EX-10.2
Execution Copy
SHAREHOLDERS' AGREEMENT
AMONG
YASKAWA ELECTRIC CORPORATION
a corporation organized and existing under the laws of Japan
and having its registered head office in Kitakyushu shi,
hereinafter referred to as "YASKAWA"
BROOKS AUTOMATION, INC.
a corporation organized and existing under the laws of the
State of Delaware, U.S.A.
hereinafter referred to as "BROOKS"
AND
YASKAWA BROOKS AUTOMATION, INC.
THIS SHAREHOLDERS' AGREEMENT (this "AGREEMENT") dated as of June 30, 2006
(the "EFFECTIVE DATE") among YASKAWA ELECTRIC CORPORATION, a corporation
organized and existing under the laws of Japan ("YASKAWA"), BROOKS AUTOMATION,
INC., a corporation organized and existing under the laws of the State of
Delaware, U.S.A. ("BROOKS") and YASKAWA BROOKS AUTOMATION, INC., a corporation
organized and existing under the laws of Japan (the "CORPORATION"). Brooks and
Yaskawa are sometimes are referred to herein collectively as "SHAREHOLDERS" or
individually as a "SHAREHOLDER."
WHEREAS, the Shareholders have established the Corporation as a joint
venture for the purpose of marketing, selling, distributing and servicing the JV
Products (as defined below) to Japanese Semiconductor Customers (as defined
below);
WHEREAS, concurrently with the execution of this Agreement (i) Yaskawa and
the Corporation are entering into the Yaskawa Japan Robot Supply Agreement,
dated the date hereof and (ii) Brooks and the Corporation are entering into the
Brooks Japan Robot Supply Agreement, dated the date hereof (collectively, the
"SUPPLY AGREEMENTS");
NOW, THEREFORE, in consideration of the mutual covenants and premises set
forth below, and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
ARTICLE 1: CAPITALIZATION.
1.1 Initial Capital. The Shareholders agree that, in order to effectuate
its business objectives, the Corporation shall require total equity capital of
JY450,000,000. It is further understood and agreed that the Shareholders'
respective shares of common stock of the Corporation to be purchased on the
Operations Commencement Date (which excludes the shares of common stock that
were purchased by the Shareholders in connection with the establishment of the
Corporation) shall be:
Name Ratio Number of Shares Share Price
- ---- ----- ---------------- -----------
Yaskawa 50% 225 JY225,000,000
Brooks 50% 225 JY225,000,000
The "OPERATIONS COMMENCEMENT DATE" shall be September 21, 2006, which date may
be changed by the mutual agreement of the Shareholders.
1.2 Additional Capital Requirements. In the event that the Corporation
shall require additional funds for its operations and activities that the
parties decide shall not be covered by the subscribed and paid-up capital, such
additional funds shall be secured by the Corporation by such means (including
procuring loans from independent sources and/or issuing bonds, debentures or
other debt securities) as the Shareholders may mutually agree in writing.
1.3 Antidilution. Yaskawa and Brooks, as the original parties to this
Agreement, acknowledge and understand that the initial capitalization of the
Corporation calculated on a fully-diluted
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basis, as of the date hereof and as of the Operations Commencement Date, shall
be as follows: Yaskawa and Brooks each holds or will hold, as applicable, 50% of
the outstanding capital stock of the Corporation. The Corporation shall not
issue any additional capital stock or take any other action affecting the
capitalization of the Corporation unless (i) appropriate measures are taken to
preserve the above described percentages or (ii) each of the Shareholders
consents in writing to such issuance or action.
ARTICLE 2: GOVERNANCE; ORGANIZATIONAL STRUCTURE.
2.1 Independence of the Corporation. The Shareholders agree that it is a
fundamental principle that the Corporation be managed and operated as a company
independent of the Shareholders. The Shareholders may provide guidance and
advice to the Corporation, provided that, at all times, the Corporation shall,
through its board of directors, have the complete discretion, subject to the
provisions of this Agreement, of the Articles of Incorporation of the
Corporation and of applicable Japanese law, to take its own decisions in the
best interests of the Corporation.
2.2 Shareholders Meetings. The Shareholders shall have the right to vote on
such activities and in the manner as set forth in the Articles of Incorporation
of the Corporation and in accordance with applicable law. Each of Yaskawa and
Brooks shall vote its shares in the Corporation so that the directors and
corporate auditors of the Corporation are, at all times (subject only to such
reasonable periods as are necessary for the filling of vacancies), the
individuals specified in Section 2.4.1 and Section 4.5, respectively.
2.3 Steering Committee.
2.3.1 A steering committee of six members shall be formed that will be
composed of the President and Executive Vice President of the Corporation and
four additional members. Yaskawa shall have the right to appoint and have
removed two of such additional members, and Brooks shall have the right to
appoint and have removed the other two additional members.
2.3.2 The steering committee shall have the broadest powers to
supervise the business and operations of the Corporation, except for those
matters that are explicitly reserved for the shareholders of the Corporation or
the directors of the Corporation or as may be otherwise required by applicable
law.
2.3.3 Each of the Shareholders will appoint to serve on the steering
committee individuals who have responsibility over the related business of the
Corporation in such Shareholder's organization.
2.3.4 The steering committee may establish advisory committees for
specific purposes and each such advisory committee shall consist of an equal
number of members to be appointed by each of the Shareholders.
2.3.5 To the extent permitted by applicable law, certain of the
actions of the board of directors, set forth in this Agreement and Exhibit I,
shall be submitted for consideration to the steering committee and no action may
be taken on such matters without its approval.
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2.3.6 Further rules and procedures for the steering committee shall be
as set forth on Exhibit I (the "STEERING COMMITTEE RULES").
2.4 Board of Directors.
2.4.1 The board of directors of the Corporation shall consist of four
members, the President, the Executive Vice President, and two additional
members, one of whom shall be nominated and may be removed by Yaskawa, and the
remaining one of whom shall be nominated and may be removed by Brooks.
2.4.2 As indicated in Section 2.3.5 and the Steering Committee Rules,
to the extent permitted by applicable law, certain actions of the board of
directors shall require prior approval of the steering committee.
2.4.3 If unanimity on a decision to be taken by the board of directors
cannot be reached, the matter shall be referred to the steering committee, and
each of the Shareholders shall cause the directors nominated by the respective
Shareholder to vote for such matter as determined by the steering committee in
accordance with this Section.
2.4.4 Annually, the board shall, to the extent permitted by applicable
law, submit a proposal for the Budget (as defined below) for the following
fiscal year for approval by the steering committee as set forth in Section 6.1.
For actions within the scope of the approved Budget, the board of directors
shall not require additional approval of the steering committee, except as
otherwise stated in the rules of procedure for the steering committee or as
provided in this Agreement (subject to applicable law).
2.4.5 Further rules and procedures for the board of directors shall be
as set forth on Exhibit II.
2.5 Management.
2.5.1 The top executives and representative directors of the
Corporation shall be the President and the Executive Vice President. Other
management employees shall be as determined by the board of directors. Yaskawa
shall have the right to nominate and have removed the President, and Brooks
shall have the right to nominate and have removed the Executive Vice President.
