EXHIBIT 99.2
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement") is made and entered into as of
this 1st day of July, 2005, by and between MKS INSTRUMENTS, INC., a
Massachusetts corporation (the "Company"), and XXXX X. XXXXXXXX of Lexington, MA
("Xxxxxxxx").
RECITALS
WHEREAS, the Company is a leading worldwide provider of instruments,
components, subsystems and process control solutions that measure, control,
power and monitor critical parameters of semiconductor and other advanced
manufacturing processes;
WHEREAS, Xxxxxxxx is currently the Chief Executive Officer and the
Chairman of the Board of Directors of the Company;
WHEREAS, as of the date of this Agreement, Xxxxxxxx desires to resign as
Chief Executive Officer of the Company, but desires to remain the Chairman of
the Board of Directors of the Company and continue to serve as an employee of
the Company, subject to the terms of this Agreement;
WHEREAS, the Company desires to continue to employ Xxxxxxxx and to
continue to obtain the benefit of Bertucci's service as the Executive Chairman
of the Board of Directors, pursuant to the terms and conditions of this
Agreement.
NOW THEREFORE, in consideration of the premises and of the mutual
covenants and agreements hereinafter set forth, the parties hereto acknowledge
and agree as follows:
PART ONE
NATURE AND TERM OF EMPLOYMENT
1.01 Transition and Employment. Xxxxxxxx and the Company hereby agree that
Bertucci's resignation as the Chief Executive Officer shall be effective as of
July 1, 2005. Subject to the terms of this Agreement, the Company hereby agrees
to continue to employ Xxxxxxxx as Executive Chairman, and Xxxxxxxx hereby
accepts such employment, with such duties and responsibilities as are described
herein.
1.02 Term. Unless earlier terminated or unless extended pursuant to the
provisions hereof, the term of Bertucci's employment shall begin on July 1,
2005, and shall continue until such time as it is terminated in accordance with
the terms of Part Four of this Agreement.
1.03 Duties and Authority. The duties and authority of the Executive
Chairman shall be as reasonably determined by the Board of Directors of the
Company (the "Board") from time to time, and shall include the role of Chairman
of the Board of Directors and be consistent with his position as Executive
Chairman. Xxxxxxxx will devote substantially all of his business time to the
Company. Subject to the terms of this Agreement and the Company's Code of
Business Conduct and Ethics, Xxxxxxxx may participate in other business, civic,
charitable, industry activities which do not materially interfere with the
performance of his duties, may serve on
boards of directors of up to three (3) non-competing for-profit businesses, and
may serve on additional boards of directors with the prior consent of the Board.
1.04 Place of Performance. Xxxxxxxx shall maintain an executive office at
the Company's Wilmington, Massachusetts executive offices or other such location
as may be mutually agreed to by the Board and Xxxxxxxx. Nothing in this section
shall be construed to prohibit Xxxxxxxx from periodically performing his
services for the Company at a location other than Wilmington, Massachusetts.
1.05 Nomination as Director; Appointment as Chairman. In the event that
Xxxxxxxx resigns from his employment with the Company pursuant to Section 4.03
hereof other than for "good reason" (as defined in such section), then, upon
Bertucci's request, the Board of Directors shall, subject to applicable law, the
Company's then effective by-laws and articles of organization, and the fiduciary
duties of the Board of Directors, (a) nominate Xxxxxxxx for election as a Class
III director and (b) consider Xxxxxxxx for appointment as Chairman, in each case
until such time as he is no longer eligible for such nomination as director
pursuant to the Company's then effective Criteria for Nomination as a Director.
PART TWO
COMPENSATION AND BENEFITS
2.01 Base Annual Salary. For the services rendered by Xxxxxxxx while
employed by the Company, the Company shall pay Xxxxxxxx at an initial annual
base salary rate of $450,000 (as the same may be increased from time to time,
the "Base Annual Salary"). At least annually, Bertucci's Base Annual Salary
shall be reviewed and shall be subject to increase by the Board in its
discretion at the time executive officer compensation is reviewed. The Base
Annual Salary shall be payable to Xxxxxxxx in substantially equal installments
in accordance with the Company's regular payroll practices.
