exv10w23






Exhibit 10.23




EMPLOYMENT AGREEMENT




EMPLOYMENT AGREEMENT dated January 5, 2006,(“Employment Agreement”), by and between MKS
Instruments, Inc., a Massachusetts Corporation (“the Corporation”), and of, Seth H. Bagshaw , (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 premises contained herein, the
Corporation and the Employee hereby agree as follows:




     (1) Term of Employment




     (a) The Corporation hereby employs the Employee, and the Employee hereby accepts
employment with the Corporation, for a period commencing as of (start date) and continuing
thereafter until terminated as provided in this Section (1) or Section (5).




     (b) The Corporation may terminate Employee’s employment at any time for any reason, or
no reason, by notifying Employee of such termination. The employment of the Employee under
this Employment Agreement shall terminate thirty (30) days after the date 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)(b) and (c).
Notwithstanding the above, the Corporation shall be entitled, at its sole discretion, to
waive its obligation to continue active employment of the Employee during the 30 day notice
period. In the event the Corporation elects at any time to waive its obligation to continue
active employment of the Employee during the 30 day notice period, the Corporation shall
continue to pay the Employee his customary Base Salary (as defined in Section (4)) and will
reimburse Employee for the premiums (if any) he pays for continuation of life insurance
should he elect to exercise the conversion feature (if any) of the Corporation’s group life
policy then in effect and for the premiums (if any) for the continuation under the federal
COBRA program of such medical/dental insurance as Employee may then receive through the
balance of the 30 day notice period.




     (c) Employee may terminate employment by delivering notice of resignation no later than
thirty (30) days prior to the intended date of termination of employment (“Resignation
Date”); provided, however, that the Corporation may at any time and for any reason, or no
reason, accelerate the Resignation Date to any date prior thereto up to and including the
date Employee delivers such notice of resignation, which such acceleration shall not, in any
event, be deemed a termination by Corporation of Employee’s employment. Unless the
employment is terminated pursuant to Section (5), the Corporation shall, if it terminates
the employment prior to the Resignation Date, continue to pay Employee his customary Base
Salary (as defined in Section 4)) and will



 









 






reimburse Employee for the premiums (if any) he pays for continuation of life
insurance should he elect to exercise the conversion feature (if any) of the Corporation’s
group life policy then in effect and for the premiums (if any) for continuation under the
federal COBRA program of such medical/dental insurance as Employee may then receive, through
the balance of the 30 day notice period.



     (2) Capacity: Employee is being paid to perform such duties and exercise such
powers, authorities and discretions in relation to the Corporation as are customary and incidental
to Employee’s position and such other services that are delegated or assigned to him by the CEO &
President of the Corporation or his designee, including any authorized manager or supervisor of the
Employee. It shall be a condition to Employee’s employment hereunder that Employee execute and
deliver to the Corporation that Confidential Information Agreement of MKS Instruments, Inc.
(“Confidential Information Agreement”) attached hereto as Attachment 1, and by execution of this
Employment Agreement, Employee (i) acknowledges receipt of the Confidential Information Agreement
and (ii) agrees to be bound by all of the terms of the Confidential Information 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 perform similar duties in any other
capacity for any other person or 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. Employee agrees and understands that Employee owes the Corporation fidelity and
loyalty during his term of employment with 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 thousand dollars
($200,000) per year for the term of employment of the Employee under this Employment
Agreement. The base salary shall be payable in equal biweekly installments subject to usual
withholding requirements. This salary will be reviewed regularly according to the practices
of the Corporation and will be subject to any changes in pay policies implemented by the
Corporation from time to time. As an exempt employee, the Employee shall not be entitled to
receive any overtime pay from the Corporation.




     (b) MKS Instruments, Inc. Profit Sharing and 401-K 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, Inc. Profit Sharing and 401-K
Plan, subject to any changes thereto that may be implemented from time to time.




     (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



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     Corporation to transact its business. Such vacation leave shall accrue and be administered
according to the policies and practices of the Corporation.




     (d) Life Insurance: The Corporation shall provide and pay such premiums for
such term life insurance for the Employee during the term of employment of the Employee
under this Employment Agreement as may be applicable to the Employee, subject to any changes
in the term life insurance policies that may be implemented by the Corporation from time to
time.




     (e) Medical/Dental Insurance: The Corporation shall provide and pay such
premiums for such group medical/dental insurance for the Employee during the term of
employment of the Employee under this Employment Agreement as may be applicable to the
Employee, subject to any changes in the medical/dental insurance policies that may be
implemented by the Corporation from time to time.




     (f) 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, or the disability of the Employee as defined in
Section (6) (e) below.




     (c) Upon Corporation’s delivery of notice of the existence of Cause. “Cause” shall
mean: (i) Employee’s refusal to follow directions from the CEO & President of the
Corporation or his designee that are not inconsistent with Employee’s position, (ii)
Employee’s failure to perform his duties other than as a result of Disability or death,
(iii) Employee’s disregard of or failure to comply with the Corporation’s directives,
policies or procedures other than as a result of Disability or death, (iv) Employee’s
engaging in negligent, reckless or intentional conduct injurious to the Corporation, any of
its subsidiaries or affiliates or any of its directors or officers, (v) Employee’s
conviction of a felony or a serious misdemeanor or plea of other than “not guilty” to any
felony or serious misdemeanor charge, (vi) Employee’s engaging in conduct that is injurious
to the Corporation’s name or reputation or (vii) Employee’s breach of this Employment
Agreement or the Confidential Information Agreement.