The Shareholders shall cause their respective appointees or nominees (as
applicable) on the steering committee and the board of directors to cause (i)
the appointment (and, at the direction of Yaskawa, removal and replacement) of
Yaskawa's nominee as the President and (ii) the appointment (and, at the
direction of Brooks, removal and replacement) of Brooks' nominee as the
Executive Vice President. Other executive managing directors and managing
directors of the Corporation shall be elected by the board of directors as
provided in the Articles of Incorporation of the Corporation.
2.5.2 The President and the Executive Vice President shall jointly
manage and direct the business of the Corporation. The President and the
Executive Vice President shall cooperate closely. The President shall be in
charge of the overall business of the Corporation and shall supervise the
actions of the other management employees of the Corporation (other than the
Executive Vice President). The
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authority of the President and the Executive Vice President shall be as
established by the board of directors and, to the extent permitted by applicable
law, the steering committee. The President and Executive Vice President shall
jointly prepare all documents to be submitted to the steering committee and the
general meeting of shareholders as well as the reports to be submitted to the
shareholders.
2.6 Organizational Structure. The Corporation shall have the organizational
structure set forth in the Business Plan attached hereto as Exhibit VI (the
"ORGANIZATIONAL CHART"), as such structure may be amended from time to time by
the President and the Executive Vice President acting jointly with the approval
of the board of directors and, if permitted by applicable law, consent of the
steering committee.
ARTICLE 3: TRANSFER OF COMMON STOCK.
3.1 Transfers by Shareholders Prohibited Without Consent. Unless otherwise
expressly permitted by Section 3.2, no Shareholder, nor any successor and assign
thereof, may directly or (subject to the last sentence of this Section 3.1)
indirectly sell, assign, pledge, encumber, hypothecate or otherwise transfer
("TRANSFER") any interest in any of such Shareholder's common stock in the
Corporation or permit any such interest to be subject to Transfer, directly or
indirectly, by operation of law or agreement, without obtaining the prior
written consent of the other Shareholder and their successors and assigns.
Notwithstanding the receipt of prior written consent, any such permitted or
approved Transfer shall be null and void and the Corporation shall, to the
extent permitted by applicable law, refuse to recognize such Transfer: (i) if
such Transfer would be made in a transaction which would violate any applicable
securities laws, rules or regulations; and (ii) unless the transferee shall
execute and deliver to each party hereto an agreement acknowledging that all
shares of or interest in any common stock in Corporation so transferred are and
shall remain subject to this Agreement, and agreeing to be personally bound
hereby. Any purported Transfer in any other manner shall be null and void, and
shall, to the extent permitted by applicable law, not be recognized or given
effect by the parties hereto. Notwithstanding anything to the contrary in this
Agreement, for the avoidance of doubt, a Change of Control of a Shareholder
shall not constitute a Transfer for the purposes of this Section 3.1.
3.2 Transfers by Shareholders to Permitted Transferees.
3.2.1 Each Shareholder may at any time, after prior written notice to
the other Shareholder, Transfer any or all of such Shareholder's shares of or
interests in common stock in the Corporation to (i) a wholly-owned direct or
indirect subsidiary of such Shareholder (a "PERMITTED TRANSFEREE") or (ii) in
connection with the sale by a Shareholder of all or substantially all of such
Shareholder's assets. A Permitted Transferee may Transfer shares of or any
interest in any common stock (i) to the Shareholder from which it received such
shares or interest or (ii) to another Permitted Transferee of such Shareholder.
3.2.2 Notwithstanding Section 3.2.1, any such Transfer shall be null
and void and Corporation shall, to the extent permitted by applicable law,
refuse to recognize such Transfer: (i) if such Transfer would be made in a
transaction that would violate any applicable securities laws, rules or
regulations; and (ii) unless the transferee executes and delivers to each party
hereto an agreement
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acknowledging that all shares of or interests in any common stock in Corporation
so transferred are and shall remain subject to this Agreement and agreeing to be
personally bound hereby. A Permitted Transferee under Section 3.2.1 must also
agree, as a condition precedent to any Transfer under Section 3.2.1, to: (I)
become a party to this Agreement in addition to and not as a substitute for the
transferor and (II) appoint the original Shareholder of the shares or interest
it is receiving as such transferee's proxy in voting all such transferred shares
or interests and in any subsequent shares that may be issued by the Corporation
to such Permitted Transferee, and in exercising its rights under Article 2
regarding the nomination, election and replacement of directors, the members of
the steering committee, the corporate auditors, and the President or the
Executive Vice President (as applicable), for so long as this Agreement remains
in effect. Such proxy shall be irrevocable. No transfer by a Shareholder or any
of its Permitted Transferees under Section 3.2.1 shall release such original
Shareholder from any obligations or liabilities under this Agreement.
3.2.3 Any Shareholder or Permitted Transferee intending to Transfer
any shares of or interests in common stock in the Corporation pursuant to this
Section 3.2 shall notify the Shareholders of any intended Transfer 10 days prior
to such Transfer, giving the name and address of the intended Permitted
Transferee and the Permitted Transferee's status as set forth in Section 3.2.1
hereof; provided, however, that no otherwise valid Transfer shall be rendered
invalid solely as a result of a failure to give notice hereunder. The
Shareholders shall use their respective commercially reasonable efforts
(including, without limitation, causing their respective nominees then serving
on the board of directors to take all necessary actions) to cause the
Corporation to effect any Transfer to a Permitted Transferee made (or to be
made) in accordance with this Agreement.
ARTICLE 4: BOOKS AND RECORDS, FISCAL YEAR, AUDITS.
4.1 Full and accurate books of account, financial records and annual
financial statements shall be made according to Japanese and internationally
accepted accounting principles, specifically US GAAP, showing the true condition
of the business and finances of the Corporation and the share ownership of each
Shareholder. They shall be kept at the principal office of the Corporation. Each
Shareholder, or its designated representatives, shall have access to and may
inspect and copy any part thereof.
4.2 The Corporation shall forward internal monthly financial reports to
each Shareholder. Additionally, the Corporation shall forward quarterly
financial reports to each Shareholder, which reports shall be presented in such
format and shall contain such information, and which reports shall be reviewed
in accordance with accounting standards required of similar corporations in
Japan by a reputable international firm of certified public accountants
appointed by the steering committee (the "CORPORATION'S ACCOUNTANTS") to such
extent, as either Shareholder shall reasonably request based on such
Shareholder's reporting requirements. In addition, the Corporation shall prepare
or cause to be prepared, in a manner reasonably calculated to allow Brooks to
comply with its US financial reporting requirements (including earnings
announcements), and furnished to each of the Shareholders (i) not later than 45
days after the end of each of the Corporation's fiscal quarters (other than the
last quarter of the Corporation's fiscal year), quarterly financial statements
of the Corporation and its subsidiaries (if any) on a consolidated basis, in
customary form, prepared in accordance with US GAAP and reviewed by the
Corporation's
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Accountants, and (ii) not later than 45 days after the end of each fiscal year
of the Corporation, annual financial statements of the Corporation and its
subsidiaries (if any) on a consolidated basis, in customary form, prepared in
accordance with US GAAP and audited by the Corporation's Accountants.
