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UNITED STATES SECURITIES AND
EXCHANGE COMMISSION
Washington, D.C.
20549
Form 10-K
ANNUAL REPORT
PURSUANT
TO SECTIONS 13 OR 15(d) OF
THE
SECURITIES EXCHANGE ACT OF
1934
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(Mark One)
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ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
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For the fiscal year ended
December 31, 2006
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or
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TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
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For the transition period
from to
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Commission File number 0-23621
MKS Instruments, Inc.
(Exact Name of Registrant as
Specified in Its Charter)
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Massachusetts
(State or other
Jurisdiction of
Incorporation or Organization)
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04-2277512
(IRS Employer
Identification No.)
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90 Industrial Way, Wilmington,
Massachusetts
(Address of Principal
Executive Offices)
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01887
(Zip
Code)
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Registrants Telephone Number, including area code
(978) 284-4000
Securities registered pursuant to Section 12(b) of the
Act:
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Title of Class
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Name of Each Exchange on Which Registered
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Common Stock, no par value
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Nasdaq Global Market
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Securities registered pursuant to Section 12(g) of the
Act:
None
Indicate by check mark if the registrant is a well-known
seasoned issuer, as defined in Rule 405 of the Securities
Act. Yes o No þ
Indicate by check mark if the registrant is not required to file
reports pursuant to Section 13 or Section 15(d) of the
Act. Yes o No þ
Indicate by check mark whether the registrant (1) has filed
all reports required to be filed by Section 13 or 15(d) of
the Securities Exchange Act of 1934 during the preceding
12 months (or for such shorter period that the registrant
was required to file such reports), and (2) has been
subject to such filing requirements for the past
90 days. Yes þ No o
Indicate by check mark if disclosure of delinquent filers
pursuant to Item 405 of
Regulation S-K
(§ 229.405 of this chapter) is not contained herein, and
will not be contained, to the best of registrants
knowledge, in definitive proxy or information statements
incorporated by reference in Part III of this
Form 10-K
or any amendment to this
Form 10-K. o
Indicate by check mark whether the registrant is a large
accelerated filer, an accelerated filer, or a non-accelerated
filer. See definition of accelerated filer and large
accelerated filer in
Rule 12b-2
of the Exchange Act. (Check one):
Large accelerated
filer þ Accelerated
filer o Non-accelerated
filer o
Indicate by check mark whether the registrant is a shell company
(as defined in
Rule 12b-2
of the Exchange
Act). Yes o No þ
Aggregate market value of the voting and non-voting common
equity held by nonaffiliates of the registrant as of
June 30, 2006 based on the closing price of the
registrants Common Stock on such date as reported by the
Nasdaq Global Market: $834,878,092.
Number of shares outstanding of the issuers Common Stock,
no par value, as of February 16, 2007: 57,087,671.
DOCUMENTS
INCORPORATED BY REFERENCE
Portions of the definitive Proxy Statement for MKS Annual
Meeting of Stockholders to be held on May 7, 2007 are
incorporated by reference into Part III of this
Form 10-K.
SPECIAL
NOTE REGARDING FORWARD-LOOKING STATEMENTS
MKS management believes that this Annual Report on
Form 10-K
contains forward-looking statements within the
meaning of the Private Securities Litigation Reform Act of 1995,
Section 27A of the Securities Act and Section 27E of
the Securities Exchange Act. When used herein, the words
believe, anticipate, plan,
expect, estimate, intend,
may, see, will,
would and similar expressions are intended to
identify forward-looking statements. These forward-looking
statements reflect managements current opinions and are
subject to certain risks and uncertainties that could cause
actual results to differ materially from those stated or
implied. MKS assumes no obligation to update this information.
Risks and uncertainties include, but are not limited to, those
discussed in the section entitled Risk Factors.
PART I
MKS Instruments, Inc. (the Company or
MKS) was founded in 1961 as a Massachusetts
corporation. We are a leading worldwide provider of instruments,
components, subsystems and process control solutions that
measure, control, power and monitor critical parameters of
semiconductor and other advanced manufacturing processes.
We are managed as one operating segment which is organized
around three product groups: Instruments and Control Systems,
Power and Reactive Gas Products and Vacuum Products. Our
products are derived from our core competencies in pressure
measurement and control, materials delivery, gas and thin-film
composition analysis, electrostatic charge control, control and
information management, power and reactive gas generation and
vacuum technology.
Our products are used in diverse markets, applications and
processes including:
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semiconductor devices for diverse electronics applications;
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flat panel displays for hand-held devices, laptop computers,
desktop computer monitors and television sets;
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magnetic and optical storage media;
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optical filters and fiber optic cables for data and
telecommunications;
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optical coatings for eyeglasses and architectural glass;
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magnetic resonance imaging (MRI) medical equipment; and
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energy generation and energy conservation processes.
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For over 45 years, we have focused on satisfying the needs
of our customers by establishing long-term, collaborative
relationships. We have a diverse base of customers that includes
manufacturers of semiconductor capital equipment, semiconductor
devices, capital equipment manufacturers of thin-film coatings
used in flat panel displays, optical and magnetic data storage
equipment, architectural glass, solar panels and electro-optical
products, industrial and manufacturing companies, as well as
medical equipment manufacturers, and university, government and
industrial research laboratories. Our top 10 customers for the
year ended December 31, 2006 were Applied Materials,
Hitachi, Lam Research, Novellus Systems, Oviso Manufacturing,
Phillips, PSK Tech, Samsung, Tokyo Electron and Ultra Clean
Technology.
We file reports, proxy statements and other documents with the
Securities and Exchange Commission. You may read and copy any
document we file at the SEC Headquarters at Office of Investor
Education and Assistance, 100 F Street, NE,
Washington, D.C. 20549. You should call
1-800-SEC-0330
for more information on the public reference room. Our SEC
filings are also available to you on the SECs Internet
site at http://www.sec.gov.
Our internet address is www.mksinstruments.com. We are not
including the information contained in our website as part of,
or incorporating it by reference into, this annual report on
Form 10-K.
We make available free of charge through our web site our annual
reports on
Form 10-K,
quarterly reports on
Form 10-Q,
current reports on
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Form 8-K
and amendments to these reports filed or furnished pursuant to
Section 13(a) or 15(d) of the Securities Exchange Act of
1934, as amended, or the Exchange Act, as soon as reasonably
practicable after we electronically file such materials with the
Securities and Exchange Commission.
Markets
and Applications
We are focused on improving process performance and productivity
by controlling advanced manufacturing processes in
semiconductor, thin-film and other non-semiconductor market
sectors. We estimate that approximately 70%, 71% and 74% of our
net sales for the years ended December 31, 2006, 2005 and
2004, respectively, were to semiconductor capital equipment
manufacturers and semiconductor device manufacturers.
Approximately 8%, 8% and 8% of our net sales in the years ended
December 31, 2006, 2005 and 2004, respectively, were for
thin-film processing equipment applications, including compact
discs, digital video discs (DVDs) and other digital storage
media; flat panel displays for computer and television screens;
and thin-film coatings for architectural glass and optics.
Approximately 22%, 21% and 18% of our net sales in the years
ended December 31, 2006, 2005 and 2004, respectively, were
for other non-semiconductor manufacturing applications. These
include, but are not limited to, industrial manufacturing,
magnetic resonance imaging (MRI) medical equipment, energy
generation and conservation processes, and university,
government and industrial research laboratories.
We estimate that approximately 34%, 37% and 34% of our net sales
for the years ended December 31, 2006, 2005 and 2004,
respectively, were to customers located in international
markets. International sales include sales by our foreign
subsidiaries, but exclude direct export sales. Please refer to
Note 11 in the Notes to Consolidated Financial Statements
for further information about geographical information.
Semiconductor
Manufacturing Applications
The majority of our sales are derived from products sold to
semiconductor capital equipment manufacturers and semiconductor
device manufacturers. Our products are used in the major
semiconductor processing steps such as depositing materials onto
substrates and etching and cleaning circuit patterns.
Our products are also used for process facility applications
such as gas distribution, pressure control and vacuum
distribution, and electrostatic charge control in clean rooms
where semiconductor manufacturing takes place. In addition, we
provide specialized instruments that monitor the performance of
manufacturing equipment and products that distribute, manage,
and classify process control information. We anticipate that the
semiconductor manufacturing market will continue to account for
a substantial portion of our sales. While the semiconductor
device manufacturing market is global, major semiconductor
capital equipment manufacturers are concentrated in Europe,
Japan and the United States.
Thin-Film
Manufacturing Applications
Flat
Panel Display Manufacturing.
Our products are used in the manufacture of flat panel displays,
which require the same or similar fabrication processes as
semiconductor manufacturing. Flat panel displays are used in
electronic hand-held devices, laptop computers, desktop computer
monitors, and television sets. Flat panel display technology is
designed to replace bulkier cathode ray tube (CRT) technology in
computer monitors and television sets. We sell products to flat
panel display equipment manufacturers and to end-users in the
flat panel display market. The major manufacturers of flat panel
displays are concentrated in Japan, Korea and Taiwan, and the
major manufacturers of flat panel display equipment are
concentrated in Japan and the United States. The transition to
larger panel sizes and higher display resolution is driving the
need for improved process controls to reduce defects.
Magnetic
and Optical Storage Media.
Our products are used to manufacture:
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magnetic storage media which store and read data magnetically;
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optical storage media which store and read data using laser
technology;
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compact discs;
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hard disks;
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data storage devices; and
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digital video discs.
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The transition to higher density storage capacity requires
manufacturing processes incorporating tighter process controls.
The major manufacturers of storage media are concentrated in
Japan and the Asia Pacific region, and the major manufacturers
of storage media capital equipment are concentrated in Europe,
Japan and the United States.
Optical
Filters, Optical Fibers and Other Coating Processes.
Our products are used in optical filter, optical fiber and other
optical thin-film coating processes. Our products are sold both
to coating equipment manufacturers and to manufacturers of
products made using optical thin-film coating processes. Optical
filters and fibers used for data transmission are manufactured
using processes to deposit chemical vapors that are similar to
those used in semiconductor manufacturing. The requirement for
higher data transmission rates is driving the need for improved
control of optical filters and fiber coating processes. Optical
thin film coating for eyeglasses, solar panels and architectural
glass are deposited using processes similar to those used in
semiconductor manufacturing. Optical filter, optical fiber and
other optical thin-film processing manufacturers are
concentrated in Europe, Japan and the United States.
Other
Non-Semiconductor Manufacturing Applications
Our products are used in energy generation and conservation
processes such as nuclear fuel processing, combustion and
emissions control, solar cells and fuel cell research. Other
advanced applications include chemical agent detection, medical
instrument sterilization, consumable medical supply
manufacturing and vacuum freeze drying of pharmaceuticals, foods
and beverages. Our power delivery products are also incorporated
into other end-market products such as MRI medical equipment. In
addition, our products are sold to government, university and
industrial laboratories for vacuum applications involving
research and development in materials science, physical
chemistry and electronics materials. The major equipment and
process providers and research laboratories are concentrated in
Europe, Japan and the United States.
Acquisitions
We completed three acquisitions in 2006. On January 3,
2006, we completed our acquisition of Ion Systems, Inc.
(Ion), a leading provider of electrostatic
management solutions located in Alameda, California. Ions
ionization technology monitors electrostatic charges to reduce
process contamination and improve yields, which complements our
process monitoring and control technologies. Additionally, on
January 3, 2006, we completed our acquisition of Umetrics,
AB (Umetrics), a leader in multivariate data
analysis and modeling software located in Umea, Sweden.
Umetrics multivariate data analysis and modeling software
converts process data into useable information for yield
improvement, when linked with our open and modular platform of
process sensors and data collection, integration, data storage,
and visualization capabilities. On October 11, 2006, we
completed our acquisition of Novx Corp. (Novx), a
provider of electrostatic charge monitoring technology for
semiconductor, data storage, telecommunication, medical device
and other markets. Novxs technology expands our capability
to monitor, detect and control electrostatic charge in advanced
process environments, such as semiconductor and hard disk drive
manufacturing.
Product
Groups
We group our products into three product groups: Instruments and
Control Systems, Power and Reactive Gas Products and Vacuum
Products. Also, please refer to Note 11 in the Notes to
Consolidated Financial Statements for further information.
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Instruments
and Control Systems
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This product group includes pressure measurement and control
products, materials delivery products, gas and thin film
composition analysis products, electrostatic charge control
products, and control and information technology products.
Pressure Measurement and Control
Products. Each of our pressure measurement
and control product lines consists of products that are designed
for a variety of pressure ranges and accuracies.
Baratron Pressure Measurement Products. These
products are typically used to measure the pressure of the gases
being distributed upstream of the process chambers, to measure
process chamber pressures and to measure pressures between
process chambers, vacuum pumps and exhaust lines. We believe we
offer the widest range of gas pressure measurement instruments
in the semiconductor and advanced thin-film materials processing
industries.
Automatic Pressure and Vacuum Control
Products. These products enable precise control
of process pressure by electronically actuating valves that
control the flow of gases in and out of the process chamber to
minimize the difference between desired and actual pressure in
the chamber.
In most cases, Baratron pressure measurement instruments provide
the pressure input to the automatic pressure control device.
Together, these components create an integrated automatic
pressure control subsystem. Our pressure control products can
also accept inputs from other measurement instruments, enabling
the automatic control of gas input or exhaust based on
parameters other than pressure.
Materials Delivery Products. Each of
our materials delivery product lines consists of products that
are designed for a variety of flow ranges and accuracies.
Flow Measurement and Control Products. Flow
measurement products include gas, vapor and liquid flow
measurement products based upon thermal conductivity, pressure
and direct liquid injection technologies. The flow control
products combine the flow measurement device with valve control
elements based upon solenoid, piezo-electric and piston pump
technologies. These products measure and automatically control
the mass flow rate of gases and vapors into the process chamber.
Our thermal-based mass flow controllers control gas flow based
on the molecular weight of gases and our pressure-based mass
flow controllers, based on Baratron pressure instrument
measurement and control technology, restrict flow in the gas
line to transform pressure control into mass flow control.
Our flow measurement products also include a calibration system
that independently measures mass flow and compares this
measurement to that of the process chamber mass flow controller.
The demand for our calibration system is driven by the
increasingly stringent process control needs of the
semiconductor industry and the need to reduce costly downtime
resulting from stopping operations to address mass flow
controller problems.
Gas and Thin-Film Composition Analysis
Products. Gas and thin-film composition
analysis instruments are sold to a variety of industries
including the semiconductor industry.
Mass Spectrometry-Based Gas Composition Analysis
Instruments. These products are based on
quadruple mass spectrometer sensors that separate gases based on
molecular weight. These sensors include built-in electronics and
are provided with software that analyzes the composition of
background and process gases in the process chamber. These
instruments are provided both as portable laboratory systems and
as process gas monitoring systems used in the diagnosis of
semiconductor manufacturing process systems.
Fourier Transform Infra-Red (FTIR) Based Gas and Thin-Film
Composition Analysis Products. FTIR-based
products provide information about the composition of gases and
thin-films by measuring the absorption of infra-red light as it
passes through the sample being measured. Gas analysis
applications include measuring the compositions of mixtures of
reactant gases; measuring the purity of individual process
gases; measuring the composition of process exhaust gas streams
to determine process health; monitoring gases to ensure
environmental health and safety; and monitoring combustion
exhausts. These instruments are provided as portable laboratory
systems and as process gas monitoring systems used in the
diagnosis of manufacturing processes.
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Mass spectrometry-based and FTIR-based gas monitoring systems
can indicate
out-of-bounds
conditions, such as the presence of undesirable contaminant
gases and water vapor or
out-of-tolerance
amounts of specific gases in the process, which alert operators
to diagnose and repair faulty equipment.
Leak Detection Products. Helium leak detection
is used in a variety of industries including semiconductor,
HVAC, automotive and aerospace to ensure the leak integrity of
both manufactured products and manufacturing equipment. We
believe that our products are the smallest mass
spectrometer-based helium leak detectors currently available.
Optical Monitoring Instruments. We manufacture
a range of optical monitoring instruments that are sold
primarily for thin-film coating applications such as the
manufacture of optical filters. The optical monitors measure the
thickness and optical properties of a film being deposited,
allowing the user to better control the process.
Electrostatic Charge Control
Products. Industries that rely on high
technology manufacturing, such as the semiconductor, flat panel
display, and data storage industries, are vulnerable to
electrostatic charge-related contamination and yield problems.
We design and manufacture products to control electrostatic
attraction, electrostatic discharge, and electromagnetic
interference.
Control and Information Technology
Products. We design and manufacture a suite
of products that allow semiconductor manufacturing customers to
better control their processes through computer-controlled
automation. These products include digital control network
products, process chamber and system controllers, data analysis
products and connectivity products. Digital control network
products are used to connect sensors, actuators and subsystems
to the chamber and system control computers. They support a
variety of industry-standard connection methods including
DeviceNet, Profibus, ethernet and conventional discrete digital
and analog signals. Chamber and system control computers process
these signals in real time and allow customers to precisely
manage the process conditions. Connectivity products allow
information to flow from the process sensors and subsystems and
from the process tool control computer to the factory network.
By enabling this information flow, we believe that we help
customers optimize their processes through Advanced Process
Control (APC), and diagnose equipment problems from a remote
location
(e-diagnostics).
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Power
and Reactive Gas Products
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This product group includes power delivery products and reactive
gas generation products.
Power Delivery Products. Our power delivery
products are used in the semiconductor, flat panel display, data
storage and medical markets. In the semiconductor, flat panel
and data storage markets, our microwave, RF and DC power
supplies are used to provide energy to various etching,
stripping and deposition processes. A range of impedance
matching units transfer power from the power supplies to the
customers process. We also provide sensors to measure
delivered voltage and current along with plasma impedance. This
information is used both to better control the generator output
and as a process chamber diagnostic. Our power amplifiers are
also used in MRI medical equipment including the most advanced
3T (three Tesla) machines.
Reactive Gas Generation Products. Reactive
gases are used to etch, strip and deposit films on wafers, to
clean wafers during processing, and to clean process chambers to
reduce particle contamination. A reactive gas is created when
energy is added to a stable gas to break apart its molecules.
The resulting dissociated gas produces rapid chemical reactions
when it comes into contact with other matter. Our reactive gas
products include ozone generators and subsystems used for
deposition of insulators onto semiconductor devices, ozonated
water delivery systems for advanced semiconductor wafer and flat
panel display cleaning, atomic fluorine generators for process
chamber cleaning, microwave plasma based products for photo
resist removal and a new line of generators based on the
fluorine cleaning architecture which provide reactive gases for
a wide range of semiconductor, flat panel and thin film
applications.
This product group consists of vacuum technology products,
including vacuum gauges, valves and components.
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Vacuum Gauging Products. We offer a wide range
of vacuum instruments consisting of vacuum measurement sensors
and associated power supply and readout units. These vacuum
gauges measure phenomena that are related to the level of
pressure in the process chamber and downstream of the process
chamber between the chamber and the pump. These gauges are used
to measure vacuum at pressures lower than those measurable with
a Baratron instrument or to measure vacuum in the Baratron
instrument range where less accuracy is required. Our indirect
pressure gauges use thermal conductivity and ionization gauge
technologies to measure pressure from atmospheric pressure to
one trillionth of atmospheric pressure.
Vacuum Valves and Components. Our vacuum
valves are used on the gas lines between the process chamber and
the pump downstream of the process chamber. Our vacuum
components consist of flanges, fittings, traps and heated lines
that are used downstream from the process chamber to provide
leak free connections and to prevent condensable materials from
depositing particles near or back into the chamber. The
manufacture of devices with small circuit patterns cannot
tolerate contamination from atmospheric leaks or particles. Our
vacuum components are designed to minimize such contamination
and thus increase yields and reduce downtime.
Application-Specific
Integrated Subsystems
We also combine these products and technologies into
application-specific integrated subsystems. Integrated
subsystems are made by each product group, and typically provide
higher functionality in a smaller footprint, depending upon the
application.
For example, we have a line of integrated flow and pressure
control subsystems that combine two or more of our products and
technologies into products for specific process applications. We
have developed a range of Back-Side Wafer Cooling Subsystems
which are needed to control the flow and pressure of the helium
used to effect the cooling of wafers in semiconductor
manufacturing. By combining the functions of our Baratron
pressure measurement instruments, flow measurement instruments,
control electronics and valves into a range of compact
subsystems, this product line addresses the need for smaller
components that save valuable clean room space.
Sales for integrated subsystems were $206.4 million or
approximately 26% of total net sales for the year ended
December 31, 2006 compared to $139.2 million or
approximately 27% of total net sales and to $140.2 million
or 25% of total net sales for the years ended December 31,
2005 and 2004, respectively.
Customers
Our largest customers include leading semiconductor capital
equipment manufacturers such as Applied Materials, Lam Research,
Novellus Systems and Tokyo Electron. Sales to our top ten
customers accounted for approximately 49%, 48% and 49% of net
sales for the years ended December 31, 2006, 2005 and 2004,
respectively. Applied Materials accounted for approximately 21%,
18% and 20% of our net sales for the years ended
December 31, 2006, 2005 and 2004, respectively.
Sales,
Marketing and Support
Our worldwide sales, marketing and support organization is
critical to our strategy of maintaining close relationships with
semiconductor capital equipment manufacturers and semiconductor
device manufacturers. We sell our products primarily through our
direct sales force. As of December 31, 2006, we had 208
sales employees worldwide, located in China, France, Germany,
Japan, Korea, the Netherlands, Singapore, Sweden, Taiwan, the
United Kingdom and the United States. We also maintain sales
representatives and agents in a number of countries, which
supplement this direct sales force. We maintain a marketing
staff that identifies customer requirements, assists in product
planning and specifications, and focuses on future trends in
semiconductor and other markets.
As semiconductor device manufacturers have become increasingly
sensitive to the significant costs of system downtime, they have
required that suppliers offer comprehensive local repair service
and close customer support. Manufacturers require close support
to enable them to repair, modify, upgrade and retrofit their
equipment to improve yields and adapt new materials or
processes. To meet these market requirements, we maintain a
worldwide sales and support organization in 14 countries.
Technical support is provided by applications engineers located
at offices in China, France, Germany, Japan, Korea, the
Netherlands, Singapore, Taiwan, the United Kingdom and the
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United States. Repair and calibration services are provided at
27 service depots located worldwide. We typically provide
warranties from one to three years, depending upon the type of
product.
Research
and Development
Our products incorporate sophisticated technologies to power,
measure, control and monitor increasingly complex gas-related
semiconductor manufacturing processes, thereby enhancing uptime,
yield and throughput for our semiconductor device manufacturing
customers. Our products have continuously advanced as we strive
to meet our customers evolving needs. We have developed,
and continue to develop, new products to address industry
trends, such as the shrinking of integrated circuit critical
dimensions from 90 nanometers to 65 nanometers and below. In
addition, we have developed, and continue to develop, products
that support the migration to new classes of materials and
ultra-thin layers, such as copper for low resistance conductors,
high-k dielectric materials for capacitors and gates and low-k
dielectric materials for low loss insulators that are used in
small geometry manufacturing. We have undertaken an initiative
to involve our marketing, engineering, manufacturing and sales
personnel in the concurrent development of new products in order
to reduce the time to market for new products. Our employees
also work closely with our customers development personnel
helping us to identify and define future technical needs on
which to focus research and development efforts. We support
research at academic institutions targeted at advances in
materials science and semiconductor process development. At
December 31, 2006, we had 456 research and development
employees, primarily located in the United States. Our research
and development expenses were $69.7 million,
$55.9 million and $57.0 million for the years ended
December 31, 2006, 2005 and 2004, respectively. Our
research and development efforts include numerous projects, none
of which are individually material, and generally have a
duration of 12 to 30 months.
Manufacturing
Our manufacturing facilities are located in China, Germany,
Israel, Japan, Mexico, the United Kingdom and the United States.
Manufacturing activities include the assembly and testing of
components and subassemblies, which are integrated into
products. We outsource some of our subassembly work. We purchase
a wide range of electronic, mechanical and electrical
components, some of which are designed to our specifications. We
consider our responsiveness to our customers significantly
fluctuating product demands, by using lean manufacturing
techniques, to be a distinct competitive advantage.
Competition
The market for our products is highly competitive. Principal
competitive factors include:
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historical customer relationships;
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product quality, performance and price;
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breadth of product line;
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manufacturing capabilities; and
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customer service and support.
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Although we believe that we compete favorably with respect to
these factors, there can be no assurance that we will continue
to do so.
We encounter substantial competition in most of our product
lines, although no single competitor competes with us across all
product lines. Certain of our competitors may have greater
financial and other resources than us. In some cases,
competitors are smaller than we are, but well established in
specific product niches. Celerity offers products that compete
with our pressure and materials delivery products. Advanced
Energy and Horiba each offer materials delivery products that
compete with our product line of mass flow controllers. Nor-Cal
Products, Inc. and VAT, Inc., each offer products that compete
with our vacuum components. Inficon offers products that compete
with our vacuum measurement and gas analysis products. Brooks
Automation and Inficon each offer products that compete with our
vacuum gauging products. Advanced Energy offers products that
compete with our power delivery and reactive gas generator
products.
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Patents
and Other Intellectual Property Rights
We rely on a combination of patent, copyright, trademark and
trade secret laws and license agreements to establish and
protect our proprietary rights. As of December 31, 2006, we
owned 308 U.S. patents, 225 foreign patents and had 110
pending U.S. patent applications. Foreign counterparts of
certain of these applications have been filed or may be filed at
the appropriate time.
We require each of our employees, including our executive
officers, to enter into standard agreements pursuant to which
the employee agrees to keep confidential all of our proprietary
information and to assign to us all inventions while they are
employed by us.
For a discussion of litigation relating to our intellectual
property, see Item 3. Legal Proceedings.
Employees
As of December 31, 2006, we employed 2,960 persons. We
believe that our ongoing success depends upon our continued
ability to attract and retain highly skilled employees for whom
competition is intense. None of our employees are represented by
a labor union or are party to a collective bargaining agreement.
We believe that our employee relations are good.
Our
business depends substantially on capital spending in the
semiconductor industry which is characterized by periodic
fluctuations that may cause a reduction in demand for our
products.
We estimate that approximately 70%, 71% and 74% of our net sales
for the years ended December 31, 2006, 2005 and 2004, were
to semiconductor capital equipment manufacturers and
semiconductor device manufacturers, and we expect that sales to
such customers will continue to account for a substantial
majority of our sales. Our business depends upon the capital
expenditures of semiconductor device manufacturers, which in
turn depend upon the demand for semiconductors. Periodic
reductions in demand for the products manufactured by
semiconductor capital equipment manufacturers and semiconductor
device manufacturers may adversely affect our business,
financial condition and results of operations.
Historically, the semiconductor market has been highly cyclical
and has experienced periods of overcapacity, resulting in
significantly reduced demand for capital equipment. For example,
in 2001 through the first half of 2003, we experienced a
significant reduction in demand from OEM customers, and lower
gross margins due to reduced absorption of manufacturing
overhead. In addition, many semiconductor manufacturers have
operations and customers in Asia, a region that in past years
has experienced serious economic problems including currency
devaluations, debt defaults, lack of liquidity and recessions.
We cannot be certain of the timing or magnitude of future
semiconductor industry downturns. A decline in the level of
orders as a result of any downturn or slowdown in the
semiconductor capital equipment industry could have a material
adverse effect on our business, financial condition and results
of operations.
Our
quarterly operating results have fluctuated, and are likely to
continue to vary significantly, which may result in volatility
in the market price of our common stock.
A substantial portion of our shipments occurs shortly after an
order is received and therefore we operate with a low level of
backlog. As a result, a decrease in demand for our products from
one or more customers could occur with limited advance notice
and could have a material adverse effect on our results of
operations in any particular period. A significant percentage of
our expenses is relatively fixed and based in part on
expectations of future net sales. The inability to adjust
spending quickly enough to compensate for any shortfall would
magnify the adverse impact of a shortfall in net sales on our
results of operations. Factors that could cause fluctuations in
our net sales include:
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|
|
the timing of the receipt of orders from major customers;
|
|
|
|
shipment delays;
|
9
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|
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|
|
disruption in sources of supply;
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|
|
seasonal variations in capital spending by customers;
|
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|
|
production capacity constraints; and
|
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|
|
specific features requested by customers.
|
In addition, our quarterly operating results may be adversely
affected due to charges incurred in a particular quarter, for
example, relating to inventory obsolescence, warranty or asset
impairments.
As a result of the factors discussed above, it is likely that we
may in the future experience quarterly or annual fluctuations
and that, in one or more future quarters, our operating results
may fall below the expectations of public market analysts or
investors. In any such event, the price of our common stock
could decline significantly.
The
loss of net sales to any one of our major customers would likely
have a material adverse effect on us.
Our top ten customers accounted for approximately 49%, 48% and
49% of our net sales for the years ended December 31, 2006,
2005 and 2004, respectively. The loss of a major customer or any
reduction in orders by these customers, including reductions due
to market or competitive conditions, would likely have a
material adverse effect on our business, financial condition and
results of operations. During the years ended December 31,
2006, 2005 and 2004, one customer, Applied Materials, accounted
for approximately 21%, 18% and 20%, respectively, of our net
sales. None of our significant customers, including Applied
Materials, has entered into an agreement requiring it to
purchase any minimum quantity of our products. The demand for
our products from our semiconductor capital equipment customers
depends in part on orders received by them from their
semiconductor device manufacturer customers.
Attempts to lessen the adverse effect of any loss or reduction
of net sales through the rapid addition of new customers could
be difficult because prospective customers typically require
lengthy qualification periods prior to placing volume orders
with a new supplier. Our future success will continue to depend
upon:
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|
our ability to maintain relationships with existing key
customers;
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|
our ability to attract new customers;
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|
our ability to introduce new products in a timely manner for
existing and new customers; and
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|
the success of our customers in creating demand for their
capital equipment products which incorporate our products.
|
As
part of our business strategy, we have entered into and may
enter into or seek to enter into business combinations and
acquisitions that may be difficult and costly to integrate, may
be disruptive to our business, may dilute stockholder value or
may divert management attention.
We made several acquisitions in the years 2000 through 2002 and,
more recently in 2006. As a part of our business strategy, we
may enter into additional business combinations and
acquisitions. Acquisitions are typically accompanied by a number
of risks, including the difficulty of integrating the
operations, technology and personnel of the acquired companies,
the potential disruption of our ongoing business and distraction
of management, possible internal control weaknesses of the
acquired companies, expenses related to the acquisition and
potential unknown liabilities associated with acquired
businesses. If we are not successful in completing acquisitions
that we may pursue in the future, we may be required to
reevaluate our growth strategy, and we may incur substantial
expenses and devote significant management time and resources in
seeking to complete proposed acquisitions that will not generate
benefits for us.
In addition, with future acquisitions, we could use substantial
portions of our available cash as all or a portion of the
purchase price. We could also issue additional securities as
consideration for these acquisitions, which could cause
significant stockholder dilution. Further, our prior
acquisitions and any future acquisitions may not ultimately help
us achieve our strategic goals and may pose other risks to us.
10
As a result of our previous acquisitions, we have added several
different decentralized operating and accounting systems,
resulting in a complex reporting environment. We will need to
continue to modify our accounting policies, internal controls,
procedures and compliance programs to provide consistency across
all our operations. In order to increase efficiency and
operating effectiveness and improve corporate visibility into
our decentralized operations, we are currently implementing a
new worldwide Enterprise Resource Planning (ERP)
system. We completed our first site implementation in October
2005 and we expect to continue to implement the ERP system by
converting our remaining operations in phases over the next few
years. Although we have a plan to accomplish the ERP
implementation, we may risk potential disruption of our
operations during the conversion periods and the implementation
could require significantly more management time and higher
implementation costs than currently estimated.
An
inability to convince semiconductor device manufacturers to
specify the use of our products to our customers that are
semiconductor capital equipment manufacturers would weaken our
competitive position.
The markets for our products are highly competitive. Our
competitive success often depends upon factors outside of our
control. For example, in some cases, particularly with respect
to mass flow controllers, semiconductor device manufacturers may
direct semiconductor capital equipment manufacturers to use a
specified suppliers product in their equipment.
Accordingly, for such products, our success will depend in part
on our ability to have semiconductor device manufacturers
specify that our products be used at their semiconductor
fabrication facilities. In addition, we may encounter
difficulties in changing established relationships of
competitors that already have a large installed base of products
within such semiconductor fabrication facilities.
If
our products are not designed into successive generations of our
customers products, we will lose significant net sales
during the lifespan of those products.
New products designed by semiconductor capital equipment
manufacturers typically have a lifespan of five to ten years.
Our success depends on our products being designed into new
generations of equipment for the semiconductor industry. We must
develop products that are technologically advanced so that they
are positioned to be chosen for use in each successive
generation of semiconductor capital equipment. If customers do
not choose our products, our net sales may be reduced during the
lifespan of our customers products. In addition, we must
make a significant capital investment to develop products for
our customers well before our products are introduced and before
we can be sure that we will recover our capital investment
through sales to the customers in significant volume. We are
thus also at risk during the development phase that our products
may fail to meet our customers technical or cost
requirements and may be replaced by a competitive product or
alternative technology solution. If that happens, we may be
unable to recover our development costs.
The
semiconductor industry is subject to rapid demand shifts which
are difficult to predict. As a result, our inability to expand
our manufacturing capacity in response to these rapid shifts may
cause a reduction in our market share.
Our ability to increase sales of certain products depends in
part upon our ability to expand our manufacturing capacity for
such products in a timely manner. If we are unable to expand our
manufacturing capacity on a timely basis or to manage such
expansion effectively, our customers could implement our
competitors products and, as a result, our market share
could be reduced. Because the semiconductor industry is subject
to rapid demand shifts which are difficult to foresee, we may
not be able to increase capacity quickly enough to respond to a
rapid increase in demand. Additionally, capacity expansion could
increase our fixed operating expenses and if sales levels do not
increase to offset the additional expense levels associated with
any such expansion, our business, financial condition and
results of operations could be materially adversely affected.
We
operate in a highly competitive industry.
The market for our products is highly competitive. Principal
competitive factors include:
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historical customer relationships;
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|
product quality, performance and price;
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11
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breadth of product line;
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|
manufacturing capabilities; and
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customer service and support.
|
Although we believe that we compete favorably with respect to
these factors, we may not be able to continue to do so. We
encounter substantial competition in most of our product lines.
Certain of our competitors may have greater financial and other
resources than we have. In some cases, competitors are smaller
than we are, but well established in specific product niches. We
may encounter difficulties in changing established relationships
of competitors with a large installed base of products at such
customers fabrication facilities. In addition, our
competitors can be expected to continue to improve the design
and performance of their products. Competitors may develop
products that offer price or performance features superior to
those of our products. If our competitors develop superior
products, we may lose existing customer and market share.
Sales
to foreign markets constitute a substantial portion of our net
sales; therefore, our net sales and results of operations could
be adversely affected by downturns in economic conditions in
countries outside of the United States.
International sales include sales by our foreign subsidiaries,
but exclude direct export sales. International sales accounted
for approximately 34%, 37% and 34%, of net sales for the years
ended December 31, 2006, 2005 and 2004, respectively, a
significant portion of which were sales to Japan.
We anticipate that international sales will continue to account
for a significant portion of our net sales. In addition, certain
of our key domestic customers derive a significant portion of
their revenues from sales in international markets. Therefore,
our sales and results of operations could be adversely affected
by economic slowdowns and other risks associated with
international sales.
We
have significant foreign operations, and outsource certain
operations offshore, which pose significant risks.
We have significant international sales, service, engineering
and manufacturing operations in Europe, Israel and Asia, and
have outsourced a portion of our manufacturing to Mexico. We may
expand the level of manufacturing and certain other operations
that we do offshore in order to take advantage of cost
efficiencies available to us in those countries. However, we may
not achieve the significant cost savings or other benefits that
we anticipate from this program. These foreign operations expose
us to operational and political risks that may harm our
business, including:
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political and economic instability;
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|
fluctuations in the value of currencies and high levels of
inflation, particularly in Asia and Europe;
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|
|
changes in labor conditions and difficulties in staffing and
managing foreign operations, including, but not limited to,
labor unions;
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|
reduced or less certain protection for intellectual property
rights;
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|
|
greater difficulty in collecting accounts receivable and longer
payment cycles;
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|
burdens and costs of compliance with a variety of foreign laws;
|
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|
|
increases in duties and taxation;
|
|
|
|
imposition of restrictions on currency conversion or the
transfer of funds;
|
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|
|
changes in export duties and limitations on imports or exports;
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|
expropriation of private enterprises; and
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|
unexpected changes in foreign regulations.
|
If any of these risks materialize, our operating results may be
adversely affected.
12
Unfavorable
currency exchange rate fluctuations may lead to lower operating
margins or may cause us to raise prices, which could result in
reduced sales.
Currency exchange rate fluctuations could have an adverse effect
on our net sales and results of operations and we could
experience losses with respect to our hedging activities.
Unfavorable currency fluctuations could require us to increase
prices to foreign customers, which could result in lower net
sales by us to such customers. Alternatively, if we do not
adjust the prices for our products in response to unfavorable
currency fluctuations, our results of operations could be
adversely affected. In addition, most sales made by our foreign
subsidiaries are denominated in the currency of the country in
which these products are sold and the currency they receive in
payment for such sales could be less valuable at the time of
receipt as a result of exchange rate fluctuations. We enter into
forward foreign exchange contracts and may enter into local
currency purchased options to reduce currency exposure arising
from intercompany sales of inventory. However, we cannot be
certain that our efforts will be adequate to protect us against
significant currency fluctuations or that such efforts will not
expose us to additional exchange rate risks.
Key
personnel may be difficult to attract and retain.
Our success depends to a large extent upon the efforts and
abilities of a number of key employees and officers,
particularly those with expertise in the semiconductor
manufacturing and similar industrial manufacturing industries.
The loss of key employees or officers could have a material
adverse effect on our business, financial condition and results
of operations. We believe that our future success will depend in
part on our ability to attract and retain highly skilled
technical, financial, managerial and marketing personnel. We
cannot be certain that we will be successful in attracting and
retaining such personnel.
Our
proprietary technology is important to the continued success of
our business. Our failure to protect this proprietary technology
may significantly impair our competitive position.
As of December 31, 2006, we owned 308 U.S. patents,
225 foreign patents and had 110 pending U.S. patent
applications. Although we seek to protect our intellectual
property rights through patents, copyrights, trade secrets and
other measures, we cannot be certain that:
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|
we will be able to protect our technology adequately;
|
|
|
|
competitors will not be able to develop similar technology
independently;
|
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|
|
any of our pending patent applications will be issued;
|
|
|
|
domestic and international intellectual property laws will
protect our intellectual property rights; or
|
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|
|
third parties will not assert that our products infringe patent,
copyright or trade secrets of such parties.
|
Protection
of our intellectual property rights may result in costly
litigation.
