UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM
CURRENT REPORT
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| Item 1.01 | Entry into a Material Definitive Agreement. |
On June 1, 2023, MKS Instruments, Inc. (the “Company”) entered into an underwriting agreement (the “Underwriting Agreement”) with J.P. Morgan Securities LLC, as underwriter (the “Underwriter”), and entities affiliated with Carlyle (collectively, the “Selling Stockholders”).
Pursuant to the terms of the Underwriting Agreement, the Selling Stockholders agreed to sell an aggregate of 2,000,000 shares (the “Shares”) of the Company’s common stock, no par value per share (the “Common Stock”), to the Underwriter at a price per share of $96.76. The Company will not receive any proceeds from the sale of the Shares by the Selling Stockholders. The offering is expected to close on or about June 6, 2023, subject to the satisfaction of customary closing conditions.
The offering was registered under the Securities Act of 1933, as amended, pursuant to the Company’s registration statement on Form S-3ASR (File No. 333-267046) filed with the Securities and Exchange Commission on August 24, 2022, which became automatically effective upon filing.
The Underwriting Agreement contains customary representations, warranties, covenants and agreements by the Company, customary conditions to closing, indemnification obligations of the Company and the Underwriter, including for liabilities under the Securities Act of 1933, as amended, other obligations of the parties and termination provisions. The representations, warranties and covenants contained in the Underwriting Agreement were made only for purposes of such agreement and as of specific dates, were solely for the benefit of the parties to such agreement, and may be subject to limitations agreed upon by the contracting parties. A copy of the Underwriting Agreement is attached as Exhibit 1.1 hereto and is incorporated herein by reference. The foregoing description of the material terms of the Underwriting Agreement does not purport to be complete and is qualified in its entirety by reference to such exhibit.
A copy of the legal opinion and consent of Wilmer Cutler Pickering Hale and Dorr LLP relating to the Shares is attached as Exhibit 5.1 hereto.
| Item 8.01 | Other Events. |
On June 1, 2023, the Company issued a press release announcing the pricing of the offering. A copy of this press release is filed as Exhibit 99.1 to this report and is incorporated herein by reference.
| Item 9.01 | Financial Statements and Exhibits. |
(d) Exhibits
| Exhibit |
Exhibit | |
| 1.1 | Underwriting Agreement, dated June 1, 2023, by and among MKS Instruments, Inc., J.P. Morgan Securities LLC, as underwriter, and the selling stockholders named therein. | |
| 5.1 | Opinion of Wilmer Cutler Pickering Hale and Dorr LLP. | |
| 23.1 | Consent of Wilmer Cutler Pickering Hale and Dorr LLP (contained in Exhibit 5.1). | |
| 99.1 | Pricing Press Release issued by MKS Instruments, Inc., dated June 1, 2023. | |
| 104 | Cover Page Interactive Data File (embedded within the Inline XBRL document). | |
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
| MKS Instruments, Inc. | ||||||
| By: | /s/ Kathleen F. Burke | |||||
| Date: June 5, 2023 | Name: | Kathleen F. Burke | ||||
| Title: | Executive Vice President, General Counsel and Secretary | |||||