<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON FEBRUARY 14, 2000
REGISTRATION NO. 333-
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------
BROOKS AUTOMATION, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
<TABLE>
<CAPTION>
DELAWARE 04-3040660
<S> <C>
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER)
</TABLE>
15 ELIZABETH DRIVE, CHELMSFORD, MASSACHUSETTS 01824 (978) 262-2400
(ADDRESS, INCLUDING ZIP CODE AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF
REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
------------------------
ROBERT J. THERRIEN
PRESIDENT AND CHIEF EXECUTIVE OFFICER
BROOKS AUTOMATION, INC.
15 ELIZABETH DRIVE,
CHELMSFORD, MASSACHUSETTS 01824
(978) 262-2400
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF AGENT FOR SERVICE)
------------------------
COPIES TO:
<TABLE>
<S> <C>
LAWRENCE M. LEVY, ESQUIRE TIMOTHY C. MAGUIRE, ESQUIRE
BROWN, RUDNICK, FREED & GESMER TESTA, HURWITZ & THIBEAULT, LLP
ONE FINANCIAL CENTER 125 HIGH STREET
BOSTON, MASSACHUSETTS 02111 BOSTON, MASSACHUSETTS 02110
(617) 856-8200 (617) 248-7000
</TABLE>
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as
practicable after the effective date of this Registration Statement.
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, check the following box. [
]
If any of the securities being registered on this form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. [ ]
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, check the following box and
list the Securities Act registration statement number of the earlier effective
registration statement for the same offering. [ ]
If this form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
check the following box. [ ]
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------------------------
PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF EACH CLASS OF AMOUNT TO BE OFFERING PRICE) AGGREGATE AMOUNT OF
SECURITIES TO BE REGISTERED REGISTERED(1) PER SHARE(2) OFFERING PRICE(2) REGISTRATION FEE
- -------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common stock, $.01 par value............ 3,737,500 $64.47 $240,956,625 $63,612.55
- -------------------------------------------------------------------------------------------------------------------------------
Rights to Purchase common stock(3)...... -- -- -- --
- -------------------------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) Includes up to 487,500 shares of common stock which may be purchased by the
underwriters to cover over-allotments, if any.
(2) Estimated solely for the purpose of determining the registration fee
pursuant to Rule 457(c) under the Securities Act of 1933, and based upon the
average of the reported high and low prices of the common stock on the
Nasdaq National Market on February 8, 2000.
(3) Pursuant to a rights distribution made in 1997, one right (each a "Right")
is deemed to be delivered with each share of common stock issued by the
Company. The Rights currently are not separately transferable apart from the
common stock, nor are they exercisable until the occurrence of certain
events. Accordingly, no independent value has been attributed to the Rights.
------------------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE> 2
THE INFORMATION CONTAINED IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE
CHANGED. WE MAY NOT SELL THE SECURITIES UNTIL THE REGISTRATION STATEMENT
FILED WITH THE SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS
PROSPECTUS IS NOT AN OFFER TO SELL THESE SECURITIES AND IT IS NOT
SOLICITING AN OFFER TO BUY THESE SECURITIES IN ANY STATE WHERE THE OFFER
OR SALE IS NOT PERMITTED.
Subject to Completion, Dated February 14, 2000
3,250,000 Shares
[BROOKS LOGO]
BROOKS AUTOMATION, INC.
Common Stock
------------------
We are selling 2,750,000 shares and the selling stockholders are selling
500,000 shares of our common stock. We will not receive any of the proceeds from
shares of our common stock sold by the selling stockholders.
Our common stock is quoted on the Nasdaq National Market under the symbol
"BRKS". The last reported sale price of our common stock on February 10, 2000
was $66.81 per share.
The underwriters have an option to purchase a maximum of 487,500 additional
shares to cover over-allotments of shares.
INVESTING IN OUR COMMON STOCK INVOLVES RISKS. SEE "RISK FACTORS" ON PAGE
8.
<TABLE>
<CAPTION>
UNDERWRITING PROCEEDS TO PROCEEDS TO
PRICE TO DISCOUNTS AND BROOKS SELLING
PUBLIC COMMISSIONS AUTOMATION STOCKHOLDERS
-------- ------------- ----------- -------------------
<S> <C> <C> <C> <C>
Per Share..................... $ $ $ $
Total......................... $ $ $ $
</TABLE>
Delivery of the shares of common stock will be made on or about
.
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or determined if this
prospectus is truthful or complete. Any representation to the contrary is a
criminal offense.
CREDIT SUISSE FIRST BOSTON SG COWEN
NEEDHAM & COMPANY, INC. ADAMS, HARKNESS & HILL, INC. WIT SOUNDVIEW
The date of this prospectus is February , 2000
<PAGE> 3
[Graphics appearing on inside front cover: Close-up picture of a Front Opening
Unified Pod with the text "Brooks Automation is a leading supplier of
integrated tool and factory automation solutions for the global semiconductor
manufacturing and related industries. Our automation solutions are designed to
optimize semiconductor manufacturing equipment and factory productivity. We
design our solutions to enable our customers to bring products to market faster,
more efficiently and at lower cost."
[Graphics appearing on gatefold following inside front cover: Graphical drawing
of a semiconductor fabrication facility in the center, surrounded by graphical
depictions of the major products groups offered by Brooks: "Vacuum Tools,"
"Atmospheric Tools," "Factory-Tool Interfaces," "Factory Automation Software"
and "Tool Control Software". The upper left corner states "Brooks in the Fab."
<PAGE> 4
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
PROSPECTUS SUMMARY.................... 3
RISK FACTORS.......................... 8
SPECIAL NOTE REGARDING FORWARD-
LOOKING STATEMENTS.................. 15
PRICE RANGE OF COMMON STOCK........... 16
DIVIDEND POLICY....................... 16
USE OF PROCEEDS....................... 16
CAPITALIZATION........................ 17
DILUTION.............................. 18
</TABLE>
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
SELECTED CONSOLIDATED FINANCIAL
DATA................................ 19
PRINCIPAL AND SELLING STOCKHOLDERS.... 20
UNDERWRITING.......................... 23
NOTICE TO CANADIAN RESIDENTS.......... 24
LEGAL MATTERS......................... 25
EXPERTS............................... 25
WHERE YOU CAN FIND MORE INFORMATION... 26
</TABLE>
------------------------
YOU SHOULD RELY ONLY ON THE INFORMATION CONTAINED IN THIS DOCUMENT OR TO
WHICH WE HAVE REFERRED YOU. WE HAVE NOT AUTHORIZED ANYONE TO PROVIDE YOU WITH
INFORMATION THAT IS DIFFERENT. THIS DOCUMENT MAY BE USED ONLY WHERE IT IS LEGAL
TO SELL THESE SECURITIES. THE INFORMATION IN THIS DOCUMENT MAY ONLY BE ACCURATE
ON THE DATE OF THIS DOCUMENT.
------------------------
2
<PAGE> 5
PROSPECTUS SUMMARY
This summary provides an overview of selected information and may not
contain all of the information that is important to you. You should read the
entire prospectus carefully, including the financial data, related notes and the
information we have incorporated by reference before making an investment
decision. Unless otherwise indicated, all information in this prospectus assumes
that the underwriters do not exercise their over-allotment option.
BROOKS AUTOMATION
We are a leading supplier of integrated tool and factory automation
solutions for the global semiconductor manufacturing and related industries. Our
automation solutions are designed to optimize equipment and factory
productivity. These solutions include tool automation modules, complete
semiconductor wafer handling systems and automation software and integration
services. We sell our tool automation products principally to manufacturers of
process equipment used in semiconductor fabrication facilities, or fabs,
including Lam Research, Novellus Systems and ULVAC. We sell our factory
automation products principally to semiconductor manufacturers including Philips
Electronics, STMicroelectronics and Samsung Electronics. We also sell our
products to data storage and flat panel display manufacturers. Based upon data
published by Dataquest, an independent research group, we believe that we are
the largest independent producer of vacuum tool automation systems and a leading
independent producer of tool software and controls.
Semiconductor manufacturers are currently making, and are expected to
continue to make, significant investments in manufacturing capacity by
constructing new semiconductor manufacturing facilities, expanding existing
facilities and upgrading existing equipment. According to Dataquest,
semiconductor manufacturers will spend about $25.1 billion on fab equipment in
2000, and this spending will grow to $38.3 billion by 2002, representing a
compound annual growth rate of 24%. Semiconductor manufacturers face challenges
in achieving and maintaining high production yields, improving use of expensive
facilities and equipment, and managing the logistics of increasingly complex
fabrication processes. Manufacturers seek to meet these challenges by using tool
and fab automation systems to:
- maximize the flow of products through the manufacturing process;
- minimize misprocessing and contamination; and
- monitor and control manufacturing processes and equipment.
As a result, we expect automation to represent a growing portion of
semiconductor capital equipment spending. Dataquest estimates that in 2000
semiconductor and process equipment manufacturers will spend $1.4 billion on
manufacturing automation and control systems and that this number will grow to
$2.4 billion by 2002, representing a compound annual growth rate of 30%.
OUR SOLUTION
We offer integrated automation solutions designed to optimize process tool
and fab productivity. We believe we have demonstrated technological leadership
in our hardware and software product offerings, a direct result of the learning
cycles associated with multiple generations of our products. We design our
solutions to enable our customers to bring products to market faster, more
efficiently and at lower cost. We provide the following benefits to our
customers:
Comprehensive Solution. We offer a comprehensive suite of software and
hardware products to address the needs of the tool and factory automation
markets. We enable our customers to fulfill, from a single source, a significant
portion of their automation requirements. Our integrated solutions provide our
customers with several advantages, including standard maintenance and training,
uniform user interfaces, easier solution deployment and single supplier
accountability.
3
<PAGE> 6
Increased Productivity of Manufacturing Process. Our products are designed
to enable our customers to attain a high level of productivity and performance
when integrated into their manufacturing process. We design our solutions to
improve the following aspects of manufacturing performance:
- tool productivity -- our systems and modules are highly reliable, enable
high wafer throughput and limit contamination;
- factory throughput -- our automation software can simulate and optimize
scheduling of highly complex semiconductor manufacturing processes;
- production yields -- our solutions permit real-time equipment monitoring
and control and off-line production data analysis; and
- capital equipment utilization -- our products provide improved
diagnostics and maintenance management.
Global Service and Support. We provide our customers with an extensive
service and support infrastructure through our operations in North America,
Europe and Asia. We have spare parts and field service, local application and
software engineering capabilities in all of our major markets. Members of
management, many of whom have broad international and industry experience, are
located in North America, Japan, South Korea, Singapore, Taiwan, Germany and the
United Kingdom.
PRODUCTS
Since September 1998, we have completed seven acquisitions that have
increased the breadth and depth of our tool and factory automation product
offerings. Today, the combination of our tool automation solutions with our
factory automation solutions and implementation services provides enabling
technology for improving factory performance. We have 59 U.S. patents and 50
pending U.S. patents including those covering vacuum robot, cluster tool
automation platform, tool interface and material tracking designs. We also have
numerous patents issued or pending in Europe, Japan, China, Taiwan, Korea and
Singapore. In fiscal 1999, we sold our tool and factory automation solutions to
more than 200 customers for use in fabs in North America, Asia and Europe.
Tool Automation. We offer a broad complement of tool automation systems
and service support. Our vacuum and atmospheric tool automation systems include
robots, cluster tool platforms, equipment front end modules, tool-factory
interfaces and mini-environments for isolating processing equipment and
semiconductors. Our equipment solutions for embedded tool control include
controller hardware, control software and communication interfaces.
Factory Automation. We offer many components of both a computer integrated
manufacturing solution and a factory-tool interface automation solution. Our
suite of factory automation software products includes manufacturing execution
systems, cell control, process control, material transport control, data
analysis and graphical display, computerized maintenance management,
manufacturing simulation, material identification and tracking, factory
scheduling and real-time dispatching.
4
<PAGE> 7
STRATEGY
Our goal is to maintain and expand upon our position as a leading
independent supplier of integrated tool and factory automation solutions for the
semiconductor, data storage and flat panel display manufacturing industries. The
principal elements of our strategy are as follows:
Capitalize on the Trend Towards Increased Fab Automation. The robotic
systems integration and tool software expertise that we have developed for our
tool automation systems, coupled with our factory automation software solutions
and factory interface hardware, position us to capitalize on the current trend
towards increased fab automation. We believe several factors are contributing to
this trend, including:
- a greater need to reduce idleness, minimize unscheduled downtime and
increase the efficiency of tools as factory capital costs rise;
- advanced semiconductor materials, such as copper, require new tool sets,
greater process control and improved containment isolation;
- increases in semiconductor wafer sizes to 300mm diameters make human
handling impractical because of the greater weight and value of these
wafers;
- greater complexity of semiconductor manufacturing requires improved fab
scheduling and process control; and
- advances in semiconductor miniaturization requires cleaner, particle-free
production environments.
Capitalize on the Trend Towards Increased Outsourcing. We believe that
process tool manufacturers will outsource more of their automation content as
they focus on their core competencies to meet the demands of more sophisticated
processes. We believe semiconductor manufacturers will also outsource their
internal manufacturing software development and integration efforts as more
comprehensive and integrated solutions become available. We plan to capitalize
on these trends by offering a broader range of integrated solutions.
Offer Integrated Tool and Factory Automation Solutions. As fabs become more
expensive, we believe our customers will demand more fully integrated solutions.
We believe fab efficiency is currently impaired by the difficulty of integrating
various point solutions. We believe we can provide more complete and integrated
solutions that address this customer need.
Pursue Strategic Technology Alliances and Acquisitions. We intend to
continue pursuing strategic alliances and acquisitions that complement our
family of products and enable us to deliver a fully integrated, automation
solution.
------------------------
We are a Delaware corporation. Our principal offices are located at 15
Elizabeth Drive, Chelmsford, Massachusetts 01824 and our telephone number is
(978) 262-2400. Our corporate website is www.brooks.com. The information on our
website is not incorporated by reference in this prospectus.
5
<PAGE> 8
THE OFFERING
Common stock offered by Brooks............ 2,750,000 shares
Common stock offered by the selling
stockholders.............................. 500,000 shares
Common stock to be outstanding after the
offering.................................. 16,098,842 shares
Use of proceeds........................... For working capital and general
corporate
purposes, which may include
leasehold
improvements, equipment purchases,
potential acquisitions and
strategic alliances.
Nasdaq National Market symbol............. BRKS
The number of shares of our common stock to be outstanding immediately
after this offering is based on the number of shares outstanding as of February
4, 2000. It does not include:
- 3,097,693 shares of common stock issuable upon exercise of stock options
outstanding at February 4, 2000, at a weighted average price of $20.59
per share,
- 74,334 shares of common stock reserved for issuance pursuant to our
employee stock purchase plan; and
- 186,388 shares of common stock reserved for issuance pursuant to stock
options not yet granted under all of our stock option plans.
6
<PAGE> 9
SUMMARY CONSOLIDATED FINANCIAL DATA
The pro forma as adjusted balance sheet data in the table below give effect
to:
- the sale of 2,750,000 shares of common stock offered by us at an
assumed offering price of $66.81 per share, and the application of
the net proceeds from the sale of the shares, after deducting the
estimated underwriting discount and estimated offering expenses
payable by us; and
- our acquisition of the businesses of Auto-Soft Corporation and
AutoSimulations, Inc. from Daifuku America Corporation in January
2000 for $27.0 million in cash, 535,404 shares of common stock and a
$16.0 million promissory note due on January 5, 2001.
