exv10w09






Exhibit 10.09




EMPLOYMENT AGREEMENT




     This Employment Agreement (the “Agreement”) is made and entered into in Chelmsford,
Massachusetts by and between Brooks Automation, Inc., a Delaware corporation (the “Company”) and
Steven A. Michaud (the “Executive”), as of the date of the closing of the acquisition of Helix
Technology Corporation by the Company or a subsidiary of the Company (the “Effective Date”).



RECITALS




     1. The Company desires to employ Executive as Senior Vice President and General
Manager Vacuum Products Division of the Company upon the terms and conditions set forth
herein.



     2. In consideration of the employment to be provided hereby and the amounts to be
paid as provided herein and the Indemnification Agreement attached hereto as Exhibit
A, the
Executive has entered into the Executive Invention, Nondisclosure, Non-Competition and Non-Solicitation Agreement attached hereto as Exhibit B.



     For and in consideration of the mutual promises, terms, provisions and conditions
contained in this Agreement, the parties hereby agree as follows:


1. Duties. Beginning on the Effective Date, so long as the Executive remains an employee
in good standing of Helix Technology Corporation until the date of the closing identified above,
the Company shall employ Executive on an at will basis as Senior Vice President and General
Manager Vacuum Products Division of the Company. Executive shall report to the Company’s
President and COO, Semiconductor Products Group. Executive shall have such reasonable and
appropriate duties as may from time to time be assigned by the President and COO,
Semiconductor Products Group, which duties shall include, without limitation, responsibility for
the Vacuum Products Division. Executive shall perform the duties of such office as are provided
for in the bylaws of the Company subject to the general supervision and direction of the President
and COO, Semiconductor Products Group and the Company’s board of directors (the “Board of
Directors”).



2. At Will Employment. Subject to Section 6 and the termination provisions contained
therein, the Executive’s employment under this Agreement shall be on an at will basis (the actual
period of Executive’s employment with the Company is referred to herein as the “Employment
Term”).



3.
Other Activities. Subject to the terms and conditions of the
Executive Invention, Non-Disclosure, Non-Competition and
Nonsolicitation Agreement attached hereto as Exhibit B,
Executive may serve on corporate, civic, charitable boards or committees, fulfill speaking
engagements, teach at educational institutions or manage personal
investments; provided that
such activities do not individually or in the aggregate interfere or conflict with the performance
of his duties or obligations under this Agreement.





 









 






4. Performance. During the Employment Term, Executive shall use his business judgment,
skill and knowledge for the advancement of the Company’s interests and to discharge his duties
and responsibilities hereunder. Executive shall perform and discharge, faithfully, diligently and
to the best of his ability, his duties and responsibilities hereunder. Subject to Section 3 hereof,
Executive shall devote substantially all of his working time and efforts to the business and
affairs of the Company.



5. Compensation and Benefits.




     5.1. Base Salary. As consideration for Executive’s services performed during the
Employment Term, the Company agrees to pay Executive a base salary of $177,500 per year (the “Base
Salary”) payable in accordance with the normal payroll practices of the Company for its executives
and subject to federal and state tax withholding. The Base Salary shall be reviewed annually by the
compensation committee of the Board of Directors (the “Compensation Committee”) and adjusted as
determined by the Compensation Committee (the Base Salary as adjusted from time to time shall be
referred to as the “Current Base Salary”).



     5.2. Annual Management Bonus. During the Employment Term, Executive shall be
eligible to receive cash bonuses each year from the Company determined by the Chief Executive
Officer of the Company and the Compensation Committee. The Annual Management Bonus shall be payable
based upon performance criteria to be agreed upon by Executive and the Chief Executive Officer and
approved by the Compensation Committee. The Annual Management Bonus may range from 0% to 150% of
70% of Current Base Salary and shall be reviewed at least annually by
the Compensation Committee.
Any such Annual Management Bonuses paid to Executive shall be in
addition to the Current Base Salary.



     5.3. Option Grants/Restricted Stock. Subject to the approval of the Compensation
Committee, the Company will grant Executive an option to purchase 10,000 shares of Company common
stock (the “Common Stock”), effective as of the Effective
Date (the “Grant”). The Grant shall be
exercisable at a price equal to the closing price of the Common Stock on the Nasdaq National Market
on the date the Grant is approved by the Compensation Committee. The Grant shall be subject to the
terms and conditions set forth in the governing option agreement, provided that the shares subject
to the Grant shall vest at a rate of at least 6.25% on the last day of each three month period
following the date of the Grant. On the Effective Date, the Company shall issue Executive 5,000
shares of restricted stock (the “Restricted Stock”) that
will vest as follows: 25% of the shares
shall vest after each of the first two years following the share issuance, and the remaining 50% of
the shares shall vest on the third year following the share issuance, in each case subject to the
terms and conditions as set forth in the governing restricted stock
agreement.