2.02 Bonus. Xxxxxxxx shall be entitled to participate in the Company's
Management Incentive Program and receive an annual cash bonus in return for
performance of his duties under this Agreement. The targeted bonus under this
program shall be determined at a rate of 60% of Base Annual Salary (the
"Bonus"). Except as otherwise set forth herein, payment of the Bonus to Xxxxxxxx
will occur when bonuses are normally paid by the Company.
2.03 General Employee Benefits. Xxxxxxxx shall be entitled to continue
participation in the Company's current and future executive level benefits
plans, programs, policies, practices and perquisites (not including the payment
of retirement benefits or participation in executive stock option programs)
while employed by the Company hereunder, including without limitation health
insurance for Xxxxxxxx and Bertucci's immediate family, to the extent maintained
by the Company for salaried employees generally, provided that Xxxxxxxx (or, as
applicable, Bertucci's immediate family member) is eligible for participation
under the terms of such plans, programs and arrangements. Xxxxxxxx shall also be
entitled to receive expense reimbursement in accordance with the Company's
expense reimbursement policy.
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PART THREE
NONCOMPETITION AND CONFIDENTIALITY
3.01 Noncompetition. In addition to his obligations under the Company's
Code of Business Conduct and Ethics, in consideration of Bertucci's employment
hereunder, Xxxxxxxx hereby agrees that during the term of his employment
hereunder and for a period of one (1) year thereafter, or, in the event that
such termination was initiated by Xxxxxxxx other than for "good reason", for a
period of two (2) years thereafter, he will not, singly, jointly, or as a
member, employee, or agent of any partnership or as an officer, agent, employee,
director or stockholder, or inventor of any other corporation or entity, or in
any other capacity, directly or indirectly:
(i) manage, operate, participate in, perform services for or
otherwise carry on, assist or be connected with a Competing
Business doing business anywhere within the respective
territories in which the Company's business is then carried
on;
(ii) maintain an ownership interest of more than one percent (1%)
in any Competing Business doing business anywhere within the
respective territories in which the Company's business is then
carried on
(iii) solicit or contact (or assist in any solicitation or contact
of) any customer of the Company with a view toward inducing
the purchase of a Competing Product or otherwise diverting
business from the Company;
(iv) induce or attempt to persuade any customer or supplier of the
Company to terminate or materially change such relationship;
For purposes of this Agreement:
"Competing Products" means products, processes or services of any person
or organization other than the Company, in existence or under development, which
are substantially the same as or which perform the same function or otherwise
compete with any products, processes, or services developed, manufactured or
sold by the Company during the time of Bertucci's employment with the Company or
about which Xxxxxxxx acquires Confidential Information (defined below) through
his relationship with the Company, including, but not limited to, the
manufacture, sale, distribution or performance of services with respect to
instruments, components, subsystems and process control solutions that measure,
control, power and monitor critical parameters of semiconductor and other
advanced manufacturing processes.
"Competing Business" means any person or organization engaged in, or
planning to become engaged in, research, development, production, distribution,
marketing, providing or selling of a Competing Product.
3.02 Non-solicitation of Employees. In consideration of Bertucci's
employment hereunder, Xxxxxxxx hereby agrees that during the term of his
employment hereunder and for a period of two (2) years thereafter, he will not,
singly, jointly, or as a member, employee, or agent of any partnership or as an
officer, agent, employee, director or stockholder, or inventor of any
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other corporation or entity, or in any other capacity, directly or indirectly
induce or attempt to persuade any employee or agent of the Company to terminate
such employment or agency relationship or violate the terms of any agreement
with the Company.
3.03 Confidentiality. Xxxxxxxx acknowledges that preservation of a
continuing business relationship between the Company and its subsidiaries and
its respective customers, representatives and employees is of critical
importance to the continued business success of the Company, that it is the
policy of the Company and its subsidiaries to guard as confidential the
Confidential Information defined below, and that Xxxxxxxx will acquire
Confidential Information and personal relationships with customers and
prospective customers, which relationships may constitute the Company's primary
relationships with such customers and prospective customers. In view of the
foregoing, Xxxxxxxx agrees that, except as required for the performance of his
duties under this Agreement, he will not during the term of his employment
hereunder and thereafter, without the prior written consent of the Company, use
for the benefit of himself or any third party or disclose to any third party any
Confidential Information. Xxxxxxxx further agrees that if his employment by the
Company is terminated for any reason, he will not take with him but will leave
with the Company all records and papers and all matter of whatever nature which
contain Confidential Information. For purposes of this Agreement, "Confidential
Information" means any information, including any plan, drawing, specification,
pattern, procedure, design, device, list or compilation, which relates to the
present or planned business of the Company which has not been disclosed publicly
by authorized representatives of the Company. Confidential Information may
include, for example, inventions, marketing and sales plans or programs;
customer and supplier information and lists; financial data; purchasing and
pricing information; product engineering information; technological know-how;
designs, plans or specifications regarding products and materials; manufacturing
processes and techniques; regulatory approval strategies; computer programs,
data, formulae and compositions; service techniques and protocols; and new
product strategies, plans and designs. Confidential Information also includes
all information received by Company under a confidentiality obligation to a
third party.