<TABLE>
<CAPTION>
THREE MONTHS ENDED
FISCAL YEARS ENDED SEPTEMBER 30, DECEMBER 31,
-------------------------------- ------------------
1997 1998 1999 1998 1999
-------- -------- -------- ------- -------
(IN THOUSANDS, EXCEPT PER SHARE DATA)
<S> <C> <C> <C> <C> <C>
STATEMENT OF OPERATIONS DATA:
Revenues....................................... $109,427 $100,252 $103,906 $20,052 $50,280
Gross profit................................... 44,117 26,724 46,029 8,565 24,452
Operating expenses
Research and development................... 22,208 25,376 22,425 4,930 7,140
Selling, general and administrative........ 24,905 27,500 31,631 6,041 12,501
Amortization of acquired intangible
assets................................... -- -- 349 -- 795
Acquisition-related and restructuring
costs.................................... -- 3,722 3,120 -- --
Income (loss) from operations.................. (2,996) (29,874) (11,496) (2,406) 4,016
Income (loss) before income taxes.............. (3,702) (27,244) (8,899) (1,728) 4,673
Net income (loss).............................. (4,169) (22,563) (7,884) (1,531) 2,865
Accretion and dividends on preferred stock..... 1,005 1,420 654 225 --
Net income (loss) attributable to common
stockholders................................. (5,174) (23,983) (8,538) (1,756) 2,865
Diluted income (loss) per share................ $ (0.66) $ (2.32) $ (0.76) $ (0.16) $ 0.21
Shares used in computing diluted earnings
(loss) per share............................. 7,880 10,337 11,192 11,087 13,411
SUPPLEMENTAL DATA:
Depreciation and amortization.................. $ 6,496 $ 8,545 $ 10,443 $ 1,771 $ 2,627
Capital expenditures (excluding
acquisitions)................................ $ 7,994 $ 4,575 $ 5,716 $ 1,313 $ 3,346
Net income (loss) before amortization of
acquired intangible assets................... $ (5,174) $(23,983) $ (8,329) $(1,756) $ 3,342
Diluted income (loss) per share before
amortization of acquired intangible assets... $ (0.66) $ (2.32) $ (0.74) $ (0.16) $ 0.25
</TABLE>
<TABLE>
<CAPTION>
AS OF
DECEMBER 31, 1999
----------------------
PRO
FORMA
AS
ACTUAL ADJUSTED
-------- -----------
<S> <C> <C>
BALANCE SHEET DATA:
Cash and cash equivalents................................... $ 61,097 $212,144
Total assets................................................ 183,794 400,754
Long-term debt (including current portion).................. 1,214 18,422
Total stockholders' equity.................................. $145,055 $332,438
</TABLE>
7
<PAGE> 10
RISK FACTORS
This offering involves a high degree of risk. You should carefully consider
the risks described below and the other information in this prospectus before
deciding to invest in shares of our common stock. While these are the risks and
uncertainties we believe are most important for you to consider, you should know
that they are not the only risks or uncertainties facing us or which may
adversely affect our business. If any of the following risks or uncertainties
actually occur, our business, financial condition and operating results would
likely suffer. In that event, the market price of our common stock could decline
and you could lose all or part of the money you paid to buy our common stock.
RISKS RELATING TO OUR OPERATIONS
The Cyclical Demand of Semiconductor Manufacturers Affects our Operating
Results. Our business is significantly dependent on capital expenditures by
semiconductor manufacturers. The level of semiconductor manufacturers' capital
expenditures is dependent on the current and anticipated market demand for
semiconductors. Demand for semiconductors is cyclical and has historically
experienced periodic downturns. During these downturns, our revenues have
dropped and we have incurred losses. We believe that downturns in the
semiconductor manufacturing industry will occur in the future and will result in
decreased demand for our products. Despite the addition of our factory
automation business in fiscal 1999, our financial results will continue to be
dependent on capital expenditures by semiconductor manufacturers. Downturns in
the semiconductor business, when fewer new facilities are being built, could
harm our financial results as have downturns in the past.
Our Sales Volume Depends on the Sales Volume of our Original Equipment
Manufacturer Customers. We sell a majority of our tool automation products to
original equipment manufacturers who incorporate our products into their
equipment. Therefore, our revenues are directly dependent on the ability of
these customers to develop and market their equipment in a timely,
cost-effective manner.
We Rely on a Small Number of Customers for a Large Portion of our
Revenues. We receive a significant portion of our revenues in each fiscal
period from a limited number of customers. The loss of one or more of these
major customers, or a decrease in orders by one or more customers, would
adversely affect our business. Sales to our ten largest customers accounted for
56% of total revenues in the three months ended December 31, 1999 and 63% of
total revenues in fiscal 1999. Sales to Lam Research Corporation, our largest
customer, accounted for approximately 14% of total revenues in the three months
ended December 31, 1999 and 15% of our total revenues in 1999.
Delays in Shipment of a Few of our Large Orders Could Substantially
Decrease our Revenues. Historically, a substantial portion of our quarterly and
annual revenues came from sales of a small number of large orders. These orders
consist of products with high selling prices compared to our other products. As
a result, the timing of the recognition of revenue from one of these large
orders can have a significant impact on our total revenues and operating results
for a particular period. Our operating results could be harmed if even a small
number of large orders are canceled or rescheduled by customers or cannot be
filled due to delays in manufacturing, testing, shipping or product acceptance.
We Have Significant Fixed Costs which are not Easily Reduced if Revenues
Fall Below Expectations. Our expense levels are based in part on our future
revenue expectations. Many of our expenses, particularly those relating to
capital equipment and manufacturing overhead, are relatively fixed. If we do not
meet our sales goals we may be unable to rapidly reduce these fixed costs. Our
ability to reduce expenses is further constrained because we must continue to
invest in research and development to maintain our competitive position and to
maintain service and support for our existing global customer base. Accordingly,
if we suffer an unexpected downturn in revenue, our inability to reduce fixed
costs rapidly could increase the adverse impact on our results of operations.
Our Lengthy Sales Cycle Requires us to Incur Significant Expenses with No
Assurance that we Will Generate Revenue. Our tool automation products are
generally incorporated into original equipment manufacturer equipment at the
design stage. To obtain new business from our original equipment
8
<PAGE> 11
manufacturer customers, we must develop products for selection by a potential
customer at the design stage. This often requires us to make significant
expenditures without any assurance of success. The original equipment
manufacturer's design decisions often precede the generation of volume sales, if
any, by a year or more. We also must complete successfully a lengthy evaluation
period before we can achieve volume sales of our manufacturing execution system
software and process optimization software to our factory automation customers.
We cannot guarantee that we will continue to achieve design wins or satisfy
evaluations by our factory automation customers of our software. We cannot
guarantee that the equipment manufactured by our original equipment
manufacturing customers will be commercially successful. If we or our original
equipment manufacturing customers fail to develop and introduce new products
successfully and in a timely manner, our business and financial results will
suffer.
Our International Business Operations Expose us to a Number of Difficulties
in Coordinating our Activities Abroad and in Dealing with Multiple Regulatory
Environments. Approximately 52% of our total revenues in the three months ended
December 31, 1999 and 41% of our total revenues in fiscal 1999 were derived from
customers located outside North America. We anticipate that international sales
will continue to account for a significant portion of our revenues. Our vendors
are located in several different foreign countries. As a result of our
international business operations, we are subject to various risks, including:
- difficulties in staffing and managing operations in multiple locations in
many countries;
- challenges presented by collecting trade accounts receivable in foreign
jurisdictions;
- possible adverse tax consequences;
- governmental currency controls;
- changes in various regulatory requirements;
- political and economic changes and disruptions; and
- export/import controls and tariff regulations.
To support our international customers, we maintain locations in several
countries, including Japan, South Korea, Germany, United Kingdom, Malaysia,
Taiwan, Singapore and Canada. We cannot guarantee that we will be able to manage
these operations effectively. We cannot assure you that our investment in these
international operations will enable us to compete successfully in international
markets or to meet the service and support needs of our customers, some of whom
are located in countries where we have no infrastructure.
Although our international sales are primarily denominated in U.S. dollars,
changes in currency exchange rates can make it more difficult for us to compete
with foreign manufacturers on price. If our international sales increase
relative to our total revenues, these factors could have a more pronounced
effect on our operating results.
We Must Continually Improve our Technology to Remain
Competitive. Technology changes rapidly in the semiconductor, data storage and
flat panel display manufacturing industries. We believe our success will depend
upon our ability to enhance our existing products and to develop and market new
products to meet customer needs. We cannot guarantee that we will identify and
adjust to changing market conditions or succeed in introducing commercially
rewarding products or product enhancements. The success of our product
development and introduction depends on a number of factors, including:
- accurately identifying and defining new products;
- completing and introducing new product designs in a timely manner;
- market acceptance of our products and our customers' products; and
- determining a comprehensive, integrated product strategy.
We Face Significant Competition Which Could Result in Decreased Demand for
Our Products or Services. The markets for our products are intensely
competitive and we may not be able to compete
9
<PAGE> 12
successfully. We believe that our primary competition in the tool automation
market is from integrated original equipment manufacturers that satisfy their
semiconductor and flat panel display handling needs themselves rather than by
purchasing systems or modules from an independent supplier like us. Many of
these original equipment manufacturers have substantially greater resources than
we do. Applied Materials, Inc., the leading process equipment original equipment
manufacturer, develops and manufactures its own central wafer handling systems
and modules. We may not be successful in selling our products to original
equipment manufacturers that currently satisfy their wafer or substrate handling
needs themselves, regardless of the performance or the price of our products.
Moreover, integrated original equipment manufacturers may begin to commercialize
their handling capabilities and become our competitors.
We believe that the primary competitive factors in the end-user
semiconductor manufacturer market for factory automation software and process
control software are product functionality, price/performance, ease of use,
hardware and software platform compatibility, vendor reputation and financial
stability. The relative importance of these competitive factors may change over
time. We directly compete in this market with various competitors, including
Applied Materials-Consilium, PRI-Promis, IBM-Poseidon and numerous small,
independent software companies. We also compete with the in-house software
staffs of semiconductor manufacturers like NEC. Most of those manufacturers have
substantially greater resources than us.
We believe that the primary competitive factors in the factory interface
market are technical and technological capabilities, reliability,
price/performance, ease of integration and global sales and support capability.
In this market, we compete directly with Asyst, Fortrend, Kensington and Rorze.
Some of these competitors have substantial financial resources and extensive
engineering, manufacturing and marketing capabilities.
We believe our sale of products for the flat panel display process
equipment market is heavily dependent upon our penetration of the Japanese
market. In addressing the Japanese markets, we may be at a competitive
disadvantage to Japanese suppliers that, historically, have been the supplier of
choice to these markets.
Much of our Success and Value Lies in our Ownership and Use of Intellectual
Property and our Failure to Protect That Property Could Adversely Affect our
Future Growth. Our ability to compete is heavily affected by our ability to
protect our intellectual property. We rely primarily on trade secret laws,
confidentiality procedures, patents, copyrights, trademarks and licensing
arrangements to protect our intellectual property. The steps we have taken to
protect our technology may be inadequate. Existing trade secret, trademark and
copyright laws offer only limited protection. Our patents could be invalidated
or circumvented. The laws of certain foreign countries in which our products are
or may be developed, manufactured or sold may not fully protect our products or
intellectual property rights. This may make the possibility of piracy of our
technology and products more likely. We cannot guarantee that the steps we have
taken to protect our intellectual property will be adequate to prevent
misappropriation of our technology. There has been substantial litigation
regarding patent and other intellectual property rights in semiconductor-related
industries. We may engage in litigation to:
- enforce our patents;
- protect our trade secrets or know-how;
- defend ourselves against claims we infringe the rights of others; or
- determine the scope and validity of the patents or intellectual property
rights of others.
Any litigation could result in substantial cost to us and divert the
attention of our management, which could harm our operating results.
Our Operations Could Infringe on the Intellectual Property Rights of
Others. Particular aspects of our technology could be found to infringe on the
intellectual property rights or patents of others. Other companies may hold or
obtain patents on inventions or may otherwise claim proprietary rights to
technology necessary to our business. We cannot predict the extent to which we
may be required to seek
10
<PAGE> 13
licenses or alter our products so that they no longer infringe the rights of
others. We cannot guarantee that the terms of any licenses we may be required to
seek will be reasonable. Similarly, changing our products or processes to avoid
infringing the rights of others may be costly or impractical or could detract
from the value of our products.
Our Business May be Harmed by Infringement Claims of General Signal or
Applied Materials. We received notice from General Signal Corporation alleging
infringements of its patent rights by certain of our products. The notification
advised us that General Signal was attempting to enforce its rights to those
patents in litigation against Applied Materials, and that, at the conclusion of
that litigation, General Signal intended to enforce its rights against us and
others. According to a press release issued by Applied Materials in November
1997, Applied Materials settled its litigation with General Signal by acquiring
ownership of five General Signal patents. Although not verified by us, these
five patents would appear to be the patents referred to by General Signal in its
prior notice to us. Applied Materials has not contacted us regarding these
patents.
We do not have Long-Term Contracts with our Customers and our Customers may
Cease Purchasing our Products at Any Time. We generally do not have long-term
contracts with our customers. As a result, our agreements with our customers do
not provide any assurance of future sales. Accordingly:
- our customers can cease purchasing our products at any time without
penalty;
- our customers are free to purchase products from our competitors;
- we are exposed to competitive price pressure on each order; and
- our customers are not required to make minimum purchases.
Year 2000 Readiness; Year 2000 Problems Could Disrupt our Business. The
year 2000 problem is the potential for system and processing failure of
date-related data as the result of computer-controlled systems using two digits
rather than four digits to define the applicable year. This could result in
system failure or miscalculations causing disruptions of operations, including,
among other things, temporary inability to process transactions, send invoices,
or engage in similar normal business activities. Problems associated with the
year 2000 may not become apparent until some time after January 2000.
We have evaluated our internal software and products for year 2000
problems. We believe that our products and business will not be substantially
affected by the year 2000 problem and that we have no significant exposure to
liabilities related to the year 2000 problem for the products that we have sold.
We have also communicated with others, including suppliers and customers whose
computer systems' functionality could directly impact our operations.
Although we believe our planning efforts are adequate to address our year
2000 concerns, undetected year 2000 problems may cause us to experience negative
consequences or significant costs. We cannot be sure that our suppliers,
customers or businesses that we may acquire will not experience similar
consequences or costs. Such consequences or costs could adversely affect our
business.
RISKS RELATING TO OUR GROWTH
Rapid Growth is Straining our Operations and Requiring us to Incur Costs to
Upgrade our Infrastructure. During the last two quarters, we have experienced
extremely rapid growth in our operations, the number of our employees, our
product offerings and the geographic area of our operations. Our growth places a
significant strain on our management, operations and financial systems. Our
future operating results will be dependent in part on our ability to continue to
implement and improve our operating and financial controls and management
information systems. If we fail to manage our growth effectively, our financial
condition, results of operations and business could be materially adversely
affected.
Our Operating Results Would Be Harmed if One of our Key Suppliers Fails to
Deliver Components for Our Products. We currently procure many of our
components on an as needed, purchase order basis. We do not carry significant
inventories or have any long-term supply contracts with our vendors. With the
11
<PAGE> 14
recent increased demand for semiconductor manufacturing equipment, our suppliers
are facing significant challenges in providing components on a timely basis. Our
inability to obtain components in required quantities or of acceptable quality
could result in significant delays or reductions in product shipments. This
would materially and adversely affect our operating results.