Litigation may be necessary in order to enforce our patents,
copyrights or other intellectual property rights, to protect our
trade secrets, to determine the validity and scope of the
proprietary rights of others or to defend against claims of
infringement. We are, from time to time, involved in lawsuits
enforcing or defending our intellectual property rights and may
be involved in such litigation in the future. Such litigation
could result in substantial costs and diversion of resources and
could have a material adverse effect on our business, financial
condition and results of operations.
We may need to expend significant time and expense to protect
our intellectual property regardless of the validity or
successful outcome of such intellectual property claims. If we
lose any litigation, we may be required to seek licenses from
others or change, stop manufacturing or stop selling some of our
products.
13
The
market price of our common stock has fluctuated and may continue
to fluctuate for reasons over which we have no
control.
The stock market has from time to time experienced, and is
likely to continue to experience, extreme price and volume
fluctuations. Prices of securities of technology companies have
been especially volatile and have often fluctuated for reasons
that are unrelated to the operating performance of the
companies. The market price of shares of our common stock has
fluctuated greatly since our initial public offering and could
continue to fluctuate due to a variety of factors. In the past,
companies that have experienced volatility in the market price
of their stock have been the objects of securities class action
litigation. If we were the object of securities class action
litigation, it could result in substantial costs and a diversion
of our managements attention and resources.
Our
dependence on sole, limited source suppliers, and international
suppliers, could affect our ability to manufacture products and
systems.
We rely on sole, limited source suppliers and international
suppliers for a few of our components and subassemblies that are
critical to the manufacturing of our products. This reliance
involves several risks, including the following:
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the potential inability to obtain an adequate supply of required
components;
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|
reduced control over pricing and timing of delivery of
components; and
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|
the potential inability of our suppliers to develop
technologically advanced products to support our growth and
development of new systems.
|
We believe that in time we could obtain and qualify alternative
sources for most sole, limited source and international supplier
parts. Seeking alternative sources of the parts could require us
to redesign our systems, resulting in increased costs and likely
shipping delays. We may be unable to redesign our systems, which
could result in further costs and shipping delays. These
increased costs would decrease our profit margins if we could
not pass the costs to our customers. Further, shipping delays
could damage our relationships with current and potential
customers and have a material adverse effect on our business and
results of operations.
We are
subject to governmental regulations. If we fail to comply with
these regulations, our business could be harmed.
We are subject to federal, state, local and foreign regulations,
including environmental regulations and regulations relating to
the design and operation of our products. We must ensure that
the affected products meet a variety of standards, many of which
vary across the countries in which our systems are used. For
example, the European Union has published directives
specifically relating to power supplies. In addition, the
European Union has issued directives relating to regulation of
recycling and hazardous substances, which may be applicable to
our products, or to which some customers may voluntarily elect
to adhere to. In addition, China has adopted, and certain other
Asian countries have indicated an intention to adopt, similar
regulations. We must comply with any applicable regulation
adopted in connection with these types of directives in order to
ship affected products into countries that adopt these types of
regulations. We believe we are in compliance with current
applicable regulations, directives and standards and have
obtained all necessary permits, approvals, and authorizations to
conduct our business. However, compliance with future
regulations, directives and standards, or customer demands
beyond such requirements, could require us to modify or redesign
certain systems, make capital expenditures or incur substantial
costs. If we do not comply with current or future regulations,
directives and standards:
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we could be subject to fines;
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our production could be suspended; or
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we could be prohibited from offering particular systems in
specified markets.
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14
Certain
stockholders have a substantial interest in us and may be able
to exert substantial influence over our actions.
As of December 31, 2006, John R. Bertucci, our Chairman,
and certain members of his family, in the aggregate,
beneficially owned approximately 11% of our outstanding common
stock. As a result, these stockholders, acting together, may be
able to exert substantial influence over our actions.
Some
provisions of our restated articles of organization, as amended,
our amended and restated by-laws and Massachusetts law could
discourage potential acquisition proposals and could delay or
prevent a change in control of us.
Anti-takeover provisions could diminish the opportunities for
stockholders to participate in tender offers, including tender
offers at a price above the then current market price of the
common stock. Such provisions may also inhibit increases in the
market price of the common stock that could result from takeover
attempts. For example, while we have no present plans to issue
any preferred stock, our board of directors, without further
stockholder approval, may issue preferred stock that could have
the effect of delaying, deterring or preventing a change in
control of us. The issuance of preferred stock could adversely
affect the voting power of the holders of our common stock,
including the loss of voting control to others. In addition, our
amended and restated by-laws provide for a classified board of
directors consisting of three classes. The classified board
could also have the effect of delaying, deterring or preventing
a change in control of us.
Changes
in financial accounting standards may adversely affect our
reported results of operations.
A change in accounting standards or practices could have a
significant effect on our reported results and may even affect
our reporting of transactions completed before the change was
effective. New accounting pronouncements and varying
interpretations of existing accounting pronouncements have
occurred and may occur in the future. Such changes may adversely
affect our reported financial results or may impact our related
business practice.
For example, Statement on Financial Accounting Standards
No. 123R Share-Based Payment
(SFAS 123R), which requires us to measure all
employee stock-based compensation awards using a fair value
method and record such expense in our consolidated financial
statements, was adopted in the first quarter of 2006, and had a
material adverse impact on our consolidated financial statements
as reported under generally accepted accounting principles in
the United States for the first quarter of 2006 and adversely
impacted our consolidated financial statements for fiscal 2006.
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Item 1B.
|
Unresolved
Staff Comments
|
None.
15
The following table provides information concerning MKS
principal and certain other owned and leased facilities as of
December 31, 2006:
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|
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|
|
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Products
|
|
Lease
|
Location
|
|
Sq. Ft.
|
|
|
Activity
|
|
Manufactured
|
|
Expires
|
|
Alameda, CA
|
|
|
48,300
|
|
|
Manufacturing and Research &
Development
|
|
Electrostatic Management Programs
and Systems
|
|
March 31, 2011
|
Andover, Massachusetts
|
|
|
82,000
|
|
|
Manufacturing and Research &
Development
|
|
Pressure Measurement and Control
Products
|
|
(1)
|
Austin, Texas
|
|
|
20,880
|
|
|
Manufacturing, Sales, Customer
Support, Service and Research & Development
|
|
Control & Information
Management Products
|
|
May 31, 2012
|
Berlin, Germany
|
|
|
20,750
|
|
|
Manufacturing, Customer Support,
Service and Research & Development
|
|
Reactive Gas Generation Products
|
|
March 31, 2009
|
Boulder, Colorado
|
|
|
124,000
|
|
|
Manufacturing, Customer Support,
Service and Research & Development
|
|
Vacuum Products
|
|
(2)
|
Carmiel, Israel
|
|
|
7,000
|
|
|
Manufacturing and Research &
Development
|
|
Control & Information
Management Products
|
|
December 31, 2007
|
Cheshire, U.K.
|
|
|
13,000
|
|
|
Manufacturing, Sales, Customer
Support and Service
|
|
Materials Delivery Products
|
|
(3)
|
Colorado Springs, Colorado
|
|
|
24,000
|
|
|
Manufacturing, Customer Support,
Service and Research & Development
|
|
Power Delivery Products
|
|
(1)
|
Lawrence, Massachusetts
|
|
|
40,000
|
|
|
Manufacturing
|
|
Pressure Measurement and Control
Products
|
|
(1)
|
Methuen, Massachusetts
|
|
|
85,000
|
|
|
Manufacturing, Customer Support,
Service and Research & Development
|
|
Pressure Measurement and Control
Products; Materials Delivery Products
|
|
(1)
|
Munich, Germany
|
|
|
14,000
|
|
|
Manufacturing, Sales, Customer
Support, Service and Research & Development
|
|
Pressure Measurement and Control
Products; Materials Delivery Products
|
|
(1)
|
Nogales, Mexico
|
|
|
36,700
|
|
|
Manufacturing
|
|
Pressure Measurement and Control
Products; Reactive Gas Generation Products
|
|
March 31, 2009
|
Richardson, Texas
|
|
|
8,800
|
|
|
Sales, Customer Support and Service
|
|
Not applicable
|
|
November 30, 2012
|
Rochester, New York
|
|
|
156,000
|
|
|
Manufacturing, Sales, Customer
Support, Service and Research & Development
|
|
Power Delivery Products
|
|
(4)
|
San Jose, California
|
|
|
32,000
|
|
|
Sales, Customer Support and Service
|
|
Not applicable
|
|
April 30, 2009
|
Seoul, Korea
|
|
|
10,000
|
|
|
Sales, Customer Support and Service
|
|
Not applicable
|
|
May 31, 2008
|
Shenzhen, China
|
|
|
130,000
|
|
|
Manufacturing
|
|
Power Delivery Products
|
|
December 31, 2007
|
Shropshire, U.K.
|
|
|
25,000
|
|
|
Manufacturing
|
|
Vacuum Products
|
|
October 18, 2010
|
Taiwan
|
|
|
19,300
|
|
|
Sales, Customer Support and Service
|
|
Not applicable
|
|
August 25, 2007
|
Tokyo, Japan
|
|
|
31,600
|
|
|
Manufacturing, Sales, Customer
Support, Service and Research & Development
|
|
Materials Delivery Products
|
|
(5)
|
Wilmington, Massachusetts
|
|
|
118,000
|
|
|
Headquarters, Manufacturing, Sales,
Customer Support, Service and Research & Development
|
|
Reactive Gas Generation Products;
Power Delivery Products
|
|
(1)
|
16
|
|
|
(1) |
|
This facility is owned by MKS. |
|
(2) |
|
MKS leases two facilities, one has 39,000 square feet of
space and the other has 38,000 square feet of space. Both
leases expire on May 31, 2015. MKS also owns a third and
fourth facility with 27,000 and 20,000 square feet of
space, respectively. |
|
(3) |
|
MKS leases two facilities, one has 2,000 square feet of
space and a lease term which expires October 5, 2009 and
the second has 11,000 square feet of space and a lease term
which expires November 30, 2009. |
|
(4) |
|
MKS owns this facility and has an Industrial Development Revenue
Bond of $5.0 million, due in 2014, that is collateralized
by the building. |
|
(5) |
|
MKS leases two facilities, one has 14,500 square feet of
space with a lease term that expires April 30, 2007 and the
second has 10,500 square feet of space and a lease term
that expires on September 30, 2011. MKS owns a third
facility of 6,600 square feet. |
In addition to manufacturing and other operations conducted at
the foregoing leased or owned facilities, MKS provides worldwide
sales, customer support and services from various other leased
facilities throughout the world not listed in the table above.
See Business Sales, Marketing and
Support.
|
|
Item 3.
|
Legal
Proceedings
|
On November 3, 1999, On-Line Technologies Inc.
(On-Line), which we acquired in 2001, brought suit
in federal district court in Connecticut against Perkin-Elmer
Corp. (Perkin-Elmer) and certain other defendants
for infringement of On-Lines U.S. Patent
No. 5,440,143 (the 143 patent). The suit sought
injunctive relief and damages for infringement. Perkin-Elmer
filed a counterclaim seeking invalidity of the patent, costs and
attorneys fees, and in June 2002, moved for summary
judgment. In April 2003, the court granted the motion and
dismissed the case. We appealed this decision to the Federal
Circuit Court of Appeals, which, on October 13, 2004,
reversed the lower courts dismissal of our claim for
patent infringement, and the case was remanded to the district
court. On March 11, 2005, Perkin-Elmer stipulated that they
do infringe a specified claim of the 143 patent. Perkin-Elmer
filed a motion for summary judgment seeking to invalidate such
claim, which motion was denied on March 23, 2006. The court
established an October 2006 trial date. Perkin-Elmer then moved
for the court to reconsider its decision and requested a stay of
the trial. On September 15, 2006, the court reversed
itself, granting Perkin-Elmers motion for reconsideration,
and holding the specified claim invalid. Following a
September 26, 2006 status conference, the court denied the
defendants request to stay the trial of our remaining
claims. The court continued the trial date and requested summary
judgment briefing on the remaining claims following a court
ordered
30-day delay
for the parties to attempt to settle the case. In January 2007,
the parties entered into a confidential settlement agreement,
the terms of which do not have a material financial impact to
us, and agreed to dismiss the case upon such terms. Accordingly,
on January 22, 2007, the parties filed with the court a
stipulation of dismissal, which the court granted on
January 26, 2007.
We are subject to other legal proceedings and claims, which have
arisen in the ordinary course of business.
In the opinion of management, the ultimate disposition of these
matters will not have a material adverse effect on our results
of operations, financial condition or cash flows.
|
|
Item 4.
|
Submission
of Matters to a Vote of Security Holders
|
No matters were submitted to a vote of security holders during
the fourth quarter of 2006 through the solicitation of proxies
or otherwise.
17
PART II
|
|
Item 5.
|
Market
for the Registrants Common Equity and Related Stockholder
Matters
|
Price
Range of Common Stock
Our common stock is traded on the Nasdaq Global Market under the
symbol MKSI. On February 16, 2007, the closing price of our
common stock, as reported on the Nasdaq Global Market, was
$24.04 per share. The following table sets forth for the
periods indicated the high and low bid prices per share of our
common stock as reported by the Nasdaq Global Market.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2006
|
|
|
2005
|
|
Price Range of Common Stock
|
|
High
|
|
|
Low
|
|
|
High
|
|
|
Low
|
|
|
First Quarter
|
|
$
|
23.75
|
|
|
$
|
17.05
|
|
|
$
|
19.00
|
|
|
$
|
14.46
|
|
Second Quarter
|
|
|
24.97
|
|
|
|
18.66
|
|
|
|
18.10
|
|
|
|
13.96
|
|
Third Quarter
|
|
|
23.60
|
|
|
|
17.84
|
|
|
|
20.69
|
|
|
|
15.29
|
|
Fourth Quarter
|
|
|
23.36
|
|
|
|
19.54
|
|
|
|
19.72
|
|
|
|
17.02
|
|
On February 16, 2007, we had approximately 205 stockholders
of record.
Dividend
Policy
We have never declared or paid any cash dividends. We currently
intend to retain earnings, if any, to support our growth
strategy and do not anticipate paying cash dividends in the
foreseeable future. Payment of future dividends, if any, will be
at the discretion of our board of directors after taking into
account various factors, including our financial condition,
operating results, current and anticipated cash needs, plans for
expansion, and changes in tax and regulatory rulings.
18
Comparative
Stock Performance
The following graph compares the cumulative total shareholder
return (assuming reinvestment of dividends) from investing $100
on December 31, 2001, and plotted at the last trading day
of each of the fiscal years ended December 31, 2002, 2003,
2004, 2005 and 2006, in each of (i) the Companys
Common Stock; (ii) an industry group index of semiconductor
equipment/material manufacturers (the Hemscott Group
Index), compiled by Hemscott, Inc. (Hemscott);
and (iii) the NASDAQ Market Index of companies (the
NASDAQ Market Index). The graph was compiled by
Hemscott. The stock price performance on the graph below is not
necessarily indicative of future price performance. The
Companys Common Stock is listed on the NASDAQ Global
Market under the ticker symbol MKSI.
Performance
Graph
COMPARISON
OF CUMULATIVE TOTAL RETURN OF
ONE OR MORE COMPANIES, PEER GROUPS,
INDUSTRY INDEXES AND/OR BROAD MARKETS
Assumes
$100 invested on Dec. 31, 2001
Assumes dividend reinvested
Fiscal Year Ending Dec. 31, 2006
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2001
|
|
|
2002
|
|
|
2003
|
|
|
2004
|
|
|
2005
|
|
|
2006
|
MKS Instruments, Inc.
|
|
|
$
|
100.00
|
|
|
|
$
|
60.78
|
|
|
|
$
|
107.29
|
|
|
|
$
|
68.63
|
|
|
|
$
|
66.19
|
|
|
|
$
|
83.54
|
|
Hemscott Group Index
|
|
|
$
|
100.00
|
|
|
|
$
|
59.82
|
|
|
|
$
|
108.54
|
|
|
|
$
|
85.18
|
|
|
|
$
|
89.57
|
|
|
|
$
|
100.85
|
|
NASDAQ Market Index
|
|
|
$
|
100.00
|
|
|
|
$
|
69.75
|
|
|
|
$
|
104.88
|
|
|
|
$
|
113.70
|
|
|
|
$
|
116.19
|
|
|
|
$
|
128.12
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
19
|
|
Item 6.
|
Selected
Financial Data
|
Selected
Consolidated Financial Data
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Year Ended December 31
|
|
|
|
2006
|
|
|
2005
|
|
|
2004
|
|
|
2003
|
|
|
2002
|
|
|
|
(In thousands, except per share data)
|
|
|
Statement of Operations
Data
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net sales
|
|
$
|
782,801
|
|
|
$
|
509,294
|
|
|
$
|
555,080
|
|
|
$
|
337,291
|
|
|
$
|
314,773
|
|
Gross profit
|
|
|
338,122
|
|
|
|
200,434
|
|
|
|
219,371
|
|
|
|
118,109
|
|
|
|
105,795
|
|
Income (loss) from
operations(1),(2)
|
|
|
122,541
|
|
|
|
40,548
|
|
|
|
59,913
|
|
|
|
(15,717
|
)
|
|
|
(43,047
|
)
|
Net income (loss)(3)
|
|
$
|
94,235
|
|
|
$
|
34,565
|
|
|
$
|
69,839
|
|
|
$
|
(16,385
|
)
|
|
$
|
(39,537
|
)
|
Net income (loss) per share:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Basic
|
|
$
|
1.70
|
|
|
$
|
0.64
|
|
|
$
|
1.30
|
|
|
$
|
(0.32
|
)
|
|
$
|
(0.79
|
)
|
Diluted
|
|
$
|
1.68
|
|
|
$
|
0.63
|
|
|
$
|
1.28
|
|
|
$
|
(0.32
|
)
|
|
$
|
(0.79
|
)
|
Balance Sheet Data
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cash and cash equivalents
|
|
$
|
215,208
|
|
|
$
|
220,573
|
|
|
$
|
138,389
|
|
|
$
|
74,660
|
|
|
$
|
88,820
|
|
Short-term investments
|
|
|
74,749
|
|
|
|
72,046
|
|
|
|
97,511
|
|
|
|
54,518
|
|
|
|
39,894
|
|
Working capital
|
|
|
461,541
|
|
|
|
410,060
|
|
|
|
347,700
|
|
|
|
210,468
|
|
|
|
192,008
|
|
Long-term investments
|
|
|
2,816
|
|
|
|
857
|
|
|
|
4,775
|
|
|
|
13,625
|
|
|
|
15,980
|
|
Total assets
|
|
|
1,043,720
|
|
|
|
863,740
|
|
|
|
828,677
|
|
|
|
692,032
|
|
|
|
685,623
|
|
Short-term obligations
|
|
|
23,021
|
|
|
|
18,886
|
|
|
|
24,509
|
|
|
|
20,196
|
|
|
|
18,472
|
|
Long-term obligations, less
current portion
|
|
|
6,113
|
|
|
|
6,152
|
|
|
|
6,747
|
|
|
|
8,810
|
|
|
|
11,726
|
|
Stockholders equity
|
|
|
901,219
|
|
|
|
762,843
|
|
|
|
726,634
|
|
|
|
608,310
|
|
|
|
610,690
|
|
|
|
|
(1) |
|
Loss from operations for the year ended December 31, 2002
includes restructuring and asset impairment charges of
$2.7 million and purchase of in-process technology of
$8.4 million. |
|
(2) |
|
Income from operations for the year ended December 31, 2006
includes stock-based compensation of $13.1 million as a
result of adopting SFAS 123R in 2006. Income from
operations for the year ended December 31, 2005 includes
income from a litigation settlement of $3.0 million. |
|
(3) |
|
Net income for the year ended December 31, 2006 includes
stock-based compensation of $8.7 million, net of tax. Net
income for the year ended December 31, 2004 includes a gain
from the collection of a note receivable of $5.0 million
which had been written off in 2002. During the years ended
December 31, 2002 and 2003, a valuation allowance against
net deferred tax assets was maintained. Net loss for the years
ended December 31, 2002 and 2003 include tax expense which
is comprised primarily of state and foreign taxes. During 2004,
the valuation allowance was reduced against the net deferred tax
assets and net income for the year ended December 31, 2004
includes a deferred tax benefit of $10.2 million. See
Note 9 of the Notes to the Consolidated Financial
Statements. |
20
|
|
Item 7.
|
Managements
Discussion and Analysis of Financial Condition and Results of
Operations
|
Overview
We are a leading worldwide provider of instruments, components,
subsystems and process control solutions that measure, control,
power, monitor and analyze critical parameters of semiconductor
and other advanced manufacturing processes.
We are managed as one operating segment which is organized
around three product groups: Instruments and Control Systems,
Power and Reactive Gas Products and Vacuum Products. Our
products are derived from our core competencies in pressure
measurement and control, materials delivery, gas and thin-film
composition analysis, electrostatic charge control, control and
information management, power and reactive gas generation and
vacuum technology. Our products are used to manufacture
semiconductors and thin film coatings for diverse markets such
as flat panel displays, optical and magnetic storage media,
architectural glass, solar panels and electro-optical products.
We also provide technologies for other markets, including
medical imaging equipment and the energy generation and
conservation markets.
We have a diverse base of customers that include semiconductor
capital equipment manufacturers, semiconductor device
manufacturers, capital equipment manufacturers of thin-film
coatings used in flat panel displays, optical and magnetic data
storage media, architectural glass, solar panels and
electro-optical products, industrial and manufacturing
companies, medical equipment manufacturers and university,
government and industrial research laboratories. During the
years ended December 31, 2006, 2005 and 2004, we estimate
that approximately 70%, 71% and 74% of our net sales,
respectively, were to semiconductor capital equipment
manufacturers and semiconductor device manufacturers. We expect
that sales to semiconductor capital equipment manufacturers and
semiconductor device manufacturers will continue to account for
a substantial majority of our sales.
During the fourth quarter of 2005 and continuing through the
third quarter of 2006, we experienced significant increases in
customer orders, which caused our sales for all quarters of 2006
to increase significantly from 2005 quarterly levels. We
currently expect that our first quarter 2007 net sales
could be approximately the same as our fourth quarter
2006 net sales. However, the semiconductor capital
equipment industry is subject to rapid demand shifts, which are
difficult to predict, and we are uncertain how long these sales
levels may be maintained or the timing or extent of any future
downturn or upturn in the semiconductor capital equipment
industry.
A significant portion of our net sales is to operations in
international markets. International net sales include sales by
our foreign subsidiaries, but exclude direct export sales.
International net sales accounted for approximately 34%, 37% and
34% of net sales for the years ended December 31, 2006,
2005 and 2004, respectively, a significant portion of which were
sales in Japan. We expect that international net sales will
continue to represent a significant percentage of our total net
sales.
Recent
Acquisitions
On January 3, 2006, we completed our acquisition of Ion
Systems, Inc. (Ion), a leading provider of
electrostatic management solutions located in Alameda,
California, pursuant to an Agreement and Plan of Merger dated
November 25, 2005. Ions ionization technology
monitors electrostatic charges to reduce process contamination
and improve yields, which complements our process monitoring and
control technologies. The aggregate purchase price consisted of
$68.1 million in cash, net of $5.1 million in cash
acquired, and $0.8 million in acquisition related costs.
Additionally, on January 3, 2006, we completed our
acquisition of Umetrics, AB (Umetrics), a leader in
multivariate data analysis and modeling software located in
Umea, Sweden, pursuant to a Sale and Purchase Agreement dated
December 15, 2005. Umetrics multivariate data
analysis and modeling software converts process data into
useable information for yield improvement, when linked with our
open and modular platform of process sensors and data
collection, integration, data storage, and visualization
capabilities. The purchase price consisted of $27.4 million
in cash, net of $2.6 million in cash acquired, and
$0.4 million in acquisition related costs.
On October 11, 2006, we completed our acquisition of Novx
Corp. (Novx), a provider of electrostatic charge
monitoring technology for semiconductor, data storage,
telecommunication, medical device and other markets.
21
Novxs technology expands our capability to monitor, detect
and control electrostatic charge in advanced process
environments, such as semiconductor and hard disk drive
manufacturing. The total purchase price was $2.6 million.
Critical
Accounting Policies and Estimates
Managements Discussion and Analysis of Financial Condition
and Results of Operations discusses our consolidated financial
statements, which have been prepared in accordance with
accounting principles generally accepted in the United States.
The preparation of these financial statements requires
management to make estimates and assumptions that affect the
reported amounts of assets and liabilities and the disclosure of
contingent liabilities at the date of the financial statements
and the reported amounts of revenues and expenses during the
reporting period. On an on-going basis, we evaluate our
estimates and judgments, including those related to revenue
recognition, inventory, warranty costs, stock-based compensation
expense, intangible assets, goodwill and other long-lived
assets, in-process research and development and income taxes. We
base our estimates and judgments on historical experience and on
various other factors that are believed to be reasonable under
the circumstances, the results of which form the basis for
making judgments about the carrying values of assets and
liabilities that are not readily apparent from other sources.
Actual results may differ from these estimates under different
assumptions or conditions.
We believe the following critical accounting policies affect our
more significant judgments and estimates used in the preparation
of our consolidated financial statements:
Revenue recognition and Accounts Receivable
Allowances. Revenue from product sales is
recorded upon transfer of title and risk of loss to the customer
provided that there is evidence of an arrangement, the sales
price is fixed or determinable, and collection of the related
receivable is reasonably assured. In most transactions, we have
no obligations to our customers after the date products are
shipped other than pursuant to warranty obligations. In some
instances, we provide installation, training, support and
services to customers after the product has been shipped. We
defer the fair value of any undelivered elements until the
undelivered element is delivered. Fair value is the price
charged when the element is sold separately. Shipping and
handling fees billed to customers, if any, are recognized as
revenue. The related shipping and handling costs are recognized
in cost of sales.
We monitor and track the amount of product returns, provide for
accounts receivable allowances and reduce revenue at the time of
shipment for the estimated amount of such future returns, based
on historical experience. While product returns have
historically been within our expectations and the provisions
established, there is no assurance that we will continue to
experience the same return rates that we have in the past. Any
significant increase in product return rates could have a
material adverse impact on our operating results for the period
or periods in which such returns materialize. While we maintain
a credit approval process, significant judgments are made by
management in connection with assessing our customers
ability to pay at the time of shipment. Despite this assessment,
from time to time, our customers are unable to meet their
payment obligations. We continuously monitor our customers
credit worthiness, and use our judgment in establishing a
provision for estimated credit losses based upon our historical
experience and any specific customer collection issues that we
have identified. While such credit losses have historically been
within our expectations and the provisions established, there is
no assurance that we will continue to experience the same credit
loss rates that we have in the past. A significant change in the
liquidity or financial position of our customers could have a
material adverse impact on the collectability of accounts
receivable and our future operating results.
Inventory. We value our inventory at the lower
of cost
(first-in,
first-out method) or market. We regularly review inventory
quantities on hand and record a provision to write down excess
and obsolete inventory to our estimated net realizable value, if
less than cost, based primarily on our estimated forecast of
product demand. Demand for our products can fluctuate
significantly. A significant increase in the demand for our
products could result in a short-term increase in the cost of
inventory purchases as a result of supply shortages or a
decrease in the cost of inventory purchases as a result of
volume discounts, while a significant decrease in demand could
result in an increase in the charges for excess inventory
quantities on hand. In addition, our industry is subject to
technological change, new product development and product
technological obsolescence that could result in an increase in
the amount of obsolete inventory quantities on hand. Therefore,
any significant unanticipated changes in demand or
22
technological developments could have a significant impact on
the value of our inventory and our reported operating results.
Warranty costs. We provide for the estimated
costs to fulfill customer warranty obligations upon the
recognition of the related revenue. We provide warranty coverage
for our products ranging from 12 to 36 months, with the
majority of our products ranging from 12 to 24 months. We
estimate the anticipated costs of repairing our products under
such warranties based on the historical costs of the repairs and
any known specific product issues. The assumptions we use to
estimate warranty accruals are reevaluated periodically in light
of actual experience and, when appropriate, the accruals are
adjusted. Our determination of the appropriate level of warranty
accrual is based upon estimates. Should product failure rates
differ from our estimates, actual costs could vary significantly
from our expectations.
Stock-Based Compensation Expense. Effective
January 1, 2006, we adopted the fair value recognition
provisions of SFAS 123R, using the modified prospective
transition method, and therefore have not restated prior
periods results. Under this method we recognize
compensation expense for all equity-based awards granted after
January 1, 2006 as well as awards granted prior to but not
yet vested as of January 1, 2006, in accordance with
SFAS 123R. Under the fair value recognition provisions of
SFAS 123R, we recognize stock-based compensation net of an
estimated forfeiture rate and only recognize compensation cost
for those shares expected to vest on a straight-line basis over
the requisite service period of the award. The adoption of this
standard reduced our net income by $8.7 million, for the
year ended December 31, 2006. Prior to SFAS 123R
adoption, we accounted for share-based payments under Accounting
Principles Board Opinion No. 25, Accounting for Stock
Issued to Employees (APB 25) and
accordingly, generally recognized compensation expense only when
we granted options with a discounted exercise price.
Determining the appropriate fair value model and calculating the
fair value of share-based payment awards require the input of
highly subjective assumptions, including the expected life of
the share-based payment awards and stock price volatility.
Management determined that blended volatility, a combination of
historical and implied volatility, is more reflective of market
conditions and a better indicator of expected volatility than
historical or implied volatility. Therefore, expected volatility
for the year ended December 31, 2006 was based on a blended
volatility. The assumptions used in calculating the fair value
of share-based payment awards represent managements best
estimates, but these estimates involve inherent uncertainties
and the application of management judgment. As a result, if
factors change and we use different assumptions, our stock-based
compensation expense could be materially different in the
future. In addition, we are required to estimate the expected
forfeiture rate and only recognize expense for those shares
expected to vest. If our actual forfeiture rate is materially
different from our estimate, the stock-based compensation
expense could be significantly different from what we have
recorded in the current period. See Note 2 to the
consolidated financial statements for a further discussion on
stock-based compensation.
Intangible assets, goodwill and other long-lived
assets. We review intangible assets and other
long-lived assets for impairment whenever events or changes in
circumstances indicate that the carrying amount of these assets
may not be recoverable. Factors we consider important, which
could indicate an impairment, include significant under
performance relative to expected historical or projected future
operating results, significant changes in the manner of our use
of the asset or the strategy for our overall business and
significant and negative industry or economic trends. When we
determine that the carrying value of the asset may not be
recoverable based upon the existence of one or more of the above
indicators of impairment, we compare the undiscounted cash flows
to the carrying value of the asset. If an impairment is possible
and indicated, the asset is written down to its estimated fair
value. Intangible assets, such as purchased technology, are
generally recorded in connection with a business acquisition.
The fair value initially assigned to intangible assets is
determined based on estimates and judgment regarding
expectations for the success and life cycle of products and
technology acquired. If actual product acceptance differs
significantly from the estimates, we may be required to record
an impairment charge to write down the asset to its estimated
fair value.
We assess goodwill for impairment at least annually, or more
frequently when events and circumstances occur indicating that
the recorded goodwill at the reporting unit level may be
impaired. Reporting units are defined as operating segments or
one level below an operating segment, referred to as a
component. We have determined that
23
our reporting units are components of our one operating segment.
We allocate goodwill to reporting units at the time of
acquisition and base that allocation on which reporting units
will benefit from the acquired assets and liabilities. If the
book value of a reporting unit exceeds its fair value, the
implied fair value of goodwill is compared with the carrying
amount of goodwill. If the carrying amount of goodwill exceeds
the implied fair value, an impairment loss is recorded in an
amount equal to that excess. The fair value of a reporting unit
is estimated using the discounted cash flow approach, and is
dependent on estimates and judgments related to future cash
flows and discount rates. If actual cash flows differ
significantly from the estimates used by management, we may be
required to record an impairment charge to write down the
goodwill to its estimated fair value.
In-process research and development. We value
tangible and intangible assets acquired through our business
acquisitions, including in-process research and development
(IPR&D), at fair value. We determine IPR&D
through established valuation techniques for various projects
for the development of new products and technologies and expense
IPR&D when technical feasibility is not reached. The value
of IPR&D is determined using the income approach, which
discounts expected future cash flows from projects under
development to their net present value. Each project is analyzed
and estimates and judgments are made to determine the
technological innovations included, the utilization of core
technology, the complexity, cost and time to complete
development, any alternative future use or current technological
feasibility and the stage of completion. If we acquire other
companies with IPR&D in the future, we will value the
IPR&D through established valuation techniques and will
incur future IPR&D charges if those products under
development have not reached technical feasibility.
Income taxes. We evaluate the realizability of
our net deferred tax assets and assess the need for a valuation
allowance on a quarterly basis. The future benefit to be derived
from our deferred tax assets is dependent upon our ability to
generate sufficient future taxable income to realize the assets.
We record a valuation allowance to reduce our net deferred tax
assets to the amount that may be more likely than not to be
realized. To the extent we established a valuation allowance, an
expense is recorded within the provision for income taxes line
in the statement of operations. During the year ended
December 31, 2002, we established a full valuation
allowance for our net deferred tax assets. During the fourth
quarter of 2004, after examining a number of factors, including
historical results and near term earnings projections, we
determined that it was more likely than not that we would
realize all of our net deferred tax assets, except for those
relating to certain state tax credits. An adjustment to the
valuation allowance was recorded as a reduction to income tax
expense. During the fourth quarter of 2006, the Company
determined that it would begin utilizing the aforementioned
state tax credits and reduced the valuation allowance to reflect
the amount of the near term state tax credits to be utilized.
The remaining valuation allowance at December 31, 2006 is
$0.3 million, relating to the remaining state tax credits
acquired with the purchase of Ion. In future periods, if we were
to determine that it was more likely than not that we would not
be able to realize the recorded amount of our remaining net
deferred tax assets, an adjustment to the valuation allowance
would be recorded as an increase to income tax expense in the
period such determination was made.
24
Results
of Operations
The following table sets forth, for the periods indicated, the
percentage of total net sales of certain line items included in
our consolidated statement of operations data:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Year Ended December 31
|
|
|
|
2006
|
|
|
2005
|
|
|
2004
|
|
|
Net sales
|
|
|
100.0
|
%
|
|
|
100.0
|
%
|
|
|
100.0
|
%
|
Cost of sales
|
|
|
56.8
|
|
|
|
60.6
|
|
|
|
60.5
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Gross profit
|
|
|
43.2
|
|
|
|
39.4
|
|
|
|
39.5
|
|
Research and development
|
|
|
8.9
|
|
|
|
11.0
|
|
|
|
10.3
|
|
Selling, general and administrative
|
|
|
16.3
|
|
|
|
18.3
|
|
|
|
15.7
|
|
Amortization of acquired
intangible assets
|
|
|
2.2
|
|
|
|
2.7
|
|
|
|
2.6
|
|
Purchase of in-process technology
|
|
|
0.1
|
|
|
|
|
|
|
|
|
|
Restructuring and asset impairment
charges
|
|
|
|
|
|
|
0.0
|
|
|
|
0.1
|
|
Income from litigation settlement
|
|
|
|
|
|
|
0.6
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Income from operations
|
|
|
15.7
|
|
|
|
8.0
|
|
|
|
10.8
|
|
Interest income, net
|
|
|
1.0
|
|
|
|
1.2
|
|
|
|
0.3
|
|
Other income, net
|
|
|
|
|
|
|
|
|
|
|
1.0
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Income before income taxes
|
|
|
16.7
|
|
|
|
9.2
|
|
|
|
12.1
|
|
Provision (benefit) for income
taxes
|
|
|
4.7
|
|
|
|
2.4
|
|
|
|
(0.5
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net income
|
|
|
12.0
|
%
|
|
|
6.8
|
%
|
|
|
12.6
|
%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Year
Ended 2006 Compared to 2005 and 2004
Net
Sales
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Year Ended December 31,
|
|
|
% Change
|
|
|
% Change
|
|
|
|
2006
|
|
|
2005
|
|
|
2004
|
|
|
in 2006
|
|
|
in 2005
|
|
|
Net sales
|
|
$
|
782.8
|
|
|
$
|
509.3
|
|
|
$
|
555.1
|
|
|
|
53.7
|
|
|
|
(8.2
|
)
|
Net sales increased $273.5 million during the year ended
December 31, 2006 mainly due to an increase in worldwide
demand from our semiconductor capital equipment manufacturer and
semiconductor device manufacturer customers, which increased
$188.6 million or 52.3% compared to the same period for the
prior year. Additionally, net sales for thin-film and other
non-semiconductor manufacturing applications increased
$84.9 million or 57.1% compared to the same period for the
prior year. During 2006, we acquired three companies. These
acquisitions increased our total net sales by approximately
$38.5 million for the year ended December 31, 2006
compared to the same period for the prior year. International
net sales were $266.9 million for the year ended
December 31, 2006 or 34.1% of net sales compared to
$188.5 million for the same period of 2005 or 37.0% of net
sales.
Net sales decreased $45.8 million during the year ended
December 31, 2005 mainly due to a decrease in worldwide
demand from our semiconductor capital equipment manufacturer
customers, which decreased $58.8 million or 16.1% compared
to the same period for the prior year. Primarily offsetting this
decrease was a net sales increase of $9.4 million or 9.5%
for other non-semiconductor manufacturing applications and a net
sales increase of $6.3 million or 12.9% for semiconductor
device manufacturer customers compared to the same period for
the prior year. International net sales were approximately
$188.5 million for the year ended December 31, 2005 or
37.0% of net sales compared to $187.8 million for the same
period of 2004 or 33.8% of net sales.
25
Gross
Profit
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Year Ended December 31,
|
|
|
% Points Change in
|
|
|
% Points Change in
|
|
|
|
2006
|
|
|
2005
|
|
|
2004
|
|
|
2006
|
|
|
2005
|
|
|
Gross profit as a percentage of
sales
|
|
|
43.2
|
%
|
|
|
39.4
|
%
|
|
|
39.5
|
%
|
|
|
3.8
|
|
|
|
(0.1
|
)
|
Gross profit increased during year ended December 31, 2006
mainly due to higher production volumes which reduced overhead
costs as a percentage of sales by 3.0 percentage points. In
addition, the positive impact of gross profit margins from our
three acquisitions in 2006, favorable product mix and other
reduced manufacturing costs increased our overall margin by
approximately 0.8 percentage points during the year ended
December 31, 2006.
