1 Exhibit 10.33 TRANSITIONAL SERVICES AGREEMENT This Transitional Services Agreement is made as of September 30, 1999 (the "Closing") by and among Brooks Automation, Inc., a Delaware Corporation ("Buyer") and Jenoptik AG, a corporation organized under the laws of the Federal Republic of Germany ("Jenoptik"). WHEREAS, the parties have entered into a Master Purchase Agreement, dated as of September 9, 1999 (the "MPA") by and among the parties and certain direct and indirect subsidiaries of Jenoptik and Buyer, pursuant to which Buyer has agreed to purchase the Infab Business in exchange solely for shares of Buyer's Common Stock, par value $.01 per share, subject to the terms and conditions set forth in the MPA; WHEREAS, the MPA requires that the parties shall enter into an agreement relating to certain services to be provided by Jenoptik or a subsidiary of Jenoptik to Buyer or a subsidiary of Buyer with respect to certain activities after the Closing under the MPA. NOW, THEREFORE, in consideration of the MPA 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 I DEFINITIONS For purposes of this Agreement capitalized terms not otherwise defined herein shall have the meanings given them in the MPA. All references to Buyer or Jenoptik shall include any relevant direct or indirect Subsidiaries of Buyer and Jenoptik respectively. ARTICLE II TERM The term of this Agreement shall commence on the Closing and shall continue for one year (the "Initial Interim Period"). However, with respect to any applicable lease term terminating prior to the expiration of the Initial Interim Period ("Expired Facility Lease") this Agreement shall only apply to such lease for the term of such lease. Apart from any Shared Facility (as hereinafter defined) subject to an Expired Facility Lease, Buyer shall be entitled to extend the Agreement for two additional one year periods (the "Extended Interim Period") on the same terms and conditions. The Initial Interim Period and any Extended Interim Period shall together be referred to as the Interim Period. Buyer shall give notice of its election to extend the Agreement within ninety (90) days prior to the end of the Initial Interim Period or any Extended Interim Period. The Agreement may be terminated pursuant to the terms of Article V. ARTICLE III THE SHARED FACILITIES 3.1 OPERATING COSTS. Jenoptik agrees to grant Buyer the use at Buyer's election of those facilities listed on Schedule A attached hereto (the "Shared Facilities") throughout the Interim Period. Buyer agrees to share in all of the costs of operating the Shared Facilities - -------------------------------------------------------------------------------- TRANSITION SERVICES AGREEMENT EXECUTION COPY 1 2 (excluding costs of personnel), including, but not limited to, rent, personal or real property taxes, common area maintenance charges, utilities (excluding any utility used exclusively by either Buyer or Jenoptik), building security and building or janitorial services (together, the "Operating Costs"). 3.2 TRANSITIONAL SERVICES. (a) In connection with the Buyer's occupation of the Shared Facilities, during the Interim Period, Jenoptik agrees to provide Buyer, at Buyer's election, use of those services described on Schedule B attached hereto and those services listed on Schedule 5.13(a) paragraph (ii) under the caption Infab (Germany) to the MPA (together, the "Transitional Services"). (b) The Transitional Services are based on Jenoptik's and Buyer's understanding of the support, and other services reasonably required to be provided by Jenoptik to Buyer in connection with the Shared Facility in Jena (the "Jena Facility") as of the date of this Agreement and are intended to be illustrative. If, following the Closing, Jenoptik and Buyer reasonably determine that additional services should be provided by Jenoptik to Buyer for purposes of operating the Infab Business, the parties agree to appropriately modify this Agreement with respect to such additional Transitional Services; provided, however, that any such additional services shall be provided on a basis substantially consistent with the recent historical practices of Jenoptik. All individuals providing services on behalf of Jenoptik pursuant to this Agreement shall remain employees of Jenoptik and shall not be deemed for any purpose to be employed by Buyer. Buyer shall have no liability to such individuals with respect to any matter arising out of or relating to their employment by Jenoptik, including, without limitation, claims for wages, salaries, benefits or severance. (c) Upon termination of this Agreement, Jenoptik will cooperate in transferring to Buyer, and, at Buyer's request and cost, erasing from Jenoptik's centralized computer system all proprietary information and data of Buyer stored on Jenoptik's centralized computer system. 3.3 STORAGE AND DELIVERY OF PURCHASED ASSETS. Buyer and Jenoptik agree that during the Interim Period, the machinery, equipment and other personal property included among the Purchased Assets and located at the Shared Facilities, may remain at such premises. During the Interim Period, Buyer shall have the right to, at its expense, crate, remove and transport the Purchased Assets or any property or goods developed, manufactured or created with the aid of any of the Purchased Assets from the Shared Facilities without damage to Jenoptik's property, provided that Jenoptik shall reasonably cooperate with Buyer in effecting such process. - -------------------------------------------------------------------------------- TRANSITION SERVICES AGREEMENT EXECUTION COPY 2 3 ARTICLE IV ALLOCATION OF COSTS. 