exv10w05






Exhibit 10.05




BROOKS AUTOMATION, INC.






RESTRICTED STOCK AGREEMENT



     AGREEMENT made this April 25, 2008, between Brooks Automation, Inc., a Delaware corporation
(the “Company”), and Robert J. Lepofsky (the “Employee”).




WITNESSETH:




     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.



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     (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 least two-thirds of the Incumbent Directors shall be
treated as an Incumbent Director unless he or she assumed office as a result of an
actual or threatened election contest with respect to the election or removal of
directors; or




     (iii) There is consummated a reorganization, merger or consolidation involving
the Company, or a sale or other disposition of all or substantially all of the
assets of the Company (a “Business Combination”), in each case unless, following such Business Combination, (x) the Persons who
were the beneficial




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owners, respectively, of the Outstanding Company Common Stock and of the combined voting
power of the Outstanding Company Voting Securities immediately prior to the Business
Combination beneficially own, directly or indirectly, more than 50% of, respectively, the
then outstanding shares of common stock and the combined voting power of the then
outstanding voting securities entitled to vote generally in the election of directors, as
the case may be, of the entity resulting from such Business Combination in substantially
the same proportions as their ownership immediately prior to such Business Combination of
the Outstanding Company Common Stock and of the combined voting power of the Outstanding
Company Voting Securities, as the case may be, (y) unless in connection with such Business
Combination a majority of the Incumbent Directors then in office determine that this clause
(A)(iii)(y) does not apply to such Business Combination, no Person (excluding any entity
resulting from such Business Combination or any employee benefit plan (or related trust) of
the Employer or of such corporation resulting from such Business Combination) beneficially
owns, directly or indirectly, thirty-five (35%) percent or more of, respectively, the then
outstanding shares of common stock of the corporation resulting from such Business
Combination or the combined voting power of the then outstanding voting securities of such
corporation entitled to vote generally in the election of directors, except to the extent
that such ownership existed prior to the Business Combination and (z) at least a majority
of the members of the Board resulting from such Business Combination were Incumbent
Directors at the time of the execution of the initial agreement, or of the action of the
Board, providing for such Business Combination; or




     (iv) The stockholders of the Company approve a complete liquidation or dissolution of
the Company;




provided, that if any payment or benefit payable hereunder upon or following a Change in Control
(as defined herein) would be required to comply with the limitations of Section 409A(a)(2)(A)(v) of
the Code and the guidance thereunder in order to avoid an additional tax under Section 409A of the
Code, such payment or benefit shall be made only if such Change in Control constitutes a change in
ownership or control of the Company, or a change in ownership of the Company’s assets, described in
IRS Notice 2005-1, the final regulations under Section 409A of the Code, or any successor guidance.




     (B) “Qualifying Termination” means a termination by the Company or by a subsidiary of
the Company of the Employee’s employment with the Company and its subsidiaries, other than a
termination for Cause.




     (C) “Cause” means (i) the Employee’s willful failure to perform, or serious negligence in the
performance of, the Employee’s duties and responsibilities for the Company or any of its
subsidiaries that remains uncured, or continues, beyond the fifteenth (15th) day
following the date on which the Company gives the Employee notice specifying in reasonable detail
the nature of the failure or negligence; (ii) fraud, embezzlement or other dishonesty with respect
to the Company or any of its subsidiaries



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or customers; (iii) conviction of, or a plea of guilty or nolo contendere with respect to,
a felony or to any crime (whether or not a felony) that involves moral turpitude; or (iv)
breach of fiduciary duty or violation of any covenant of confidentiality, assignment of
rights to intellectual property, non-competition or non-solicitation of customers or
employees; provided, that if at the time of termination of employment the Employee is party
to an employment agreement or similar agreement with the Company or any of its subsidiaries
that includes a definition of “Cause”, the definition contained in such employment
agreement or similar agreement shall apply for purposes of this Section 2.1 in lieu of the
definition set forth above in this clause (C).




     (D) “Board” means the Board of Directors of the Company.




     (E) “Employer” means the Company and its subsidiaries.




     (F) “Person” means any individual, entity or other person, including a group within
the meaning of Sections 13(d) or 14(d)(2) of the Exchange Act.




     (G) “Exchange Act” means the Securities Exchange Act of 1934, as amended.



     2.2 Restrictions on Transfer.



          (a) Except as otherwise provided in subsection (b) below, for so long as any of the Shares are
subject to a risk of forfeiture as described above, the Employee shall not sell, assign, transfer,
pledge, hypothecate or otherwise dispose of, by operation of law or otherwise (collectively
“transfer”), any such Shares or any interest therein. Any attempted transfer in contravention of
the foregoing shall be null and void. The Company shall not be required to transfer record
ownership on its books of any Shares subject to the restrictions herein that have been sold,
assigned or otherwise transferred, hypothecated or disposed of in violation of this Agreement.



          (b) Once the risk of forfeiture and the transfer restrictions described above lapse as to any
Shares, such Shares may be sold, transferred or otherwise disposed of subject only to the
restrictions of applicable law, including applicable securities law, and to any insider-trading or
similar restrictions that may be imposed by the Company.



