exv10w8






Exhibit 10.8




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 the total number of days of employment
since Participant’s original hire with the Company (or subsidiary of the Company, provided that
service with a subsidiary shall only be counted towards Years of Service during the time in which
such subsidiary is owned (directly or indirectly) by the Company) and provided that in the event
the employee left or was terminated and then rehired by the Company, the Company shall include
previous employment period in the calculation of the Years of Service provided that the absence
from the Company or subsidiary has been five (5) years or less and only if the total number of days
employed by the Company (or its subsidiary, as provided above) exceeds the total number of days
that the employee was not employed by the Company (or its subsidiary, as provided above).




     (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



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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 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 compensation that would be subject to Section 409A (“Section
409A”) of the U.S. Internal Revenue Code of 1986, as amended. The Company reserves the right, to
the extent the Company deems necessary or advisable in its sole discretion, to unilaterally amend
or modify the Plan and/or this Agreement to ensure that no awards (including without limitation,
the RSUs) become subject to the requirements of Section 409A.



     6. Withholding Taxes.



     (a) The Company’s obligation to deliver Shares to the Participant upon the vesting of RSUs
shall be subject to the satisfaction of all income tax (including federal, state and local taxes),
social insurance, payroll tax, payment on account or other tax related withholding requirements
(“Withholding Taxes”). In order to satisfy all Withholding Taxes due upon vesting of the
Participant’s RSUs, the Participant agrees to the following:



     (b) As a condition to receiving any Shares upon vesting of the RSUs, on the date of this
Agreement, the Participant hereby irrevocably instructs the Company to take the actions described
in this subsection 6(b). On each Vesting Date, the Participant hereby elects to satisfy all
Withholding Taxes obligation then due through the retention by the Company of Shares. Accordingly,
the Participant hereby instructs the Company, with no further action by the



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Participant, on each Vesting Date to deduct and retain from the number of Shares to which the
Participant is entitled from the RSUs then scheduled to vest such number of Shares as is equal to
the value of the Withholding Taxes. The Participant understands that the fair market value of the
surrendered Shares will be based on the closing price of the Company’s Common Stock on the trading
day preceding the Vesting Date.




     (c) Participant has reviewed with the Participant’s own tax advisors the federal, state, local
and foreign tax consequences of this grant and the transactions contemplated by this Agreement.
The Participant is relying solely on such advisors and not on any statements or representations of
the Company or any of its agents. The Participant understands that the Participant (and not the
Company) shall be responsible for the Participant’s own tax liability that may arise as a result of
this grant or the transactions contemplated by this Agreement.



     (d) The Participant represents to the Company that, as of the date hereof, he/she is not aware
of any material nonpublic information about the Company or the Common Stock. The Participant and
the Company have structured this Agreement to constitute a “binding contract” relating to the
retention by the Company of Common Stock pursuant to this Section 6, consistent with the
affirmative defense to liability under Section 10(b) of the Securities Exchange Act of 1934 under
Rule 10b5-1(c) promulgated under such Act.



     7. Nature of the Grant. In signing this Agreement, the Participant acknowledges that:




(a) the Plan is established voluntarily by the Company, it is discretionary in nature and
may be modified, amended, suspended or terminated by the Company at any time, unless
otherwise provided in the Plan and this Agreement;




(b) the grant of RSUs is voluntary and occasional and does not create any contractual or
other right to receive future awards of RSUs, or benefits in lieu of RSUs even if RSUs have
been awarded repeatedly in the past;




(c) all decisions with respect to future grants of RSUs, if any, will be at the sole
discretion of the Company;




(d) the Participant’s participation in the Plan is voluntary;




(e) RSUs are an extraordinary item that do not constitute compensation of any kind for
services of any kind rendered to the Company or to the Participant’s employer, and RSUs are
outside the scope of the Participant’s employment contract, if any;




(f) RSUs are not part of normal or expected compensation or salary for any purpose,
including, but not limited to, calculation of any severance, resignation, termination,
redundancy, end of service payments, bonuses, long-service awards, pension or retirement
benefits or similar payments and in no event should be considered as compensation for, or
relating in any way to, past services for the Company or the Participant’s employer;




(g) the future value of the underlying Shares is unknown and cannot be predicted with
certainty;



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(h) if the Participant receives Shares upon vesting, the value of such Shares acquired on
vesting of RSUs may increase or decrease in value;