4.1 PAYMENT OF SHARED FACILITIES COSTS. (a) Unless otherwise provided in Schedule A, Buyer's proportionate share of the Operating Costs allocable to any particular Shared Facility shall be based upon Buyer's proportionate square meter use of such Shared Facility. The costs for the Transitional Services incurred in connection with any Shared Facility shall be divided between Jenoptik and Buyer in the manner set forth on Schedule B. The Operating Costs and the costs for the Transitional Services shall together be referred to as the "Shared Facilities Costs". Jenoptik shall not increase the Shared Facilities Costs during the term of the Interim Period. However, insofar as any costs included in the Shared Facilities Costs are increased by a third party not affiliated with Jenoptik, Buyer shall be responsible for its proportionate share of any such increase. (b) Buyer shall pay to Jenoptik its share of any rental portion of the Operating Costs as reflected on Schedule A on a monthly basis commencing one month from the date of this Agreement. Buyer shall pay its share of all other costs included within the Shared Facilities Costs within twenty (20) days of the date Jenoptik has given Buyer notice that it has made a payment together with a copy of the relevant invoice billed to Jenoptik by the utility, landlord or service provider. If however, any cost for Transitional Services is payable directly to Jenoptik, Buyer shall pay such cost within twenty (20) days after Jenoptik has given Buyer notice that such payment is owed. On an annual basis, for purposes of verifying the accuracy of charges for Transitional Services supplied hereunder and to verify the proper performance of Transitional Services by Jenoptik and its agents hereunder, Buyer shall be entitled, with respect to any charges paid hereunder during such previous year, on reasonable notice and during normal business hours to inspect the records of Jenoptik and its agents providing services hereunder as may be reasonably necessary for such purpose. (c) Apart from the Shared Facilities Costs, Buyer has no obligation or liability with respect to any costs associated with any other facility or premises maintained or used by Jenoptik. 4.2 CONDUCT OF BUSINESS. Jenoptik shall maintain insurance in reasonable amounts insuring its operations, all in a manner that will comply with any lease of a Shared Facilities and all material applicable laws and regulations. Absent a written agreement signed by authorized representatives of Jenoptik and Buyer prior to the incurrence of a cost outside the control of Jenoptik, neither Jenoptik nor Buyer shall be required to share in any facility costs incurred by the other outside of the ordinary course of business or consistent with past practice, including, without limitation, build-out or relocation costs, or HVAC or utility costs directly attributable to the work of either Jenoptik or Buyer. 4.3 MAINTENANCE; REPAIRS; AND YIELD-UP. Jenoptik shall be responsible for making any structural or other repairs that require replacement of any component or system. - -------------------------------------------------------------------------------- TRANSITION SERVICES AGREEMENT EXECUTION COPY 3 4 4.4 ENVIRONMENTAL. Jenoptik shall be responsible for the entire cost of any remediation (including, without limitation, all costs and expenses, including reasonable attorney fees) of any environmental problem affecting any Shared Facility no matter when caused or discovered unless such environmental problem is proved to be solely the result of Buyer's acts occurring from and after the date of this Agreement. 4.5 INDEMNITY. Buyer shall indemnify Jenoptik against, and hold Jenoptik free and harmless from all claims, losses, costs or damages (including attorneys fees and costs) hereafter asserted against Jenoptik by any third party with respect to the Shared Facilities (including, without limitation, any employee, visitor, agent, invitee, vendor, customer and consultant of Buyer) under any theory of law or equity whatsoever which are in any way based upon acts, omissions or occurrences arising out of or in the course of this Agreement; provided, however, the foregoing indemnity shall not apply to any claims which arise principally due to the negligence or willful misconduct of Jenoptik. Any sums payable by Buyer under this Section 4.5 shall be net of the amount of any insurance proceeds, indemnity or contribution actually received by Jenoptik and Jenoptik shall use commercially reasonable efforts to recover such amounts. The indemnification provisions in this Section 4.5 shall, notwithstanding any provision to the contrary contained elsewhere in this Agreement, survive for a period of three (3) years following any termination of this Agreement. The term "Jenoptik" as used in this Section 4.5 shall refer to Jenoptik AG, and its subsidiaries and affiliates, and their successors, assigns, officers, directors, employees and shareholders. ARTICLE V TERMINATION 5.1 Buyer may, at any time, terminate this Agreement immediately upon thirty days written notice to Jenoptik. 