EXHIBIT 99.4
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT dated as of July 1, 2005 ("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 December 15, 1995 (the "Original Employment Agreement"); and
WHEREAS, the Corporation intends to provide certain retiree medical benefits to
the Employee as more particularly set forth herein; and
WHEREAS, the Corporation and the Employee intend that this Employment Agreement
shall supercede the Original Employment Agreement and that as of the date
hereof, the Original Employment Agreement shall be of no further force and
effect;
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 July 1, 2005 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 July 1, 2005 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). Notwithstanding the above, the Corporation
shall be entitled, at its sole discretion, to waive the obligation of the
Employee to continue to work during the thirty (30) day notice period.
(2) Capacity: The Employee shall serve as Vice President and General
Manager - Vacuum Products Group of the Corporation and shall have such authority
and will perform such duties as are delegated to him by the CEO & President of
the Corporation or his designee that are consistent with this position and his
training and experience for the term of employment under this Employment
Agreement.
(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 two hundred
thirty-five thousand one hundred and thirty-nine dollars ($235,139) 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, and will be subject to any changes in pay policies
that may be established by the Corporation. The base salary will be reviewed
regularly according to the 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 if the Corporation attains its consolidated financial goals during such
calendar year of the Corporation. The "targeted" additional compensation goal
for the Employee shall be 40% of his base annual earnings. 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
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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 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.
(d) Vacation: The Employee shall be entitled to an annual vacation
leave of twenty-five (25) 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
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 conviction for the commission of a felony,
willful failure by the Employee to perform his responsibilities to the
Corporation, or willful misconduct by the Employee.
(6) Payment Upon Termination:
(a) If the employment of the Employee is terminated by the
Corporation other than pursuant to Section 5 (c) hereof, the Corporation (i)
shall continue to pay Employee the Base Salary in effect immediately prior to
the time of such termination for six (6) months after the last full day Employee
works under this Agreement at its normal payroll payment dates; (ii) shall
reimburse Employee for the premiums (if any) he pays for continuation of life
insurance should he elect to exercise the conversion feature of the
Corporation's group life policy then in effect for six (6) months after the last
full day Employee works under this Agreement; and (iii) continue to pay for such
dental/vision insurance as Employee may then receive for six (6) months after
the last full day Employee works under this Agreement and (iv) to the extent the
Employee is eligible pursuant to Section 6(e) hereof, shall provide Retiree
Medical Benefits (such payments of Base Salary and payments or reimbursements of
insurance premiums and Retiree Medical Benefits by the Corporation, the
"Severance Benefits). Employee agrees that, (a) his eligibility for or
entitlement to the foregoing Severance Benefits shall be subject to Employee's
execution and delivery of a release, in such form as the Corporation may
require, that, among other things, may be a general release of any and all
claims
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Employee may have against Employer, (b) Employee shall have no rights or
remedies in the event of his or her termination by the Corporation without Cause
and other than as a result of Disability or death except for those set forth in
this Agreement and (c) Employee's right to receive any of the foregoing
Severance Benefits shall be expressly conditioned upon Employee's full
compliance with the Confidentiality Agreement, pursuant to its continued
effectiveness, and Employee's full cooperation with the Corporation in both
fulfilling the terms of this Agreement and the Confidentiality Agreement and
otherwise performing such actions as the Corporation may request in
transitioning Employee from his employment with the Corporation and upon any
breach of either such agreement by Employee, Employee's rights to any continued
payment of Severance Benefits shall immediately cease and Employee shall be
obligated to repay to the Corporation all amounts paid by the Corporation for
the Severance Benefits except for the amount of $1,000, which Employee shall be
entitled to retain.
(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.
(d) In the event the Employee voluntarily terminates his employment
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.
(e) Retiree Medical Benefits.
