MKS INSTRUMENTS, INC.
PRSU ASSUMPTION AGREEMENT
FOR U.S. EMPLOYEES
Holder: [ ]
PERFORMANCE-BASED RESTRICTED STOCK UNIT ASSUMPTION AGREEMENT effective as of February __, 2019 (the PRSU 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 that were granted subject to vesting based on both the achievement of performance goals and the satisfaction of services conditions (PRSUs) with respect to shares of the common stock of ESI, no par value per share (ESI Common Stock), that you received 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), each of which is evidenced by a Performance-Based Restricted Stock Units Award Agreement, as each such agreement may have been amended from time to time (a PRSU Agreement).
WHEREAS, the provisions of the Merger Agreement required MKS to assume, at the effective time of the Merger (the Effective Time), each PRSU 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 PRSU award, as determined in accordance with the PRSU 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 PRSU Assumption Agreement is to evidence MKSs assumption of your outstanding PRSU award identified on Annex A hereto at the Effective Time and to reflect certain adjustments to such PRSU 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 PRSU award identified on Annex A hereto (the ESI PRSUs and, as assumed, the Assumed ESI PRSUs) 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 PRSUs. In connection with such assumption, the number of shares of MKS Common Stock under the Assumed ESI PRSU award that were earned or deemed to be earned, in accordance with the terms of the applicable ESI PRSU award and subject to any limitations set forth therein, covered by this PRSU Assumption Agreement reflects the Equity Award Exchange Ratio, resulting in Assumed ESI PRSUs 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 PRSUs, those other awards are covered under one or more separate assumption agreements.
2. By clicking acceptance of this PRSU Assumption Agreement, you hereby acknowledge receipt of this PRSU Assumption Agreement and understand that all rights and liabilities with respect to your Assumed ESI PRSU award are as set forth in the applicable PRSU Agreement, the ESI Plan (to the extent incorporated into the PRSU Agreement) and this PRSU Assumption Agreement.