4.3 The initial fiscal year of the Corporation shall begin on the day of
the calendar year that the Corporation was incorporated and shall end on March
20, 2007, and each succeeding fiscal year shall start with March 21 and end on
March 20 of the following year. At the end of each fiscal year, an audit of the
Corporation's financial statements, at the Corporation's expense, shall be
performed by the Corporation's Accountants if required by Japanese law. In
addition, if Brooks reasonably so requests, the Corporation shall cause an audit
of the Corporation's financial statements to be performed by the Corporation's
Accountants on an annual basis as of the end of Brooks' fiscal year, and such
audit shall be performed, and the Corporation's audited financial statements
resulting therefrom shall be furnished to the Shareholders, in such manner and
at such time as to allow the inclusion of the Corporation's annual audited
financial statements as of the end of Brooks' fiscal year in the annual audited
financial statements of Brooks prepared for the purpose of compliance with
Brooks' US financial reporting requirements.
4.4 Each of the Shareholders shall be entitled to have the books and
accounts of the Corporation examined by their own audit division or by external
auditors during office hours. The Shareholder who intends to perform such an
audit shall inform the Corporation and the other Shareholder thereof with a 14
days' advance notice. The staff of the Corporation shall render all assistance
if such examination takes place. The cost of the additional audit shall be borne
by the Shareholder requesting the audit.
4.5 The Corporation shall have the corporate auditor(s) (Kansayaku)
prescribed by law, provided that the Corporation shall have at least two such
auditors. Yaskawa may nominate a full time auditor, Brooks shall be entitled to
nominate an auditor, and the Corporation shall be entitled to nominate the third
auditor, if required. The Shareholders shall approve appointments of these
nominees as corporate directors at a shareholders meeting of the Corporation.
4.6 The Corporation shall bear and pay for the first US$50,000 per fiscal
year of the Corporation of incremental fees and disbursements of the
Corporation's Accountants payable by the Corporation in connection with the
financial reporting and auditing relating to such fiscal year and described in
the last sentence of Section 4.2 and the last sentence of Section 4.3 and any
other costs relating to reporting and auditing in accordance with US GAAP, as
compared with the fees and disbursements of the Corporation's Accountants
payable by the Corporation in connection with the financial reporting and
reviews relating to such fiscal year and described elsewhere in Section 4.2 and
Section 4.3. Brooks shall reimburse the Corporation for any excess of such
incremental fees and disbursements of the Corporation's Accountants (to the
extent the same are reasonable and documented) over US$50,000 per fiscal year of
the Corporation; provided that the Corporation shall allow Brooks, if Brooks
desires to do so, to discuss such incremental third party costs subject to
reimbursement by Brooks hereunder with the Corporation's Accountants prior to
the incurrence of the same by the Corporation.
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ARTICLE 5: STOCK CERTIFICATES.
5.1 A copy of this Agreement shall be kept with the records of the
Corporation. With regard to shares of stock of the Corporation, the Corporation
shall initially not issue share certificates.
5.2 To the extent that share certificates are subsequently issued and
exist, each of the Shareholders hereby agrees that each outstanding certificate
representing shares of common stock of the Corporation shall bear an endorsement
indicating that the securities represented by such certificate are subject to
the provisions of a Shareholders' Agreement, dated as of __________, 2006, by
and among the Corporation and its Shareholders and may not be sold, pledged,
hypothecated, encumbered, disposed of or otherwise transferred except in
accordance therewith.
ARTICLE 6: BUDGET; PROFIT-SHARING.
6.1 Budget
6.1.1 For each of the Corporation's fiscal years (or portions
thereof), for so long as the Corporation continues in existence hereunder, the
Corporation shall adopt an annual operating budget (the "BUDGET") in accordance
with the provisions of this Section 6.1. The Business Plan for the initial
fiscal year is attached hereto as Exhibit VI and the financial information
contained in the Business Plan shall constitute the Budget for the fiscal year
ending March 20, 2007.
6.1.2 The Shareholders desire that each Budget be approved (subject to
applicable law) by the steering committee before the beginning of the fiscal
year covered by the relevant Budget (the "BUDGET FINALIZATION DATE").
Accordingly, prior to the commencement of the second and each subsequent fiscal
year of the Corporation, the board of directors shall submit guidelines for a
proposed Budget for the next fiscal year to the steering committee. The
guidelines for each proposed Budget shall include and set forth:
(i) a proposed detailed operating budget and capital budget for
the next fiscal year of the Corporation (broken down by quarter), including line
items and schedules for each significant aspect of the activities of the
Corporation, projected income and cash flows, expenditures and expenses of the
Corporation and all other direct costs of the Corporation, as well as a reserve
for contingencies, and a projected balance sheet;
(ii) projections as to any and all cash requirements and/or
financing needs for the next fiscal year of the Corporation; and
(iii) such supporting documents as may reasonably be requested by
any member of the steering committee for purposes of verifying the accuracy,
appropriateness and reasonableness of the particular Budget submitted, all in
such detail as any member of the steering committee may reasonably request.
6.1.3 Prior to the meeting of the steering committee, each member of
the steering committee shall have the right to propose, by notice delivered to
the steering committee, revisions to the
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proposed guidelines desired by such member. A meeting of the steering committee
shall be called for the purpose of considering the guidelines and (subject to
applicable law) adopting the relevant Budget, not later than the Budget
Finalization Date for such Budget. At such meeting, the steering committee shall
consider (i) whether to adopt the initially submitted guidelines as the relevant
Budget, or (ii) whether to adopt the relevant Budget as modified by one or more
such proposed revisions. If the steering committee does not approve a Budget for
a fiscal year, the Budget for the preceding fiscal year shall continue in effect
until the steering committee adopts a new Budget at a meeting of the steering
committee.
6.2 Vacuum Business Economics. Promptly after the Effective Date, the
members of the steering committee shall consider and make reasonable efforts to
reach agreement on an allocation of the profits from sales of Brooks' Automation
Products to Japanese Semiconductor Customers.
6.3 Employee. Brooks agrees to make available to the Corporation the
services of one engineer of Brooks, who shall be reasonably acceptable to the
Corporation, for the period from the Operations Commencement Date through
February 28, 2007, to provide services and support, to the extent that the
management of the Corporation determines that the services of such engineer are
required.
ARTICLE 7: CONFIDENTIALITY; INTELLECTUAL PROPERTY.
7.1 Confidential Information. During the term of this Agreement, the
Shareholders may exchange certain of their respective Confidential Information
with one another and with the Corporation and may receive Confidential
Information of the Corporation or the other Shareholder from the Corporation.