     5.4. Benefits. During the first year of the Employment Term, unless otherwise
agreed in writing between the parties hereto, Executive shall be eligible to participate in the
Helix Technology benefit plans currently in effect. Subsequently, Executive will be eligible for
participation in and shall receive all medical benefits and benefits available under the then
Brooks Automation, Inc. 401(k) Plan, the Company’s welfare benefit plans, practices, policies



2









 






and programs (including disability, salary continuance, group life, accidental death and travel
accident insurance plans and programs) normally available to other
senior executives.



     5.5. Business Expenses. Executive shall be entitled to receive prompt
reimbursement during the Employment Term for all reasonable employment-related expenses incurred or
paid by him in the performance of his services, subject to reasonable substantiation and
documentation.



     5.6. Relocation. Executive shall be eligible to receive reimbursement of
relocation expenses of up to $100,000 (plus gross-up for associated state and federal taxes) in
connection with moving his personal residence to the Chelmsford, Massachusetts area, all in
accordance with the Company’s current relocation policy.



     5.7. Corporate Opportunities. During the Employment Term, Executive agrees that he
will first present to the Chief Executive Officer, or the Board of Directors, for acceptance
or rejection on behalf of the Company, any opportunity to create or invest in any company which
is or will be involved in providing or furnishing equipment, systems,
components, products, software or services to customers in industries that the Company serves (including, without
limitation, the semiconductor and flat panel display industries) which comes to his attention
and in which he, or any affiliate, might desire to participate. If the Board of Directors, or the
Chief Executive Officer, rejects the same or fails to act thereon in a reasonable time, Executive
shall be free to invest in, participate or present such opportunity to any other person or entity,
subject to the other terms of this Agreement.


6. Termination Events.




     6.1. Death/Long-Term Disability. This Agreement shall terminate and any and all
rights and obligations of the Company and Executive hereunder shall cease and be completely
void except as specifically set forth in this Agreement, upon the death or Long-Term
Disability (as defined below) of Executive.



          6.1.1. Lone-Term Disability. For purposes of this Agreement, “Long-Term Disability”
shall mean any disability of Executive that prevents Executive from devoting to the business of the
Company his best efforts, skill and attention, for a period of 180 consecutive days.



     6.2. Termination by the Company. At the election of the Company, this Agreement
shall terminate and any and all rights and obligations of the Company and Executive hereunder shall
cease and be completely void except as specifically set forth in this Agreement, upon the earliest
to occur of the following: (i) the termination of Executive by the Company with Cause (as defined
below) under this Agreement and delivery of written notice in accordance with Sections 6, 7 and 13
or (ii) the termination of Executive by the Company without Cause upon delivery of written notice in
accordance with Sections 6, 7 and 13.



          6.2.1.
Cause. For purposes of this Agreement, “Cause” shall include, without
limitation, the occurrence of any of the following events during the Employment Term:



3









 





(i) Executive’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) material misrepresentation in connection with the
Executive’s application for employment with the
Company;




(iv) conduct by the Executive
constituting an act of moral turpitude, or of physical
violence while on duty;




(v) the Executive’s willful failure or refusal to perform
the duties on behalf of the Company which are consistent with the
scope and nature of the Executive’s responsibilities, or otherwise
to comply with a lawful directive or policy of the Company,
including without limitation, the Company’s Standards of Conduct
as then in effect as published on the Company’s internal website;




(vi) any act of gross negligence, gross corporate
waste or disloyalty by the Executive to the Company or
the commission of any intentional tort by the Executive
against the Company; or




(vii) material breach of this Agreement or the agreements
referenced herein by the Executive.



     6.3. Termination by Executive. At the election of the Executive, this Agreement
shall terminate and any and all rights and obligations of the Company or Executive hereunder shall
cease and be completely void except as specifically set forth in this Agreement, upon the earliest
to occur of the following: (i) the Executive’s resignation for Good Reason (as defined below),
provided that Executive shall have first provided the Company with written notice in accordance
with Section 13 of the occurrence of such action he believes constitutes Good Reason and the
Company shall have failed to remedy such action within thirty (30) days of its receipt of such
notice, or (ii) the Executive’s resignation without Good Reason upon delivery of written notice in
accordance with Section 13.



