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EXHIBIT 10.26
CONTRIBUTION AGREEMENT
This CONTRIBUTION AGREEMENT (the "Agreement") is entered into as of
March 18, 1999 between MKS INSTRUMENTS, INC., a Massachusetts corporation (the
"Parent"), and the persons listed on SCHEDULE A attached hereto (individually a
"Stockholder" and collectively the "Stockholders"). Each of the Stockholders
owns shares of capital stock of the Parent and MKS International, Inc., a
Massachusetts corporation and a subsidiary of Parent (the "Subsidiary").
WHEREAS, the Parent has filed a Registration Statement on Form S-1 with
the Securities and Exchange Commission in connection with a firm commitment
underwritten public offering (the "IPO") of shares of its common stock, no par
value ("Common Stock");
WHEREAS, in connection with the IPO, the Parent will list its Common
Stock for quotation on the Nasdaq National Market System (the "Listing");
WHEREAS, the Listing is intended to facilitate a public trading market
in the Common Stock of the Company;
WHEREAS, the Stockholders acknowledge that such a public trading market
would add to the value of the shares of Common Stock owned by them; and
WHEREAS, the Stockholders and the Parent believe that, in order to
facilitate the IPO, the Subsidiary, should be wholly owned by the Parent;
NOW, THEREFORE, for good and valuable consideration, the sufficiency of
which is hereby acknowledged, the undersigned hereby agree as follows:
1. CONTRIBUTION OF SHARES OF SUBSIDIARIES. Subject to the terms and
conditions of this Contribution Agreement, each of the Stockholders hereby
agrees that, effective immediately prior to the closing of the IPO (the
"Closing"), all of his, her or its interest in all shares of the Subsidiary
owned by him, her or it (the "Shares") shall be contributed, transferred,
conveyed, assigned and delivered to the Parent or its designee. At the Closing
each Stockholder shall deliver to the Parent certificates evidencing the Shares
owned by such Stockholder duly endorsed in blank or with stock powers duly
executed by such Stockholder.
2. FURTHER ASSURANCES. At any time and from time to time after the
Closing, at the Parent's request and without consideration, each of the
Stockholders shall promptly execute and deliver such instruments of
contribution, transfer, conveyance, assignment and confirmation, and take all
such other action as the Parent
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may reasonably request, more effectively to transfer, convey and assign to the
Parent or its designee, and to confirm the Parent's or its designee's title to,
all of the Shares owned by such Stockholder, and to assist the Parent in
exercising all rights with respect thereto and to carry out the purpose and
intent of this Agreement.
3. REPRESENTATIONS OF THE STOCKHOLDERS. Each Stockholder severally
represents and warrants to the Parent as follows:
(a) Except as set forth on SCHEDULE B attached hereto, such Stockholder
has good and marketable title to the Shares which are to be transferred to the
Parent by such Stockholder pursuant hereto, free and clear of any and all
covenants, conditions, restrictions, voting trust arrangements, liens, charges,
encumbrances, options and adverse claims or rights whatsoever. SCHEDULE A
attached hereto sets forth a true and correct description of all Shares owned by
such Stockholder.
(b) Except as set forth on SCHEDULE B attached hereto, such Stockholder
has the full right, power and authority to enter into this Agreement and to
transfer, convey and assign to the Parent or its designee at the Closing the
Shares to be contributed by such Stockholder hereunder and, upon consummation of
the IPO, the Parent or its designee will acquire from such Stockholder good and
marketable title to such Shares, free and clear of all covenants, conditions,
restrictions, voting trust arrangements, liens, charges, encumbrances, options
and adverse claims or rights whatsoever.
(c) Except as set forth on SCHEDULE B attached hereto, such Stockholder
is not a party to, subject to or bound by any agreement or any judgment, order,
writ, prohibition, injunction or decree of any court or other governmental body
which would prevent the execution or delivery of this Agreement by such
Stockholder or the transfer, conveyance and assignment of the Shares to be
contributed by such Stockholder to the Parent or its designee pursuant to the
terms hereof.
4. MISCELLANEOUS.
4.1 COUNTERPARTS. This Agreement may be executed in several
counterparts, each of which shall be deemed an original, but all of which
counterparts collectively shall constitute an instrument representing the
Agreement between the parties hereto.
4.2 CONSTRUCTION OF TERMS. Nothing herein expressed or implied
is intended, or shall be construed, to confer upon or give any person, firm or
corporation, other than the parties hereto or their respective successors and
assigns, any rights or remedies under or by reason of this Agreement.
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4.3 GOVERNING LAW. This Agreement and the legal relations
between the parties hereto shall be governed by and construed in accordance with
the substantive laws of the Commonwealth of Massachusetts without regard to
Massachusetts choice of law rules.
4.4 AMENDMENT AND MODIFICATION. This Agreement may be amended,
modified or supplemented only by a written agreement executed by the parties.
4.5 ASSIGNMENT. This Agreement and all of the provisions
hereof shall be binding upon and inure to the benefit of the parties hereto and
their respective successors and permitted assigns, but neither this Agreement
nor any of the rights, interests or obligations hereunder shall be assigned by
any of the Stockholders without the prior written consent of the Parent.
