<PAGE> 1
As filed with the Securities and Exchange Commission on February 28, 2000
Registration No. 333-_____
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.)
SIX SHATTUCK ROAD, ANDOVER, MASSACHUSETTS 01810
(Address of Principal Executive Offices) (Zip Code)
MKS INSTRUMENTS, INC. INTERNATIONAL
EMPLOYEE STOCK PURCHASE PLAN
(Full Title of the Plan)
JOHN R. BERTUCCI
MKS INSTRUMENTS, INC.
SIX SHATTUCK ROAD
ANDOVER, MASSACHUSETTS 01810
(Name and Address of Agent for Service)
(978) 975-2350
(Telephone Number, Including Area Code, of Agent For Service)
CALCULATION OF REGISTRATION FEE
<TABLE>
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PROPOSED
TITLE OF MAXIMUM
SECURITIES OFFERING PROPOSED MAXIMUM AMOUNT OF
TO BE AMOUNT PRICE PER AGGREGATE OFFERING REGISTRATION
REGISTERED TO BE REGISTERED SHARE PRICE FEE
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<S> <C> <C> <C> <C>
Common Stock,
no par value 50,000 $43.56(1) $2,178,000(1) $574.99
- ------------------------------------------------------------------------------------------------------------
</TABLE>
(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 February 24, 2000 in
accordance with Rules 457(c) and 457(h) of the Securities Act of
1933, as amended.
<PAGE> 2
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 International 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 annual report filed pursuant
to Section 13(a) or 15(d) of the Exchange Act, or the
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. Any statement
contained in a document incorporated or deemed to be incorporated by reference
herein shall be deemed to be modified or superseded for purposes of this
Registration Statement to the extent that a statement contained herein or in any
other subsequently filed document which also is or is deemed to be incorporated
by reference herein modifies or supersedes such statement. Any statement so
modified or superseded shall not be deemed, except as so modified or superseded,
to constitute a part of this Registration Statement.
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
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<PAGE> 3
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.
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 claim for indemnification
against
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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 28th
day of February, 2000.
MKS INSTRUMENTS, INC.
By: /s/ John R. Bertucci
-------------------------------
John R. Bertucci
Chairman of the Board and
Chief Executive Officer
POWER OF ATTORNEY
We, the undersigned officers and directors of MKS Instruments, Inc., hereby
severally constitute John R. Bertucci, Ronald C. Weigner and Richard S. Chute,
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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<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ John R. Bertucci Chairman of the Board and Chief February 28, 2000
- ------------------------------ Executive Officer (Principal Executive
John R. Bertucci Officer)
/s/ Ronald C. Weigner Vice President and Chief Financial February 28, 2000
- ------------------------------ Officer (Principal Financial &
Ronald C. Weigner Accounting Officer)
/s/ Richard S. Chute Director February 28, 2000
- ------------------------------
Richard S. Chute
/s/ Owen W. Robbins Director February 28, 2000
- ------------------------------
Owen W. Robbins
/s/ Robert J. Therrien Director February 28, 2000
- ------------------------------
Robert J. Therrien
/s/ Louis P. Valente Director February 28, 2000
- ------------------------------
Louis P. Valente
</TABLE>
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EXHIBIT INDEX
Exhibit
Number Description
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4.1(1) Articles of Organization of the Registrant, as amended.
4.2(1) Bylaws of the Registrant, as amended.
4.3(1) Specimen Certificate for shares of Common Stock, no par value per
share, of the Registrant
5 Opinion of Hale and Dorr LLP
10.27 MKS Instruments, Inc. International Employee Stock Purchase Plan
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)
- -----------------
(1) Incorporated herein by reference to the Registrant's Registration
Statement on Form S-1 (Commission File No. 333-71363).
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<PAGE> 1
Exhibit 5
HALE AND DORR LLP
Counsellors at Law
60 State Street, Boston, Massachusetts 02109
617-526-6000 * FAX 617-526-5000
February 28, 2000
MKS Instruments, Inc.
Six Shattuck Road
Andover, MA 01810
Re: MKS Instruments, Inc. International Employee Stock Purchase 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 50,000 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 International 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.
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.
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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 10.27
MKS INSTRUMENTS, INC.
INTERNATIONAL EMPLOYEE STOCK PURCHASE PLAN
The purpose of this Plan is to provide eligible employees of certain
non-U.S. subsidiaries of MKS Instruments, Inc. (the "Company") with
opportunities to purchase shares of the Company's common stock (the "Common
Stock"), commencing on March 1, 2000. Fifty thousand (50,000) shares of Common
Stock in the aggregate have been approved for this purpose.