"CONFIDENTIAL INFORMATION" shall mean all data and information owned by or in
possession of either of the Shareholders or the Corporation, that is not
generally known to the public, whether of a technical, business or other nature
(including, without limitation, inventions, trade secrets, know-how and
information relating to the customers, business plans, promotional and market
activities, finances and other business affairs of such party) that is disclosed
by a party (the "DISCLOSING PARTY"), to another party (the "RECEIVING PARTY") in
furtherance of this Agreement and the purposes of the Corporation. Confidential
Information shall not include information that (i) was in the public domain, in
its entirety in a unified form, at the time of disclosure to the Receiving
Party; (ii) was known by the Receiving Party prior to its disclosure by the
Disclosing Party; (iii) becomes part of the public domain after the date of
disclosure by the Disclosing Party through no fault of the Receiving Party; or
(iv) is disclosed by a third party to the Receiving Party after the date of
disclosure by the Disclosing Party, where the third party did not require the
Receiving Party to hold such information in confidence and did not acquire such
information directly or indirectly from the Disclosing Party.
7.2 Non-Disclosure and Non-Use. The Receiving Party agrees to treat as
secret and hold in strict confidence all Confidential Information it receives
from the Disclosing Party in connection with their cooperation or otherwise in
connection with the Corporation or its business, activities or affairs. The
Receiving Party agrees that it will not disclose any Confidential Information to
any other Person without the prior written permission of the Disclosing Party
(or as otherwise specifically provided in this Agreement). The Receiving Party
also agrees that it will only use the Confidential Information received in
connection with this Agreement and the business of the Corporation and (if the
Receiving Party is a Shareholder) in connection with monitoring and evaluating
the Receiving Party's investment in, and
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business relationship with, the Corporation and the exercise of the Receiving
Party's rights and performance of the Receiving Party's obligations under this
Agreement, the Articles of Incorporation of the Corporation, the Supply
Agreements and other instruments, agreements and arrangements that are or may be
entered into by the parties in connection with the Corporation and its business.
The Receiving Party agrees that only (i) its employees with a bona fide need to
know, and who have signed an appropriate confidentiality agreement, (ii) its
attorneys, accountants and other professional advisors subject to obligations of
confidentiality, (iii) its officers and directors and (iv) any potential
acquirer, investor or lender in connection with any potential sale of all or
substantially all of the assets or equity securities of the Receiving Party or
any potential merger or consolidation in which the Receiving Party, is a
constituent party, or a potential investment in or loan to the Receiving Party
as applicable (including any investment or commercial bankers, legal counsel,
and any other advisors in connection with the performance of customary due
diligence by such potential acquirer, investor or lender), in each case subject
to obligations of confidentiality, shall be provided access to the Confidential
Information of the Disclosing Party; provided that Confidential Information may
not be provided pursuant to clause (iv) to any change of control entity of the
Disclosing Party as indicated in Schedule C. In the event the Receiving Party is
required by court order, by the rules of any exchange or market on which the
Receiving Party's securities are traded, or by law or legal process, to disclose
Confidential Information of the Disclosing Party, the Receiving Party shall, to
the extent lawful, inform the Disclosing Party in writing prior to making such
disclosure to provide sufficient time to request a protective order or other
appropriate measure, and the Receiving Party will disclose only such information
that is legally required and will use its commercially reasonable efforts to
obtain confidential treatment for any Confidential Information that is so
disclosed. The obligations imposed by this Section 7.2 shall survive the
termination of this Agreement.
7.3 Ownership of Intellectual Property.
7.3.1 Existing Intellectual Property. All rights to Confidential
Information, trade secrets, know-how, inventions, patents, patent applications,
copyrights, trademarks and trade names ("INTELLECTUAL PROPERTY") owned or
licensed by a Shareholder (the "SHAREHOLDER INTELLECTUAL PROPERTY") shall be
fully retained by that Shareholder, and no rights or licenses are provided under
this Agreement to the other Shareholder or the Corporation.
7.3.2 New Intellectual Property. In the event the Corporation develops
any Intellectual Property that is an improvement to, modification of or
otherwise based on the Shareholder Intellectual Property of only one
Shareholder, the new Intellectual Property shall be owned by that Shareholder
with a non-exclusive, fully-paid, non-transferable license being granted to the
Corporation (but not to the other Shareholder) for use of that new Intellectual
Property in connection with the development, manufacture, use, sale, or other
distribution of all current and future products of the Corporation during the
term of this Agreement. In the event that the Corporation develops any
Intellectual Property that is not an improvement to, modification of or
otherwise based on the Shareholder Intellectual Property of a Shareholder or is
an improvement to, modification of or is otherwise based on the Shareholder
Intellectual Property of both Shareholders, the new Intellectual Property shall
be owned by the Corporation with a non-exclusive, fully-paid, non-transferable
(except in connection with a permitted assignment of this Agreement), perpetual
license to develop, make, have made, import, sell, offer to sell any products
being
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granted to each Shareholder, with no license to either Shareholder of any of the
Shareholder Intellectual Property of the other Shareholder.
ARTICLE 8: SUPPLY AND DISTRIBUTION OF JV PRODUCTS
8.1 After the Operations Commencement Date and during the term of this
Agreement, neither Yaskawa or its Affiliates or Permitted Transferees nor Brooks
or its Affiliates or Permitted Transferees shall market, offer and/or sell,
directly or indirectly, any JV Products, or replacements therefor, to a Japanese
Semiconductor Customer, or license, finance or otherwise assist any other Entity
to market or sell, directly or indirectly, the JV Products to a Japanese
Semiconductor Customer, in each case except through the Corporation; provided,
however, that, notwithstanding anything to the contrary herein, Yaskawa is
permitted to manufacture, market and sell the JV Products listed on Schedule B
to the Japanese Semiconductor Customers listed on Schedule B until such time as
the marketing and sale of such JV Products may be transferred by Yaskawa to the
Corporation without consent of any third party providing development funding for
the relevant such JV Product. It is expressly understood that the direct and
indirect sale and distribution of JV Products for applications other than in the
Semiconductor Industry shall be allowed.
8.2 The Shareholders intend to make available to the Corporation, as
contemplated by and subject to the terms and conditions of the Supply
Agreements, their entire respective semiconductor automation product lines. The
Corporation will select and combine the very best of these products lines to
supply Japanese Semiconductor Customers with JV Products offering the highest
product quality and service, all in accordance with and subject to the terms and
conditions of this Agreement and the Supply Agreements. Towards this end, the
parties acknowledge that: (i) Brooks has superior products in certain areas and,
except for Yaskawa's current customer programs in place as of the time of this
Agreement identified on Schedule A, which will continue through the current
product cycle with respect to products being supplied to the relevant customer
by Yaskawa and its Affiliates as of the date of this Agreement, and as otherwise
provided on Schedule A, Brooks shall be the Corporation's preferred supplier for
the Brooks Products; and (ii) Yaskawa has superior products in certain areas and
shall be the Corporation's preferred supplier for Yaskawa Products. Any
procurement by the Corporation of Brooks Products or Yaskawa Products that is
inconsistent with the Shareholders' respective preferred supplier status as set
forth in this Section 8.2 shall require the prior approval of the President and
the Executive Vice President acting jointly. The Corporation may purchase JV
Products, other than Brooks Products or Yaskawa Products, from either Yaskawa or
Brooks.
8.3 The obligations of Yaskawa and Brooks set forth in this Section 8 shall
survive any Transfer of shares of the Corporation to a Permitted Transferee as
permitted by Section 3.2.1.
