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EXHIBIT 2.2
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STOCKHOLDER
AGREEMENT
DATED: SEPTEMBER 30, 1999
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Stockholder Agreement
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STOCKHOLDER AGREEMENT
TABLE OF CONTENTS
ARTICLE 1. COVENANTS OF THE COMPANY AND THERRIEN...............................1
1.1 Board Appointment........................................................1
1.2. Agreement To Vote........................................................1
ARTICLE 2. COVENANTS OF INVESTOR...............................................2
2.1 Standstill Agreement.....................................................2
2.2 Proxy Solicitations......................................................3
2.3 Voting Agreements........................................................3
ARTICLE 3. RESTRICTION ON TRANSFERS............................................4
3.1. Restriction on Transfers.................................................4
3.2. Exceptions...............................................................4
3.3. Agreement By Transferee..................................................4
3.4. Certificates Legended....................................................4
3.5. Sales to Third Parties...................................................5
3.6 Company's Right of First Refusal.........................................5
3.7 Sales to Proposed Transferee.............................................6
3.8 Determination of Fair Value..............................................6
ARTICLE 4. COVENANTS OF JENOPTIK...............................................7
4.1 Access to Information on Projects........................................7
4.2 Preferred Supplier.......................................................7
4.3 No Commission............................................................8
ARTICLE 5. DEFINITIONS.........................................................8
ARTICLE 6. MISCELLANEOUS......................................................10
6.1 Termination.............................................................10
6.2 Notices.................................................................10
6.3 Integration with Master Purchase Agreement..............................11
6.4 Amendments and Waivers..................................................11
6.5 Governing Law; Severability.............................................11
6.6 Counterparts............................................................12
6.7 Effect of Table of Contents and Headings................................12
LIST OF EXHIBITS..............................................................14
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STOCKHOLDER AGREEMENT
STOCKHOLDER AGREEMENT entered into as of the 30th day of September,
1999, by and among Brooks Automation, Inc., a Delaware corporation with its
principal place of business at 15 Elizabeth Drive, Chelmsford, Massachusetts
01824 (the "Company"), Robert J. Therrien in his capacity as a stockholder of
the Company ("Therrien"), Meissner + Wurst Zander Holding GmbH, a German
corporation with offices at Stuttgart, Germany ("Investor") and Jenoptik AG, a
German corporation and the parent corporation of the Investor ("Jenoptik").
W I T N E S S E T H:
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WHEREAS, the Company, the Investor, Jenoptik, Jenoptik Infab GMBH,
Jenoptik Infab KK, Jenoptik Infab, Inc., Jenoptik Infab PLC ("Infab Ireland")
and Jenoptik Infab, Ltd. ("Infab Scotland"), direct or indirect subsidiaries of
the Investor, have on this date entered into a Master Purchase Agreement (the
"Master Purchase Agreement") whereby the Company has agreed to purchase all the
issued and outstanding common stock of Infab Scotland and Infab Ireland
(collectively, the "Infab Shares") and the Purchased Assets (as defined in the
Master Purchase Agreement) in exchange for shares of Common Stock of the Company
(the "Purchase Shares");
WHEREAS, it is a condition to the Master Purchase Agreement that this
Stockholder Agreement be entered into; and
WHEREAS, the Investor and the Company wish to enter into certain
agreements relating to the terms upon which the Purchase Shares shall be held
and transferred and other matters;
NOW, THEREFORE, in consideration of the Master Purchase Agreement and
other good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, and intending to be legally bound, it is hereby agreed by
and between the parties as follows:
ARTICLE 1. COVENANTS OF THE COMPANY AND THERRIEN
The Company agrees with the Investor that following the Closing:
1.1 BOARD APPOINTMENT. The Company effective immediately upon the
Closing appoints Jurgen Giessman to serve on the Company's Board of Directors
until the Company's next annual meeting of stockholders.