3.04 Company's Right to Developed Intellectual Property. All Confidential
Information, inventions, trade secrets or other intellectual property developed
or conceived by Xxxxxxxx during Bertucci's employment the Company, whether
before or after the date of this Agreement (collectively the "Intellectual
Property"), shall be the sole and exclusive property of the Company without
further compensation. Additionally, any Intellectual Property based upon the
Company's Confidential Information and developed or conceived (whether solely or
jointly) by Xxxxxxxx at any time either during or after the term of Bertucci's
work with the Company shall be the property of the Company. Xxxxxxxx agrees to
promptly notify and formally disclose to the Company all such Intellectual
Property. Xxxxxxxx shall take such steps as are deemed necessary by the Company
to maintain complete and current records thereof. Xxxxxxxx shall assign to the
Company or its designees, Bertucci's entire right, title and interest in any
Intellectual Property. Xxxxxxxx shall, at the Company's request and expense,
make applications for domestic or foreign patents, execute all documents
necessary thereto, and assist in securing, defending or enforcing any such title
and right thereto. Xxxxxxxx hereby confirms that he is not subject to any
agreements, covenants or restrictions that would prevent the Company from
asserting full ownership rights to Intellectual Property developed or conceived
by Xxxxxxxx as contemplated hereunder, or that would require the disclosure,
assignment or licensing of any such Intellectual
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Property to any third party. Xxxxxxxx further agrees not to assert any right or
claim that would interfere with the Company's ownership or use of such
Intellectual Property.
NOTICE TO XXXXXXXX: THE COMPANY ACKNOWLEDGES AND HEREBY NOTIFIES XXXXXXXX THAT
NO PROVISION IN THIS AGREEMENT IS INTENDED TO REQUIRE ASSIGNMENT OF ANY OF
BERTUCCI'S RIGHTS IN ANY INVENTION IF NO EQUIPMENT, SUPPLIES, FACILITIES OR
CONFIDENTIAL INFORMATION OF THE COMPANY WAS USED, AND THE INVENTION WAS
DEVELOPED ENTIRELY ON BERTUCCI'S OWN TIME, UNLESS THE INVENTION RELATES TO THE
BUSINESS OF THE COMPANY OR TO THE COMPANY'S ACTUAL OR DEMONSTRABLY ANTICIPATED
RESEARCH AND DEVELOPMENT, OR THE INVENTION RESULTS FROM ANY WORK PERFORMED BY
XXXXXXXX FOR THE COMPANY. XXXXXXXX UNDERSTANDS AND AGREES THAT XXXXXXXX SHALL
BEAR THE BURDEN OF PROVING THAT AN INVENTION QUALIFIES WITH THE FOREGOING
LIMITED EXCEPTIONS.
PART FOUR
TERMINATION
4.01 Death or Disability. Upon the death or Disability of Xxxxxxxx his
employment hereunder shall automatically terminate. For the purposes of this
Agreement, the term "Disability" shall have the meaning set forth in Section
216(i)(1) of the Social Security Act, as amended from time to time.
4.02 Termination by Company. Company may terminate Bertucci's employment
without "cause" by giving Xxxxxxxx ninety (90) days advance written notice.
Company may terminate his employment for "cause" immediately upon written notice
to Xxxxxxxx. For the purposes of this Agreement, "cause" shall be deemed to
exist if Xxxxxxxx: (i) is convicted of, or pleads guilty or no contest to, a
felony; (ii) engages in conduct that constitutes fraud, or gross misconduct that
results in material harm to the Company; (iii) materially breaches the terms of
this Agreement, which breach is not cured within thirty (30) days after written
notice to Xxxxxxxx; (iv) engages in intentional and willful misconduct that
subjects the Company to criminal or civil liability.