1. ADMINISTRATION. The Plan will be administered by the Company's Board
of Directors (the "Board") or by a Committee appointed by the Board (the
"Committee"). The Board or the Committee has authority to make rules and
regulations for the administration of the Plan and its interpretation and
decisions with regard thereto shall be final and conclusive.
2. ELIGIBILITY. All employees of any non-U.S. subsidiary of the Company
designated by the Board or the Committee from time to time (a "Subsidiary"),
excluding Officers and Directors of the Company who are employees of a
Subsidiary, are eligible to participate in any one or more of the offerings of
Options (as defined in Section 9) to purchase Common Stock under the Plan
provided that:
a. they have been employed by the Subsidiary for at least six (6)
months prior to enrolling in the Plan;
b. they are employees of the Subsidiary on the first day of the
applicable Plan Period (as defined below);
c. to the extent local law permits such a requirement, they are
customarily employed by a Subsidiary for more than twenty (20) hours a week
and for more than five (5) months in a calendar year; and
d. they meet any other requirements imposed from time to time by the
Board or the Committee on employees of one or more subsidiaries.
No employee may be granted an option hereunder if such employee,
immediately after the option is granted, owns 5% or more of the total combined
voting power or value of the stock of the Company or any subsidiary. For
purposes of the preceding sentence, the attribution rules of Section 424(d) of
the U.S. Internal Revenue Code of 1986, as amended (the "Code") shall apply in
determining the stock ownership of an employee, and all stock which the employee
has a contractual right to purchase shall be treated as stock owned by the
employee.
3. OFFERINGS. The Company will make one or more offerings ("Offerings")
to employees to purchase stock under this Plan. The first Offering will begin on
March 1, 2000 or the first business day thereafter (the "Offering Commencement
Dates") and end
<PAGE> 2
on May 31, 2000. Thereafter, each June 1 and December 1 or the first business
day thereafter will be an Offering Commencement Date. Each Offering Commencement
Date after March 1, 2000 will begin a six (6) month period (a "Plan Period")
during which payroll deductions will be made and held for the purchase of Common
Stock at the end of the Plan Period. The Board or the Committee may, at its
discretion, choose a different Plan Period of twelve (12) months or less for
subsequent Offerings.
4. PARTICIPATION.
a. ENROLLMENT. An employee eligible on the Offering Commencement Date of
any Offering may participate in such Offering by enrolling, in such manner and
at such time approved, from time to time, by the Board or the Committee, prior
to the applicable Offering Commencement Date in said Offering. The enrollment
will authorize a regular payroll deduction from the Compensation received by the
employee during the Plan Period. Unless an employee changes his enrollment in a
manner prescribed by the Committee from time to time or withdraws from the Plan,
his deductions and purchases will continue at the same rate for future Offerings
under the Plan as long as the Plan remains in effect. The term "Compensation"
shall be defined by the Board or the Committee from time to time, but until
modified shall mean regular base salary, including overtime, shift premium,
incentive or bonus awards and sales commissions and excluding allowances and
reimbursements for expenses such as relocation allowances for travel expenses,
income or gains on the exercise of Company stock options or stock appreciation
rights, and similar items whether or not taxable.
b. TAX WITHHOLDING AUTHORIZED. The enrollment of each employee shall
constitute such participating employee's authorization of his or her employer to
deduct from such employee's compensation in the relevant month or months (or
subsequent months, if appropriate) any amount necessary for the payment or
reimbursement of any tax liability payable by such employee with respect to the
grant or exercise of the options hereunder, or the sale of any stock acquired
through the exercise of such option.
5. DEDUCTIONS. The Company will maintain payroll deduction accounts for
all participating employees. With respect to any Offering made under this Plan,
an employee may authorize a payroll deduction in any whole percent amount
between one and ten percent (1-10%) of the Compensation he or she receives
during the Plan Period or such shorter period during which deductions from
payroll are made (or such other percentages as may be established by the Board
or the Committee). Any change in Compensation during the Plan Period will result
in an automatic corresponding change in the amount withheld. The payroll
deductions shall be made in the applicable local currency and will be converted
into United States currency at the prevailing rate of exchange in effect on such
date as the Board or Committee shall determine. All amounts deducted may be
transferred to an account of the Company or the Subsidiary outside the country
in which such employee is employed.
No employee may be granted an Option (as defined in Section 9) which
permits his rights to purchase Common Stock under this Plan and any other
employee stock purchase plan (as defined by the Committee or Board) of the
Company and its
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subsidiaries, to accrue at a rate which exceeds $25,000 of the fair market value
of such Common Stock (determined at the Offering Commencement Date of the Plan
Period) for each calendar year in which the Option is outstanding at any time.