(i) in consideration of the grant of RSUs, no claim or entitlement to compensation or
damages arises from termination of the RSUs or diminution in value of the RSUs or Shares
received upon vesting of RSUs resulting from termination of the Participant’s employment by
the Company or the Participant’s employer (for any reason whatsoever and whether or not in
breach of local labor laws) and the Participant irrevocably releases the Company and his or
her employer from any such claim that may arise; if, notwithstanding the foregoing, any such
claim is found by a court of competent jurisdiction to have arisen, then, by signing this
Agreement, the Participant shall be deemed irrevocably to have waived his or her entitlement
to pursue such claim; and




(j) further, if the Participant ceases to be a employee (whether or not in breach of local
labor laws), the Participant’s right to receive RSUs and vest under the Plan, if any, will
terminate effective as of the date that the Participant is no longer actively employed by
the Company and will not be extended by any notice period mandated under local law (e.g.,
active employment would not include a period of “garden leave” or similar period pursuant to
local law); the Committee shall have the exclusive discretion to determine when the
Participant is no longer actively employed for purposes of the Plan.



     8. Data Privacy Notice and Consent. The Participant hereby explicitly and
unambiguously consents to the collection, use and transfer, in electronic or other form, of his or
her personal data as described in this paragraph, by and among, as applicable, the Participant’s
employer and the Company and its subsidiaries and affiliates for, among other purposes,
implementing, administering and managing the Participant’s participation in the Plan. The
Participant understands that the Company and its subsidiaries hold certain personal information
about the Participant, including the Participant’s name, home address and telephone number, date of
birth, social security number or identification number, salary, nationality, job title, any Shares
or directorships held in the Company, details of all options or any other entitlement to Shares
awarded, canceled, exercised, vested, unvested or outstanding in the Participant’s favor, for the
purpose of managing and administering the Plan (“Data”). The Participant further understands that
the Company and/or its subsidiaries will transfer Data amongst themselves as necessary for
employment purposes, including implementation, administration and management of the Participant’s
participation in the Plan, and that the Company and/or any of its subsidiaries may each further
transfer Data to Broker or such other stock plan service provider or other third parties assisting
the Company with processing of Data. The Participant understands that these recipients may be
located in the United States, and that the recipient’s country may have different data privacy laws
and protections than in the Participant’s country. The Participant authorizes them to receive,
possess, use, retain and transfer the Data, in electronic or other form, for the purposes described
in this section, including any requisite transfer to Broker or such other stock plan service
provider or other third party as may be required for the administration of the Plan and/or the
subsequent holding of Shares of stock on the Participant’s behalf. The Participant understands
that he or she may, at any time, request access to the Data, request any necessary amendments to it
or refuse or withdraw the consents herein, in any case without cost, by contacting in writing his
or her local human



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resources representative. The Participant understands, however, that withdrawal of consent
may affect the Participant’s ability participate in or realize benefits from the Plan. For more
information on the consequences of refusal to consent or withdrawal of consent, the Participant
understands that he or she may contact his or her local human resources representative.




     9. Miscellaneous.



          (a) No Rights to Employment. The Participant acknowledges and agrees that the vesting
of the RSUs pursuant to Section 1 and Exhibit A hereof is earned only in accordance with the terms
of such sections. The Participant further acknowledges and agrees that the transactions
contemplated hereunder and the vesting schedule set forth herein do not constitute an express or
implied promise of continued engagement as an employee for the vesting period, for any period, or
at all.




          (b) Severability. The invalidity or unenforceability of any provision of this
Agreement shall not affect the validity or enforceability of any other provision of this Agreement,
and each other provision of this Agreement shall be severable and enforceable to the extent
permitted by law.




          (c) Waiver. Any provision for the benefit of the Company contained in this Agreement
may be waived, either generally or in any particular instance, by the Board of Directors of the
Company.




          (d) Binding Effect. This Agreement shall be binding upon and inure to the benefit of
the Company and the Participant and their respective heirs, executors, administrators, legal
representatives, successors and assigns, subject to the restrictions on transfer set forth in
Section 3 of this Agreement.




          (e) Notice. All notices required or permitted hereunder shall be in writing and
deemed effectively given upon personal delivery or five days after deposit in the United States
Post Office, by registered or certified mail, postage prepaid, addressed to the other party hereto
at the address shown beneath his or its respective signature to this Agreement, or at such other
address or addresses as either party shall designate to the other in accordance with this Section
9(e).




          (f) Pronouns. Whenever the context may require, any pronouns used in this Agreement
shall include the corresponding masculine, feminine or neuter forms, and the singular form of nouns
and pronouns shall include the plural, and vice versa.