1.2 AGREEMENT TO VOTE. Until such time as the Investor and its
Affiliates no longer hold all of the Purchase Shares (after giving effect to the
post closing adjustments provided for in the Master Purchase Agreement) or until
five years from the date of this Agreement, whichever first occurs:
(a) In each election of directors (whether at special or
annual meeting or by written consent), the Board of Directors of the Company
will nominate as one of the nominees of the Board of Directors for election as a
director the person designated by the Investor as set forth in paragraph (b).
Therrien shall vote all shares of the Company's Common Stock controlled by him,
directly or indirectly, in favor of the election of such person to the Company's
Board of Directors.
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(b) The Investor shall designate one person as its nominee to
be a director of the Company, which person shall be Mr. Jurgen Geissman or such
other person as may be designated by the Investor and (i) is acceptable to
Therrien and the other members of the Board of Directors of the Company in their
reasonable discretion and (ii) shall not be a Competitor. The nominee so
selected by the Investor shall be specified in a written notice delivered to
Therrien and the Board of Directors a reasonable period of time prior to
completion by the Company of its proxy materials. Therrien and the Board of
Directors shall indicate his and its approval or disapproval, as the case may
be, promptly after receipt of the written notice.
(c) Investor shall take such action as may be required so that
all Voting Securities owned by the Investor or any of the Affiliates are voted
for nominees to the Board of Directors of the Company and, unless the Company
otherwise consents in writing, on all other matters to be voted on by the
holders of Voting Securities, in the same proportion as the votes cast by other
holders of Voting Securities; PROVIDED that Voting Securities owned by the
Investor or any Affiliate may be voted as such persons determine in their sole
discretion on any Significant Event. The Investor and its Affiliates, as holders
of Voting Securities, shall be present, in person or by proxy, at all meetings
of shareholders of the Company so that all Voting Securities beneficially owned
by them may be counted for the purpose of determining the presence of a quorum
at such meetings.
(d) Each director selected and elected in accordance with
Sections 1.1 and 1.2 shall serve until his successor is designated, elected and
qualified or until his earlier resignation or removal. The designee of the
Investor may be removed during his term of office without cause only by vote of
the stockholders. Any vacancy in the office of the director selected by the
Investor shall be filled by the parties promptly in accordance with paragraph
(b) above, and his office shall not be filled by the directors other than by a
person designated by Investor.
ARTICLE 2. COVENANTS OF INVESTOR.
The Investor agrees with the Company that following the Closing:
2.1 STANDSTILL AGREEMENT. Neither Investor nor any Affiliate of the
Investor will without the prior written consent of the Company, directly or
indirectly, acquire any Voting Securities (except by way of stock dividends or
other distributions or offerings made available to holders of Voting Securities
generally) if the effect of such acquisition would be to increase the aggregate
voting power in the election of directors of all Voting Securities then owned by
Investor and all its Affiliates to greater than the combined voting power of all
the Purchase Shares (after giving effect to the post closing adjustments in
connection with the Master Purchase Agreement); PROVIDED THAT:
(a) The Investor may acquire Voting Securities without regard
to the foregoing limitation if any of the following events (each a "Triggering
Event") shall occur: (i) a tender or exchange offer is made by any person or
Schedule 13D Group to acquire Voting Securities which, if added to any Voting
Securities (if any) already owned by such person or Schedule 13D Group, would
represent more than 25% of the total combined voting power of all Voting
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Securities then outstanding; (ii) it is publicly disclosed or Investor otherwise
learns that Voting Securities representing more than 25% of the total combined
voting power of all Voting Securities then outstanding have been acquired
subsequent to September 30, 1999, or are proposed (in a public announcement or
filing) to be acquired subsequent to such date by any person or Schedule 13D
Group; or (iii) any person or Schedule 13D Group shall beneficially own Voting
Securities representing more than 25% of the total combined voting power of all
Voting Securities than outstanding, and would be required (under rules and
regulations in effect on the date hereof) to file a statement on Schedule 13D
with the SEC reporting beneficial ownership of such Voting Securities.