ARTICLE 3 — MISCELLANEOUS




     3.1 Adjustments for Stock Splits, Stock Dividends, etc. If there is any stock split,
reverse stock split, stock dividend, stock distribution or other reclassification of the Common
Stock, any and all new, substituted or additional securities to which the Employee is entitled by
reason of his ownership of the Shares shall be immediately subject to the risk of forfeiture and
transfer restrictions described herein in the same manner and to the same extent, if any, as such
Shares.



     3.2 Restrictions on Distributions. If at any time while the Shares are subject to the
risk of forfeiture and transfer restrictions described herein there is a dividend (other than a
stock



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dividend described in Section 3.1) or other distribution with respect to the Shares, whether of
cash, Common Stock, other securities or other property, the Company may require that the cash,
securities, or other property so dividended or distributed be subjected to restrictions (including,
without limitation, if the Company so determines, by holding any such amounts in escrow) similar to
those to which the Shares are then subject.



     3.3 Withholding Taxes.



          (a) Pursuant to applicable federal, state, local or foreign laws, the Company may be required
to collect income or other taxes on the transfer of the Shares to the Employee, the lapse of a
restriction placed on the Shares, or at other times. The Company may require, at such time as it
considers appropriate, that the Employee pay the Company the amount of any taxes that the Company
may determine is required to be withheld or collected, and the Employee shall comply with the
requirement or demand of the Company. The Company may withhold, collect or offset against any
amount owed by the Company to the Employee, the amount of any such taxes in any manner (including,
without limitation, by payment in whole or in part in shares of Common Stock, including the Shares,
valued at the Fair Market Value, by check, or by offsetting such amount against compensation
otherwise due to the Employee), if in its sole discretion it deems any such method to be an
appropriate method for withholding or collecting taxes.




          (b) If the Employee elects, in accordance with Section 83(b) of the Code, to recognize
ordinary income in the year of acquisition of the Shares, the Company may require that the
Employee, at the time of such election, make an additional payment for withholding tax purposes
based on the difference, if any, between the purchase price for such Shares and the fair market
value of such Shares.




     3.4 No Rights To Employment. Nothing contained in this Agreement shall be
construed as giving the Employee any right to be retained as an employee of the Company.



     3.5 Waiver; Disposition of Stock. From time to time the Company may waive its rights
hereunder either generally or with respect to one or more specific transfers which have been
proposed, attempted or made. Each such waiver shall be effective only in the specific instance and
for the purpose for which it was given, and shall not constitute a continuing waiver.



     3.6 Successors and Assigns; Assignment. This Agreement shall be binding upon the
parties hereto and their heirs, representatives, successors and assigns. The Company may assign its
rights hereunder either generally or from time to time.



     3.7 Notices. All notices to a party hereto shall be in writing and shall be deemed to have been
adequately given if delivered in person or mailed, postage pre-paid and registered or certified
mail or federal express or other recognized commercial courier service:




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If to the Company:




Brooks Automation, Inc.

15 Elizabeth Drive

Chelmsford, Massachusetts 01824

Attention: Chief Financial Officer




If to Employee:




Robert J. Lepofsky

PO Box 81367

Wellesley Hills, Massachusetts 02481


or to such other address as any party may from time to time designate for itself by notice in
writing given to the other parties hereto.




     3.8 Amendments. This Agreement may be amended or modified in whole or in part only by
an instrument in writing signed by the Company and the Employee.



     3.9 Entire Agreement. This Agreement constitutes the entire agreement between the
parties, and all premises, representations, understandings, warranties and agreements with
reference to the subject matter hereof have been expressed herein or in the documents incorporated
herein by reference.



     3.10 Applicable Law; Severability. This Agreement shall be governed by and construed
and enforced in accordance with Delaware law. Wherever possible, each provision of this Agreement
shall be interpreted in such manner as to be effective and valid under applicable law, but if any
provision hereof shall be prohibited by or invalid under any such law, that provision shall be
ineffective only to the extent of such prohibition or invalidity, without invalidating or
nullifying the remainder of that provision or any other provisions of this Agreement.



     3.11 Counterparts. This Agreement may be executed in multiple counterparts, each of
which shall be deemed in original but all of which together shall constitute one and the same
instrument.



     3.12 Effect of Headings. Any table of contents, title of an article or section heading
herein contained is for convenience or reference only and shall not affect the meaning of
construction of any of the provisions hereof.



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     IN WITNESS WHEREOF, the Employee has hereunto set his or her hand and the Company has
authorized this instrument to be signed by its officers thereunder duly authorized, effective as an
instrument under seal.



	 	 	 	 	 
	BROOKS AUTOMATION, INC.

 	 	 
	By:  	/s/ Thomas S. Grilk
 	 	 
	 	Name:  	Thomas S. Grilk 	 	 
	 	Title:  	Sr Vice President, General Counsel & Secretary 	 	 
	 
	EMPLOYEE

 	 	 
	/s/ Robert J. Lepofsky
 	 	 
	Name: Robert J. Lepofsky 	 	 
	 	 	 
	 




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