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As filed with the Securities and Exchange Commission on May 7, 1999
Registration No. 333-_____
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
MKS INSTRUMENTS, INC.
(Exact Name of Registrant as Specified in Its Charter)
MASSACHUSETTS
(State or Other Jurisdiction of Incorporation or Organization)
04-2277512
(I.R.S. Employer Identification No.)
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SIX SHATTUCK ROAD, ANDOVER, MASSACHUSETTS 01810
(Address of Principal Executive Offices) (Zip Code)
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AMENDED AND RESTATED 1999 EMPLOYEE STOCK PURCHASE PLAN
(Full Title of the Plan)
MARK G. BORDEN, ESQ.
HALE AND DORR LLP
60 STATE STREET
BOSTON, MASSACHUSETTS 02109
(Name and Address of Agent for Service)
(617) 526-6000
(Telephone Number, Including Area Code, of Agent For Service)
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CALCULATION OF REGISTRATION FEE
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Proposed Proposed
Title Of Maximum Maximum
Securities Amount Offering Aggregate Amount Of
To Be To Be Price Per Offering Registration
Registered Registered Share Price Fee
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Common Stock,
no par value 450,000 $12.63(1) $5,683,500(1) $1,580
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(1) Estimated solely for the purpose of calculating the registration fee,
and based upon the average of the high and low prices of the Common
Stock on the Nasdaq National Market on May 5, 1999 in accordance with
Rules 457(c) and 457(h) of the Securities Act of 1933, as amended.
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PART I. INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The information required by Part I is included in documents sent or
given to participants in the Registrant's Amended and Restated 1999 Employee
Stock Purchase Plan pursuant to Rule 428(b)(1) of the Securities Act of 1933, as
amended (the "Securities Act").
PART II. INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The Registrant is subject to the informational and reporting
requirements of Sections 13(a), 14 and 15(d) of the Securities Exchange Act of
1934, as amended (the "Exchange Act"), and in accordance therewith files
reports, proxy statements and other information with the Securities and Exchange
Commission (the "Commission"). The following documents, which are filed with the
Commission, are incorporated in this Registration Statement by reference:
(1) The Registrant's latest prospectus filed pursuant to Rule
424(b) under the Securities Act that contains audited financial
statements for the Registrant's latest fiscal year for which such
statements have been filed.
(2) All other reports filed pursuant to Section 13(a) or 15(d)
of the Exchange Act since the end of the fiscal year covered by the
prospectus referred to in (1) above.
(3) The description of the common stock of the Registrant, no
par value per share (the "Common Stock"), contained in the Registration
Statement on Form 8-A filed by the Registrant with the Commission on
March 2, 1999.
All documents subsequently filed by the Registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a
post-effective amendment which indicates that all shares of Common Stock offered
hereby have been sold or which deregisters all shares of Common Stock then
remaining unsold, shall be deemed to be incorporated by reference herein and to
be part hereof from the date of the filing of such documents.
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Item 4. DESCRIPTION OF SECURITIES
Not applicable.
Item 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not applicable.
Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 67 of Chapter 156B of the Massachusetts General Laws provides
that a corporation may indemnify its directors and officers to the extent
specified in or authorized by (1) the articles of organization; (2) a by
- -law adopted by the stockholders; or (3) a vote adopted by the holders of a
majority of the shares of stock entitled to vote on the election of directors.
In all instances, the extent to which a corporation provides indemnification to
its directors and officers under Section 67 is optional. In its Restated
Articles of Organization (the "Articles of Organization"), the Registrant has
elected to commit to provide indemnification to its directors and officers in
specified circumstances. Generally, Article 6 of the Registrant's Articles of
Organization provides that the Registrant shall indemnify directors and officers
of the Registrant against liabilities and expenses arising out of legal
proceedings brought against them by reason of their status as directors or
officers or by reason of their agreeing to serve, at the request of the
Registrant, as a director or officer with another organization. Under this
provision, a director or officer of the Registrant shall be indemnified by the
Registrant for all costs and expenses (including attorneys' fees), judgments,
liabilities and amounts paid in settlement of such proceedings, even if he is
not successful on the merits, if he acted in good faith in the reasonable belief
that his action was in the best interests of the Registrant. The Board of
Directors may authorize advancing litigation expenses to a director or officer
at his request upon receipt of an undertaking by any such director or officer to
repay such expenses if it is ultimately determined that he is not entitled to
indemnification for such expenses.
Article 6 of the Registrant's Articles of Organization eliminates the
personal liability of the Registrant's directors to the Registrant or its
stockholders for monetary damages for breach of a director's fiduciary duty,
except to the extent Chapter 156B of the Massachusetts General Laws prohibits
the elimination or limitation of such liability.
The Registrant has obtained directors and officers liability insurance
for the benefit of its directors and certain of its officers.
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Item 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
Item 8. EXHIBITS
The Exhibit Index immediately preceding the exhibits is incorporated
herein by reference.
Item 9. UNDERTAKINGS
1. The Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this Registration Statement
to include any material information with respect to the plan of
distribution not previously disclosed in the Registration Statement or
any material change to such information in the Registration Statement;
(2) That, for the purpose of determining any liability under
the Securities Act, each such post-effective amendment shall be deemed
to be a new Registration Statement relating to the securities offered
therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at
the termination of the offering.
2. The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in the Registration Statement shall be deemed to be a
new Registration Statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be in the initial
bona fide offering thereof.
3. Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the Registrant pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the Securities Act and
is, therefore, unenforceable. In the event that a
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claim for indemnification against such liabilities (other than the payment by
the Registrant of expenses incurred or paid by a director, officer or
controlling person of the Registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the Registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the
Securities Act and will be governed by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Andover, Commonwealth of Massachusetts, on this 7th
day of May, 1999.