Gross profit as a percentage of net sales decreased slightly
during the year ended December 31, 2005 compared to the
same period in 2004 mainly due to overhead costs representing a
higher percentage of lower sales, partially offset by lower
material and labor costs as a percentage of sales, which
reflected the net effect of a gradual transition to lower cost
material and manufacturing sources.
Research
and Development
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Year Ended December 31,
|
|
|
% Change
|
|
|
% Change
|
|
|
|
2006
|
|
|
2005
|
|
|
2004
|
|
|
in 2006
|
|
|
in 2005
|
|
|
Research and development expenses
|
|
$
|
69.7
|
|
|
$
|
55.9
|
|
|
$
|
57.0
|
|
|
|
24.7
|
|
|
|
(1.9
|
)
|
Our research and development is primarily focused on developing
and improving our instruments, components, subsystems and
process control solutions to improve process performance and
productivity.
We have hundreds of products and our research and development
efforts primarily consist of a large number of projects related
to these products, none of which is individually material to us.
Current projects typically have a duration of 12 to
30 months depending upon whether the product is an
enhancement of existing technology or a new product. Our current
initiatives include projects to enhance the performance
characteristics of older products, to develop new products and
to integrate various technologies into subsystems. These
projects support in large part the transition in the
semiconductor industry to larger wafer sizes and smaller
integrated circuit geometries, which require more advanced
process control technology. Research and development expenses
consist primarily of salaries and related expenses for personnel
engaged in research and development, fees paid to consultants,
material costs for prototypes and other expenses related to the
design, development, testing and enhancement of our products.
Research and development expense increased $13.8 million
during the year ended December 31, 2006 mainly due to
expenses of $5.4 million from the companies acquired in
2006, $4.9 million in increased compensation, resulting
from increased incentive compensation, headcount and salaries,
and $3.3 million in stock-based compensation expenses
recorded during the current year.
Research and development expenses decreased $1.1 million
for the year ended December 31, 2005 compared to the same
period for 2004 primarily due to lower project material and
other related costs. Staffing levels during 2005 were consistent
with staffing levels during 2004.
We believe that the continued investment in research and
development and ongoing development of new products are
essential to the expansion of our markets, and expect to
continue to make significant investment in research and
development activities. We are subject to risks if products are
not developed in a timely manner, due to rapidly changing
customer requirements and competitive threats from other
companies and technologies. Our success primarily depends on our
products being designed into new generations of equipment for
the semiconductor industry. We develop products that are
technologically advanced so that they are positioned to be
chosen for use in each successive generation of semiconductor
capital equipment. If our products are not chosen to be designed
into our customers products, our net sales may be reduced
during the lifespan of those products.
26
Selling,
General and Administrative
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Year Ended December 31,
|
|
|
% Change
|
|
|
% Change
|
|
|
|
2006
|
|
|
2005
|
|
|
2004
|
|
|
in 2006
|
|
|
in 2005
|
|
|
Selling, general and
administrative expenses
|
|
$
|
127.7
|
|
|
$
|
93.0
|
|
|
$
|
87.3
|
|
|
|
37.3
|
|
|
|
6.6
|
|
Selling, general and administrative expenses increased
$34.7 million during the year ended December 31, 2006
primarily due to expenses of $15.8 million from the
companies acquired in 2006, $11.3 million in increased
compensation, resulting from increased incentive compensation,
headcount and salaries, $7.6 million in stock-based
compensation expenses recorded during the current year and
higher costs of $2.1 million for our ERP implementation,
offset by $2.6 million in foreign currency exchange gains
as compared to the same period in the prior year.
Selling, general and administrative expenses increased
$5.7 million during the year ended December 31, 2005
compared to the same period for the prior year mainly due to
higher costs of $3.9 million primarily for IT related
services and for our ERP implementation, increased foreign
currency losses of $1.5 million, higher professional fees
of $2.2 million principally related to higher audit costs
and fees for compliance with the Sarbanes Oxley Act of 2002
(Sarbanes Oxley), partially offset by decreased
legal fees of $2.6 million mainly related to litigation
which had been subsequently resolved.
Amortization
of Acquired Intangible Assets
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Year Ended December 31,
|
|
|
% Change
|
|
|
% Change
|
|
|
|
2006
|
|
|
2005
|
|
|
2004
|
|
|
in 2006
|
|
|
in 2005
|
|
|
Amortization of acquired
intangible assets
|
|
$
|
17.4
|
|
|
$
|
13.9
|
|
|
$
|
14.8
|
|
|
|
25.3
|
|
|
|
(6.1
|
)
|
Amortization expense for the year ended December 31, 2006
increased $3.5 million primarily due to the amortization
related to $33.6 million in acquired intangible assets from
the acquisitions in 2006, which included a $1.0 million
order backlog intangible asset, which was amortized over
3 months during the first quarter of 2006.
Amortization expense for the years ended December 31, 2005
and 2004, respectively, represents amortization of identifiable
intangible assets resulting from our completed acquisitions. The
decrease during the year ended December 31, 2005 compared
to the same period for the prior year was due to certain
identifiable intangible assets becoming fully amortized during
2005. We did not acquire any material identifiable intangible
assets in 2005 or 2004.
Purchase
of in-process technology
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Year Ended December 31,
|
|
|
|
2006
|
|
|
2005
|
|
|
2004
|
|
|
Purchase of in-process technology
|
|
$
|
0.8
|
|
|
|
|
|
|
|
|
|
In-process research and development of $0.8 million for the
year ended December 31, 2006 arose from the acquisitions of
Ion and Umetrics, which we made during 2006. The purchase price
of these acquisitions was allocated to the assets acquired,
including intangible assets, based on estimated fair values. The
intangible assets included approximately $0.8 million for
acquired in-process technology for projects, generally expected
to have durations of 12 months, which did not have
alternative future uses. Accordingly, these costs were expensed
during 2006.
Income
from Litigation Settlement
During the fourth quarter of 2005, we executed a settlement
agreement with Advanced Energy Industries, Inc. (Advanced
Energy) in connection with the patent infringement suit we
had brought against Advanced Energy in federal district court in
Delaware. Pursuant to the settlement agreement, Advanced Energy
paid us $3.0 million in cash in October 2005.
27
Interest
Income, Net
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Year Ended December 31,
|
|
|
% Change
|
|
|
% Change
|
|
|
|
2006
|
|
|
2005
|
|
|
2004
|
|
|
in 2006
|
|
|
in 2005
|
|
|
Interest income, net
|
|
$
|
8.4
|
|
|
$
|
6.5
|
|
|
$
|
1.9
|
|
|
|
30.1
|
|
|
|
237.6
|
|
Net interest income increased $1.9 million during the year
ended December 31, 2006 mainly related to higher interest
rates in 2006.
Net interest income increased $4.5 million during the year
ended December 31, 2005 compared to the same period for the
prior year, mainly related to higher interest rates on higher
average investment balances in those periods.
Other
Income, Net
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Year Ended December 31,
|
|
|
|
2006
|
|
|
2005
|
|
|
2004
|
|
|
Other income, net
|
|
|
|
|
|
|
|
|
|
$
|
5.4
|
|
During 2001, we sold certain assets for proceeds of
approximately $9.0 million, including a note receivable of
approximately $3.9 million and warrants of
$0.2 million. During 2002, due to the downturn in the
semiconductor industry and its result on the acquirers
operations, and the acquirers inability to raise
financing, we considered the value of the note and warrants to
be impaired. Accordingly, during 2002, we recorded a charge of
$4.1 million to other expense for our estimate of the
impairment on the note receivable and warrants. During the
second quarter of 2004, we received $5.0 million and
recorded a gain to other income related to the collection of the
note receivable and accrued interest and the cancellation of the
warrants.
Provision
(Benefit) for Income Taxes
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Year Ended December 31,
|
|
|
|
2006
|
|
|
2005
|
|
|
2004
|
|
|
Provision (benefit) for income
taxes
|
|
$
|
36.7
|
|
|
$
|
12.4
|
|
|
$
|
(2.6
|
)
|
We recorded a provision for income taxes of $36.7 million
for the year ended December 31, 2006 and $12.4 million
for the year ended December 31, 2005, as compared to a tax
benefit of $2.6 million for the year ended
December 31, 2004. The provision for income taxes in 2006
and 2005 are comprised of federal, state and foreign income
taxes. The benefit for income taxes in 2004 is comprised of tax
expense from foreign operations and state taxes, offset by a
deferred tax benefit of approximately $10.2 million.
As a result of incurring significant operating losses since
2001, during 2002 we determined that it was more likely than not
that our deferred tax assets may not have been realizable, and
since the fourth quarter of 2002 had established a full
valuation allowance for our net deferred tax assets. During the
fourth quarter of 2004, after examining a number of factors,
including historical results and near term earnings projections,
we determined that it was more likely than not that we would
realize all of our net deferred tax assets, except for those
related to certain state tax credits. An adjustment was made to
reduce the valuation allowance to reflect the amount of the
realizable net deferred tax assets at December 31, 2004.
During the fourth quarter of 2006 the Company determined that it
would begin utilizing the aforementioned state tax credits and
reduced the valuation allowance to reflect the amount of the
near term state tax credits to be utilized. The remaining
valuation allowance at December 31, 2006 is
$0.3 million, relating to the state tax credits acquired
with the purchase of Ion.
Our effective tax rate for the years ended December 31,
2006, 2005 and 2004 was 28.0%, 26.5% and (3.9)%, respectively.
The effective tax rate for 2006 is less than the statutory tax
rate primarily due to certain discrete tax matters related to
our international operations, the benefit from the federal
research and development credits, the reduction in the valuation
allowance for state tax credits and the profits of our
international subsidiaries being taxed at rates lower than the
U.S. statutory tax rate.
28
The effective tax rate in 2005 is less than the statutory tax
rate primarily due to a tax benefit recorded as the result of
the completion of the Internal Revenue Service (IRS)
examination (see below), the benefit from U.S. research and
development credits and the profits of our international
subsidiaries being taxed at rates lower than the
U.S. statutory tax rate.
During 2005, the IRS completed its examination of our federal
tax returns for the tax years 1999 through 2002. As a result of
this examination, during the year ended December 31, 2005,
we recorded a benefit to income tax expense of $1.9 million
and a $0.6 million reduction of goodwill related to a
previous acquisition.
In the normal course of business, the Company and our
subsidiaries are examined by various tax authorities, including
the IRS. Any such examination could result in an unfavorable
settlement of any particular issue and may require the use of
cash. Unfavorable or favorable resolution of any such
examination could result in an increase or a reduction,
respectively, to our effective tax rate in the quarter of
resolution. Although the Company believes that its tax positions
are consistent with applicable U.S. federal and state and
international laws, certain tax reserves are maintained at
December 31, 2006 should these positions be challenged by
the applicable tax authority and additional tax assessed on
audit.
During the year ended December 31, 2006, we received a
notification letter from the Israeli Ministry of Industry Trade
and Labor (MITL) indicating that our Israeli
operations were in compliance with requirements relating to the
tax holiday granted to our manufacturing operations in Israel in
2001. This tax holiday is anticipated to expire in 2011 and is
subject to meeting continued investment, employment and other
requirements under the guidelines of the MITL. Additionally, we
recorded the impact of both a change in German tax rules
allowing interest deductions on certain loans and an adjustment
relating to transfer pricing. As a result of these items we
recorded a net benefit to income tax expense of
$1.6 million for the year ended December 31, 2006.
Liquidity
and Capital Resources
Cash, cash equivalents and short-term marketable securities
totaled $290.0 million at December 31, 2006 compared
to $292.6 million at December 31, 2005. This increase
is mainly due to an increase of $78.2 million of cash
generated from operations and $30.5 million of cash
provided by financing activities primarily offset by
$98.7 million of cash used for the acquisitions of business
in 2006. The primary driver in our current and anticipated
future cash flows is and will continue to be cash generated from
operations, consisting mainly of our net income and changes in
operating assets and liabilities. In periods when our sales are
growing, higher sales to customers will result in increased
trade receivables, and inventories will generally increase as we
build products for future sales. This may result in lower cash
generated from operations. Conversely, in periods when our sales
are declining, our trade accounts receivable and inventory
balances will generally decrease, resulting in increased cash
from operations.
Net cash provided by operating activities of $78.2 million
for the year ended December 31, 2006, resulted mainly from
net income of $94.2 million, a $27.7 million increase
in operating liabilities and non-cash charges of
$31.3 million for depreciation and amortization and
$13.1 million for stock-based compensation, offset by an
increase in net operating assets of $77.4 million and a
deferred tax benefit of $11.5 million. The
$27.7 million net increase in operating liabilities is
mainly caused by an increase of $15.4 million in accrued
expenses and other current liabilities primarily as a result of
higher accrued compensation and warranty costs, an increase of
$6.5 million in taxes payable as a result of higher net
income and an increase of $5.7 million in accounts payable
primarily as a result of inventory procurement activities. The
$13.1 million for stock-based compensation resulted from
the adoption of FAS 123R as of January 1, 2006. The
$77.4 million increase in operating assets consisted
primarily of a $33.6 million increase in accounts
receivable as a result of higher revenue and a
$46.0 million increase in inventory as a result of
increased product demand. Net cash provided by operating
activities of $64.2 million for the year ended
December 31, 2005, resulted mainly from net income of
$34.6 million, non-cash charges of $26.2 million for
depreciation and amortization and an increase in operating
liabilities of $7.7 million, offset by an increase in
operating assets of $6.2 million. The increase in operating
liabilities is primarily the result of a $6.4 million
increase in accounts payable and a $1.4 million increase in
taxes payable. The increase in operating assets is primarily the
result of a $4.7 million increase in accounts receivable
and a $1.8 million increase in
29
inventories as a result of increased production volumes in late
2005 to support higher revenues expected in the first quarter of
2006.
Net cash used in investing activities of $114.3 million for
the year ended December 31, 2006, resulted primarily from
the purchase of three technology companies for
$98.7 million, purchases of property, plant and equipment
of $10.7 million and net purchases of $4.6 million of
available for sale investments. Net cash provided by investing
activities of $20.0 million for the year ended
December 31, 2005 resulted primarily from the net
maturities and sales of $29.2 million of available for sale
investments offset by the purchase of property, plant and
equipment of $10.3 million for investments in manufacturing
equipment and for the consolidation of our IT infrastructure.
Net cash provided by financing activities of $30.5 million
for the year ended December 31, 2006, consisted primarily
of $23.3 million in proceeds from the exercise of stock
options and purchases under our employee stock purchase plan and
$5.2 million in net proceeds from short-term borrowings.
Net cash provided by financing activities of $0.9 million
for the year ended December 31, 2005 consisted primarily of
$6.1 million in proceeds from the exercise of stock options
and purchases under our employee stock purchase plan, partially
offset by $2.0 million in principal payments on long-term
debt and net payments of $2.7 million on short-term
borrowings.
On August 1, 2006, we renewed an unsecured short-term LIBOR
based loan agreement with a bank to be utilized primarily by our
Japanese subsidiary for short-term liquidity purposes. The
credit line, which expires on July 31, 2007, provides for
us to borrow in multiple currencies of up to an equivalent of
$35.0 million U.S. dollars. At December 31, 2006,
we had outstanding borrowings of $16.8 million
U.S. dollars, payable on demand, at an interest rate of
1.45%, with $18.2 million available for future borrowings.
Our Japanese subsidiary also has credit lines and short-term
borrowing arrangements with a financial institution, which
provide for aggregate borrowings as of December 31, 2006 of
up to $12.6 million, which generally expire and are renewed
in three month intervals. At December 31, 2006, total
borrowings outstanding under these arrangements was
$5.0 million, at an interest rate of 1.5%, with
$7.6 million available for future borrowings.
We have provided financial guarantees for certain unsecured
borrowings and have standby letters of credit, some of which do
not have fixed expiration dates. At December 31, 2006, our
maximum exposure as a result of these standby letters of credit
and performance bonds was approximately $0.9 million.
Future payments due under debt, lease and purchase commitment
obligations as of December 31, 2006 (in thousands) are as
follows:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Payment Due by Period
|
|
|
|
|
|
|
Less than
|
|
|
|
|
|
|
|
|
|
|
Contractual Obligations
|
|
Total
|
|
|
1 Year
|
|
|
1-3 Years
|
|
|
3-5 Years
|
|
|
After 5 Years
|
|
|
Debt Obligations
|
|
$
|
26,845
|
|
|
$
|
21,845
|
|
|
$
|
|
|
|
$
|
|
|
|
$
|
5,000
|
|
Interest on Debt
|
|
|
1,943
|
|
|
|
410
|
|
|
|
438
|
|
|
|
438
|
|
|
|
657
|
|
Operating Lease Obligations
|
|
|
31,322
|
|
|
|
7,405
|
|
|
|
10,404
|
|
|
|
6,436
|
|
|
|
7,077
|
|
Purchase Obligations(1)
|
|
|
130,150
|
|
|
|
113,600
|
|
|
|
12,539
|
|
|
|
4,011
|
|
|
|
|
|
Capital Leases
|
|
|
2,289
|
|
|
|
1,176
|
|
|
|
1,113
|
|
|
|
|
|
|
|
|
|
Interest in Capital Leases
|
|
|
323
|
|
|
|
256
|
|
|
|
67
|
|
|
|
|
|
|
|
|
|
Other Long-Term Liabilities
Reflected on the Registrants
Balance Sheet under GAAP
|
|
|
4,956
|
|
|
|
|
|
|
|
227
|
|
|
|
63
|
|
|
|
4,666
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total
|
|
$
|
197,828
|
|
|
$
|
144,692
|
|
|
$
|
24,788
|
|
|
$
|
10,948
|
|
|
$
|
17,400
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(1) |
|
The majority of the outstanding inventory purchase commitments
of approximately $98.2 million at December 31, 2006
are to be purchased within the next 12 months.
Additionally, approximately $22.7 million represents a
commitment, as of December 31, 2006, to a third party
engaged to provide certain computer equipment, IT network
services and IT support. This contract is for a period of
approximately six years that began in September 2004 and has a
significant penalty for early termination. The actual timing of
payments and |
30
|
|
|
|
|
amounts may vary based on equipment deployment dates. However,
the amount noted represents our expected obligation based on
anticipated deployment. |
We believe that our working capital, together with the cash
anticipated to be generated from operations, will be sufficient
to satisfy our estimated working capital and planned capital
expenditure requirements through at least the next
12 months.
On February 12, 2007, our Board of Directors approved a
share repurchase program (the Program) for the
repurchase of up to $300 million of our outstanding stock
over the next two years. The repurchases may be made from time
to time on the open market or through privately negotiated
transactions. The timing and amount of any shares repurchased
under the Program will depend on a variety of factors, including
price, corporate and regulatory requirements, capital
availability, and other market conditions. The Program may be
discontinued at any time at our discretion and the discretion of
our Board of Directors.
To the extent permitted by Massachusetts law, our Restated
Articles of Organization, as amended, require us to indemnify
any of our current or former officers or directors or any person
who has served or is serving in any capacity with respect to any
of our employee benefit plans. Because no claim for
indemnification has been pursued by any person covered by the
relevant provisions of our Restated Articles of Organization, we
believe that the estimated exposure for these indemnification
obligations is currently minimal. Accordingly, we have no
liabilities recorded for these requirements as of
December 31, 2006.
We also enter into agreements in the ordinary course of business
which include indemnification provisions. Pursuant to these
agreements, we indemnify, hold harmless and agree to reimburse
the indemnified party, generally our customers, for losses
suffered or incurred by the indemnified party in connection with
certain patent or other intellectual property infringement
claims, and, in some instances, other claims, by any third party
with respect to our products. The terms of these indemnification
obligations are generally perpetual after execution of the
agreements. The maximum potential amount of future payments we
could be required to make under these indemnification agreements
is, in some instances, not contractually limited. We have never
incurred costs to defend lawsuits or settle claims related to
these indemnification obligations. As a result, we believe the
estimated fair value of these obligations is minimal.
Accordingly, we have no liabilities recorded for these
obligations as of December 31, 2006.
When, as part of an acquisition, we acquire all of the stock or
all of the assets and liabilities of another company, we assume
liability for certain events or occurrences that took place
prior to the date of acquisition. The maximum potential amount
of future payments we could be required to make for such
obligations is undeterminable at this time. Other than
obligations recorded as liabilities at the time of the
acquisitions, historically we have not made significant payments
for these indemnifications. Accordingly, no liabilities have
been recorded for these obligations.
In conjunction with certain asset sales, we may provide routine
indemnifications whose terms range in duration and often are not
explicitly defined. Where appropriate, an obligation for such
indemnifications is recorded as a liability. Because the amounts
of liability under these types of indemnifications are not
explicitly stated, the overall maximum amount of the obligation
under such indemnifications cannot be reasonably estimated.
Other than obligations recorded as liabilities at the time of
the asset sale, historically we have not made significant
payments for these indemnifications.
Derivatives
We conduct our operations globally. Consequently, the results of
our operations are exposed to movements in foreign currency
exchange rates. We hedge a portion of our forecasted foreign
currency denominated intercompany sales of inventory, over a
maximum period of 15 months, using forward foreign exchange
contracts (forward exchange contracts) primarily
related to Japanese and European currencies. These derivatives
are designated as cash-flow hedges, and changes in their fair
value are carried in accumulated other comprehensive income in
our consolidated statements of stockholders equity until
the hedged transaction affects earnings. When the hedged
transaction affects earnings, the appropriate gain or loss from
the derivative designated as a hedge of the transaction is
reclassified from accumulated other comprehensive income to cost
of sales in the consolidated statements of operations. As of
December 31, 2006, the amount that will be reclassified
from accumulated other comprehensive income to cost of sales
over the next twelve months is an unrealized gain of
$0.6 million, net of taxes. The ineffective portions of the
derivatives are recorded in cost of sales and were $0 in 2006,
2005 and 2004, respectively.
31
We also hedge certain intercompany and other payables with
forward exchange contracts. Typically, as these derivatives
hedge existing amounts that are denominated in foreign
currencies, the derivatives do not qualify for hedge accounting.
The foreign exchange gain or loss on these derivatives was
immaterial in 2006, 2005 and 2004.
Realized and unrealized gains and losses on forward exchange
contracts that do not qualify for hedge accounting are
recognized immediately in earnings. The cash flows resulting
from forward exchange contracts that qualify for hedge
accounting are classified in our consolidated statements of cash
flows as part of cash flows from operating activities. Cash
flows resulting from forward exchange contracts that do not
qualify for hedge accounting are classified in our statements of
cash flows as investing activities. We do not hold or issue
derivative financial instruments for trading purposes.
We had forward exchange contracts with notional amounts totaling
$20.3 million outstanding at December 31, 2006, of
which, $14.6 million were outstanding to exchange Japanese
yen for U.S. dollars. We had forward exchange contracts
with notional amounts totaling $35.3 million outstanding at
December 31, 2005, of which, $28.5 million were
outstanding to exchange Japanese yen for U.S. dollars. We
had forward exchange contracts with notional amounts totaling
$26.3 million outstanding at December 31, 2004 of
which $21.6 million were outstanding to exchange Japanese
yen for U.S. dollars.
Gains and losses on forward exchange contracts that qualify for
hedge accounting are classified in cost of goods sold and
totaled a gain of $1.9 million and $0.8 million for
the years ended December 31, 2006 and 2005, respectively,
and a loss of $1.7 million and for the year ended
December 31, 2004.
Off-Balance
Sheet Arrangements
We do not have any financial partnerships with unconsolidated
entities, such as entities often referred to as structured
finance, special purpose entities or variable interest entities
which are often established for the purpose of facilitating
off-balance sheet arrangements or other contractually narrow or
limited purposes. Accordingly, we are not exposed to any
financing, liquidity, market or credit risk that could arise if
we had such relationships.
Recently
Issued Accounting Pronouncements
In June 2006, the Financial Accounting Standards Board issued
Interpretation No. 48, Accounting for Uncertainty in Income
Taxes, an interpretation of FAS 109, Accounting for Income
Taxes (FIN 48), to create a single model to address
uncertainty in tax positions. FIN 48 clarifies the
accounting for income taxes by prescribing a minimum recognition
threshold a tax position is required to meet before being
recognized for financial statements. FIN 48 also provides
guidance on derecognition, measurement, classification, interest
and penalties, accounting for interim periods, disclosure and
transition. FIN 48 is effective for fiscal years beginning
after December 15, 2006. We will adopt FIN 48 as of
January 1, 2007 as required. The cumulative effect, if any,
of adopting FIN 48 will be recorded in retained earnings.
Although our assessment of the impact of FIN 48 is not yet
complete, we expect that its adoption will not have a material
impact on our financial statements.
In September 2006, the SEC issued Staff Accounting
Bulletin No. 108, Considering the Effects of
Prior Year Misstatements when quantifying Misstatements in
Current Year Financial Statements
(SAB 108). SAB 108 requires companies to
evaluate the materiality of identified unadjusted errors on each
financial statement and related financial statement disclosure
using both the rollover approach and the iron curtain approach.
The rollover approach quantifies misstatements based on the
amount of the error in the current year financial statement
whereas the iron curtain approach quantifies misstatements based
on the effects of correcting the misstatement existing in the
balance sheet at the end of the current year, irrespective of
the misstatements year(s) of origin. Financial statements
would require adjustment when either approach results in
quantifying a misstatement that is material. Correcting prior
year financial statements for immaterial errors would not
require previously filed reports to be amended. SAB 108 is
effective for interim periods of the first fiscal year ending
after November 15, 2006. The adoption of SAB 108, in
the fourth quarter of 2006, did not have a material impact on
our financial statements.
In September 2006, the FASB issued SFAS No. 157,
Fair Value Measurements (SFAS 157).
SFAS 157 clarifies the principle that fair value should be
based on the assumptions market participants would use when
pricing an asset or liability and establishes a fair value
hierarchy that prioritizes the information used to develop those
32
assumptions. Under the standard, fair value measurements would
be separately disclosed by level within the fair value
hierarchy. SFAS 157 is effective for fiscal year beginning
after November 15, 2007, with early adoption permitted. We
are in the process of evaluating any potential impact of
SFAS 157.
|
|
Item 7A.
|
Quantitative
and Qualitative Disclosures about Market Risk
|
Market
Risk and Sensitivity Analysis
Our primary exposures to market risks include fluctuations in
interest rates on our investment portfolio, short and long term
debt as well as fluctuations in foreign currency exchange rates.
Foreign
Exchange Rate Risk
We enter into forward exchange contracts to reduce currency
exposure arising from intercompany sales of inventory.
There were forward exchange contracts with notional amounts
totaling $20.3 million and $35.3 million outstanding
at December 31, 2006 and 2005, respectively. Of such
forward exchange contracts, $14.6 million and
$28.5 million, respectively, were outstanding to exchange
Japanese yen for U.S. dollars with the remaining amounts
relating to contracts to exchange the British pound and Euro for
U.S. dollars. The potential fair value loss for a
hypothetical 10% adverse change in the forward currency exchange
rate on our forward exchange contracts at December 31, 2006
and 2005 would be $2.0 million and $3.4 million,
respectively. The potential losses in 2006 and 2005 were
estimated by calculating the fair value of the forward exchange
contracts at December 31, 2006 and 2005 and comparing that
with those calculated using the hypothetical forward currency
exchange rates.
At December 31, 2006 and 2005 we had $11.7 million and
$59.4 million, respectively, in loans outstanding between
subsidiaries that were subject to foreign exchange exposure. At
December 31, 2006 and 2005 a hypothetical 10% adverse
change in foreign exchange rates would result in a net
transaction loss of $1.3 million and $6.6 million,
respectively, which would be recorded in current earnings.
At December 31, 2006 and 2005, we had $21.8 million
and $17.0 million, respectively, related to short-term
borrowings and current portion of long-term debt denominated in
Japanese yen. The carrying value of these short-term borrowings
approximates fair value due to their short period to maturity.
Assuming a hypothetical 10% adverse change in the Japanese yen
to U.S. dollar year end exchange rate, the fair value of
these short-term borrowings would increase by $2.4 million
and $1.9 million, respectively. The potential increase in
fair value was estimated by calculating the fair value of the
short-term borrowings at December 31, 2006 and 2005,
respectively, and comparing that with the fair value using the
hypothetical year end exchange rate.
Interest
Rate Risk
Due to its short-term duration, the fair value of our cash and
investment portfolio at December 31, 2006 and 2005
approximated its carrying value. Interest rate risk was
estimated as the potential decrease in fair value resulting from
a hypothetical 10% increase in interest rates for securities
contained in the investment portfolio. The resulting
hypothetical fair value was not materially different from the
year-end carrying values.
Our total long-term debt outstanding, including the current
portion, at December 31, 2006 and 2005, was
$5.0 million and $6.7 million, respectively, and
consisted mainly of a mortgage note and industrial development
revenue bond. The interest rate on these debt instruments was
3.95% at December 31, 2006 and ranged between 3.0% to 5.6%
at December 31, 2005. Due to the immaterial amounts of the
outstanding debt, a hypothetical change of 10% in interest rates
would not have a material effect on our near-term financial
condition or results of operations.
From time to time, MKS has outstanding short-term borrowings
with variable interest rates, primarily denominated in Japanese
yen. At December 31, 2006 and 2005, we had
$21.8 million and $17.0 million, respectively,
outstanding related to these short-term borrowings at interest
rates ranging from 1.45% to 1.50% and 1.21% to 1.31%,
respectively. Due to the short-term nature and amount of this
short-term debt, a hypothetical change of 10% in interest rates
would not have a material effect on our near-term financial
condition or results of operations.
33
|
|
Item 8.
|
Financial
Statements and Supplementary Data
|
REPORT OF
INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
To the Board of Directors and Shareholders of
MKS Instruments, Inc.:
We have completed integrated audits of MKS Instruments,
Inc.s consolidated financial statements and of its
internal control over financial reporting as of
December 31, 2006 in accordance with the standards of the
Public Company Accounting Oversight Board (United States). Our
opinions, based on our audits, are presented below.
Consolidated financial statements and financial statement
schedule
In our opinion, the consolidated financial statements listed in
the index appearing under Item 15.(a)1. present fairly, in
all material respects, the financial position of MKS
Instruments, Inc. and its subsidiaries at December 31, 2006
and 2005, and the results of their operations and their cash
flows for each of the three years in the period ended
December 31, 2006 in conformity with accounting principles
generally accepted in the United States of America. In addition,
in our opinion, the financial statement schedule listed in the
index appearing under Item 15.(a)2. presents fairly, in all
material respects, the information set forth therein when read
in conjunction with the related consolidated financial
statements. These financial statements and financial statement
schedule are the responsibility of the Companys
management. Our responsibility is to express an opinion on these
financial statements and financial statement schedule based on
our audits. We conducted our audits of these statements in
accordance with the standards of the Public Company Accounting
Oversight Board (United States). Those standards require that we
plan and perform the audit to obtain reasonable assurance about
whether the financial statements are free of material
misstatement. An audit of financial statements includes
examining, on a test basis, evidence supporting the amounts and
disclosures in the financial statements, assessing the
accounting principles used and significant estimates made by
management, and evaluating the overall financial statement
presentation. We believe that our audits provide a reasonable
basis for our opinion.
As discussed in Note 2 to the consolidated financial
statements, the Company changed the manner in which it accounts
for share-based compensation in fiscal 2006.
Internal control over financial reporting
Also, in our opinion, managements assessment, included in
Managements Annual Report on Internal Control over
Financial Reporting appearing under item 9A, that the
Company maintained effective internal control over financial
reporting as of December 31, 2006 based on criteria
established in Internal Control Integrated Framework
issued by the Committee of Sponsoring Organizations of the
Treadway Commission (COSO), is fairly stated, in all material
respects, based on those criteria. Furthermore, in our opinion,
the Company maintained, in all material respects, effective
internal control over financial reporting as of
December 31, 2006, based on criteria established in
Internal Control Integrated Framework issued by the
COSO. The Companys management is responsible for
maintaining effective internal control over financial reporting
and for its assessment of the effectiveness of internal control
over financial reporting. Our responsibility is to express
opinions on managements assessment and on the
effectiveness of the Companys internal control over
financial reporting based on our audit. We conducted our audit
of internal control over financial reporting in accordance with
the standards of the Public Company Accounting Oversight Board
(United States). Those standards require that we plan and
perform the audit to obtain reasonable assurance about whether
effective internal control over financial reporting was
maintained in all material respects. An audit of internal
control over financial reporting includes obtaining an
understanding of internal control over financial reporting,
evaluating managements assessment, testing and evaluating
the design and operating effectiveness of internal control, and
performing such other procedures as we consider necessary in the
circumstances. We believe that our audit provides a reasonable
basis for our opinions.
A companys internal control over financial reporting is a
process designed to provide reasonable assurance regarding the
reliability of financial reporting and the preparation of
financial statements for external purposes in accordance with
generally accepted accounting principles. A companys
internal control over financial reporting includes those
policies and procedures that (i) pertain to the maintenance
of records that, in reasonable detail,
34
accurately and fairly reflect the transactions and dispositions
of the assets of the company; (ii) provide reasonable
assurance that transactions are recorded as necessary to permit
preparation of financial statements in accordance with generally
accepted accounting principles, and that receipts and
expenditures of the company are being made only in accordance
with authorizations of management and directors of the company;
and (iii) provide reasonable assurance regarding prevention
or timely detection of unauthorized acquisition, use, or
disposition of the companys assets that could have a
material effect on the financial statements.
Because of its inherent limitations, internal control over
financial reporting may not prevent or detect misstatements.
Also, projections of any evaluation of effectiveness to future
periods are subject to the risk that controls may become
inadequate because of changes in conditions, or that the degree
of compliance with the policies or procedures may deteriorate.
As described in Managements Annual Report on Internal
Control over Financial Reporting, management has excluded Ion
Systems Inc. (Ion), Umetrics, AB.
(Umetrics) and Novx Corp. (Novx) from
its assessment of internal control over financial reporting as
of December 31, 2006 because they were acquired by the
Company in a purchase business combination during 2006. We have
also excluded Ion, Umetrics and Novx from our audit of internal
control over financial reporting. Ion, Umetrics and Novx are
wholly-owned subsidiaries whose total assets and total revenues
represent 12% and 5%, respectively, of the related consolidated
financial statement amounts as of and for the year ended
December 31, 2006.
PricewaterhouseCoopers LLP
Boston, Massachusetts
February 28, 2007
35
MKS
INSTRUMENTS, INC.
CONSOLIDATED
BALANCE SHEETS
|
|
|
|
|
|
|
|
|
|
|
December 31
|
|
|
|
2006
|
|
|
2005
|
|
|
|
(In thousands, except share data)
|
|
|
|
|
|
|
|
|
|
|
|
ASSETS
|
Current assets:
|
|
|
|
|
|
|
|
|
Cash and cash equivalents
|
|
$
|
215,208
|
|
|
$
|
220,573
|
|
Short-term investments
|
|
|
74,749
|
|
|
|
72,046
|
|
Trade accounts receivable, net of
allowances of $4,533 and $3,178 at December 31, 2006 and
2005, respectively
|
|
|
123,658
|
|
|
|
82,610
|
|
Inventories
|
|
|
149,820
|
|
|
|
98,242
|
|
Deferred income taxes
|
|
|
16,787
|
|
|
|
15,165
|
|
Other current assets
|
|
|
11,216
|
|
|
|
10,511
|
|
|
|
|
|
|
|
|
|
|
Total current assets
|
|
|
591,438
|
|
|
|
499,147
|
|
Property, plant and equipment, net
|
|
|
79,463
|
|
|
|
78,726
|
|
Long-term investments
|
|
|
2,816
|
|
|
|
857
|
|
Goodwill, net
|
|
|
323,973
|
|
|
|
255,243
|
|
Acquired intangible assets, net
|
|
|
43,104
|
|
|
|
27,422
|
|
Other assets
|
|
|
2,926
|
|
|
|
2,345
|
|
|
|
|
|
|
|
|
|
|
Total assets
|
|
$
|
1,043,720
|
|
|
$
|
863,740
|
|
|
|
|
|
|
|
|
|
|
|
LIABILITIES AND
STOCKHOLDERS EQUITY
|
Current liabilities:
|
|
|
|
|
|
|
|
|
Short-term borrowings
|
|
$
|
21,845
|
|
|
$
|
16,966
|
|
Current portion of long-term debt
|
|
|
|
|
|
|
1,429
|
|
Current portion of capital lease
obligations
|
|
|
1,176
|
|
|
|
491
|
|
Accounts payable
|
|
|
38,541
|
|
|
|
27,955
|
|
Accrued compensation
|
|
|
26,685
|
|
|
|
13,583
|
|
Income taxes payable
|
|
|
16,619
|
|
|
|
9,564
|
|
Other accrued expenses
|
|
|
25,031
|
|
|
|
19,099
|
|
|
|
|
|
|
|
|
|
|
Total current liabilities
|
|
|
129,897
|
|
|
|
89,087
|
|
Long-term debt
|
|
|
5,000
|
|
|
|
5,238
|
|
Long-term portion of capital lease
obligations
|
|
|
1,113
|
|
|
|
914
|
|
Deferred income taxes
|
|
|
1,535
|
|
|
|
2,153
|
|
Other liabilities
|
|
|
4,956
|
|
|
|
3,505
|
|
Commitments and contingencies
(Note 7)
|
|
|
|
|
|
|
|
|
Stockholders equity:
|
|
|
|
|
|
|
|
|
Preferred Stock, $0.01 par
value, 2,000,000 shares authorized; none issued and
outstanding
|
|
|
|
|
|
|
|
|
Common Stock, no par value,
200,000,000 shares authorized; 56,671,625 and
54,397,267 shares issued and outstanding at
December 31, 2006 and 2005, respectively
|
|
|
113
|
|
|
|
113
|
|
Additional paid-in capital
|
|
|
680,164
|
|
|
|
639,152
|
|
Retained earnings
|
|
|
210,877
|
|
|
|
116,642
|
|
Accumulated other comprehensive
income
|
|
|
10,065
|
|
|
|
6,936
|
|
|
|
|
|
|
|
|
|
|
Total stockholders equity
|
|
|
901,219
|
|
|
|
762,843
|
|
|
|
|
|
|
|
|
|
|
Total liabilities and
stockholders equity
|
|
$
|
1,043,720
|
|
|
$
|
863,740
|
|
|
|
|
|
|
|
|
|
|
The accompanying notes are an integral part of the consolidated
financial statements.
36
MKS
INSTRUMENTS, INC.
