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Exhibit 10.26
CONTRIBUTION AGREEMENT
This CONTRIBUTION AGREEMENT (the "Agreement") is entered into as of
March ___, 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 MKS International, Inc., a Massachusetts
corporation and a subsidiary of Parent ("MKS International") and/or MKS
Instruments France S.A. ("MKS France"). MKS International and MKS France are
hereinafter collectively referred to as the "Subsidiaries" and each individually
as a "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; and
WHEREAS, the Stockholders and the Parent believe that, in order to
facilitate the IPO, the Subsidiaries, to the maximum extent allowed under
applicable law, should be 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 Subsidiaries
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 may reasonably request, more effectively to
transfer, convey and assign to the
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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 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.
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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.
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.
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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
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 Exhibit 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
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
MKS INSTRUMENTS, INC.
By:_________________________________
Xxxxxx X. Xxxxxxx, Vice President
and Chief Financial Officer
STOCKHOLDERS
___________________________________
Xxxx X. Xxxxxxxx
___________________________________
Xxxxxx X. Xxxxxxxx
___________________________________
Xxxx X. Xxxxxxxx
___________________________________
Xxxxxxx X. Xxxxx
___________________________________
Xxxxxxx Xxxxxx
Xxxxxx X. Xxxxxxxx Second Family
Trust of December 15, 1986 FBO
Xxxxx X. Xxxxxxxx
By:________________________________
Xxxx X. Xxxxxxxx, Trustee
By:________________________________
Xxxxxx X. Xxxxxxx, Trustee
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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 FBO
Xxxxx X. Xxxxxxxx
By:________________________________
Xxxxxx X. Xxxxxxxx, Trustee
By:________________________________
Xxxxxxx X. Xxxxx, Trustee
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SCHEDULE A
STOCKHOLDERS
MKS International MKS France
Shares Owned Shares Owned
Xxxx X. Xxxxxxxx 2,315.0 5.0
c/o MKS Instruments, Inc.
0 Xxxxxxxx Xxxx
Xxxxxxx, XX 00000
Xxxxxx X. Xxxxxxxx 2,205.0 5.0
c/o MKS Instruments, Inc.
0 Xxxxxxxx Xxxx
Xxxxxxx, XX 00000
Xxxxxx X. Xxxxxxxx Second Family Trust of 233.5 0
December 15, 1986 f/b/o Xxxxx X. Xxxxxxxx
c/x Xxxx & Xxxxxx
Xxx Xxxxxxxxxxxxx Xxxxx
Xxxxxx, XX 00000
Xxxxxx X. Xxxxxxxx Second Family Trust of 233.5 0
December 15, 1986 f/b/o Xxxxx X. Xxxxxxxx
c/x Xxxx & Xxxxxx
Xxx Xxxxxxxxxxxxx Xxxxx
Xxxxxx, XX 00000
Xxxx X. Xxxxxxxx Second Family Trust of 233.5 0
December 15, 1986 f/b/o Xxxxx X. Xxxxxxxx
c/x Xxxx & Xxxxxx
Xxx Xxxxxxxxxxxxx Xxxxx
Xxxxxx, XX 00000
Xxxx X. Xxxxxxxx Second Family Trust of 233.5 0
December 15, 1986 f/b/o Xxxxx X. Xxxxxxxx
c/x Xxxx & Xxxxxx
Xxx Xxxxxxxxxxxxx Xxxxx
Xxxxxx, XX 00000
Xxxx X. Xxxxxxxx 250.0 0
c/o MKS Instruments, Inc.
0 Xxxxxxxx Xxxx
Xxxxxxx, XX 00000
Xxxxxxx Xxxxx 0 4.0
c/o Hill & Xxxxxx
Xxx Xxxxxxxxxxxxx Xxxxx
Xxxxxx, XX 00000
Xxxxxxx Xxxxxx 0 5.0
c/o MKS Instruments France s.a
00, Xxx xx Xxxxxxxxxx Xxxxxxx
X.X. 00
X-00000 xx Xxxxxxx, Cedex
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SCHEDULE B