          (g) Language. If the Participant has received this Agreement or any other document
related to the Plan translated into a language other than English and if the translated version is
different than the English version, the English version will control.




          (h) Electronic Delivery. The Company may, in its sole discretion, decide to deliver
any documents related to participation in the Plan, RSUs granted under the Plan or future RSUs that
may be granted under the Plan by electronic means or to request the Participant’s consent to
participate in the Plan by electronic means. The Participant hereby consents to receive such
documents by electronic delivery and, if requested, to agree to participate in the Plan through an
on-






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line or electronic system established and maintained by the Company or another third party
designated by the Company.




          (i) Entire Agreement. This Agreement and the Plan constitute the entire agreement
between the parties, and supersedes all prior agreements and understandings, relating to the
subject matter of this Agreement.




          (j) Amendment. This Agreement may be amended or modified only by a written instrument
executed by both the Company and the Participant.




          (k) Governing Law. This Agreement shall be construed, interpreted and enforced in
accordance with the internal laws of the Commonwealth of Massachusetts without regard to any
applicable conflicts of laws.




          (l) The Participant’s Acknowledgments. The Participant acknowledges that he or she:
(i) has read this Agreement; (ii) has been represented in the preparation, negotiation, and
execution of this Agreement by legal counsel of the Participant’s own choice or has voluntarily
declined to seek such counsel; and (iii) understands the terms and consequences of this Agreement;
and (iv) is fully aware of the legal and binding effect of this Agreement.




     IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year
first above written.



	 	 	 	 	 
	 	MKS INSTRUMENTS, INC.

 	 
	 	By:  	/s/ Leo Berlinghieri
 	 
	 	 	Title: Chief Executive Officer & President 	 
	 	 	2 Tech Drive, Suite 201

Andover, MA 01810




«First_Name» «Last_Name»





Participants Signature 	 



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Exhibit A




Participant: «First_Name» «Last_Name»

Grant Date:                     



Restricted Stock Units Granted: <<NumShares>>



Subject to the terms and conditions of this Agreement (including the Forfeiture provisions
described in Section 2 above), the RSUs shall vest in three (3) equal installments as follows: (a)
the first third will vest upon the the first anniversary of the Grant Date; (b) an additional one
third will vest on the second anniversary of the Grant Date, and (c) the final one third will vest
on the third anniversary of the Grant Date. The date upon which each such installment vests shall
be considered a “Vesting Date” for the portion of the RSUs vesting on that date.





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MKS INSTRUMENTS, INC.




Restricted Stock Unit Agreement



Granted Under the 2004 Stock Incentive Plan



     AGREEMENT made this X day of March 2011 (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 the total number of days of employment
since Participant’s original hire with the Company (or subsidiary of the Company, provided that
service with a subsidiary shall only be counted towards Years of Service during the time in which
such subsidiary is owned (directly or indirectly) by the Company) and provided that in the event
the employee left or was terminated and then rehired by the Company, the Company shall include
previous employment period in the calculation of the Years of Service provided that the absence
from the Company or subsidiary has been five (5) years or less and only if the total number of days
employed by the Company (or its subsidiary, as provided above) exceeds the total number of days
that the employee was not employed by the Company (or its subsidiary, as provided above).




     (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



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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 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 compensation that would be subject to Section 409A (“Section
409A”) of the U.S. Internal Revenue Code of 1986, as amended. The Company reserves the right, to
the extent the Company deems necessary or advisable in its sole discretion, to unilaterally amend
or modify the Plan and/or this Agreement to ensure that no awards (including without limitation,
the RSUs) become subject to the requirements of Section 409A.



     6. Withholding Taxes.



     (a) The Company’s obligation to deliver Shares to the Participant upon the vesting of RSUs
shall be subject to the satisfaction of all income tax (including federal, state and local taxes),
social insurance, payroll tax, payment on account or other tax related withholding requirements
(“Withholding Taxes”). In order to satisfy all Withholding Taxes due upon vesting of the
Participant’s RSUs, the Participant agrees to the following:



     (b) As a condition to receiving any Shares upon vesting of the RSUs, on the date of this
Agreement, the Participant hereby irrevocably instructs the Company to take the actions described



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in this subsection 6(b). On each Vesting Date, the Participant hereby elects to satisfy all
Withholding Taxes obligation then due through the retention by the Company of Shares. Accordingly,
the Participant hereby instructs the Company, with no further action by the Participant, on each
Vesting Date to deduct and retain from the number of Shares to which the Participant is entitled
from the RSUs then scheduled to vest such number of Shares as is equal to the value of the
Withholding Taxes. The Participant understands that the fair market value of the surrendered
Shares will be based on the closing price of the Company’s Common Stock on the trading day
preceding the Vesting Date.




