As filed with the Securities and Exchange Commission on June 14, 2002 Registration No. 333-_____ SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 MKS INSTRUMENTS, INC. (Exact Name of Registrant as Specified in Its Charter) MASSACHUSETTS 04-2277512 (State or Other Jurisdiction of (I.R.S. Employer Incorporation or Organization) Identification Number) SIX SHATTUCK ROAD, ANDOVER, MASSACHUSETTS 01810 (Address of Principal Executive Offices) (Zip Code) AMENDED AND RESTATED 1995 STOCK INCENTIVE PLAN, AS AMENDED (Full Title of the Plan) JOHN R. BERTUCCI CHAIRMAN AND CHIEF EXECUTIVE OFFICER MKS INSTRUMENTS, INC. SIX SHATTUCK ROAD ANDOVER, MA 01810 (Name and Address of Agent For Service) (978) 975-2350 (Telephone Number, Including Area Code, of Agent For Service) CALCULATION OF REGISTRATION FEE (1) Estimated solely for the purpose of calculating the registration fee pursuant to Rules 457(c) and 457(h) of the Securities Act of 1933, as amended, and based upon the average of the high and low prices of the Registrant's Common Stock as reported on the Nasdaq National Market on June 12, 2002.
Proposed Maximum Proposed Maximum Title of Securities Amount to be Offering Price Per Aggregate Offering Amount of to be Registered (1) Share Price Registration Fee - ----------------- ------------- ----- ----- ---------------- Common Stock, no 5,250,000 $22.86 $120,015,000 $11,041.38 par value per share STATEMENT OF INCORPORATION BY REFERENCE Except as otherwise set forth below, this Registration Statement on Form S-8 incorporates by reference the contents of the Registration Statements on Form S-8, File No. 333-78071 and 333-54490, relating to the Registrant's Amended and Restated 1995 Stock Incentive Plan, as Amended. SIGNATURES Pursuant to the requirements of the Securities Act, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in Andover, Massachusetts on June 14, 2002. MKS INSTRUMENTS, INC. By: /s/ John R. Bertucci -------------------- John R. Bertucci Chairman of the Board and Chief Executive Officer POWER OF ATTORNEY AND SIGNATURES We, the undersigned officers and directors of MKS Instruments, Inc. hereby severally constitute and appoint John R. Bertucci, Ronald C. Weigner and Mark G. Borden, and each of them singly, our true and lawful attorneys with full power to them, and each of them singly, to sign for us and in our names in the capacities indicated below, the Registration Statement on Form S-8 filed herewith and any and all subsequent amendments to said Registration Statement, and generally to do all such things in our names and behalf in our capacities as officers and directors to enable MKS Instruments, Inc. to comply with all requirements of the Securities and Exchange Commission, hereby ratifying and confirming our signatures as they may be signed by said attorneys, or any of them, to said Registration Statement and any and all amendments thereto. PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT, THIS REGISTRATION STATEMENT HAS BEEN SIGNED BY THE FOLLOWING PERSONS IN THE CAPACITIES AND ON THE DATES INDICATED.
Signature Title Date --------- ----- ---- /s/ John R. Bertucci Chairman of the Board and Chief June 14, 2002 - ---------------------- Executive Officer (Principal John R. Bertucci Executive Officer) /s/ Ronald C. Weigner Vice President and Chief June 14, 2002 - ---------------------- Financial Officer (Principal Ronald C. Weigner Financial Officer and Principal Accounting Officer) /s/ Robert R. Anderson Director June 14, 2002 - ---------------------- Robert R. Anderson /s/ James G. Berger Director June 14, 2002 - ---------------------- James G. Berges /s/ Richard S. Chute Director June 14, 2002 - ---------------------- Richard S. Chute /s/ Hans-Jochen Kahl Director June 14, 2002 - ---------------------- Hans-Jochen Kahl
/s/ Owen W. Robbins Director June 14, 2002 - ---------------------- Owen W. Robbins /s/ Louis P. Valente Director June 14, 2002 - ---------------------- Louis P. Valente EXHIBIT INDEX - -------------------------------------------------------------------------------- (1) Incorporated herein by reference from the Registrant's Registration Statement on Form S-4 (File No. 333-49738) originally filed with the Securities and Exchange Commission on December 13, 2000, as amended. (2) Incorporated herein by reference from the Registrant's Quarterly Report on Form 10-Q originally filed with the Securities and Exchange Commission on August 14, 2001. (3) Incorporated herein by reference from the Registrant's Definitive Proxy originally filed with the Securities and Exchange Commission on April 16, 2002. (4) Incorporated herein by reference from the Registrant's Registration Statement on Form S-1 (File No. 333-71363) originally filed with the Securities and Exchange Commission on January 28, 1999, as amended.