Our Business Could be Harmed if We Fail to Adequately Integrate the
Operations of Our Acquisitions. Our management must devote substantial time and
resources to the integration of the operations of our acquired businesses with
our business and with each other. If we fail to accomplish this integration
efficiently, we may not realize the anticipated benefits of our acquisitions.
The process of integrating supply and distribution channels, research and
development initiatives, computer and accounting systems and other aspects of
the operation of our acquired businesses, presents a significant challenge to
our management. This is compounded by the challenge of simultaneously managing a
larger entity. We have completed a number of acquisitions in a short period of
time. These businesses have operations and personnel located in Asia, Europe and
the United States and present a number of additional difficulties of
integration, including:
- difficulties in the assimilation of products and designs into integrated
solutions;
- difficulties in informing customers, suppliers and distributors of the
effects of the acquisitions and integrating them into our overall
operations;
- difficulties integrating personnel with disparate business backgrounds
and cultures;
- difficulties in defining and executing a comprehensive product strategy;
- difficulties in managing geographically remote units;
- difficulties associated with managing the risks of entering markets or
types of businesses in which we have limited or no direct experience; and
- difficulties in minimizing the loss of key employees of the acquired
businesses.
If we delay integrating or fail to integrate an acquired business or
experience other unforeseen difficulties, the integration process may require a
disproportionate amount of our management's attention and financial and other
resources. Our failure to adequately address these difficulties could harm our
business and financial results.
Our Business May be Harmed by Acquisitions We Complete in the Future. We
plan to continue to pursue additional acquisitions of related businesses. Our
identification of suitable acquisition candidates involves risks inherent in
assessing the values, strengths, weaknesses, risks and profitability of
acquisition candidates, including the effects of the possible acquisition on our
business, diversion of our management's attention and risks associated with
unanticipated problems or latent liabilities. If we are successful in pursuing
future acquisitions, we will be required to expend significant funds, incur
additional debt or issue additional securities, which may negatively affect our
results of operations and be dilutive to our stockholders. If we spend
significant funds or incur additional debt, our ability to obtain financing for
working capital or other purposes could decline and we may be more vulnerable to
economic downturns and competitive pressures. We cannot guarantee that we will
be able to finance additional acquisitions or that we will realize any
anticipated benefits from acquisitions that we complete. Should we successfully
acquire another business, the process of integrating acquired operations into
our existing operations may result in unforeseen operating difficulties and may
require significant financial resources that would otherwise be available for
the ongoing development or expansion of our existing business.
We May not be Able to Recruit and Retain Necessary Personnel Because of
Intense Competition for Highly Skilled Personnel. We need to hire and retain
substantial numbers of employees with technical backgrounds for both our
hardware and software engineering and support staffs. The market for these
employees is intensively competitive, and we have occasionally experienced
delays in hiring these personnel. Due to the cyclical nature of the demand for
our products, we have had to reduce our workforce and then rebuild our workforce
as our business has gone through downturns followed by upturns.
12
<PAGE> 15
We currently need to hire a number of highly skilled employees, especially in
manufacturing, to meet customer demand. Due to the competitive nature of the
labor markets in which we operate, this type of employment cycle increases our
risk of not being able to retain and recruit key personnel. Our inability to
recruit, retain and train adequate numbers of qualified personnel on a timely
basis could adversely affect our ability to develop, manufacture, install and
support our products.
RISKS RELATING TO OUR COMMON STOCK
Our Operating Results Fluctuate Significantly, Which Could Negatively
Impact our Business and our Stock Price. Our margins, revenues and other
operating results can fluctuate significantly from quarter to quarter depending
upon a variety of factors, including:
- the level of demand for semiconductors in general;
- cycles in the market for semiconductor manufacturing equipment and
automation software;
- the timing and size of orders from our customer base;
- our ability to manufacture, test and deliver products in a timely and
cost-effective manner;
- our success in winning competitions for orders;
- the timing of our new product announcements and releases and those of our
competitors;
- the mix of products sold by us;
- competitive pricing pressures; and
- the level of automation required in fab extensions, upgrades and new
facilities.
We entered into the factory automation software business in fiscal 1999. We
believe a substantial portion of our revenues from this business will be
dependent on achieving project milestones. As a result, our revenue from this
business will be subject to fluctuations depending upon a number of factors,
including whether we can achieve project milestones on a timely basis, if at
all, as well as the timing and size of projects.
The Volatility of our Stock Price Could Adversely Affect an Investment in
our Stock. The market price of our common stock has fluctuated widely. For
example, between August 25, 1999 and August 31, 1999, the price of our common
stock dropped from approximately $25.13 to $21.75 per share. Between January 4,
2000 and January 27, 2000, the price of our common stock rose from approximately
$30.63 to $54.44 per share. Consequently, the current market price of our common
stock may not be indicative of future market prices, and we may not be able to
sustain or increase the value of an investment in our common stock. Factors
affecting our stock price may include:
- variations in operating results from quarter to quarter;
- changes in earnings estimates by analysts or our failure to meet
analysts' expectations;
- changes in the market price per share of our public company customers;
- market conditions in the industry;
- general economic conditions;
- low trading volume of our common stock; and
- the number of firms making a market in our common stock.
In addition, the stock market has recently experienced extreme price and
volume fluctuations. These fluctuations have particularly affected the market
prices of the securities of high technology companies like us. These market
fluctuations could adversely affect the market price of our common stock.
13
<PAGE> 16
Because a Limited Number of Stockholders, Including a Member of Our
Management Team, Own a Substantial Number of our Shares and are Parties to
Voting Agreements, Decisions May be Made by Them That are Detrimental to Your
Interests. By virtue of their stock ownership and voting agreements, Robert J.
Therrien, our president and chief executive officer, Jenoptik A.G. and Daifuku
America Corporation have the power to significantly influence our affairs and
are able to influence the outcome of matters required to be submitted to
stockholders for approval, including the election of our directors, amendments
of our certificate of incorporation, mergers, sales of assets and other
acquisitions or sales. We cannot assure you that these stockholders will not
exercise their influence over us in a manner detrimental to your interests. Upon
completion of this offering, Mr. Therrien will hold approximately 5.3% of our
common stock, M+W Zander Holding GmbH, a subsidiary of Jenoptik, will hold
approximately 5.4% of our common stock and Daifuku America Corporation, the U.S.
affiliate of Daifuku Co. Ltd. of Japan, will hold approximately 2.4% of our
common stock. Collectively, these stockholders will hold approximately 13.1% of
our outstanding common stock. On September 30, 1999 we entered into a
stockholder agreement with Mr. Therrien, M+W and Jenoptik. Under this agreement,
until M+W no longer holds all of the shares received from us when we acquired
the Infab Division from Jenoptik or until September 30, 2004, whichever occurs
first, we agree to nominate a reasonably acceptable Jenoptik designee to our
board of directors in each election of our directors. Mr. Therrien agreed to
vote all his shares in favor of Jenoptik's nominee. Jenoptik agreed to vote in
favor of the other candidates to our board of directors that are nominated by
our existing board. Jenoptik also agreed to vote for other matters in the same
proportion as the votes cast by the other holders of our common stock. On
January 6, 2000, in connection with our acquisition of Auto-Soft Corporation and
AutoSimulations, Inc. from Daifuku America Corporation, we entered into a
stockholder agreement with Daifuku America Corporation and Daifuku Co., Ltd.
Under the stockholder agreement, Daifuku agreed to vote all of its shares of our
common stock at each meeting of our stockholders in accordance with the
recommendation of our board of directors.
Provisions of our Certificate of Incorporation, Bylaws and Contracts May
Discourage Takeover Offers and may Limit the Price Investors Would be Willing to
Pay for our Common Stock. Our certificate of incorporation and bylaws contain
provisions that may make an acquisition of us more difficult and discourage
changes in our management. These provisions could limit the price that certain
investors might be willing to pay in the future for shares of our common stock.
In addition, we have adopted a rights plan. In many potential takeover
situations, rights issued under the plan become exercisable to purchase our
common stock at a price substantially discounted from the then applicable market
price of our common stock. Because of its possible dilutive effect to a
potential acquiror, the rights plan would generally discourage third parties
from proposing a merger with or initiating a tender offer for us that is not
approved by our board of directors. Accordingly, the rights plan could have an
adverse impact on our stockholders who might want to vote in favor of the merger
or participate in the tender offer. In addition, shares of our preferred stock
may be issued upon terms the board of directors deems appropriate without
stockholder approval. Our ability to issue preferred stock in such a manner
could enable our board of directors to prevent changes in our management or
control.
14
<PAGE> 17
SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS
This prospectus and the documents we have filed with the Securities and
Exchange Commission which we have referenced on page 26 contain forward-looking
statements within the meaning of Section 27A of the Securities Act of 1933.
These statements involve known and unknown risks, uncertainties and other
factors which may cause our or our industry's actual results, performance or
achievements to be materially different from any future results, performance or
achievements expressed or implied by the forward-looking statements.
Forward-looking statements include, but are not limited to statements regarding:
- market acceptance of new products;
- competition in the industry;
- the ability to satisfy demand for our products;
- exchange rate fluctuations;
- the availability of debt and equity financing;
- the development of new competitive technologies;
- the availability of key components for our products;
- future acquisitions;
- the availability of qualified personnel;
- international, national, regional and local economic and political
changes;
- general economic conditions; and
- trends affecting the semiconductor industry, our financial conditions or
results of operations.
In some cases, you can identify forward-looking statements by terms such as
"may," will," "should," "could," "would," "expects," "plans," "anticipates,"
"believes," "estimates," "projects," "predicts," "potential" and similar
expressions intended to identify forward-looking statements. These statements
reflect our current views with respect to future events and are based on
assumptions and subject to risks and uncertainties. Given these uncertainties,
you should not place undue reliance on these forward-looking statements. We
discuss many of these risks in greater detail under the heading "Risk Factors."
Also, these forward-looking statements represent our estimates and assumptions
only as of the date of this prospectus.
You should read this prospectus and the documents that we incorporate by
reference in this prospectus completely and with the understanding that our
actual future results may be materially different from what we expect. We may
not update these forward-looking statements, even though our situation may
change in the future. We qualify all of our forward-looking statements by these
cautionary statements.
15
<PAGE> 18
PRICE RANGE OF COMMON STOCK
Our common stock is traded on the Nasdaq National Market under the symbol
"BRKS." The following table sets forth, for the periods indicated, the high and
low sales prices per share of our common stock, as reported by the Nasdaq
National Market:
<TABLE>
<CAPTION>
PRICE RANGE
----------------
HIGH LOW
------ ------
<S> <C> <C>
CALENDAR YEAR 1998:
First Quarter.............................................. $19.25 $13.00
Second Quarter............................................. 17.50 11.38
Third Quarter.............................................. 13.25 8.13
Fourth Quarter............................................. 17.44 8.25
CALENDAR YEAR 1999:
First Quarter.............................................. $26.38 $14.50
Second Quarter............................................. 28.38 16.75
Third Quarter.............................................. 30.63 17.38
Fourth Quarter............................................. 34.25 16.69
CALENDAR YEAR 2000:
First Quarter (through February 10, 2000).................. $68.88 $29.75
</TABLE>
On February 10, 2000, the closing price reported on the Nasdaq National
Market for our common stock was $66.81 per share. On February 10, 2000 there
were approximately 294 holders of record of our common stock.
DIVIDEND POLICY
Other than dividends paid by one of our subsidiaries prior to its
acquisition by us, we have never paid or declared any cash dividends on our
capital stock and do not plan to pay any cash dividends in the foreseeable
future. Our current policy is to retain all of our earnings to finance future
growth. Our lending arrangement prohibits the payment of dividends without the
prior approval of our lender.
USE OF PROCEEDS
We estimate that the net proceeds to us from the sale of the 2,750,000
shares of common stock we are offering will be approximately $172.7 million. If
the underwriters fully exercise the over-allotment option, the net proceeds to
us will be approximately $193.5 million. For the purpose of estimating net
proceeds, we are assuming that the public offering price will be $66.81 per
share. "Net proceeds" is what we expect to receive after we pay the underwriting
discount and other estimated expenses for this offering. We will not receive any
portion of the proceeds from the sale of shares of common stock by the selling
stockholders.
We expect to use the net proceeds for general corporate purposes, including
working capital, leasehold improvements and capital equipment. We may also use a
portion of the net proceeds to acquire additional businesses, products and
technologies, or to establish strategic alliances that we believe will
complement our current or future business. We have entered into a letter of
intent to acquire a software business for approximately $300,000 in cash,
$300,000 in the form of shares of our common stock and an ongoing royalty
payment upon achievement of milestones. While we are engaged in discussions
regarding other potential strategic acquisitions, as of the date of this
prospectus we do not have any agreements or commitments to enter into any
acquisitions and have not allocated a specific amount of the net proceeds for
this purpose.
We will retain broad discretion in the allocation of the net proceeds of
this offering. Pending the uses described above, we intend to invest the net
proceeds of this offering in short-term interest-bearing securities. We cannot
predict whether the proceeds will be invested to yield a favorable return.
16
<PAGE> 19
CAPITALIZATION
The following table presents our capitalization as of December 31, 1999:
- on an actual basis;
- on a pro forma basis to reflect our acquisition of the businesses of
Auto-Soft Corporation and AutoSimulations, Inc. from Daifuku America
Corporation in January 2000 for $27.0 million in cash, 535,404 shares of
common stock and a $16.0 million promissory note due on January 5, 2001;
and
- on a pro forma as adjusted basis to reflect the acquisition and the sale
of 2,750,000 shares of common stock we are offering with this prospectus
at an estimated offering price of $66.81 per share, and the application
of the proceeds, net of the estimated underwriting discount and our
estimated expenses.
This table should be read together with our consolidated financial
statements and the notes to those financial statements that are incorporated by
reference and which we have referenced on page 26.
<TABLE>
<CAPTION>
AS OF DECEMBER 31, 1999
----------------------------------
PRO FORMA
ACTUAL PRO FORMA AS ADJUSTED
-------- --------- -----------
(IN THOUSANDS)
<S> <C> <C> <C>
Cash and cash equivalents............................. $ 61,097 $ 39,488 $212,144
======== ======== ========
Long-term debt and capital lease obligations
(including current portion)......................... $ 1,214 $ 18,422 $ 18,422
-------- -------- --------
Stockholders' equity:
Common stock........................................ 128 133 161
Additional paid-in capital.......................... 168,982 183,704 356,332
Deferred compensation............................... (58) (58) (58)
Accumulated other comprehensive loss................ (1,210) (1,210) (1,210)
Accumulated deficit................................. (22,787) (22,787) (22,787)
-------- -------- --------
Total stockholders' equity..................... 145,055 159,782 332,438
-------- -------- --------
Total capitalization...................... $146,269 $178,204 $350,860
======== ======== ========
</TABLE>
The total number of shares of outstanding common stock, as adjusted for
this offering, excludes:
- 3,097,693 shares of common stock issuable upon exercise of stock options
outstanding at February 4, 2000, at a weighted average price of $20.59
per share;
- 74,334 shares of common stock reserved for issuance pursuant to our
employee stock purchase plan; and
- 186,388 shares of common stock reserved for issuance pursuant to stock
options not yet granted under all of our stock option plans.
We also have submitted proposals to our stockholders to establish a new
option plan which reserves an additional 1,000,000 shares of common stock for
future issuance and to increase the number of shares of common stock issuable
under our employee stock purchase plan by an additional 500,000 shares. Our
stockholders are scheduled to accept or reject these proposals at our annual
meeting, which is scheduled for February 24, 2000.