          6.3.1. Good Reason. For purposes of this Agreement, “Good Reason” shall mean,
without Executive’s express written consent, the occurrence of any one or more of the
following events:




(i) a
material breach of this Agreement by the Company;




(ii) a diminution of the Executive’s responsibilities and
authority described in Section 1 resulting in
responsibilities and authority in any material respect inconsistent
with the responsibilities and authority of a senior officer of the




4












 






Company provided, however, that the parties may agree in writing to a waiver of this
right by the executive;




(iii) a material reduction of the Current Base Salary or of any benefit enjoyed
by the Executive unless all senior executives suffer a substantially similar
reduction or failure;




(iv) the relocation of the Executive’s office to a location more than
60 miles from Longmont, Colorado or such other location as may become the
Executive’s primary residence following a relocation conducted
pursuant to Section 5.6 hereof, or




(v) the failure of the Company to obtain the assumption in writing of its
obligation to perform this Agreement by any successor to all or substantially all of
the assets of the Company within 15 days after a merger, consolidation, sale of
assets or similar transaction.



     6.4. Termination Date. The term “Termination Date” shall mean if the Executive’s
services are terminated (A) by his death, then the date of his death, or (B) by his Long-Term
Disability, then the 180th day of such disability, or (C) for any other reason, then the
date on which such termination is to be effective pursuant to the notice of termination to be given
by the party terminating the employment relationship.


7. Effect of Termination.




     7.1. Termination for Death or Disability. It is expressly acknowledged and agreed
that if Executive’s employment shall be terminated due to Executive’s death or Long-Term
Disability, all of the obligations under Sections 1 through 5 of the Company and Executive shall
cease except that the Company shall pay, or provide the following benefits, to Executive or his
heirs, executors or administrators as applicable, without further recourse or liability to the
Company:




	 	(i)	 	an amount equal to the unpaid portion of Executive’s
Current Base Salary earned through the Termination Date;
	 
	 	(ii)	 	an amount equal to the prorata Annual Management Bonus for the
completed portion of the current annual pay period where the total Annual
Management Bonus is determined in accordance with Section 5.2; and
	 
	 	(iii)	 	an amount equal to the value of Executive’s vacation
accrued as of the Termination Date.





     7.2. Termination by the Company.



          7.2.1. Termination by the Company for Cause. It is expressly acknowledged and agreed
that if Executive is terminated by the Company for Cause, all of the obligations under Sections 1
through 5 of the Company and Executive shall cease except that the Company shall




5









 






pay immediately after the Termination Date the following amounts to the Executive without
further recourse or liability to the Company:





	 	(i)	 	an amount equal to the sum of Executive’s Current Base
Salary earned through the Termination Date; and
	 
	 	(ii)	 	an amount equal to the value of Executive’s vacation
accrued as of the Termination Date.





          7.2.2. Termination By the Company Without Cause. It is expressly
acknowledged and agreed that if Executive’s employment shall be terminated by Company for any
reason, except as set forth in Sections 6.1, and 6.2(i), then all of the obligations under Sections
1 through 5 of the Company and Executive shall cease except that the Company shall pay, or provide
the following benefits, to Executive without further recourse or liability to the Company:





	 	(i)	 	an amount equal to the unpaid portion of Executive’s
Current Base Salary earned through the Termination Date;
	 
	 	(ii)	 	an amount equal to the prorata Annual Management Bonus for the
completed portion of the current annual pay period where the total Annual
Management Bonus is determined in accordance with Section 5.2;
	 
	 	(iii)	 	an amount equal to the value of Executive’s vacation
accrued as of the Termination Date;
	 
	 	(iv)	 	one (1) year’s Current Base Salary as severance in pay
continuation.
Payment of this severance will be made in bi-weekly payments for one (1) year
(the “Initial Salary Continuation Period”);
	 
	 	(v)	 	during the Initial Salary Continuation Period as it may be extended
pursuant to subsection (vi) below (together, the “Total Salary Continuation
Period”), Executive will continue to be eligible for medical, dental and
vision plans in which Executive was a participant at the Termination
Date.
The Company will continue to pay the employer portion of the costs of these
plans during the Total Salary Continuation Period;
	 
	 	(vi)	 	if the Executive has not found a full time comparable
executive position with another employer during the Initial Salary Continuation
Period, the Company will extend the bi-weekly payment plan on a month to month
basis until the earlier to occur of (A) one (1) additional year (26 additional
bi-weekly payments) or (B) the date Executive secures full-time employment, in
each case subject only to the Executive’s obligation to inform the Company’s
Human Resources Department that Executive’s search for replacement employment
is ongoing and continuing in good faith. Said Notice from Executive shall be
made on the 15th of the month commencing with the last month of the
Initial Salary Continuation Period




