Exhibit 10.08
EXHIBIT A
CONSULTING AGREEMENT
CONSULTING AGREEMENT, effective as of
October 1, 2007, by and between BROOKS AUTOMATION, INC., 15
Elizabeth Drive, Chelmsford, Massachusetts 01824 (the
“Company”) EDWARD C. GRADY, of 124 2 nd Street, Apt #3,
Los Altos, CA 94022
WITNESSETH:
WHEREAS, Consultant has been employed
by the Company pursuant to a Second Amended and Restated Employment
Agreement, effective September 1, 2006 (the “Employment
Agreement”);
WHEREAS, the Consultant and Company
have executed an Indemnification Agreement (the
“Indemnification Agreement”)’
WHEREAS, the Consultant and Company
have executed an Executive Invention, Nondisclosure, Noncompetition
and Nonsolicitation Agreement (the “Noncompetition
Agreement”);
WHEREAS, the Employment Agreement
provides that the parties would enter into a Consulting Agreement
in certain circumstances in connection with the Employment
Agreement; and
WHEREAS, the Company and Consultant
desire to enter into a Consulting Agreement (the “Consulting
Agreement”) on the terms set forth herein.
NOW, THEREFORE, in consideration of
the mutual covenants and agreements contained herein it is hereby
agreed by and between the Company and Consultant as follows:
1.
Consulting Term . The term of this Consulting Agreement
shall be four years, unless earlier terminated in accordance
herewith, commencing October 1, 2007 (the “Effective
Date”) and ending September 30, 2011 (the
“Term”).
2.
Consulting Responsibilities . Consultant shall, if and to
the extent requested by the Company’s Board of Directors,
provide the Company’s Board of Directors and Chief Executive
Officer with advice on strategic planning issues and assist them
with the transitioning of management to a new executive team.
Consultant shall be available for up to one hundred
(100) hours per quarter to provide such consulting services as
may be reasonably requested by the Board. If the Board does not
request such services in any particular quarter, then the hours not
utilized by the Company shall not carry over into any subsequent
quarters. Consultant shall be permitted to perform the duties under
this Section 2 in the geographic location of his choice.
Consultant shall be considered for nomination to the
Company’s Board of Directors each year of the Term (as
defined below) by the Company’s Nominating and Governance
Committee.
3.
Remuneration .
(a) Fees . In
consideration of Consultant entering into this Consulting
Agreement, and of his agreeing to furnish services as Consultant
hereunder, the Company shall pay to
Consultant an annual fee of One Hundred Thousand Dollars
($100,000). The annual fee shall be paid in monthly installments in
accordance with the Company’s normal practices. The
Consultant shall be an independent contractor and will be
responsible for all self-employment taxes. Executive shall be
eligible to receive additional fees as determined by the
Compensation Committee in light of the services provided by the
Consultant hereunder.
(b) Expenses . The
Company shall reimburse Consultant for his reasonable out-of-pocket
expenses incurred in connection with the furnishing of services
hereunder and in accordance with the Company’s expense
policies for independent contractors.
(c) Restricted
Stock/Options . If this Consulting Agreement is terminated by
the Company without cause as defined below, then notwithstanding
anything herein or in the governing plan, stock or option agreement
to the contrary, all stock options then held by the Consultant
shall continue to vest in accordance with the vesting schedule
therein, without regard to any continued employment or other
relationship with the Company, and remain exercisable, for the
remaining option term.
(d) Benefits . During
the Term and to the extent permitted by the applicable plan,
Consultant shall be eligible for participation in and shall receive
all benefits available under the Brooks Automation, Inc. 401(k)
Plan, and the Company’s welfare benefit plans, practices,
policies and programs (including disability, salary continuance,
group life, accidental death and travel accident insurance plans
and programs) normally available to other senior executives. These
benefits shall be in addition to the benefits required to be
provided to the Executive pursuant to Section 15 of the
Employment Agreement which shall survive independently from this
consulting agreement. In addition, at the request of the
Consultant, the Company will use its commercially reasonable
efforts to implement an arrangement whereby the Consultant may
continue to participate in the company Deferred Compensation Plan
established 04/01/2005 and defer some or all of the remuneration he
is due hereunder to the extent such an arrangement is available in
compliance with applicable law, including Section 409A of the
Internal Revenue Code.
4.
Termination of Consulting . The Company or Consultant may
terminate this Consulting Agreement by providing at least sixty
(60) days written notice to the other in accordance with the
notice requirements of Section 8(f) herein. If the Company (or any
successor or assignee) terminates the Consulting Agreement without
cause as defined below, then it shall continue to pay the fees and
provide the benefits set forth in Sections 3(a), 3(b) and 3(c)
above through the expiration of the Term but all other rights and
obligations of the Company or Consultant shall cease and be
completely void expect as specifically set forth in this Consulting
Agreement. If this Consulting Agreement is terminated by the
Company for cause or by the Consultant, then the Company shall have
no further obligation hereunder. For purposes of this Section,
“cause” shall mean the (i) Consultant’s
conviction of, or the entry of a plea of guilty or nolo contendere
to any misdemeanor involving moral turpitude or any felony;
(ii) fraud, embezzlement, or similar act of dishonesty,
unauthorized disclosure, attempted disclosure, use or attempted use
of confidential information; acts prejudicial to the interest or
reputation of the Company; or falsification, concealment or
distortion of management information; (iii) conduct by the
Consultant constituting an act of moral turpitude, or acts of
physical violence while on duty; (iv) the Consultant’s
willful failure or refusal to perform the duties on behalf of the
Company which
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are
consistent with the scope and nature of the Consultant’s
responsibilities, or otherwise to comply with a lawful directive or
policy of the Company; (v) any act of gross negligence, gross
corporate waste or disloyalty by the Consultant to the Company or
the commission of any intentional tort by the Consultant against
the Company; or (vi) material breach of this Agreement by the
Consultant.
5.
Public Statements . For so long as the Consultant is engaged
by the Company under this Consulting Agreement, and at all times
thereafter, the Consultant shall support the Company in public
statements and in all dealings with third parties, and will refrain
from making any derogatory or harmful statements with respect to
the Company or taking any action that would reflect negatively on
the Company or any of its officers, directors, employees, advisors,
customers or other related or affiliated parties.
6.
Release . Except for Consultant’s rights arising under
any option agreements, restricted stock agreements, the
Indemnification Agreement, the Noncompetition Agreement and this
Consulting Agreement, Consultant specifically rel
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