4.03 Termination by Xxxxxxxx. Xxxxxxxx may terminate his employment
(including for purposes of retirement on or after age 65) under this Agreement
by giving the Company ninety (90) days advance written notice. Subject to the
conditions set forth below, Xxxxxxxx may terminate his employment hereunder for
"good reason" following 30 days written notice to the Company. For purposes of
this Agreement, "good reason" shall mean (i) a material diminution in Bertucci's
positions, title, duties or responsibilities from those described in this
Agreement, (ii) a reduction in Bertucci's Base Salary (other than a reduction
which is part of a general salary reduction program affecting senior executives
of the Company), (iii) a material reduction in the aggregate value of the
benefits provided to Xxxxxxxx (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 Agreement by the Company, (vi) the Company's requiring
Xxxxxxxx to be based at a location that creates for Xxxxxxxx a one way commute
in excess of 30 miles from his current primary residence, except for required
travel on the Company's business to an extent substantially consistent with the
business travel obligations of Xxxxxxxx under this Agreement. Notwithstanding
the foregoing, a termination shall not be treated as a termination for "good
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reason" (i) if Xxxxxxxx shall have consented in writing to the occurrence of the
event giving rise to the claim of termination for "good reason" or (ii) unless
Xxxxxxxx shall have delivered a written notice to the Company 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.
4.04 Payments on Termination.
(a) General. Upon any termination of his employment hereunder in
accordance with this Part Four, Xxxxxxxx shall receive: (i) Base Annual Salary
through the termination date; (ii) the balance of any earned but as yet unpaid
annual cash bonus or other incentive award for a prior year; (iii) accrued but
unused vacation; (iv) vested benefits under Company benefit plans; and (v)
benefit continuation/conversion rights as provided under Company benefit plans
and/or as required by law. In the event that the Company terminates Bertucci's
employment for "cause," he shall receive only the foregoing general payments.
(b) Death or Disability. In the event that termination of his
employment results from Bertucci's death or Disability, in addition to the
foregoing general payments described in 4.04(a) above, Xxxxxxxx shall receive an
amount equal to 12 months Base Annual Salary at the rate in effect immediately
prior to termination, plus a pro rata Target Bonus (determined by pro rating the
Target Bonus for the year in which termination occurs through the date of death
or the date of Disability). Such amounts shall be paid to Xxxxxxxx or, as
applicable, Bertucci's estate or legal representative, within 30 days of the
date of death or declaration of Disability. In addition, Xxxxxxxx and Bertucci's
spouse receive Retiree Medical Benefits (as defined in 4.04(g) below) for the
remainder of their respective lives in accordance with the terms set forth in
4.04(g) below.
(c) Termination by Company Without Cause or Resignation by Xxxxxxxx
For Good Reason. In the event that termination of employment is by the Company
without "cause" or by Xxxxxxxx for "good reason," then, upon Bertucci's
execution of a mutually agreeable mutual release of all actual or potential
claims, in addition to the foregoing general payments described in 4.04(a)
above, Xxxxxxxx shall receive (i) 36 months Base Annual Salary, at the rate in
effect immediately prior to termination, payable in substantially equal monthly
installments, (ii) the Target Bonus for 36 months following termination at the
rate in effect immediately prior to termination, payable when executive bonuses
are normally paid; (iii) Retiree Medical Benefits for Xxxxxxxx and his spouse
for the remainder of their respective lives in accordance with the terms set
forth in Section 4.04(g) below, and (iv) continued payment of, and participation
in, Bertucci's other, non-medical benefits under the terms in effect immediately
prior to termination for the remainder of Bertucci's life.
(d) Termination by Xxxxxxxx. In the event that Xxxxxxxx elects to
terminate his employment hereunder without "good reason" or retire as an
employee of the Company, in addition to the foregoing general payments described
in 4.04(a) above, Xxxxxxxx shall receive, in return for agreeing to be available
for consultation with the Company for up to 10 hours per month during the first
year following the date of Bertucci's termination or retirement, (i) 18 months
Base Annual Salary at the rate in effect immediately prior to termination,
payable in
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substantially equal monthly installments; Retiree Medical Benefits for Xxxxxxxx
and his wife for the remainder of their respective lives in accordance with the
terms set forth in Section 4.04(g) below; and (iii) continued payment of, and
participation in, Bertucci's other non-medical benefits under the terms in
effect immediately prior to termination, for the remainder of Bertucci's life.