(b) neither the Investor nor any Affiliate of the Investor
shall be obligated to dispose of any Voting Securities if the aggregate
percentage ownership of the Investor and its Affiliates is increased as a result
of a recapitalization of the Company, a repurchase by the Company of its Voting
Securities or any other action taken by the Company or its affiliates other than
the Investor and its Affiliates.
2.2 PROXY SOLICITATIONS.
(a) Neither the Investor nor any Affiliate of the Investor
shall solicit proxies or become a "participant" in a "solicitation" (as such
terms are defined in Regulation 14A under the Exchange Act) in opposition to the
recommendation of the majority of the directors of the Company with respect to
any matter; PROVIDED THAT (i) if the Investor opposes any solicitation by the
Company's management with respect to any Significant Event, the Company shall
include in its proxy statement in connection with such solicitation the fact
that Investor opposes such solicitation and a brief statement provided by
Investor stating Investor's reasons for such opposition and (ii) if at any time
a designee of the Investor is serving as a member of the Company's Board of
Directors, the Investor shall not be deemed to be a "participant" solely by
reason of the membership of such designee on the Board of Directors of the
Company.
(b) Except in the case of a Triggering Event, neither the
Investor nor any Affiliate of the Investor shall join a partnership, limited
partnership, syndicate or other group, or otherwise act in concert with any
other person, for the purpose of acquiring, holding, voting or disposing of
Voting Securities, or otherwise become a "person" within the meaning of Section
13(d)(3) of the Exchange Act (in each case other than solely with the Investor
and its Affiliates). In the case of a Triggering Event, subject to the
limitations in this Section 2.2(b), Investor may join a partnership, limited
partnership, syndicate or other group, or otherwise act in concert with any
other person, for the purpose of acquiring, holding, voting or disposing of
Voting Securities or otherwise become a "person" within the meaning of Section
13(d)(3) of the Exchange Act. In no case shall Investor or any of its Affiliates
be permitted to join a partnership, limited partnership, syndicate or other
group with any person or Schedule 13D Group participating in the Triggering
Event or otherwise act in concert with any person or become a "person" within
the meaning of Section 13(d)(3) of the Exchange Act in either case in connection
with any person or Schedule 13D Group participating in the Triggering Event.
2.3 VOTING AGREEMENTS. Neither the Investor nor any Affiliate of the
Investor shall deposit any Voting Securities in a voting trust or subject any
Voting Securities to any arrangement or agreement with respect to the voting of
such Voting Securities.
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ARTICLE 3. RESTRICTION ON TRANSFERS.
3.1 RESTRICTION ON TRANSFERS. Until five years after the date of this
Agreement, Investor may not transfer any interest in any Voting Securities
directly or indirectly owned by it (whether by way of gift, sale, transfer,
assignment, pledge, hypothecation, mortgage or otherwise). After five years from
the date of this Agreement, Investor may transfer any interest in any Voting
Securities directly or indirectly owned by it (whether by way of gift, sale,
transfer, assignment, pledge, hypothecation, mortgage or otherwise) provided (i)
such transfer is not to a Competitor and (ii) Investor shall have first offered
the Company a right of first refusal in the manner provided in this Article 3.
These restriction on transfer shall not apply to any offer or transfer of Voting
Securities: (a) to the Investor or one of its other Affiliates, provided that
any such transferee shall comply with Section 3.3, (b) to the Company or any
person or group approved in writing by the Company, (c) in response to (i) an
offer to purchase or exchange for cash or other consideration any Voting
Securities (A) which is made by or on behalf of the Company or (B) which is made
by another person or group and is approved by the Board of Directors of the
Company within the time such Board is required pursuant to regulations under the
Exchange Act to advise the shareholders of the Company of the Board's position
on such offer, or (d) pursuant to a plan of liquidation of the Company.
