Exhibit 10.2
MKS INSTRUMENTS,
INC.
FOURTH AMENDED
RESTATED 1999 EMPLOYEE STOCK PURCHASE PLAN
(as amended through May 4, 2009)
The purpose of this Plan is to
provide eligible employees of MKS Instruments, Inc. (the
“Company”) and certain of its subsidiaries with
opportunities to purchase shares of the Company’s Common
Stock, no par value per share (the “Common Stock”),
commencing on June 1, 1999; provided, that at such time the
Company’s Common Stock shall be listed for trading on the
Nasdaq National Market or a national securities exchange. An
aggregate of 1,950,000 shares of Common Stock have been approved
for this purpose. This Plan is intended to qualify as an
“employee stock purchase plan” as defined in
Section 423 of the Internal Revenue Code of 1986, as amended
(the “Code”) and the regulations promulgated
thereunder, and shall be interpreted consistent therewith.
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 the Company,
including Directors who are employees, and all employees of any
subsidiary of the Company (as defined in Section 424(f) of the
Code) designated by the Board or the Committee from time to time (a
“Designated Subsidiary”), including employees of the
Company or any designated Subsidiary who are “highly
compensated” within the meaning of Section 414(q) of the
Code, are eligible to participate in any one or more of the
Offerings (as defined in Section 9) to purchase Common Stock
under the Plan provided that:
(a) they are
customarily employed by the Company or a Designated Subsidiary for
more than 20 hours a week and for more than five months in a
calendar year; and
(b) they
have been employed by the Company or a Designated Subsidiary for at
least three (3) months prior to enrolling in the Plan; and
(c) they are
employees of the Company or a Designated Subsidiary on the first
day of the applicable Plan Period (as defined below).
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 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. Offerings will begin each June 1 and
December 1, or the first business day thereafter (the
“Offering Commencement Dates”). Each Offering
Commencement Date 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 . An employee eligible on the
Offering Commencement Date of any Offering may participate in such
Offering by completing and forwarding a payroll deduction
authorization form to the employee’s appropriate payroll
office at least 30 days prior to the applicable Offering
Commencement Date. The form will authorize a regular payroll
deduction from the Compensation, as defined below, received by the
employee during the Plan Period. Unless an employee files a new
form 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” means the amount of money reportable on
the employee’s Federal Income Tax Withholding Statement,
including overtime, shift premium, incentive or bonus awards and
any other variable sales compensation 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 shown on the employee’s Federal Income Tax Withholding
Statement, but including, in the case of salespersons, sales
commissions to the extent determined by the Board or the
Committee.
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 up to a maximum of
10% (or such lower percentage as may be established by the Board or
the Committee) of the Compensation he or she receives during the
Plan Period or such shorter period during which deductions from
payroll are made. The minimum payroll deduction is such percentage
of compensation as may be established from time to time by the
Board or the Committee.
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 in Section 423(b) of the Code) of the Company and
its 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, by filing a new payroll deduction
authorization form. 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, funds deducted prior to his election to discontinue will be
applied to the purchase of Common Stock on the Exercise Date (as
defined below).
7. Interest . Interest will not be paid on employee
accounts.
8. Withdrawal of Funds . An employee may at any
time 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 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 Pe