CONSOLIDATED
STATEMENTS OF OPERATIONS
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Year Ended December 31
|
|
|
|
2006
|
|
|
2005
|
|
|
2004
|
|
|
|
(In thousands, except per share data)
|
|
|
Net sales
|
|
$
|
782,801
|
|
|
$
|
509,294
|
|
|
$
|
555,080
|
|
Cost of sales
|
|
|
444,679
|
|
|
|
308,860
|
|
|
|
335,709
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Gross profit
|
|
|
338,122
|
|
|
|
200,434
|
|
|
|
219,371
|
|
Research and development
|
|
|
69,702
|
|
|
|
55,916
|
|
|
|
56,973
|
|
Selling, general and administrative
|
|
|
127,703
|
|
|
|
93,021
|
|
|
|
87,284
|
|
Amortization of acquired
intangible assets
|
|
|
17,376
|
|
|
|
13,864
|
|
|
|
14,764
|
|
Purchase of in-process technology
|
|
|
800
|
|
|
|
|
|
|
|
|
|
Restructuring and asset impairment
charges
|
|
|
|
|
|
|
85
|
|
|
|
437
|
|
Income from litigation settlement
|
|
|
|
|
|
|
3,000
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Income from operations
|
|
|
122,541
|
|
|
|
40,548
|
|
|
|
59,913
|
|
Interest expense
|
|
|
974
|
|
|
|
810
|
|
|
|
510
|
|
Interest income
|
|
|
9,374
|
|
|
|
7,269
|
|
|
|
2,423
|
|
Other income, net
|
|
|
|
|
|
|
|
|
|
|
5,402
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Income before income taxes
|
|
|
130,941
|
|
|
|
47,007
|
|
|
|
67,228
|
|
Provision (benefit) for income
taxes
|
|
|
36,706
|
|
|
|
12,442
|
|
|
|
(2,611
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net income
|
|
$
|
94,235
|
|
|
$
|
34,565
|
|
|
$
|
69,839
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net income per share:
|
|
|
|
|
|
|
|
|
|
|
|
|
Basic
|
|
$
|
1.70
|
|
|
$
|
0.64
|
|
|
$
|
1.30
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Diluted
|
|
$
|
1.68
|
|
|
$
|
0.63
|
|
|
$
|
1.28
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Weighted average common shares
outstanding:
|
|
|
|
|
|
|
|
|
|
|
|
|
Basic
|
|
|
55,395
|
|
|
|
54,067
|
|
|
|
53,519
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Diluted
|
|
|
55,961
|
|
|
|
54,633
|
|
|
|
54,656
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
The accompanying notes are an integral part of the consolidated
financial statements.
37
MKS
INSTRUMENTS, INC.
CONSOLIDATED
STATEMENTS OF STOCKHOLDERS EQUITY
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
For the Year Ended December 31, 2006, 2005 and 2004
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Accumulated
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Additional
|
|
|
|
|
|
Other
|
|
|
|
|
|
Total
|
|
|
|
Common Stock
|
|
|
Paid-In
|
|
|
Retained
|
|
|
Comprehensive
|
|
|
Comprehensive
|
|
|
Stockholders
|
|
|
|
Shares
|
|
|
Amount
|
|
|
Capital
|
|
|
Earnings
|
|
|
Income (Loss)
|
|
|
Income (Loss)
|
|
|
Equity
|
|
|
|
(In thousands, except share data)
|
|
|
Balance at December 31,
2003
|
|
|
52,040,019
|
|
|
$
|
113
|
|
|
$
|
587,910
|
|
|
$
|
12,238
|
|
|
$
|
8,049
|
|
|
|
|
|
|
$
|
608,310
|
|
Net issuance under stock-based plans
|
|
|
484,793
|
|
|
|
|
|
|
|
6,030
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
6,030
|
|
Issuance of common stock through
public offering, net of issuance costs of $399
|
|
|
1,314,286
|
|
|
|
|
|
|
|
32,549
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
32,549
|
|
Tax benefit from stock-based plans
|
|
|
|
|
|
|
|
|
|
|
5,271
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
5,271
|
|
Comprehensive income (net of tax):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net income
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
69,839
|
|
|
|
|
|
|
$
|
69,839
|
|
|
|
69,839
|
|
Other comprehensive income:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Changes in value of financial
instruments designated as cash flow hedges and unrealized gain
(loss) on investments
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
973
|
|
|
|
973
|
|
|
|
973
|
|
Foreign currency translation
adjustment
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
3,662
|
|
|
|
3,662
|
|
|
|
3,662
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Comprehensive income
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$
|
74,474
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Balance at December 31,
2004
|
|
|
53,839,098
|
|
|
|
113
|
|
|
|
631,760
|
|
|
|
82,077
|
|
|
|
12,684
|
|
|
|
|
|
|
|
726,634
|
|
Net issuance under stock-based plans
|
|
|
558,169
|
|
|
|
|
|
|
|
6,058
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
6,058
|
|
Tax benefit from stock-based plans
|
|
|
|
|
|
|
|
|
|
|
1,102
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
1,102
|
|
Other
|
|
|
|
|
|
|
|
|
|
|
232
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
232
|
|
Comprehensive income (net of tax):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net income
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
34,565
|
|
|
|
|
|
|
|
34,565
|
|
|
|
34,565
|
|
Other comprehensive income:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Changes in value of financial
instruments designated as cash flow hedges and unrealized gain
(loss) on investments
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
1,663
|
|
|
|
1,663
|
|
|
|
1,663
|
|
Foreign currency translation
adjustment
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(7,411
|
)
|
|
|
(7,411
|
)
|
|
|
(7,411
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Comprehensive income
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$
|
28,817
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Balance at December 31,
2005
|
|
|
54,397,267
|
|
|
|
113
|
|
|
|
639,152
|
|
|
|
116,642
|
|
|
|
6,936
|
|
|
|
|
|
|
|
762,843
|
|
Net issuance under stock-based plans
|
|
|
2,274,358
|
|
|
|
|
|
|
|
23,255
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
23,255
|
|
Tax benefit from stock-based plans
|
|
|
|
|
|
|
|
|
|
|
4,614
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
4,614
|
|
Stock-based compensation
|
|
|
|
|
|
|
|
|
|
|
13,143
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
13,143
|
|
Comprehensive income (net of tax):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net income
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
94,235
|
|
|
|
|
|
|
|
94,235
|
|
|
|
94,235
|
|
Other comprehensive income:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Changes in value of financial
instruments designated as cash flow hedges and unrealized gain
(loss) on investments
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(43
|
)
|
|
|
(43
|
)
|
|
|
(43
|
)
|
Foreign currency translation
adjustment
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
3,172
|
|
|
|
3,172
|
|
|
|
3,172
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Comprehensive income
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$
|
97,364
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Balance at December 31,
2006
|
|
|
56,671,625
|
|
|
$
|
113
|
|
|
$
|
680,164
|
|
|
$
|
210,877
|
|
|
$
|
10,065
|
|
|
|
|
|
|
$
|
901,219
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
The accompanying notes are an integral part of the consolidated
financial statements.
38
MKS
INSTRUMENTS, INC.
CONSOLIDATED
STATEMENTS OF CASH FLOWS
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Year Ended December 31
|
|
|
|
2006
|
|
|
2005
|
|
|
2004
|
|
|
|
(In thousands)
|
|
|
Cash flows from operating
activities:
|
|
|
|
|
|
|
|
|
|
|
|
|
Net income
|
|
$
|
94,235
|
|
|
$
|
34,565
|
|
|
$
|
69,839
|
|
Adjustments to reconcile net income
to net cash provided by operating activities:
|
|
|
|
|
|
|
|
|
|
|
|
|
Depreciation and amortization
|
|
|
31,348
|
|
|
|
26,215
|
|
|
|
27,838
|
|
Stock-based compensation
|
|
|
13,143
|
|
|
|
|
|
|
|
|
|
Tax benefit from stock-based
compensation
|
|
|
4,614
|
|
|
|
1,102
|
|
|
|
5,271
|
|
Excess tax benefit from stock-based
compensation
|
|
|
(4,469
|
)
|
|
|
|
|
|
|
|
|
Deferred taxes
|
|
|
(11,518
|
)
|
|
|
303
|
|
|
|
(10,229
|
)
|
Gain on collection of note
receivable
|
|
|
|
|
|
|
|
|
|
|
(5,042
|
)
|
Other
|
|
|
562
|
|
|
|
467
|
|
|
|
(426
|
)
|
Changes in operating assets and
liabilities, net of effects of businesses acquired:
|
|
|
|
|
|
|
|
|
|
|
|
|
Trade accounts receivable
|
|
|
(33,555
|
)
|
|
|
(4,702
|
)
|
|
|
(15,197
|
)
|
Inventories
|
|
|
(46,013
|
)
|
|
|
(1,829
|
)
|
|
|
(15,919
|
)
|
Other current assets
|
|
|
2,213
|
|
|
|
307
|
|
|
|
(1,244
|
)
|
Accrued expenses
|
|
|
15,437
|
|
|
|
(2
|
)
|
|
|
10,790
|
|
Accounts payable
|
|
|
5,731
|
|
|
|
6,362
|
|
|
|
(3,632
|
)
|
Income taxes payable
|
|
|
6,483
|
|
|
|
1,372
|
|
|
|
4,350
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net cash provided by operating
activities
|
|
|
78,211
|
|
|
|
64,160
|
|
|
|
66,399
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cash flows from investing
activities:
|
|
|
|
|
|
|
|
|
|
|
|
|
Acquisitions of businesses, net of
cash acquired
|
|
|
(98,671
|
)
|
|
|
|
|
|
|
|
|
Purchases of short-term and
long-term
available-for-sale
investments
|
|
|
(108,944
|
)
|
|
|
(215,551
|
)
|
|
|
(218,478
|
)
|
Maturities and sales of short-term
and long-term
available-for-sale
investments
|
|
|
104,302
|
|
|
|
244,736
|
|
|
|
184,422
|
|
Purchases of property, plant and
equipment
|
|
|
(10,690
|
)
|
|
|
(10,281
|
)
|
|
|
(18,270
|
)
|
Proceeds from sale of assets
|
|
|
578
|
|
|
|
241
|
|
|
|
1,619
|
|
Proceeds from collection of note
receivable
|
|
|
|
|
|
|
|
|
|
|
5,042
|
|
Other
|
|
|
(827
|
)
|
|
|
901
|
|
|
|
1,422
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net cash provided by (used in)
investing activities
|
|
|
(114,252
|
)
|
|
|
20,046
|
|
|
|
(44,243
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cash flows from financing
activities:
|
|
|
|
|
|
|
|
|
|
|
|
|
Proceeds from short-term borrowings
|
|
|
89,547
|
|
|
|
79,005
|
|
|
|
67,844
|
|
Payments on short-term borrowings
|
|
|
(84,381
|
)
|
|
|
(81,729
|
)
|
|
|
(64,127
|
)
|
Payments on long-term debt
|
|
|
(1,667
|
)
|
|
|
(2,036
|
)
|
|
|
(2,539
|
)
|
Principal payments on capital lease
obligations
|
|
|
(754
|
)
|
|
|
(377
|
)
|
|
|
(39
|
)
|
Proceeds from exercise of stock
options and employee stock purchase plan
|
|
|
23,255
|
|
|
|
6,058
|
|
|
|
6,030
|
|
Excess tax benefit from stock-based
compensation
|
|
|
4,469
|
|
|
|
|
|
|
|
|
|
Proceeds from the sale of common
stock, net
|
|
|
|
|
|
|
|
|
|
|
32,549
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net cash provided by financing
activities
|
|
|
30,469
|
|
|
|
921
|
|
|
|
39,718
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Effect of exchange rate changes on
cash and cash equivalents
|
|
|
207
|
|
|
|
(2,943
|
)
|
|
|
1,855
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Increase (decrease) in cash and
cash equivalents
|
|
|
(5,365
|
)
|
|
|
82,184
|
|
|
|
63,729
|
|
Cash and cash equivalents at
beginning of period
|
|
|
220,573
|
|
|
|
138,389
|
|
|
|
74,660
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cash and cash equivalents at end of
period
|
|
$
|
215,208
|
|
|
$
|
220,573
|
|
|
$
|
138,389
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Supplemental disclosure of cash
flow information:
|
|
|
|
|
|
|
|
|
|
|
|
|
Cash paid during the period for:
|
|
|
|
|
|
|
|
|
|
|
|
|
Interest
|
|
$
|
880
|
|
|
$
|
784
|
|
|
$
|
447
|
|
Income taxes
|
|
$
|
35,922
|
|
|
$
|
10,213
|
|
|
$
|
4,923
|
|
Non-cash financing activities:
|
|
|
|
|
|
|
|
|
|
|
|
|
Equipment capital leases
|
|
$
|
1,638
|
|
|
$
|
1,666
|
|
|
$
|
|
|
The accompanying notes are an integral part of the consolidated
financial statements.
39
MKS
INSTRUMENTS, INC.
(Tables
in thousands, except share and per share data)
1) Description
of Business
MKS Instruments, Inc. was founded in 1961 and is a leading
worldwide provider of instruments, components, subsystems and
process control solutions that measure, control, power and
monitor critical parameters of semiconductor and other advanced
manufacturing processes. MKS is managed as one operating segment
which is organized around three product groups: Instruments and
Control Systems, Power and Reactive Gas Products and Vacuum
Products. MKS products are derived from its core
competencies in pressure measurement and control, materials
delivery, gas and thin-film composition analysis, electrostatic
change control, control and information management, power and
reactive gas generation and vacuum technology.
2) Summary
of Significant Accounting Policies
Basis of
Presentation
The consolidated financial statements include the accounts of
MKS Instruments, Inc. and its wholly owned subsidiaries
(collectively, the Company). All significant
intercompany accounts and transactions have been eliminated in
consolidation.
Net
Income Per Share
Basic earnings per share is based on the weighted average number
of common shares outstanding, and diluted earnings per share is
based on the weighted average number of common shares
outstanding and all dilutive potential common equivalent shares
outstanding. The dilutive effect of options is determined under
the treasury stock method using the average market price for the
period. Common equivalent shares are included in the per share
calculations when the effect of their inclusion would be
dilutive.
The following is a reconciliation of basic to diluted net income
per share:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
For the Year Ended December 31,
|
|
|
|
2006
|
|
|
2005
|
|
|
2004
|
|
|
Net income
|
|
$
|
94,235
|
|
|
$
|
34,565
|
|
|
$
|
69,839
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Shares used in net income per
common share basic
|
|
|
55,395,000
|
|
|
|
54,067,000
|
|
|
|
53,519,000
|
|
Effect of dilutive securities:
|
|
|
|
|
|
|
|
|
|
|
|
|
Stock options, restricted stock and
employee stock purchase plan
|
|
|
566,000
|
|
|
|
566,000
|
|
|
|
1,137,000
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Shares used in net income per
common share diluted
|
|
|
55,961,000
|
|
|
|
54,633,000
|
|
|
|
54,656,000
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net income per common
share basic
|
|
$
|
1.70
|
|
|
$
|
0.64
|
|
|
$
|
1.30
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net income per common
share diluted
|
|
$
|
1.68
|
|
|
$
|
0.63
|
|
|
$
|
1.28
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Options and restricted stock outstanding of 4,789,894, 5,957,682
and 5,513,054 during the years ended December 31, 2006,
2005 and 2004, respectively, are excluded from the calculation
of diluted net income per common share because their inclusion
would be anti-dilutive.
Stock-Based
Compensation
Effect of
Adoption of SFAS 123R, Share-Based Payment
Prior to January 1, 2006, the Company accounted for
stock-based awards to employees using the intrinsic value method
as prescribed by Accounting Principles Board Opinion
No. 25, Accounting for Stock Issued to
Employees, and related interpretations
(APB 25). Accordingly, no compensation expense
was recorded for options issued to employees in fixed amounts
with fixed exercise prices at least equal to the fair market
value of the
40
MKS
INSTRUMENTS, INC.
NOTES TO
CONSOLIDATED FINANCIAL
STATEMENTS (CONTINUED)
(Tables
in thousands, except share and per share data)
Companys common stock at the date of grant. The Company
had adopted the disclosure-only provisions of Statement of
Financial Accounting Standards (SFAS) No. 123,
Accounting for Stock-Based Compensation, as amended
by SFAS No. 148, Accounting for Stock-Based
Compensation-Transition and Disclosure,
(SFAS 123).
On January 7, 2005, the Company accelerated the vesting of
outstanding stock options granted to employees and officers with
an exercise price of $23.00 per share or greater. As a
result of this action, options to purchase approximately
1,600,000 shares of the Companys common stock became
exercisable on January 7, 2005. No compensation expense was
recorded related to this action as these options had no
intrinsic value on January 7, 2005. For purposes of the
SFAS 123 proforma calculation below, the expense related to
the options that were accelerated was $16,886,000, net of tax,
for the year ended December 31, 2005. The reason that the
Company accelerated the vesting of the identified stock options
was to reduce the Companys compensation expense in periods
subsequent to the adoption of SFAS 123R, Share-Based
Payment (SFAS 123R).
As of January 1, 2006, the Company adopted SFAS 123R
using the modified prospective method. SFAS 123R requires
companies to recognize compensation cost for all stock-based
awards based upon the grant-date fair value of those awards and
to recognize the expense over the requisite service period for
awards expected to vest. Using the modified prospective method
of adopting SFAS 123R, MKS began recognizing compensation
expense for equity-based awards granted after January 1,
2006 plus unvested awards granted prior to January 1, 2006.
Under this method of implementation, prior periods were not
restated. The Company has elected to adopt the alternative
transition method for calculating the tax effects of
equity-based compensation. The alternative transition method
includes simplified methods to establish the beginning balance
of the additional paid-in capital pool (APIC pool) related to
the tax effects of employee stock-based compensation, and to
determine the subsequent impact on the APIC pool and
consolidated statement of cash flows of the tax effects of
employee equity-based compensation awards that are outstanding
upon the implementation of SFAS 123R. Subsequent to the
initial adoption of FAS 123R, the Company calculates potential
windfall or shortfall tax benefits under the treasury stock
method by excluding the impact of pro forma deferred tax assets.
The Company recognized the full impact of its share-based
payment plans in the consolidated statements of operations for
the year ended December 31, 2006 under SFAS 123R and
did not capitalize any such costs on the consolidated balance
sheets, as such costs that qualified for capitalization were not
material. The following table reflects the effect of recording
stock-based compensation for the year ended December 31,
2006 in accordance with SFAS 123R:
|
|
|
|
|
|
|
Year Ended
|
|
|
|
December 31,
|
|
|
|
2006
|
|
|
Stock-based compensation expense
by type of award:
|
|
|
|
|
Employee stock options
|
|
$
|
8,521
|
|
Restricted stock
|
|
|
3,862
|
|
Employee stock purchase plan
|
|
|
760
|
|
|
|
|
|
|
Total stock-based compensation
|
|
|
13,143
|
|
Tax effect on stock-based
compensation
|
|
|
(4,469
|
)
|
|
|
|
|
|
Net effect on net income
|
|
$
|
8,674
|
|
|
|
|
|
|
Effect on earnings per share:
|
|
|
|
|
Basic
|
|
$
|
0.16
|
|
|
|
|
|
|
Diluted
|
|
$
|
0.16
|
|
|
|
|
|
|
41
MKS
INSTRUMENTS, INC.
NOTES TO
CONSOLIDATED FINANCIAL
STATEMENTS (CONTINUED)
(Tables
in thousands, except share and per share data)
Prior to
the adoption of SFAS 123R
The following table illustrates the effect on net income and net
income per share, for the years ended December 31, 2005 and
2004, if the Company had applied the fair value recognition
provisions of SFAS 123 to stock-based employee awards.
|
|
|
|
|
|
|
|
|
|
|
2005
|
|
|
2004
|
|
|
Net income as reported
|
|
$
|
34,565
|
|
|
$
|
69,839
|
|
Add: Stock-based employee
compensation expense included in reported net income, net of tax
|
|
|
|
|
|
|
|
|
Deduct: Total stock-based employee
compensation expense determined under the fair-value-based
method for all awards, net of tax
|
|
|
(24,321
|
)
|
|
|
(15,933
|
)
|
|
|
|
|
|
|
|
|
|
Pro forma net income
|
|
$
|
10,244
|
|
|
$
|
53,906
|
|
|
|
|
|
|
|
|
|
|
Basic and diluted net income per
share:
|
|
|
|
|
|
|
|
|
Basic as reported
|
|
$
|
0.64
|
|
|
$
|
1.30
|
|
Basic Pro forma
|
|
$
|
0.19
|
|
|
$
|
1.01
|
|
Diluted as reported
|
|
$
|
0.63
|
|
|
$
|
1.28
|
|
Diluted Pro forma
|
|
$
|
0.19
|
|
|
$
|
0.99
|
|
Valuation
Assumptions
In connection with the adoption of SFAS 123R, the Company
reassessed its valuation technique and related assumptions. The
Company determines the fair value of restricted stock based on
the number of shares granted and the closing market price of the
Companys common stock on the date of the award, and
estimates the fair value of stock options and employee stock
purchase rights using the Black-Scholes valuation model, which
is consistent with our valuation techniques previously utilized
for options in footnote disclosures required under
SFAS 123. Such values are recognized as expense on a
straight-line basis over the requisite service periods, net of
estimated forfeitures. The estimation of stock-based awards that
will ultimately vest requires significant judgment. We consider
many factors when estimating expected forfeitures, including
types of awards and historical experience. Actual results, and
future changes in estimates, may differ substantially from our
current estimates.
The weighted average grant date fair value of options granted
during the year ended December 31, 2006, as determined
under SFAS 123R, and during the years December 31,
2005 and 2004, as determined under SFAS 123, was $12.00,
$8.27 and $11.24 per share, respectively. The total
intrinsic value of options exercised during the years ended
December 31, 2006, 2005 and 2004 was approximately
$14,252,000, $2,858,000 and $4,415,000, respectively. The fair
values of options at the date of grant were estimated using the
Black-Scholes option-pricing model with the following weighted
average assumptions:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2006
|
|
|
2005
|
|
|
2004
|
|
|
Stock option plans:
|
|
|
|
|
|
|
|
|
|
|
|
|
Expected life (years)
|
|
|
5.0
|
|
|
|
5.0
|
|
|
|
5.0
|
|
Risk-free interest rate
|
|
|
4.9
|
%
|
|
|
4.0
|
%
|
|
|
3.6
|
%
|
Expected Volatility
|
|
|
52.0
|
%
|
|
|
51.0
|
%
|
|
|
74.0
|
%
|
Dividend yield
|
|
|
0.0
|
%
|
|
|
0.0
|
%
|
|
|
0.0
|
%
|
42
MKS
INSTRUMENTS, INC.
NOTES TO
CONSOLIDATED FINANCIAL
STATEMENTS (CONTINUED)
(Tables
in thousands, except share and per share data)
The weighted average fair value of employee stock purchase
rights granted in 2006, 2005 and 2004 was $5.18, $4.18 and
$7.05, respectively. The fair value of the employees
purchase rights was estimated using the Black-Scholes
option-pricing model with the following weighted average
assumptions:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2006
|
|
|
2005
|
|
|
2004
|
|
|
Employee stock purchase rights:
|
|
|
|
|
|
|
|
|
|
|
|
|
Expected life (years)
|
|
|
0.5
|
|
|
|
0.5
|
|
|
|
0.5
|
|
Risk-free interest rate
|
|
|
4.8
|
%
|
|
|
2.7
|
%
|
|
|
1.3
|
%
|
Expected volatility
|
|
|
34.6
|
%
|
|
|
34.0
|
%
|
|
|
73.0
|
%
|
Dividend yield
|
|
|
0.0
|
%
|
|
|
0.0
|
%
|
|
|
0.0
|
%
|
Expected volatilities for 2006 and 2005 are based on a
combination of implied and historical volatilities of our common
stock and based on historical volatilities for 2004; the
expected life represents the weighted average period of time
that options granted are expected to be outstanding giving
consideration to vesting schedules and our historical exercise
patterns; and the risk-free interest rate is based on the
U.S. Treasury yield curve in effect at the time of grant
for periods corresponding with the expected life of the option.
The fair value of stock options and restricted stock awards that
vested during the year ended December 31, 2006, 2005 and
2004 was approximately $8,111,000, $10,097,000 and $5,661,000,
respectively. As of December 31, 2006, the unrecognized
compensation cost related to non-vested stock options and the
unrecognized compensation cost related to restricted stock was
approximately $7,367,000 and $11,286,000, respectively, and will
be recognized over an estimated weighted average amortization
period of 1.7 years and 2.2 years, respectively.
Foreign
Exchange
The functional currency of the majority of the Companys
foreign subsidiaries is the applicable local currency. For those
subsidiaries, assets and liabilities are translated to
U.S. dollars at year-end exchange rates. Income and expense
accounts are translated at the average exchange rates prevailing
during the year. The resulting translation adjustments are
included in accumulated other comprehensive income in
consolidated stockholders equity. Foreign exchange
transaction gains and losses, which arise from transaction
activity and are reflected in operations, were immaterial in
2006, 2005 and 2004.
Revenue
Recognition and Accounts Receivable Allowances
Revenue from product sales is recorded upon transfer of title
and risk of loss to the customer provided that there is evidence
of an arrangement, the sales price is fixed or determinable, and
collection of the related receivable is reasonably assured. In
most transactions, the Company has no obligations to customers
after the date products are shipped other than pursuant to
warranty obligations. In some instances, the Company provides
installation, training, support and services to customers after
the product has been shipped. For revenue arrangements with
multiple deliverables, the Company defers the fair value related
to any undelivered elements until the undelivered element is
delivered. Fair value is the price charged when the element is
sold separately. The Company provides for the estimated costs to
fulfill customer warranty obligations upon the recognition of
the related revenue. Shipping and handling fees, if any, billed
to customers are recognized as revenue. The related shipping and
handling costs are recognized in cost of sales. Accounts
receivable allowances include sales returns and bad debt
allowances. The Company monitors and tracks the amount of
product returns and reduces revenue at the time of shipment for
the estimated amount of such future returns, based on historical
experience. The Company makes estimates evaluating its allowance
for doubtful accounts. The Company continuously monitors
collections and payments from its customers and maintains a
provision for estimated credit losses based upon its historical
experience and any specific customer collection issues that it
has identified.
43
MKS
INSTRUMENTS, INC.
NOTES TO
CONSOLIDATED FINANCIAL
STATEMENTS (CONTINUED)
(Tables
in thousands, except share and per share data)
Cash and
Cash Equivalents and Investments
All highly liquid investments with a maturity date of three
months or less at the date of purchase are considered to be cash
equivalents.
The fair value of short-term
available-for-sale
investments with maturities or estimated lives of less than one
year consists of the following:
|
|
|
|
|
|
|
|
|
|
|
December 31,
|
|
|
|
2006
|
|
|
2005
|
|
|
Federal Government and Government
Agency Obligations
|
|
$
|
2,092
|
|
|
$
|
15,336
|
|
Commercial Paper and Corporate
Obligations
|
|
|
72,657
|
|
|
|
56,710
|
|
|
|
|
|
|
|
|
|
|
|
|
$
|
74,749
|
|
|
$
|
72,046
|
|
|
|
|
|
|
|
|
|
|
The fair value of long-term
available-for-sale
investments with maturities or estimated lives of one to five
years consists of the following:
|
|
|
|
|
|
|
|
|
|
|
December 31,
|
|
|
|
2006
|
|
|
2005
|
|
|
Commercial Paper and Corporate
Obligations
|
|
$
|
2,816
|
|
|
$
|
857
|
|
|
|
|
|
|
|
|
|
|
The appropriate classification of investments in securities is
determined at the time of purchase. Debt securities that the
Company does not have the intent and ability to hold to maturity
are classified as
available-for-sale
and are carried at fair value. Unrealized gains and losses on
securities classified as
available-for-sale
are included in accumulated other comprehensive income in
consolidated stockholders equity. Gross unrealized gains
and gross unrealized losses on
available-for-sale
investments were not material at December 31, 2006 and
2005. At December 31, 2006, the fair value of
available-for-sale
investments with gross unrealized losses was $13,540,618.
Realized gains (losses) on securities were immaterial in 2006,
2005 and 2004. The cost of securities sold is based on the
specific identification method.
Inventories
The Company values its inventory at the lower of cost
(first-in,
first-out method) or market. The Company regularly reviews
inventory quantities on hand and records a provision to write
down excess and obsolete inventory to its estimated net
realizable value, if less than cost, based primarily on its
estimated forecast of product demand.
Property,
Plant and Equipment
Property, plant and equipment are stated at cost. Equipment
acquired under capital leases is recorded at the present value
of the minimum lease payments required during the lease period.
Expenditures for major renewals and betterments that extend the
useful lives of property, plant and equipment are capitalized.
Expenditures for maintenance and repairs are charged to expense
as incurred. When assets are sold or otherwise disposed of, the
cost and related accumulated depreciation are eliminated from
the accounts and any resulting gain or loss is recognized in
earnings.
Depreciation is provided on the straight-line method over the
estimated useful lives of twenty to thirty-one and one-half
years for buildings and three to seven years for machinery and
equipment and furniture and fixtures and office equipment, which
includes ERP software. Leasehold improvements are amortized over
the shorter of the lease term or the estimated useful life of
the leased asset.
44
MKS
INSTRUMENTS, INC.
NOTES TO
CONSOLIDATED FINANCIAL
STATEMENTS (CONTINUED)
(Tables
in thousands, except share and per share data)
Intangible
Assets
Intangible assets resulting from the acquisitions of entities
accounted for using the purchase method of accounting are
estimated by management based on the fair value of assets
acquired. These include acquired customer lists, technology,
patents, trade name and covenants not to compete. Intangible
assets are amortized from three to eight years on a
straight-line basis which represents the estimated periods of
benefit.
Goodwill
Goodwill is the amount by which the cost of acquired net assets
exceeded the fair value of those net assets on the date of
acquisition. The Company assesses goodwill for impairment on an
annual basis during the fourth quarter of each fiscal year, or
more frequently when events and circumstances occur indicating
that the recorded goodwill may be impaired. If the book value of
a reporting unit exceeds its fair value, the implied fair value
of goodwill is compared with the carrying amount of goodwill. If
the carrying amount of goodwill exceeds the implied fair value,
an impairment loss is recorded equal to that excess.
Impairment
of Long-Lived Assets
The Company evaluates the recoverability of its long-lived
assets, in accordance with Statement of Financial Accounting
Standards No. 144, Accounting for the Impairment or
Disposal of Long-Lived Assets (SFAS 144).
SFAS 144 requires recognition of impairment of long-lived
assets in the event the net book value of such assets exceeds
the future undiscounted cash flows attributable to such assets.
If an impairment is possible and indicated, the assets are
written down to their estimated fair value.
Research
and Development
Research and development costs are expensed as incurred and
consist mainly of compensation related expenses and project
materials. The Companys research and development efforts
include numerous projects which generally have a duration of 12
to 30 months.
In-Process
Research and Development
The Company values tangible and intangible assets acquired
through its business acquisitions at fair value including
in-process research and development (IPR&D). The
Company determines IPR&D through established valuation
techniques for various projects for the development of new
products and technologies and expenses IPR&D when technical
feasibility is not reached.
Advertising
Costs
Advertising costs are expensed as incurred. Advertising costs
were immaterial in 2006, 2005 and 2004.
Income
Taxes
The Company records income taxes using the asset and liability
method. Deferred income tax assets and liabilities are
recognized for the future tax consequences attributable to
differences between the financial statement carrying amounts of
existing assets and liabilities and their respective income tax
bases, and operating loss and tax credit carryforwards. The
Company evaluates the realizability of its net deferred tax
assets and assesses the need for a valuation allowance on a
quarterly basis. The future benefit to be derived from its
deferred tax assets is dependent upon its ability to generate
sufficient future taxable income to realize the assets. The
Company records a valuation allowance to reduce its net deferred
tax assets to the amount that is more likely than not to be
realized. To the extent the Company establishes a valuation
allowance, an expense will be recorded within the provision for
income taxes line on the statement of operations. During the
year ended December 31, 2002 the Company established a full
45
MKS
INSTRUMENTS, INC.
NOTES TO
CONSOLIDATED FINANCIAL
STATEMENTS (CONTINUED)
(Tables
in thousands, except share and per share data)
valuation allowance for its net deferred tax assets. In periods
subsequent to establishing a valuation allowance, if the Company
were to determine that it would be able to realize its net
deferred tax assets in excess of their net recorded amount, an
adjustment to the valuation allowance would be recorded as a
reduction to income tax expense in the period such determination
was made. During the fourth quarter of 2004, after examining a
number of factors, including historical results and near term
earnings projections, the Company determined that it was more
likely than not that it would realize all of its net deferred
tax assets, except for those related to certain state tax
credits and adjusted the valuation allowance at
December 31, 2004. During the fourth quarter of 2006, the
Company determined that it would realize the aforementioned
state tax credits and reduced the valuation allowance. The
remaining valuation allowance at December 31, 2006 was
$317,000, relating to state tax credits acquired with the
purchase of Ion.
New
Accounting Pronouncements
In June 2006, the Financial Accounting Standards Board issued
Interpretation No. 48, Accounting for Uncertainty in Income
Taxes, an interpretation of FAS 109, Accounting for Income
Taxes (FIN 48), to create a single model to address
uncertainty in tax positions. FIN 48 clarifies the
accounting for income taxes by prescribing a minimum recognition
threshold a tax position is required to meet before being
recognized for financial statements. FIN 48 also provides
guidance on derecognition, measurement, classification, interest
and penalties, accounting for interim periods, disclosure and
transition. FIN 48 is effective for fiscal years beginning
after December 15, 2006. The Company will adopt FIN 48
as of January 1, 2007 as required. The cumulative effect of
adopting FIN 48, if any, will be recorded in retained
earnings. Although the Companys assessment of the impact
of FIN 48 is not yet complete, MKS expects that the
adoption of FIN 48 will not have a material impact on the
Companys financial statements.
In September 2006, the SEC issued Staff Accounting
Bulletin No. 108, Considering the Effects of
Prior Year Misstatements when quantifying Misstatements in
Current Year Financial Statements
(SAB 108). SAB 108 requires companies to
evaluate the materiality of identified unadjusted errors on each
financial statement and related financial statement disclosure
using both the rollover approach and the iron curtain approach.
The rollover approach quantifies misstatements based on the
amount of the error in the current year financial statement
whereas the iron curtain approach quantifies misstatements based
on the effects of correcting the misstatement existing in the
balance sheet at the end of the current year, irrespective of
the misstatements year(s) of origin. Financial statements
would require adjustment when either approach results in
quantifying a misstatement that is material. Correcting prior
year financial statements for immaterial errors would not
require previously filed reports to be amended. SAB 108 is
effective for interim periods of the first fiscal year ending
after November 15, 2006. The adoption of SAB 108, in
the fourth quarter of 2006, did not have a material impact on
the Companys financial statements.
In September 2006, the FASB issued SFAS No. 157,
Fair Value Measurements (SFAS 157).
SFAS 157 clarifies the principle that fair value should be
based on the assumptions market participants would use when
pricing an asset or liability and establishes a fair value
hierarchy that prioritizes the information used to develop those
assumptions. Under the standard, fair value measurements would
be separately disclosed by level within the fair value
hierarchy. SFAS 157 is effective for fiscal year beginning
after November 15, 2007, with early adoption permitted. The
Company is in the process of evaluating any potential impact of
SFAS 157.
Use of
Estimates
The consolidated financial statements have been prepared in
accordance with accounting principles generally accepted in the
United States. The preparation of these financial statements
requires management to make estimates and assumptions that
affect the reported amounts of assets and liabilities and the
disclosure of contingent liabilities at the date of the
financial statements and the reported amounts of revenues and
expenses during the reporting
46
MKS
INSTRUMENTS, INC.
NOTES TO
CONSOLIDATED FINANCIAL
STATEMENTS (CONTINUED)
(Tables
in thousands, except share and per share data)
period. On an on-going basis, management evaluates its estimates
and judgments, including those related to revenue recognition,
stock-based compensation, inventory, intangible assets,
goodwill, and other long-lived assets, in-process research and
development, merger expenses, income taxes and investments.
Management bases its estimates and judgments on historical
experience and on various other factors that are believed to be
reasonable under the circumstances, the results of which form
the basis for making judgments about the carrying values of
assets and liabilities that are not readily apparent from other
sources. Actual results may differ from these estimates under
different assumptions or conditions.
Reclassifications
Certain prior year amounts have been reclassified to be
consistent with the current year classifications.
3) Financial
Instruments and Risk Management
Foreign
Exchange Risk Management
The Company hedges a portion of its forecasted foreign currency
denominated intercompany sales of inventory, over a maximum
period of fifteen months, using forward exchange contracts
primarily related to Japanese and European currencies. These
derivatives are designated as cash-flow hedges, and changes in
their fair value are carried in accumulated other comprehensive
income until the hedged transaction affects earnings. When the
hedged transaction affects earnings, the appropriate gain or
loss from the derivative designated as a hedge of the
transaction is reclassified from accumulated other comprehensive
income to cost of sales. As of December 31, 2006, the
amount that will be reclassified from accumulated other
comprehensive income to cost of sales over the next twelve
months is an unrealized gain of $624,000, net of taxes. The
ineffective portion of the derivatives is recorded in cost of
sales and was $0 in 2006, 2005 and 2004.
The Company hedges certain intercompany and other payables with
forward foreign exchange contracts. Since these derivatives
hedge existing amounts that are denominated in foreign
currencies, the derivatives do not qualify for hedge accounting
under SFAS No. 133. The foreign exchange gain or loss
on these derivatives was immaterial in 2006, 2005 and 2004.
Realized and unrealized gains and losses on forward exchange
contracts that do not qualify for hedge accounting are
recognized immediately in earnings. The cash flows resulting
from forward exchange contracts that qualify for hedge
accounting are classified in the consolidated statement of cash
flows as part of cash flows from operating activities. Cash
flows resulting from forward exchange contracts that do not
qualify for hedge accounting are classified in the consolidated
statement of cash flows as investing activities. The Company
does not hold or issue derivative financial instruments for
trading purposes.
There were forward exchange contracts with notional amounts
totaling $20,324,000 outstanding at December 31, 2006 of
which $14,619,000 were outstanding to exchange Japanese yen for
U.S. dollars. There were forward exchange contracts with
notional amounts totaling $35,299,000 outstanding at
December 31, 2005. Of such forward exchange contracts,
$28,461,000 were outstanding to exchange Japanese yen for US
dollars. There were forward exchange contracts with notional
amounts totaling $26,301,000 outstanding at December 31,
2004. Of such forward exchange contracts, $21,550,000 were
outstanding to exchange Japanese yen for US dollars.