4.6 INTERPRETATION. The section headings contained in this
Agreement are solely for the purpose of reference, are not part of the agreement
of the parties and shall not in any way affect the meaning or interpretation of
this Agreement.
4.7 SEVERABILITY. In the event that any one or more of the
provisions of this Agreement shall be held to be illegal, invalid or
unenforceable in any respect, the same shall not in any respect affect the
validity, legality or enforceability of the remainder of this Agreement, and the
parties shall use their best efforts to replace such illegal, invalid or
unenforceable provisions with an enforceable provision approximating, to the
extent possible, the original intent of the parties.
4.8 ENTIRE AGREEMENT. This Agreement embodies the entire
agreement and understanding of the parties hereto in respect to the subject
matter contained herein. There are no representations, promises, warranties,
covenants, or undertakings, other than those expressly set forth or referred to
herein. This Agreement supersedes all prior agreements and the understandings
between the parties with respect to such subject matter.
4.9 NOTICES. All notices provided for in this Agreement shall
be validly given if in writing and delivered personally or sent by registered
mail, postage prepaid
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if to the Parent, to:
President
MKS Instruments, Inc.
0 Xxxxxxxx Xxxx
Xxxxxxx, XX 00000
copy to:
Xxxxxxx X. Xxxxx
Hill & Xxxxxx
Xxx Xxxxxxxxxxxxx Xxxxx
Xxxxxx, XX 00000
If to any Stockholder, to the address appearing under such
Stockholder's name on SCHEDULE A attached hereto, or at such other address
provided by such Stockholder in writing to the Parent.
4.10 TERMINATION OF AGREEMENT. This Agreement shall terminate
and be void, as if it never had been executed, if the Closing shall not have
occurred on or before July 31, 1999.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
MKS INSTRUMENTS, INC.:
By:
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Xxxxxx X. Xxxxxxx, Vice President
and Chief Financial Officer
STOCKHOLDERS:
-----------------------------------------
Xxxx X. Xxxxxxxx
-----------------------------------------
Xxxxxx X. Xxxxxxxx
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-----------------------------------------
Xxxx X. Xxxxxxxx
Xxxxxx X. Xxxxxxxx Second Family Trust of
December 15, 1986 FBO Xxxxx X. Xxxxxxxx
By:
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Xxxx X. Xxxxxxxx, Trustee
By:
-------------------------------------
Xxxxxx X. Xxxxxxx, Trustee
Xxxxxx X. Xxxxxxxx Second Family Trust of
December 15, 1986 FBO Xxxxx X. Xxxxxxxx
By:
-------------------------------------
Xxxx X. Xxxxxxxx, Trustee
By:
-------------------------------------
Xxxxxx X. Xxxxxxx, Trustee
Xxxx X. Xxxxxxxx Second Family Trust of
December 15, 1986 FBO Xxxxx X. Xxxxxxxx
By:
-------------------------------------
Xxxxxx X. Xxxxxxxx, Trustee
By:
-------------------------------------
Xxxxxxx X. Xxxxx, Trustee
Xxxx X. Xxxxxxxx Second Family Trust of
December 15, 1986 FEC Xxxxx X. Xxxxxxxx
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By:
-------------------------------------
Xxxxxx X. Xxxxxxxx, Trustee
By:
-------------------------------------
Xxxxxxx X. Xxxxx, Trustee
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SCHEDULE A
STOCKHOLDERS
MKS International
Shares Owned
Xxxx X. Xxxxxxxx 2,315.0
c/o MKS Instruments, Inc.
0 Xxxxxxxx Xxxx
Xxxxxxx, XX 00000
Xxxxxx X. Xxxxxxxx 2,205.0
c/o MKS Instruments, Inc.
0 Xxxxxxxx Xxxx
Xxxxxxx, XX 00000
Xxxxxx X. Xxxxxxxx Second Family Trust of 233.5
December 15, 1986 FBO Xxxxx X. Xxxxxxxx
c/x Xxxx & Xxxxxx
Xxx Xxxxxxxxxxxxx Xxxxx
Xxxxxx, XX 00000
Xxxxxx X. Xxxxxxxx Second Family Trust of 233.5
December 15, 1986 FBO Xxxxx X. Xxxxxxxx
c/x Xxxx & Xxxxxx
Xxx Xxxxxxxxxxxxx Xxxxx
Xxxxxx, XX 00000
Xxxx X. Xxxxxxxx Second Family Trust of 233.5
December 15, 1986 FBO Xxxxx X. Xxxxxxxx
c/x Xxxx & Xxxxxx
Xxx Xxxxxxxxxxxxx Xxxxx
Xxxxxx, XX 00000
Xxxx X. Xxxxxxxx Second Family Trust of 233.5
December 15, 1986 FBO Xxxxx X. Xxxxxxxx
c/x Xxxx & Xxxxxx
Xxx Xxxxxxxxxxxxx Xxxxx
Xxxxxx, XX 00000
Xxxx X. Xxxxxxxx 250.0
c/o MKS Instruments, Inc.
0 Xxxxxxxx Xxxx
Xxxxxxx, XX 00000
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SCHEDULE B