17
<PAGE> 20
DILUTION
Our net tangible book value as of December 31, 1999 was approximately
$133.4 million, or $10.44 per share. Net tangible book value per share
represents the amount of our total tangible assets less total liabilities
divided by the total number of shares of common stock outstanding. After giving
effect to: (1) the sale by us of 2,750,000 shares of common stock offered by
this prospectus at an assumed offering price of $66.81 per share and after
deducting estimated underwriting discount and offering expenses; and (2) our
acquisition of the businesses of Auto-Soft Corporation and AutoSimulations, Inc.
from Daifuku America Corporation in January 2000 for $27.0 million in cash,
535,404 shares of common stock and a $16.0 million promissory note due on
January 5, 2001, our pro forma net tangible book value at December 31, 1999
would have been approximately $272.1 million, or $16.94 per share. This
represents an immediate increase in net tangible book value of $6.50 per share
to existing stockholders and an immediate dilution of $49.87 per share to new
investors in this offering, as illustrated by the following table:
<TABLE>
<S> <C> <C>
Assumed public offering price per share.................... $66.81
Net tangible book value per share before the offering.... $10.44
Increase per share attributable to new investors......... $ 6.50
------
Pro forma net tangible book value per share after the
offering................................................. $16.94
------
Pro forma net tangible book value dilution per share to new
investors................................................ $49.87
======
</TABLE>
This discussion of dilution, and the table quantifying it, assume no
exercise of any outstanding stock options. The exercise of stock options
outstanding under our stock option plans having an exercise price less than the
offering price would increase the dilutive effect to new investors.
18
<PAGE> 21
SELECTED CONSOLIDATED FINANCIAL DATA
The following selected historical consolidated financial data has been
derived from our historical consolidated financial statements including our
notes, and should be read in conjunction with these consolidated financial
statements and notes. Our historical consolidated financial statements as of
September 30, 1998 and 1999 and for the three years in the period ended
September 30, 1999 were audited by PricewaterhouseCoopers LLP, independent
public accountants and are incorporated herein by reference. See "Where You Can
Find More Information" on page 26. Our historical financial data as of and for
the interim periods presented below have been prepared on the same basis as that
derived from historical financial statements prepared on an annual basis and, in
the opinion of our management, includes all adjustments, consisting of normal
recurring adjustments, necessary for a fair presentation of our financial
position and result of our operations as of these dates and for these periods.
The results of the interim periods are not necessarily indicative of the results
to be expected for future periods.
<TABLE>
<CAPTION>
THREE MONTHS
ENDED
FISCAL YEARS ENDED SEPTEMBER 30, DECEMBER 31,
--------------------------------------------------- -----------------
1995 1996 1997 1998 1999 1998 1999
------- -------- -------- -------- -------- ------- -------
STATEMENT OF OPERATIONS DATA: (IN THOUSANDS, EXCEPT PER SHARE DATA)
<S> <C> <C> <C> <C> <C> <C> <C>
Revenues............................................. $68,488 $112,730 $109,427 $100,252 $103,906 $20,052 $50,280
Cost of revenues.................................... 34,084 57,961 65,310 73,528 57,877 11,487 25,828
------- -------- -------- -------- -------- ------- -------
Gross profit......................................... 34,404 54,769 44,117 26,724 46,029 8,565 24,452
------- -------- -------- -------- -------- ------- -------
Operating expenses
Research and development............................ 12,617 20,315 22,208 25,376 22,425 4,930 7,140
Selling, general and administrative................. 15,475 23,798 24,905 27,500 31,631 6,041 12,501
Amortization of acquired intangible assets.......... -- -- -- -- 349 -- 795
Acquisition-related and restructuring costs......... -- 230 -- 3,722 3,120 -- --
------- -------- -------- -------- -------- ------- -------
Total operating expenses.......................... 28,092 44,343 47,113 56,598 57,525 10,971 20,436
------- -------- -------- -------- -------- ------- -------
Income (loss) from operations........................ 6,312 10,426 (2,996) (29,874) (11,496) (2,406) 4,016
Interest income...................................... 637 435 234 3,629 3,150 771 643
Interest expense..................................... 529 471 940 999 368 75 38
Other income (expense)............................... -- -- -- -- (225) (18) (41)
------- -------- -------- -------- -------- ------- -------
Income (loss) before income taxes and minority
interests........................................... 6,420 10,390 (3,702) (27,244) (8,939) (1,728) 4,580
------- -------- -------- -------- -------- ------- -------
Income tax provision (benefit)....................... 1,705 3,920 467 (4,681) (1,015) (197) 1,808
------- -------- -------- -------- -------- ------- -------
Income (loss) before minority interests.............. 4,715 6,470 (4,169) (22,563) (7,924) (1,531) 2,772
Minority interests in loss of consolidated
subsidiary.......................................... -- -- -- -- (40) -- (93)
------- -------- -------- -------- -------- ------- -------
Net income (loss).................................... 4,715 6,470 (4,169) (22,563) (7,884) (1,531) 2,865
======= ======== ======== ======== ======== ======= =======
Accretion and dividends on preferred stock........... (521) (521) (1,005) (1,420) (654) (225) --
------- -------- -------- -------- -------- ------- -------
Net income (loss) attributable to common
stockholders........................................ $ 4,194 $ 5,949 $ (5,174) $(23,983) $ (8,538) $(1,756) $ 2,865
======= ======== ======== ======== ======== ======= =======
Income (loss) per share attributable to common
stockholders
Basic............................................... $ 0.69 $ 0.77 $ (0.66) $ (2.32) $ (0.76) $ (0.16) $ 0.22
Diluted............................................. $ 0.55 $ 0.65 $ (0.66) $ (2.32) $ (0.76) $ (0.16) $ 0.21
Shares used in computing income (loss) per share:
Basic............................................... 6,118 7,681 7,880 10,337 11,192 11,087 12,769
Diluted............................................. 7,685 9,161 7,880 10,337 11,192 11,087 13,411
</TABLE>
<TABLE>
<CAPTION>
AS OF SEPTEMBER 30,
---------------------------------------------------- AS OF
1995 1996 1997 1998 1999 DECEMBER 31, 1999
------- ------- -------- -------- -------- -----------------
BALANCE SHEET DATA: (IN THOUSANDS)
<S> <C> <C> <C> <C> <C> <C>
Cash and cash equivalents.......................... $17,637 $ 6,653 $ 77,333 $ 69,479 $ 66,366 $ 61,097
Total assets....................................... 66,379 80,693 166,292 145,321 177,145 183,794
Long-term debt (including current portion)......... 2,785 3,900 3,427 3,849 1,338 1,214
Total stockholders' equity......................... $38,883 $47,904 $128,797 $118,634 $142,146 $145,055
</TABLE>
Revenues in the statement of operations data table above include revenues from a
related party of $10.5 million, $19.1 million, $18.2 million, $15.9 million and
$15.3 million in fiscal 1995, 1996, 1997, 1998 and 1999, respectively, and
$738,000 and $7.0 million for the quarters ended December 31, 1998 and 1999,
respectively.
19
<PAGE> 22
PRINCIPAL AND SELLING STOCKHOLDERS
The following table provides information known to us regarding the
beneficial ownership of our common stock as of February 4, 2000, and as adjusted
to reflect the sale of common stock offered by this prospectus, for each of the
following:
- each selling stockholder;
- each of our named executive officers in the Summary Compensation Table
contained in the Proxy Statement for Annual Meeting of the Stockholders
to be held on February 24, 2000;
- each of our directors;
- all named executive officers and directors as a group; and
- each person who beneficially owns more than 5% of our common stock.
Unless otherwise indicated, to our knowledge, each person identified
possesses sole voting and investment power with respect to the shares listed
except to the extent shared by such person's spouse under applicable law.
We have granted the underwriters an option to purchase a maximum of 330,500
additional shares to cover over-allotments of shares. Some of the selling
stockholders have granted the underwriters an option to purchase a maximum of
157,000 additional shares to cover over-allotments of shares. If the
underwriters exercise their over-allotment option, the underwriters will
purchase the first 100,000 shares from Daifuku America Corporation. If the
underwriters purchase more than 100,000 shares under their over-allotment
option, the underwriters will purchase the additional shares pro rata from us
and some of the selling stockholders, as described in the table below. The
numbers shown in the table below assume no exercise by the underwriters of their
over-allotment option.
In computing the number of shares beneficially owned by a person and the
percentage ownership of that person, shares of common stock which that person
could purchase by exercising outstanding stock options, warrants or other rights
prior to April 4, 2000 are deemed outstanding. These shares, however, are not
deemed outstanding for the purposes of computing the percentage ownership of any
other person.
<TABLE>
<CAPTION>
SHARES OWNED SHARES OWNED
PRIOR TO OFFERING(1) AFTER OFFERING
-------------------- --------------------
NAME NUMBER PERCENT SHARES OFFERED NUMBER PERCENT
---- --------- ------- -------------- --------- -------
<S> <C> <C> <C> <C> <C>
Robert J. Therrien(2)(13)............ 1,299,864 9.6% 255,000 1,044,864 6.4%
Director, Chief Executive Officer
and President
Lynda M. Avallone.................... 5,235 * 2,500 2,735 *
Vice President and Corporate
Treasurer
David R. Beaulieu(3)................. 19,304 * 5,000 14,304 *
Vice President and General Manager,
Vacuum Business Unit
Steven E. Hebert..................... 5,143 * 2,500 2,643 *
Corporate Controller
James A Pelusi(4).................... 41,756 * 9,000 32,756 *
Senior Vice President, Factory
Automation Division
Michael W. Pippins(5)................ 85,478 * 33,000 52,478 *
Vice President, Global Operations
and Business Development
Ellen B. Richstone(6)................ 15,799 * 7,000 8,799 *
Senior Vice President Finance and
Administration and Chief Financial
Officer
</TABLE>
20
<PAGE> 23
<TABLE>
<CAPTION>
SHARES OWNED SHARES OWNED
PRIOR TO OFFERING(1) AFTER OFFERING
-------------------- --------------------
NAME NUMBER PERCENT SHARES OFFERED NUMBER PERCENT
---- --------- ------- -------------- --------- -------
<S> <C> <C> <C> <C> <C>
Michael F. Werner(7)................. 84,600 * 36,000 48,600 *
Senior Vice President, Operations
Amin J. Khoury(8).................... 10,000 * -- 10,000 *
Director
Roger D. Emerick(9).................. 25,000 * -- 25,000 *
Director
Juergen Giessmann(10)................ -- -- -- -- --
Director
All directors and executive officers
as a group (12
persons)(2)(3)(4)(5)(6)(7)
(8)(9)(10)......................... 1,613,612 11.8% 350,000 1,263,612 7.7%
Daifuku America Corporation (11)..... 535,404 4.0% 150,000 385,404 2.4%
6700 Tussing Road
Reynoldsburg, Ohio 43068
Kopp Investment Advisors, Inc.(12)... 1,296,139 9.7% -- 1,296,139 8.1%
7701 France Avenue South, Suite 500
Edina, Minnesota 55435
M+W Zander Holding GmbH (13)......... 868,572 6.5% -- 868,572 5.4%
Lotterbergstrasse 30
70499 Stuttgart
Germany
</TABLE>
- ---------------
* Less than one percent of outstanding common stock.
(1) The number of shares of common stock deemed outstanding on February 4, 2000
with respect to a person or group includes (a) 13,348,842 shares of common
stock outstanding on such date and (b) all options that are currently
exercisable or will become exercisable prior to April 4, 2000 by such
person or group.
(2) Includes 183,850 shares issuable pursuant to stock options exercisable
within 60 days of February 4, 2000. Excludes shares held by certain
children and grandchildren of Mr. Therrien, as to which he disclaims
beneficial ownership. Mr. Therrien has granted the underwriters an option
to purchase a maximum of 45,000 additional shares to cover over-allotments.
(3) Includes 12,000 shares issuable pursuant to stock options exercisable
within 60 days of February 4, 2000. Mr. Beaulieu has granted the
underwriters an option to purchase a maximum of 1,000 additional shares to
cover over-allotments.
(4) Includes 15,340 shares issuable pursuant to stock options exercisable
within 60 days of February 4, 2000. Mr. Pelusi has granted the underwriters
an option to purchase a maximum of 1,000 additional shares to cover
over-allotments.
(5) Includes 49,118 shares issuable pursuant to stock options exercisable
within 60 days of February 4, 2000. Mr. Pippins has granted the
underwriters an option to purchase a maximum of 5,000 additional shares to
cover over-allotments.
(6) Includes 7,453 shares issuable pursuant to stock options exercisable within
60 days of February 4, 2000. Ms. Richstone has granted the underwriters an
option to purchase a maximum of 1,000 additional shares to cover
over-allotments.
(7) Includes 43,350 shares issuable pursuant to stock options exercisable
within 60 days of February 4, 2000. Mr. Werner has granted the underwriters
an option to purchase a maximum of 4,000 additional shares to cover
over-allotments.
(8) Consists of 10,000 shares issuable pursuant to stock options exercisable
within 60 days of February 4, 2000.
21
<PAGE> 24
(9) Includes 16,000 shares issuable pursuant to stock options exercisable
within 60 days of February 4, 2000.
(10) Excludes 868,572 shares held by M+W Zander Holding GmbH, as to which Mr.
Giessmann disclaims beneficial ownership. Mr. Giessmann is one of four
managing directors of M+W.
(11) Includes 267,702 held in escrow to satisfy indemnification claims we may
make in connection with our acquisition of two of Daifuku's subsidiaries.
Voting of shares is subject to a Stockholder Agreement dated January 6,
2000 among the Company, Daifuku America Corporation and Daifuku Co., Ltd.
pursuant to which Daifuku agreed to vote all of its shares in accordance
with the recommendation of our board of directors. Daifuku has granted the
underwriters an option to purchase a maximum of 100,000 additional shares
to cover over-allotments.
(12) Kopp Investment Advisors, Inc. filed an amended Schedule 13G with the
Securities and Exchange Commission in February 2000 on behalf of itself,
Kopp Holding Company and LeRoy C. Kopp indicating beneficial ownership of
this amount. Of this amount, Kopp Investment Advisors, Inc. has sole voting
power with respect to 723,000 shares and LeRoy C. Kopp has sole voting
power with respect to 78,000 shares.
(13) Voting of shares is subject to a Stockholder Agreement dated September 30,
1999 among the Company, Robert J. Therrien in his capacity as a stockholder
of the Company, M+W and Jenoptik AG pursuant to which we agreed to nominate
a reasonably acceptable candidate of Jenoptik to our board of directors at
each election, Mr. Therrien agreed to vote all his shares in favor of
Jenoptik's candidate, and Jenoptik agreed to vote all of its in favor of
the nominees of our existing board of directors.
22
<PAGE> 25
UNDERWRITING
Under the terms and subject to the conditions contained in an underwriting
agreement dated February , 2000, we and the selling stockholders have agreed
to sell to the underwriters named below, for whom Credit Suisse First Boston
Corporation, SG Cowen Securities Corporation, Needham & Company, Inc., Adams,
Harkness & Hill, Inc. and SoundView Technology Group, Inc. are acting as
representatives, the following respective number of shares of our common stock:
<TABLE>
<CAPTION>
NUMBER OF
UNDERWRITER SHARES
- ------------------------------------------------------------ ---------
<S> <C>
Credit Suisse First Boston Corporation......................
SG Cowen Securities Corporation.............................
Needham & Company, Inc. ....................................
Adams, Harkness & Hill, Inc. ...............................
SoundView Technology Group, Inc. ...........................
---------
Total.................................................. 3,250,000
=========
</TABLE>
Credit Suisse First Boston Corporation and SG Cowen Securities Corporation
are acting as joint-lead managers in this offering. Credit Suisse First Boston
Corporation is acting as sole book-running manager.