(i) Eligibility. The Employee's eligibility to receive the
retiree medical benefits set forth hereunder (the "Retiree Medical Benefits") is
contingent upon (a) the Employee's compliance with all of the material terms and
conditions contained in this Employment Agreement, (b) the Employee's execution,
upon termination of employment (except in the case of death), of a separation
agreement that releases the
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Corporation from any liabilities that may have arisen from employment or
termination of employment with the Corporation, and (c) the occurrence of any of
the following:
(A) the Employee retires from the Corporation when
Employee is at least 62 years old, provided that, if Employee is under 65 at the
time of such retirement, the terms of the benefits shall be subject to
subsection 6(e)(iii) hereof; or
(B) the Employee is terminated by the Corporation other
than for "cause" or if Employee terminates his employment for Good Reason (as
defined below within 3 years of a change in control as defined below); provided
that if the Employee is eligible at any time to receive comparable medical
benefits from any subsequent employer, then the Employee shall not be eligible
to receive the Retiree Medical Benefits during the time that he is eligible to
receive such benefits from a subsequent employer, but will be eligible to
receive the Retiree Medical Benefits thereafter; or
(C) prior to retirement, the Disability (which shall
mean disability as defined in Section 216(i)(1) of the Social Security Act) or
death of the Employee.
If the Employee meets the eligibility criteria described above, he
shall be considered an "Eligible Employee" hereunder. The Spouse of the Eligible
Employee ("Eligible Spouse") shall also receive Medical Retirement Benefits. The
Employee shall not be eligible for Medical Retirement Benefits if Employee is
terminated by the Corporation for "cause".
For purposes of this section, "Good Reason" shall mean termination
of Employee's employment by Employee within 90 days following (I) a material
diminution in Employee's positions, duties and responsibilities from those
described in this Employment Agreement (II) a reduction in Employee's Base
Salary (other than a reduction which is part of a general salary reduction
program affecting senior executives of the Corporation) (III) a material
reduction in the aggregate value of the pension and welfare benefits provided to
Employee from those in effect prior to the Change in Control (other than a
reduction which is proportionate to the reductions applicable to other senior
executives pursuant to a cost-saving plan that includes all senior executives),
(IV) a material breach of any provision of this Employment Agreement by
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the Corporation, (V) the Corporation's requiring Employee to be based at a
location that creates for Employee a one way commute in excess of 60 miles from
his primary residence, except for required travel on the Corporation's business
to an extent substantially consistent with the business travel obligations of
Employee under this Employment Agreement. Notwithstanding the foregoing, a
termination shall not be treated as a termination for Good Reason (I) if
Employee shall have consented in writing to the occurrence of the event giving
rise to the claim of termination for Good Reason or (II) unless Employee shall
have delivered a written notice to the Corporation within 30 days of his having
actual knowledge of the occurrence of one of such events stating that he intends
to terminate his employment for Good Reason and specifying the factual basis for
such termination, and such event, if capable of being cured, shall not have been
cured within 30 days of the receipt of such notice.
For purposes of this section "Change in Control" means the first to
occur of any of the following events: (I) Any "person" (as that term is used in
Section 13 and 14(d)(2) of the Securities Exchange Act of 1934 ("Exchange Act"))
becomes the beneficial owner (as that term is used in Section 13(d) of the
Exchange Act), directly or indirectly, of fifty percent (50%) or more of the
Corporation's capital stock entitled to vote in the election of directors; (II)
The shareholders of the Corporation approve any consolidation or merger of the
Corporation, other than a consolidation or merger of the Corporation in which
the holders of the common stock of the Corporation immediately prior to the
consolidation or merger hold more than fifty percent (50%) of the common stock
of the surviving corporation immediately after the consolidation or merger;
(III) The shareholders of the Corporation approve any plan or proposal for the
liquidation or dissolution of the Corporation; or (IV) The shareholders of the
Corporation approve the sale or transfer of all or substantially all of the
assets of the Corporation to parties that are not within a "controlled group of
corporations" (as defined in Code Section 1563) in which the Corporation is a
member.
(ii) Benefit Period and Types of Coverage. Eligible Employees
and Eligible Spouses will each receive Retiree Medical Benefits for their
respective lifetimes. During the 18 months immediately following termination of
employment from the Corporation, Retiree Medical Benefits will be provided to
the Eligible Employee and Eligible Spouse through the Corporation's COBRA
medical plan. Thereafter, the Corporation shall purchase fully insured non-group
medical plans for the Eligible Employee and Eligible Spouse. The insurance plans
purchased for the Eligible
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Employee and/or Eligible Spouse who are less than 65 years old shall be a high
benefit plan comparable to the Corporation's group medical plan selected by the
Employee immediately prior to termination of employment. The insurance plans
purchased for the Eligible Employee and/or Eligible Spouse who are 65 or more
years old shall be Blue Cross/ Blue Shield's Medex Gold or other comparable high
benefit medical plan.
