EXHIBIT 10.26
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT dated 14 Sept 92 (Employment Agreement") by and between
MKS Instruments, Inc., a Massachusetts Corporation (the "Corporation"), and John
Smith of Cheshire, UK. (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 14 SEPT 92 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 Employee
Agreement at any time after 14 SEPT 92 by giving written notice to the other
party stating its or his election to terminate the employment of the Employee
under this Employment Agreement thirty (30) days after the date of receipt by
the other party of such notice and the employment of the Employee under this
Employment Agreement shall terminate ninety (90) 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 NGS or his designee.
(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 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 ninety five thousand
dollars ($95,000.00) per year for the term of employment of the Employee under
this Employment Agreement. The base salary shall be payable in equal weekly
installments subject to usual withholding requirements. No overtime pay will be
paid to the Employee by the Corporation.
(b) Profit Sharing 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 Profit Sharing Plan of the Corporation. This
section shall be amended by the provision set forth in attachment A.
2
(c) Vacation: The Employee shall be entitled to an annual vacation
leave of 15 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.
(d) 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.
(e) Health Insurance: The Corporation shall provide group medical
insurance for the Employee under the Medical Reimbursement Plan 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.
3
(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 by 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.
4
(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 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 and 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
5
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 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.
6
(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 nine (9) months 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. For purposes of this Agreement, any business or
activity involving or relating to quadrupole residual gas analyzers similar in
concept to the "PPT" ("Competitive Business") shall be deemed to be business or
activity which is competitive with the business conducted by the Corporation.;
(ii) the Employee shall not work for or employ,
7
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 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
8
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 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 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
9
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.
(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.
10
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/ John R. Bertucci
---------------------
President
6 Shattuck Road
Andover, MA 01810
/s/ John Smith LS
---------------------
Address:
101 North St.
---------------------
Medfield, MA
11