The underwriting agreement provides that the underwriters are obligated to
purchase all of the shares of common stock offered in this offering if any are
purchased, other than those shares covered by the over-allotment option
described below. The underwriting agreement also provides that if an underwriter
defaults the purchase commitments of nondefaulting underwriters may be increased
or the offering of common stock may be terminated.
The underwriters have a 30-day option to purchase up to 330,500 additional
shares of common stock from us and up to 157,000 additional shares of common
stock from seven of the selling stockholders at the public offering price, less
the underwriting discounts and commissions. This option may be exercised only to
cover any over-allotments of common stock.
The underwriters propose to offer the shares of common stock initially at
the public offering price set forth on the cover page of this prospectus and to
selling group members at that price less a concession of $ per share.
The underwriters and selling group members may allow a discount of $
per share on sales to other broker/dealers. After the public offering, the
public offering price and concession and discount to broker/dealers may be
changed by the representatives.
The following table summarizes the compensation and estimated expenses we
and the selling stockholders will pay.
<TABLE>
<CAPTION>
PER SHARE TOTAL
--------------------------- ---------------------------
WITHOUT OVER- WITH OVER- WITHOUT OVER- WITH OVER-
ALLOTMENT ALLOTMENT ALLOTMENT ALLOTMENT
------------- ---------- ------------- ----------
<S> <C> <C> <C> <C>
Underwriting discounts and commissions
payable by us............................. $ $ $ $
Expenses payable by us...................... $ $ $ $
Underwriting discounts and commissions
payable by selling stockholders........... $ $ $ $
</TABLE>
We have agreed that we will not offer, sell, contract to sell, pledge or
otherwise dispose of, directly or indirectly, or file with the Securities and
Exchange Commission a registration statement under the Securities Act of 1933
relating to, any shares of our common stock or securities convertible into or
exchangeable or exercisable for any shares of our common stock, or publicly
disclose the intention to make any such offer, sale, pledge, disposition or
filing, without the prior written consent of Credit Suisse First Boston
Corporation for a period of 90 days after the date of this prospectus, except
issuances pursuant to
23
<PAGE> 26
the Company's employee stock purchase plan and pursuant to the exercise of
employee stock options outstanding on the date hereof.
Our officers and directors have agreed that they will not offer, sell,
contract to sell, pledge or otherwise dispose of, directly or indirectly, any
shares of our common stock or securities convertible into or exchangeable or
exercisable for any shares of our common stock, enter into a transaction which
would have the same effect, or enter into any swap, hedge or other arrangement
that transfers, in whole or in part, any of the economic consequences of
ownership of our common stock, whether any such aforementioned transaction is to
be settled by delivery of our common stock or such other securities, in cash or
otherwise, or publicly disclose the intention to make any such offer, sale,
pledge or disposition, or to enter into any such transaction, swap, hedge or
other arrangement, without, in each case, the prior written consent of Credit
Suisse First Boston Corporation for a period of 90 days after the date of this
prospectus.
We and the selling stockholders have agreed to indemnify the underwriters
against liabilities under the Securities Act, or contribute to payments which
the underwriters may be required to make in that respect.
The shares of our common stock are listed on the Nasdaq National Market
under the symbol "BRKS."
The representatives may engage in over-allotment, stabilizing transactions,
syndicate covering transactions, penalty bids and passive market making in
accordance with Regulation M under the Securities Exchange Act of 1934.
- Over-allotment involves syndicate sales in excess of the offering size,
which creates a syndicate short position.
- Stabilizing transactions permit bids to purchase the underlying security
so long as the stabilizing bids do not exceed a specified maximum.
- Syndicate covering transactions involve purchases of the common stock in
the open market after the distribution has been completed in order to
cover syndicate short positions.
- Penalty bids permit the representatives to reclaim a selling concession
from a syndicate member when common stock originally sold by the
syndicate member is purchased in a stabilizing or syndicate covering
transaction to cover syndicate short positions.
- In passive market making, market makers in the common stock who are
underwriters or prospective underwriters may, subject to certain
limitations, make bids for or purchases of the common stock until the
time, if any, at which a stabilizing bid is made.
These stabilizing transactions, syndicate covering transactions and penalty bids
may cause the price of our common stock to be higher than it would otherwise be
in the absence of such transactions. These transactions may be effected on the
Nasdaq National Market or otherwise and, if commenced, may be discontinued at
any time.
NOTICE TO CANADIAN RESIDENTS
RESALE RESTRICTIONS
The distribution of the common stock in Canada is being made only on a
private placement basis exempt from the requirement that we and the selling
stockholders prepare and file a prospectus with the securities regulatory
authorities in each province where trades of common stock are effected.
Accordingly, any resale of the common stock in Canada must be made in accordance
with applicable securities laws which will vary depending on the relevant
jurisdiction, and which may require resales to be made in accordance with
available statutory exemptions or pursuant to a discretionary exemption granted
by the applicable Canadian securities regulatory authority. Purchasers are
advised to seek legal advice prior to any resale of the common stock.
24
<PAGE> 27
REPRESENTATIONS OF PURCHASERS
Each purchaser of common stock in Canada who receives a purchase
confirmation will be deemed to represent to us, the selling stockholders and the
dealer from whom such purchase confirmation is received that (i) such purchaser
is entitled under applicable provincial securities laws to purchase such common
stock without the benefit of a prospectus qualified under such securities laws,
(ii) where required by law, that such purchaser is purchasing as principal and
not as agent and (iii) such purchaser has reviewed the text above under "Resale
restrictions."
RIGHTS OF ACTION (ONTARIO PURCHASERS)
The securities being offered are those of a foreign issuer and Ontario
purchasers will not receive the contractual right of action prescribed by
Ontario securities law. As a result, Ontario purchasers must relay on other
remedies that may be available, including common law rights of action for
damages or rescission or rights of action under the civil liability provisions
of the U.S. federal securities laws.
ENFORCEMENT OF LEGAL RIGHTS
All of the issuer's directors and officers, as well as the experts named
herein and the selling stockholders may be located outside of Canada and, as a
result, it may not be possible for Canadian purchasers to effect service of
process within Canada upon the issuer or such persons. All or a substantial
portion of the assets of the issuer and such persons may be located outside of
Canada and, as a result, it may not be possible to satisfy a judgment against
the issuer or such persons inside Canada or to enforce a judgment obtained in
Canadian courts against such issuer or persons outside of Canada.
NOTICE TO BRITISH COLUMBIA RESIDENTS
A purchaser of common stock to whom the Securities Act (British Columbia)
applies is advised that such purchaser is required to file with the British
Columbia Securities Commission a report within ten days of the sale of any
common stock acquired by such purchaser pursuant to this offering. Such report
must be in the form attached to British Columbia Securities Commission Blanket
Order BOR #95/17, a copy of which may be obtained from us. Only one such report
must be filed in respect of common stock acquired on the same date and under the
same prospectus exemption.
TAXATION AND ELIGIBILITY FOR INVESTMENT
Canadian purchasers of common stock should consult their own legal and tax
advisors with respect to the tax consequences of an investment in the common
stock in their particular circumstances and with respect to the eligibility of
the common stock for investment by the purchaser under relevant Canadian
legislation.
LEGAL MATTERS
The validity of the shares of common stock to be issued in this offering
will be passed upon for us by Brown, Rudnick, Freed & Gesmer, Boston,
Massachusetts. Certain legal matters will be passed on for the underwriters by
Testa, Hurwitz & Thibeault, LLP, Boston, Massachusetts.
EXPERTS
The financial statements incorporated in this Prospectus by reference to
the Annual Report on Form 10-K of Brooks Automation, Inc. for the year ended
September 30, 1999 and the audited historical financial statements of Auto-Soft
Corporation and AutoSimulations, Inc. included in Item 7(a) of Brooks
Automation, Inc.'s Form 8-K/A dated February 14, 2000 have been so incorporated
in reliance on the reports of PricewaterhouseCoopers, LLP, independent
accountants, given on the authority of said firm as experts in auditing and
accounting.
25
<PAGE> 28
The financial statements of the Infab Group as of December 31, 1998 and
1997, and the related consolidated statements of operations for the three-years
ended December 31, 1998 and the related consolidated statements of cash flows
for the two-years ended December 31, 1998, have been incorporated in this
prospectus by reference and appear in our Form 8-K/A dated December 14, 1999 and
have been audited by Dr. Ebner, Dr. Stoltz and Partner GmbH, independent
auditors, as set forth in their report thereon included therein. Such financial
statements are incorporated in this prospectus by reference in reliance upon
such report given upon the authority of such firm as experts in accounting and
auditing.
WHERE YOU CAN FIND MORE INFORMATION
We are a reporting company and file annual, quarterly and current reports,
proxy statements and other information with the Securities and Exchange
Commission, or the SEC. You may read and copy these reports, proxy statements
and other information at the SEC's public reference rooms at 450 Fifth Street,
NW., Washington, D.C., and in New York, NY and Chicago, IL. You can request
copies of these documents by writing to the SEC and paying a fee for the copying
cost. Please call the SEC at 1-800-SEC-0330 for more information about the
operation of the public reference rooms. Our SEC filings are also available at
the SEC's web site at http://www.sec.gov. In addition, you can read and copy our
SEC filings at the office of the National Association of Securities Dealers,
Inc. at 1735 "K" Street, Washington, DC 20006.
We have filed with the SEC a registration statement on Form S-3 under the
Securities Act of 1933 with respect to the common stock offered in connection
with this prospectus. This prospectus does not contain all of the information
set forth in the registration statement. We have omitted certain parts of the
registration statement in accordance with the rules and regulations of the SEC.
For further information with respect to us and the common stock, you should
refer to the registration statement. Statements contained in this prospectus as
to the contents of any contract or other document are not necessarily complete
and, in each instance, you should refer to the copy of such contract or document
filed as an exhibit to or incorporated by reference in the registration
statement. Each statement as to the contents of such contract or document is
qualified in all respects by such reference. You may obtain copies of the
registration statement from the SEC's principal office in Washington, D.C. upon
payment of the fees prescribed by the SEC, or you may examine the registration
statement without charge at the offices of the SEC described above.
The SEC allows us to "incorporate by reference" information that we file
with them, which means that we can disclose important information to you by
referring you to those documents. The information incorporated by reference is
an important part of this prospectus, and information that we file later with
the SEC will automatically update and supersede this information. We incorporate
by reference the documents listed below and any future filings we will make with
the SEC under Section 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act
of 1934 until we and the selling stockholders sell all of the common stock:
- Annual Report on Form 10-K for the year ended September 30, 1999;
- Proxy Statement for the Annual Meeting of Stockholders to be held on
February 24, 2000;
- Current Reports on Form 8-K and Form 8-K/A filed with the SEC on October
15, 1999, December 14, 1999, January 19, 2000 and February 14, 2000, as
amended;
- Quarterly Report on Form 10-Q for the period ended December 31, 1999; and
- The description of the common stock contained in our Registration
Statements on Form 8-A, as filed on January 24, 1995 and August 7, 1997.
26
<PAGE> 29
You may request a copy of these filings at no cost, by writing or
telephoning us at the following address:
Brooks Automation, Inc.
15 Elizabeth Drive
Chelmsford, Massachusetts 01824
Attention: Investor Relations
(978) 262-2400
You should rely only on the information or representations provided in this
prospectus. We have authorized no one to provide you with different information.
We are not making an offer of these securities in any state where the offer is
not permitted. You should not assume that the information in this prospectus is
accurate as of any date other than the date on the front of the document.
27
<PAGE> 30
[BROOKS LOGO]
<PAGE> 31
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
<TABLE>
<S> <C>
SEC Registration Fee........................................ $ 63,613
NASD Filing Fee............................................. 24,596
Blue Sky Fees............................................... 10,000*
Nasdaq National Market Listing Fee.......................... 17,500
Transfer Agent and Registrar Fees........................... 404*
Accounting Fees and Expenses................................ 125,000*
Legal Fees and Expenses..................................... 250,000*
Printing and Engraving Fees................................. 100,000*
Miscellaneous............................................... 375,000*
--------
TOTAL.................................................. $966,113
========
</TABLE>
- ---------------
* Estimated
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Article Ninth of the Company's Certificate of Incorporation eliminates the
personal liability of directors of the Company or its stockholders for monetary
damages for breach of fiduciary duty to the full extent permitted by Delaware
law. Article VII of the Company's Bylaws provides that the Company may indemnify
its officers and director to the full extent permitted by the Delaware General
Corporation Law. Section 145 of the Delaware General Corporation Law authorizes
a corporation to indemnify directors, officers and employees unless such party
has been adjudicated in any proceeding not to have acted in good faith in the
reasonable belief that his action was in the best interest of the corporation.
The Company also maintains directors and officers liability insurance.
Reference is hereby made to Section 8 of the Underwriting Agreement between
the Company the Underwriters, filed as Exhibit 1.01 to this Registration
Statement, for a description of indemnification arrangements between the Company
and the Underwriters.
Reference is hereby made to Section 2 of the Selling Stockholder Agreement
among the Company and the Selling Stockholders, filed as Exhibit 99.05 to this
Registration Statement, for a description of indemnification arrangements among
the Company and the Selling Stockholders.
ITEM 16. EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NUMBER TITLE
- ------- -----
<C> <S> <C>
1.01 Form of Underwriting Agreement Filed herewith
2.01 Intentionally Omitted
2.02 Agreement and Plan of Merger relating to the combination of L**
FASTech Integration, Inc. with the Registrant
2.03 Stock for Cash Purchase Agreement Relating to the N**
Acquisition of Hanyon Tech. Co., Ltd. by the Registrant
2.04 Assets for Cash Purchase Agreement Relating to the O**
Acquisition of substantially all of the Assets of Domain
Manufacturing Corporation and its Subsidiary Domain
Manufacturing SARL by the Registrant
2.05 Agreement and Plan of Merger Relating to the Combination of P**
Smart Machines Inc. with the Registrant
2.06 Master Purchase Agreement Relating to the Acquisition of Q**
Substantially All of the Assets of the Infab Division of
Jenoptik AG by the Registrant
</TABLE>
II-1
<PAGE> 32
<TABLE>
<CAPTION>
EXHIBIT
NUMBER TITLE
- ------- -----
<C> <S> <C>
2.07 Agreement and Plan of Merger relating to the Acquisition of S**
Auto-Soft Corporation and AutoSimulations, Inc.
4.01 Specimen Certificate for shares of the Registrant's common A**
stock
4.02 Description of Capital Stock (contained in the Certificate A**
of Incorporation of the Registrant, filed as Exhibit 3.01)
4.03 Rights Agreement dated July 23, 1997 I**
4.04 Stockholders Agreement by and among the Company, Jenoptik P**
AG, M+W Zander Holding GmbH and Robert J. Therrien
4.05 Stockholders Agreement by and among the Company, Daifuku S**
America Corporation and Daifuku Co., Ltd
5.01 Opinion of Brown, Rudnick, Freed & Gesmer Filed herewith
23.01 Consent of PricewaterhouseCoopers LLP Filed herewith
23.02 Consent of Brown, Rudnick, Freed & Gesmer (included in Filed herewith
Exhibit 5.01)
23.03 Consent of Dr. Ebner, Dr. Stoltz and Partner GmbH Filed herewith
24.01 Power of Attorney (included on signature of this Filed herewith
Registration Statement)
99.01 1993 Nonemployee Director Stock Option Plan J**
99.02 1992 Combination Stock Option Plan K**
99.03 1995 Employee Stock Purchase Plan E**
99.04 1998 Employee Equity Incentive Plan R**
99.05 Form of Selling Stockholder Agreement Filed herewith
99.06 Consent of Dataquest Filed herewith
</TABLE>
- ---------------
<TABLE>
<S> <C>
A. Incorporated by reference to the Company's registration
statement on Form S-1 (Registration No. 33-87296). The
number set forth herein is the number of the Exhibit in said
registration statement.
