Exhibit 10.14
MKS INSTRUMENTS, INC.
Restricted Stock Unit Agreement
Granted Under the 2004 Stock Incentive Plan
AGREEMENT made ___(the “Grant
Date”), between MKS Instruments, Inc., a Massachusetts
corporation (the “Company”), and
«First_Name» «Last_Name» (the
“Participant”).
For valuable consideration, receipt
of which is acknowledged, the parties hereto agree as
follows:
1.
General .
The
Company has granted to the Participant restricted stock units
(“RSUs”) with respect to the number of shares set forth
in Exhibit A hereto (the “Shares”) of common
stock, no par value, of the Company (“Common Stock”),
subject to the terms and conditions set forth in this Agreement and
in the Company’s 2004 Stock Incentive Plan (the
“Plan”). The RSUs represent a promise by the Company to
deliver Shares upon vesting.
(a)
Definitions. ”Forfeiture” shall mean any
forfeiture of RSUs pursuant to Section 2. “Vesting
Date” is defined on Exhibit A hereto.
“Determination Date” (if applicable) is defined on
Exhibit A hereto. For purposes of this Agreement,
“employ” or “employment” with the Company
shall include employment with a parent or subsidiary of the Company
as defined in Sections 424(e) or (f) of the Internal Revenue
Code.
(b) Vesting
Period . Subject to the terms and conditions of this Agreement
(including the Forfeiture provisions described in Section 2
below), the RSUs shall vest according to the terms set forth in
Exhibit A. As soon as practicable after each applicable
Vesting Date, but in any event, within the period ending on the
later to occur of the date that is 2 1 / 2 months from the end of (i) the
Participant’s tax year that includes the Vesting Date or
(ii) the Company’s tax year that includes the Vesting
Date, the Company shall instruct its transfer agent to deposit the
Shares subject to the RSUs into the Participant’s existing
equity account at Fidelity Stock Plan Services, LLC, or such other
broker with which the Company has established a relationship
(“Broker”), subject to payment in accordance with
Section 6 of all applicable withholding taxes.
2.
Forfeiture.
(a) Cessation of
Employment. In the event that the Participant ceases to be
employed by the Company for any reason or no reason (except for
death, disability or retirement), with or without cause, prior to a
Vesting Date, all of the Participant’s unvested RSUs shall
automatically be forfeited as of such cessation. In the event that
the Participant ceases to be employed by the Company by reason of
death, disability or retirement prior to a Vesting Date, then 100%
of the
Participant’s RSUs shall become immediately and fully vested
and shall no longer be subject to the Forfeiture provisions under
this Agreement.
For the
purpose of this Section 2, “disability” shall mean
disability as defined in Section 216(i)(1) of the U.S. Social
Security Act.
“Retirement” means a voluntary termination of
employment by the Participant after he or she is at least age sixty
(60) and has a combination of years of age plus Years of
Service with the Company equal to seventy (70) or more.
“Years of Service” means full years of employment since
the Participant’s original hire date with the Company (or
parent or subsidiary of the Company).
(b) Change in
Control . Notwithstanding the foregoing, if, prior to any
Vesting Date, and within two years after the effectiveness of a
Change in Control (as defined below), the Participant is
(i) terminated by the Company without Cause (as defined below)
or (ii) terminates his employment for Good Reason (as defined
below), then, 100% of the Participant’s RSUs shall become
immediately and fully vested and shall no longer be subject to the
Forfeiture provisions under this Agreement. For purposes of this
section “ Change in Control ” means the first to
occur of any of the following events: (I) any
“person” (as that term is used in Section 13 and
14(d)(2) of the Securities Exchange Act of 1934 (“Exchange
Act”)) becomes the beneficial owner (as that term is used in
Section 13(d) of the Exchange Act), directly or indirectly, of
fifty percent (50%) or more of the Company’s capital stock
entitled to vote in the election of directors; (II) the
shareholders of the Company approve any consolidation or merger of
the Company, other than a consolidation or merger of the Company in
which the holders of the common stock of the Company immediately
prior to the consolidation or merger hold more than fifty percent
(50%) of the common stock of the surviving corporation immediately
after the consolidation or merger; or (III) the shareholders
of the Company approve the sale or transfer of all or substantially
all of the assets of the Company to parties that are not within a
“controlled group of corporations” (as defined in Code
Section 1563) in which the Company is a member. For purposes
of this Agreement, “ Cause ” shall mean
conviction for the commission of a felony, willful failure by the
Participant to perform his responsibilities to the Company, or
willful misconduct by the Participant. For purposes of this
section, “ Good Reason ” shall mean termination
of the Participant’s employment by the Participant within
90 days following (I) a material diminution in the
Participant’s positions, duties and responsibilities from
those described in the Participant’s Employment Agreement,
(II) a material reduction in the Participant’s base
salary (other than a reduction which is part of a general salary
reduction program affecting senior executives of the Company),
(III) a material reduction in the aggregate value of the
pension and welfare benefits provided to the Participant from those
in effect prior to the Change in Control (other than a reduction
which is proportionate to the reductions applicable to other senior
executives pursuant to a cost-saving plan that includes all senior
executives), (IV) a material breach of any provision of the
Participant’s Employment Agreement by the Company or
(V) the Company’s requiring the Participant to be based
at a location that creates for the Participant a one way commute in
excess of 60 miles from his primary residence, except for required
travel on the Company’s business to an extent substantially
consistent with the business travel obligations of the Participant
under the Participant’s Employment Agreement. Notwithstanding
the foregoing, a termination shall not be treated as a termination
for Good Reason (I) if the Participant shall have consented in
writing to the occurrence of the event giving rise to the claim of
termination for Good Reason or (II) unless the Participant
shall have delivered a written notice to the Company within
30
2
days of
his having actual knowledge of the occurrence of one of such events
stating that he intends to terminate his employment for Good Reason
and specifying the factual basis for such termination, and such
event, if capable of being cured, shall not have been cured within
30 days of the receipt of such notice.
3.
Restrictions on Transfer .
The Participant shall not sell,
assign, transfer, pledge, hypothecate or otherwise dispose of, by
operation of law or otherwise (collectively “transfer”)
any RSUs, or any interest therein, except that the Participant may
transfer such RSUs (i) to or for the benefit of any spouse,
children, parents, uncles, aunts, siblings, grandchildren and any
other relatives approved by the Board of Directors (collectively,
“Approved Relatives”) or to a trust established solely
for the benefit of the Participant and/or Approved Relatives,
provided that such RSUs shall remain subject to this
Agreement (including without limitation the terms of Forfeiture and
the restrictions on transfer set forth in this Section 3) and
such permitted transferee shall, as a condition to such transfer,
deliver to the Company a written instrument confirming that such
transferee shall be bound by all of the terms and conditions of
this Agreement.
4.
Provisions of the Plan .
This
Agreement is subject to the provisions of the Plan, a copy of which
is furnished to the Participant with this Agreement.
5.
No Compensation Deferral . Neither the Plan nor this
Agreement is intended to provide for an elective deferral of
compensat
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