(e) Termination due to a Change in Control. Notwithstanding anything
to the contrary in this Section 4.04, in the event Bertucci's employment is
terminated without "cause" or by Xxxxxxxx for "good reason", upon or as a result
of a Change in Control (as hereinafter defined) or at any time within 2 years
following such a Change in Control, in addition to the foregoing general
payments described in 4.04(a) above, but in lieu of the payments provided for in
4.04(c) above, Xxxxxxxx shall receive (i) 36 months Base Annual Salary, at the
rate in effect immediately prior to termination; (ii) the Target Bonus for 36
months following termination at the rate in effect prior to termination (which
foregoing Base Annual Salary and Target Bonus amounts shall be payable to
Xxxxxxxx in a lump sum amount within 30 days of the date of termination, and
shall be grossed up to account for applicable federal and state income taxes
payable by Xxxxxxxx with respect to such amounts (iii) Retiree Medical Benefits
for Xxxxxxxx and his wife for the remainder of their respective lives in
accordance with the terms set forth in Section 4.04(g) below; and (iv) continued
payment of, and participation in, Bertucci's other, non-medical benefits under
the terms in effect immediately prior to termination for the remainder of
Bertucci's life.
For purposes of this Agreement, "Change in Control" means the first to occur of
any of the following events:
(i) Any "person" (as that term is defined in Section 13 and 14(d)(2) of
the Securities Exchange Act of 1934, as amended ("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 Company's capital
stock entitled to vote in the election of directors;
(ii) The shareholders of the Company approve any consolidation or merger
of the Corporation, other than a consolidation or merger of the Company in which
the holders of the common stock of the Company 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 of merger;
(iii) The shareholders of the Company approve any plan or proposal for the
liquidation or dissolution of the Company; or
(iv) The shareholders of the Company 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 Section 1563 of the
Internal Revenue Code of 1986, as amended) in which the Company is a member.
(f) Gross-up Payment.
(i) All payments and benefits provided to Xxxxxxxx by Company are intended
to be reasonable compensation for services by Xxxxxxxx, and the Company intends
that Xxxxxxxx receives the full economic benefit of such payments and benefits.
In the event that it is
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determined that any payment or benefit provided by Company to or for the benefit
of Xxxxxxxx, either under this Agreement or otherwise, whether paid before or
after the date of this Agreement, and regardless of under what plan or
arrangement it was made, will be subject to the excise tax imposed by section
4999 of the Code or any successor provision ("section 4999"), Company will,
prior to the date on which any amount of the excise tax must be paid or
withheld, make an additional lump-sum payment (the "gross-up payment") to
Xxxxxxxx. The xxxxx-up payment will be sufficient, after giving effect to all
federal, state and other taxes and charges (including interest and penalties, if
any) with respect to the gross-up payment, to make Xxxxxxxx whole for all taxes
(including withholding taxes) and any associated interest and penalties, imposed
under or as a result of section 4999.
(ii) Determination under this 4.04(f) will be made by the Company's tax
accountant unless Xxxxxxxx has reasonable objections to the use of that firm, in
which case the determinations will be made by a comparable firm chosen by
Xxxxxxxx after consultation with Company (the firm making the determinations to
be referred to as the "Firm"). The determinations of the Firm will be binding
upon Company and Xxxxxxxx except as the determinations are established in
resolution (including by settlement) of a controversy with the Internal Revenue
Service to have been incorrect. All fees and expenses of the Firm will be paid
by Company.
(iii) If the Internal Revenue Service asserts a claim that, if successful,
would require Company to make a gross-up payment or an additional gross-up
payment, Company and Xxxxxxxx will cooperate fully in resolving the controversy
with the Internal Revenue Service. Company will make or advance such gross-up
payments as are necessary to prevent Xxxxxxxx from having to bear the cost of
payments made to the Internal Revenue Service in the course of, or as a result
of, the controversy. The Firm will determine after resolution of the controversy
whether any advances must be returned by Xxxxxxxx to Company. Company will bear
all expenses of the controversy and will gross Xxxxxxxx up for any additional
taxes that may be imposed upon Xxxxxxxx as a result of its payment of such
expenses.
(iv) The Company's obligations under this 4.04(f) shall survive the
termination of Bertucci's employment and any termination of this Agreement.