6. DEDUCTION CHANGES. An employee may decrease, subject to Section 5
hereof, or discontinue his payroll deduction once during any Plan Period, up to
such date prior to the close of business on the last business day, and in such
manner as is permitted by the Board or Committee. However, an employee may not
elect to increase his payroll deduction during a Plan Period. If an employee
elects to discontinue his payroll deductions during a Plan Period but does not
elect to withdraw his funds pursuant to Section 8 hereof, amounts previously
withheld will be applied to the purchase of Common Stock on the Exercise Date
(as defined below).
7. INTEREST. Interest will not be paid on any employee accounts.
8. WITHDRAWAL OF FUNDS. An employee may at any time up to a deadline
established by the Committee or the Board, prior to the close of business on the
last business day in a Plan Period, and for any reason, permanently draw out the
balance accumulated in the employee's account, which will be paid in the local
currency or, in Euros, at the discretion of the Board or the Committee if such
employee is employed in a country which maintains a fixed exchange rate between
its local currency and the Euro ("Repayment in Euros"), and thereby withdraw
from participation in an Offering. Partial withdrawals are not permitted. The
employee may not begin participation again during the remainder of the Plan
Period. The employee may participate in any subsequent Offering in accordance
with terms and conditions established by the Board or the Committee.
9. PURCHASE OF SHARES. On the Offering Commencement Date of each Plan
Period, the Company will grant to each eligible employee who is then a
participant in the Plan an option ("Option") to purchase on the last business
day of such Plan Period (the "Exercise Date"), at the Option Price hereinafter
provided for, the largest number of shares (including fractional shares) of
Common Stock of the Company as does not exceed the number of shares determined
by multiplying $2,083 by the number of full months in the Offering Period and
dividing the results by the closing price (as defined below) on the Offering
Commencement Date of such Plan Period.
The purchase price for each share purchased will be 85% of the Fair Market
Value of the Common Stock on (i) the first business day of such Plan Period or
(ii) the Exercise Date, whichever Fair Market Value shall be less. Such Fair
Market Value shall be (a) the closing price on any national securities exchange
on which the Common Stock is listed, (b) the closing price of the Common Stock
on the Nasdaq National Market or (c) the average of the closing bid price and
asked price in the over-the-counter-market, whichever is applicable, as
published in THE WALL STREET JOURNAL. If no sales of Common Stock were made on
such a day, the price of the Common Stock for purposes of clauses (a) and (b)
above shall be based on the reported price for the next preceding day on which
sales were made.
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Each employee who continues to be a participant in the Plan on the Exercise
Date shall be deemed to have exercised his Option at the Option Price on such
date and shall be deemed to have purchased from the Company the number of shares
of Common Stock (including fractional shares) reserved for the purpose of the
Plan that his accumulated payroll deductions on such date will pay for, in
United States currency as of that date, but not in excess of the maximum number
determined in the manner set forth above. The Board or the Committee may, in its
discretion, limit the purchase to only whole shares and not fractional shares.
Any balance remaining in an employee's payroll deduction account at the end
of a Plan Period will be automatically refunded to the employee in the local
currency or at the discretion of the Committee or the Board there may be
Repayment in Euros, except that any balance which is less than the purchase
price of one share of Common Stock will be carried forward into the employee's
payroll deduction account for the following Offering, unless the employee elects
not to participate in the following Offering under the Plan, in which case the
balance shall be refunded.
10. ISSUANCE OF CERTIFICATES. Certificates representing shares of Common
Stock purchased under the Plan may be issued only in the name of the employee,
in the name of the employee and another person of legal age as joint tenants
with rights of survivorship, or (in the Company's sole discretion) in the name
of a brokerage firm, bank or other nominee holder designated by the employee.
The Company may, in its sole discretion and in compliance with applicable laws,
authorize the use of book entry registration of shares in lieu of issuing stock
certificates.
11. RIGHTS ON RETIREMENT DEATH OR TERMINATION OF EMPLOYMENT. In the event
of a participating employee's termination of employment prior to the last
business day of a Plan Period, no payroll deduction shall be taken from any pay
due and owing to an employee and the balance in the employee's account shall be
paid to the employee or, in the event of the employee's death, and subject to
the terms of applicable law, (a) to a beneficiary previously designated in a
revocable notice signed by the employee (with any spousal consent required under
local law) or (b) in the absence of such a designated beneficiary, to the
personal representative of the employee's estate or (c) if no such personal
representative has been appointed to the knowledge of the Company, to such other
person(s) as the Company may, in its discretion, designate. If, prior to the
last business day of the Plan Period, the designated Subsidiary by which an
employee is employed shall cease to be a subsidiary of the Company, or if the
employee is transferred to a subsidiary of the Company that is not a Subsidiary
under the Plan, the employee shall be deemed to have terminated employment for
the purposes of this Plan.