ARTICLE 9: TERM AND TERMINATION.
9.1 Term. The term of this Agreement shall commence on the Effective Date
and shall continue in full force and effect for a period of 10 years thereafter
(or such longer and/or additional period as may be necessary to effect the
provisions of Section 13.11). At any time, at least 36 months prior to end of
the initial 10-year term or any extension term, either Shareholder may send
written notice to the
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other Shareholder of the notifying Shareholder's desire to extend the term of
this Agreement. If each Shareholder has timely expressed a desire to extend the
then current term of the Agreement (with no other modifications) by written
notice (an "EXTENSION NOTICE") to the other, then the term shall be
automatically extended for an additional five-year term. If either Shareholder
fails to timely provide an Extension Notice with respect to the applicable
extension term, then the Agreement shall terminate at the end of the then
current term, unless the Agreement is extended and/or modified by the mutual
written agreement of the parties.
9.2 Termination. Prior to the end of the term, the Shareholders may
terminate this Agreement, as provided below:
9.2.1 The Shareholders may terminate this Agreement by mutual written
consent;
9.2.2 Subject to Section 9.3, either Shareholder may terminate this
Agreement, in the event that the other Shareholder undergoes a Change of
Control, by written notice (the "SECTION 9.2.2 NOTICE") to the other Shareholder
and to the Corporation;
9.2.3 Either Shareholder may terminate this Agreement, by written
notice to the other Shareholder and to the Corporation, in the event that a
Governmental Entity of competent jurisdiction shall have issued a nonappealable
final order, decree or ruling or taken any other nonappealable final action, in
each case having the effect of restraining, enjoining, terminating or otherwise
prohibiting (i) the continued existence of the Corporation, or (ii) the
continued ownership by either Shareholder of shares of common stock of the
Corporation; and
9.2.4 Subject to Section 9.3, a Shareholder with respect to which no
Default Event has occurred (the "NON-DEFAULTING SHAREHOLDER") may terminate this
Agreement by giving written notice (the "SECTION 9.2.4 NOTICE") to the other
Shareholder with respect to which a Default Event has occurred (the "DEFAULTING
SHAREHOLDER") and to the Corporation. The following are each a "DEFAULT EVENT":
(i) if (I) the Defaulting Shareholder has materially breached
this Agreement or its Supply Agreement with the Corporation (subject to Section
9.2.5), (II) the Non-Defaulting Shareholder has given the Defaulting Shareholder
written notice of such breach, describing such breach in reasonable detail,
(III) the Defaulting Shareholder has failed to cure such breach within 62 days
of receiving the notice of breach with respect thereto pursuant to clause
(i)(II) of this Section 9.2.4 (or, in the event that an additional cure period
is granted by the arbitrators in accordance with Section 11.2, during such
additional cure period), and (IV) the parties have not been able to agree upon
an adequate remedy (other than termination) for such breach;
(ii) the Defaulting Shareholder shall (I) file a petition in
bankruptcy, (II) petition or apply to any tribunal for the appointment of a
receiver or any trustee for it or a substantial part of its assets, (III)
commence any proceeding under any bankruptcy, reorganization, arrangement,
readjustment of debt, dissolution or liquidation law or statute of any
jurisdiction, or (IV) make an assignment for the benefit of creditors or take
any other similar action for the protection or benefit of creditors; or if there
shall have been filed any such petition or application, or any such petition
shall have
12
been commenced against it, in which an order for relief is entered or which
remains un-dismissed for a period of 60 days or more; or the Shareholder shall
consent in writing to any such petition, application or proceeding or order for
relief or the appointment of a receiver or any trustee for it or any substantial
part of any of its properties, or shall suffer any such receivership or
trusteeship to continue un-discharged for a period of 60 days or more;
(iii) all or any portion of the Defaulting Shareholder's shares
in the Corporation are levied upon or attached (other than by the Non-Defaulting
Shareholder) in any proceeding, including any suit in equity, action at law or
other judicial, arbitral or administrative proceeding, and that levy or
attachment is not vacated or discharged within 60 days after the date on which
it is made; or
(iv) there is a Transfer of the Defaulting Shareholder's shares
of common stock in the Corporation, except in compliance with Article 3.
9.2.5 Notwithstanding anything to the contrary herein, no violation or
breach of Section 7.1 or Section 7.2 of this Agreement by a Shareholder (or its
officers, directors, employees, agents or representatives) shall constitute a
Default Event unless such violation or breach is directly attributable to either
Corporate Conduct or Disregard of Security (in each case, as defined below). For
purposes of this Section 9.2.5:
(i) "CORPORATE CONDUCT" shall mean any action or omission of an
officer, director, employee, agent or representative of the relevant Shareholder
that is either (A) clearly sanctioned, knowingly condoned, directed or ratified
by the senior management or the Board of Directors of such Shareholder, or (B)
expressly permitted by the then-effective policies promulgated by the senior
management or the Board of Directors of such Shareholders;
(ii) "DISREGARD OF SECURITY" shall mean the relevant
Shareholder's failure to maintain reasonable measures, customary in the
industry, calculated to protect confidential and/or proprietary information in
the possession of such Shareholder (including Confidential Information) from
impermissible disclosure and misuse, provided that any such failure shall be
determined on an aggregate basis considering all such measures maintained by
such Shareholder taken as a whole; and
(iii) For the avoidance of doubt, by way of example but not
limitation, no Default Event shall be deemed to occur by reason of any (A)
action or omission of any officer, director, employee, agent or representative
of a Shareholder (whether intentional, willful, reckless, grossly negligent or
otherwise) that does not satisfy the requirements of either clause (i)(A) or
clause (i)(B) above, (B) any failure by a Shareholder to maintain a particular
information security measure as long as the measures maintained by such
Shareholder that are calculated to protect confidential and/or proprietary
information in the possession of such Shareholder, when viewed in the aggregate,
represent a level of information security that is reasonable and customary in
the industry, or (C) any violation or breach of Section 7.1 or Section 7.2 does
not satisfy the requirements of either clause (i)(A) or clause (i)(B) above and
that does not cause actual harm or damage to the Disclosing Party or its
business operations.
9.3 Limitations on Certain Termination Rights.
9.3.1 No Section 9.2.2 Notice may be given by a Shareholder with
respect to a Change of Control affecting the other Shareholder, and this
Agreement may not be terminated pursuant to
13
Section 9.2.2 by reason of such Change of Control, after expiration of 60 days
after the date on which notice of the occurrence of such Change of Control is
given to the terminating Shareholder.
9.3.2 No Section 9.2.4 Notice may be given by the Non-Defaulting
Shareholder pursuant to Section 9.2.4(i) with respect to a material breach of
this Agreement by the Defaulting Shareholder, and this Agreement may not be
terminated by reason of such breach, after expiration of 120 days after the last
day of the last cure period applicable hereunder with respect to such breach
(including, without limitation, any additional cure period granted by the
arbitrators in accordance with Article 11 or any other extension of such cure
period granted by the Non-Defaulting Shareholder.
