EX-10.2






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 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 (fractional or whole) 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 closing price of the Common
Stock on (i) the first business day of such Plan Period or (ii) the Exercise Date, whichever
closing price shall be less. Such closing price 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 and asked prices 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 the reported price for the next preceding day on which sales
were made.



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 full shares of Common Stock reserved for the purpose of
the Plan that his accumulated payroll deductions on such date will pay for, but not in excess of
the maximum number determined in the manner set forth above.



Any balance remaining in an employee’s payroll deduction account at the end of a Plan Period
will be automatically refunded to the employee, 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 in the employee’s account 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, (a)
to a beneficiary previously designated in a revocable notice signed by the employee (with any
spousal consent required under state law) or (b) in the absence such a designated beneficiary, to
the executor or administrator of the employee’s estate or (c) if no such executor or administrator
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 Designated Subsidiary, the
employee shall be deemed to have terminated employment for the purposes of this Plan.



12. Optionees not Stockholders. No employee shall have any rights as a stockholder with
respect to any shares of Common Stock to be distributed with respect to an Option until becoming
the record holder or such shares. 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 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. All funds received or held by the Company under this Plan may be
combined with other corporate funds and may be used for any corporate purpose.



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.



17. Amendment of the Plan. The Board may at any time, and from time to time, amend this
Plan in any respect, except that (a) if the approval of any such amendment by the shareholders of
the Company is required by Section 423 of the Code, such amendment shall not be effected without
such approval, and (b) in no event may any amendment be made which would cause the Plan to fail to
comply with Section 423 of the Code.



18. Sufficient 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.



20. Governmental Regulations. The Company’s obligation to sell and deliver Common Stock
under this Plan is subject to listing on a national stock exchange or quotation on the Nasdaq
National Market and the approval of all 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 federal 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 Sales of Shares Each employee agrees, by entering the Plan, to
promptly give the Company notice of any disposition of shares purchased under the Plan where such
disposition occurs within two years after the date of grant of the Option pursuant to which such
shares were purchased or one year after the date of exercise of the Option.



24. Withholding. Each employee shall, no later than the date of the event creating the tax
liability, make provision satisfactory to the Board for payment of any taxes required by law to be
withheld in connection with any transaction related to Options granted to or shares acquired by
such employee pursuant to the Plan. The Company may, to the extent permitted by law, deduct any
such taxes from any payment of any kind otherwise due to an employee.



25. Effective Date. The effective date of the plan is June 1, 1999.




Adopted by the Board of Directors on February 10,
1999 and approved by the stockholders on February
17, 1999;


Amended and Restated by the Board of Directors on
April 22, 1999; Amended and Restated by the Board
of Directors on August 1, 2002; Amended by the
Board of Directors on March 4, 2004 and by the
stockholders on May 13, 2004; Amended and
Restated by the Board of Directors on February 9,
2009 and by the stockholders on May 4, 2009