12. OPTIONEES NOT STOCKHOLDERS. Neither the granting of an Option to an
employee nor the deductions from his pay shall constitute such employee a
stockholder of the shares of Common Stock covered by an Option under this Plan
until such shares have been purchased by and issued to him or to an account for
his benefit. Notwithstanding the foregoing, in the event the Company effects a
split of the Common Stock by means of a stock dividend (and the exercise price
of and the number of shares subject to such Option are adjusted as of the date
of the distribution of the dividend rather
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<PAGE> 5
than as of the record date for such dividend), then an optionee who is deemed to
have exercised an Option between the record date and the distribution date for
such stock dividend shall be entitled to receive, on the distribution date, the
stock dividend with respect to the shares of Common Stock.
13. RIGHTS NOT TRANSFERABLE. Rights under this Plan are not transferable
by a participating employee other than by will or the laws of descent and
distribution, and are exercisable during the employee's lifetime only by the
employee.
14. APPLICATION OF FUNDS. To the extent consistent with applicable law,
all funds received or held by the Company or any Subsidiary under this Plan may
be combined with other corporate funds and may be used for any corporate purpose
and transferred outside the country in which they are deducted from payroll.
15. ADJUSTMENT IN CASE OF CHANGES AFFECTING COMMON STOCK. In the event of
a subdivision of outstanding shares of Common Stock, or the payment of a
dividend in Common Stock, the number of shares approved for this Plan, and the
share limitation set forth in Section 9, shall be increased proportionately, and
such other adjustment shall be made as may be deemed equitable by the Board or
the Committee. In the event of any other change affecting the Common Stock, such
adjustment shall be made as may be deemed equitable by the Board or the
Committee to give proper effect to such event.
16. MERGER. If the Company shall at any time merge or consolidate with
another corporation and the holders of the capital stock of the Company
immediately prior to such merger or consolidation continue to hold at least 80%
by voting power of the capital stock of the surviving corporation ("Continuity
of Control"), the holder of each Option then outstanding will thereafter be
entitled to receive at the next Exercise Date upon the exercise of such Option
for each share as to which such Option shall be exercised the securities or
property which a holder of one share of the Common Stock was entitled to upon
and at the time of such merger or consolidation, and the Board or the Committee
shall take such steps in connection with such merger or consolidation as the
Board or the Committee shall deem necessary to assure that the provisions of
Section 15 shall thereafter be applicable, as nearly as reasonably may be, in
relation to the said securities or property as to which such holder of such
Option might thereafter be entitled to receive thereunder.
In the event of a merger or consolidation of the Company with or into
another corporation which does not involve Continuity of Control, or of a sale
of all or substantially all of the assets of the Company while unexercised
Options remain outstanding under the Plan, all outstanding Options shall be
cancelled by the Board or the Committee as of the effective date of any such
transaction, provided that notice of such cancellation shall be given to each
holder of an Option, and each holder of an Option shall have the right to
exercise such Option in full based on payroll deductions then credited to his
account as of a date determined by the Board or the Committee, which date shall
not be less than ten (10) days preceding the effective date of such transaction.
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<PAGE> 6
17. AMENDMENT OF THE PLAN. The Board may at any time, and from time to
time, amend this Plan in any respect.
18. INSUFFICIENT SHARES. In the event that the total number of shares of
Common Stock specified in elections to be purchased under any Offering plus the
number of shares purchased under previous Offerings under this Plan exceeds the
maximum number of shares issuable under this Plan, the Board or the Committee
will allot the shares then available on a pro rata basis.
19. TERMINATION OF THE PLAN. This Plan may be terminated at any time by
the Board. Upon termination of this Plan all amounts in the accounts of
participating employees shall be promptly refunded in local currency or at the
discretion of the Committee or the Board there may be Repayment in Euros.
20. GOVERNMENTAL REGULATIONS. The Company's obligation to sell and deliver
Common Stock under this Plan is subject to listing on a U.S. national stock
exchange or quotation on the Nasdaq National Market and the approval of all
applicable governmental authorities required in connection with the
authorization, issuance or sale of such stock.
21. GOVERNING LAW. The Plan shall be governed by Massachusetts law except
to the extent that such law is preempted by U.S. federal law or other applicable
law.
22. ISSUANCE OF SHARES. Shares may be issued upon exercise of an Option
from authorized but unissued Common Stock, from shares held in the treasury of
the Company, or from any other proper source.
23. NOTIFICATION UPON SALE OF SHARES. Each employee agrees, by entering
the Plan, to promptly give the Company notice of any disposition of shares
purchased under the Plan.
24. EFFECTIVE DATE. The Plan shall take effect on March 1, 2000.
Approved by the Board of Directors
on February 18, 2000
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<PAGE> 1
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 International 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).
PricewaterhouseCoopers LLP
/s/ PricewaterhouseCoopers LLP
Boston, Massachusetts
February 24, 2000
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