E. Incorporated by reference to the Company's registration
statement on Form S-8 (No. 333-07315). The number set forth
herein is the number of the Exhibit in said registration
statement.
I. Incorporated by reference to the Company's current report on
Form 8-K filed on August 7, 1997.
J. Incorporated by reference to the Company's registration
statement on Form S-8 (No. 333-22717). The number assigned
to each Exhibit above is the same as the number assigned to
the Exhibit in said registration statement.
K. Incorporated by reference to the Company's registration
statement on Form S-8 (No. 333-07313). The number assigned
to each Exhibit above is the same as the number assigned to
the Exhibit in said registration statement.
L. Incorporated by reference to the Company's current report on
Form 8-K filed on October 15, 1998.
N. Incorporated by reference to the Company's current report on
Form 8-K filed on May 6, 1999.
O. Incorporated by reference to the Company's current report on
Form 8-K filed on July 14, 1999.
P. Incorporated by reference to the Company's current report on
Form 8-K filed on September 15, 1999.
Q. Incorporated by reference to the Company's current report on
Form 8-K filed on October 15, 1999.
R. Incorporated by reference to the Company's annual report on
Form 10-K for the fiscal year ended September 30, 1999.
S. Incorporated by reference to the Company's current report on
Form 8-K filed on January 19, 2000.
* Management contract or compensatory plan or arrangement.
** In accordance with Rule 12b-32 under the Securities Exchange
Act of 1934, as amended, reference is made to the documents
previously filed with the Securities and Exchange
Commission, which documents are hereby incorporated by
reference.
</TABLE>
ITEM 17. UNDERTAKINGS
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
Registrant, the Registrant has been advised that in the
II-2
<PAGE> 33
opinion of the Securities and Exchange Commission such indemnification is
against public policy as expressed in the Act and is, therefore, unenforceable.
In the event that a claim for indemnification against such liabilities (other
than the payment by the Registrant of expenses incurred or paid by a director,
officer or controlling person of the Registrant in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, the Registrant will,
unless in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the Act and
will be governed by the final adjudication of such issue.
The undersigned Registrant hereby undertakes to deliver or cause to be
delivered with the prospectus, to each person to whom the prospectus is sent or
given, the latest annual report, to security holders that is incorporated by
reference in the prospectus and furnished pursuant to and meeting the
requirements of Rule 14a-3 or Rule 14c-3 under the Securities Exchange Act of
1934; and, where interim financial information required to be presented by
Article 3 of Regulation S-X is not set forth in the prospectus, to deliver, or
cause to be delivered to each person to whom the prospectus is sent or given,
the latest quarterly report that is specifically incorporated by reference in
the prospectus to provide such interim financial information.
The undersigned Registrant hereby further undertakes that:
(1) For purposes of determining any liability under the Securities Act
of 1933, each filing of the registrant's annual report pursuant to Section
13(a) or Section 15(d) of the Securities Exchange Act of 1934 (and, where
applicable, each filing of an employee benefit plan's annual report
pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is
incorporated by reference in the registration statement shall be deemed to
be a new registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be
initial bona fide offering thereof.
(2) For purposes of determining any liability under the Securities Act
of 1933, the information omitted from the form of prospectus filed as part
of this registration statement in reliance upon Rule 430A and contained in
a form of prospectus filed by the Registrant pursuant to Rule 424(b)(1) or
(4) or 497(h) under the Securities Act shall be deemed to be part of this
registration statement as of the time it was declared effective.
(3) For the purpose of determining any liability under the Securities
Act of 1933, each post-effective amendment that contains a form of
prospectus shall be deemed to be a new registration statement relating to
the securities offered therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
II-3
<PAGE> 34
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all the
requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Boston, Commonwealth of Massachusetts, on the 11th
day of February, 2000.
BROOKS AUTOMATION, INC.
By: /s/ ROBERT J. THERRIEN
------------------------------------
Robert J. Therrien
Chief Executive Officer and
President
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that each person whose signature appears
below constitutes and appoints Robert J. Therrien and Ellen B. Richstone, and
each of them, with the power to act without the other, his true and lawful
attorney-in-fact and agent, with full power of substitution and resubstitution
for him or in his name, place and stead, in any and all capacities to sign any
and all amendments or post-effective amendments to this Registration Statement,
and to file the same, with all exhibits thereto, and other documents in
connection therewith, and in connection with any registration of additional
securities pursuant to Rule 462(b) under the Securities Act of 1933, as amended,
to sign any abbreviated registration statements and any and all amendments
thereto, and to file the same, with all exhibits thereto and other documents in
connection therewith, in each case, with the Securities and Exchange Commission,
granting unto said attorneys-in-fact and agents, and each of them, full power
and authority to do and perform each and every act and thing requisite or
necessary to be done in and about the premises, as fully to all intents and
purposes as he might or could do in person, hereby ratifying and confirming all
that said attorneys-in-fact and agents or any of them, or their or his
substitutes, may lawfully do or cause to be done by virtue hereof.
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS
REGISTRATION STATEMENT HAS BEEN SIGNED BY THE FOLLOWING PERSONS IN THE
CAPACITIES AND ON THE DATES INDICATED.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- --------- ----- ----
<C> <S> <C>
/s/ ROBERT J. THERRIEN Director, Chief Executive Officer February 11, 2000
- ------------------------------------------------ and President (Principal
Robert J. Therrien Executive Officer)
/s/ ELLEN B. RICHSTONE Senior Vice President Finance and February 11, 2000
- ------------------------------------------------ Administration and Chief
Ellen B. Richstone Financial Officer (Principal
Financial Officer)
/s/ STEVEN E. HEBERT Principal Accounting Officer February 11, 2000
- ------------------------------------------------
Steven E. Hebert
/s/ ROGER D. EMERICK Director February 11, 2000
- ------------------------------------------------
Roger D. Emerick
/s/ AMIN J. KHOURY Director February 11, 2000
- ------------------------------------------------
Amin J. Khoury
/s/ JUERGEN GIESSMANN Director February 11, 2000
- ------------------------------------------------
Juergen Giessmann
</TABLE>
II-4
<PAGE> 35
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER TITLE
- ------- -----
<C> <S> <C>
1.01 Form of Underwriting Agreement Filed herewith
2.01 Intentionally Omitted
2.02 Agreement and Plan of Merger relating to the combination of L**
FASTech Integration, Inc. with the Registrant
2.03 Stock for Cash Purchase Agreement Relating to the N**
Acquisition of Hanyon Tech. Co., Ltd. by the Registrant
2.04 Assets for Cash Purchase Agreement Relating to the O**
Acquisition of substantially all of the Assets of Domain
Manufacturing Corporation and its Subsidiary Domain
Manufacturing SARL by the Registrant
2.05 Agreement and Plan of Merger Relating to the Combination of P**
Smart Machines Inc. with the Registrant
2.06 Master Purchase Agreement Relating to the Acquisition of Q**
Substantially All of the Assets of the Infab Division of
Jenoptik AG by the Registrant
2.07 Agreement and Plan of Merger relating to the Acquisition of S**
Auto-Soft Corporation and AutoSimulations, Inc.
4.01 Specimen Certificate for shares of the Registrant's common A**
stock
4.02 Description of Capital Stock (contained in the Certificate A**
of Incorporation of the Registrant, filed as Exhibit 3.01)
4.03 Rights Agreement dated July 23, 1997 I**
4.04 Stockholders Agreement by and among the Company, Jenoptik P**
AG, M+W Zander Holding GmbH and Robert J. Therrien
4.05 Stockholders Agreement by and among the Company, Daifuku S**
America Corporation and Daifuku Co., Ltd.
5.01 Opinion of Brown, Rudnick, Freed & Gesmer Filed herewith
23.01 Consent of PricewaterhouseCoopers LLP Filed herewith
23.02 Consent of Brown, Rudnick, Freed & Gesmer (included in Filed herewith
Exhibit 5.01)
23.03 Consent of Dr. Ebner, Dr. Stoltz and Partner GmbH Filed herewith
24.01 Power of Attorney (included on signature of this Filed herewith
Registration Statement)
99.01 1993 Nonemployee Director Stock Option Plan J**
99.02 1992 Combination Stock Option Plan K**
99.03 1995 Employee Stock Purchase Plan E**
99.04 1998 Employee Equity Incentive Plan R**
99.05 Form of Selling Stockholder Agreement Filed herewith
99.06 Consent of Dataquest Filed herewith
</TABLE>
- ---------------
<TABLE>
<S> <C>
A. Incorporated by reference to the Company's registration
statement on Form S-1 (Registration No. 33-87296). The
number set forth herein is the number of the Exhibit in said
registration statement.
E. Incorporated by reference to the Company's registration
statement on Form S-8 (No. 333-07315). The number set forth
herein is the number of the Exhibit in said registration
statement.
I. Incorporated by reference to the Company's current report on
Form 8-K filed on August 7, 1997.
J. Incorporated by reference to the Company's registration
statement on Form S-8 (No. 333-22717). The number assigned
to each Exhibit above is the same as the number assigned to
the Exhibit in said registration statement.
K. Incorporated by reference to the Company's registration
statement on Form S-8 (No. 333-07313). The number assigned
to each Exhibit above is the same as the number assigned to
the Exhibit in said registration statement.
L. Incorporated by reference to the Company's current report on
Form 8-K filed on October 15, 1998.
N. Incorporated by reference to the Company's current report on
Form 8-K filed on May 6, 1999.
</TABLE>
E-1
<PAGE> 36
<TABLE>
<S> <C>
O. Incorporated by reference to the Company's current report on
Form 8-K filed on July 14, 1999.
P. Incorporated by reference to the Company's current report on
Form 8-K filed on September 15, 1999.
Q. Incorporated by reference to the Company's current report on
Form 8-K filed on October 15, 1999.
R. Incorporated by reference to the Company's annual report on
Form 10-K for the fiscal year ended September 30, 1999.
S. Incorporated by reference to the Company's current report on
Form 8-K filed on January 19, 2000.
* Management contract or compensatory plan or arrangement.
** In accordance with Rule 12b-32 under the Securities Exchange
Act of 1934, as amended, reference is made to the documents
previously filed with the Securities and Exchange
Commission, which documents are hereby incorporated by
reference.
</TABLE>
E-2
<PAGE> 1
EXHIBIT 1.01
3,250,000 SHARES
BROOKS AUTOMATION, INC.
COMMON STOCK, $.01 PAR VALUE
UNDERWRITING AGREEMENT
----------------------
March __, 2000
CREDIT SUISSE FIRST BOSTON CORPORATION
SG COWEN SECURITIES CORPORATION
NEEDHAM & COMPANY, INC.
ADAMS, HARKNESS & HILL, INC.
SOUNDVIEW TECHNOLOGY GROUP, INC.
As Representatives of the Several Underwriters,
c/o Credit Suisse First Boston Corporation,
Eleven Madison Avenue,
New York, N.Y. 10010-3629
Dear Sirs:
1. Introductory. Brooks Automation, Inc., a Delaware corporation
("COMPANY"), proposes to issue and sell 2,750,000 shares of its common stock,
$.01 par value per share ("SECURITIES"), and the stockholders listed in Schedule
A hereto ("SELLING STOCKHOLDERS") propose severally to sell an aggregate of
500,000 outstanding shares of the Securities (such 3,250,000 shares of
Securities being hereinafter referred to as the "FIRM SECURITIES"). The Company
also proposes to sell to the Underwriters, at the option of the Underwriters, an
aggregate of not more than 330,500 additional shares of its Securities, and
certain of the Selling Stockholders also propose to sell to the Underwriters, at
the option the Underwriters, an aggregate of not more than 157,000 additional
outstanding shares of the Company's Securities as set forth below (such 487,500
additional shares being hereinafter referred to as the "OPTIONAL SECURITIES").
The Firm Securities and the Optional Securities are herein collectively called
the "OFFERED SECURITIES". The Company and the Selling Stockholders hereby agree
with the several Underwriters named in Schedule C hereto ("UNDERWRITERS") as
follows:
2. Representations and Warranties of the Company and the Selling
Stockholders. (a) The Company and each of the Selling Stockholders other than
Daikufu America Corporation severally represent and warrant to, and each agrees
with, the several Underwriters that:
(i) A registration statement (No. 333- ) relating to the
Offered Securities, including a form of prospectus, has been filed with
the Securities and Exchange Commission ("COMMISSION") and either (A) has
been declared effective under the Securities Act of 1933 ("ACT") and is
not proposed to be amended or (B) is proposed to be amended by amendment
or post-effective amendment. If such registration statement (the "INITIAL
REGISTRATION STATEMENT") has been declared effective, either (A) an
additional registration statement (the "ADDITIONAL REGISTRATION
STATEMENT") relating to the Offered Securities may have been filed with
the Commission pursuant to Rule 462(b) ("RULE 462(b)") under the Act and,
if so filed, has become effective upon filing pursuant to such Rule and
the Offered Securities all have been duly registered under the Act
pursuant to the initial registration statement and, if applicable, the
additional registration statement or (B) such an additional registration
statement is
-1-
<PAGE> 2
proposed to be filed with the Commission pursuant to Rule 462(b) and will
become effective upon filing pursuant to such Rule and upon such filing
the Offered Securities will all have been duly registered under the Act
pursuant to the initial registration statement and such additional
registration statement. If the Company does not propose to amend the
initial registration statement or if an additional registration statement
has been filed and the Company does not propose to amend it, and if any
post-effective amendment to either such registration statement has been
filed with the Commission prior to the execution and delivery of this
Agreement, the most recent amendment (if any) to each such registration
statement has been declared effective by the Commission or has become
effective upon filing pursuant to Rule 462(c) ("RULE 462(c)") under the
Act or, in the case of the additional registration statement, Rule
462(b). For purposes of this Agreement, "EFFECTIVE TIME" with respect to
the initial registration statement or, if filed prior to the execution
and delivery of this Agreement, the additional registration statement
means (A) if the Company has advised the Representatives that it does not
propose to amend such registration statement, the date and time as of
which such registration statement, or the most recent post-effective
amendment thereto (if any) filed prior to the execution and delivery of
this Agreement, was declared effective by the Commission or has become
effective upon filing pursuant to Rule 462(c), or (B) if the Company has
advised the Representatives that it proposes to file an amendment or
post-effective amendment to such registration statement, the date and
time as of which such registration statement, as amended by such
amendment or post-effective amendment, as the case may be, is declared
effective by the Commission. If an additional registration statement has
not been filed prior to the execution and delivery of this Agreement but
the Company has advised the Representatives that it proposes to file one,
"EFFECTIVE TIME" with respect to such additional registration statement
means the date and time as of which such registration statement is filed
and becomes effective pursuant to Rule 462(b). "EFFECTIVE DATE" with
respect to the initial registration statement or the additional
registration statement (if any) means the date of the Effective Time
thereof. The initial registration statement, as amended at its Effective
Time, including all material incorporated by reference therein, including
all information contained in the additional registration statement (if
any) and deemed to be a part of the initial registration statement as of
the Effective Time of the additional registration statement pursuant to
the General Instructions of the Form on which it is filed and including
all information (if any) deemed to be a part of the initial registration
statement as of its Effective Time pursuant to Rule 430A(b) ("RULE
430A(b)") under the Act, is hereinafter referred to as the "INITIAL
REGISTRATION STATEMENT". The additional registration statement, as
amended at its Effective Time, including the contents of the initial
registration statement incorporated by reference therein and including
all information (if any) deemed to be a part of the additional
registration statement as of its Effective Time pursuant to Rule 430A(b),
is hereinafter referred to as the "ADDITIONAL REGISTRATION STATEMENT".
