MKS INSTRUMENTS, INC.
RSU ASSUMPTION AGREEMENT
FOR U.S. EMPLOYEES
Holder: [ ]
RESTRICTED STOCK UNIT ASSUMPTION AGREEMENT effective as of February __, 2019 (the RSU Assumption Agreement).
WHEREAS, MKS Instruments, Inc., a Massachusetts corporation (MKS), has acquired Electro Scientific Industries, Inc., an Oregon corporation (ESI), through the merger of a wholly owned MKS subsidiary into ESI (the Merger), pursuant to the Agreement and Plan of Merger by and among MKS, ESI and such subsidiary dated as of October 29, 2018, as may have been amended from time to time (the Merger Agreement).
WHEREAS, before the consummation of the Merger, you held one or more outstanding awards of restricted stock units (RSUs) with respect to shares of the common stock of ESI, no par value per share (ESI Common Stock), that you received either under the Electro Scientific Industries, Inc. 2004 Stock Incentive Plan, as such plan has been amended from time to time, most recently on August 18, 2016 (the ESI Plan), or outside of the ESI Plan as a material inducement to commence employment with ESI, each of which is evidenced by a Restricted Stock Units Award Agreement, as each such agreement may have been amended from time to time (an RSU Agreement).
WHEREAS, the provisions of the Merger Agreement required MKS to assume, at the effective time of the Merger (the Effective Time), each RSU award that was outstanding as of immediately prior to the Effective Time. Under the assumption, MKS has converted the number of shares of ESI Common Stock covered by each such RSU award into shares of MKS common stock, no par value per share (MKS Common Stock), using an exchange ratio (the Equity Award Exchange Ratio) determined based on the Merger consideration and pre-closing trading prices for the MKS Common Stock pursuant to a method specified in the Merger Agreement. MKS has provided you the actual Equity Award Exchange Ratio in the employee communication to you regarding the conversion.
WHEREAS, the purpose of this RSU Assumption Agreement is to evidence MKSs assumption of your outstanding RSU award identified on Annex A hereto at the Effective Time and to reflect certain adjustments to such RSU award that were necessary or advisable in connection with their assumption by MKS.
NOW, THEREFORE, MKS and you agree as follows:
1. MKS has assumed, as of the Effective Time, all the duties and obligations of ESI under the RSU award identified on Annex A hereto (the ESI RSUs and, as assumed, the Assumed ESI RSUs) and will issue from the MKS Instruments, Inc. 2014 Stock Incentive Plan, as it may be amended or replaced from time to time (the MKS Incentive Plan), any shares that become distributable with respect to the Assumed ESI RSUs. In connection with such assumption, the number of shares of MKS Common Stock under the Assumed ESI RSU award covered by this RSU Assumption Agreement reflects the Equity Award Exchange Ratio, resulting in Assumed ESI RSUs for the number of shares of MKS Common Stock indicated on Annex A hereto. If you also held other ESI equity compensation awards at the Effective Time, including other RSUs that were granted subject to vesting based solely on the satisfaction of service conditions, those other awards are covered under one or more separate assumption agreements.
2. By clicking acceptance of this RSU Assumption Agreement, you hereby acknowledge receipt of this RSU Assumption Agreement and understand that all rights and liabilities with respect to your Assumed ESI RSU award are as set forth in the applicable RSU Agreement, the ESI Plan (to the extent incorporated into the RSU Agreement) and this RSU Assumption Agreement.