     (6) Payment Upon Termination:




     (a) Upon the termination of employment as provided in Section (1), the Employee shall
not be entitled to any further compensation or benefits, and the
Corporation shall have no obligation to provide the Employee any further compensation or benefits, except as provided in this Employment Agreement.



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     (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 and other unpaid amounts to which
Employee would have been at that time entitled as an Employee under any applicable
compensation or benefit plan or program.




     (c) In the event the employment of the Employee is terminated by the Corporation for
Cause pursuant to Section (5) (c) hereof, the Corporation shall have no obligation to pay
the Employee any amounts, except for Base Salary through the last full day of actual work
for the Corporation.




     (d) In the event the Employee voluntarily resigns, the Corporation shall have no
obligation to pay the Employee any amounts, except for Base Salary through the last full day
of actual work for the Corporation, or, if applicable, amounts payable in accordance with
Section (1.c), and other unpaid amounts to which Employee is at that time entitled under any
applicable compensation or benefit plan or program.




     (e) If Employee is incapacitated by a physical or mental condition, illness, or injury
that prevents Employee from being able to perform his duties under this Employment Agreement
in a satisfactory manner for substantially all of a twelve (12) consecutive week period (or
such longer period as may be required by law or that the CEO & President of the Corporation
or his designee may, in his discretion, determine) with any reasonable accommodation that
may be required by law, then Employee shall be deemed to be unable to perform his job (any
such physical or mental condition, illness, or injury, a “Disability”). In such event, the
Corporation may terminate Employee’s employment, in which case Employee shall receive (i)
any accrued but unpaid Base Salary and other unpaid amounts to which Employee is at that
time entitled under any applicable compensation or benefit plan or program and (ii) al
applicable disability benefits consistent with any applicable benefits program. The
Corporation shall have no further obligations to Employee. Nothing in this paragraph is
intended to or shall operate to excuse the Corporation from any legal obligations it may
have under applicable laws.




     (f) The Corporation shall deduct from the amounts payable to Employee pursuant to this
Agreement all required withholding amounts and deductions, including but not limited to
federal, state and local withholding amounts in accordance all applicable laws and
regulations and deductions authorized by Employee. Employee shall be solely responsible for
and shall pay all taxes associated with the amounts payable under this Agreement



     (7) Noncompetition Agreement: Employee shall not, without the written consent of the
Corporation, during the term of employment with the Corporation and for the period of one year
thereafter (the “Non-Compete Period”), engage in or otherwise carry on, directly or indirectly
anywhere in the world (either as principal, agent, employee, employer, investor, shareholder
(except for holdings of no great than 1% of the total outstanding shares in a publicly-traded



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company), consultant, partner, member, financier or in any other individual or representative
capacity of any kind whatsoever), any business or activity competitive with the Corporation but
solely to the extent such business or activity is related to, similar to or competitive with the
activities of the business unit(s), division(s), laborator(y)(ies), facilit(y)(ies) and other
operational unit(s) in or for which Employee performed work for the Corporation or about which
Employee acquired Proprietary Information (as defined in the Confidential Information Agreement).
The Non-Compete Period shall be extended for any period during which Employee is in breach of this
Agreement or the Confidential Information Agreement.




     (8) 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.



     (9) 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.



     (10) Entire Agreement and Severability:




     (a) This Employment Agreement and the Confidential Information Agreement supersede 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
agreement, 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.



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     (11) Miscellaneous: This Agreement and the rights and obligations of the parties
hereunder shall be governed by, and construed in accordance with, the laws of the Commonwealth of
Massachusetts, excluding (but only to the extent permitted by law) its conflict of laws and choice
of law rules, and jurisdiction over any action to enforce this Agreement, or any dispute arising
from or relating to this Agreement shall subsist solely in the state and/or federal courts located
within the Commonwealth of Massachusetts. The parties hereto further agree that service of any
process, summons, notice or document by U.S. certified mail or overnight delivery by a generally
recognized commercial courier service to Employee’s last known address (or any mode of service
recognized to be effective by applicable law) will be effective service of process for any action,
suit or proceeding brought against Employee in any such court. This Agreement may be executed in
any number of counterparts, each of which, when executed by both parties to this Agreement shall be
deemed to be an original, and all of which counterparts together shall constitute one and the same
instrument. The failure of either party hereto to enforce any right under this Agreement shall not
be construed to be a waiver of that right, or of damages caused thereby, or of any other rights
under this Agreement.



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/ Leo Berlinghieri
 

	 	 
	 

	 	CEO & President	 	 
	 
	 	 	 	 
	 

	 	90 Industrial Way	 	 
	 

	 	Wilmington, MA 01887	 	 
	 
	 	 	 	 
	 

	 	/s/ Seth H. Bagshaw
	 	Legal Signature
	 

	 	 	 	 
	 

	 	Seth Bagshaw	 	 
	 

	 	5 Bayns Hill Road	 	 
	 

	 	Boxford, MA 01921	 	 







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