5.2 If Buyer shall fail adequately to perform in any material respect any of its obligations under this Agreement, whether voluntarily or involuntarily or as a result of any law or regulation or otherwise, Jenoptik may, without prejudice to any other right which it may have, terminate this Agreement provided that such breach shall not have been cured within thirty (30) days of delivery to Buyer of written notice of such breach. ARTICLE VI NOTICES All notices, requests, demands and other communications shall be given in accordance with the provisions contained in the MPA. ARTICLE VII GENERAL 7.1 Neither Jenoptik nor Buyer shall act as an agent or representative of the other without prior authorization. Jenoptik shall be free to exercise its discretion and independent judgment as to the method and means of performance of the Transitional Services contained in this Agreement. - -------------------------------------------------------------------------------- TRANSITION SERVICES AGREEMENT EXECUTION COPY 4 5 7.2 This Agreement shall inure to the benefit of, and shall be binding upon, the successors and permitted assigns of the parties hereto. In addition, Jenoptik shall not sell, lease or assign any of the Shared Facilities (with the exception of those situated in Germany) without the prior written consent of Buyer, such consent not to be unreasonably withheld. 7.3 This Agreement constitutes the entire agreement of the parties with respect to the occupancy of the Shared Facilities and the provision of the Transitional Services. This Agreement may be amended or modified and any of the terms or conditions hereof may be waived only by a written instrument executed by the parties, or in the case of a waiver, by the party or parties waiving compliance. Any waiver by a party of any condition, or of the breach of any provision or term in any one or more instance, shall not be deemed to be nor construed as a further or continuing waiver of any such condition, or of the breach of any provision or term of this Agreement. 7.4 Nothing in this Agreement is intended to confer any rights or remedies under or by reason of this Agreement on any persons other than Jenoptik or Buyer and their respective successors and permitted assigns. Nothing in this Agreement is intended to relieve or discharge the obligations or liability of any third person to Jenoptik or Buyer. No provision of this Agreement shall give any third persons any right of subrogation or action over or against Jenoptik or Buyer. 7.5 This Agreement shall be governed by the laws of The Commonwealth of Massachusetts (without regard to the laws that might be applicable under principles of conflicts of law, and without regard to the jurisdiction in which any action or special proceedings may be instituted) as to all matters, including, but not limited to, matters of jurisdiction, validity, construction, effect and performance. 7.6 The section headings in this Agreement are for reference purposes only and shall not affect the meaning or interpretation of this Agreement. 7.7 This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which shall constitute the same instrument. [THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK] - -------------------------------------------------------------------------------- TRANSITION SERVICES AGREEMENT EXECUTION COPY 5 6 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed in multiple counterparts as of the date set forth above by their duly authorized representatives. BROOKS AUTOMATION, INC. By: --------------------------------- Name: Title: JENOPTIK AG By: --------------------------------- Name: Title: - -------------------------------------------------------------------------------- TRANSITION SERVICES AGREEMENT EXECUTION COPY 6 7 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed in multiple counterparts as of the date set forth above by their duly authorized representatives. BROOKS AUTOMATION, INC. By: --------------------------------- Name: Title: JENOPTIK AG By: --------------------------------- Name: Title: - -------------------------------------------------------------------------------- TRANSITION SERVICES AGREEMENT EXECUTION COPY 7 8 TRANSITIONAL SERVICE AGREEMENT SCHEDULE A - SHARED FACILITIES - ----------------------------------------------------------------------------------------------------------------------------------- No Location Jenoptik Entity Facility provision cost - ----------------------------------------------------------------------------------------------------------------------------------- - ----------------------------------------------------------------------------------------------------------------------------------- 1 Jena Goeschwitzerstrasse M+W Zander GM Provide office, storage and rent costs fixed for 12 months; GmbH manufacturing space (based on increase of rent in next 12 month M+W Zander FM GmbH overview period up to max 3%; additional costs Sept 24, 1999). Sufficient parking calculated at this time as the lots for employees (approx. 