6









 





	 	 	 	and monthly thereafter as applicable. Notice shall be made in accordance
with Section 13 of this Agreement. Executive’s rights under the Total Salary
Continuation Period shall be offset by income earned from consulting fees
with the Company, by short term and/or sporadic consulting fees earned from
any other business entity or by income received for part time employment
with another business entity; and






	 	(vii)	 	any and all payment by the Company under this Agreement
are and shall be specifically conditioned upon full compliance by the Executive
with all elements of the Executive Invention, Nondisclosure, Noncompetition and
Nonsolicitation Agreement (attached as Exhibit B) and the other
applicable provisions of this Agreement.





     7.3. Termination by Executive



          7.3.1. Termination by Executive Without Good Reason. It is expressly acknowledged
and agreed that if Executive resigns without Good Reason, then all of the obligations under
Sections 1 through 5 of the Company and Executive shall cease except that the Company shall pay, or
provide the following benefits, to Executive without further recourse or liability to the Company:





	 	(i)	 	an amount equal to the unpaid portion of Executive’s
Current Base Salary earned through the Termination Date; and
	 
	 	(ii)	 	an amount equal to the value of Executive’s accrued vacation pay.





          7.3.2. Termination by Executive For Good Reason. It is expressly acknowledged and
agreed that if Executive’s employment shall be terminated because the Executive resigns for Good
Reason, then all of the obligations under Sections 1 through 5 of the Company and Executive shall
cease except that the Company shall pay, or provide the following benefits, to Executive without
further recourse or liability to the Company:





	 	(i)	 	an amount equal to the unpaid portion of Executive’s
Current Base Salary earned through the Termination Date;
	 
	 	(ii)	 	an amount equal to the prorata Annual Management Bonus for the
completed portion of the current annual pay period where the total Annual
Management Bonus is determined in accordance with Section 5.2;
	 
	 	(iii)	 	an amount equal to the value of Executive’s vacation pay
accrued as of the Termination Date;
	 
	 	(iv)	 	one (1) year’s Current Base Salary as severance in pay
continuation Payment will be made in bi-weekly payments during the Initial
Salary Continuation Period;




7









 












	 	(v)	 	during the Total Salary Continuation Period, Executive will
continue to be eligible for medical, dental and vision plans in which the
Executive was a participant at the Termination Date. The Company will
continue to pay the employer portion of the costs of these plans during the
Total Salary Continuation Period;
	 
	 	(vi)	 	if the Executive has not found full time comparable
executive position with another employer during the Initial Salary Continuation
Period, the Company will extend the bi-weekly payment plan on a month to month
basis until the earlier to occur of (A) one (1) additional year (26 additional
bi-weekly payments) or (B) the date Executive secures full-time employment,
subject only to the Executive’s obligation to inform the Company’s Human
Resources Department that Executive’s search for replacement employment is
ongoing and continuing in good faith. Said Notice from Executive shall be made
on the 15th of the month commencing with the last month of the
Initial Salary Continuation Period and monthly thereafter as
applicable. Notice
shall be made in accordance with Section 13 of this Agreement. Executive’s
rights under the Total Salary Continuation Period shall not be offset by income
earned from consulting fees with the Company, by short term and/or sporadic
consulting fees earned from any other business entity or by income received for
part time employment with another business entity; and
	 
	 	(vii)	 	any and all payment by the Company under this Agreement
are and shall be specifically conditioned upon full compliance by the Executive
with all elements of the Executive Invention, Nondisclosure, Noncompetition and
Nonsolicitation Agreement (attached as Exhibit B) and the other
applicable provisions of this Agreement.





     7.4. 280G. In the event that the Executive shall become entitled to payment and/or
benefits provided by this Agreement or any other amounts in the “nature of compensation” (whether
pursuant to the terms of this Agreement or any other plan, arrangement or agreement with the
Company, any person whose actions result in a change of ownership or effective control covered by
Section 280G(b)(2) of the Code or any person affiliated with the Company or such person) as a
result of such change in ownership or effective control (collectively the “Company Payments”), and
such Company Payments would be subject to the tax imposed by Section 4999 of the Code (together
with any similar tax that may hereafter be imposed by any taxing authority, the “Excise Tax”) the
Executive shall be solely responsible for the payment in full of any such Excise Tax and the
Company shall withhold any federal or state taxes as required by applicable law.