The Initial Registration Statement and the Additional Registration are
hereinafter referred to collectively as the "REGISTRATION STATEMENTS" and
individually as a "REGISTRATION STATEMENT". The form of prospectus
relating to the Offered Securities, as first filed with the Commission
pursuant to and in accordance with Rule 424(b) ("RULE 424(b)") under the
Act or (if no such filing is required) as included in a Registration
Statement, including all material incorporated by reference in such
prospectus, is hereinafter referred to as the "PROSPECTUS". No document
has been or will be prepared or distributed in reliance on Rule 434 under
the Act.
(ii) If the Effective Time of the Initial Registration Statement
is prior to the execution and delivery of this Agreement: (A) on the
Effective Date of the Initial Registration Statement, the Initial
Registration Statement conformed in all respects to the requirements of
the Act and the rules and regulations of the Commission ("RULES AND
REGULATIONS") and did not include any untrue statement of a material fact
or omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading, (B) on the
Effective Date of the Additional Registration Statement (if any), each
Registration Statement conformed or will conform, in all respects to the
requirements of the Act and the Rules and Regulations and did not
include, or will not include, any
-2-
<PAGE> 3
untrue statement of a material fact and did not omit, or will not omit,
to state any material fact required to be stated therein or necessary to
make the statements therein not misleading, and (C) on the date of this
Agreement, the Initial Registration Statement and, if the Effective Time
of the Additional Registration Statement is prior to the execution and
delivery of this Agreement, the Additional Registration Statement each
conforms, and at the time of filing of the Prospectus pursuant to Rule
424(b) or (if no such filing is required) at the Effective Date of the
Additional Registration Statement in which the Prospectus is included,
each Registration Statement and the Prospectus will conform, in all
respects to the requirements of the Act and the Rules and Regulations,
and neither of such documents includes, or will include, any untrue
statement of a material fact or omits, or will omit, to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading. If the Effective Time of the Initial
Registration Statement is subsequent to the execution and delivery of
this Agreement: on the Effective Date of the Initial Registration
Statement, the Initial Registration Statement and the Prospectus will
conform in all respects to the requirements of the Act and the Rules and
Regulations, neither of such documents will include any untrue statement
of a material fact or will omit to state any material fact required to be
stated therein or necessary to make the statements therein not
misleading, and no Additional Registration Statement has been or will be
filed. The two preceding sentences do not apply to statements in or
omissions from a Registration Statement or the Prospectus based upon
written information furnished to the Company by any Underwriter through
the Representatives specifically for use therein, it being understood and
agreed that the only such information is that described as such in
Section 7(c) hereof.
(iii) The Company has been duly incorporated and is an existing
corporation in good standing under the laws of the State of Delaware,
with power and authority (corporate and other) to own its properties and
conduct its business as described in the Prospectus; and the Company is
duly qualified to do business as a foreign corporation in good standing
in all other jurisdictions in which its ownership or lease of property or
the conduct of its business requires such qualification.
(iv) Each subsidiary of the Company has been duly incorporated
and is an existing corporation in good standing under the laws of the
jurisdiction of its incorporation, with power and authority (corporate
and other) to own its properties and conduct its business as described in
the Prospectus; and each subsidiary of the Company is duly qualified to
do business as a foreign corporation in good standing in all other
jurisdictions in which its ownership or lease of property or the conduct
of its business requires such qualification; all of the issued and
outstanding capital stock of each subsidiary of the Company has been duly
authorized and validly issued and is fully paid and nonassessable; and
the capital stock of each subsidiary owned by the Company, directly or
through subsidiaries, is owned free from liens, encumbrances and defects.
(v) The Offered Securities and all other outstanding shares of
capital stock of the Company have been duly authorized, and all
outstanding shares of capital stock of the Company are, and the Offered
Securities, when issued and delivered in accordance with this Agreement
on each Closing Date (as defined below), will be validly issued, fully
paid and nonassessable and conform to the description thereof contained
in the Prospectus; and the stockholders of the Company have no preemptive
rights with respect to the Securities.
(vi) Except as disclosed in the Prospectus, there are no
contracts, agreements or understandings between the Company and any
person that would give rise to a valid claim against the Company or any
Underwriter for a brokerage commission, finder's fee or other like
payment in connection with this offering.
(vii) Except as disclosed in the Prospectus, there are no
contracts, agreements or understandings between the Company and any
person granting such person the right to require the Company to file a
-3-
<PAGE> 4
registration statement under the Act with respect to any securities of
the Company owned or to be owned by such person or to require the Company
to include such securities in the securities registered pursuant to a
Registration Statement or in any securities being registered pursuant to
any other registration statement filed by the Company under the Act.
(viii) The Securities have been approved for listing subject to
notice of issuance on the Nasdaq Stock Market's National Market.
(ix) No consent, approval, authorization, or order of, or filing
with, any governmental agency or body or any court is required to be
obtained or made by the Company for the consummation of the transactions
contemplated by this Agreement in connection with the sale of the Offered
Securities, except such as have been obtained and made under the Act and
such as may be required under state securities laws.
(x) The execution, delivery and performance of this Agreement,
and the consummation of the transactions herein contemplated will not
result in a breach or violation of any of the terms and provisions of, or
constitute a default under, any statute, any rule, regulation or order of
any governmental agency or body or any court, domestic or foreign, having
jurisdiction over the Company or any subsidiary of the Company or any of
their properties, or any agreement or instrument to which the Company or
any such subsidiary is a party or by which the Company or any such
subsidiary is bound or to which any of the properties of the Company or
any such subsidiary is subject, or the charter or by-laws of the Company
or any such subsidiary.
(xi) This Agreement has been duly authorized, executed and
delivered by the Company.
(xii) Except as disclosed in the Prospectus, the Company and its
subsidiaries have good and marketable title to all real properties and
all other properties and assets owned by them, in each case free from
liens, encumbrances and defects that would materially affect the value
thereof or materially interfere with the use made or to be made thereof
by them; and except as disclosed in the Prospectus, the Company and its
subsidiaries hold any leased real or personal property under valid and
enforceable leases with no exceptions that would materially interfere
with the use made or to be made thereof by them.
(xiii) The Company and its subsidiaries possess adequate
certificates, authorities or permits issued by appropriate governmental
agencies or bodies necessary to conduct the business now operated by them
and have not received any notice of proceedings relating to the
revocation or modification of any such certificate, authority or permit
that, if determined adversely to the Company or any of its subsidiaries,
would individually or in the aggregate have a material adverse effect on
the condition (financial or other), business, properties or results of
operations of the Company and its subsidiaries taken as a whole
("MATERIAL ADVERSE EFFECT").
(xiv) No labor dispute with the employees of the Company or any
subsidiary exists or, to the knowledge of the Company, is imminent that
might have a Material Adverse Effect.
(xv) The Company and its subsidiaries own, possess or can
acquire on reasonable terms, adequate trademarks, trade names and other
rights to inventions, know-how, patents, copyrights, confidential
information and other intellectual property (collectively, "INTELLECTUAL
PROPERTY RIGHTS") necessary to conduct the business now operated by them,
or presently employed by them, and have not received any notice of
infringement of or conflict with asserted rights of others with respect
to any intellectual property rights that, if determined adversely to the
Company or any of its subsidiaries, would individually or in the
aggregate have a Material Adverse Effect.
-4-
<PAGE> 5
(xvi) Except as disclosed in the Prospectus, neither the Company
nor any of its subsidiaries is in violation of any statute, any rule,
regulation, decision or order of any governmental agency or body or any
court, domestic or foreign, relating to the use, disposal or release of
hazardous or toxic substances or relating to the protection or
restoration of the environment or human exposure to hazardous or toxic
substances (collectively, "ENVIRONMENTAL LAWS"), owns or operates any
real property contaminated with any substance that is subject to any
environmental laws, is liable for any off-site disposal or contamination
pursuant to any environmental laws, or is subject to any claim relating
to any environmental laws, which violation, contamination, liability or
claim would individually or in the aggregate have Material Adverse
Effect; and the Company is not aware of any pending investigation which
might lead to such a claim.
(xvii) Except as disclosed in the Prospectus, there are no pending
actions, suits or proceedings against or affecting the Company, any of
its subsidiaries or any of their respective properties that, if
determined adversely to the Company or any of its subsidiaries, would
individually or in the aggregate have a Material Adverse Effect, or would
materially and adversely affect the ability of the Company to perform its
obligations under this Agreement, or which are otherwise material in the
context of the sale of the Offered Securities; and no such actions, suits
or proceedings are threatened or, to the Company's knowledge,
contemplated.
(xviii) The financial statements included in each Registration
Statement and the Prospectus present fairly the financial position of the
Company and its consolidated subsidiaries as of the dates shown and their
results of operations and cash flows for the periods shown, and such
financial statements have been prepared in conformity with the generally
accepted accounting principles in the United States applied on a
consistent basis and the schedules included in each Registration
Statement present fairly the information required to be stated therein;
and the assumptions used in preparing the pro forma financial statements
included in each Registration Statement and the Prospectus provide a
reasonable basis for presenting the significant effects directly
attributable to the transactions or events described therein, the related
pro forma adjustments give appropriate effect to those assumptions, and
the pro forma columns therein reflect the proper application of those
adjustments to the corresponding historical financial statement amounts.
(xix) Except as disclosed in the Prospectus, since the date of
the latest audited financial statements included in the Prospectus there
has been no material adverse change, nor any development or event
involving a prospective material adverse change, in the condition
(financial or other), business, properties or results of operations of
the Company and its subsidiaries taken as a whole, and, except as
disclosed in or contemplated by the Prospectus, there has been no
dividend or distribution of any kind declared, paid or made by the
Company on any class of its capital stock.
(xx) The Company is not and, after giving effect to the offering
and sale of the Offered Securities and the application of the proceeds
thereof as described in the Prospectus, will not be an "investment
company" as defined in the Investment Company Act of 1940.
With respect to each of the representations and warranties contained in
this Section 2(a), each of the Selling Stockholders listed on Schedule B
attached hereto make such representations and warranties to the best of such
person's knowledge.
(b) Each Selling Stockholder severally represents and warrants to, and
each agrees with, the several Underwriters that:
-5-
<PAGE> 6
(i) Such Selling Stockholder has and on each Closing Date
hereinafter mentioned will have valid and unencumbered title to the
Offered Securities to be delivered by such Selling Stockholder on such
Closing Date and full right, power and authority to enter into this
Agreement and to sell, assign, transfer and deliver the Offered
Securities to be delivered by such Selling Stockholder on such Closing
Date hereunder; and upon the delivery of and payment for the Offered
Securities on each Closing Date hereunder the several Underwriters will
acquire valid and unencumbered title to the Offered Securities to be
delivered by such Selling Stockholder on such Closing Date.
(ii) Except as disclosed in the Prospectus, there are no
contracts, agreements or understandings between the Selling Stockholder
and any person that would give rise to a valid claim against
the--such--Selling Stockholder or any Underwriter for a brokerage
commission, finder's fee or other like payment in connection with this
offering.
3. Purchase, Sale and Delivery of Offered Securities. On the basis of
the representations, warranties and agreements herein contained, but subject to
the terms and conditions herein set forth, the Company and each Selling
Stockholder agree, severally and not jointly, to sell to each Underwriter, and
each Underwriter agrees, severally and not jointly, to purchase from the Company
and each Selling Stockholder, at a purchase price of $ per share, that number of
Firm Securities (rounded up or down, as determined by Credit Suisse First Boston
Corporation ("CSFBC") in its discretion, in order to avoid fractions) obtained
by multiplying 2,750,000 Firm Securities in the case of the Company and the
number of Firm Securities set forth opposite the name of such Selling
Stockholder in Schedule A hereto, in the case of a Selling Stockholder, in each
case by a fraction the numerator of which is the number of Firm Securities set
forth opposite the name of such Underwriter in Schedule C hereto and the
denominator of which is the total number of Firm Securities.
Certificates in negotiable form for the Offered Securities to be sold by
the Selling Stockholders hereunder have been placed in custody, for delivery
under this Agreement, under Custody Agreements made with [NAME], as custodian
("CUSTODIAN"). Each Selling Stockholder agrees that the shares represented by
the certificates held in custody for Selling Stockholders under such Custody
Agreements are subject to the interests of the Underwriters hereunder, that the
arrangements made by the Selling Stockholders for such custody are to that
extent irrevocable, and that the obligations of the Selling Stockholders
hereunder shall not be terminated by operation of law, whether by the death of
any individual Selling Stockholder or the occurrence of any other event, or in
the case of a trust, by the death of any trustee or trustees or the termination
of such trust. If any individual Selling Stockholder or any such trustee or
trustees should die, or if any other such event should occur, or if any of such
trusts should terminate, before the delivery of the Offered Securities
hereunder, certificates for such Offered Securities shall be delivered by the
Custodian in accordance with the terms and conditions of this Agreement as if
such death or other event or termination had not occurred, regardless of whether
or not the Custodian shall have received notice of such death or other event or
termination.
The Company and the Custodian will deliver the Firm Securities to the
Representatives for the accounts of the Underwriters, against payment of the
purchase price in Federal (same day) funds by official bank check or checks or
wire transfer to an account at a bank acceptable to CSFBC drawn to the order of
the Company in the case of 2,750,000 shares of Firm Securities and [BANK] in the
case of 500,000 shares of Firm Securities, at the office of Testa, Hurwitz &
Thibeault, LLP, ("TESTA HURWITZ") at A.M., New York time, on March __, 2000 or
at such other time not later than seven full business days thereafter as CSFBC
and the Company determine, such time being herein referred to as the "FIRST
CLOSING DATE". The certificates for the Firm Securities so to be delivered will
be in definitive form, in such denominations and registered in such names as
CSFBC requests and will be made available for checking and packaging at the
above office of Testa Hurwitz at least 24 hours prior to the First Closing Date.
-6-
<PAGE> 7
In addition, upon written notice from CSFBC given to the Company and the
Selling Stockholders from time to time not more than 30 days subsequent to the
date of the Prospectus, the Underwriters may purchase all or less than all of
the Optional Securities at the purchase price per Security to be paid for the
Firm Securities. The Company and the Selling Stockholders agree, severally and
not jointly, that in the event the Underwriters elect to purchase all or less
than all of the Optional Securities: (i) first, Daikufu America Corporation
shall sell to the Underwriters up to 100,000 Optional Securities, and (ii)
thereafter, the remaining Selling Stockholders shall sell to the Underwriters
the respective numbers of Optional Securities obtained by multiplying the number
of Optional Securities specified in such notice less 100,000 by a fraction the
numerator of which is 330,500 in the case of the Company and the number of
shares set forth opposite the names of such remaining Selling Stockholders in
Schedule A hereto under the caption "Number of Optional Securities to be Sold"
in the case of such remaining Selling Stockholders and the denominator of which
is the total number of Optional Securities less 100,000 (subject to adjustment
by CSFBC to eliminate fractions). Such Optional Securities shall be purchased
from the Company and each Selling Stockholder for the account of each
Underwriter in the same proportion as the number of Firm Securities set forth
opposite such Underwriter's name bears to the total number of Firm Securities
(subject to adjustment by CSFBC to eliminate fractions) and may be purchased by
the Underwriters only for the purpose of covering over-allotments made in
connection with the sale of the Firm Securities. No Optional Securities shall be
sold or delivered unless the Firm Securities previously have been, or
simultaneously are, sold and delivered. The right to purchase the Optional
Securities or any portion thereof may be exercised from time to time and to the
extent not previously exercised may be surrendered and terminated at any time
upon notice by CSFBC to the Company and the Selling Stockholders.