130 maximum cost (re-pay at the end of max), visitors and management year based on real costs). (2) and 2 company vehicles for Mfg/Stores/Service provided cost free - ----------------------------------------------------------------------------------------------------------------------------------- 2 Colorado Springs, Colorado Jenoptik Infab, Inc. Per lease agreement dated Per lease agreement dated February February 24, 1999 and referenced 24, 1999 and referenced in the MPA in the MPA until lease until lease assignment properly assignment properly executed executed and delivered and delivered - ----------------------------------------------------------------------------------------------------------------------------------- - ------------------------------------------------------------------------------------------------------------------ total operating space in rent per add cost total per costs per No building m2 m2 per m2 m2 month - ------------------------------------------------------------------------------------------------------------------ Bau 9 (office and lab) 410 8.00 DM 6.00 DM 14.00 DM 5,740.00 DM ------------------------------------------------------------------------------------------------------ Bau 9 (stores) 345 5.00 DM 6.00 DM 11.00 DM 3,795.00 DM ------------------------------------------------------------------------------------------------------ 1 Bau 13 (office) 81 10.00 DM 16.00 DM 26.00 DM 2,106.00 DM ------------------------------------------------------------------------------------------------------ Bau 13 (stores) 34 9.00 DM 10.00 DM 19.00 DM 646.00 DM ------------------------------------------------------------------------------------------------------ Bau 13 (aircon) 664 9.00 DM 30.00 DM 39.00 DM 25,896.00 DM ------------------------------------------------------------------------------------------------------ Bau 13 (cleanroom) 155 11.00 DM 30.00 DM 41.00 DM 6,355.00 DM ------------------------------------------------------------------------------------------------------ Bau 14 (office) 2187 11.00 DM 5.60 DM 16.60 DM 36,304.00 DM ------------------------------------------------------------------------------------------------------ TOTAL 3876 80,842.20 DM - ------------------------------------------------------------------------------------------------------------------ 9 TRANSITIONAL SERVICE AGREEMENT SCHEDULE B - ERP (SAP R3) SYSTEM - ----------------------------------------------------------------------------------------------------------------------------------- Jenoptik No Location Entity provision operating cost - ----------------------------------------------------------------------------------------------------------------------------------- 1 Jena Jenoptik AG Jenoptik AG (Systemhaus) will provide the cost per user (currently approx. 35 (Systemhaus) current used SAP R3 system to Brooks users over the year) up to the with Oct 1, 1999. System will run in a JO maximum current monthly amount of AG data processing centre or at the data DM 30.000, - for total SAP R3 usage processing centre of the current JO AG MIS service partner Siemens AG, SBI, Nuernberg - ------------------------------------------------------------------------------------------------------------------------- No initial cost explanation - ------------------------------------------------------------------------------------------------------------------------- all data transfer and all necessary structure/body under this provision we understand the SAP data to run SAP R3 as an separate legal entity to R3 modules to run the following functions: 1 be performed and established by JO AG without Finance, Controlling, Costing, cost for Brooks. Cost for special Brooks Planning/Scheduling, Purchasing, Quality requirements are to be covered by Brooks. Assurance, Manufacturing, Stores 10 TRANSITIONAL SERVICE AGREEMENT SCHEDULE B - CONT'D - MEISSNER + WURST ZANDER FRAME RELATED NETWORK PROVIDED TO BROOKS AUTOMATION - --------------------------------------------------------------------------------------------------------------------------------- JENOPTIK NO LOCATION ENTITY PROVISION - --------------------------------------------------------------------------------------------------------------------------------- Jena, Colorado, Austin, M+W Zander Until Dec 31, 1999 M+W Zander Stuttgart provides Brooks (the 1 Fremont, Japan, Stuttgart former INFAB part and employees as per Oct 1, 1999) access to Taiwan. the M+W Zander Frame related network to access Internet and to send/receive emails - --------------------------------------------------------------------------------------------------------------------------------- - --------------------------------------------------------------------------------------------------------------------------------- OPERATING COST INITIAL/TERMINATION COST EXPLANATION - --------------------------------------------------------------------------------------------------------------------------------- cost per user (currently DM 77. - per no initial cost; no termination cost BROOKS will operate their own Internet month based on 1998 invoice) per end of Dec 99 access and world-wide network latest with Jan 1, 2000. Termination agreed with M+W Zander and already in process - --------------------------------------------------------------------------------------------------------------------------------- 11 Transitional Service Agreement Schedule B - Cont'd - Communication Services - ------------------------------------------------------------------------------------------------------------------------------------ No Location Jenoptik Entity provision operating cost initial/termination cost explanation - ---- -------- --------------- ----------------------------- ------------------ -------------------------- -------------------------- to provide