Gains and losses on forward exchange contracts that qualify for
hedge accounting are classified in cost of goods sold and
totaled a gain of $1,932,000 and $812,000 for the years ended
December 31, 2006 and 2005, respectively, and a loss of
$1,666,000 for the year ended December 31, 2004.
The fair values of forward exchange contracts at
December 31, 2006 and 2005, determined by applying period
end currency exchange rates to the notional contract amounts,
amounted to an unrealized gain of $998,000 and $1,237,000 for
the years ended December 31, 2006 and 2005, respectively.
47
MKS
INSTRUMENTS, INC.
NOTES TO
CONSOLIDATED FINANCIAL
STATEMENTS (CONTINUED)
(Tables
in thousands, except share and per share data)
Concentrations
of Credit Risk
The Companys significant concentrations of credit risk
consist principally of cash and cash equivalents, investments,
forward exchange contracts and trade accounts receivable. The
Company maintains cash and cash equivalents with financial
institutions including some banks with which it has borrowings.
The Company maintains investments primarily in
U.S. Treasury and government agency securities and
corporate debt securities, rated AA or higher. The Company
enters into forward currency contracts with high credit-quality
financial institutions in order to minimize credit risk
exposure. The Companys customers are primarily
concentrated in the semiconductor industry, and a limited number
of customers account for a significant portion of the
Companys revenues. The Company regularly monitors the
creditworthiness of its customers and believes it has adequately
provided for potential credit loss exposures. Credit is extended
for all customers based primarily on financial condition and
collateral is not required.
Fair
Value of Financial Instruments
The fair value of the term loans, including the current portion,
approximates its carrying value given its variable rate interest
provisions. The fair value of marketable securities is based on
quoted market prices. The fair value of mortgage notes is based
on borrowing rates for similar instruments and, therefore,
approximates its carrying value. For all other balance sheet
financial instruments, the carrying amount approximates fair
value because of the short period to maturity of these
instruments.
4) Inventories
Inventories consist of the following:
|
|
|
|
|
|
|
|
|
|
|
December 31,
|
|
|
|
2006
|
|
|
2005
|
|
|
Raw material
|
|
$
|
82,007
|
|
|
$
|
48,235
|
|
Work in process
|
|
|
26,943
|
|
|
|
18,283
|
|
Finished goods
|
|
|
40,870
|
|
|
|
31,724
|
|
|
|
|
|
|
|
|
|
|
|
|
$
|
149,820
|
|
|
$
|
98,242
|
|
|
|
|
|
|
|
|
|
|
5) Property,
Plant and Equipment
Property, plant and equipment consist of the following:
|
|
|
|
|
|
|
|
|
|
|
December 31,
|
|
|
|
2006
|
|
|
2005
|
|
|
Land
|
|
$
|
11,310
|
|
|
$
|
11,291
|
|
Buildings
|
|
|
63,932
|
|
|
|
62,963
|
|
Machinery and equipment
|
|
|
87,136
|
|
|
|
79,839
|
|
Furniture and fixtures and office
equipment
|
|
|
38,244
|
|
|
|
36,692
|
|
Leasehold improvements
|
|
|
8,082
|
|
|
|
6,966
|
|
Construction in progress
|
|
|
2,846
|
|
|
|
1,681
|
|
|
|
|
|
|
|
|
|
|
|
|
|
211,550
|
|
|
|
199,432
|
|
Less: accumulated depreciation and
amortization
|
|
|
132,087
|
|
|
|
120,706
|
|
|
|
|
|
|
|
|
|
|
|
|
$
|
79,463
|
|
|
$
|
78,726
|
|
|
|
|
|
|
|
|
|
|
48
MKS
INSTRUMENTS, INC.
NOTES TO
CONSOLIDATED FINANCIAL
STATEMENTS (CONTINUED)
(Tables
in thousands, except share and per share data)
Depreciation and amortization of property, plant and equipment
totaled $13,972,000, $12,351,000 and $13,074,000 for the years
ended December 31, 2006, 2005 and 2004, respectively.
6) Debt
Credit
Agreements and Short-Term Borrowings
On August 1, 2006, the Company renewed an unsecured
short-term LIBOR based loan agreement with a bank to be utilized
primarily by its Japanese subsidiary for short-term liquidity
purposes. The credit line, which expires on July 31, 2007,
provides for the Company to borrow in multiple currencies of up
to an equivalent of $35,000,000 U.S. dollars. At
December 31, 2006, the Company had outstanding borrowings
of $16,804,000 U.S. dollars, payable on demand, at an
interest rate of 1.45%.
Additionally, the Companys Japanese subsidiary has lines
of credit and short-term borrowing arrangements with one
financial institution which provide for aggregate borrowings as
of December 31, 2006 of up to $12,603,000, which generally
expire and are renewed at three month intervals. At
December 31, 2006 and 2005, total borrowings outstanding
under these arrangements were $5,041,000 and $5,938,000,
respectively, at an interest rate of 1.50% at December 31,
2006 and at interest rates ranging from 1.21% to 1.24% at
December 31, 2005.
Long-Term
Debt
Long-term debt consists of the following:
|
|
|
|
|
|
|
|
|
|
|
December 31,
|
|
|
|
2006
|
|
|
2005
|
|
|
Mortgage notes
|
|
$
|
5,000
|
|
|
$
|
6,667
|
|
Less: current portion
|
|
|
|
|
|
|
1,429
|
|
|
|
|
|
|
|
|
|
|
Long-term debt less current portion
|
|
$
|
5,000
|
|
|
$
|
5,238
|
|
|
|
|
|
|
|
|
|
|
In connection with an acquisition in 2002, the Company assumed a
long-term debt agreement with the County of Monroe Industrial
Development Agency (COMIDA) for a manufacturing facility located
in Rochester, New York. The terms are the same as that of
the underlying Industrial Development Revenue Bond which calls
for payments of interest only through July 1, 2014, at
which time the Bond is repayable in a lump sum of $5,000,000.
Interest is reset annually based on bond remarketing, with an
option by the Company to elect a fixed rate, subject to a
maximum rate of 13% per annum. At December 31, 2006
the interest rate was 3.95%. The bond is collateralized by the
building. The remaining principal balance outstanding at
December 31, 2006 was $5,000,000. The net book value of the
building at December 31, 2006 was approximately $9,848,000.
7) Commitments
and Contingencies
On November 3, 1999, On-Line Technologies Inc.
(On-Line), which MKS acquired in 2001, brought suit
in federal district court in Connecticut against Perkin-Elmer
Corp. (Perkin-Elmer) and certain other defendants
for infringement of On-Lines U.S. Patent
No. 5,440,143 (the 143 patent). The suit sought
injunctive relief and damages for infringement. Perkin-Elmer
filed a counterclaim seeking invalidity of the patent, costs and
attorneys fees, and in June 2002, moved for summary
judgment. In April 2003, the court granted the motion and
dismissed the case. MKS appealed this decision to the Federal
Circuit Court of Appeals, which, on October 13, 2004,
reversed the lower courts dismissal of MKS claim for
patent infringement, and the case was remanded to the district
court. On March 11, 2005, Perkin-Elmer stipulated that they
do infringe a specified claim of the 143 patent. Perkin-Elmer
filed a motion for summary judgment seeking to invalidate such
claim, which motion was denied on March 23, 2006. The court
established an October 2006 trial date. Perkin-Elmer then moved
for the court to reconsider its
49
MKS
INSTRUMENTS, INC.
NOTES TO
CONSOLIDATED FINANCIAL
STATEMENTS (CONTINUED)
(Tables
in thousands, except share and per share data)
decision and requested a stay of the trial. On
September 15, 2006, the court reversed itself, granting
Perkin-Elmers motion for reconsideration, and holding the
specified claim invalid. Following a September 26, 2006
status conference, the court denied the defendants request
to stay the trial of MKS remaining claims. The court
continued the trial date and requested summary judgment briefing
on the remaining claims following a court ordered
30-day delay
for the parties to attempt to settle the case. In January 2007,
the parties entered into a confidential settlement agreement,
the terms of which do not have a material financial impact to
MKS, and agreed to dismiss the case upon such terms.
Accordingly, on January 22, 2007, the parties filed with
the court a stipulation of dismissal, which the court granted on
January 26, 2007.
On October 3, 2005, MKS entered into a settlement agreement
with Advanced Energy Industries, Inc. (Advanced
Energy), pursuant to which Advanced Energy paid MKS
$3,000,000 in cash in October 2005. The settlement agreement was
entered into in connection with a patent infringement litigation
suit filed by MKS subsidiary, Applied Science and
Technology, Inc. (ASTeX), in Delaware district court
in May 2003 against Advanced Energy. The settlement agreement
also provided that Advanced Energy would not make, use, sell or
offer to sell its Rapid, Rapid FE, Rapid OE and Xstream products
(or related products) in the United States or any other country
in which we held a relevant patent or had pending a patent
application on the date of the settlement agreement, during the
life of any such patent (or resulting patent, in the case of
patent applications). On October 6, 2005, the federal
district court in Delaware issued a final judgment of
infringement and an injunction prohibiting Advanced Energy from
making, using, selling, offering to sell, or importing into the
United States such products.
The Company is subject to other legal proceedings and claims,
which have arisen in the ordinary course of business. In the
opinion of management, the ultimate disposition of these matters
will not have a material adverse effect on the Companys
results of operations, financial condition or cash flows.
The Company leases certain of its facilities and machinery and
equipment under capital and operating leases expiring in various
years through 2010 and thereafter. Generally, the facility
leases require the Company to pay maintenance, insurance and
real estate taxes. Rental expense under operating leases totaled
$7,443,000, $7,439,000 and $8,344,000, for the years ended
December 31, 2006, 2005 and 2004, respectively.
Minimum lease payments under operating and capital leases are as
follows:
|
|
|
|
|
|
|
|
|
|
|
Operating Leases
|
|
|
Capital Leases
|
|
|
Year ending December 31,
|
|
|
|
|
|
|
|
|
2007
|
|
$
|
7,405
|
|
|
$
|
1,432
|
|
2008
|
|
|
5,920
|
|
|
|
891
|
|
2009
|
|
|
4,484
|
|
|
|
289
|
|
2010
|
|
|
3,647
|
|
|
|
|
|
2011
|
|
|
2,789
|
|
|
|
|
|
Thereafter
|
|
|
7,077
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total minimum lease payments
|
|
$
|
31,322
|
|
|
|
2,612
|
|
|
|
|
|
|
|
|
|
|
Less: amounts representing interest
|
|
|
|
|
|
|
323
|
|
|
|
|
|
|
|
|
|
|
Present value of minimum lease
payments
|
|
|
|
|
|
|
2,289
|
|
Less: current portion
|
|
|
|
|
|
|
1,176
|
|
|
|
|
|
|
|
|
|
|
Long-term portion
|
|
|
|
|
|
$
|
1,113
|
|
|
|
|
|
|
|
|
|
|
As of December 31, 2006 the Company has entered into
non-cancelable purchase commitments for certain inventory
components and other equipment and services used in its normal
operations. The majority of these purchase commitments covered
by these arrangements are for periods of less than one year and
aggregate to
50
MKS
INSTRUMENTS, INC.
NOTES TO
CONSOLIDATED FINANCIAL
STATEMENTS (CONTINUED)
(Tables
in thousands, except share and per share data)
approximately $98,209,000. Additionally, the Company has engaged
a third party to provide certain computer equipment, IT network
services and IT support. This contract is for a period of
approximately six years beginning in September 2004 and has a
significant penalty for early termination. The obligation at
December 31, 2006 of approximately $22,660,000, excluding
capital lease and interest payments of $2,612,000, will be paid
over the term of the arrangement. Average annual payments are
expected to be approximately $5,700,000.
To the extent permitted by Massachusetts law, the Companys
Restated Articles of Organization, as amended, require the
Company to indemnify any of its current or former officers or
directors or any person who has served or is serving in any
capacity with respect to any of the Companys employee
benefit plans. Because no claim for indemnification has been
pursued by any person covered by the relevant provisions of the
Companys Restated Articles of Organization, the Company
believes that the estimated exposure for these indemnification
obligations is currently minimal. Accordingly, the Company has
no liabilities recorded for these requirements as of
December 31, 2006.
The Company also enters into agreements in the ordinary course
of business which include indemnification provisions. Pursuant
to these agreements, the Company indemnifies, holds harmless and
agrees to reimburse the indemnified party, generally its
customers, for losses suffered or incurred by the indemnified
party in connection with certain patent or other intellectual
property infringement claims, and, in some instances, other
claims, by any third party with respect to the Companys
products. The term of these indemnification obligations is
generally perpetual after execution of the agreement. The
maximum potential amount of future payments the Company could be
required to make under these indemnification agreements is, in
some instances, not contractually limited. The Company has never
incurred costs to defend lawsuits or settle claims related to
these indemnification obligations. As a result, the Company
believes the estimated fair value of these obligations is
minimal. Accordingly, the Company has no liabilities recorded
for these obligations as of December 31, 2006.
When, as part of an acquisition, the Company acquires all of the
stock or all of the assets and liabilities of another company,
the Company assumes liability for certain events or occurrences
that took place prior to the date of acquisition. The maximum
potential amount of future payments the Company could be
required to make for such obligations is undeterminable at this
time. Other than obligations recorded as liabilities at the time
of the acquisitions, historically the Company has not made
significant payments for these indemnifications. Accordingly, no
liabilities have been recorded for these obligations.
In conjunction with certain asset sales, the Company may provide
routine indemnifications whose terms range in duration and often
are not explicitly defined. Where appropriate, an obligation for
such indemnifications is recorded as a liability. Because the
amounts of liability under these types of indemnifications are
not explicitly stated, the overall maximum amount of the
obligation under such indemnifications cannot be reasonably
estimated. Other than obligations recorded as liabilities at the
time of the asset sale, historically the Company has not made
significant payments for these indemnifications.
8) Stockholders
Equity
Issuance
of Common Stock
On January 21, 2004, the Company issued
1,142,857 shares of its common stock at $26.25 per
share through a public offering. Proceeds of the offering, net
of underwriters discount and offering expenses, were
$28,251,000. On January 23, 2004, the underwriters
exercised their over-allotment option and therefore, the Company
issued an additional 171,429 shares of its common stock,
which generated net proceeds of $4,298,000.
Stock
Purchase Plans
The Companys Third Amended and Restated 1999 Employee
Stock Purchase Plan (the Purchase Plan) authorizes
the issuance of up to an aggregate of 1,250,000 shares of
Common Stock to participating employees.
51
MKS
INSTRUMENTS, INC.
NOTES TO
CONSOLIDATED FINANCIAL
STATEMENTS (CONTINUED)
(Tables
in thousands, except share and per share data)
Offerings under the Purchase Plan commence on June 1 and
December 1 and terminate, respectively, on November 30
and May 31. Under the Purchase Plan, eligible employees may
purchase shares of Common Stock through payroll deductions of up
to 10% of their compensation. The price at which an
employees option is exercised is the lower of (1) 85%
of the closing price of the Common Stock on the Nasdaq Global
Market on the day that each offering commences or (2) 85%
of the closing price on the day that each offering terminates.
During 2006 and 2005, the Company issued 120,515 and
113,525 shares, respectively, of Common Stock to employees
who participated in the Purchase Plan at exercise prices of
$16.59 and $17.65 in 2006 and $14.19 and $14.27 in 2005. As of
December 31, 2006, there were 471,572 shares reserved
for future issuance under the Purchase Plan.
The Companys Second Amended and Restated International
Employee Stock Purchase Plan (the Foreign Purchase
Plan) authorizes the issuance of up to an aggregate of
250,000 shares of Common Stock to participating employees.
Offerings under the Foreign Purchase Plan commence on
June 1 and December 1 and terminate, respectively, on
November 30 and May 31. Under the Foreign Purchase
Plan, eligible employees may purchase shares of Common Stock
through payroll deductions of up to 10% of their compensation.
The price at which an employees option is exercised is the
lower of (1) 85% of the closing price of the Common Stock
on the Nasdaq Global Market on the day that each offering
commences or (2) 85% of the closing price on the day that
each offering terminates. During 2006 and 2005, the Company
issued 23,236 and 24,933 shares, respectively, of Common
Stock to employees who participated in the Foreign Purchase Plan
at exercise prices of $16.59 and $17.65 and $14.19 and
$14.27 per share, respectively. As of December 31,
2006, there were 115,220 shares reserved for future
issuance under the Foreign Purchase Plan.
Equity
Incentive Plans
The Companys equity incentive plans (the
Plans) are intended to attract and retain employees
and to provide an incentive for them to assist the Company to
achieve long-range performance goals and to enable them to
participate in the long-term growth of the Company. Employees
may be granted restricted stock and restricted stock units
(collectively, restricted stock), options to
purchase shares of the Companys stock and other equity
incentives under the Plans.
The Companys 2004 Stock Incentive Plan (the 2004
Plan) was adopted by the board of directors on
March 4, 2004 and approved by the stockholders on
May 13, 2004. As of December 31, 2006 there were
5,411,818 shares authorized for issuance under the 2004
Plan, which amount shall increase each year by an amount equal
to 5% of the total outstanding shares of the Companys
common stock outstanding on January 1 of such year, provided
that the maximum aggregate number of shares of common stock
which may be issued under the 2004 Plan is
15,000,000 shares (subject to adjustment for certain
changes in MKS capitalization). The Company may grant
options, restricted stock awards, stock appreciation rights and
other stock-based awards to employees, officers, directors,
consultants and advisors under the 2004 Plan. As of
December 31, 2006 there were 4,632,943 shares
available for future grant under the 2004 Plan.
The Companys Second Restated 1995 Stock Incentive Plan
(the 1995 Plan) expired in November 2005 and no
further awards may be granted under the 1995 Plan, although
there are still outstanding options available for exercise under
this plan.
The Companys 1997 Director Stock Plan (the
1997 Director Plan) provides for (i) the
initial grant of options to purchase 20,000 shares of
common stock to each person who first becomes an outside
director and (ii) annual grants of options to purchase
12,000 shares of common stock on the date of the annual
meeting of stockholders. In December 2004, the board of
directors amended the 1997 Director Plan to allow for all
options granted on or after May 17, 2000 to be exercisable
within the three year period from the date of the
directors termination as director. On March 4, 2004,
the board of directors approved, and on May 13, 2004, the
stockholders approved, an increase in the number of shares
available for issuance under the 1997 Director Plan from
300,000 shares to 750,000 shares. As of
December 31, 2006 there were 323,500 shares available
for future grant under the 1997 Director Plan.
52
MKS
INSTRUMENTS, INC.
NOTES TO
CONSOLIDATED FINANCIAL
STATEMENTS (CONTINUED)
(Tables
in thousands, except share and per share data)
On January 7, 2005, the Company accelerated the vesting of
outstanding options with an exercise price of $23.00 or greater.
As a result of this action, options to purchase approximately
1,600,000 shares became exercisable on January 7,
2005. No compensation expense was recorded in 2005 related to
this action as these options had no intrinsic value on
January 7, 2005. The reason that the Company accelerated
the vesting of the identified stock options was to reduce the
Companys compensation charges in future years.
The Company has granted options to employees under the 2004
Plan, 1995 Plan and the 1993 Stock Option Plan and to directors
under the 1997 Director Plan and the 1996 Director
Stock Option Plan (collectively, the Plans). The
Plans are administered by the compensation committee of the
Companys board of directors.
At December 31, 2006, 4,956,443 shares of the
Companys common stock were available for future grants
under the Plans. Stock options are granted at an exercise price
equal to 100% of the fair value of the Companys common
stock. Generally, stock options granted to employees under the
Plans between 2001 and 2005 vest 25% after one year and
6.25% per quarter thereafter and expire 10 years after
the grant date. Generally, stock options granted under the Plans
prior to 2000 vest 20% after one year and 5% per quarter
thereafter, and expire 10 years after the grant date.
Options granted to directors generally vest at the earliest of
(1) the next annual meeting, (2) 13 months from
date of grant, or (3) the effective date of an acquisition.
Restricted stock awards generally vest three years from the date
of grant.
The following table presents the activity for options under the
Plans:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Year Ended December 31,
|
|
|
|
2006
|
|
|
2005
|
|
|
2004
|
|
|
|
|
|
|
Weighted
|
|
|
|
|
|
Weighted
|
|
|
|
|
|
Weighted
|
|
|
|
|
|
|
Average
|
|
|
|
|
|
Average
|
|
|
|
|
|
Average
|
|
|
|
|
|
|
Exercise
|
|
|
|
|
|
Exercise
|
|
|
|
|
|
Exercise
|
|
|
|
Options
|
|
|
Price
|
|
|
Options
|
|
|
Price
|
|
|
Options
|
|
|
Price
|
|
|
Outstanding beginning
of period
|
|
|
9,459,271
|
|
|
$
|
20.36
|
|
|
|
10,023,717
|
|
|
$
|
20.25
|
|
|
|
8,897,899
|
|
|
$
|
20.69
|
|
Granted
|
|
|
102,000
|
|
|
$
|
22.94
|
|
|
|
316,500
|
|
|
$
|
16.93
|
|
|
|
2,227,830
|
|
|
$
|
17.87
|
|
Exercised
|
|
|
(1,563,706
|
)
|
|
$
|
13.33
|
|
|
|
(382,211
|
)
|
|
$
|
10.70
|
|
|
|
(362,140
|
)
|
|
$
|
10.66
|
|
Forfeited or Expired
|
|
|
(382,910
|
)
|
|
$
|
24.64
|
|
|
|
(498,735
|
)
|
|
$
|
23.34
|
|
|
|
(739,872
|
)
|
|
$
|
23.30
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Outstanding end of
period
|
|
|
7,614,655
|
|
|
$
|
21.62
|
|
|
|
9,459,271
|
|
|
$
|
20.36
|
|
|
|
10,023,717
|
|
|
$
|
20.25
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Exercisable at end of period
|
|
|
6,720,395
|
|
|
$
|
22.36
|
|
|
|
7,750,739
|
|
|
$
|
21.45
|
|
|
|
5,763,521
|
|
|
$
|
20.42
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
The following table presents the activity for restricted stock
under the Plans:
|
|
|
|
|
|
|
|
|
|
|
Year Ended December 31,
|
|
|
|
2006
|
|
|
|
Non-Vested Restricted
|
|
|
Weighted Average
|
|
|
|
Stock
|
|
|
Grant Date Fair Value
|
|
|
Non-vested restricted
stock beginning of period
|
|
|
|
|
|
$
|
|
|
Granted
|
|
|
741,090
|
|
|
|
22.01
|
|
Vested
|
|
|
(1,250
|
)
|
|
|
22.43
|
|
Forfeited or Expired
|
|
|
(25,715
|
)
|
|
|
22.27
|
|
|
|
|
|
|
|
|
|
|
Non-vested restricted
stock end of period
|
|
|
714,125
|
|
|
$
|
22.00
|
|
|
|
|
|
|
|
|
|
|
53
MKS
INSTRUMENTS, INC.
NOTES TO
CONSOLIDATED FINANCIAL
STATEMENTS (CONTINUED)
(Tables
in thousands, except share and per share data)
The following table summarizes information with respect to
options outstanding and exercisable under the Plans at
December 31, 2006:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Options Outstanding
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Weighted
|
|
|
|
|
|
Options Exercisable
|
|
|
|
|
|
|
Weighted
|
|
|
Average
|
|
|
Aggregate
|
|
|
|
|
|
Weighted
|
|
|
Aggregate
|
|
|
|
|
|
|
Average
|
|
|
Remaining
|
|
|
Intrinsic
|
|
|
|
|
|
Average
|
|
|
Intrinsic
|
|
|
|
Number of
|
|
|
Exercise
|
|
|
Contractual
|
|
|
Value (In
|
|
|
Number of
|
|
|
Exercise
|
|
|
Value (In
|
|
|
|
|
|
|
Shares
|
|
|
Price
|
|
|
Life(In Years)
|
|
|
Thousands)
|
|
|
Shares
|
|
|
Price
|
|
|
Thousands)
|
|
|
|
|
|
$ 4.43 - $ 8.92
|
|
|
163,269
|
|
|
$
|
6.79
|
|
|
|
1.77
|
|
|
$
|
2,577
|
|
|
|
163,269
|
|
|
$
|
6.79
|
|
|
$
|
2,577
|
|
|
|
|
|
$10.86 - $19.00
|
|
|
3,071,976
|
|
|
$
|
15.88
|
|
|
|
6.27
|
|
|
|
20,582
|
|
|
|
2,283,835
|
|
|
$
|
16.15
|
|
|
|
14,683
|
|
|
|
|
|
$19.18 - $29.50
|
|
|
3,540,370
|
|
|
$
|
24.77
|
|
|
|
5.60
|
|
|
|
451
|
|
|
|
3,434,251
|
|
|
$
|
24.83
|
|
|
|
382
|
|
|
|
|
|
$29.93 - $61.50
|
|
|
839,040
|
|
|
$
|
32.18
|
|
|
|
5.11
|
|
|
|
|
|
|
|
839,040
|
|
|
$
|
32.18
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
7,614,655
|
|
|
$
|
21.62
|
|
|
|
5.73
|
|
|
$
|
23,610
|
|
|
|
6,720,395
|
|
|
$
|
22.36
|
|
|
$
|
17,642
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
The weighted average remaining contractual life of options
exercisable was 5.4 years at December 31, 2006.
The aggregate intrinsic value in the table above represents the
total pretax intrinsic value, based on the Companys
closing stock price of $22.58 as of December 31, 2006,
which would have been received by the option holders had all
option holders exercised their options as of that date. The
total number of
in-the-money
options exercisable as of December 31, 2006 was 2,612,470.
The total cash received from employees as a result of employee
stock option exercises during the years ended December 31,
2006 and 2005 was approximately $20,838,000 and $4,091,000,
respectively. In connection with these exercises, the net tax
benefits realized by the Company for the years ended
December 31, 2006 and 2005 were approximately $4,614,000
and $1,103,000, respectively.
The Company settles employee stock option exercises with newly
issued common shares.
Accumulated
Other Comprehensive Income
The balance of accumulated other comprehensive income (loss) was
comprised of the following:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Financial
|
|
|
|
|
|
Accumulated
|
|
|
|
|
|
|
Instruments
|
|
|
Unrealized
|
|
|
Other
|
|
|
|
Cumulative
|
|
|
Designated as
|
|
|
Gain
|
|
|
Comprehensive
|
|
|
|
Translation
|
|
|
Cash Flow
|
|
|
(Loss) on
|
|
|
Income
|
|
|
|
Adjustments
|
|
|
Hedges
|
|
|
Investments
|
|
|
(Loss)
|
|
|
Balance at December 31, 2004
|
|
$
|
13,705
|
|
|
$
|
(1,103
|
)
|
|
$
|
82
|
|
|
$
|
12,684
|
|
Foreign currency translation
adjustment, net of taxes of $0
|
|
|
(7,411
|
)
|
|
|
|
|
|
|
|
|
|
|
(7,411
|
)
|
Changes in value of financial
instruments designated as cash flow hedges, net of taxes of
$1,019
|
|
|
|
|
|
|
1,697
|
|
|
|
|
|
|
|
1,697
|
|
Change in unrealized gain (loss)
on investments, net of tax benefit of $21
|
|
|
|
|
|
|
|
|
|
|
(34
|
)
|
|
|
(34
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Balance at December 31, 2005
|
|
|
6,294
|
|
|
|
594
|
|
|
|
48
|
|
|
|
6,936
|
|
Foreign currency translation
adjustment, net of taxes of $0
|
|
|
3,172
|
|
|
|
|
|
|
|
|
|
|
|
3,172
|
|
Changes in value of financial
instruments designated as cash flow hedges, net of tax benefit
of $90
|
|
|
|
|
|
|
(149
|
)
|
|
|
|
|
|
|
(149
|
)
|
Change in unrealized gain (loss)
on investments, net of taxes of $64
|
|
|
|
|
|
|
|
|
|
|
106
|
|
|
|
106
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Balance at December 31, 2006
|
|
$
|
9,466
|
|
|
$
|
445
|
|
|
$
|
154
|
|
|
$
|
10,065
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
54
MKS
INSTRUMENTS, INC.
NOTES TO
CONSOLIDATED FINANCIAL
STATEMENTS (CONTINUED)
(Tables
in thousands, except share and per share data)
9) Income
Taxes
A reconciliation of the Companys 2006, 2005 and 2004
effective tax rate to the U.S. federal statutory rate
follows:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2006
|
|
|
2005
|
|
|
2004
|
|
|
U.S. Federal income tax
statutory rate
|
|
|
35.0
|
%
|
|
|
35.0
|
%
|
|
|
35.0
|
%
|
Federal and state tax credits
|
|
|
(1.7
|
)
|
|
|
(4.7
|
)
|
|
|
(3.5
|
)
|
State income taxes, net of federal
benefit
|
|
|
2.3
|
|
|
|
1.7
|
|
|
|
0.7
|
|
Effect of foreign operations taxed
at various rates
|
|
|
(7.1
|
)
|
|
|
(5.3
|
)
|
|
|
(6.9
|
)
|
Extraterritorial income and
qualified production activity tax benefit
|
|
|
(0.9
|
)
|
|
|
(2.0
|
)
|
|
|
(0.5
|
)
|
Deferred tax asset valuation
allowance
|
|
|
(2.1
|
)
|
|
|
1.3
|
|
|
|
(30.7
|
)
|
Other
|
|
|
2.5
|
|
|
|
0.5
|
|
|
|
2.0
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
28.0
|
%
|
|
|
26.5
|
%
|
|
|
(3.9
|
)%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
The components of income before income taxes and the related
provision (benefit) for income taxes consist of the following:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Year Ended December 31,
|
|
|
|
2006
|
|
|
2005
|
|
|
2004
|
|
|
Income before income taxes:
|
|
|
|
|
|
|
|
|
|
|
|
|
United States
|
|
$
|
72,276
|
|
|
$
|
14,872
|
|
|
$
|
37,098
|
|
Foreign
|
|
|
58,665
|
|
|
|
32,135
|
|
|
|
30,130
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$
|
130,941
|
|
|
$
|
47,007
|
|
|
$
|
67,228
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Current taxes:
|
|
|
|
|
|
|
|
|
|
|
|
|
United States Federal
|
|
$
|
36,056
|
|
|
$
|
1,958
|
|
|
$
|
841
|
|
State
|
|
|
3,252
|
|
|
|
1,259
|
|
|
|
716
|
|
Foreign
|
|
|
8,916
|
|
|
|
8,922
|
|
|
|
6,061
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
48,224
|
|
|
|
12,139
|
|
|
|
7,618
|
|
Deferred taxes:
|
|
|
|
|
|
|
|
|
|
|
|
|
United States Federal
|
|
|
(9,219
|
)
|
|
|
856
|
|
|
|
(9,141
|
)
|
State and Foreign
|
|
|
(2,299
|
)
|
|
|
(553
|
)
|
|
|
(1,088
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(11,518
|
)
|
|
|
303
|
|
|
|
(10,229
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Provision (benefit) for income
taxes
|
|
$
|
36,706
|
|
|
$
|
12,442
|
|
|
$
|
(2,611
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
55
MKS
INSTRUMENTS, INC.
NOTES TO
CONSOLIDATED FINANCIAL
STATEMENTS (CONTINUED)
(Tables
in thousands, except share and per share data)
At December 31, 2006 and 2005, the significant components
of the deferred tax assets and deferred tax liabilities were as
follows:
|
|
|
|
|
|
|
|
|
|
|
2006
|
|
|
2005
|
|
|
Deferred tax assets:
|
|
|
|
|
|
|
|
|
Net operating losses and credits
|
|
$
|
2,751
|
|
|
$
|
5,709
|
|
Inventory and warranty reserves
|
|
|
13,863
|
|
|
|
12,447
|
|
Accounts receivable and other
accruals
|
|
|
5,320
|
|
|
|
3,938
|
|
Depreciation and amortization
|
|
|
5,988
|
|
|
|
5,665
|
|
Stock-based compensation
|
|
|
4,447
|
|
|
|
|
|
Other
|
|
|
2,316
|
|
|
|
2,077
|
|
|
|
|
|
|
|
|
|
|
Total deferred tax assets
|
|
|
34,685
|
|
|
|
29,836
|
|
|
|
|
|
|
|
|
|
|
Deferred tax liabilities:
|
|
|
|
|
|
|
|
|
Acquired intangible assets
|
|
|
(18,618
|
)
|
|
|
(13,192
|
)
|
Other
|
|
|
(498
|
)
|
|
|
(135
|
)
|
|
|
|
|
|
|
|
|
|
Total deferred tax liabilities
|
|
|
(19,116
|
)
|
|
|
(13,327
|
)
|
|
|
|
|
|
|
|
|
|
Valuation allowance
|
|
|
(317
|
)
|
|
|
(3,497
|
)
|
|
|
|
|
|
|
|
|
|
Net deferred tax assets
|
|
$
|
15,252
|
|
|
$
|
13,012
|
|
|
|
|
|
|
|
|
|
|
At December 31, 2006, as a result of the acquisition of Ion
Systems, Inc (Ion), the Company had a federal net
operating loss carryforward of $1,216,080 and a federal general
business credit carryforward of $71,246. The Companys
intention is to carryback both these tax attributes to previous
Ion tax years and recover $497,000 of previously paid taxes.
Although the Company believes that its tax positions are
consistent with applicable U.S. federal and state and
international laws, certain tax reserves are maintained at
December 31, 2006 should these positions be challenged by
the applicable tax authority and additional tax assessed on
audit. During the year ended December 31, 2006, we received
a notification letter from the Israeli Ministry of Industry
Trade and Labor (MITL) indicating that our Israeli
operations were in compliance with requirements relating to the
tax holiday granted to our manufacturing operations in Israel in
2001. This tax holiday is anticipated to expire in 2011 and is
subject to meeting continued investment, employment and other
requirements under the guidelines of the MITL. This tax holiday
resulted in income tax savings of $5,125,000, $1,190,000 and
$2,547,000 for the years ended December 31, 2006, 2005 and
2004, respectively. Additionally, we recorded the impact of both
a change in German tax rules allowing interest deductions on
certain loans and adjustments relating to transfer pricing. As a
result of these items we recorded additional income tax benefits
of $1,565,000 for the year ended December 31, 2006.
During 2005, the Internal Revenue Service (IRS)
completed its examination of the Companys tax returns for
the tax years 1999 through 2002. As a result of this
examination, during the year ended December 31, 2005, the
Company recorded a reduction in income taxes payable of
$1,621,000, a benefit to income tax expense of $1,901,000 and a
$576,000 reduction of goodwill related to a previous acquisition.
The net reduction in the valuation allowance for the year ended
December 31, 2006 resulted from the utilization of state
tax credit carryovers of $2,706,000 and the expiration of
credits of $474,000 on a merged subsidiary.
During the year ended December 31, 2004, after examining a
number of factors, including historical results and near term
earnings projections, the Company determined that it was more
likely than not that it would realize all
56
MKS
INSTRUMENTS, INC.
NOTES TO
CONSOLIDATED FINANCIAL
STATEMENTS (CONTINUED)
(Tables
in thousands, except share and per share data)
of its net deferred tax assets, except for those related to
certain state tax credits. As a result of this analysis the
Company reduced its valuation allowance by $20,063,000 at
December 31, 2004 resulting in a net deferred tax asset of
$14,313,000. Of the total tax benefit from the reversal of the
valuation allowance, $3,850,000 was recorded as a reduction of
goodwill and $5,271,000 was recorded to additional paid-in
capital for the tax benefit from the exercise of stock options
during both the current and prior years.
On October 22, 2004, the American Jobs Creation Act of 2004
(the Act) was signed into law. The Act contains a
provision allowing U.S. multinational companies a one-time
incentive to repatriate foreign earnings at an effective tax
rate of 5.25%. During 2005, the Company conducted an extensive
study of the new provision and concluded that no opportunities
existed from which the Company could benefit from repatriation
of its undistributed foreign earnings. Through December 31,
2006, the Company has not provided deferred income taxes on the
undistributed earnings of its foreign subsidiaries because such
earnings were intended to be permanently reinvested outside the
U.S. Determination of the potential deferred income tax
liability on these undistributed earnings is not practicable
because such liability, if any, is dependent on circumstances
existing if and when remittance occurs. At December 31,
2006, the Company had $140,345,000 of undistributed earnings in
its foreign subsidiaries.
10) Employee
Benefit Plans
The Company has a 401(k) profit-sharing plan for
U.S. employees meeting certain requirements in which
eligible employees may contribute between 1% and 20% of their
annual compensation to this plan, and, with respect to employees
who are age 50 and older, certain specified additional
amounts, limited by an annual maximum amount determined by the
Internal Revenue Service. The Company, at its discretion, may
provide a matching contribution which will generally match up to
the first 2% of each participants compensation, plus 25%
of the next 4% of compensation. At the discretion of the board
of directors, the Company may also make additional contributions
for the benefit of all eligible employees. The Companys
contributions were $2,385,000, $1,894,000 and $1,773,000 for
2006, 2005 and 2004, respectively.
The Company maintains a bonus plan which provides cash awards to
key employees, at the discretion of the compensation committee
of the board of directors, based upon operating results and
employee performance. The bonus expense was $10,300,000 in 2006,
$2,402,000 in 2005 and was $4,617,000 in 2004.
The Company provides supplemental retirement benefits for
certain of its officers and executive officers. This obligation
was not material at December 31, 2006 and at
December 31, 2005.
11) Segment
and Geographical Information and Significant Customer
The Company operates in one segment for the development,
manufacturing, sales and servicing of products that measure,
control, power and monitor critical parameters of advanced
manufacturing processes. The Companys chief decision-maker
reviews consolidated operating results to make decisions about
allocating resources and assessing performance for the entire
Company.
Information about the Companys operations in different
geographic regions is presented in the tables below. Net sales
to unaffiliated customers are based on the location in which the
sale originated. Transfers between geographic areas are at
negotiated transfer prices and have been eliminated from
consolidated net sales.
57
MKS
INSTRUMENTS, INC.