3.2 EXCEPTIONS. The first refusal right of this Article shall not apply
to any offer or transfer (a) to the Investor or one of its other Affiliates,
provided that any such transferee shall comply with Section 3.3, (b) after five
years from the date of this Agreement, pursuant to a rights offering or a
dividend or other distribution to stockholders of the Investor or any of its
Affiliates, (c) after five years from the date of this Agreement, unsolicited
brokerage transactions of less than the amount that would be permitted by Rule
144(e) under the Securities Act if it were applicable, (d) as a result of any
pledge or hypothecation to a bona fide financial institution to secure a bona
fide loan or the foreclosure of any lien or encumbrance which may be placed upon
any Voting Securities (whether voluntarily or involuntarily), (e) to the Company
or any person or group approved in writing by the Company, (f) in response to
(i) an offer to purchase or exchange for cash or other consideration any Voting
Securities (A) which is made by or on behalf of the Company or (B) which is made
by another person or group and is approved by the Board of Directors of the
Company within the time such Board is required pursuant to regulations under the
Exchange Act to advise the shareholders of the Company of the Board's position
on such offer or (g) pursuant to a plan of liquidation of the Company.
3.3 AGREEMENT BY TRANSFEREE. No person shall receive an interest
pursuant to Section 3.2(a) in any Voting Securities now or hereafter held by the
Investor, whether such receipt was voluntary, involuntary or by operation of
law, unless such person shall first agree in writing to be bound by all of the
terms of this Agreement as if such transferee were the Investor hereunder.
3.4 CERTIFICATES LEGENDED. Upon the execution of this Agreement, and
during the term of this Agreement, each certificate evidencing any of the Shares
held by Investor or any Affiliate shall be conspicuously legended as follows:
The stock evidenced by this certificate is subject to the
restrictions of, and is transferable only upon compliance with
the provisions of, a Stockholder Agreement dated September 30,
1999 between the corporation and the holders of certain
securities of the corporation. A copy of said agreement is on
file in
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the office of the corporation, and a copy thereof will be
mailed to the holder hereof without charge upon receipt of a
written request therefor.
3.5 SALES TO THIRD PARTIES.
(a) Subject to Sections 3.1 and 3.2 hereof, if at any time
during the term of this Agreement the Investor proposes to transfer any Voting
Securities now or hereafter directly or indirectly beneficially owned by it
("Selling Stockholder") to a Proposed Transferee, it shall first submit a
written offer (the "First Refusal Offer") to sell such shares (the "Offered
Shares") to the Company as provided in this Article 3.
(b) The First Refusal Offer shall disclose the identity of
and, if available, information about the Proposed Transferee and the terms of
the Proposed Transfer, the number of shares proposed to be sold, the total
number of Voting Securities owned by the Investor, and the terms and conditions,
including without limitation price, of the Proposed Transfer. The Investor shall
also provide any other material facts relating to the Proposed Transfer which
may be reasonably requested by the Company. The First Refusal Offer shall
further state that the Company may acquire, in accordance with the provisions of
this Article, all or any part of the Offered Shares on terms and conditions,
including without limitation price, not less favorable to the Company than those
on which the Investor proposes to sell the Offered Shares to the Proposed
Transferee, including any deferred or installment payment provision.
(c) In the event the terms of the Proposed Transfer
contemplate the payment to the Investor of consideration other than cash, the
Fair Value of such non-cash consideration shall be determined in accordance with
Section 3.8 hereof.
3.6 COMPANY'S RIGHT OF FIRST REFUSAL.
(a) If the Company desires to purchase all or any part of the
Offered Shares, the Company shall deliver a written notice of its election to
purchase to the Investor within 15 days after the date of receipt of the First
Refusal Offer by the Company. Such notice to purchase the Offered Shares, shall,
when taken in conjunction with the First Refusal Offer, be deemed to constitute
a valid, legally binding and enforceable agreement for the sale to, and purchase
by, the Company of the number of Offered Shares specified by the Company in such
notice and on the terms of the First Refusal Offer.