Exhibit Number Description - ------ ----------- 4.1(1) Restated Articles of Organization of the Registrant. 4.2(2) Articles of Amendment. 4.3(3) Articles of Amendment. 4.4(4) Amended and Restated By-Laws of the Registrant. 4.5(4) Specimen Certificate for Common Stock of the Registrant. 5.1 Opinion of Hale and Dorr LLP. 23.1 Consent of Hale and Dorr LLP (included in Exhibit 5.1). 23.2 Consent of PricewaterhouseCoopers LLP. 23.3 Consent of KPMG LLP. 24.1 Power of Attorney (included in the signature pages of this Registration Statement).
Exhibit 5.1 HALE AND DORR LLP COUNSELLORS AT LAW HALEDORR.COM 60 STATE STREET - BOSTON, MA 02109 617-526-6000 - FAX 617-526-5000 June 14, 2002 MKS Instruments, Inc. Six Shattuck Road Andover, MA 01810 Re: Amended and Restated 1995 Stock Incentive Plan, as amended Ladies and Gentlemen: We have assisted in the preparation of a Registration Statement on Form S-8 (the "Registration Statement") to be filed with the Securities and Exchange Commission (the "Commission") under the Securities Act of 1933, as amended (the "Securities Act"), relating to an aggregate of 5,250,000 shares of common stock, no par value per share (the "Shares"), of MKS Instruments, Inc., a Massachusetts corporation (the "Company"), issuable under the Company's Amended and Restated 1995 Stock Incentive Plan, as amended (the "Plan"). We have examined the Articles of Organization and By-Laws of the Company, each as amended and restated to date, and originals, or copies certified to our satisfaction, of all pertinent records of the meetings of the directors and stockholders of the Company, the Registration Statement and such other documents relating to the Company as we have deemed material for the purposes of this opinion. In our examination of the foregoing documents, we have assumed the genuineness of all signatures, the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as certified, photostatic or other copies, the authenticity of the originals of any such documents and the legal competence of all signatories to such documents. We assume that the appropriate action will be taken, prior to the offer and sale of the shares in accordance with the Plan, to register and qualify the shares for sale under all applicable state securities or "blue sky" laws. MKS Instruments, Inc. June 14, 2002 Page 2 We express no opinion herein as to the laws of any state or jurisdiction other than the state laws of The Commonwealth of Massachusetts and the federal laws of the United States of America. It is understood that this opinion is to be used only in connection with the offer and sale of the Shares while the Registration Statement is in effect. Please note that we are opining only as to the matters expressly set forth herein, and no opinion should be inferred as to any other matters. Based on the foregoing, we are of the opinion that the Shares have been duly authorized for issuance and, when the Shares are issued and paid for in accordance with the terms and conditions of the Plan, the Shares will be validly issued, fully paid and nonassessable. We hereby consent to the filing of this opinion with the Securities and Exchange Commission in connection with the Registration Statement in accordance with the requirements of Item 601(b)(5) of Regulation S-K under the Securities Act. In giving such consent, we do not hereby admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Commission. Very truly yours, /s/ HALE AND DORR LLP HALE AND DORR LLP
Exhibit 23.2 CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS We hereby consent to the incorporation by reference in this Registration Statement on Form S-8 of our report dated January 31, 2002 relating to the financial statements and financial statement schedule of MKS Instruments, Inc., which appears in MKS Instruments, Inc.'s Annual Report on Form 10-K for the year ended December 31, 2001. /s/ PricewaterhouseCoopers LLP Boston, Massachusetts June 13, 2002
Exhibit 23.3 Independent Auditors' Consent The Board of Directors Applied Science and Technology, Inc and Subsidiaries: We consent to the use of our report dated July 31, 2000, with respect to the consolidated balance sheet of Applied Science and Technology, Inc., and subsidiaries as of July 1, 2000, and the related consolidated statements of operations, stockholders' equity, and cash flows for each of the years in the two-year period ended July 1, 2000, incorporated herein by reference. /s/ KPMG LLP Boston, MA June 13, 2002