(iii) Cost. The Eligible Employee (or surviving Eligible
Spouse) will be required to contribute a fixed annual amount of $1,500 for each
year that he (or surviving Eligible Spouse) remains eligible for Retiree Medical
Benefits. In addition to such $1,500, if the Employee became an Eligible
Employee pursuant to Section (a)(i) above, then in addition to the $1,500, the
Employee (or surviving Eligible Spouse) shall be required to pay a portion of
the expenses of the Retiree Medical Benefit as follows:
Percentage of Retiree Medical Benefit Costs to be
Age Paid by Employee (or surviving spouse) at Such Age
--- --------------------------------------------------
62 30%
63 20%
64 10%
65 or more 0%
(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,
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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 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 exclusive rights to make, use,
license and sell them throughout the world.
(d) The Employee agrees that even though his employment is
terminated
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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
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) 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 if such termination
of employment was caused by the Corporation (or by the Employee for Good
Reason), or for a period of two (2) years after termination of employment of the
Employee under this Employment Agreement if such termination of employment was
caused by the
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Employee (other than for Good Reason), (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; and (iii)
the Employee shall not have any material financial interest, or participate as a
director, officer, 1% 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) Non-Solicitation: The Employee shall not, on his own behalf or in the
service or on behalf of others, directly or indirectly:
(a) solicit, entice or induce any Customer (as defined below) to
become a customer, distributor or supplier of any other person, firm or
corporation with respect to products and/or services sold or under development
by the Corporation during his
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employment at the Corporation, or to cease doing business with the Corporation,
and the Employee shall not contact or approach any such person, firm or
corporation for such purpose or authorize or knowingly approve the taking of
such actions by any other person for a period of two (2) years from the date of
the termination of employment of the Employee under this Employment Agreement;
or
(b) solicit, recruit or hire (or attempt to solicit, recruit or
hire) any employee, officer or agent of the Corporation or contractor engaged by
the Corporation (whether or not such person is a full-time employee or whether
or not such employment is pursuant to a written agreement or at-will) to
terminate such person's employment or engagement with the Corporation or work
for a third party other than the Corporation for a period of two (2) years after
the date of the termination of employment of the Employee under this Employment
Agreement, or engage in any activity that would cause such employee or
contractor to violate any agreement with the Corporation, nor shall the Employee
form any partnership with, or establish any business venture in cooperation
with, any such person.
(c) For the purposes of this Section (11), a "Customer" means any
person or entity which as of the date of the termination of employment of the
Employee under this Employment Agreement was, within two (2) years prior to such
time, a customer, distributor or supplier of the Corporation, and references to
the Corporation shall be deemed to include any affiliate or subsidiary of the
Corporation.
(12) 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 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.
(13) 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
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under this Employment Agreement shall inure to the benefit of, and shall be
binding upon, the heirs, executors and legal representatives of the Employee.
(14) 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 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 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.
(15) 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 without regard to its conflict of laws principles.
(16) Arbitration. Any controversy or claim arising out of, or relating to,
this Employment Agreement, or the breach hereof shall be settled by binding
arbitration in accordance with the American Arbitration Association National
Rules for Resolution of Employment Disputes then in effect in the Commonwealth
of Massachusetts, and judgment upon any arbitration award may be entered into in
any court having jurisdiction thereof. The arbitration shall be held in
Wilmington, Massachusetts. The Company shall bear the cost of any such
arbitration.
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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/ Xxx Xxxxxxxxxxxx
---------------------------
CEO & President
00 Xxxxxxxxxx Xxx
Xxxxxxxxxx, XX 00000
/s/ Xxxxxxx Xxxxxxx
---------------------------
Legal Signature
Xxxxxxx Xxxxxxx
Address:
X.X. Xxx 00000
Xxxxxxx, XX 00000
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