(b) The closing of the sale of Offered Shares to the Company
pursuant to this Section 3.6 shall be made at the offices of the Company on such
date as may be agreed upon by the Company and Investor, but no later than 45
days following the date the First Refusal Offer is received by the Company. Such
sale shall be effected by the Investor's delivery to the Company of a
certificate(s) evidencing the Offered Shares (or any portion thereof) to be
purchased by the Company, duly endorsed for transfer to the Company, against
payment to the Investor of the purchase price by the Company. The non-exercise
by the Company of its rights pursuant to this Section shall be without prejudice
to its rights under this Section 3.6 with respect to any future sales of Offered
Shares.
3.7 SALES TO PROPOSED TRANSFEREE. In the absence of a valid election to
purchase, the Offered Shares may be sold by the Investor to the Proposed
Transferee at any time within 90
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days after the date of receipt of the First Refusal Offer by the Company. Any
such sale shall be at the same or greater price and upon other terms and
conditions, if any, not more favorable to the Proposed Transferee than those
specified in the First Refusal Offer. Any Offered Shares not sold within the
permitted time period shall continue to be subject to the requirements of a
prior offer and right of first refusal pursuant to this Article 3.
3.8 DETERMINATION OF FAIR VALUE.
For the purpose of this Agreement, Fair Value shall be determined as
follows:
(a) The Fair Value of any security then traded on any national
securities exchange or automated quotation system which has sale price
reporting, shall be the mean between the high and low sales prices, if any, on
such exchange or system on the date as of which Fair Value is being determined
or, if none, shall be determined by taking a weighted average of the means
between the highest and lowest sales prices on the nearest date before and the
nearest date after that date.
(b) If a security is then traded on an exchange or system
which does not have sale price reporting, the Fair Value of the security shall
be the mean between the average of the "bid" and the average the "ask" prices,
if any, as reported for such the date as of which Fair Value is being
determined, or, if none, shall be determined by taking a weighted average of the
means between the highest and lowest sales prices on the nearest date before and
the nearest date after such date.
(c) Fair Value for Voting Securities of the Company if it is
not publicly traded shall be determined by dividing the highest price (net of
total debt determined in accordance with generally accepted accounting
principles) for which the Company could be sold as a going concern to an
independent third party, assuming a reasonable time (up to 12 months) to
accomplish such sale by the number of fully diluted shares of Voting Securities
(calculated on an as converted basis, and assuming the exercise of all rights,
options, and warrants and conversion of all convertible securities) outstanding.
In order to determine the value for which the Company could be sold, the Company
and the Investor shall meet and use their best efforts to reach an agreement on
the Company's Fair Value. If such parties are unable to reach such agreement
within a reasonable amount of time, such parties will use their best efforts to
agree upon the selection of an independent appraiser or investment banking firm
of international standing within 30 business days after giving notice that
requires a determination of Fair Value. Such appraiser or investment banking
firm will have 30 business days in which to determine the Fair Value, and its
determination will be final and binding on all parties concerned. All costs of
such determination shall be borne equally by the parties.
(d) The Fair Value of any property other than cash or
securities offered as consideration by a Proposed Transferee for the Offered
Shares shall be the fair market value of such property. In order to determine
the fair market value of such property, the Company and the Investor shall meet
and use their best efforts to reach an agreement on the fair market value. If
such parties are unable to reach such agreement within a reasonable amount of
time, such parties will use their best efforts to agree upon the selection of an
independent appraiser within thirty business days after giving notice that
requires a determination of Fair Value. Such
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appraiser will have thirty business days in which to determine the Fair Value,
and this determination will be final and binding on all parties concerned. All
costs of such determination shall be borne equally by the parties.