9.3.3 No Section 9.2.4 Notice shall be effective (other than for the
purpose of commencing the applicable cure period under Section 9.2.4(i)), and
this Agreement shall continue in full force and effect, until the earlier of:
(i) the date on which the Shareholders agree in writing that the Non-Defaulting
Shareholder has the right to terminate this Agreement; or (ii) one of the
following dates depending on whether or not either party elects to commence the
dispute resolution procedures under Article 11 (I) if either Shareholder
commences the dispute resolution procedures contemplated by Article 11 with
respect to such Section 9.2.4 Notice within 30 days after such delivery in
accordance with Section 13.3, then the date on which the final decision or award
of the arbitrators grants the Non-Defaulting Shareholder such right; or (II) if
neither party commences the procedures contemplated by Article 11 within 30 days
after such delivery, then the date on which the cure period, if any, expires
without the breach being remedied or cured or if there is no cure period, then
the date on which such notice is given.
9.4 Effects of Termination.
9.4.1 If this Agreement terminates pursuant to the provisions of
Section 9.2.1, 9.2.2, 9.2.3 or 9.2.4, unless the Shareholders otherwise agree in
writing:
(i) All of the rights and obligations of the parties under this
Agreement shall terminate, except that the provisions of Sections 7.1, 7.2, 7.3
and 9.4.2 and Articles 11 and 13 (together with, in each case, all related
definitions) shall survive such termination.
(ii) Each of the agreements between the Corporation, on the one
hand, and either or both Shareholders (or their respective Affiliates), on the
other hand, shall terminate as of the effective date of the termination of this
Agreement.
(iii) Each of the Shareholders shall assume all of the rights,
obligations and service commitments of the Corporation relating to the products
of such Shareholder distributed by the Corporation.
(iv) Subject to Section 13.11, the Corporation shall be dissolved
according to Article 10 and the Shareholders shall cause the Corporation to
dissolve.
9.4.2 For a period of 10 years after termination of this Agreement,
(i) neither Yaskawa nor any of Yaskawa's Affiliates shall offer and/or sell,
directly or indirectly, Brooks Products to Japanese Semiconductor Customers or
license, finance or otherwise assist any other entity to market or sell Brooks
14
Products to Japanese Semiconductor Customers except to the extent Yaskawa's
Brooks Products were being sold by Yaskawa to Japanese Semiconductor Customers
at the time of termination of this Agreement in compliance with the terms of
this Agreement and (ii) neither Brooks nor any of Brooks' Affiliates shall offer
and/or sell, directly or indirectly, Yaskawa Products to Japanese Semiconductor
Customers or license, finance or otherwise assist any other entity to market or
sell Yaskawa Products to Japanese Semiconductor Customers except to the extent
that Brooks' Yaskawa Products were being sold by Brooks to Japanese
Semiconductor Customers at the time of termination of this Agreement in
compliance with the terms of this Agreement. The parties acknowledge that, after
termination of this Agreement (I) it would be difficult or impossible to
separate and distinguish between Brooks' Intellectual Property and Yaskawa's
Intellectual Property learned or acquired by the employees of the Corporation
and/or the Shareholders (including employees of the Shareholders transferred to
the Corporation and former employees of the Corporation engaged by a Shareholder
after termination of this Agreement), and (II) the provisions of this Section
9.4.2 are reasonably necessary to protect Brooks' and Yaskawa's rights in their
respective Intellectual Property and the goodwill associated therewith. If the
termination of this Agreement is the result of a breach by a Defaulting
Shareholder, then such Defaulting Shareholder shall have no right to enforce
this Section 9.4.2 following the termination of this Agreement.
ARTICLE 10: DISSOLUTION.
10.1 Dissolution. The Corporation shall be dissolved if so decided by the
Shareholders or as otherwise provided in this Agreement or by law. If the
Corporation is to be dissolved it shall be liquidated and dissolved in
accordance with the applicable laws and general practice in Japan. Except as
otherwise provided in Section 9.4.1(iii), the net assets of the Corporation
shall be distributed among the Shareholders pro rata to their respective
holdings of shares of common stock of the Corporation at the time of
dissolution.
ARTICLE 11: DISPUTE RESOLUTION.
11.1 Voluntary Resolution of Disputes. Any claims, differences, disputes or
controversies arising out of or in connection with this Agreement, the Articles
of Incorporation of the Corporation, either of the Supply Agreements or any
other instrument, agreement or arrangement that is or may be entered into by the
parties in connection with the Corporation and its business (each, a "DISPUTE"),
including any question regarding its existence, validity, termination, breach or
performance, before any arbitration is commenced, shall first be referred to the
steering committee for resolution. If the Dispute is not resolved within 30
days, then the matter shall be referred to the chief executive officer of each
Shareholder, each of whom shall in good faith and with diligent negotiation
(including through at least one meeting in person) attempt to resolve the
Dispute. If the Dispute is not resolved by such chief executives within 30 days
from the day the Dispute was referred to the chief executives, any party to the
Dispute may institute arbitration under this Article 11 (such party, the
"INITIATING PARTY") by serving a demand for arbitration on each other party to
the Dispute. During the attempted executive resolution or arbitration pursuant
to this Article 11 neither party shall be prevented from seeking an injunction
or temporary restraining order in a court of law as provided in Section 11.5. In
deciding any arbitration under this Article 11, the arbitrators shall give
significant weight to the good faith and diligence with which each party to the
Dispute has sought to resolve it before the arbitration.
15
11.2 Mandatory Arbitration. If an attempt at resolution contemplated by
Section 11.1 has not resulted in the Dispute being resolved within the time
period set forth in Section 11.1, the Dispute shall be finally settled by
binding arbitration under the UNCITRAL Arbitration Rules (the "UNCITRAL RULES").
Each party shall appoint an arbitrator and the two arbitrators so appointed
shall jointly appoint a third arbitrator; provided, however, that if they cannot
agree (or if one party refuses to appoint an arbitrator) within 30 days after
the initiation of the arbitration, then this third arbitrator shall be appointed
by the International Chamber of Commerce pursuant to the Rules of ICC as
Appointing Authority in UNCITRAL or other Ad Hoc Arbitration Proceedings (and
the ICC shall otherwise serve as the Appointing Authority (the "APPOINTING
AUTHORITY") for the arbitration proceedings hereunder). Disputes about
arbitration procedure shall be resolved by the arbitrators. The arbitrators may
proceed to an award notwithstanding the failure of a party to the Dispute to
participate in the proceedings. Discovery shall be limited to mutual exchange of
documents relevant to the dispute, controversy or claim; depositions shall not
be permitted unless agreed to by both parties. All counterclaims shall be
resolved in the same proceeding in which the original claims are brought. The
arbitrators shall be authorized to grant interim relief, including to prevent
the destruction of goods or documents involved in the dispute, protect trade
secrets and provide for security for a prospective monetary award; shall be
authorized to grant permanent injunctive relief or other specific performance;
and shall be specifically authorized to grant the Defaulting Party a cure period
in addition to the cure period provided for in clause (i) of Section 9.2.4 in
the event that the arbitrators determine that a party has materially breached
this Agreement and thereby became a Defaulting Party under clause (i) of Section
9.2.4. Subject to Section 11.4, the award of the arbitrators shall be the sole
and exclusive remedy of the parties and shall be enforceable in any court of
competent jurisdiction, subject only to revocation on grounds of fraud or clear
bias on the part of the arbitrators.