Brooks GmbH the possibility of operating 1 Jena Jenoptik AG Jenoptik AG provides an an own switchboard Brooks (alsad) internal telephone network, external communic- need a switchboard tele- the end-user terminals and ation cost per phone terminal maximum Brooks GmbH will operate the telephone mainframe, user and monthly 1,000 DM and the set-up an own switchboard the JO AG switchboard telecom bill in the mainframe means no service and the voicemail new terminal but own service per telephone number maximum cost 1,000 number DM system. No costs for Brooks GmbH to provide this by JO AG - ---- -------- --------------- ----------------------------- ------------------ -------------------------- -------------------------- Jenoptik AG receives all 2 Jena Jenoptik AG invoices for German mobile stay with this because of (alsad) phones (GSM phones) and as per invoice none better conditions for JO submit the invoice on a AG and Brooks GmbH (volume monthly basis to Brooks based) Automation GmbH - ------------------------------------------------------------------------------------------------------------------------------------ 12 Transitional Service Agreement Schedule B - Cont'd - ------------------------------------------------------------------------------------------------------------------------------------ No Location Jenoptik Entity provision operating cost initial/termination cost explanation - ---- -------- --------------- ----------------------------- ------------------ -------------------------- -------------------------- 1 Jena Jenoptik AG Hourly services for patent JO AG, Herr Bertram will work for INFAB in all 180 DM plus filing none be the contact person countries and regions of fees and expenses further on taking care of interest (additional all Filing related issues representation outside INFAB for Brooks Jena products appropriate to our accounting per hour. - ---- -------- --------------- ----------------------------- ------------------ -------------------------- -------------------------- 2 Jena Jenoptik AG Provide copy service for format A0=DM 12.- as currently provided by drawings and documentation and format none Jenoptik AT A4=DM 0.40 - ---- -------- --------------- ----------------------------- ------------------ -------------------------- -------------------------- From Jan 1, 2000 on content and price will be adjusted as Brooks 3 Jena BGJ Provide personnel and per employee and Automation GmbH will have payroll services month DM 97.- none an own person taking care for some of the personnel issues. Payroll will stay with BGJ in anyway. - ---- -------- --------------- ----------------------------- ------------------ -------------------------- -------------------------- cleaning schedule as 4 Jena Jenoptik AG Cleaning of offices, stores none as included none currently operated. Any and mfg areas in rental costs changes up/down will reflect in rent adjustments - ---- -------- --------------- ----------------------------- ------------------ -------------------------- -------------------------- Mail service to distribute "yellow mail" and courier as per external 5 Jena Jenoptik AG mail (FedEx) from central cost; additional none point to one defined Jena DM 1500.- per office of Brooks Automation month for JO AG GmbH and vice versa efforts - ---- -------- --------------- ----------------------------- ------------------ -------------------------- -------------------------- Maintaining and filing of all 6 Jena Jenoptik AG CAD drawings at a central DM 1500.- per none JO AT point month - ---- -------- --------------- ----------------------------- ------------------ -------------------------- -------------------------- central maintenance 7 Jena Jenoptik AG of article number system DM 1125.- per none JO AT (MARA) month - ---- -------- --------------- ----------------------------- ------------------ -------------------------- -------------------------- same cost for JO AG provides via an 8 Jena Jenoptik AG Use of the canteen for Brooks employees none external company canteen Brooks employees as for JO services (Dussmann). Per employees menu Brooks have to pay DM 2.- as backing - ---- -------- --------------- ----------------------------- ------------------ -------------------------- -------------------------- 9 Jena Jenoptik AG Environmental and work DM 10.913.- per 6 none provided by JO AG QS dept security control services months - ---- -------- --------------- ----------------------------- ------------------ -------------------------- -------------------------- 10 Jena Jenoptik AG onsite doctors service DM 1480.- per none quarter - ---- -------- --------------- ----------------------------- ------------------ -------------------------- -------------------------- DM 150.- per hour 11 Jena Jenoptik AG provision of legal and for financial and none financial services on DM 180.- per hour request for legal services - ---- -------- --------------- ----------------------------- ------------------ -------------------------- -------------------------- DM 85.- per hour (normally 2 hours goods receiving services 12 Jena Jenoptik AG internal transportation and per day) for none due to volume might be goods receiving services internal transpor- changed to do it by Brooks tation and goods itself receiving - ------------------------------------------------------------------------------------------------------------------------------------