Exhibit 10.1
MKS INSTRUMENTS,
INC.
2004 STOCK INCENTIVE PLAN
(as amended and restated through May 4, 2009)
1. Purpose
The purpose of this 2004 Stock
Incentive Plan (the “Plan”) of MKS Instruments, Inc., a
Massachusetts corporation (the “Company”), is to
advance the interests of the Company’s stockholders by
enhancing the Company’s ability to attract, retain and
motivate persons who are expected to make important contributions
to the Company and by providing such persons with equity ownership
opportunities and performance-based incentives that are intended to
better align their interests with those of the Company’s
stockholders. Except where the context otherwise requires, the term
“Company” shall include any of the Company’s
present or future subsidiary corporations as defined in
Section 424(f) of the Internal Revenue Code of 1986, as
amended, and any regulations promulgated thereunder (the
“Code”) and any other business venture (including,
without limitation, joint venture or limited liability company) in
which the Company has a controlling interest, as determined by the
Board of Directors of the Company (the “Board”).
2. Eligibility
All of the Company’s employees,
officers, directors, consultants and advisors are eligible to
receive options, restricted stock awards, stock appreciation rights
and other stock-based awards (each, an “Award”) under
the Plan. Each person who receives an Award under the Plan is
deemed a “Participant”.
3. Administration and Delegation
(a) Administration by Board
of Directors . The Plan will be administered by the Board. The
Board shall have authority to grant Awards and to adopt, amend and
repeal such administrative rules, guidelines and practices relating
to the Plan as it shall deem advisable. The Board may correct any
defect, supply any omission or reconcile any inconsistency in the
Plan or any Award in the manner and to the extent it shall deem
expedient to carry the Plan into effect and it shall be the sole
and final judge of such expediency. All decisions by the Board
shall be made in the Board’s sole discretion and shall be
final and binding on all persons having or claiming any interest in
the Plan or in any Award. No director or person acting pursuant to
the authority delegated by the Board shall be liable for any action
or determination relating to or under the Plan made in good
faith.
(b) Appointment of
Committees .
(1) To the extent permitted by
applicable law, the Board may delegate any or all of its powers
under the Plan to one or more committees or subcommittees of the
Board (a “Committee”). During such time as the common
stock, no par value per share, of the Company (the “Common
Stock”) is registered under the Securities Exchange Act of
1934 (the “Exchange Act”), the Board shall appoint one
such Committee of not less than two members, each member of which
shall be an “outside director” within the meaning of
Section 162(m) of the Code and a “non-employee
director” as defined in Rule 16b-3 promulgated under the
Exchange Act.
(2) To the extent permitted by
applicable law, the Board may delegate to one or more officers of
the Company, who, if required by law, are also members of the
Board, the power to make Awards and exercise such other powers
under the Plan as the Board shall determine, provided that the
Board shall fix the maximum number of shares subject to Awards to
be made by any such person and such other terms as the Board may
determine are appropriate.
(3) All references in the Plan
to the “Board” shall mean the Board, a Committee of the
Board or any person described in subsection (2) above, to the
extent that the Board’s powers or authority under the Plan
have been delegated to such Committee or person.
4. Stock Available for Awards
(a) Number of Shares .
Subject to adjustment under Section 9, the number of shares of
Common Stock available for Awards under the Plan: (i) shall
annually increase by 5% of the total shares of the Company’s
outstanding Common Stock on January 1 of each year; and
(ii) in the event of an increase in the total shares of the
Company’s Common Stock after January 1 of any such year in
connection with the acquisition of any corporation, partnership or
other business entity by the Company (whether by merger, stock
purchase or otherwise), shall increase by 5% of such increased
amount. Such increases shall occur until such time as the aggregate
number of shares of Common Stock which may be issued under the Plan
is 15,000,000 shares, subject to adjustment under Section 9. If any
Award expires or is terminated, surrendered or canceled without
having been fully exercised or is forfeited in whole or in part
(including as the result of shares of Common Stock subject to such
Award being repurchased by the Company at the original issuance
price pursuant to a contractual repurchase right) or results in any
Common Stock not being issued, the unused Common Stock covered by
such Award shall again be available for the grant of Awards under
the Plan, subject, however, in the case of Incentive Stock Options
(as hereinafter defined), to any limitations under the Code. Shares
issued under the Plan may consist in whole or in part of authorized
but unissued shares or treasury shares.
(b) Per-Participant
Limit . Subject to adjustment under Section 9, the maximum
number of shares of Common Stock with respect to which Awards may
be granted to any Participant under the Plan shall be 900,000 per
calendar year. The per-Participant limit described in this Section
4(b) shall be construed and applied consistently with Section
162(m) of the Code.