11.3 Place and Language of Arbitration. Unless otherwise agreed by the
Shareholders, the place of arbitration shall be in Boston, Massachusetts, USA if
the Initiating Party is Yaskawa and shall be in Tokyo, Japan if the Initiating
Party is Brooks. The procedural law of the place of arbitration shall apply
where the UNCITRAL Rules are silent. The language to be used in the arbitration
proceedings shall be English.
11.4 Matters that Parties May Litigate. Notwithstanding any other provision
of this Agreement, a party may bring a suit or action in a court of law:
(i) to petition a court for injunctive relief with respect to a
matter arising under or relating to the Agreement;
(ii) to seek judicial enforcement of an order or award granted by
the arbitrators under this Article 11; or
(iii) as permitted under the Japanese Arbitration Law (Law No.
138 of 2003, as amended) or the U.S. Federal Arbitration Act, 9 U.S.C. Sections
1-16.
11.5 Allocation of Arbitration Expense. In any arbitration, each party
shall bear the party's own expenses, including legal fees, except that:
16
(i) The parties shall share equally the payment of fees charged
by the arbitrators and the Appointing Authority;
(ii) Subject to Section 11.5(iii), the arbitrators may allocate
among the parties the costs, fees and other expenses relating to an arbitration
in any manner that the arbitrators shall determine to be appropriate in their
absolute discretion; and
(iii) If the arbitrators determine that a party has initiated an
arbitration without a reasonable basis for doing so or that any claim or
argument of a party in an arbitration is unreasonable, the arbitrator shall to
that extent assess against that party the expenses incurred by the other parties
in connection with the arbitration, including reasonable attorneys' fees.
ARTICLE 12: DEFINITIONS.
As used in this Agreement, the capitalized terms defined in the protocol and
recitals have the meanings set forth next to them. Additionally, the following
terms shall have the following respective meanings:
"AFFILIATE" shall mean, with respect to any Person,
(i) any other Person that directly or
indirectly controls such specified Entity
or (ii) any Entity that directly or
indirectly is controlled by, or is under
common control with, such specified
Person.
"AGREEMENT" shall mean this Agreement and its
attachments, as this Agreement and its
attachments may be amended, restated or
otherwise modified from time to time.
"APPOINTING AUTHORITY" shall have the meaning set forth in
Section 11.2.
"BROOKS PRODUCTS" shall have the meaning given to the term
"Brooks Products" in the Supply
Agreements.
"BUDGET" shall have the meaning set forth in
Section 6.1.1.
"BUDGET FINALIZATION DATE" shall have the meaning set forth in
Section 6.1.2.
"CHANGE OF CONTROL" shall mean, with respect to a Shareholder,
the acquisition (whether by means of
merger, consolidation, acquisition of
securities or assets, or otherwise) by any
Entity listed under the name of such Party
on Schedule C (or by any Affiliate of such
Entity) of (i) more than 50% of the
outstanding voting securities of such
Shareholder or (ii) all or substantially
all of the assets of such Shareholder
relating to such Party's obligations to
supply products or services to the
Corporation or otherwise to the business
conducted by the Corporation as set forth
in the first recital herein.
17
"CONFIDENTIAL INFORMATION" shall have the meaning set forth in
Section 7.1.
"CORPORATION'S ACCOUNTANTS" shall have the meaning set forth in
Section 4.2.
"DEFAULTING SHAREHOLDER" shall have the meaning set forth in
Section 9.2.4.
"DISCLOSING PARTY" shall have the meaning set forth in
Section 7.1.
"DISPUTE" shall have the meaning set forth in
Section 11.1.
"ENTITY" shall mean any corporation, limited
liability company, limited or general
partnership, trust, estate, unincorporated
association, governmental agency, bureau,
department or other body, or any other
organization or entity.
"EXTENSION NOTICE" shall have the meaning set forth in
Section 9.1.
"INITIATING PARTY" shall have the meaning set forth in
Section 11.1.
"INTELLECTUAL PROPERTY" shall have the meaning set forth in
Section 7.3.
"JAPANESE SEMICONDUCTOR CUSTOMERS shall have the meaning given to the term
"Semiconductor Customer" in the Supply
Agreements.
"JV PRODUCTS" shall mean the semiconductor robotics
products to be supplied to the Corporation
by the Shareholders pursuant to the Supply
Agreements.
"NON-DEFAULTING SHAREHOLDER" shall have the meaning set forth in
Section 9.2.4.
"ORGANIZATIONAL CHART" shall have the meaning set forth in
Section 2.6.
"PERMITTED TRANSFEREE" shall have the meaning set forth in
Section 3.2.1.
"PERSON" shall mean any Entity or individual.
"RECEIVING PARTY" shall have the meaning set forth in
Section 7.1.
"SECTION 9.2.2 NOTICE" shall have the meaning set forth in
Section 9.2.2.
"SECTION 9.2.4 NOTICE" shall have the meaning set forth in
Section 9.2.4.
"SEMICONDUCTOR INDUSTRY" shall have the meaning set forth in the
Supply Agreements.
"SHAREHOLDER INTELLECTUAL PROPERTY" shall have the meaning set forth in
Section 7.3.1.
"TRANSFER" shall have the meaning set forth in
Section 3.1.
18
"UNCITRAL RULES" shall have the meaning set forth in
Section 11.2.
"YASKAWA PRODUCTS" shall have the meaning set forth in the
Supply Agreements.
ARTICLE 13: MISCELLANEOUS.
13.1 Remedies. The parties to this Agreement acknowledge and agree that
breach of any of the covenants of Corporation and the Shareholders set forth in
this Agreement is not fully compensable by payment of money damages and,
therefore, that the covenants of Corporation and the Shareholders set forth in
this Agreement may be enforced in equity by a decree requiring specific
performance. Without limiting the foregoing, if any dispute arises concerning
the sale or other disposition of any of the shares of stock subject to this
Agreement, the parties to this Agreement agree that an injunction may be issued
restraining the sale or other disposition of such shares of stock or rescinding
any such sale or other disposition, ending resolution of such controversy. Such
remedies shall be cumulative and nonexclusive and shall be in addition to any
other rights and remedies the parties may have under this Agreement.
13.2 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of Japan without giving effect to the principles of
conflicts of law thereof.
13.3 Notices. All notices and other communications under this Agreement
shall be in writing and shall be deemed to have been duly given when delivered
(i) in person, (ii) to the extent receipt is confirmed, by telecopy, facsimile
or other electronic transmission service, or (iii) by an internationally
recognized overnight courier service, to the parties at the following addresses:
IF TO BROOKS: IF TO YASKAWA:
Brooks Automation, Inc. Yaskawa Electric Corporation
15 Elizabeth Drive 2-1 Shiroishi, Kurosaki
Chelmsford, Massachusetts Kitakyushu, Japan
01824 U.S.A. Attention: Mr. Koki Nakamura
Attention: Thomas Grilk, Esq. Fax: +81-93-645-7918
Fax: +1-978-262-2511
WITH COPY TO: WITH COPY TO:
WilmerHale Masuda, Funai, Eifert & Mitchell, Ltd.