ARTICLE 4. COVENANTS OF JENOPTIK
Jenoptik agrees as follows on behalf of itself and all members of the Jenoptik
Group to the extent permitted by applicable law:
4.1 ACCESS TO INFORMATION ON PROJECTS.
(a) For as long as any member of the Jenoptik Group holds
Voting Securities, if any member of the Jenoptik Group is involved in providing
design, planning or other services with respect to the development of a
semi-conductor fabrication facility for any customer or potential customer,
Jenoptik with reasonably promptness shall provide notice to the Company, in
accordance with Section 6.2 hereof, including the following information:
(i) a general description of the proposed fabrication
facility;
(ii) the design or designs for such facility being
proposed by Jenoptik;
(iii) a description of the general types and
estimated number of pieces of equipment that will be required for the facility,
including any special capability, with particular reference to the types of
equipment or facilities then being offered by the Company or any of its
Affiliates; and
(iv) the estimated time schedule for construction of
the facility, ordering and delivery of equipment for such facility.
(b) Jenoptik shall provide the Company with a reasonable
opportunity to comment on the project for which it receives the notice and
information under paragraph (a) above and Jenoptik will continue to keep the
Company advised of the status of each such project as it progresses.
(c) The Jenoptik Group is not required to comply with this
Section 4.1 to the extent compliance would breach the Jenoptik Group's
confidentiality agreements. However, the Jenoptik Group shall use commercially
reasonable efforts to ensure that it will be permitted to comply with this
Section 4.1 in connection with any confidentiality agreements.
4.2 PREFERRED SUPPLIER.
(a) For so long as any member of the Jenoptik Group holds
Voting Securities:
(i) Jenoptik Group shall specify the Company as a
preferred supplier;
(ii) If at any time any member of the Jenoptik Group
proposes to order from a third party products and applications similar to those
then offered by the Company or any Affiliate of the Company (the "Third Party
Proposal"), then the Jenoptik Group member shall first give the Company a
written notice (the "Jenoptik Offer") offering the Company, without
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disclosing the identity of the third party, the opportunity to match the terms
and conditions of the Third Party Proposal. The Jenoptik Offer shall disclose
the terms and conditions of the Third Party Proposal and be delivered to the
Company in accordance with Section 6.2 hereof. If the Company desires to accept
the Jenoptik Offer, the Company shall deliver a written notice of its election
to accept the Jenoptik Offer within thirty days after the date of receipt of the
Jenoptik Offer by the Company. Such notice to accept the Jenoptik Offer shall,
when taken in conjunction with the Jenoptik Offer, be deemed to constitute a
valid, legally binding and enforceable agreement.
(b) If for any reason any member of the Jenoptik Group fails
to make the Jenoptik Offer required by paragraph (a), then it shall pay to the
Company liquidated damages equal to the greater of $1,000,000 or 10% of the
revenues the Company could have recognized if the Company accepted the Jenoptik
Offer.
4.3 NO COMMISSION. Jenoptik guarantees that by December 31, 2000 it
will award to the Company, for no commission, an exclusive supply contract (the
"Exclusive Supply Contract") in connection with the project to build the First
Silicon semiconductor fabrication facility (the "First Silicon Project") . Under
the Exclusive Supply Contract, the Company shall be the exclusive supplier of
all products and applications required for the First Silicon Project which the
Company then offers. The Exclusive Supply Contract shall be on terms reasonably
satisfactory to the Company and shall provide for prices such that the Company
is able to realize the fully loaded gross margins as specified on Exhibit A
hereto.
ARTICLE 5. DEFINITIONS.
All capitalized terms used herein without definitions shall have the
respective meanings provided therefor in the Master Purchase Agreement. In
addition, for purposes of this Agreement, the following terms shall have the
indicated respective meanings:
"Affiliate" has the meaning specified under the Securities Act.