MKS INSTRUMENTS, INC.
By: /s/ John R. Bertucci
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John R. Bertucci
Chairman of the Board,
President and Chief Executive
Officer
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POWER OF ATTORNEY
We, the undersigned officers and directors of MKS Instruments, Inc.,
hereby severally constitute John R. Bertucci, Ronald C. Weigner and Mark G.
Borden, and each of them singly, our true and lawful attorneys with full power
to them, and each of them singly, to sign for us and in our names in the
capacities indicated below, the Registration Statement on Form S-8 filed
herewith and any and all subsequent amendments to said Registration Statement,
and generally to do all such things in our names and behalf in our capacities as
officers and directors to enable MKS Instruments, Inc. to comply with all
requirements of the Securities and Exchange Commission, hereby ratifying and
confirming our signatures as they may be signed by said attorneys, or any of
them, to said Registration Statement and any and all amendments thereto.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the date indicated.
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Signature Title Date
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/s/ John R. Bertucci Chairman of the Board, President May 7, 1999
- ------------------------------- and Chief Executive Officer
John R. Bertucci (Principal Executive Officer)
/s/ Ronald C. Weigner Vice President and Chief May 7, 1999
- ------------------------------- Financial Officer
Ronald C. Weigner
/s/ Richard S. Chute Director May 7, 1999
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Richard S. Chute
/s/ Owen W. Robbins Director May 7, 1999
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Owen W. Robbins
/s/ Robert J. Therrien Director May 7, 1999
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Robert J. Therrien
/s/ Louis P. Valente Director May 7, 1999
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Louis P. Valente
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EXHIBIT INDEX
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Exhibit
Number Description
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4(1) Specimen Certificate for shares of Common Stock, no par value per
share, of the Registrant
5 Opinion of Hale and Dorr LLP
23.1 Consent of Hale and Dorr LLP (included in Exhibit 5)
23.2 Consent of PricewaterhouseCoopers LLP
24 Power of Attorney (included on the signature page of this
Registration Statement)
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(1) Incorporated herein by reference to the Registrant's Registration Statement
on Form S-1 (Commission File No. 333-71363).
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EXHIBIT 5
HALE AND DORR LLP
Counsellors at Law
60 State Street, Boston, Massachusetts 02109
617-526-6000 * FAX 617-526-5000
May 7, 1999
MKS Instruments, Inc.
Six Shattuck Road
Andover, MA 01810
Re: Amended and Restated 1999 Employee Stock Plan
---------------------------------------------
Ladies and Gentlemen:
We have assisted in the preparation of a Registration Statement on Form
S-8 (the "Registration Statement") to be filed with the Securities and Exchange
Commission relating to 450,000 shares of common stock, no par value per share
(the "Shares"), of MKS Instruments, Inc., a Massachusetts corporation (the
"Company"), issuable under the Company's Amended and Restated 1999 Employee
Stock Purchase Plan (the "Plan").
We have examined the Restated Articles of Organization of the Company
and the Amended and Restated By-Laws of the Company, and originals, or copies
certified to our satisfaction, of all pertinent records of the meetings of the
directors and stockholders of the Company, the Registration Statement and such
other documents relating to the Company as we have deemed material for the
purposes of this opinion.
In examination of the foregoing documents, we have assumed the
genuineness of all signatures and the authenticity of all documents submitted to
us as originals, the conformity to original documents of all documents submitted
to us as certified, photostatic or facsimile copies, the authenticity of the
originals of such latter documents and the legal competence of all signatories
to such documents.
We assume that the appropriate action will be taken prior to the offer
and sale of the shares in accordance with the Plan to register and qualify the
Shares for sale under all applicable state securities or "blue sky" laws.
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MKS Instruments, Inc.
May 7, 1999
Page 2
We express no opinion herein as to the laws of any state or
jurisdiction other than the laws of the Commonwealth of Massachusetts and the
federal laws of the United States of America.
Based upon and subject to the foregoing, we are of the opinion that the
Company has duly authorized for issuance the Shares covered by the Registration
Statement to be issued under the Plan, as described in the Registration
Statement, and such Shares, when issued in accordance with the terms of the
Plan, will be legally issued, fully paid and nonassessable.
It is understood that this opinion is to be used only in connection
with the offer and sale of the Shares while the Registration Statement is in
effect.
Please note that we are opining only as to the matters expressly set
forth herein, and no opinion should be inferred as to any other matters.
We hereby consent to the filing of this opinion with the Commission as
an exhibit to the Registration Statement in accordance with the requirements of
Item 601(b)(5) of Regulation S-K under the Securities Act of 1933, as amended
(the "Securities Act") and to the use of our name therein under the caption
"Interests of Named Experts and Counsel." In giving such consent, we do not
hereby admit that we are in the category of persons whose consent is required
under Section 7 of the Securities Act or the rules and regulations of the
Commission.
Very truly yours,
/s/ Hale and Dorr LLP
HALE AND DORR LLP
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EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of MKS Instruments, Inc. (the "Company") related to the
Company's Amended and Restated 1999 Employee Stock Purchase Plan, of our report
dated January 22, 1999, except for the information in the first and second
paragraph of Note 13, as to which the date is January 28, 1999 and February 24,
1999, respectively, relating to the consolidated financial statements of MKS
Instruments, Inc., which appears in the Company's Registration Statement on Form
S-1 (File No. 333-71363). We also consent to the incorporation by reference of
our report dated January 22, 1999, relating to the financial statement schedule
of MKS Instruments, Inc., which appears in the Company's Registration Statement
on Form S-1 (File No. 333-71363).
/s/ PricewaterhouseCoopers LLP
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PricewaterhouseCoopers LLP
Boston, Massachusetts
May 6, 1999
