RESTRICTED STOCK
AGREEMENT
AGREEMENT made
this April 25, 2008, between Brooks Automation, Inc., a
Delaware corporation (the “Company”), and Robert J.
Lepofsky (the “Employee”).
WHEREAS, as an
inducement for the Employee to assist the Company to achieve
long-range performance goals and to enable the Employee to
participate in the long-term growth of the Company, the Company
desires to grant to the Employee 50,000 Shares (the
“Shares”) of the Company’s common stock, (the
“Common Stock”), as an inducement to the Employee to
accept the position of Chief Executive Officer of the Company;
and
WHEREAS, the grant
of the Shares herein is issued as a so-called “inducement
grant” to the Employee and is not made pursuant to the
Company’s Amended and Restated 2000 Equity Incentive Plan
(the “Plan”); and
WHEREAS, it is
nonetheless the intention of the parties to incorporate by
reference in this agreement the terms and conditions of the Plan
and to be bound thereby in all respects except the provisions of
Section 4(a) of the Plan limiting the number of shares that can be
issued to any person in a single fiscal year.
NOW, THEREFORE,
for good and valuable consideration, receipt and sufficiency of
which are hereby acknowledged, the parties hereto agree as
follows:
ARTICLE 1
— ACQUISITION OF SHARES
1.1 Award of
Shares . The Company has granted the Shares to the Employee,
and the Employee hereby accepts the Shares, subject to the terms
and conditions of the Plan (other than Section 4(a) thereof) and
this Agreement. In the event of an inconsistency between this
Agreement and the Plan (other than Section 4(a) thereof), which is
incorporated herein by reference, the Plan will control. All
capitalized terms not defined in this Agreement have the meaning
specified in the Plan.
1.2 Record
ownership; custody of certificates, etc.
(a) In
accordance with the Plan and Section 158 of the Delaware
General Corporation Law, the Shares shall be evidenced in the books
of the Company as owned by the Employee. The Shares shall be held
in uncertificated form except as the Company otherwise determines.
If at any time the Shares are represented by certificates or other
evidence of ownership, the Company may retain custody of such
certificates or other evidence of ownership until such time as the
Shares are either forfeited to the Company or cease to be subject
to the risk of forfeiture and transfer restrictions described
herein and in the Plan. Notwithstanding the
foregoing,
except as set forth herein or in the Plan the Employee shall have
the rights of an owner of the Shares, including the right to vote
the Shares and the right to dividends or other
distributions.
(b) Upon
the lapsing of the restrictions described herein with respect to
the Shares, the Company shall take such steps as it determines to
be necessary or appropriate to transfer certificates or other
evidence of ownership to the Employee, including, if so determined
by the Company, to a brokerage account held by or for the benefit
of the Employee.
1.3 Employee
Representations . The Employee represents, warrants and
covenants as follows:
(a) The
Employee has received and reviewed the Plan and the Prospectus
related to the Plan, including the documents incorporated therein
by reference.
(b) The
Employee understands that (i) the Federal income tax
consequences to the Employee of the transfer of the Shares to the
Employee will vary depending upon whether the Employee makes an
election under Section 83(b) of the Internal Revenue Code of 1986,
as amended (the “Code”), (ii) the Company is not
providing the Employee with any advice as to whether to make such
election, (iii) the Employee has been advised to seek the
counsel of his or her own tax advisor as to whether, and if so
where and how to make such election, (iv) such election, if
made, must be filed with the Internal Revenue Service within
30 days of the date of this Agreement, and (v) the
Employee must notify the Company upon making such
election.
(c) The
Employee understands, agrees and acknowledges that the Shares are
subject to restrictions on transfer and may be forfeited if the
conditions of this Agreement are not satisfied. The Employee also
understands, agrees and acknowledges that if the Shares are ever
certificated the Company may, at its election and in its sole
discretion, require that the certificates have affixed thereto a
legend in substantially the following form:
“The shares
of stock represented by this certificate are subject to
restrictions on transfer and a risk of forfeiture set forth in a
certain Restricted Stock Agreement between the corporation and the
registered owner of this certificate (or his or her predecessor in
interest). Such Agreement is available for inspection without
charge at the principal executive offices of the
corporation.”
ARTICLE 2
— VESTING AND FORFEITURE
2.1 Vesting and
Forfeiture . For purposes of this Agreement, employment with
the Company shall include employment with a consolidated subsidiary
of the Company. The Shares shall vest as follows unless earlier
forfeited in accordance with this Section 2.1:
(a) Unless earlier
vested or forfeited, the Shares shall vest as to one hundred
percent (100%) of the Shares, on September 30,
2009.
2
(b) If there is a
Qualifying Termination of the Employee’s employment with the
Company and its subsidiaries that occurs within the one-year period
following a Change in Control, any Shares that were unvested but
outstanding immediately prior to the Qualifying Termination shall
be treated as having vested immediately prior to the Qualifying
Termination.
For purposes of
this Section 2.1:
(A) “Change
in Control” means the occurrence of any of the events
described in subsections (i), (ii), (iii) or
(iv) below:
(i) Any Person
acquires beneficial ownership (within the meaning of
Rule 13d-3 promulgated under the Exchange Act) of thirty-five
(35%) percent or more of either (x) the then outstanding
shares of common stock of the Company (the “Outstanding
Company Common Stock”) or (y) the combined voting power
of the then outstanding voting securities of the Company entitled
to vote generally in the election of directors (the
“Outstanding Company Voting Securities”); provided,
that for purposes of this subsection (A)(i) the following
acquisitions shall not constitute a Change in Control: (I) any
acquisition directly from the Company, (II) any acquisition by
the Company, (III) any acquisition by an employee benefit plan
(or related trust) sponsored or maintained by the Employer, or
(IV) any Business Combination (but except as provided in
subsection (A)(iii) below a Business Combination may nevertheless
constitute a Change in Control under subsection (A)(iii)); and
provided further, that an acquisition by a Person of thirty-five
percent (35%) percent or more but less than fifty (50%) percent of
the Outstanding Company Common Stock or of the combined voting
power of the Outstanding Company Voting Securities shall not
constitute a Change in Control under this subsection (A)(i) if
within fifteen (15) days of the Board’s being advised
that such ownership level has been reached, a majority of the
“Incumbent Directors” (as hereinafter defined) then in
office adopt a resolution approving the acquisition of that level
of securities ownership by such Person; or
(ii) Individuals
who, as of the date hereof, constituted the Board (the
“Incumbent Directors”) cease for any reason to
constitute at least a majority of the Board; provided, that any
individual who becomes a member of the Board subsequent to the date
hereof, and whose election or nomination for election was approved
by a vote of at le
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