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EXHIBIT 10.8
AMENDED & RESTATED EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT dated December 15, 1995 (the "Employment
Agreement") by and between MKS Instruments, Inc., a Massachusetts
Corporation (the "Corporation"), and Xxxxxxx Xxxxxxx of Boulder, CO
(the "Employee").
WHEREAS, the Corporation and the Employee entered into an Employment
Agreement dated October 31, 1986 (the "Original Employment Agreement");
and
WHEREAS, the Corporation has adopted a new Management Incentive Program
and the Employee desires to be eligible to participate in such
Management Incentive Program; and
WHEREAS, the Corporation and the Employee desire to make certain other
amendments to the Original Employment Agreement as more particularly
set forth herein; and
WHEREAS, for convenience of reference, the Corporation and the Employee
desire to amend and restate the Original Employment Agreement in its
entirety:
NOW, THEREFORE, in consideration of the premises and the mutual
promises contained herein, and for other good and valuable
considerations, the receipt and sufficiency of which are hereby
acknowledged, the Corporation and the Employee hereby agree that the
Original Employment Agreement is hereby amended and restated to read in
its entirety 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 December 15, 1995 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 December 15, 1995 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 Employment 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, 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 $170,000 per
year for the term of employment of the Employee under this Employment
Agreement. The base salary shall be payable in equal weekly, biweekly,
or bimonthly installments subject to usual withholding requirements.
Base salary will be reviewed according to the established practices of
the corporation. 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 in an
amount equal to a specified percentage of 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. The first calendar
year of the Corporation for purposes of the Management Incentive
Program will commence on January 1, 1996 and end on December 31, 1996.
If the term of employment of the Employee under this Employment
Agreement shall include a portion of a calendar year of the Corporation
commencing after January 1, 1996, the Corporation shall not pay the
Employee, and the Employee shall not be entitled to receive, any amount
under the Management Incentive Program.
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 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
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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.
(c) MKS INSTRUMENTS, INC. PROFIT SHARING AND RETIREMENT
SAVINGS PLAN: The Employee shall be eligible to participate in the MKS
Instruments, Inc. Profit Sharing and Retirement Savings Plan upon
satisfaction of the conditions set forth therein.
(d) VACATION: The Employee shall be entitled to an annual
vacation leave of 20 days at pay during each calendar year during the
term of employment of the Employee under this Employment Agreement in
accordance with policy under plans of the Corporation applicable to the
Employee, 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.
(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,
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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 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. "Trade secrets of the Corporation" shall include, but not be
limited to, Inventions, trade secrets, files, records, drawings,
specifications, processes, lists of material, lists of customers, sales
and marketing strategies, product development plans, financial
information, and information on research and development.
(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
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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 the 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 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 nominees 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 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 after
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
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Employment Agreement, the Employee shall be paid reasonable
compensation on a per diem basis.
(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) In order to protect the good will of the Corporation and
in order to protect the trade secrets of the Corporation referred to in
Section (7) of this Employment Agreement, the Employee hereby agrees
that 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; (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 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
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from the Corporation or its subsidiaries within one (1) year before the
termination of the employment of the Employee under 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, partners 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 mall, 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 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 supersedes any and all other
agreements, either oral or in writing, between the parties hereto with
respect to the
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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 one half 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 this 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.
(14) GOVERNING LAW AND JURISDICTIONS: 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 (without
reference to conflict of laws principles). Any action or proceeding
arising from or in connection with this Employment Agreement may be
brought against the Employee in a court of record of The Commonwealth
of Massachusetts, Middlesex County, or in the United States District
Court for the District of Massachusetts, the Employee hereby consenting
to the jurisdiction thereof over its person; and service of process may
be made upon the Employee by mailing a copy of the summons and any
complaint to the Employee by registered or certified mall, postage
prepaid, return receipt requested, at the address to be used for the
giving of notice to the Employee as provided in this Employment
Agreement.
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IN WITNESS WHEREOF, the parties hereto have executed this Employment
Agreement as a sealed instrument in the Commonwealth of Massachusetts,
all as of the day, month and year first written above.
MKS INSTRUMENTS, INC.
By: ______________________________
Xxxx X. Xxxxxxxx, President
Six Xxxxxxxx Xxxx
Xxxxxxx, XX 00000
______________________________
Employee Signature
Xxxxxxx Xxxxxxx
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Employee Name
Address:
______________________________
______________________________
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