NOTES TO
CONSOLIDATED FINANCIAL
STATEMENTS (CONTINUED)
(Tables
in thousands, except share and per share data)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Year Ended December 31,
|
|
|
|
2006
|
|
|
2005
|
|
|
2004
|
|
|
Geographic net sales
|
|
|
|
|
|
|
|
|
|
|
|
|
United States
|
|
$
|
515,896
|
|
|
$
|
320,816
|
|
|
$
|
367,233
|
|
Japan
|
|
|
96,936
|
|
|
|
79,820
|
|
|
|
85,571
|
|
Europe
|
|
|
70,648
|
|
|
|
52,687
|
|
|
|
46,868
|
|
Asia
|
|
|
99,321
|
|
|
|
55,971
|
|
|
|
55,408
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$
|
782,801
|
|
|
$
|
509,294
|
|
|
$
|
555,080
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
December 31,
|
|
|
|
2006
|
|
|
2005
|
|
|
Long lived assets
|
|
|
|
|
|
|
|
|
United States
|
|
$
|
68,393
|
|
|
$
|
66,588
|
|
Japan
|
|
|
5,479
|
|
|
|
5,679
|
|
Europe
|
|
|
4,908
|
|
|
|
4,311
|
|
Asia
|
|
|
3,609
|
|
|
|
4,493
|
|
|
|
|
|
|
|
|
|
|
|
|
$
|
82,389
|
|
|
$
|
81,071
|
|
|
|
|
|
|
|
|
|
|
The Company groups its products into three product groups. Net
sales for these product groups are as follows:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
December 31,
|
|
|
|
2006
|
|
|
2005
|
|
|
2004
|
|
|
Instruments and Control Systems
|
|
$
|
371,919
|
|
|
$
|
233,279
|
|
|
$
|
253,422
|
|
Power and Reactive Gas Products
|
|
|
328,810
|
|
|
|
215,858
|
|
|
|
234,230
|
|
Vacuum Products
|
|
|
82,072
|
|
|
|
60,157
|
|
|
|
67,428
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$
|
782,801
|
|
|
$
|
509,294
|
|
|
$
|
555,080
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
The Company had one customer comprising 21%, 18% and 20% of net
sales for the years ended December 31, 2006, 2005 and 2004,
respectively. During the years ended December 31, 2006,
2005 and 2004, the Company estimates that approximately 70%, 71%
and 74% of its net sales, respectively, were to semiconductor
capital equipment manufacturers and semiconductor device
manufacturers.
12) Acquisitions
On January 3, 2006, the Company completed its acquisition
of Ion Systems, Inc. (Ion), a leading provider of
electrostatic management solutions located in Alameda,
California, pursuant to an Agreement and Plan of Merger dated
November 25, 2005. Ions ionization technology
monitors electrostatic charge to reduce process contamination
and improve yields, which complements the Companys process
monitoring and control technologies. The aggregate purchase
price consisted of $68,073,000 in cash, net of $5,056,000 in
cash acquired, and $807,000 in acquisition related costs.
58
MKS
INSTRUMENTS, INC.
NOTES TO
CONSOLIDATED FINANCIAL
STATEMENTS (CONTINUED)
(Tables
in thousands, except share and per share data)
The following table summarizes the estimated fair value of the
assets acquired and liabilities assumed at the date of the
acquisition:
|
|
|
|
|
Current assets
|
|
$
|
17,310
|
|
Intangible assets
|
|
|
25,947
|
|
Other assets
|
|
|
3,066
|
|
Goodwill
|
|
|
45,017
|
|
|
|
|
|
|
Total assets acquired
|
|
|
91,340
|
|
Current liabilities
|
|
|
(7,245
|
)
|
Deferred tax liabilities
|
|
|
(10,159
|
)
|
|
|
|
|
|
Total liabilities assumed
|
|
|
(17,404
|
)
|
|
|
|
|
|
Total purchase price including
acquisition costs
|
|
$
|
73,936
|
|
|
|
|
|
|
The goodwill and other intangible assets associated with the
acquisition are not deductible for tax purposes. Of the
$25,947,000 of acquired intangible assets, the following table
reflects the allocation of the acquired intangible assets and
related estimates of useful lives:
|
|
|
|
|
|
|
Customer relationships
|
|
$
|
11,992
|
|
|
8-year
useful life
|
Completed technology
|
|
|
10,255
|
|
|
6-year
useful life
|
Tradenames
|
|
|
2,300
|
|
|
8-year
useful life
|
Order backlog
|
|
|
1,000
|
|
|
3 months
|
In-process research and development
|
|
|
400
|
|
|
|
|
|
|
|
|
|
|
|
|
$
|
25,947
|
|
|
|
|
|
|
|
|
|
|
This transaction resulted in an amount of purchase price that
exceeded the estimated fair values of tangible and intangible
assets, which was allocated to goodwill. The Company believes
that the amount of goodwill relative to identifiable intangible
assets relates to several factors including: (1) potential
buyer-specific synergies related to market opportunities for a
combined product offering and (2) potential to leverage the
Companys sales force and intellectual property to attract
new customers and revenue.
On January 3, 2006, the Company completed its acquisition
of Umetrics, AB (Umetrics), a leader in multivariate
data analysis and modeling software located in Umea, Sweden,
pursuant to a Sale and Purchase Agreement dated
December 15, 2005. Umetrics multivariate data
analysis and modeling software converts process data into
useable information for yield improvement when linked with the
Companys open and modular platform of process sensors and
data collection, integration, data storage, and visualization
capabilities. The purchase price consisted of $27,400,000 in
cash, net of $2,602,000 in cash acquired, and $392,000 in
acquisition related costs.
59
MKS
INSTRUMENTS, INC.
NOTES TO
CONSOLIDATED FINANCIAL
STATEMENTS (CONTINUED)
(Tables
in thousands, except share and per share data)
The following table summarizes the estimated fair value of the
assets acquired and liabilities assumed at the date of the
acquisition:
|
|
|
|
|
Current assets
|
|
$
|
4,243
|
|
Intangible assets
|
|
|
7,650
|
|
Other assets
|
|
|
400
|
|
Goodwill
|
|
|
22,060
|
|
|
|
|
|
|
Total assets acquired
|
|
|
34,353
|
|
Current liabilities
|
|
|
(1,929
|
)
|
Deferred tax liabilities
|
|
|
(2,030
|
)
|
|
|
|
|
|
Total liabilities assumed
|
|
|
(3,959
|
)
|
|
|
|
|
|
Total purchase price including
acquisition costs
|
|
$
|
30,394
|
|
|
|
|
|
|
The goodwill and other intangible assets associated with the
acquisition are not deductible for tax purposes. Of the
$7,650,000 of acquired intangible assets, the following table
reflects the allocation of the acquired intangible assets and
related estimates of useful lives:
|
|
|
|
|
|
|
Customer relationships
|
|
$
|
2,300
|
|
|
8-year
useful life
|
Completed technology
|
|
|
4,150
|
|
|
4-6-year
useful life
|
Tradenames
|
|
|
800
|
|
|
8-year
useful life
|
In-process research and development
|
|
|
400
|
|
|
|
|
|
|
|
|
|
|
|
|
$
|
7,650
|
|
|
|
|
|
|
|
|
|
|
This transaction resulted in an amount of purchase price that
exceeded the estimated fair values of tangible and intangible
assets, which was allocated to goodwill. The Company believes
that the amount of goodwill relative to identifiable intangible
assets relates to several factors including: (1) being a
provider of multivariate software technology which will be
increasingly important to solution providers for semiconductor
and other industrial customers and (2) enhanced ability to
combine Umetrics software products with MKS
traditional hardware products.
Ions ionization technology and Umetrics multivariate
data analysis technology both complement our process control and
monitoring technologies and will support the Companys
mission to improve process performance and productivity.
On October 11, 2006, we completed our acquisition of Novx
Corp. (Novx), a provider of electrostatic charge
monitoring technology for semiconductor, data storage,
telecommunication, medical device and other markets. Novxs
technology expands our capability to monitor, detect and control
electrostatic charge in advanced process environments, such as
semiconductor and hard disk drive manufacturing. The total
purchase price for Novx was $2,552,000.
The results of these acquisitions were included in the
Companys consolidated operations beginning on the date of
acquisition. The pro forma consolidated statements reflecting
the operating results of Ion, Umetrics and Novx, had they been
acquired as of January 1, 2005, would not differ materially
from the operating results of the Company as reported for the
twelve months ended December 31, 2005.
13) Sale
of Assets
In August 2001, the Company sold certain assets for proceeds of
approximately $9,000,000, consisting of approximately $4,700,000
in cash, $3,900,000 in a note receivable and $200,000 of
warrants. The note receivable
60
MKS
INSTRUMENTS, INC.
NOTES TO
CONSOLIDATED FINANCIAL
STATEMENTS (CONTINUED)
(Tables
in thousands, except share and per share data)
had an annual interest rate of 9.0% and was scheduled to mature
on August 7, 2004. The loss on the transaction was
$1,246,000 before taxes. During 2002, due to the downturn in the
semiconductor industry and its result on the acquirers
operations, and the acquirers inability to raise
financing, the Company considered the value of the note and
warrants to be impaired. Accordingly, during 2002, MKS recorded
a charge of $4,121,000 to other expense for the Companys
estimate of the impairment on the note receivable and warrants.
During 2004, the Company received $5,042,000 related to the
collection of the note receivable and accrued interest and the
cancellation of the warrants. This amount was recorded as a gain
and included in other income.
14) Restructuring
and Asset Impairment Charges
As a result of the Companys various acquisitions from 2000
through 2002 and the downturn in the semiconductor capital
equipment market which began in 2000, the Company had redundant
activities and excess manufacturing capacity and office space.
Therefore in 2002, and continuing through the first quarter of
2004, the Company implemented restructuring activities to
rationalize manufacturing operations and reduce operating
expenses. As a result of these actions, the Company recorded
restructuring and asset impairment charges of $4,319,000 between
2002 and 2003.
During 2004, the Company completed its enacted restructuring
activities related to the consolidation of operations from
acquired companies when it exited an additional leased facility
and recorded a restructuring charge of $437,000.
During 2005, the Company initiated a restructuring plan related
to its Berlin, Germany location. This consolidation of
activities included the reduction of 16 employees. The total
restructuring charge related to this consolidation was $454,000,
which consisted of $251,000 related to the repayment of a
government grant and $203,000 in severance costs.
Also during 2005, the Company terminated a lease related to a
facility previously exited. Prior to the lease being terminated,
the Company had an accrual of approximately $784,000 related to
this facility. After making the lease settlement payment and
payments for other contractual obligations, the remaining
balance of approximately $278,000 was reversed as there was no
remaining obligation.
The following table sets forth the components of the
restructuring activities initiated during 2006, 2005 and 2004,
and the related accruals remaining at December 31, 2006:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Workforce
|
|
|
|
|
|
Facility
|
|
|
|
|
|
|
Reductions
|
|
|
Other
|
|
|
Consolidations
|
|
|
Total
|
|
|
Reserve balance as of
December 31, 2003
|
|
$
|
199
|
|
|
$
|
|
|
|
$
|
1,831
|
|
|
$
|
2,030
|
|
Restructuring provision in 2004
|
|
|
|
|
|
|
|
|
|
|
437
|
|
|
|
437
|
|
Charges utilized in 2004
|
|
|
(110
|
)
|
|
|
|
|
|
|
(736
|
)
|
|
|
(846
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Reserve balance as of
December 31, 2004
|
|
|
89
|
|
|
|
|
|
|
|
1,532
|
|
|
|
1,621
|
|
Restructuring provision in 2005
|
|
|
199
|
|
|
|
251
|
|
|
|
(365
|
)
|
|
|
85
|
|
Charges utilized in 2005
|
|
|
(204
|
)
|
|
|
|
|
|
|
(852
|
)
|
|
|
(1,056
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Reserve balance as of
December 31, 2005
|
|
|
84
|
|
|
|
251
|
|
|
|
315
|
|
|
|
650
|
|
Restructuring provision in 2006
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Charges utilized in 2006
|
|
|
(84
|
)
|
|
|
(251
|
)
|
|
|
(207
|
)
|
|
|
(542
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Reserve balance as of
December 31, 2006
|
|
$
|
|
|
|
$
|
|
|
|
$
|
108
|
|
|
$
|
108
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
The remaining facilities consolidation charges will be paid over
the remaining lease term, which ends in 2007.
61
MKS
INSTRUMENTS, INC.
NOTES TO
CONSOLIDATED FINANCIAL
STATEMENTS (CONTINUED)
(Tables
in thousands, except share and per share data)
15) Goodwill
and Intangible Assets
The Company is required to perform an annual impairment test of
its goodwill under the provisions of SFAS 142.
SFAS 142 requires that companies identify and assess
goodwill at the reporting unit level. Reporting units are
defined as operating segments or one level below an operating
segment, referred to as a component. The Company has determined
that its reporting units are components of its operating
segment. The Company allocates goodwill to reporting units at
the time of acquisition and bases that allocation on which
reporting units will benefit from the acquired assets and
liabilities. The fair value of each reporting unit with goodwill
is compared to its recorded book value. An excess of book value
over fair value indicates that an impairment of goodwill exists.
Fair value is based on a discounted cash flow analysis of
expectations of future earnings for each of the reporting units
with goodwill. The Company completed its annual impairment test
for 2006 and 2005 and concluded that no impairment of goodwill
existed as of October 31, 2006 or October 31, 2005,
the annual goodwill measurement date.
The changes in the carrying amount of goodwill during the years
ended December 31, 2006 and 2005 were as follows:
|
|
|
|
|
|
|
|
|
|
|
Year Ended
|
|
|
|
December 31, 2006
|
|
|
December 31, 2005
|
|
|
Balance, beginning of year
|
|
$
|
255,243
|
|
|
$
|
255,740
|
|
Goodwill acquired during the year
|
|
|
68,606
|
|
|
|
|
|
IRS settlement adjustment and
foreign currency translation
|
|
|
124
|
|
|
|
(497
|
)
|
|
|
|
|
|
|
|
|
|
Balance, end of year
|
|
$
|
323,973
|
|
|
$
|
255,243
|
|
|
|
|
|
|
|
|
|
|
Components of the Companys acquired intangible assets are
comprised of the following:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
December 31, 2006
|
|
|
December 31, 2005
|
|
|
|
Gross
|
|
|
|
|
|
Gross
|
|
|
|
|
|
|
Carrying
|
|
|
Accumulated
|
|
|
Carrying
|
|
|
Accumulated
|
|
|
|
Amount
|
|
|
Amortization
|
|
|
Amount
|
|
|
Amortization
|
|
|
Completed technology
|
|
$
|
87,087
|
|
|
$
|
(63,570
|
)
|
|
$
|
72,421
|
|
|
$
|
(51,520
|
)
|
Customer relationships
|
|
|
20,932
|
|
|
|
(7,139
|
)
|
|
|
6,640
|
|
|
|
(4,481
|
)
|
Patents, trademarks, tradenames
and other
|
|
|
16,494
|
|
|
|
(10,700
|
)
|
|
|
12,395
|
|
|
|
(8,032
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$
|
124,513
|
|
|
$
|
(81,409
|
)
|
|
$
|
91,456
|
|
|
$
|
(64,033
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Aggregate amortization expense related to acquired intangibles
for the years ended December 31, 2006, 2005 and 2004 were
$17,376,000, $13,864,000 and $14,764,000, respectively.
Estimated amortization expense related to acquired intangibles
for each of the five succeeding years is as follows:
|
|
|
|
|
Year
|
|
Amount
|
|
|
2007
|
|
$
|
15,769
|
|
2008
|
|
|
8,096
|
|
2009
|
|
|
5,835
|
|
2010
|
|
|
4,742
|
|
2011
|
|
|
4,327
|
|
16) Product
Warranties
The Company provides for the estimated costs to fulfill customer
warranty obligations upon the recognition of the related
revenue. While the Company engages in extensive product quality
programs and processes, including actively monitoring and
evaluating the quality of its component suppliers, the
Companys warranty obligation is
62
MKS
INSTRUMENTS, INC.
NOTES TO
CONSOLIDATED FINANCIAL
STATEMENTS (CONTINUED)
(Tables
in thousands, except share and per share data)
affected by product failure rates, utilization levels, material
usage, and supplier warranties on parts delivered to the
Company. Should actual product failure rates, utilization
levels, material usage, or supplier warranties on parts differ
from the Companys estimates, revisions to the estimated
warranty liability would be required.
Product warranty activity for the years ended December 31,
were as follows:
|
|
|
|
|
|
|
|
|
|
|
2006
|
|
|
2005
|
|
|
Balance at beginning of year
|
|
$
|
7,766
|
|
|
$
|
7,601
|
|
Warranty assumed through
acquisitions
|
|
|
612
|
|
|
|
|
|
Provisions for product warranties
|
|
|
13,006
|
|
|
|
8,392
|
|
Direct charges to the warranty
liability
|
|
|
(9,835
|
)
|
|
|
(8,227
|
)
|
|
|
|
|
|
|
|
|
|
Balance at end of year
|
|
$
|
11,549
|
|
|
$
|
7,766
|
|
|
|
|
|
|
|
|
|
|
17) Other
Accrued Expenses
Other accrued expenses consist of:
|
|
|
|
|
|
|
|
|
|
|
December 31
|
|
|
|
2006
|
|
|
2005
|
|
|
Product warranties
|
|
$
|
11,549
|
|
|
$
|
7,766
|
|
Other
|
|
|
13,482
|
|
|
|
11,333
|
|
|
|
|
|
|
|
|
|
|
|
|
$
|
25,031
|
|
|
$
|
19,099
|
|
|
|
|
|
|
|
|
|
|
18) Related
Party Transactions
The Vice President and General Manager of the Companys
Vacuum Products Group is the general partner of two real estate
entities (the Aspen Entities). The Company leases
from the Aspen Entities certain facilities occupied by the
Companys Vacuum Products Group in Boulder, Colorado. The
Company paid Aspen $751,000, $835,000 and $1,111,000 in 2006,
2005 and 2004, respectively, to lease such facilities.
Emerson Electric Co. (Emerson) was the beneficial
owner of approximately 5% of the outstanding shares of the
Companys common stock at December 31, 2006. During
2006, 2005 and 2004, the Company purchased materials and
administrative services from Emerson and its subsidiaries
totaling approximately $1,430,000, $800,000 and $1,854,000,
respectively. In addition, in accordance with the terms of a
Shareholders Agreement between the Company and Emerson,
the Company paid the expenses of Emerson relating to the
registration of shares in connection with a public offering of
Common Stock that closed in January 2004. Such expenses were
$176,000.
19) Subsequent
Event Share Repurchase Program
On February 12, 2007, the Companys Board of Directors
approved a share repurchase program (the Program)
for the repurchase of up to $300 million of the
Companys outstanding stock over the next two years. The
repurchases may be made from time to time on the open market or
through privately negotiated transactions. The timing and amount
of any shares repurchased under the Program will depend on a
variety of factors, including price, corporate and regulatory
requirements, capital availability, and other market conditions.
The Program may be discontinued at any time at the discretion of
the Company and its Board of Directors.
63
MKS
INSTRUMENTS, INC.
SUPPLEMENTAL
FINANCIAL DATA
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Quarter Ended
|
|
|
|
March 31
|
|
|
June 30
|
|
|
Sept. 30
|
|
|
Dec. 31
|
|
|
|
(Table in thousands, except per share data)
|
|
|
|
(Unaudited)
|
|
|
2006
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Statement of Operations
Data
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net sales
|
|
$
|
179,061
|
|
|
$
|
198,351
|
|
|
$
|
205,494
|
|
|
$
|
199,895
|
|
Gross profit
|
|
|
73,745
|
|
|
|
86,501
|
|
|
|
90,619
|
|
|
|
87,257
|
|
Income from operations (1)
|
|
|
21,869
|
|
|
|
34,452
|
|
|
|
35,622
|
|
|
|
30,598
|
|
Net income (1,2)
|
|
$
|
15,435
|
|
|
$
|
24,374
|
|
|
$
|
27,933
|
|
|
$
|
26,493
|
|
Net income per share:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Basic
|
|
$
|
0.28
|
|
|
$
|
0.44
|
|
|
$
|
0.50
|
|
|
$
|
0.47
|
|
Diluted
|
|
$
|
0.28
|
|
|
$
|
0.44
|
|
|
$
|
0.50
|
|
|
$
|
0.47
|
|
2005
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Statement of Operations
Data
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net sales
|
|
$
|
127,407
|
|
|
$
|
130,193
|
|
|
$
|
122,520
|
|
|
$
|
129,174
|
|
Gross profit
|
|
|
49,362
|
|
|
|
51,786
|
|
|
|
47,657
|
|
|
|
51,629
|
|
Income from operations (3)
|
|
|
6,820
|
|
|
|
10,364
|
|
|
|
8,528
|
|
|
|
14,836
|
|
Net income (3,4)
|
|
|
5,458
|
|
|
|
9,778
|
|
|
|
7,224
|
|
|
|
12,105
|
|
Net income per share:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Basic
|
|
$
|
0.10
|
|
|
$
|
0.18
|
|
|
$
|
0.13
|
|
|
$
|
0.22
|
|
Diluted
|
|
$
|
0.10
|
|
|
$
|
0.18
|
|
|
$
|
0.13
|
|
|
$
|
0.22
|
|
|
|
|
(1) |
|
Income from operations and Net income for the quarters ended
March 31, June 30, September 30 and
December 31, 2006 include stock-based compensation,
excluding tax benefits, of $2.7 million, $3.3 million,
$3.9 million and $3.3 million, respectively, as a
result of adopting SFAS 123R. |
|
(2) |
|
Net income for the quarter ended September 30, 2006
includes a net tax benefit of $1.6 million primarily
attributable to certain discrete tax matters related to our
international operations. Net income for the quarter ended
December 31, 2006 includes a net tax benefit of
$3.1 million attributable to the impact on prior quarters
of the retroactive extension of the R&D tax credit from
January 1, 2006 through December 31, 2006 and to a
reduction of the valuation allowance on state tax credits. |
|
(3) |
|
Income from operations and Net income for the quarter ended
December 31, 2005, include income from a litigation
settlement of $3.0 million and $1.9 million, net of
tax, respectively. |
|
(4) |
|
Net income for the quarter ended June 30, 2005 includes a
benefit of $1.9 million in connection with closing an IRS
audit. |
64
|
|
Item 9.
|
Changes
in and Disagreements with Accountants on Accounting and
Financial Disclosure
|
None.
|
|
Item 9A.
|
Controls
and Procedures
|
Effectiveness
of Disclosure Controls and Procedures
MKS management, with the participation of our chief
executive officer and chief financial officer, evaluated the
effectiveness of our disclosure controls and procedures as of
December 31, 2006. The term disclosure controls and
procedures, as defined in
Rules 13a-15(e)
and
15d-15(e)
under the Securities Exchange Act of 1934, as amended (the
Exchange Act), means controls and other procedures
of a company that are designed to ensure that information
required to be disclosed by the company in the reports that it
files or submits under the Exchange Act is recorded, processed,
summarized and reported, within the time periods specified in
the SECs rules and forms. Disclosure controls and
procedures include, without limitation, controls and procedures
designed to ensure that information required to be disclosed by
a company in the reports that it files or submits under the
Exchange Act is accumulated and communicated to the
companys management, including its principal executive and
principal financial officers, as appropriate to allow timely
decisions regarding required disclosure. Management recognizes
that any controls and procedures, no matter how well designed
and operated, can provide only reasonable assurance of achieving
their objectives and management necessarily applies its judgment
in evaluating the cost-benefit relationship of possible controls
and procedures. Based on the evaluation of our disclosure
controls and procedures as of December 31, 2006, our chief
executive officer and chief financial officer concluded that, as
of such date, our disclosure controls and procedures were
effective at the reasonable assurance level.
Managements
Annual Report on Internal Control over Financial
Reporting
The management of MKS is responsible for establishing and
maintaining adequate internal control over financial reporting.
Internal control over financial reporting is defined in
Rules 13a-15(f)
and
15d-15(f)
promulgated under the Exchange Act of 1934, as amended, as a
process designed by, or under the supervision of, the
companys principal executive and principal financial
officers and effected by the Companys board of directors,
management and other personnel, to provide reasonable assurance
regarding the reliability of financial reporting and the
preparation of financial statements for external purposes in
accordance with generally accepted accounting principles and
includes those policies and procedures that:
|
|
|
|
|
Pertain to the maintenance of records that in reasonable detail
accurately and fairly reflect the transactions and dispositions
of the assets of the Company;
|
|
|
|
Provide reasonable assurance that transactions are recorded as
necessary to permit preparation of financial statements in
accordance with generally accepted accounting principles, and
that receipts and expenditures of the company are being made
only in accordance with authorizations of management and
directors of the Company; and
|
|
|
|
Provide reasonable assurance regarding prevention or timely
detection of unauthorized acquisition, use or disposition of the
companys assets that could have a material effect on the
financial statements.
|
Because of its inherent limitations, internal control over
financial reporting may not prevent or detect misstatements.
Projections of any evaluation of effectiveness to future periods
are subject to the risk that controls may become inadequate
because of changes in conditions, or that the degree of
compliance with the policies or procedures may deteriorate.
Our management assessed the effectiveness of our internal
control over financial reporting as of December 31, 2006.
In making this assessment, MKS management used the
criteria set forth by the Committee of Sponsoring Organizations
of the Treadway Commission (COSO) in Internal Control-Integrated
Framework.
Based on our assessment, management concluded that, as of
December 31, 2006, our internal control over financial
reporting was effective based on those criteria.
65
Management has excluded the operations of Ion Systems Inc.
(Ion), Umetrics, AB (Umetrics) and
Novx Corp. (Novx) from its assessment of
internal control over financial reporting as of
December 31, 2006 because those entities were acquired by
the Company in purchase business combinations during fiscal
2006. The total assets and total revenues of the acquired
businesses of Ion, Umetrics and Novx represent 12% and 5%,
respectively, of the related consolidated financial statement
amounts as of and for the year ended December 31, 2006.
Our managements assessment of the effectiveness of our
internal control over financial reporting as of
December 31, 2006 has been audited by
PricewaterhouseCoopers LLP, an independent registered public
accounting firm, as stated in their report which appears on
page 34.
Changes
in Internal Control over Financial Reporting
There was no change in our internal control over financial
reporting (as defined in
Rules 13a-15(f)
and
15d-15(f)
under the Exchange Act) that occurred during the quarter ended
December 31, 2006 that has materially affected, or is
reasonably likely to materially affect, our internal control
over financial reporting.
|
|
Item 9B.
|
Other
Information
|
None.
PART III
|
|
Item 10.
|
Directors,
Executive Officers and Corporate Governance
|
The information required by this item is set forth under the
captions Election of Directors, Executive
Officers, Code of Ethics,
Directors Audit Committee Financial
Expert and Corporate Governance in our
definitive proxy statement for the 2007 Annual Meeting of
Stockholders, and is incorporated herein by reference.
We are also required under Item 405 of
Regulation S-K
to provide information concerning delinquent filers of reports
under Section 16 of the Securities and Exchange Act of
1934, as amended. This information is listed under the caption
Section 16(a) Beneficial Ownership Reporting
Compliance in our definitive proxy statement for the 2007
Annual Meeting of Stockholders to be filed with the Securities
and Exchange Commission no later than 120 days after the
end of our fiscal year. This information is incorporated herein
by reference.
|
|
Item 11.
|
Executive
Compensation
|
The information required by this item is set forth under the
captions Executive Officers Executive
Compensation and Executive Officers
Compensation Discussion and Analysis in our definitive
proxy statement for the 2007 Annual Meeting of Stockholders to
be filed with the Securities and Exchange Commission no later
than 120 days after the end of our fiscal year. This
information is incorporated herein by reference.
|
|
Item 12.
|
Security
Ownership of Certain Beneficial Owners and Management and
Related Stockholder Matters
|
The information required by Item 403 of
Regulation S-K
is set forth under the caption Security Ownership of
Certain Beneficial Owners and Management in our definitive
proxy statement for the 2007 Annual Meeting of Stockholders to
be filed with the Securities and Exchange Commission no later
than 120 days after the end of our fiscal year. This
information is incorporated herein by reference.
The information required by Item 201(d) of
Regulation S-K
is set forth under the caption Executive
Officers Equity Compensation Plan Information
in our definitive proxy statement for the 2007 Annual Meeting of
Stockholders to be filed with the Securities and Exchange
Commission no later than 120 days after the end of our
fiscal year. This information is incorporated herein by
reference.
66
|
|
Item 13.
|
Certain
Relationships and Related Transactions, and Director
Independence
|
The information required by this item is set forth under the
caption Executive Officers Certain
Relationships and Related Transactions and Corporate
Governance in our definitive proxy statement for the 2007
Annual Meeting of Stockholders to be filed with the Securities
and Exchange Commission no later than 120 days after the
end of our fiscal year. This information is incorporated herein
by reference.
|
|
Item 14.
|
Principal
Accountant Fees and Services
|
The information required by this item is set forth under the
caption Independent Registered Public Accounting
Firm in our definitive proxy statement for the 2007 Annual
Meeting of Stockholders to be filed with the Securities and
Exchange Commission no later than 120 days after the end of
our fiscal year. This information is incorporated herein by
reference.
PART IV
|
|
Item 15.
|
Exhibits
and Financial Statement Schedules
|
(a) The following documents are filed as a part of this
Report:
1. Financial Statements. The following
Consolidated Financial Statements are included under Item 8
on this Annual Report on
Form 10-K.
INDEX TO
CONSOLIDATED FINANCIAL STATEMENTS
|
|
|
|
|
Financial Statements:
|
|
|
|
|
|
|
|
34
|
|
|
|
|
36
|
|
|
|
|
37
|
|
|
|
|
38
|
|
|
|
|
39
|
|
|
|
|
40
|
|
2. Financial Statement Schedules
The following consolidated financial statement schedule is
included in this Annual Report on
Form 10-K
of Item 15(d):
Schedule II Valuation and Qualifying Accounts
Schedules other than those listed above have been omitted since
they are either not required or information is otherwise
included.
3. Exhibits. The following exhibits
are filed as part of this Annual Report on
Form 10-K
pursuant to Item 15(c).
|
|
|
|
|
Exhibit No.
|
|
Title
|
|
|
+3
|
.1 (1)
|
|
Restated Articles of Organization
|
|
+3
|
.2 (2)
|
|
Articles of Amendment, as filed
with the Secretary of State of Massachusetts on May 18, 2001
|
|
+3
|
.3 (3)
|
|
Articles of Amendment, as filed
with the Secretary of State of Massachusetts on May 16, 2002
|
|
+3
|
.4 (4)
|
|
Amended and Restated By-Laws
|
|
+4
|
.1 (4)
|
|
Specimen certificate representing
the common stock
|
|
+10
|
.1(5)*
|
|
Applied Science and Technology,
Inc. 1993 Stock Option Plan, as amended
|
67
|
|
|
|
|
Exhibit No.
|
|
Title
|
|
|
+10
|
.2(6)*
|
|
Applied Science and Technology,
Inc. 1994 Formula Stock Option Plan, as amended
|
|
+10
|
.3(4)*
|
|
1996 Amended and Restated Director
Stock Option Plan
|
|
+10
|
.4(7)*
|
|
Second Amended and Restated
1997 Director Stock Option Plan, and forms of option
agreements thereto
|
|
+10
|
.5(8)*
|
|
2004 Stock Incentive Plan, as
amended (the 2004 Plan)
|
|
+10
|
.6(9)*
|
|
Form of Nonstatutory Stock Option
Agreement to be granted under the 2004 Plan
|
|
+10
|
.7(10)*
|
|
Form of Performance Stock Award
under the 2004 Plan
|
|
+10
|
.8(11)*
|
|
Form of Restricted Stock Award
under the 2004 Plan
|
|
+10
|
.9(12)*
|
|
Form of Restricted Stock Unit
Agreement (cliff vesting) under the 2004 Plan
|
|
10
|
.10*
|
|
Form of Restricted Stock Unit
Agreement for Initial Grant to Non-Employee Directors under the
2004 Plan
|
|
10
|
.11*
|
|
Form of Restricted Stock Unit
Agreement for Annual Grant to Non-Employee Directors under the
2004 Plan
|
|
10
|
.12*
|
|
Form of Performance-Based
Restricted Stock Unit Agreement under the 2004 Plan
|
|
10
|
.13*
|
|
Form of Time-Based Restricted
Stock Unit Agreement under the 2004 Plan
|
|
+10
|
.14(13)*
|
|
Second Restated 1995 Stock
Incentive Plan (the 1995 Plan)
|
|
+10
|
.15(14)*
|
|
Form of Nonstatutory Stock Option
Agreement under the 1995 Plan
|
|
+10
|
.16(10)*
|
|
Form of Performance Stock Award
under Registrants 1995 Plan
|
|
+10
|
.17(14)*
|
|
Third Restated 1999 Employee Stock
Purchase Plan
|
|
+10
|
.18(14)*
|
|
Second Restated International
Employee Stock Purchase Plan
|
|
+10
|
.19(15)*
|
|
2007 Management Incentive Bonus
Program
|
|
+10
|
.20(16)*
|
|
Employment Agreement dated as of
July 1, 2005 between John Bertucci and the Registrant
|
|
+10
|
.21(16)*
|
|
Employment Agreement dated
July 1, 2005 between Leo Berlinghieri and the Registrant
|
|
+10
|
.22(16)*
|
|
Employment Agreement dated as of
July 1, 2005 between Ronald C. Weigner and the Registrant
|
|
+10
|
.23(16)*
|
|
Amended and Restated Employment
Agreement dated as of July 1, 2005 between William D.
Stewart and the Registrant
|
|
+10
|
.24(14)*
|
|
Employment Agreement dated as of
July 30, 2004 between Robert Klimm and the Registrant
|
|
+10
|
.25(14)*
|
|
Employment Agreement dated as of
July 30, 2004 between John Smith and the Registrant
|
|
+10
|
.26(17)*
|
|
Employment Agreement dated as of
January 25, 2005 between Ron Hadar and the Registrant
|
|
+10
|
.27(18)*
|
|
Employment Agreement dated as of
April 25, 2005 between Gerald Colella and the Registrant
|
|
+10
|
.28(19)*
|
|
Employment Agreement dated as of
November 25, 2005 between Frank Schneider and the Registrant
|
|
10
|
.29*
|
|
Summary of 2007 Compensatory
Arrangements with Executive Officers
|
|
+10
|
.30(20)*
|
|
Summary of Compensatory
Arrangements with Non-Employee Directors
|
|
+10
|
.31(21)*
|
|
Lease Agreement dated as of
June 25, 2005 by and between 5330 Sterling Drive LLC and
the Registrant
|
|
+10
|
.32(21)*
|
|
Lease Agreement dated as of
June 25, 2005 by and between Aspen Industrial Park
Partnership LLLP and the Registrant
|
|
+10
|
.33(21)
|
|
Optional Advanced Demand Grid Note
dated August 3, 2004 in favor of HSBC Bank USA (HSBC
Note), and Amendment thereto dated as of July 29, 2005
|
|
+10
|
.34(22)
|
|
Second Amendment, dated
July 31, 2007, to HSBC Note
|
|
+10
|
.35(23)
|
|
Loan Agreement between ASTeX
Realty Corp. and Citizens Bank of Massachusetts, dated
March 6, 2000, along with Exhibit A thereto
|
68
|
|
|
|
|
Exhibit No.
|
|
Title
|
|
|
+10
|
.36(24)
|
|
Shareholder Agreement dated as of
January 31, 2002 among the Registrant and Emerson Electric
Co.
|
|
+10
|
.37(25)
|
|
Global Supply Agreement dated
April 12, 2005 by and between the Registrant and Applied
Materials, Inc.
|
|
+10
|
.38(26)
|
|
Settlement Agreement dated as of
October 3, 2005 by and between the Registrant, Applied
Science and Technology, Inc. and Advanced Energy, Inc.
|
|
+10
|
.39(27)
|
|
Agreement and Plan of Merger dated
as of November 25, 2005 among Ion Systems, Inc., the
Registrant and TWCP, L.P.
|
|
21
|
.1
|
|
Subsidiaries of the Registrant
|
|
23
|
.1
|
|
Consent of PricewaterhouseCoopers
LLP
|
|
31
|
.1
|
|
Certification of Principal
Executive Officer pursuant to
Rule 13a-14(a)/Rule 15d-14(a)
of the Securities Exchange Act of 1934, as amended
|
|
31
|
.2
|
|
Certification of Principal
Financial Officer pursuant to
Rule 13a-14(a)/Rule 15d-14(a)
of the Securities Exchange Act of 1934, as amended
|
|
32
|
.1
|
|
Certification of Chief Executive
Officer and Chief Financial Officer pursuant to 18 U.S.C.
Section 1350, as adopted pursuant to Section 906 of
the Sarbanes-Oxley Act of 2002
|
|
|
|
+ |
|
Previously filed |
|
* |
|
Management contract or compensatory plan arrangement filed as an
Exhibit to this
Form 10-K
pursuant to Item 15(b) of this report. |
|
(1) |
|
Incorporated by reference to the Registration Statement on
Form S-4
(File
No. 333-49738)
filed with the Securities and Exchange Commission on
November 13, 2000. |
|
(2) |
|
Incorporated by reference to the Registrants Quarterly
Report on
Form 10-Q
for the quarter ended June 30, 2001. |
|
(3) |
|
Incorporated by reference to the Registrants Quarterly
Report on
Form 10-Q
for the quarter ended June 30, 2002. |
|
(4) |
|
Incorporated by reference to the Registration Statement on
Form S-1
filed with the Securities and Exchange Commission on
January 28, 1999, as amended. |
|
(5) |
|
Incorporated by reference to the Registration Statement on
Form S-8
filed with the Securities and Exchange Commission on
January 29, 2001. |
|
(6) |
|
Incorporated by reference to the Registration Statement on
Form S-8
filed with the Securities and Exchange Commission on
January 29, 2001. |
|
(7) |
|
Incorporated by reference to the Registrants Annual Report
on Form 10-K
for the year ended December 31, 2004. |
|
(8) |
|
Incorporated by reference to the Registrants Quarterly
Report on
Form 10-Q
for the quarter ended September 30, 2006. |
|
(9) |
|
Incorporated by reference to the Registrants Quarterly
Report on
Form 10-Q
for the quarter ended September 30, 2004. |
|
(10) |
|
Incorporated by reference to the Registrants Quarterly
Report on
Form 10-Q
for the quarter ended June 30, 2005. |
|
(11) |
|
Incorporated by reference to the Registrants Current
Report on Form
8-K filed
with the Securities and Exchange Commission on February 17,
2006. |
|
(12) |
|
Incorporated by reference to the Registrants Quarterly
Report on
Form 10-Q
for the quarter ended March 31, 2006. |
|
(13) |
|
Incorporated by reference to the Registrants Quarterly
Report on
Form 10-Q
for the quarter ended September 30, 2002. |
69
|
|
|
(14) |
|
Incorporated by reference to the Registrants Quarterly
Report on
Form 10-Q
for the quarter ended June 30, 2004. |
|
(15) |
|
Incorporated by reference to the Registrants Current
Report on Form
8-K filed
with the Securities and Exchange Commission on February 26,
2007. Confidential treatment requested as to certain portions,
which portions have been omitted and filed separately with the
Securities and Exchange Commission. |
|
(16) |
|
Incorporated by reference to the Registrants Current
Report on Form
8-K filed
with the Securities and Exchange Commission on July 5, 2005. |
|
(17) |
|
Incorporated by reference to the Registrants Current
Report on Form
8-K filed
with the Securities and Exchange Commission on March 24,
2005. |
|
(18) |
|
Incorporated by reference to the Registrants Current
Report on Form
8-K filed
with the Securities and Exchange Commission on April 27,
2005. |
|
(19) |
|
Incorporated by reference to the Registrants Current
Report on Form
8-K filed
with the Securities and Exchange Commission on January 9,
2006. |
|
(20) |
|
Incorporated by reference to the Registrants Current
Report on Form
8-K filed
with the Securities and Exchange Commission on October 31,
2006. |
|
(21) |
|
Incorporated by reference to the Registrants Annual Report
on Form 10-K
for the year ended December 31, 2005. |
|
(22) |
|
Incorporated by reference to the Registrants Current
Report on Form
8-K filed
with the Securities and Exchange Commission on August 3,
2006. |
|
(23) |
|
Incorporated by reference to Applied Science and Technology,
Inc.s Quarterly Report on
Form 10-Q
for the quarter ended March 25, 2000. |
|
(24) |
|
Incorporated by reference to the Registrants Report on
Form 8-K
filed with the Securities and Exchange Commission on
February 12, 2002. |
|
(25) |
|
Incorporated by reference to the Registrants Current
Report on Form
8-K filed
with the Securities and Exchange Commission on April 27,
2005. |
|
(26) |
|
Incorporated by reference to the Registrants Current
Report on Form
8-K filed
with the Securities and Exchange Commission on October 7,
2005. |
|
(27) |
|
Incorporated by reference to the Registrants Current
Report on Form
8-K filed
with the Securities and Exchange Commission on December 1,
2005. |
(b) Exhibits
MKS hereby files as exhibits to our Annual Report on
Form 10-K
those exhibits listed in Item 15 above.