     (c) Participant has reviewed with the Participant’s own tax advisors the federal, state, local
and foreign tax consequences of this grant and the transactions contemplated by this Agreement.
The Participant is relying solely on such advisors and not on any statements or representations of
the Company or any of its agents. The Participant understands that the Participant (and not the
Company) shall be responsible for the Participant’s own tax liability that may arise as a result of
this grant or the transactions contemplated by this Agreement.



     (d) The Participant represents to the Company that, as of the date hereof, he/she is not aware
of any material nonpublic information about the Company or the Common Stock. The Participant and
the Company have structured this Agreement to constitute a “binding contract” relating to the
retention by the Company of Common Stock pursuant to this Section 6, consistent with the
affirmative defense to liability under Section 10(b) of the Securities Exchange Act of 1934 under
Rule 10b5-1(c) promulgated under such Act.



     7. Nature of the Grant. In signing this Agreement, the Participant acknowledges that:




(a) the Plan is established voluntarily by the Company, it is discretionary in nature and
may be modified, amended, suspended or terminated by the Company at any time, unless
otherwise provided in the Plan and this Agreement;




(b) the grant of RSUs is voluntary and occasional and does not create any contractual or
other right to receive future awards of RSUs, or benefits in lieu of RSUs even if RSUs have
been awarded repeatedly in the past;




(c) all decisions with respect to future grants of RSUs, if any, will be at the sole
discretion of the Company;




(d) the Participant’s participation in the Plan is voluntary;




(e) RSUs are an extraordinary item that do not constitute compensation of any kind for
services of any kind rendered to the Company or to the Participant’s employer, and RSUs are
outside the scope of the Participant’s employment contract, if any;




(f) RSUs are not part of normal or expected compensation or salary for any purpose,
including, but not limited to, calculation of any severance, resignation, termination,
redundancy, end of service payments, bonuses, long-service awards, pension or retirement
benefits or similar payments and in no event should be considered as compensation for, or
relating in any way to, past services for the Company or the Participant’s employer;



4









 






(g) the future value of the underlying Shares is unknown and cannot be predicted with
certainty;




(h) if the Participant receives Shares upon vesting, the value of such Shares acquired on
vesting of RSUs may increase or decrease in value;




(i) in consideration of the grant of RSUs, no claim or entitlement to compensation or
damages arises from termination of the RSUs or diminution in value of the RSUs or Shares
received upon vesting of RSUs resulting from termination of the Participant’s employment by
the Company or the Participant’s employer (for any reason whatsoever and whether or not in
breach of local labor laws) and the Participant irrevocably releases the Company and his or
her employer from any such claim that may arise; if, notwithstanding the foregoing, any such
claim is found by a court of competent jurisdiction to have arisen, then, by signing this
Agreement, the Participant shall be deemed irrevocably to have waived his or her entitlement
to pursue such claim; and




(j) further, if the Participant ceases to be a employee (whether or not in breach of local
labor laws), the Participant’s right to receive RSUs and vest under the Plan, if any, will
terminate effective as of the date that the Participant is no longer actively employed by
the Company and will not be extended by any notice period mandated under local law (e.g.,
active employment would not include a period of “garden leave” or similar period pursuant to
local law); the Committee shall have the exclusive discretion to determine when the
Participant is no longer actively employed for purposes of the Plan.



     8. Data Privacy Notice and Consent. The Participant hereby explicitly and
unambiguously consents to the collection, use and transfer, in electronic or other form, of his or
her personal data as described in this paragraph, by and among, as applicable, the Participant’s
employer and the Company and its subsidiaries and affiliates for, among other purposes,
implementing, administering and managing the Participant’s participation in the Plan. The
Participant understands that the Company and its subsidiaries hold certain personal information
about the Participant, including the Participant’s name, home address and telephone number, date of
birth, social security number or identification number, salary, nationality, job title, any Shares
or directorships held in the Company, details of all options or any other entitlement to Shares
awarded, canceled, exercised, vested, unvested or outstanding in the Participant’s favor, for the
purpose of managing and administering the Plan (“Data”). The Participant further understands that
the Company and/or its subsidiaries will transfer Data amongst themselves as necessary for
employment purposes, including implementation, administration and management of the Participant’s
participation in the Plan, and that the Company and/or any of its subsidiaries may each further
transfer Data to Broker or such other stock plan service provider or other third parties assisting
the Company with processing of Data. The Participant understands that these recipients may be
located in the United States, and that the recipient’s country may have different data privacy laws
and protections than in the Participant’s country. The Participant authorizes them to receive,
possess, use, retain and transfer the Data, in electronic or other form, for the purposes described
in this section, including any requisite transfer to Broker or such other stock plan service
provider or other third party as may be required for the administration of the Plan and/or the
subsequent holding