"Business Sale" means (i) any merger or consolidation of the Company
with or into another corporation or entity (whether or not the Company is the
surviving entity if, after the merger or consolidation, more than 50% of the
voting interests of the surviving entity are owned by persons who were not
holders of voting securities of the Company prior to the merger or
consolidation), (ii) any share exchange or sale by the holders of 80% or more of
the Voting Securities of the Company, or (iii) the sale of all or substantially
all the assets of the Company.
"Charter" means the Certificate of Incorporation or equivalent
document, as amended from time to time.
"Common Stock" shall include any class of capital stock of the Company,
now or hereafter authorized, the right of which to share in distributions either
of earnings or assets of the Company is without limit as to any amount or
percentage, and common stock or other securities issued in substitution or
exchange for the presently authorized Common Stock in connection with a
reorganization, reclassification, merger or sale of assets.
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"Competitor" means any individual or entity whose business is in
competition with the business carried on by the Company or any of its
Affiliates.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
or any similar Federal statute, and the rules and regulations of the SEC issued
under the Exchange Act, as they each may, from time to time, be in effect.
"Fair Value" has the meaning specified in Section 3.8.
"First Refusal Offer" has the meaning specified in Section 3.5.
"Investor" means Meissner + Wurst Zander Holding GmbH.
"Jenoptik Group" means Jenoptik and any and all direct and indirect
Subsidiaries of Jenoptik.
"Offered Shares" means any shares of Voting Securities offered to the
Company pursuant to Article 3.
"Proposed Transfer" means a proposed transfer by the Investor to a
Proposed Transferee subject to Article 3.
"Proposed Transferee" means a bona fide third party who has offered to
buy or accepted an offer to sell Voting Securities from the Investor.
"Purchase Shares" means the shares of Common Stock to be issued
pursuant to the Master Purchase Agreement and pursuant to certain other Purchase
Agreements.
"SEC" means the Securities and Exchange Commission, or any other
Federal agency at the time administering the securities laws of the United
States.
"Schedule 13D Group" means any group of persons formed for the purpose
of acquiring, holding, voting or disposing of Voting Securities which would be
required under Section 13(d) of the Exchange Act and the rules and regulations
thereunder (as now in effect and based on present legal interpretations thereof)
to file a statement on Schedule 13D with the SEC as a "person" within the
meaning of Section 12(d) (3) of the Exchange Act if such group beneficially
owned Voting Securities representing more than 5% of the total combined voting
power of all Voting Securities then outstanding, but specifically shall not
include the Investor and any Affiliates or any group of which any of them are
members.
"Significant Event" means any Charter or by-law amendment, Business
Sale, change in capitalization or liquidation of the Company.
"Triggering Events" mean the events described in Section 2.1(a) hereof.
"Voting Securities" means the Common Stock of the Company, $.01 par
value per share, any other class of capital stock of the Company outstanding and
entitled to vote generally on the
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election of directors, and includes any right, option, or warrant to acquire any
such class of capital stock or security exchangeable for or convertible into any
such class capital stock.
ARTICLE 6. MISCELLANEOUS.
6.1 TERMINATION
(a) This Agreement may be terminated only (i) by mutual
consent of the parties, or (ii) upon the expiration of its term in accordance
with paragraph (b) below.
(b) Subject to earlier termination under paragraph (a) above
(i) the provisions of Articles 1 and shall continue for the periods indicated in
the applicable sections, (ii) the provisions of Article 2 shall continue without
limitation as to time, and (iii) the provisions of Articles 3 and 4 shall
continue until such time as Investor and its Affiliates no longer own
beneficially any of the Voting Securities,
6.2 NOTICES. Any notice or other communication in connection with this
Agreement shall be deemed to be delivered if in writing (or in the form of a
telegram) addressed as provided below and if either (a) actually delivered at
said address, or (b) in the case of a letter, three business days shall have
elapsed after the same shall have been deposited in the United States mails or
in the German mails, postage prepaid and registered or certified:
If to the Company, to:
Brooks Automation, Inc.