5. Stock Options
(a) General . The Board
may grant options to purchase Common Stock (each, an
“Option”) and determine the number of shares of Common
Stock to be covered by each Option, the exercise price of each
Option and the conditions and limitations applicable to the
exercise of each Option, including conditions relating to
applicable federal or state securities laws, as it considers
necessary or advisable. An Option which is not intended to be an
Incentive Stock Option (as hereinafter defined) shall be designated
a “Nonstatutory Stock Option”.
(b) Incentive Stock
Options . An Option that the Board intends to be an
“incentive stock option” as defined in Section 422
of the Code (an “Incentive Stock Option”) shall only be
granted to employees of MKS Instruments, Inc., any of MKS
Instruments, Inc.’s present or future subsidiary corporations
as defined in Section 424(f) of the Code, and any other entities
the employees of which are eligible to receive Incentive Stock
Options under the Code, and shall be subject to and shall be
construed consistently with the requirements of Section 422 of
the Code. The Company shall have no liability to a Participant, or
any other party, if an Option (or any part thereof) that is
intended to be an Incentive Stock Option is not an Incentive Stock
Option or for any action taken by the Board pursuant to
Section 10(f), including without limitation the conversion of
an Incentive Stock Option to a Nonstatutory Stock Option.
(c) Exercise Price. The
Board shall establish the exercise price of each Option and specify
such exercise price in the applicable option agreement.
(d) Duration of Options
. Each Option shall be exercisable at such times and subject to
such terms and conditions as the Board may specify in the
applicable option agreement; provided, however, that no Option will
be granted for a term in excess of 10 years.
(e) Exercise of Option .
Options may be exercised by delivery to the Company of a written
notice of exercise signed by the proper person or by any other form
of notice (including electronic notice) approved by the Board
together with payment in full as specified in Section 5(f) for the
number of shares for which the Option is exercised.
(f) Payment Upon
Exercise. Common Stock purchased upon the exercise of an Option
granted under the Plan shall be paid for as follows:
(1) in cash or by check,
payable to the order of the Company;
(2) except as the Board may
otherwise provide in an option agreement, by (i) delivery of
an irrevocable and unconditional undertaking by a creditworthy
broker to deliver promptly to the Company sufficient funds to pay
the exercise price and any required tax withholding or (ii)
delivery by the Participant to the Company of a copy of irrevocable
and unconditional instructions to a creditworthy broker to deliver
promptly to the Company cash or a check sufficient to pay the
exercise price and any required tax withholding;
(3) to the extent permitted by
applicable law and by the Board, by (i) delivery of a
promissory note of the Participant to the Company on terms
determined by the Board, or (ii) payment of such other lawful
consideration as the Board may determine; or
(4) by any combination of the
above permitted forms of payment.
(g) Option Exchange. The Board
may authorize a one-time option exchange program (the
“Exchange Offer”) to be completed prior to
November 4, 2009. Under the Exchange Offer, employee holders
(who are not members of the Board or executive officers (as such
term is defined under Rule 3b-7 of the Securities Exchange Act of
1934, as amended)) (the “Exchange Act”) of outstanding
stock options having an exercise price in excess of the highest
closing price for the Common Stock on the Nasdaq Global Select
Market in the 52 week period preceding the commencement of the
Exchange Offer (the “Old Options”) would have the right
to elect to exchange such Old Options for a lesser number of
restricted stock units (the “New RSUs”). The number of
New RSUs to be granted in exchange for each Old Option would be
that number of RSUs (rounded down to the nearest whole) that would
be derived by dividing the fair value of such Old Option by the
closing sale price of the Common Stock at the close of the Exchange
Offer. The New RSUs would have a new vesting period of one year
(provided that if the Old Option is still subject to vesting at the
time of surrender, the vesting period shall be one year plus such
remaining vesting period) and would be granted promptly after
cancellation of the Old Options.
6. Stock Appreciation Rights .
(a) Nature of Stock
Appreciation Rights . A Stock Appreciation Right, or SAR, is an
Award entitling the holder on exercise to receive an amount in cash
or Common Stock or a combination thereof (such form to be
determined by the Board) determined in whole or in part by
reference to appreciation, from and after the date of grant, in the
fair market value of a share of Common Stock. SARs may be based
solely on appreciation in the fair market value of Common Stock or
on a comparison of such appreciation with some other measure of
market growth such as (but not limited to) appreciation in a
recognized market index. The date as of which such appreciation or
other measure is determin
