RESTRICTED STOCK
AGREEMENT
AGREEMENT made
effective as of 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 250,000 Shares (the
“Shares”) of the Company’s common stock, pursuant
to the Company’s Amended and Restated 2000 Equity Incentive
Plan (the “Plan”) and subject to the terms and
conditions set forth herein.
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 and this Agreement. In the event of an
inconsistency between this Agreement and the Plan, 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 will vest, if at all, based
upon the satisfaction of three performance criteria: (i) total
shareholder return — i.e. fiscal year over fiscal year change
in average trailing fifteen trading day share price plus
accumulated dividends, (ii) pre-tax operating income from
continuing operations (excluding special income/charges such as
patent settlements), and (iii) pre-tax return on shareholder
equity — i.e. pre-tax income divided by stockholder equity
expressed as a percentage (collectively, the “Performance
Factors”) and a continuing employment requirement. Vesting of
the Shares will be measured as of September 30, 2008, and
again as of September 30, 2009, (each, a “Measurement
Date”). The aggregate net percentage increase in each of the
three Performance Factors for the Company’s fiscal year that
includes the Measurement Date (taking into account for this purpose
any percentage decrease that may occur in any of the Performance
Factors) shall be multiplied by the total number of Shares that are
not vested, determined immediately prior to the relevant
Measurement Date, to determine the number of Shares that vest as of
the Measurement Date. The Employee must also be
2
employed by the
Company on the Measurement Date to vest in any earned portion of
the Shares. For example, if for the Company’s fiscal year
ending September 30, 2008, the Company’s pre-tax
operating income increased by 9%, its return on shareholder equity
increased by 10%, and total shareholder return increased by 51%,
the Employee would vest in 70% of the Shares (i.e., in 175,000
shares). Notwithstanding the foregoing, the Human Resources and
Compensation Committee may exercise its discretion to vest all or a
part of any otherwise unvested portion of the Shares at any time if
such acceleration is in the best interests of the Company. Any
Shares remaining unvested as of October 1, 2009, shall be
immediately and automatically forfeited to the Company.
(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
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