(g) Retiree Medical Benefits.
(i) Eligibility. The Employee's eligibility to receive the retiree medical
benefits set forth in this 4.04(g) (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 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 65 years old, provided that, if Employee is under 68 at the
time of such retirement, the terms of the benefits shall be subject to
subsection 4.04(g)(iii) hereof; or
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(B) the Employee is terminated by the Corporation
without "cause" or, terminates his employment for "good reason"; 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 or death of the
Employee.
If the Employee meets the eligibility criteria described
above, he shall be considered an "Eligible Employee" hereunder. Spouses of
Eligible Employees ("Eligible Spouses") 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".
(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 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 Employee and Eligible Spouses 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 Eligible Employees and Eligible Spouses 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 4.04(g)(i)(A) 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, based upon the age of the Eligible
Employee:
Age at Percentage of Retiree Medical Benefit Costs
Date of Retirement to be Paid by Employee (or surviving spouse) at such age
------------------ --------------------------------------------------------
65 30%
66 20%
67 10%
68 or more 0%
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PART FIVE
MISCELLANEOUS
5.01 Assignment. Xxxxxxxx and Company acknowledge and agree that the
covenants, terms and provisions contained in this Agreement constitute a
personal employment contract and the rights and duties of the parties hereunder
cannot be transferred, sold, assigned, pledged or hypothecated.
5.02 Entire Agreement. This Agreement contains the entire agreement
between the parties relating to the subject matter hereof and shall not be
modified except in writing by the parties hereto. Furthermore, the parties
hereto specifically agree that all prior agreements, whether written or oral,
relating to Bertucci's employment by the Company shall be of no further force or
effect from and after the date hereof.
5.03 Severability. If any phrase, clause or provision of this Agreement is
declared invalid or unenforceable by a court or arbitrator of competent
jurisdiction, such phrase, clause or provision shall be deemed severed from this
Agreement, but will not affect any other provisions of this Agreement, which
shall otherwise remain in full force and effect. If any restriction or
limitation in this Agreement is deemed to be unreasonable, onerous and unduly
restrictive by a court or arbitrator of competent jurisdiction, it shall not be
stricken in its entirety and held totally void and unenforceable, but shall
remain effective to the maximum extent permissible within reasonable bounds.
5.04 Notices. Any notice, request or other communication required to be
given pursuant to the provisions hereof shall be in writing and shall be deemed
to have been given when delivered in person or three (3) days after being
deposited in the United States mail, certified or registered, postage prepaid,
return receipt requested and addressed to the party at its or his last known
address. The address of any party may be changed by written notice to the other
party duly served in accordance herewith.
5.05 Amendment or Waiver. No amendment, modification or waiver of any
term, condition, right or remedy hereunder shall be effective for any purpose
unless specifically set forth in a writing signed by the party to be bound
thereby. The waiver by the Company or Xxxxxxxx of any breach of any term or
condition of this Agreement shall not be deemed to constitute the waiver of any
other breach of the same or any other term or condition hereof.
5.06 Indemnification. For such purposes, the Company shall maintain a
commercially reasonable amount of directors and officers liability insurance
coverage which shall be effective during Bertucci's employment and thereafter.
5.07 Governing Law. This Agreement and the enforcement thereof shall be
governed and controlled in all respects by the internal laws of the Commonwealth
of Massachusetts, without application of conflicts of law principles.
5.08 Arbitration. Any controversy or claim arising out of, or relating to,
this Agreement or the breach thereof 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
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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.
5.09 Binding Agreement. This Agreement shall be binding upon and inure to
the benefit of the parties hereto and their heirs, legatees, personal
representatives, successors, and permitted assigns.
5.10 Headings / Counterparts. The headings of the parts and sections of
this Agreement are inserted for convenience of reference only and shall not be
deemed a part of, or affect the construction or interpretation of, any provision
hereof. This Agreement may be executed in two or more counterparts, each of
which shall be deemed to be an original, and all such counterparts together
shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed, effective as of the date first herein above written.
EXECUTIVE:
/s/ Xxxx X. Xxxxxxxx
---------------------------------------
Xxxx X. Xxxxxxxx
COMPANY:
MKS INSTRUMENTS, INC.
By: /s/ Xxx Xxxxxxxxxxxx
-----------------------------------
Print Name: Xxx Xxxxxxxxxxxx
Title: President
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