60 State Street 203 N. LaSalle Street, Suite 2500
Boston, Massachusetts 02109 Chicago, IL 60601-1262
Attention: Mark G. Borden Attention: Mary W. Shellenberg
Fax: +1-617-526-5000 Fax: +1-312-245-7467
19
IF TO THE CORPORATION:
Yaskawa Brooks Automation, Inc.
2-1 Shiroishi, Kurosaki
Kitakyushu, Japan
Attention: President and Executive Vice President
Fax: +81__________________
The parties to this Agreement shall provide notice of any changes in the above
listed addresses in accordance with the procedures described above.
13.4 Severability. Any term or provision of this Agreement that is invalid
or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such invalidity or unenforceability without
rendering invalid or unenforceable the remaining terms and provisions of this
Agreement or affecting the validity or enforceability of any of the terms or
provisions of this Agreement in any other jurisdiction.
13.5 Amendments and Waivers. This Agreement may not be modified or amended,
and the performance or compliance with any term of this Agreement may not be
waived, in each case except by an instrument or instruments in writing signed
each of the Shareholders. The waiver by any party hereto of a breach of any term
or provision of this Agreement shall not be construed as a waiver of any
subsequent breach.
13.6 Binding Effect. This Agreement shall be binding upon and inure solely
to the benefit of each party hereto and their respective heirs, legal
representatives, successors and permitted assigns.
13.7 Counterparts. This Agreement may be executed by the parties hereto in
counterparts, each of which shall be deemed to be an original instrument, but
all of which together shall constitute one and the same instrument
13.8 Recapitalizations, Exchanges, Etc. The provisions of this Agreement
shall apply, to the full extent set forth herein with respect to shares of
common stock of the Corporation, to any and all shares of capital stock of the
Corporation or any successor or assign of the Corporation (whether by merger,
consolidation, sale of assets, or otherwise) that may be issued in respect of,
in exchange for, or in substitution of the shares of the common stock originally
issued to the Shareholders, by reason of a stock dividend, stock split, stock
issuance, reverse stock split, combination, recapitalization, reclassification,
merger, consolidation, or otherwise.
13.9 Entire Agreement; Headings. This Agreement, the provisions of the
Joint Venture Agreement, dated May 8, 2006, between the Shareholders that
survive in accordance with its terms, the Supply Agreements, together with all
exhibits attached hereto and therto, and the JV Agreement Section 4.1(C)
Agreement, dated June 30, 2006 constitute the entire agreement among the parties
hereto relating
20
to the subject matter hereof and thereof and supersede all prior agreements,
understandings, and arrangements, oral or written, among the parties hereto with
respect to the subject matter hereof and thereof. The headings in this Agreement
are for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
13.10 Rules of Construction. Words denoting the singular include the plural
and vice versa. Words denoting a gender include all genders. References to a
particular article, section, clause, exhibit or schedule shall be a reference to
an article, section or clause of, or an exhibit or schedule to, this Agreement.
Words such as "hereunder", "hereto", "hereof" and "herein" and other words of
similar import shall, unless the context requires otherwise, refer to the whole
of this Agreement and not to any particular article, section or clause hereof. A
reference to "including" means including without limiting the generality of any
description preceding such term and shall not be construed to limit a general
statement, followed by or referable to an enumeration of specific matters, to
matters similar to those specifically mentioned.
13.11 Further Assurances. Each of the parties to this Agreement, hereby
agrees, without any further consideration, to take any further actions and to
execute and deliver any further instruments or agreements, necessary or
advisable in order to effectuate the intents and purposes of this Agreement.
Each of the parties further agrees to take such commercially reasonable actions
as are necessary and available under applicable law to effect the parties'
intentions as set forth under the provisions of Section 9.4.2 in the event of
any challenge, legal or otherwise, to such Section 9.4.2; provided that in the
event of any challenge, legal or otherwise, to such Section 9.4.2 by the Japan
Fair Trade Commission, any other governmental authority in Japan or any third
party, Yaskawa shall (i) be responsible for responding to such challenge, (ii)
have the right to control and direct the representation of the parties in
connection with such challenge, including negotiations relating to such
challenge, (iii) keep Brooks reasonably informed as to the status and progress
of such challenge and the strategy of Yaskawa with respect to such challenge,
(iv) engage counsel who may be counsel to Yaskawa, at Yaskawa's cost to
represent and defend Yaskawa, Brooks and the Corporation in connection with any
such challenge (to the extent joint representation is ethically permissible),
including negotiations relating to such challenge, with such counsel being under
the direction and control of Yaskawa, and (v) bear all costs and expenses,
including legal fees, of Yaskawa, Brooks and the Corporation incurred in
connection with such challenge, other than (A) costs or expenses related to the
production of documents of Brooks, which shall be borne by Brooks, and (B) costs
or expenses, including legal fees, incurred by Brooks in connection with the
challenge in which separate counsel has been engaged. Without limiting the
generality of the foregoing, and notwithstanding anything to the contrary in
this Agreement, if the provisions of Section 9.4.2 above are found to be invalid
or unenforceable, in whole or in part, by any governmental, administrative,
regulatory, legislative, judicial or arbitral authority or tribunal, with the
effect that the term of the restrictive covenants set forth in the first
sentence of such Section 9.4.2 (the "SECTION 9.4.2 TERM") is reduced or
eliminated, then, unless Brooks and Yaskawa otherwise expressly agree in
writing, (i) if this Agreement remains in effect as of immediately prior to the
time of such finding of invalidity or unenforceability, then the term of this
Agreement specified in Section 9.1 above shall be extended by the period of such
reduction (or, if the Section 9.4.2 Term is eliminated, then by the full stated
amount of the Section 9.4.2 Term), or (ii) otherwise, the effectiveness of this
Agreement shall be reinstated, the
21
Corporation shall (to the extent necessary) be re-established by the
Shareholders, and the business of the Corporation described in the first recital
herein shall again be conducted through the Corporation in accordance with
Article 8 of this Agreement, until expiration of the period of such reduction
(or, if the Section 9.4.2 Term is eliminated, then by the full stated amount of
the Section 9.4.2 Term); provided that if this Agreement was earlier terminated
as a result of a breach by a Defaulting Shareholder, then the provisions of this
sentence shall be operative solely at the option of the Non-Defaulting
Shareholder, exercisable by written notice to the Defaulting Shareholder and, if
the Corporation is then in existence, to the Corporation.
[THE REMAINDER OF THIS PAGE IS LEFT INTENTIONALLY BLANK.]
22
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
YASKAWA ELECTRIC CORPORATION
By: /s/ Koji Toshima
------------------------------------
Title: President
---------------------------------
BROOKS AUTOMATION, INC.
By: /s/ Edward C. Grady
------------------------------------
Title: President
---------------------------------
YASKAWA BROOKS AUTOMATION, INC.
By: /s/ Hiroyuki Ougi
------------------------------------
Title: President
---------------------------------
23