15 Elizabeth Drive
Chelmsford, MA 01824
Tel: (978) 262-2400
Fax: (978) 262-2500
Attn: Ms. Ellen Richstone
with a copy to:
Brown, Rudnick, Freed & Gesmer
One Financial Center
Boston, MA 02111
Tel: (617) 856-8200
Fax: (617) 856-8201
Attn: David H. Murphree, Esq.
If to the Investor, to:
Meissner + Wurst Zander Holding GmbH
Lotterberg Strasse 30
DX-70499 Stuttgart
Germany
Attn: Jurgen Giessmann,
Chairman of the Board
Tel: 011 49 3641 65 2238
Fax: 011 49 3641 65 2480
with copies to:
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Stockholder Agreement
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Bruckhaus Westrick Heller & Lober
Grimmaische Strasse 25
D-04109 Leipzig
Germany
Attn: Dr. Nikolaus Reinhuber
Tel: 011 49 341 1 27 23 0
Fax: 011 49 341 1 27 23 33
Gray Cary Ware Freidenrich
400 Hamilton Avenue
Palo Alto, CA 94301-1825
Attn: Thomas M. French, Esquire
Tel: 650 833 2028
Fax: 650 328 3029
and in any case at such other address as the addressee shall have specified by
written notice. All periods of notice shall be measured from the date of
delivery thereof.
6.3 INTEGRATION WITH MASTER PURCHASE AGREEMENT. This Agreement and the
Master Purchase Agreement (including all exhibits or schedules appended to this
Agreement and the Master Purchase Agreement and all documents delivered pursuant
to or referred to in this Agreement and the Master Purchase Agreement, all of
which are hereby incorporated herein by reference) constitute the entire
agreement to the extent provided herein and therein between the parties.
6.4 AMENDMENTS AND WAIVERS. Changes in or additions to this Agreement
may be made or compliance with any term, covenant, agreement, condition or
provision set forth herein or therein may be omitted or waived (either generally
or in a particular instance and either retroactively or prospectively), upon
written consent of the Company and the Investor; provided however, that no
waiver or consent on any one instance shall be deemed to be or be construed as a
further or continuing waiver of any such term or condition unless it expressly
so provides.
6.5 GOVERNING LAW; SEVERABILITY. This Agreement shall be deemed a
contract made under the laws of the State of Delaware and, together with the
rights and obligations of the parties hereunder, shall be construed under and
governed by the laws of such State. The invalidity or unenforceability of any
provision of this Agreement shall not affect the validity or enforceability of
any other provision hereof.
6.6 COUNTERPARTS. This Agreement may be executed in multiple
counterparts, each of which shall be deemed in original but all of which
together shall constitute one and the same instrument.
6.7 EFFECT OF TABLE OF CONTENTS AND HEADINGS. Any table of contents,
title of an article or section heading herein contained is for convenience or
reference only and shall not affect the meaning of construction of any of the
provisions hereof.
[REST OF PAGE INTENTIONALLY LEFT BLANK]
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Stockholder Agreement
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IN WITNESS WHEREOF, this Agreement has been executed as a sealed
instrument by the parties hereto or their duly authorized representatives
effective as of the date first above written.
Brooks Automation, Inc.
By: /s/ Ellen B. Richstone
--------------------------
Ellen B. Richstone
Chief Financial Officer
INVESTOR:
Meissner + Wurst Zander Holding GmbH
By: /s/ Alexander von Witzleben
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Its:
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JENOPTIK AG
By: /s/ Alexander von Witzleben
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Its:
---------------------------
/s/ Robert J. Therrien
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Robert J. Therrien
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Stockholder Agreement
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LIST OF EXHIBITS
Exhibit A -Schedule of Gross Margins
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Stockholder Agreement
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