Exhibit 10.3
MKS INSTRUMENTS,
INC.
THIRD AMENDED AND RESTATED
INTERNATIONAL EMPLOYEE STOCK PURCHASE PLAN
(as amended through May 4, 2009)
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. An
Aggregate of 400,000 shares of Common Stock 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 three (3) 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
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 Stated 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
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 w
