the Residual Gas Analysis market; (ii) the
Employee shall not work for or employ, directly or indirectly, or cause to be
employed by another, any person who was an employee, officer or agent of the
Corporation or of any of its subsidiaries at any time during a period of twelve
(12) months
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prior to the termination of the employment of the Employee under this
Employment Agreement nor shall the Employee form any partnership with, or
establish any business venture in cooperation with, any such person which is
competitive with any business or activity of the Corporation; (iii) the Employee
shall not give, sell or lease any goods or services competitive with the goods
or services of the Corporation or its subsidiaries to any person, partnership,
corporation or other entity who purchased goods or services from the
Corporation or its subsidiaries within one (1) year before the termination of
the employment of the Employee under this Employment Agreement; (iv) the
Employee shall not have any financial interest, or participate as a director,
officer, stockholder, partner, employee, consultant or otherwise, in any
corporation, partnership or other entity which is competitive with any business
or activity conducted by the Corporation.
(b) The Corporation and the Employee agree that the services of the
Employee are of a personal, special, unique and extraordinary character, and
cannot be replaced by the Corporation without great difficulty, and that the
violation by the Employee of any of his agreements under this Section (10)
would damage the goodwill of the Corporation and cause the Corporation
irreparable harm which could not reasonably or adequately be compensated in
damages in an action at law, and that the agreements of the Employee under this
Section (10) may be enforced by the Corporation in equity by an injunction or
restraining order in addition to being enforced by the Corporation at law.
(c) In the event that this Section (10) shall be determined by any
court of competent jurisdiction to be unenforceable by reason of its extending
for too long a period of time or over too great a range of activities, it
shall be interpreted to extend only over the maximum period of time or range of
activities as to which it may be enforceable.
(11) Notice: Any and all notices under this Employment Agreement shall be
in writing and, if to the Corporation, shall be duly given if sent to the
Corporation by registered or certified mail, postage prepaid, return receipt
requested, at the address of the Corporation set forth under its name below or
at such other address as the Corporation may hereafter designate to the
Employee in writing for the purpose, and if to the Employee, shall be duly
given if delivered to the Employee by hand or if sent to the
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Employee by registered or certified mail, postage prepaid, return receipt
requested, at the address of the Employee set forth under his name below or at
such other address as the Employee may hereafter designate to the Corporation
in writing for the purpose.
(12) Assignment: The rights and obligations of the Corporation under this
Employment Agreement shall inure to the benefit of, and shall be binding upon,
the successors and assigns of the Corporation. The rights and obligations of the
Employee under this Employment Agreement shall inure to the benefit of, and
shall be binding upon, the heirs, executors and legal representatives of the
Employee.
(13) Entire Agreement and Severability:
(a) This Employment Agreement and the MKS offer of employment letter
dated 1/28/97 (Attachment A) supersedes any and all other agreements, either
oral or in writing, between the parties hereto with respect to the employment
of the Employee by the Corporation and contains all of the covenants and
agreements between the parties with respect to such employment. Each party to
this Employment Agreement acknowledges that no representations, inducements,
promises or agreements, oral or otherwise, have been made by any party, or any
one acting on behalf of any party, which are not embodied herein, and that no
other agreement, statement or promise not contained in this Employment
Agreement shall be valid and binding. Any modification of the Employment
Agreement will be effective only if it is in writing signed by both parties to
this Employment Agreement.
(b) If any provision in this Employment Agreement is held by a court
of competent jurisdiction to be invalid, void or unenforceable, the remaining
provisions shall nevertheless continue in full force and effect without being
impaired or invalidated in any way.
(c) All pronouns used herein shall include the masculine, feminine,
and neuter gender as the context requires.
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(14) Governing Law: This Employment Agreement shall be governed by, and
construed in accordance with, the laws of The Commonwealth of Massachusetts
applicable to contracts made and to be performed entirely within The
Commonwealth of Massachusetts.
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IN WITNESS WHEREOF, the parties hereto have executed, in the Commonwealth of
Massachusetts, this Employment Agreement as a sealed instrument, all as of the
day, month and year first written above.
MKS INSTRUMENTS, INC.
By: /s/ Xxxx X. Xxxxxx
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President
0 Xxxxxxxx Xxxx
Xxxxxxx, XX 00000
/s/ Xxxxxx Xxxxx Legal Signature
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Xxxx Xxxxx
Address:
0 Xxxxxxxx Xx.
Xxxxxx, XX 00000