(c) Financial Statement Schedules
70
MKS
INSTRUMENTS, INC.
SCHEDULE II
VALUATION AND QUALIFYING ACCOUNTS
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Additions
|
|
|
|
|
|
|
|
|
|
Balance at
|
|
|
Charged to
|
|
|
Charged to
|
|
|
|
|
|
|
|
|
|
Beginning
|
|
|
Costs and
|
|
|
Other
|
|
|
Deductions &
|
|
|
Balance at
|
|
Description
|
|
of Year
|
|
|
Expenses
|
|
|
Accounts
|
|
|
Write-offs
|
|
|
End of Year
|
|
|
|
(Dollars in thousands)
|
|
|
Accounts receivable allowance
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Year ended December 31,
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2006
|
|
$
|
3,178
|
|
|
$
|
5,607
|
|
|
$
|
|
|
|
$
|
4,252
|
|
|
$
|
4,533
|
|
2005
|
|
$
|
3,238
|
|
|
$
|
4,101
|
|
|
$
|
|
|
|
$
|
4,161
|
|
|
$
|
3,178
|
|
2004
|
|
$
|
2,415
|
|
|
$
|
3,905
|
|
|
$
|
|
|
|
$
|
3,082
|
|
|
$
|
3,238
|
|
71
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the
Securities Exchange Act of 1934, the registrant has duly caused
this report to be signed on its behalf by the undersigned,
thereunto duly authorized.
MKS Instruments, Inc.
Leo Berlinghieri
Chief Executive Officer, President and Director
(Principal Executive Officer)
Pursuant to the requirements of the Securities Exchange Act of
1934, this report has been signed below by the following persons
on behalf of the registrant and in the capacities and on the
date indicated.
|
|
|
|
|
|
|
Signatures
|
|
Title
|
|
Date
|
|
/s/ John
R. Bertucci
John
R. Bertucci
|
|
Chairman of the Board of Directors
|
|
February 23, 2007
|
|
|
|
|
|
/s/ Leo
Berlinghieri
Leo
Berlinghieri
|
|
Chief Executive Officer, President
and Director (Principal Executive Officer)
|
|
February 27, 2007
|
|
|
|
|
|
/s/ Ronald
C. Weigner
Ronald
C. Weigner
|
|
Vice President and Chief Financial
Officer (Principal Financial and Accounting Officer)
|
|
February 28, 2007
|
|
|
|
|
|
/s/ Robert
R. Anderson
Robert
R. Anderson
|
|
Director
|
|
February 25, 2007
|
|
|
|
|
|
/s/ Gregory
R. Beecher
Gregory
R. Beecher
|
|
Director
|
|
February 27, 2007
|
|
|
|
|
|
/s/ James
G. Berges
James
G. Berges
|
|
Director
|
|
February 23, 2007
|
|
|
|
|
|
/s/ Richard
S. Chute
Richard
S. Chute
|
|
Director
|
|
February 21, 2007
|
|
|
|
|
|
/s/ Hans-Jochen
Kahl
Hans-Jochen
Kahl
|
|
Director
|
|
February 22, 2007
|
|
|
|
|
|
/s/ Owen
W. Robbins
Owen
W. Robbins
|
|
Director
|
|
February 27, 2007
|
|
|
|
|
|
/s/ Louis
P. Valente
Louis
P. Valente
|
|
Director
|
|
February 26, 2007
|
72
Exhibit 10.10
MKS INSTRUMENTS, INC.
Restricted Stock Unit Agreement
Initial Grant to Non-Employee Directors Under the 2004 Stock Incentive Plan
AGREEMENT made this __ day of ________ 20__ (the "Grant Date"), between MKS
Instruments, Inc., a Massachusetts corporation (the "Company"), and (FIRST_NAME)
(LAST_NAME) (the "Participant").
For valuable consideration, receipt of which is acknowledged, the parties
hereto agree as follows:
1. General.
The Company has granted to the Participant restricted stock units ("RSUs")
with respect to the number of shares set forth in Exhibit A hereto (the
"Shares") of common stock, no par value, of the Company ("Common Stock"),
subject to the terms and conditions set forth in this Agreement and in the
Company's 2004 Stock Incentive Plan (the "Plan"). The RSUs represent a promise
by the Company to deliver Shares upon vesting.
2. Vesting Period.
Subject to the terms and conditions of this Agreement (including the
Forfeiture provisions described in Section 3 below), the RSUs shall vest in
twelve (12) equal quarterly installments following the Grant Date. The date upon
which each quarterly installment vests shall be considered a "Vesting Date" for
the portion of the RSUs vesting on that date. As soon as practicable after the
Vesting Date, but in any event, within the period ending on the later to occur
of the date that is 2 1/2 months from the end of (i) the Participant's tax year
that includes the Vesting Date, or (ii) the Company's tax year that includes the
Vesting Date, the Company shall instruct its transfer agent to deposit the
Shares subject to the RSUs into the Participant's existing stock option account
(the "Account") at Fidelity Stock Plan Services, LLC, or such other broker with
which the Company has established a relationship ("Broker"), subject to payment
of all applicable withholding taxes.
3. Forfeiture.
(a) Definitions. For purposes of this Agreement, "Forfeiture" shall
mean any forfeiture of RSUs pursuant to Section 3(b) below. For purposes of this
Agreement, "service" with the Company shall include service as an employee,
officer or director of, or consultant or advisor to, the Company or any parent
or subsidiary of the Company as defined in Sections 424(e) or (f) of the
Internal Revenue Code.
(b) Cessation of Service. In the event that the Participant ceases to
provide services to the Company for any reason or no reason, with or without
cause, prior to the final Vesting Date, all of the Participant's RSUs that have
not vested as of the date of such cessation shall automatically be forfeited as
of such cessation. In the event that the Participant ceases to provide services
to the Company by reason of death or disability prior to the Vesting Date, then
100% of the Participant's RSUs shall become immediately and fully vested and
shall no longer
be subject to the Forfeiture provisions under this Agreement. For the purpose of
this Section 3, "disability" shall mean disability as defined in Section
216(i)(1) of the U.S. Social Security Act.
(c) Change in Control. Notwithstanding the foregoing, upon the
effectiveness of a Change in Control, (as defined below), 100% of the
Participant's RSUs shall become immediately and fully vested and shall no longer
be subject to the Forfeiture provisions under this Agreement. For purposes of
this section "Change in Control" means the first to occur of any of the
following events: (I) any "person" (as that term is used in Section 13 and
14(d)(2) of the Securities Exchange Act of 1934 ("Exchange Act")) becomes the
beneficial owner (as that term is used in Section 13(d) of the Exchange Act),
directly or indirectly, of fifty percent (50%) or more of the Company's capital
stock entitled to vote in the election of directors; (II) the shareholders of
the Company approve any consolidation or merger of the Company, other than a
consolidation or merger of the Company in which the holders of the common stock
of the Company immediately prior to the consolidation or merger hold more than
fifty percent (50%) of the common stock of the surviving corporation immediately
after the consolidation or merger; or (III) the shareholders of the Company
approve the sale or transfer of all or substantially all of the assets of the
Company to parties that are not within a "controlled group of corporations" (as
defined in Code Section 1563) in which the Company is a member.
4. Restrictions on Transfer.
The Participant shall not sell, assign, transfer, pledge, hypothecate or
otherwise dispose of, by operation of law or otherwise (collectively "transfer")
any RSUs, or any interest therein, except that the Participant may transfer such
RSUs (i) to or for the benefit of any spouse, children, parents, uncles, aunts,
siblings, grandchildren and any other relatives approved by the Board of
Directors (collectively, "Approved Relatives") or to a trust established solely
for the benefit of the Participant and/or Approved Relatives, provided that such
RSUs shall remain subject to this Agreement (including without limitation the
terms of Forfeiture and the restrictions on transfer set forth in this Section
4) and such permitted transferee shall, as a condition to such transfer, deliver
to the Company a written instrument confirming that such transferee shall be
bound by all of the terms and conditions of this Agreement.
5. Provisions of the Plan.
This Agreement is subject to the provisions of the Plan, a copy of
which is furnished to the Participant with this Agreement.
6. No Compensation Deferral. Neither the Plan nor this Agreement is
intended to provide for an elective deferral of compensation that would be
subject to Section 409A ("Section 409A") of the U.S. Internal Revenue Code of
1986, as amended. The Company reserves the right, to the extent the Company
deems necessary or advisable in its sole discretion, to unilaterally amend or
modify the Plan and/or this Agreement to ensure that no awards (including
without limitation, the RSUs) become subject to the requirements of Section
409A.
7. Withholding Taxes.
2
(a) The Company's obligation to deliver Shares to the Participant upon
the vesting of the RSUs shall be subject to the satisfaction of all income tax
(including federal, state and local taxes), social insurance, payroll tax,
payment on account or other tax related withholding requirements ("Withholding
Taxes").
(b) The Participant has reviewed with the Participant's own tax
advisors the federal, state, local and foreign tax consequences of this grant
and the transactions contemplated by this Agreement. The Participant is relying
solely on such advisors and not on any statements or representations of the
Company or any of its agents. The Participant understands that the Participant
(and not the Company) shall be responsible for the Participant's own tax
liability that may arise as a result of this grant or the transactions
contemplated by this Agreement.
8. Nature of the Grant. In signing this Agreement, the Participant
acknowledges that:
(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, unless 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 an extraordinary item that do not constitute compensation of
any kind for services of any kind rendered to the Company;
(f) RSUs are not part of normal or expected compensation or salary for any
purpose, including, but not limited to, calculation of any severance,
resignation, termination, redundancy, 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;
(g) the future value of the underlying Shares is unknown and cannot be
predicted with certainty;
(h) if the Participant receives Shares upon vesting, the value of such
Shares acquired on vesting 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 of RSUs resulting from
termination of the Participant's
3
service relationship by the Company (for any reason whatsoever and whether
or not in breach of local labor laws) and the Participant irrevocably
releases the Company 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; and
(j) further, if the Participant ceases to provide services, 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 providing services to the Company and will not be extended by any
notice period mandated under local law; the Committee shall have the
exclusive discretion to determine when the Participant is no longer
actively providing services to the company for purposes of the Plan.
9. Data Privacy Notice and Consent. The Participant hereby explicitly and
unambiguously consents to the collection, use and transfer, in electronic or
other form, of his or her personal data as described in this paragraph, by and
among, as applicable, and the Company and its subsidiaries and affiliates for,
among other purposes, implementing, administering and managing the Participant's
participation in the Plan. The Participant understands that the Company and its
subsidiaries hold certain personal information about the Participant, including
the Participant's name, home address, date of birth, social security number or
identification number, salary, job title, any Shares or directorships held in
the Company, details of all options or any other entitlement to Shares awarded,
canceled, exercised, vested, unvested or outstanding in the Participant's favor,
for the purpose of managing and administering the Plan ("Data"). The Participant
further understands that the Company and/or its subsidiaries will transfer Data
amongst themselves as necessary for various purposes, including implementation,
administration and management of the Participant's participation in the Plan,
and that the Company and/or any of its subsidiaries may each further transfer
Data to Broker or such other stock plan service provider or other third parties
assisting the Company with processing of Data. The Participant understands that
these recipients may be located in the United States, and that the recipient's
country may have different data privacy laws and protections than in the
Participant's country. The Participant authorizes them to receive, possess, use,
retain and transfer the Data, in electronic or other form, for the purposes
described in this section, including any requisite transfer to Broker or such
other stock plan service provider or other third party as may be required for
the administration of the Plan and/or the subsequent holding of Shares of stock
on the Participant's behalf. The Participant understands that he or she may, at
any time, request access to the Data, request any necessary amendments to it or
refuse or withdraw the consents herein, in any case without cost, by contacting
in writing. The Participant understands, however, that withdrawal of consent may
affect the Participant's ability to participate in or realize benefits from the
Plan. For more information on the consequences of refusal to consent or
withdrawal of consent, the Participant understands that he or she may contact
the Company.
10. Miscellaneous.
(a) No Rights to Service Relationship. The Participant acknowledges
and agrees that the vesting of the RSUs pursuant to Section 2 hereof is earned
only in accordance
4
with the terms of such section. The Participant further acknowledges and agrees
that the transactions contemplated hereunder and the vesting schedule set forth
herein do not constitute an express or implied promise of a continued service
relationship as an employee, officer, director, consultant or advisor to the
Company or any subsidiary of the Company for the vesting period, for any period,
or at all.
(b) Severability. The invalidity or unenforceability of any provision
of this Agreement shall not affect the validity or enforceability of any other
provision of this Agreement, and each other provision of this Agreement shall be
severable and enforceable to the extent permitted by law.
(c) Waiver. Any provision for the benefit of the Company contained in
this Agreement may be waived, either generally or in any particular instance, by
the Board of Directors of the Company.
(d) Binding Effect. This Agreement shall be binding upon and inure to
the benefit of the Company and the Participant and their respective heirs,
executors, administrators, legal representatives, successors and assigns,
subject to the restrictions on transfer set forth in Section 4 of this
Agreement.
(e) Notice. All notices required or permitted hereunder shall be in
writing and deemed effectively given upon personal delivery or five days after
deposit in the United States Post Office, by registered or certified mail,
postage prepaid, addressed to the other party hereto at the address shown
beneath his or its respective signature to this Agreement, or at such other
address or addresses as either party shall designate to the other in accordance
with this Section 10(e).
(f) Pronouns. Whenever the context may require, any pronouns used in
this Agreement shall include the corresponding masculine, feminine or neuter
forms, and the singular form of nouns and pronouns shall include the plural, and
vice versa.
(g) Language. If the Participant has received this Agreement or any
other document related to the Plan translated into a language other than English
and if the translated version is different than the English version, the English
version will control.
(h) Electronic Delivery. The Company may, in its sole discretion,
decide to deliver any documents related to participation in the Plan, RSUs
granted under the Plan or future RSUs that may be granted under the Plan by
electronic means or to request the Participant's consent to participate in the
Plan by electronic means. The Participant hereby consents to receive such
documents by electronic delivery and, if requested, to agree to participate in
the Plan through an on-line or electronic system established and maintained by
the Company or another third party designated by the Company.
(i) Entire Agreement. This Agreement and the Plan constitute the
entire agreement between the parties, and supersedes all prior agreements and
understandings, relating to the subject matter of this Agreement.
5
(j) Amendment. This Agreement may be amended or modified only by a
written instrument executed by both the Company and the Participant.
(k) Governing Law. This Agreement shall be construed, interpreted and
enforced in accordance with the internal laws of the Commonwealth of
Massachusetts without regard to any applicable conflicts of laws.
(l) The Participant's Acknowledgments. The Participant acknowledges
that he or she: (i) has read this Agreement; (ii) has been represented in the
preparation, negotiation, and execution of this Agreement by legal counsel of
the Participant's own choice or has voluntarily declined to seek such counsel;
and (iii) understands the terms and consequences of this Agreement; and (iv) is
fully aware of the legal and binding effect of this Agreement.
6
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
MKS INSTRUMENTS, INC.
By:
------------------------------------
Title: Chief Executive Officer &
President
90 Industrial Way
Wilmington, MA 01887
(First_Name) (Last_Name)
Participants Signature:
----------------
Address: (Street), (BoxApt)
(City), (State) (Zip_Code)
(Country)
7
Exhibit A
[Stock Award Letter]
8
Exhibit 10.11
MKS INSTRUMENTS, INC.
Restricted Stock Unit Agreement
Annual Grant to Non-Employee Directors Under the 2004 Stock Incentive Plan
AGREEMENT made this __ day of _____ 20__ (the "Grant Date"), between MKS
Instruments, Inc., a Massachusetts corporation (the "Company"), and (FIRST_NAME)
(LAST_NAME) (the "Participant").
For valuable consideration, receipt of which is acknowledged, the parties
hereto agree as follows:
1. General.
The Company has granted to the Participant restricted stock units ("RSUs")
with respect to the number of shares set forth in Exhibit A hereto (the
"Shares") of common stock, no par value, of the Company ("Common Stock"),
subject to the terms and conditions set forth in this Agreement and in the
Company's 2004 Stock Incentive Plan (the "Plan"). The RSUs represent a promise
by the Company to deliver Shares upon vesting.
2. Vesting Period.
Subject to the terms and conditions of this Agreement (including the
Forfeiture provisions described in Section 3 below), the RSUs shall vest on the
earlier of (a) the day prior to the first Annual Meeting of the Company's
stockholders which occurs after the date hereof or (b) thirteen months after the
Grant Date, at which time they shall become vested in full, the "Vesting Date".
As soon as practicable after the Vesting Date, but in any event, within the
period ending on the later to occur of the date that is 2 1/2 months from the
end of (i) the Participant's tax year that includes the Vesting Date, or (ii)
the Company's tax year that includes the Vesting Date, the Company shall
instruct its transfer agent to deposit the Shares subject to the RSUs into the
Participant's existing stock option account (the "Account") at Fidelity Stock
Plan Services, LLC, or such other broker with which the Company has established
a relationship ("Broker"), subject to payment of all applicable withholding
taxes.
3. Forfeiture.
(a) Definitions. For purposes of this Agreement, "Forfeiture" shall
mean any forfeiture of RSUs pursuant to Section 3(b) below. For purposes of this
Agreement, "service" with the Company shall include service as an employee,
officer or director of, or consultant or advisor to, the Company or any parent
or subsidiary of the Company as defined in Sections 424(e) or (f) of the
Internal Revenue Code.
(b) Cessation of Service. In the event that the Participant ceases to
provide services to the Company for any reason or no reason, with or without
cause, prior to the final Vesting Date, all of the Participant's RSUs that have
not vested as of the date of such cessation shall automatically be forfeited as
of such cessation. In the event that the Participant ceases to provide services
to the Company by reason of death or disability prior to the Vesting Date, then
100% of the Participant's RSUs shall become immediately and fully vested and
shall no longer
be subject to the Forfeiture provisions under this Agreement. For the purpose of
this Section 3, "disability" shall mean disability as defined in Section
216(i)(1) of the U.S. Social Security Act.
(c) Change in Control. Notwithstanding the foregoing, upon the
effectiveness of a Change in Control, (as defined below), 100% of the
Participant's RSUs shall become immediately and fully vested and shall no longer
be subject to the Forfeiture provisions under this Agreement. For purposes of
this section "Change in Control" means the first to occur of any of the
following events: (I) any "person" (as that term is used in Section 13 and
14(d)(2) of the Securities Exchange Act of 1934 ("Exchange Act")) becomes the
beneficial owner (as that term is used in Section 13(d) of the Exchange Act),
directly or indirectly, of fifty percent (50%) or more of the Company's capital
stock entitled to vote in the election of directors; (II) the shareholders of
the Company approve any consolidation or merger of the Company, other than a
consolidation or merger of the Company in which the holders of the common stock
of the Company immediately prior to the consolidation or merger hold more than
fifty percent (50%) of the common stock of the surviving corporation immediately
after the consolidation or merger; or (III) the shareholders of the Company
approve the sale or transfer of all or substantially all of the assets of the
Company to parties that are not within a "controlled group of corporations" (as
defined in Code Section 1563) in which the Company is a member.
4. Restrictions on Transfer.
The Participant shall not sell, assign, transfer, pledge, hypothecate or
otherwise dispose of, by operation of law or otherwise (collectively "transfer")
any RSUs, or any interest therein, except that the Participant may transfer such
RSUs (i) to or for the benefit of any spouse, children, parents, uncles, aunts,
siblings, grandchildren and any other relatives approved by the Board of
Directors (collectively, "Approved Relatives") or to a trust established solely
for the benefit of the Participant and/or Approved Relatives, provided that such
RSUs shall remain subject to this Agreement (including without limitation the
terms of Forfeiture and the restrictions on transfer set forth in this Section
4) and such permitted transferee shall, as a condition to such transfer, deliver
to the Company a written instrument confirming that such transferee shall be
bound by all of the terms and conditions of this Agreement.
5. Provisions of the Plan.
This Agreement is subject to the provisions of the Plan, a copy of which is
furnished to the Participant with this Agreement.
6. No Compensation Deferral. Neither the Plan nor this Agreement is
intended to provide for an elective deferral of compensation that would be
subject to Section 409A ("Section 409A") of the U.S. Internal Revenue Code of
1986, as amended. The Company reserves the right, to the extent the Company
deems necessary or advisable in its sole discretion, to unilaterally amend or
modify the Plan and/or this Agreement to ensure that no awards (including
without limitation, the RSUs) become subject to the requirements of Section
409A.
7. Withholding Taxes.
2
(a) The Company's obligation to deliver Shares to the Participant upon
the vesting of the RSUs shall be subject to the satisfaction of all income tax
(including federal, state and local taxes), social insurance, payroll tax,
payment on account or other tax related withholding requirements ("Withholding
Taxes").
(b) The Participant has reviewed with the Participant's own tax
advisors the federal, state, local and foreign tax consequences of this grant
and the transactions contemplated by this Agreement. The Participant is relying
solely on such advisors and not on any statements or representations of the
Company or any of its agents. The Participant understands that the Participant
(and not the Company) shall be responsible for the Participant's own tax
liability that may arise as a result of this grant or the transactions
contemplated by this Agreement.
8. Nature of the Grant. In signing this Agreement, the Participant
acknowledges that:
(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, unless 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 an extraordinary item that do not constitute compensation of
any kind for services of any kind rendered to the Company;
(f) RSUs are not part of normal or expected compensation or salary for any
purpose, including, but not limited to, calculation of any severance,
resignation, termination, redundancy, 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;
(g) the future value of the underlying Shares is unknown and cannot be
predicted with certainty;
(h) if the Participant receives Shares upon vesting, the value of such
Shares acquired on vesting 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 of RSUs resulting from
termination of the Participant's
3
service relationship by the Company (for any reason whatsoever and whether
or not in breach of local labor laws) and the Participant irrevocably
releases the Company 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; and
(j) further, if the Participant ceases to provide services, 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 providing services to the Company and will not be extended by any
notice period mandated under local law; the Committee shall have the
exclusive discretion to determine when the Participant is no longer
actively providing services to the company for purposes of the Plan.
9. Data Privacy Notice and Consent. The Participant hereby explicitly and
unambiguously consents to the collection, use and transfer, in electronic or
other form, of his or her personal data as described in this paragraph, by and
among, as applicable, and the Company and its subsidiaries and affiliates for,
among other purposes, implementing, administering and managing the Participant's
participation in the Plan. The Participant understands that the Company and its
subsidiaries hold certain personal information about the Participant, including
the Participant's name, home address, date of birth, social security number or
identification number, salary, job title, any Shares or directorships held in
the Company, details of all options or any other entitlement to Shares awarded,
canceled, exercised, vested, unvested or outstanding in the Participant's favor,
for the purpose of managing and administering the Plan ("Data"). The Participant
further understands that the Company and/or its subsidiaries will transfer Data
amongst themselves as necessary for various purposes, including implementation,
administration and management of the Participant's participation in the Plan,
and that the Company and/or any of its subsidiaries may each further transfer
Data to Broker or such other stock plan service provider or other third parties
assisting the Company with processing of Data. The Participant understands that
these recipients may be located in the United States, and that the recipient's
country may have different data privacy laws and protections than in the
Participant's country. The Participant authorizes them to receive, possess, use,
retain and transfer the Data, in electronic or other form, for the purposes
described in this section, including any requisite transfer to Broker or such
other stock plan service provider or other third party as may be required for
the administration of the Plan and/or the subsequent holding of Shares of stock
on the Participant's behalf. The Participant understands that he or she may, at
any time, request access to the Data, request any necessary amendments to it or
refuse or withdraw the consents herein, in any case without cost, by contacting
in writing. The Participant understands, however, that withdrawal of consent may
affect the Participant's ability to participate in or realize benefits from the
Plan. For more information on the consequences of refusal to consent or
withdrawal of consent, the Participant understands that he or she may contact
the Company.
10. Miscellaneous.
(a) No Rights to Service Relationship. The Participant acknowledges
and agrees that the vesting of the RSUs pursuant to Section 2 hereof is earned
only in accordance
4
with the terms of such section. The Participant further acknowledges and agrees
that the transactions contemplated hereunder and the vesting schedule set forth
herein do not constitute an express or implied promise of a continued service
relationship as an employee, officer, director, consultant or advisor to the
Company or any subsidiary of the Company for the vesting period, for any period,
or at all.
(b) Severability. The invalidity or unenforceability of any provision
of this Agreement shall not affect the validity or enforceability of any other
provision of this Agreement, and each other provision of this Agreement shall be
severable and enforceable to the extent permitted by law.
(c) Waiver. Any provision for the benefit of the Company contained in
this Agreement may be waived, either generally or in any particular instance, by
the Board of Directors of the Company.
(d) Binding Effect. This Agreement shall be binding upon and inure to
the benefit of the Company and the Participant and their respective heirs,
executors, administrators, legal representatives, successors and assigns,
subject to the restrictions on transfer set forth in Section 4 of this
Agreement.
(e) Notice. All notices required or permitted hereunder shall be in
writing and deemed effectively given upon personal delivery or five days after
deposit in the United States Post Office, by registered or certified mail,
postage prepaid, addressed to the other party hereto at the address shown
beneath his or its respective signature to this Agreement, or at such other
address or addresses as either party shall designate to the other in accordance
with this Section 10(e).
(f) Pronouns. Whenever the context may require, any pronouns used in
this Agreement shall include the corresponding masculine, feminine or neuter
forms, and the singular form of nouns and pronouns shall include the plural, and
vice versa.
(g) Language. If the Participant has received this Agreement or any
other document related to the Plan translated into a language other than English
and if the translated version is different than the English version, the English
version will control.
(h) Electronic Delivery. The Company may, in its sole discretion,
decide to deliver any documents related to participation in the Plan, RSUs
granted under the Plan or future RSUs that may be granted under the Plan by
electronic means or to request the Participant's consent to participate in the
Plan by electronic means. The Participant hereby consents to receive such
documents by electronic delivery and, if requested, to agree to participate in
the Plan through an on-line or electronic system established and maintained by
the Company or another third party designated by the Company.
(i) Entire Agreement. This Agreement and the Plan constitute the
entire agreement between the parties, and supersedes all prior agreements and
understandings, relating to the subject matter of this Agreement.
5
(j) Amendment. This Agreement may be amended or modified only by a
written instrument executed by both the Company and the Participant.
(k) Governing Law. This Agreement shall be construed, interpreted and
enforced in accordance with the internal laws of the Commonwealth of
Massachusetts without regard to any applicable conflicts of laws.
(l) The Participant's Acknowledgments. The Participant acknowledges
that he or she: (i) has read this Agreement; (ii) has been represented in the
preparation, negotiation, and execution of this Agreement by legal counsel of
the Participant's own choice or has voluntarily declined to seek such counsel;
and (iii) understands the terms and consequences of this Agreement; and (iv) is
fully aware of the legal and binding effect of this Agreement.
6
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
MKS INSTRUMENTS, INC.
By:
------------------------------------
Title: Chief Executive Officer &
President
90 Industrial Way
Wilmington, MA 01887
(First_Name) (Last_Name)
Participants Signature:
----------------
Address: (Street), (BoxApt)
(City), (State) (Zip_Code)
(Country)
7
Exhibit A
[Stock Award Letter]
8
Exhibit 10.12
MKS INSTRUMENTS, INC.
Performance Based Restricted Stock Unit Agreement
Granted Under the 2004 Stock Incentive Plan
AGREEMENT made this __day of ____ 20__ (the "Grant Date"), between MKS
Instruments, Inc., a Massachusetts corporation (the "Company"), and (FIRST_NAME)
(LAST_NAME) (the "Participant").
For valuable consideration, receipt of which is acknowledged, the parties
hereto agree as follows:
1. General.
The Company has granted to the Participant restricted stock units ("RSUs")
with respect to the number of shares set forth in Exhibit A hereto (the
"Shares") of common stock, no par value, of the Company ("Common Stock"),
subject to the terms and conditions set forth in this Agreement and in the
Company's 2004 Stock Incentive Plan (the "Plan"). The RSUs represent a promise
by the Company to deliver Shares upon vesting.
2. Vesting Period.
Upon the determination of the level of achievement by the Participant of
the performance goals established by the Compensation Committee of the Board of
Directors set forth in Exhibit A in the manner and on the date (the
"Determination Date") described therein, the number of RSUs to which the
Participant will be entitled to receive under this Agreement, subject to the
vesting periods described in this Section 2, will be set in accordance with the
table contained in Exhibit A. Subject to the terms and conditions of this
Agreement (including the Forfeiture provisions described in Section 3 below),
the RSUs shall vest in three (3) equal installments as follows: (a) the first
third will vest upon the achievement of certain performance goals as determined
on the Determination Date in the manner set forth in Exhibit A, (b) an
additional one third will vest on the first anniversary of the Determination
Date, and (c) the final one third will vest on the second anniversary of the
Determination Date. The date upon which each installment vests shall be
considered a "Vesting Date" for the portion of the RSUs vesting on that date. As
soon as practicable after the Vesting Date, but in any event, within the period
ending on the later to occur of the date that is 2 1/2 months from the end of
(i) the Participant's tax year that includes the Vesting Date, or (ii) the
Company's tax year that includes the Vesting Date, the Company shall instruct
its transfer agent to deposit the Shares subject to the RSUs into the
Participant's existing stock option account (the "Account") at Fidelity Stock
Plan Services, LLC, or such other broker with which the Company has established
a relationship ("Broker"), subject to payment (through sale of a portion of the
Shares, or otherwise, in accordance with Section 7) of all applicable
withholding taxes.
3. Forfeiture.
(a) Definitions. For purposes of this Agreement, "Forfeiture" shall
mean any forfeiture of RSUs pursuant to Section 3(b) and Section 3(d) below. For
purposes of this Agreement, "employ" or "employment" with the Company shall
include employment with a
parent or subsidiary of the Company as defined in Sections 424(e) or (f) of the
Internal Revenue Code.
(b) Cessation of Employment. In the event that the Participant ceases
to be employed by the Company for any reason or no reason, with or without
cause, prior to the Vesting Date, all of the Participant's unvested RSUs shall
automatically be forfeited as of such cessation. In the event that the
Participant ceases to provide services to the Company by reason of death or
disability prior to the Vesting Date, then 100% of the Participant's RSUs shall
become immediately and fully vested and shall no longer be subject to the
Forfeiture provisions under this Agreement. For the purpose of this Section 3,
"disability" shall mean disability as defined in Section 216(i)(1) of the U.S.
Social Security Act.
(c) Change in Control. Notwithstanding the foregoing, upon the
effectiveness of a Change in Control, (as defined below) that precedes the
Determination Date, the performance goals set forth in Exhibit A will deemed to
have been fully achieved as of the Determination Date. The RSUs shall continue
to vest thereafter in accordance with Section 2. If the Participant, within two
years of the effectiveness of a Change in Control (as defined below), is (i)
terminated by the Company without Cause (as defined below) or (ii) terminates
his employment for Good Reason (as defined below), then, 100% of the
Participant's RSUs shall become immediately and fully vested and shall no longer
be subject to the Forfeiture provisions under this Agreement. For purposes of
this section "Change in Control" means the first to occur of any of the
following events: (I) any "person" (as that term is used in Section 13 and
14(d)(2) of the Securities Exchange Act of 1934 ("Exchange Act")) becomes the
beneficial owner (as that term is used in Section 13(d) of the Exchange Act),
directly or indirectly, of fifty percent (50%) or more of the Company's capital
stock entitled to vote in the election of directors; (II) the shareholders of
the Company approve any consolidation or merger of the Company, other than a
consolidation or merger of the Company in which the holders of the common stock
of the Company immediately prior to the consolidation or merger hold more than
fifty percent (50%) of the common stock of the surviving corporation immediately
after the consolidation or merger; or (III) the shareholders of the Company
approve the sale or transfer of all or substantially all of the assets of the
Company to parties that are not within a "controlled group of corporations" (as
defined in Code Section 1563) in which the Company is a member. For purposes of
this Agreement, "Cause" shall mean conviction for the commission of a felony,
willful failure by the Participant to perform his responsibilities to the
Company, or willful misconduct by the Employee. For purposes of this section,
"Good Reason" shall mean termination of the Participant's employment by the
Participant within 90 days following (I) a material diminution in the
Participant's positions, duties and responsibilities from those described in
this Employment Agreement, (II) a material reduction in the Participant's base
salary (other than a reduction which is part of a general salary reduction
program affecting senior executives of the Company), (III) a material reduction
in the aggregate value of the pension and welfare benefits provided to the
Participant from those in effect prior to the Change in Control (other than a
reduction which is proportionate to the reductions applicable to other senior
executives pursuant to a cost-saving plan that includes all senior executives),
(IV) a material breach of any provision of this Employment Agreement by the
Company or (V) the Company's requiring the Participant to be based at a location
that creates for the Participant a one way commute in excess of 60 miles from
his primary residence, except for required travel on the Company's business to
an extent
2
substantially consistent with the business travel obligations of the Participant
under this Employment Agreement. Notwithstanding the foregoing, a termination
shall not be treated as a termination for Good Reason (I) if the Participant
shall have consented in writing to the occurrence of the event giving rise to
the claim of termination for Good Reason or (II) unless the Participant shall
have delivered a written notice to the Company within 30 days of his having
actual knowledge of the occurrence of one of such events stating that he intends
to terminate his employment for Good Reason and specifying the factual basis for
such termination, and such event, if capable of being cured, shall not have been
cured within 30 days of the receipt of such notice.
(d) Failure to Achieve Performance Vesting Criteria. In the event that
the Participant fails to achieve the minimal performance goal set forth in
Exhibit A in the time periods specified therein, all RSUs shall automatically be
forfeited.
4. Restrictions on Transfer.
The Participant shall not sell, assign, transfer, pledge, hypothecate or
otherwise dispose of, by operation of law or otherwise (collectively "transfer")
any RSUs, or any interest therein, except that the Participant may transfer such
RSUs (i) to or for the benefit of any spouse, children, parents, uncles, aunts,
siblings, grandchildren and any other relatives approved by the Board of
Directors (collectively, "Approved Relatives") or to a trust established solely
for the benefit of the Participant and/or Approved Relatives, provided that such
RSUs shall remain subject to this Agreement (including without limitation the
terms of Forfeiture and the restrictions on transfer set forth in this Section
4) and such permitted transferee shall, as a condition to such transfer, deliver
to the Company a written instrument confirming that such transferee shall be
bound by all of the terms and conditions of this Agreement.
5. Provisions of the Plan.
This Agreement is subject to the provisions of the Plan, a copy of which is
furnished to the Participant with this Agreement.
6. No Compensation Deferral. Neither the Plan nor this Agreement is
intended to provide for an elective deferral of compensation that would be
subject to Section 409A ("Section 409A") of the U.S. Internal Revenue Code of
1986, as amended. The Company reserves the right, to the extent the Company
deems necessary or advisable in its sole discretion, to unilaterally amend or
modify the Plan and/or this Agreement to ensure that no awards (including
without limitation, the RSUs) become subject to the requirements of Section
409A.
7. Withholding Taxes.
(a) The Company's obligation to deliver Shares to the Participant upon
the vesting of the RSUs shall be subject to the satisfaction of all income tax
(including federal, state and local taxes), social insurance, payroll tax,
payment on account or other tax related withholding requirements ("Withholding
Taxes"). In order to satisfy all Withholding Taxes due upon vesting of the
Participant's RSUs, the Participant agrees to the following:
3
(b) As a condition to receiving any Shares upon vesting of the RSUs,
on the date of this Agreement, the Participant must execute the Irrevocable
Standing Order to Sell Shares attached hereto, which authorizes the Company and
Broker to take the actions described in this subsection 7(b) (the "Standing
Order"). The Participant authorizes Broker to sell, at the market price and on
the Vesting Date the number of Shares that the Company has instructed Broker is
necessary to obtain proceeds sufficient to satisfy the Withholding Taxes. The
Participant understands and agrees that the number of Shares that Broker will
sell will be based on the closing price of the Common Stock on the last trading
day before the Vesting Date. The Participant agrees to execute and deliver such
documents, instruments and certificates as may reasonably be required in
connection with the sale of the Shares pursuant to this Section 7.
(c) The Participant agrees that the proceeds received from the sale of
Shares pursuant to Section 7(b) will be used to satisfy the Withholding Taxes
and, accordingly, the Participant hereby authorizes Broker to pay such proceeds
to the Company for such purpose. The Participant understands that to the extent
that the proceeds obtained by such sale exceed the amount necessary to satisfy
the Withholding Taxes, such excess proceeds shall be deposited into the Account.
