EXHIBIT 10.9
MKS INSTRUMENTS, INC.
Restricted Stock Unit Agreement
Granted Under the 2022 Stock Incentive Plan
AGREEMENT made ____________ (the “Grant Date”), between MKS Instruments, Inc., a Massachusetts corporation (the “Company”), and ____________ (the “Participant”).
For valuable consideration, receipt of which is acknowledged, the parties hereto agree as follows:
1 The definition of Retirement as a voluntary termination of employment by the Participant after he or she is at least age sixty-five (65) and has at least ten (10) Continuous Years of Service with the Company or after he or she is at least age sixty (60) and has at least fifteen (15) Continuous Years of Service with the Company (“Early Retirement”) shall apply only to certain officers designated by the Compensation Committee. The definition of Retirement for all other Participants shall be a voluntary termination of employment by the Participant after he or she is at least age sixty (60) and has at least ten (10) Continuous Years of Service with the Company.
2 Delete for employees located outside of the United States.
3 Include for only those officers designated by the Compensation Committee. The final bracketed proviso to be included only if such officer’s definition of Retirement includes a definition of Early Retirement.
4 Include for all Participants other than those officers designated by the Compensation Committee.
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5 This section is applicable to employees who are located in the United States. For employees located outside of the United States, Section 6 shall read as follows:
6. Tax Obligations.
6 For employees located in certain countries outside of the United States, specific local tax law and securities law provisions will also be inserted or added as an addendum to the RSU Agreement.
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(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, except to the extent 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 not part of normal or expected compensation or salary for any purpose, including, but not limited to, calculation of any wage payment, severance, redundancy, or other 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 or arising under any employment agreement.
(f) No voting or dividend or distribution rights apply with respect to the RSUs.
(g) The future value of the underlying Shares is unknown and cannot be predicted with certainty.
(h) If the Participant receives Shares upon vesting and settlement, the value of such Shares acquired on vesting and settlement 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 and settlement 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.
(j) Other than as otherwise provided in Section 2 of this Agreement, if the Participant ceases to be an 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 Company shall have the exclusive discretion to determine when the Participant is no longer actively employed for purposes of the Plan, subject to Section 409A.
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7For employees located outside of the United States (excluding France and Israel), the following new subsection will be inserted as 9(i) and the remaining subsections will be relabeled (j)-(n).
(i) Appendix. Notwithstanding any provisions in this Agreement, the RSU grant shall be subject to any additional terms and conditions set forth in any Appendix to this Agreement for the Participant’s country. Moreover, if the Participant relocates to one of the countries included in the Appendix, the additional terms and conditions for such country will apply to the Participant, to the extent the Company determines that the application of such terms and conditions is necessary or advisable for legal or administrative reasons. The Appendix constitutes part of this Agreement.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above written.
MKS INSTRUMENTS, INC.
By:________________________________
Name:
Title:
2 Tech Drive, Suite 201
Andover, MA 01810
__________________________
Participant’s Signature