5









 




of Shares of stock on the Participant’s behalf. The Participant understands that he or she
may, at any time, request access to the Data, request any necessary amendments to it or refuse or
withdraw the consents herein, in any case without cost, by contacting in writing his or her local
human resources representative. The Participant understands, however, that withdrawal of consent
may affect the Participant’s ability participate in or realize benefits from the Plan. For more
information on the consequences of refusal to consent or withdrawal of consent, the Participant
understands that he or she may contact his or her local human resources representative.




     9. Miscellaneous.



          (a) No Rights to Employment. The Participant acknowledges and agrees that the vesting
of the RSUs pursuant to Section 1 and Exhibit A hereof is earned only in accordance with the terms
of such sections. The Participant further acknowledges and agrees that the transactions
contemplated hereunder and the vesting schedule set forth herein do not constitute an express or
implied promise of continued engagement as an employee for the vesting period, for any period, or
at all.




          (b) Severability. The invalidity or unenforceability of any provision of this
Agreement shall not affect the validity or enforceability of any other provision of this Agreement,
and each other provision of this Agreement shall be severable and enforceable to the extent
permitted by law.




          (c) Waiver. Any provision for the benefit of the Company contained in this Agreement
may be waived, either generally or in any particular instance, by the Board of Directors of the
Company.




          (d) Binding Effect. This Agreement shall be binding upon and inure to the benefit of
the Company and the Participant and their respective heirs, executors, administrators, legal
representatives, successors and assigns, subject to the restrictions on transfer set forth in
Section 3 of this Agreement.




          (e) Notice. All notices required or permitted hereunder shall be in writing and
deemed effectively given upon personal delivery or five days after deposit in the United States
Post Office, by registered or certified mail, postage prepaid, addressed to the other party hereto
at the address shown beneath his or its respective signature to this Agreement, or at such other
address or addresses as either party shall designate to the other in accordance with this Section
9(e).




          (f) Pronouns. Whenever the context may require, any pronouns used in this Agreement
shall include the corresponding masculine, feminine or neuter forms, and the singular form of nouns
and pronouns shall include the plural, and vice versa.




          (g) Language. If the Participant has received this Agreement or any other document
related to the Plan translated into a language other than English and if the translated version is
different than the English version, the English version will control.




          (h) Electronic Delivery. The Company may, in its sole discretion, decide to deliver
any documents related to participation in the Plan, RSUs granted under the Plan or future






6









 








RSUs that may be granted under the Plan by electronic means or to request the Participant’s
consent to participate in the Plan by electronic means. The Participant hereby consents to receive
such documents by electronic delivery and, if requested, to agree to participate in the Plan
through an on-line or electronic system established and maintained by the Company or another third
party designated by the Company.




          (i) Entire Agreement. This Agreement and the Plan constitute the entire agreement
between the parties, and supersedes all prior agreements and understandings, relating to the
subject matter of this Agreement.




          (j) Amendment. This Agreement may be amended or modified only by a written instrument
executed by both the Company and the Participant.




          (k) Governing Law. This Agreement shall be construed, interpreted and enforced in
accordance with the internal laws of the Commonwealth of Massachusetts without regard to any
applicable conflicts of laws.




          (l) The Participant’s Acknowledgments. The Participant acknowledges that he or she:
(i) has read this Agreement; (ii) has been represented in the preparation, negotiation, and
execution of this Agreement by legal counsel of the Participant’s own choice or has voluntarily
declined to seek such counsel; and (iii) understands the terms and consequences of this Agreement;
and (iv) is fully aware of the legal and binding effect of this Agreement.




     IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year
first above written.



	 	 	 	 	 
	 	MKS INSTRUMENTS, INC.

 	 
	 	By:  	/s/ Leo Berlinghieri
 	 
	 	 	Title: Chief Executive Officer & President 	 
	 	 	2 Technology Drive

Andover, MA 01810





«First_Name» «Last_Name»





Participants Signature 	 



7









 






	 	 	 	 	 



Exhibit A





8