The Participant further understands that any remaining Shares shall be deposited
into the Account.
(d) The Participant acknowledges and agrees that (i) in the event that
there is not a market in the Common Stock or (ii) the Company determines in its
sole discretion that the procedure described in Section 7(b) is not advisable or
sufficient, the Company will have the right to make other arrangements to
satisfy the Withholding Taxes due upon vesting of the RSUs, including, but not
limited to, the right to deduct amounts from salary or payments of any kind
otherwise due to the Participant or withhold in Shares, provided that the
Company only withholds the amount of Shares necessary to satisfy the minimum
withholding amount.
(e) The Participant has reviewed with the Participant's own tax
advisors the federal, state, local and foreign tax consequences of this grant
and the transactions contemplated by this Agreement. The Participant is relying
solely on such advisors and not on any statements or representations of the
Company or any of its agents. The Participant understands that the Participant
(and not the Company) shall be responsible for the Participant's own tax
liability that may arise as a result of this grant or the transactions
contemplated by this Agreement.
(f) The Participant represents to the Company that, as of the date
hereof, he is not aware of any material nonpublic information about the Company
or the Common Stock. The Participant and the Company have structured this
Agreement to constitute a "binding contract" relating to the sale of Common
Stock pursuant to this Section 7, consistent with the affirmative defense to
liability under Section 10(b) of the Securities Exchange Act of 1934 under Rule
10b5-1(c) promulgated under such Act.
8. Nature of the Grant. In signing this Agreement, the Participant
acknowledges that:
(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, unless otherwise provided in the Plan and this
Agreement;
4
(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 an extraordinary item that do not constitute compensation of
any kind for services of any kind rendered to the Company or to the
Participant's employer, and RSUs are outside the scope of the Participant's
employment contract, if any;
(f) RSUs are not part of normal or expected compensation or salary for any
purpose, including, but not limited to, calculation of any severance,
resignation, termination, redundancy, 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;
(g) the future value of the underlying Shares is unknown and cannot be
predicted with certainty;
(h) if the Participant receives Shares upon vesting, the value of such
Shares acquired on vesting 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 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; and
(j) further, 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 Committee shall have the exclusive discretion
to determine when the Participant is no longer actively employed for
purposes of the Plan.
5
9. Data Privacy Notice and Consent. The Participant hereby explicitly and
unambiguously consents to the collection, use and transfer, in electronic or
other form, of his or her personal data as described in this paragraph, by and
among, as applicable, and the Company and its subsidiaries and affiliates for,
among other purposes, implementing, administering and managing the Participant's
participation in the Plan. The Participant understands that the Company and its
subsidiaries hold certain personal information about the Participant, including
the Participant's name, home address, date of birth, social security number or
identification number, salary, job title, any Shares or directorships held in
the Company, details of all options or any other entitlement to Shares awarded,
canceled, exercised, vested, unvested or outstanding in the Participant's favor,
for the purpose of managing and administering the Plan ("Data"). The Participant
further understands that the Company and/or its subsidiaries will transfer Data
amongst themselves as necessary for employment purposes, including
implementation, administration and management of the Participant's participation
in the Plan, and that the Company and/or any of its subsidiaries may each
further transfer Data to Broker or such other stock plan service provider or
other third parties assisting the Company with processing of Data. The
Participant understands that these recipients may be located in the United
States, and that the recipient's country may have different data privacy laws
and protections than in the Participant's country. The Participant authorizes
them to receive, possess, use, retain and transfer the Data, in electronic or
other form, for the purposes described in this section, including any requisite
transfer to Broker or such other stock plan service provider or other third
party as may be required for the administration of the Plan and/or the
subsequent holding of Shares of stock on the Participant's behalf. The
Participant understands that he or she may, at any time, request access to the
Data, request any necessary amendments to it or refuse or withdraw the consents
herein, in any case without cost, by contacting the Company in writing. The
Participant understands, however, that withdrawal of consent may affect the
Participant's ability to participate in or realize benefits from the Plan. For
more information on the consequences of refusal to consent or withdrawal of
consent, the Participant understands that he or she may contact the Company.
10. Miscellaneous.
(a) No Rights to Employment. The Participant acknowledges and agrees
that the vesting of the RSUs pursuant to Section 2 hereof is earned only in
accordance with the terms of such section. The Participant further acknowledges
and agrees that the transactions contemplated hereunder and the vesting schedule
set forth herein do not constitute an express or implied promise of continued
employment with the Company or any subsidiary of the Company for the vesting
period, for any period, or at all.
(b) Severability. The invalidity or unenforceability of any provision
of this Agreement shall not affect the validity or enforceability of any other
provision of this Agreement, and each other provision of this Agreement shall be
severable and enforceable to the extent permitted by law.
(c) Waiver. Any provision for the benefit of the Company contained in
this Agreement may be waived, either generally or in any particular instance, by
the Board of Directors of the Company.
6
(d) Binding Effect. This Agreement shall be binding upon and inure to
the benefit of the Company and the Participant and their respective heirs,
executors, administrators, legal representatives, successors and assigns,
subject to the restrictions on transfer set forth in Section 4 of this
Agreement.
(e) Notice. All notices required or permitted hereunder shall be in
writing and deemed effectively given upon personal delivery or five days after
deposit in the United States Post Office, by registered or certified mail,
postage prepaid, addressed to the other party hereto at the address shown
beneath his or its respective signature to this Agreement, or at such other
address or addresses as either party shall designate to the other in accordance
with this Section 10(e).
(f) Pronouns. Whenever the context may require, any pronouns used in
this Agreement shall include the corresponding masculine, feminine or neuter
forms, and the singular form of nouns and pronouns shall include the plural, and
vice versa.
(g) Language. If the Participant has received this Agreement or any
other document related to the Plan translated into a language other than English
and if the translated version is different than the English version, the English
version will control.
(h) Electronic Delivery. The Company may, in its sole discretion,
decide to deliver any documents related to participation in the Plan, RSUs
granted under the Plan or future RSUs that may be granted under the Plan by
electronic means or to request the Participant's consent to participate in the
Plan by electronic means. The Participant hereby consents to receive such
documents by electronic delivery and, if requested, to agree to participate in
the Plan through an on-line or electronic system established and maintained by
the Company or another third party designated by the Company.
(i) Entire Agreement. This Agreement and the Plan constitute the
entire agreement between the parties, and supersedes all prior agreements and
understandings, relating to the subject matter of this Agreement.
(j) Amendment. This Agreement may be amended or modified only by a
written instrument executed by both the Company and the Participant.
(k) Governing Law. This Agreement shall be construed, interpreted and
enforced in accordance with the internal laws of the Commonwealth of
Massachusetts without regard to any applicable conflicts of laws.
(l) The Participant's Acknowledgments. The Participant acknowledges
that he or she: (i) has read this Agreement; (ii) has been represented in the
preparation, negotiation, and execution of this Agreement by legal counsel of
the Participant's own choice or has voluntarily declined to seek such counsel;
and (iii) understands the terms and consequences of this Agreement; and (iv) is
fully aware of the legal and binding effect of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
7
MKS INSTRUMENTS, INC.
By:
------------------------------------
Title: Chief Executive Officer &
President
90 Industrial Way
Wilmington, MA 01887
(First_Name) (Last_Name)
Participants Signature:
----------------
Address: (Street), (BoxApt)
(City), (State) (Zip_Code)
(Country)
8
Exhibit A
Participant: (...Executive's Name...)
Grant Date: XXXXXX
Restricted Stock Units Granted: x,xxx
MKS Instruments, Inc. has granted you Restricted Stock Units (RSU's) with
respect to x,xxx shares of common stock. According to the provisions of this
Restricted Stock Unit Agreement, the number of shares you will be entitled to
receive, subject to the vesting period described in Section 2 of this agreement,
will be determined on [one year anniversary of grant] (the "Determination Date")
based on the schedule shown in the table below.
% PERFORMANCE BASED
RSU'S ATTAINED
200_ IBBT SUBJECT TO VESTING
(000) PERIOD
- --------- -------------------
IBBT IS DEFINED AS INCOME EARNED BEFORE BONUS AND TAX.
ALL SHARES EARNED ACCORDING TO THIS TABLE WILL ALSO BE SUBJECT TO THE VESTING
PERIOD AND OTHER TERMS AND CONDITIONS OF THIS AGREEMENT.
9
Exhibit B
IRREVOCABLE STANDING ORDER TO SELL SHARES
I, (FIRST_NAME) (LAST_NAME), have been granted restricted stock units
("RSUs") with respect to 000000 shares of stock by MKS Instruments, Inc.
("MKS"), which is evidenced by a Restricted Stock Unit Agreement between me and
MKS (the "Agreement," copy attached). Provided that I remain employed by MKS (or
one of its subsidiaries) on each vesting date, the RSUs vest according to the
schedule set forth in the Agreement.
I understand that on the vesting date, MKS shares (the "Shares") will be
deposited into my account at Fidelity Stock Plan Services, LLC (the "Broker")
and that I may recognize taxable income as a result. Pursuant to the terms of
the Agreement and as a condition of my receipt of the Shares, I understand and
agree that, for each vesting date, I must sell a number of shares sufficient to
satisfy all withholding taxes applicable to that income. Therefore, I HEREBY
DIRECT BROKER TO SELL, AT THE MARKET PRICE AND ON EACH VESTING DATE (OR THE
FIRST BUSINESS DAY THEREAFTER IF A VESTING DATE SHOULD FALL ON A DAY WHEN THE
MARKET IS CLOSED), THE NUMBER OF SHARES THAT MKS INFORMS BROKER IS SUFFICIENT TO
SATISFY THE APPLICABLE WITHHOLDING TAXES, WHICH SHALL BE CALCULATED BASED ON THE
CLOSING PRICE OF MKS' COMMON STOCK ON THE LAST TRADING DAY BEFORE THE VESTING
DATE. I understand that Broker will remit the proceeds to MKS for payment of the
withholding taxes.
I hereby agree to indemnify and hold Broker harmless from and against all
losses, liabilities, damages, claims and expenses, including reasonable
attorneys' fees and court costs, arising out of any (i) negligent act, omission
or willful misconduct by MKS in carrying out actions pursuant to the third
sentence of the preceding paragraph and (ii) any action taken or omitted by
Broker in good faith reliance upon instructions herein or upon instructions or
information transmitted to Broker by MKS pursuant to the third sentence of the
preceding paragraph.
I understand and agree that by signing below, I am making an Irrevocable
Standing Order to Sell Shares which will remain in effect until all of the RSUs
have vested. I also agree that this Irrevocable Standing Order to Sell Shares is
in addition to and subject to the terms and conditions of any existing Account
Agreement that I have with Broker.
- ------------------------------------- ----------------------------------------
Signature Signature (Additional Account Holder)
Print name: Print name:
------------------------- ----------------------------
Dated: , 20 Dated: , 20
-------- -- -- -------- -- --
10
Exhibit 10.13
MKS INSTRUMENTS, INC.
Time Based Restricted Stock Unit Agreement
Granted Under the 2004 Stock Incentive Plan
AGREEMENT made this __day of ____ 20__ (the "Grant Date"), between MKS
Instruments, Inc., a Massachusetts corporation (the "Company"), and (FIRST_NAME)
(LAST_NAME) (the "Participant").
For valuable consideration, receipt of which is acknowledged, the parties
hereto agree as follows:
1. General.
The Company has granted to the Participant restricted stock units ("RSUs")
with respect to XXXX of shares (the "Shares") of common stock, no par value, of
the Company ("Common Stock"), subject to the terms and conditions set forth in
this Agreement and in the Company's 2004 Stock Incentive Plan (the "Plan"). The
RSUs represent a promise by the Company to deliver Shares upon vesting.
2. Vesting Period.
Subject to the terms and conditions of this Agreement (including the
Forfeiture provisions described in Section 3 below), the RSUs shall vest in
three (3) equal annual installments commencing on the first anniversary of the
Grant Date, with an additional one third vesting on each of the second and third
anniversaries of the Grant Date. The date upon which each installment vests
shall be considered a "Vesting Date" for the portion of the RSUs vesting on that
date. As soon as practicable after the Vesting Date, but in any event, within
the period ending on the later to occur of the date that is 2 1/2 months from
the end of (i) the Participant's tax year that includes the Vesting Date, or
(ii) the Company's tax year that includes the Vesting Date, the Company shall
instruct its transfer agent to deposit the Shares subject to the RSUs into the
Participant's existing stock option account (the "Account") at Fidelity Stock
Plan Services, LLC, or such other broker with which the Company has established
a relationship ("Broker"), subject to payment (through sale of a portion of the
Shares, or otherwise, in accordance with Section 7) of all applicable
withholding taxes.
3. Forfeiture.
(a) Definitions. For purposes of this Agreement, "Forfeiture" shall
mean any forfeiture of RSUs pursuant to Section 3(b) below. For purposes of this
Agreement, "employ" or "employment" with the Company shall include employment
with a parent or subsidiary of the Company as defined in Sections 424(e) or (f)
of the Internal Revenue Code.
(b) Cessation of Employment. In the event that the Participant
ceases to be employed by the Company for any reason or no reason (except for
death or disability), with or without cause, prior to the Vesting Date, all of
the Participant's
unvested RSUs shall automatically be forfeited as of such cessation. In the
event that the Participant ceases to be employed by the Company by reason of
death or disability prior to the Vesting Date, then 100% of the Participant's
RSUs shall become immediately and fully vested and shall no longer be subject to
the Forfeiture provisions under this Agreement. For the purpose of this Section
3, "disability" shall mean disability as defined in Section 216(i)(1) of the
U.S. Social Security Act.
(c) Change in Control. Notwithstanding the foregoing, if, prior to
the Vesting Date, and within two years of the effectiveness of a Change in
Control (as defined below), the Participant is (i) terminated by the Company
without Cause (as defined below) or (ii) terminates his employment for Good
Reason (as defined below), then, 100% of the Participant's RSUs shall become
immediately and fully vested and shall no longer be subject to the Forfeiture
provisions under this Agreement. For purposes of this section "Change in
Control" means the first to occur of any of the following events: (I) any
"person" (as that term is used in Section 13 and 14(d)(2) of the Securities
Exchange Act of 1934 ("Exchange Act")) becomes the beneficial owner (as that
term is used in Section 13(d) of the Exchange Act), directly or indirectly, of
fifty percent (50%) or more of the Company's capital stock entitled to vote in
the election of directors; (II) the shareholders of the Company approve any
consolidation or merger of the Company, other than a consolidation or merger of
the Company in which the holders of the common stock of the Company immediately
prior to the consolidation or merger hold more than fifty percent (50%) of the
common stock of the surviving corporation immediately after the consolidation or
merger; or (III) the shareholders of the Company approve the sale or transfer of
all or substantially all of the assets of the Company to parties that are not
within a "controlled group of corporations" (as defined in Code Section 1563) in
which the Company is a member. For purposes of this Agreement, "Cause" shall
mean conviction for the commission of a felony, willful failure by the
Participant to perform his responsibilities to the Company, or willful
misconduct by the Employee. For purposes of this section, "Good Reason" shall
mean termination of the Participant's employment by the Participant within 90
days following (I) a material diminution in the Participant's positions, duties
and responsibilities from those described in this Employment Agreement, (II) a
material reduction in the Participant's base salary (other than a reduction
which is part of a general salary reduction program affecting senior executives
of the Company), (III) a material reduction in the aggregate value of the
pension and welfare benefits provided to the Participant from those in effect
prior to the Change in Control (other than a reduction which is proportionate to
the reductions applicable to other senior executives pursuant to a cost-saving
plan that includes all senior executives), (IV) a material breach of any
provision of this Employment Agreement by the Company or (V) the Company's
requiring the Participant to be based at a location that creates for the
Participant a one way commute in excess of 60 miles from his primary residence,
except for required travel on the Company's business to an extent substantially
consistent with the business travel obligations of the Participant under this
Employment Agreement. Notwithstanding the foregoing, a termination shall not be
treated as a termination for Good Reason (I) if the Participant shall have
consented in writing to the occurrence of the event giving rise to the claim of
termination for Good Reason or (II) unless the Participant shall have delivered
a written notice to the Company within 30 days of his having actual knowledge of
the occurrence of one of such events
stating that he intends to terminate his employment for Good Reason and
specifying the factual basis for such termination, and such event, if capable of
being cured, shall not have been cured within 30 days of the receipt of such
notice.
4. Restrictions on Transfer.
The Participant shall not sell, assign, transfer, pledge, hypothecate or
otherwise dispose of, by operation of law or otherwise (collectively "transfer")
any RSUs, or any interest therein, except that the Participant may transfer such
RSUs (i) to or for the benefit of any spouse, children, parents, uncles, aunts,
siblings, grandchildren and any other relatives approved by the Board of
Directors (collectively, "Approved Relatives") or to a trust established solely
for the benefit of the Participant and/or Approved Relatives, provided that such
RSUs shall remain subject to this Agreement (including without limitation the
terms of Forfeiture and the restrictions on transfer set forth in this Section
4) and such permitted transferee shall, as a condition to such transfer, deliver
to the Company a written instrument confirming that such transferee shall be
bound by all of the terms and conditions of this Agreement.
5. Provisions of the Plan.
This Agreement is subject to the provisions of the Plan, a copy of
which is furnished to the Participant with this Agreement.
6. No Compensation Deferral. Neither the Plan nor this Agreement is
intended to provide for an elective deferral of compensation that would be
subject to Section 409A ("Section 409A") of the U.S. Internal Revenue Code of
1986, as amended. The Company reserves the right, to the extent the Company
deems necessary or advisable in its sole discretion, to unilaterally amend or
modify the Plan and/or this Agreement to ensure that no awards (including
without limitation, the RSUs) become subject to the requirements of Section
409A.
7. Withholding Taxes.
(a) The Company's obligation to deliver Shares to the Participant
upon the vesting of the RSUs shall be subject to the satisfaction of all income
tax (including federal, state and local taxes), social insurance, payroll tax,
payment on account or other tax related withholding requirements ("Withholding
Taxes"). In order to satisfy all Withholding Taxes due upon vesting of the
Participant's RSUs, the Participant agrees to the following:
(b) As a condition to receiving any Shares upon vesting of the RSUs,
on the date of this Agreement, the Participant must execute the Irrevocable
Standing Order to Sell Shares attached hereto, which authorizes the Company and
Broker to take the actions described in this subsection 7(b) (the "Standing
Order"). The Participant authorizes Broker to sell, at the market price and on
the Vesting Date the number of Shares that the Company has instructed Broker is
necessary to obtain proceeds sufficient to satisfy the Withholding Taxes. The
Participant understands and agrees that the number of Shares that Broker will
sell will be based on the closing price of the Common Stock on
the last trading day before the Vesting Date. The Participant agrees to execute
and deliver such documents, instruments and certificates as may reasonably be
required in connection with the sale of the Shares pursuant to this Section 7.
(c) The Participant agrees that the proceeds received from the sale
of Shares pursuant to Section 7(b) will be used to satisfy the Withholding Taxes
and, accordingly, the Participant hereby authorizes Broker to pay such proceeds
to the Company for such purpose. The Participant understands that to the extent
that the proceeds obtained by such sale exceed the amount necessary to satisfy
the Withholding Taxes, such excess proceeds shall be deposited into the Account.
The Participant further understands that any remaining Shares shall be deposited
into the Account.
(d) The Participant acknowledges and agrees that (i) in the event
that there is not a market in the Common Stock or (ii) the Company determines in
its sole discretion that the procedure described in Section 7(b) is not
advisable or sufficient, the Company will have the right to make other
arrangements to satisfy the Withholding Taxes due upon vesting of the RSUs,
including, but not limited to, the right to deduct amounts from salary or
payments of any kind otherwise due to the Participant or withhold in Shares,
provided that the Company only withholds the amount of Shares necessary to
satisfy the minimum withholding amount.
(e) The Participant has reviewed with the Participant's own tax
advisors the federal, state, local and foreign tax consequences of this grant
and the transactions contemplated by this Agreement. The Participant is relying
solely on such advisors and not on any statements or representations of the
Company or any of its agents. The Participant understands that the Participant
(and not the Company) shall be responsible for the Participant's own tax
liability that may arise as a result of this grant or the transactions
contemplated by this Agreement.
(f) The Participant represents to the Company that, as of the date
hereof, he is not aware of any material nonpublic information about the Company
or the Common Stock. The Participant and the Company have structured this
Agreement to constitute a "binding contract" relating to the sale of Common
Stock pursuant to this Section 7, consistent with the affirmative defense to
liability under Section 10(b) of the Securities Exchange Act of 1934 under Rule
10b5-1(c) promulgated under such Act.
8. Nature of the Grant. In signing this Agreement, the Participant
acknowledges that:
(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, unless 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 an extraordinary item that do not constitute compensation of
any kind for services of any kind rendered to the Company or to the
Participant's employer, and RSUs are outside the scope of the
Participant's employment contract, if any;
(f) RSUs are not part of normal or expected compensation or salary for any
purpose, including, but not limited to, calculation of any severance,
resignation, termination, redundancy, 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;
(g) the future value of the underlying Shares is unknown and cannot be
predicted with certainty;
(h) if the Participant receives Shares upon vesting, the value of such
Shares acquired on vesting 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 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; and
(j) further, 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 Committee shall have the exclusive
discretion to determine when the Participant is no longer actively
employed for purposes of the Plan.
9. Data Privacy Notice and Consent. The Participant hereby explicitly and
unambiguously consents to the collection, use and transfer, in electronic or
other form, of his or her personal data as described in this paragraph, by and
among, as applicable, and
the Company and its subsidiaries and affiliates for, among other purposes,
implementing, administering and managing the Participant's participation in the
Plan. The Participant understands that the Company and its subsidiaries hold
certain personal information about the Participant, including the Participant's
name, home address, date of birth, social security number or identification
number, salary, job title, any Shares or directorships held in the Company,
details of all options or any other entitlement to Shares awarded, canceled,
exercised, vested, unvested or outstanding in the Participant's favor, for the
purpose of managing and administering the Plan ("Data"). The Participant further
understands that the Company and/or its subsidiaries will transfer Data amongst
themselves as necessary for employment purposes, including implementation,
administration and management of the Participant's participation in the Plan,
and that the Company and/or any of its subsidiaries may each further transfer
Data to Broker or such other stock plan service provider or other third parties
assisting the Company with processing of Data. The Participant understands that
these recipients may be located in the United States, and that the recipient's
country may have different data privacy laws and protections than in the
Participant's country. The Participant authorizes them to receive, possess, use,
retain and transfer the Data, in electronic or other form, for the purposes
described in this section, including any requisite transfer to Broker or such
other stock plan service provider or other third party as may be required for
the administration of the Plan and/or the subsequent holding of Shares of stock
on the Participant's behalf. The Participant understands that he or she may, at
any time, request access to the Data, request any necessary amendments to it or
refuse or withdraw the consents herein, in any case without cost, by contacting
the Company in writing. The Participant understands, however, that withdrawal of
consent may affect the Participant's ability to participate in or realize
benefits from the Plan. For more information on the consequences of refusal to
consent or withdrawal of consent, the Participant understands that he or she may
contact the Company.
10. Miscellaneous.
(a) No Rights to Employment. The Participant acknowledges and agrees
that the vesting of the RSUs pursuant to Section 2 hereof is earned only in
accordance with the terms of such section. The Participant further acknowledges
and agrees that the transactions contemplated hereunder and the vesting schedule
set forth herein do not constitute an express or implied promise of continued
employment with the Company or any subsidiary of the Company for the vesting
period, for any period, or at all.
(b) Severability. The invalidity or unenforceability of any
provision of this Agreement shall not affect the validity or enforceability of
any other provision of this Agreement, and each other provision of this
Agreement shall be severable and enforceable to the extent permitted by law.
(c) Waiver. Any provision for the benefit of the Company contained
in this Agreement may be waived, either generally or in any particular instance,
by the Board of Directors of the Company.
(d) Binding Effect. This Agreement shall be binding upon and inure
to the benefit of the Company and the Participant and their respective heirs,
executors, administrators, legal representatives, successors and assigns,
subject to the restrictions on transfer set forth in Section 4 of this
Agreement.
(e) Notice. All notices required or permitted hereunder shall be in
writing and deemed effectively given upon personal delivery or five days after
deposit in the United States Post Office, by registered or certified mail,
postage prepaid, addressed to the other party hereto at the address shown
beneath his or its respective signature to this Agreement, or at such other
address or addresses as either party shall designate to the other in accordance
with this Section 10(e).
(f) Pronouns. Whenever the context may require, any pronouns used in
this Agreement shall include the corresponding masculine, feminine or neuter
forms, and the singular form of nouns and pronouns shall include the plural, and
vice versa.
(g) Language. If the Participant has received this Agreement or any
other document related to the Plan translated into a language other than English
and if the translated version is different than the English version, the English
version will control.
(h) Electronic Delivery. The Company may, in its sole discretion,
decide to deliver any documents related to participation in the Plan, RSUs
granted under the Plan or future RSUs that may be granted under the Plan by
electronic means or to request the Participant's consent to participate in the
Plan by electronic means. The Participant hereby consents to receive such
documents by electronic delivery and, if requested, to agree to participate in
the Plan through an on-line or electronic system established and maintained by
the Company or another third party designated by the Company.
(i) Entire Agreement. This Agreement and the Plan constitute the
entire agreement between the parties, and supersedes all prior agreements and
understandings, relating to the subject matter of this Agreement.
(j) Amendment. This Agreement may be amended or modified only by a
written instrument executed by both the Company and the Participant.
(k) Governing Law. This Agreement shall be construed, interpreted
and enforced in accordance with the internal laws of the Commonwealth of
Massachusetts without regard to any applicable conflicts of laws.
(l) The Participant's Acknowledgments. The Participant acknowledges
that he or she: (i) has read this Agreement; (ii) has been represented in the
preparation, negotiation, and execution of this Agreement by legal counsel of
the Participant's own choice or has voluntarily declined to seek such counsel;
and (iii) understands the terms and consequences of this Agreement; and (iv) is
fully aware of the legal and binding effect of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
MKS INSTRUMENTS, INC.
By:
Title: Chief Executive Officer & President
90 Industrial Way
Wilmington, MA 01887
(First_Name)(Last_Name)
Participants
Signature:_________________________________
Address: (Street),(BoxApt)
(City),(State)(Zip_Code)
(Country)
Exhibit A
IRREVOCABLE STANDING ORDER TO SELL SHARES
I, (FIRST_NAME) (LAST_NAME), have been granted restricted stock units
("RSUs") with respect to 000000 shares of stock by MKS Instruments, Inc.
("MKS"), which is evidenced by a Restricted Stock Unit Agreement between me and
MKS (the "Agreement," copy attached). Provided that I remain employed by MKS (or
one of its subsidiaries) on each vesting date, the RSUs vest according to the
schedule set forth in the Agreement.
I understand that on the vesting date, MKS shares (the "Shares") will be
deposited into my account at Fidelity Stock Plan Services, LLC (the "Broker")
and that I may recognize taxable income as a result. Pursuant to the terms of
the Agreement and as a condition of my receipt of the Shares, I understand and
agree that, for each vesting date, I must sell a number of shares sufficient to
satisfy all withholding taxes applicable to that income. Therefore, I HEREBY
DIRECT BROKER TO SELL, AT THE MARKET PRICE AND ON EACH VESTING DATE (OR THE
FIRST BUSINESS DAY THEREAFTER IF A VESTING DATE SHOULD FALL ON A DAY WHEN THE
MARKET IS CLOSED), THE NUMBER OF SHARES THAT MKS INFORMS BROKER IS SUFFICIENT TO
SATISFY THE APPLICABLE WITHHOLDING TAXES, WHICH SHALL BE CALCULATED BASED ON THE
CLOSING PRICE OF MKS' COMMON STOCK ON THE LAST TRADING DAY BEFORE THE VESTING
DATE. I understand that Broker will remit the proceeds to MKS for payment of the
withholding taxes.
I hereby agree to indemnify and hold Broker harmless from and against all
losses, liabilities, damages, claims and expenses, including reasonable
attorneys' fees and court costs, arising out of any (i) negligent act, omission
or willful misconduct by MKS in carrying out actions pursuant to the third
sentence of the preceding paragraph and (ii) any action taken or omitted by
Broker in good faith reliance upon instructions herein or upon instructions or
information transmitted to Broker by MKS pursuant to the third sentence of the
preceding paragraph.
I understand and agree that by signing below, I am making an Irrevocable
Standing Order to Sell Shares which will remain in effect until all of the RSUs
have vested. I also agree that this Irrevocable Standing Order to Sell Shares is
in addition to and subject to the terms and conditions of any existing Account
Agreement that I have with Broker.
____________________________________ _____________________________________
Signature __________________ Signature (Additional Account Holder)
Print name: ____________________ Print name: ______________________
Dated: _______ __, 20__ Dated: ________ __, 20__
.
.
.
Exhibit 10.29
SUMMARY OF 2007 ANNUAL SALARIES OF EXECUTIVE OFFICERS
ANNUAL
EXECUTIVE OFFICER SALARY
- ----------------- --------
Leo Berlinghieri, President and Chief Executive Officer $485,000
Gerald G. Colella, Chief Business Officer and Vice President $350,000
Ron Hadar, Vice President & General Manager, CIT Products $250,000
Robert Klimm, Vice President & General Manager, Power and Reactive
Gas Products $247,000
Frank Schneider, Vice President & General Manager, Ion Systems $235,000
John A. Smith, Vice President and Chief Technical Officer $285,000
William D. Stewart, Vice President & General Manager, Vacuum Products
Group $260,000
Ronald C. Weigner, Vice President and Chief Financial Officer $263,000
.
.
.
EXHIBIT 21.1
SUBSIDIARIES OF THE REGISTRANT
SUBSIDIARY JURISDICTION OF INCORPORATION
MKS Instruments France S.A. France
MKS Instruments, U.K. Limited United Kingdom
MKS Japan, Inc. Japan
MKS Korea Co., Ltd. Korea
ASTeX GmbH Germany
Telvac Engineering Limited United Kingdom
Spectra Sensortech, Ltd. United Kingdom
MKS MSC, Inc. Massachusetts
MKS (Bermuda) Ltd. Bermuda
MKS Luxembourg S.A.R.L. Luxembourg
MKS Germany Holding GmbH Germany
MKS Instruments Deutschland GmbH Germany
Applied Science and Technology, GmbH Germany
MKS Instruments (Asia) Ltd. Bermuda
MKS Instruments (Hong Kong) Ltd. Hong Kong
MKS Instruments (China) Company Ltd. China
MKS Taiwan Technology Ltd. Taiwan
M.K.S. Tenta Products Ltd. Israel
MKS Denmark APS Denmark
Tega Systems Ltd. Israel
MKS Instruments (Shanghai) Ltd Shanghai
Ion Systems, Inc. California
MKS Umetrics AB Sweden
Umetrics (UK) Ltd. UK
Umetrics, Inc. New Jersey
Tantec, Inc. Illinois
Novx, Inc. California
exv23w1
EXHIBIT 23.1
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We hereby consent to the incorporation by reference in the Registration Statements on Form S-8 (No.
333-78069, 333-78071, 333-78073, 333-31224, 333-54486, 333-54488, 333-54490, 333-90498, 333-90500,
333-90502, 333-116385, 333-116387, 333-116389, and 333-127221) and Form S-3 (No. 333-34450 and
333-109753) of MKS Instruments, Inc. of our report dated February 28, 2007 relating to the
financial statements, financial statement schedule, managements assessment of the effectiveness of
internal control over financial reporting and the effectiveness of internal control over financial
reporting, which appears in this Form 10-K.
/s/ PricewaterhouseCoopers LLP
Boston, Massachusetts
February 28, 2007
exv31w1
EXHIBIT 31.1
CERTIFICATION OF PRINCIPAL EXECUTIVE OFFICER
PURSUANT TO RULE 13a-14(a)/RULE 15d-14(a) OF THE
SECURITIES EXCHANGE ACT OF 1934, AS AMENDED
I, Leo Berlinghieri, certify that:
1. |
|
I have reviewed this annual report on Form 10-K of MKS Instruments, Inc.; |
|
2. |
|
Based on my knowledge, this report does not contain any untrue statement of a material fact
or omit to state a material fact necessary to make the statements made, in light of the
circumstances under which such statements were made, not misleading with respect to the period
covered by this report; |
|
3. |
|
Based on my knowledge, the financial statements, and other financial information included in
this report, fairly present in all material respects the financial condition, results of
operations and cash flows of the registrant as of, and for, the periods presented in this
report; |
|
4. |
|
The registrants other certifying officer and I are responsible for establishing and
maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and
15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules
13a-15(f) and 15(d)-15(f)) for the registrant and have: |
|
a) |
|
Designed such disclosure controls and procedures, or caused such
disclosure controls and procedures to be designed under our supervision, to
ensure that material information relating to the registrant, including its
consolidated subsidiaries, is made known to us by others within those entities,
particularly during the period in which this annual report is being prepared; |
|
|
b) |
|
Designed such internal control over financial reporting, or caused such
internal control over financial reporting to be designed under our supervision,
to provide reasonable assurance regarding the reliability of financial
reporting and the preparation of financial statements for external purposes in
accordance with generally accepted accounting principles; |
|
|
c) |
|
Evaluated the effectiveness of the registrants disclosure controls and
procedures and presented in this annual report our conclusions about the
effectiveness of the disclosure controls and procedures, as of the end of the
period covered by this report based on such evaluation; and |
|
|
d) |
|
Disclosed in this report any changes in the registrants internal
control over financial reporting that occurred during the registrants fourth
fiscal quarter that has materially affected, or is reasonably likely to
materially affect, the registrants internal control over financial reporting;
and |
5. |
|
The registrants other certifying officer and I have disclosed, based on our most recent
evaluation of internal control over financial reporting, to the registrants auditors and the
audit committee of registrants board of directors (or persons performing the equivalent
functions): |
|
a) |
|
All significant deficiencies and material weaknesses in the design or
operation of internal control over financial reporting which are reasonably
likely to adversely affect the registrants ability to record, process,
summarize and report financial information; and |
|
|
b) |
|
Any fraud, whether or not material, that involves management or other
employees who have a significant role in the registrants internal control and
financial reporting. |
|
|
|
|
|
|
|
|
Dated: February 27, 2007 |
/s/ Leo Berlinghieri
|
|
|
Leo Berlinghieri |
|
|
Chief Executive Officer and President
(Principal Executive Officer) |
|
|
exv31w2
EXHIBIT 31.2
CERTIFICATION OF PRINCIPAL FINANCIAL OFFICER
PURSUANT TO RULE 13a-14(a)/RULE 15d-14(a) OF THE
SECURITIES EXCHANGE ACT OF 1934, AS AMENDED
I, Ronald C. Weigner, certify that:
1. |
|
I have reviewed this annual report on Form 10-K of MKS Instruments, Inc.; |
|
2. |
|
Based on my knowledge, this report does not contain any untrue statement of a material fact
or omit to state a material fact necessary to make the statements made, in light of the
circumstances under which such statements were made, not misleading with respect to the period
covered by this report; |
|
3. |
|
Based on my knowledge, the financial statements, and other financial information included in
this report, fairly present in all material respects the financial condition, results of
operations and cash flows of the registrant as of, and for, the periods presented in this
report; |
|
4. |
|
The registrants other certifying officer and I are responsible for establishing and
maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and
15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules
13a-15(f) and 15(d)-15(f)) for the registrant and have: |
|
a) |
|
Designed such disclosure controls and procedures, or caused such
disclosure controls and procedures to be designed under our supervision, to
ensure that material information relating to the registrant, including its
consolidated subsidiaries, is made known to us by others within those entities,
particularly during the period in which this annual report is being prepared; |
|
|
b) |
|
Designed such internal control over financial reporting, or caused such
internal control over financial reporting to be designed under our supervision,
to provide reasonable assurance regarding the reliability of financial
reporting and the preparation of financial statements for external purposes in
accordance with generally accepted accounting principles; |
|
|
c) |
|
Evaluated the effectiveness of the registrants disclosure controls and
procedures and presented in this annual report our conclusions about the
effectiveness of the disclosure controls and procedures, as of the end of the
period covered by this report based on such evaluation; and |
|
|
d) |
|
Disclosed in this report any changes in the registrants internal
control over financial reporting that occurred during the registrants fourth
fiscal quarter that has materially affected, or is reasonably likely to
materially affect, the registrants internal control over financial reporting;
and |
5. |
|
The registrants other certifying officer and I have disclosed, based on our most recent
evaluation of internal control over financial reporting, to the registrants auditors and the
audit committee of registrants board of directors (or persons performing the equivalent
functions): |
|
a) |
|
All significant deficiencies and material weaknesses in the design or
operation of internal control over financial reporting which are reasonably
likely to adversely affect the registrants ability to record, process,
summarize and report financial information; and |
|
|
b) |
|
Any fraud, whether or not material, that involves management or other
employees who have a significant role in the registrants internal control and
financial reporting. |
|
|
|
|
|
|
|
|
Dated: February 28, 2007 |
/s/ Ronald C. Weigner
|
|
|
Ronald C. Weigner |
|
|
Vice President and Chief Financial Officer
(Principal Financial Officer) |
|
|
exv32w1
EXHIBIT 32.1
CERTIFICATION OF CHIEF EXECUTIVE OFFICER AND CHIEF FINANCIAL OFFICER
PURSUANT TO 18 U.S.C. SECTION 1350,
AS ADOPTED PURSUANT TO
SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002
In connection with the Annual Report on Form 10-K of MKS Instruments, Inc. (the Company) for
the period ended December 31, 2006 as filed with the Securities and Exchange Commission on the date
hereof (the Report), the undersigned, Leo Berlinghieri, Chief Executive Officer and President of
the Company, and Ronald C. Weigner, Vice President and Chief Financial Officer of the Company, each
hereby certifies, pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the
Sarbanes-Oxley Act of 2002, that, based on his knowledge:
|
(1) |
|
The Report fully complies with the requirements of Section 13(a) or 15(d) of the
Securities Exchange Act of 1934; and |
|
|
(2) |
|
The information contained in the Report fairly presents, in all material respects,
the financial condition and results of operations of the Company. |
|
|
|
|
|
|
|
|
Dated: February 27, 2007 |
/s/ Leo Berlinghieri
|
|
|
Leo Berlinghieri |
|
|
Chief Executive Officer and President |
|
|
|
|
|
|
|
|
|
|
Dated: February 28, 2007 |
/s/ Ronald C. Weigner
|
|
|
Ronald C. Weigner |
|
|
Vice President and Chief Financial Officer |
|
|