8. Noncom petition Agreement. The Executive shall execute the Executive Invention,
Non-Disclosure, Non-Competition and Nonsolicitation Agreement attached as Exhibit B to this
Agreement.




8









 







9. Assignment. Neither the Company nor Executive may make any assignment of this Agreement
or any interest herein, by operation of law or otherwise, without the prior written consent of the
other party, provided, however, that the Company may assign its rights and obligations under this
Agreement without the consent of Executive if the Company shall hereafter effect a reorganization,
consolidate with, or merge with or into any other entity or transfer all or substantially all of
its properties or assets to any other person or entity. This Agreement shall be binding upon and
inure to the benefit of the Company, Executive and their respective successors, executors,
administrators, heirs and permitted assigns.



10. Indemnification. The Executive shall execute the Indemnification Agreement attached as
Exhibit A to this Agreement.



11. Waiver. The waiver by any party hereto of a breach of any provision of this Agreement by
any other party will not operate or be construed as a waiver of any other or subsequent breach by
such other party.



12. Severability. The parties agree that each provision contained in this Agreement shall be
treated as a separate and independent clause, and the unenforceability of any one clause shall in
no way impair the enforceability of any of the other clauses herein. Moreover, if one or more of
the provisions contained in this Agreement shall for any reason be held to be excessively broad as
to scope, activity or subject, such provisions shall be construed by the appropriate judicial body
by limiting and reducing it or them, so as to be enforceable to the extent compatible with the
applicable law.



13. Notices. Any notice or other communication in connection with this Agreement shall be
deemed to be delivered if in writing, addressed as provided below and actually delivered at said
address:



If to Executive, to him at the following address:



Steven A. Michaud

1668 Halyard Court

Lafayette, CO 80026



If to the Company, to it at the following address:



Brooks Automation, Inc.

15 Elizabeth Drive

Chelmsford, MA 01824

Attn: General Counsel




     or to such other person or address as to which either party may notify the other in
accordance with this Section 13.


14. Applicable Law. This Agreement shall be interpreted and construed in accordance with the
laws of the Commonwealth of Massachusetts.





9









 







15. Remedies. Executive acknowledges that a breach of any of the promises or agreements
contained herein could result in irreparable and continuing damage to the Company for which there
may be no adequate remedy at law, and the Company shall be entitled to seek injunctive relief
and/or a decree for specific performance, and such other relief as may be proper (including
monetary damages if appropriate).



16. Integration. This Agreement, the Executive Invention, Non-Disclosure, Non-Competition
and Nonsolicitation Agreement attached as Exhibit B hereto, the Indemnification Agreement
attached as Exhibit A hereto, unless otherwise provided herein, form the entire agreement
between the parties hereto with respect to the subject matter contained in this Agreement and shall
supersede, upon the commencement of employment with the Company as set forth in Paragraph 1, all
prior agreements, oral discussions, promises and representations regarding employment,
compensation, severance or other payments contingent upon termination of employment, whether in
writing or otherwise.



17. Absence of Conflicting Obligations. Executive represents that he is not bound by any
agreement or any other existing or previous business relationship which conflicts with or prevents
the full performance of his duties and responsibilities under this Agreement. Executive further
represents that his obligations under or in consideration with this Agreement do not breach and
will not breach any agreement to keep in confidence proprietary information, knowledge or data
acquired by him.



18. Taxes. Any payments provided for hereunder shall be paid net of any applicable tax
withholding required under federal, state or local law. Notwithstanding anything herein to the
contrary, the Company shall accelerate the timing of any amounts payable to the Employee pursuant
to Section 7 hereunder if and as necessary to prevent such amounts from being deemed “deferred
compensation” pursuant to the American Jobs Creation Act of 2004 (or the rules and regulation
promulgated thereunder).



19. Survival. Notwithstanding any provisions of this Agreement to the contrary, the
obligations of Executive and the Company pursuant to Sections 6 through 20 hereof shall each
survive termination of this Agreement.



20. Effect of Headings. Any title of a section heading contained herein is for convenience
of reference only, and shall not affect the meaning of construction or any of the provisions hereof.






10









 








     IN WITNESS WHEREOF, the parties hereto have hereunto set their hands, as of the date first
above written.



	 	 	 	 	 
	 	 	 
	 	/s/ Steven A. Michaud
 	 
	 	Steven A. Michaud 	 



	 	 	 	 	 
	 	BROOKS AUTOMATION, INC.

 	 
	 	By:  	/s/ Thomas S. Grilk
 	 
	 	 	Thomas S. Grilk 	 
	 	 	Senior Vice President, General Counsel and Secretary 	 
	 




11