Each time for the delivery of and payment for the Optional Securities,
being herein referred to as an "OPTIONAL CLOSING DATE", which may be the First
Closing Date (the First Closing Date and each Optional Closing Date, if any,
being sometimes referred to as a "CLOSING DATE"), shall be determined by CSFBC
but shall be not later than five full business days after written notice of
election to purchase Optional Securities is given. The Company and the Custodian
will deliver the Optional Securities being purchased on each Optional Closing
Date to the Representatives for the accounts of the several Underwriters,
against payment of the purchase price therefor in Federal (same day) funds by
official bank check or checks or wire transfer to an account at a bank
acceptable to CSFBC drawn to the order of the Company in the case of 330,500
Optional Securities and [BANK] in the case of 157,000 Optional Securities, at
the above office of Testa Hurwitz. The certificates for the Optional Securities
being purchased on each Optional Closing Date will be in definitive form, in
such denominations and registered in such names as CSFBC requests upon
reasonable notice prior to such Optional Closing Date and will be made available
for checking and packaging at the above office of Testa Hurwitz at a reasonable
time in advance of such Optional Closing Date.
4. Offering by Underwriters. It is understood that the several
Underwriters propose to offer the Offered Securities for sale to the public as
set forth in the Prospectus.
5. Certain Agreements of the Company and the Selling Stockholders.
The Company agrees with the several Underwriters and the Selling Stockholders
that:
(a) If the Effective Time of the Initial Registration Statement
is prior to the execution and delivery of this Agreement, the Company
will file the Prospectus with the Commission pursuant to and in
accordance with subparagraph (1) (or, if applicable and if consented to
by CSFBC, subparagraph (4)) of Rule 424(b) not later than the earlier of
(A) the second business day following the execution and delivery of this
Agreement or (B) the fifteenth business day after the Effective Date of
the Initial Registration Statement. The Company will advise CSFBC
promptly of any such filing pursuant to Rule 424(b). If the Effective
Time of the Initial Registration Statement is prior to the execution and
delivery of this Agreement and an additional registration statement is
necessary to register a portion of the Offered Securities under the Act
but the Effective Time thereof has not occurred as of such execution and
delivery, the Company will file the additional registration statement
-7-
<PAGE> 8
or, if filed, will file a post-effective amendment thereto with the
Commission pursuant to and in accordance with Rule 462(b) on or prior to
10:00 P.M., New York time, on the date of this Agreement or, if earlier,
on or prior to the time the Prospectus is printed and distributed to any
Underwriter, or will make such filing at such later date as shall have
been consented to by CSFBC.
(b) The Company will advise CSFBC promptly of any proposal to
amend or supplement the initial or any additional registration statement
as filed or the related prospectus or the Initial Registration Statement,
the Additional Registration Statement (if any) or the Prospectus and will
not effect such amendment or supplementation without CSFBC's consent; and
the Company will also advise CSFBC promptly of the effectiveness of each
Registration Statement (if its Effective Time is subsequent to the
execution and delivery of this Agreement) and of any amendment or
supplementation of a Registration Statement or the Prospectus and of the
institution by the Commission of any stop order proceedings in respect of
a Registration Statement and will use its best efforts to prevent the
issuance of any such stop order and to obtain as soon as possible its
lifting, if issued.
(c) If, at any time when a prospectus relating to the Offered
Securities is required to be delivered under the Act in connection with
sales by any Underwriter or dealer, any event occurs as a result of which
the Prospectus as then amended or supplemented would include an untrue
statement of a material fact or omit to state any material fact necessary
to make the statements therein, in the light of the circumstances under
which they were made, not misleading, or if it is necessary at any time
to amend the Prospectus to comply with the Act, the Company will promptly
notify CSFBC of such event and will promptly prepare and file with the
Commission, at its own expense, an amendment or supplement which will
correct such statement or omission or an amendment which will effect such
compliance. Neither CSFBC's consent to, nor the Underwriters' delivery
of, any such amendment or supplement shall constitute a waiver of any of
the conditions set forth in Section 6.
(d) As soon as practicable, but not later than the Availability
Date (as defined below), the Company will make generally available to its
securityholders an earnings statement covering a period of at least 12
months beginning after the Effective Date of the Initial Registration
Statement (or, if later, the Effective Date of the Additional
Registration Statement) which will satisfy the provisions of Section
11(a) of the Act. For the purpose of the preceding sentence,
"AVAILABILITY DATE" means the 45th day after the end of the fourth fiscal
quarter following the fiscal quarter that includes such Effective Date,
except that, if such fourth fiscal quarter is the last quarter of the
Company's fiscal year, "AVAILABILITY DATE" means the 90th day after the
end of such fourth fiscal quarter.
(e) The Company will furnish to the Representatives copies of
each Registration Statement (6 of which will be signed and will include
all exhibits), each related preliminary prospectus, and, so long as a
prospectus relating to the Offered Securities is required to be delivered
under the Act in connection with sales by any Underwriter or dealer, the
Prospectus and all amendments and supplements to such documents, in each
case in such quantities as CSFBC requests. The Prospectus shall be so
furnished on or prior to 3:00 P.M., New York time, on the business day
following the later of the execution and delivery of this Agreement or
the Effective Time of the Initial Registration Statement. All other such
documents shall be so furnished as soon as available. The Company and the
Selling Stockholders will pay the expenses of printing and distributing
to the Underwriters all such documents.
(f) The Company will arrange for the qualification of the
Offered Securities for sale under the laws of such jurisdictions as CSFBC
designates and will continue such qualifications in effect so long as
required for the distribution.
-8-
<PAGE> 9
(g) During the period of five years hereafter, the Company will
furnish to the Representatives and, upon request, to each of the other
Underwriters, as soon as practicable after the end of each fiscal year, a
copy of its annual report to stockholders for such year; and the Company
will furnish to the Representatives (i) as soon as available, a copy of
each report and any definitive proxy statement of the Company filed with
the Commission under the Securities Exchange Act of 1934 or mailed to
stockholders, and (ii) from time to time, such other information
concerning the Company as CSFBC may reasonably request.
(h) For a period of 90 days after the date of the initial
public offering of the Offered Securities, the Company will not offer,
sell, contract to sell, pledge or otherwise dispose of, directly or
indirectly, or file with the Commission a registration statement under
the Act relating to, any additional shares of its Securities or
securities convertible into or exchangeable or exercisable for any shares
of its Securities, or publicly disclose the intention to make any such
offer, sale, pledge, disposition or filing, without the prior written
consent of CSFBC, except issuances of Securities pursuant to the terms of
an employee stock purchase plan in effect on the date hereof, grants of
employee stock options pursuant to the terms of a plan in effect on the
date hereof and issuances of Securities pursuant to the exercise of such
options or the exercise of any other employee stock option outstanding on
the date hereof .
(i) The Company agrees with the several Underwriters that the
Company will pay all expenses incident to the performance of the
obligations of the Company and each Selling Stockholder, as the case may
be, under this Agreement, for any filing fees and other expenses
(including fees and disbursements of counsel) in connection with
qualification of the Offered Securities for sale under the laws of such
jurisdictions as CSFBC designates and the printing of memoranda relating
thereto, for the filing fee incident to, and the reasonable fees and
disbursements of counsel to the Underwriters in connection with, the
review by the National Association of Securities Dealers, Inc. of the
Offered Securities, for any travel expenses of the Company's officers and
employees and any other expenses of the Company in connection with
attending or hosting meetings with prospective purchasers of the Offered
Securities, for any transfer taxes on the sale by the Selling
Stockholders of the Offered Securities to the Underwriters and for
expenses incurred in distributing preliminary prospectuses and the
Prospectus (including any amendments and supplements thereto) to the
Underwriters. This Section 5(i) shall not affect or modify any separate,
valid agreement relating to the allocation of payment expenses between
the Company, on the one hand, and any Selling Stockholders, on the other
hand.
(j) Each Selling Stockholder agrees to deliver to CSFBC,
attention: Transactions Advisory Group on or prior to the First Closing
Date a properly completed and executed United States Treasury Department
Form W-9 (or other applicable form or statement specified by Treasury
Department regulations in lieu thereof).
(k) Each Selling Stockholder agrees, for a period of 90 days
after the date of the initial public offering of the Offered Securities,
not to offer, sell, contract to sell, pledge or otherwise dispose of,
directly or indirectly, any additional shares of the Securities of the
Company or securities convertible into or exchangeable or exercisable for
any shares of Securities, enter into a transaction which would have the
same effect, or enter into any swap, hedge or other arrangement that
transfers, in whole or in part, any of the economic consequences of
ownership of the Securities, whether any such aforementioned transaction
is to be settled by delivery of the Securities or such other securities,
in cash or otherwise, or publicly disclose the intention to make any such
offer, sale, pledge or disposition, or enter into any such transaction,
swap, hedge or other arrangement, without, in each case, the prior
written consent of CSFBC.
-9-
<PAGE> 10
6. Conditions of the Obligations of the Underwriters. The obligations
of the several Underwriters to purchase and pay for the Firm Securities on the
First Closing Date and the Optional Securities to be purchased on each Optional
Closing Date will be subject to the accuracy of the representations and
warranties on the part of the Company and the Selling Stockholders herein, to
the accuracy of the statements of Company officers made pursuant to the
provisions hereof, to the performance by the Company and the Selling
Stockholders of their obligations hereunder and to the following additional
conditions precedent:
(a) (1) The Representatives shall have received a letter, dated
the date of delivery thereof (which, if the Effective Time of the Initial
Registration Statement is prior to the execution and delivery of this
Agreement, shall be on or prior to the date of this Agreement or, if the
Effective Time of the Initial Registration Statement is subsequent to the
execution and delivery of this Agreement, shall be prior to the filing of
the amendment or post-effective amendment to the registration statement
to be filed shortly prior to such Effective Time), of
PricewaterhouseCoopers LLP confirming that they are independent public
accountants within the meaning of the Act and the applicable published
Rules and Regulations thereunder and stating to the effect that:
(i) in their opinion the financial statements, financial
summaries and financial schedules examined by them and included in
the Registration Statements comply as to form in all material
respects with the applicable accounting requirements of the Act
and the related published Rules and Regulations;
(ii) in their opinion the unaudited pro forma financial
information examined by them and included in the Registration
Statements complies as to form in all material respects with the
applicable accounting requirements of the Act and the related
published Rules and Regulations;
(iii) they have performed the procedures specified by the
American Institute of Certified Public Accountants for a review of
interim financial information as described in Statement of
Auditing Standards No. 71, Interim Financial Information, on the
unaudited financial statements included in the Registration
Statements;
(iv) on the basis of the review referred to in clause
(iii) above, a reading of the latest available interim financial
statements of the Company, inquiries of officials of the Company
who have responsibility for financial and accounting matters and
other specified procedures, nothing came to their attention that
caused them to believe that:
(A) the unaudited financial statements included
in the Registration Statements do not comply as to form in
all material respects with the applicable accounting
requirements of the Act and the related published Rules and
Regulations or any material modifications should be made to
such unaudited financial statements for them to be in
conformity with generally accepted accounting principles;
(B) at the date of the latest available balance
sheet read by such accountants, or at a subsequent
specified date not more than three business days prior to
the date of this Agreement, there was any change in the
capital stock or any increase in short-term indebtedness or
long-term debt of the Company and its consolidated
subsidiaries or, at the date of the latest available
balance sheet read by such accountants, there was any
decrease in consolidated net current assets or net assets,
as compared with amounts shown on the latest balance sheet
included in the Prospectus; or
-10-
<PAGE> 11
(C) for the period from the closing date of the
latest income statement included in the Prospectus to the
closing date of the latest available income statement read
by such accountants there were any decreases, as compared
with the corresponding period of the previous year and with
the period of corresponding length ended the date of the
latest income statement included in the Prospectus, in
consolidated net sales or net operating income in the total
or per share amounts of consolidated income before
extraordinary items or net income;
except in all cases set forth in clauses (A), (B) and (C) above
for changes, increases or decreases which the Prospectus discloses
have occurred or may occur or which are described in such letter;
and
(v) they have compared specified dollar amounts (or
percentages derived from such dollar amounts) and other financial
information contained in the Registration Statements (in each case
to the extent that such dollar amounts, percentages and other
financial information are derived from the general accounting
records of the Company and its subsidiaries subject to the
internal controls of the Company's accounting system or are
derived directly from such records by analysis or computation)
with the results obtained from inquiries, a reading of such
general accounting records and other procedures specified in such
letter and have found such dollar amounts, percentages and other
financial information to be in agreement with such results, except
as otherwise specified in such letter.
(2) The Representatives shall have received a letter, dated the
date of delivery thereof (which, if the Effective Time of the Initial
Registration Statement is prior to the execution and delivery of this
Agreement, shall be on or prior to the date of this Agreement or, if the
Effective Time of the Initial Registration Statement is subsequent to the
execution and delivery of this Agreement, shall be prior to the filing of
the amendment or post-effective amendment to the registration statement
to be filed shortly prior to such Effective Time), of Dr. Ebner, Dr.
Stolz and Partner GmbH confirming that they are independent public
accountants within the meaning of the Act and the applicable published
Rules and Regulations thereunder and stating to the effect that:
(i) in their opinion the financial statements, financial
summaries and financial schedules examined by them and included in
the Registration Statements comply as to form in all material
respects with the applicable accounting requirements of the Act
and the related published Rules and Regulations; and
(ii) in their opinion the unaudited pro forma financial
information examined by them and included in the Registration
Statements complies as to form in all material respects with the
applicable accounting requirements of the Act and the related
published Rules and Regulations.
For purposes of this entire subsection (a), (i) if the Effective Time of
the Initial Registration Statements is subsequent to the execution and
delivery of this Agreement, "REGISTRATION STATEMENTS" shall mean the
initial registration statement as proposed to be amended by the amendment
or post-effective amendment to be filed shortly prior to its Effective
Time, (ii) if the Effective Time of the Initial Registration Statements
is prior to the execution and delivery of this Agreement but the
Effective Time of the Additional Registration Statement is subsequent to
such execution and delivery, "REGISTRATION STATEMENTS" shall mean the
Initial Registration Statement and the additional registration statement
as proposed to be filed or as proposed to be amended by the
post-effective amendment to be filed shortly prior to its Effective Time,
and (iii) "PROSPECTUS" shall mean the
-11-
<PAGE> 12
prospectus included in the Registration Statements. All financial
statements and schedules included in material incorporated by reference
into the Prospectus shall be deemed included in the Registration
Statements for purposes of this subsection.
(b) If the Effective Time of the Initial Registration Statement
is not prior to the execution and delivery of this Agreement, such
Effective Time shall have occurred not later than 10:00 P.M., New York
time, on the date of this Agreement or such later date as shall have been
consented to by CSFBC. If the Effective Time of the Additional
Registration Statement (if any) is not prior to the execution and
delivery of this Agreement, such Effective Time shall have occurred not
later than 10:00 P.M., New York time, on the date of this Agreement or,
if earlier, the time the Prospectus is printed and distributed to any
Underwriter, or shall have occurred at such later date as shall have been
consented to by CSFBC. If the Effective Time of the Initial Registration
Statement is prior to the execution and delivery of this Agreement, the
Prospectus shall have been filed with the Commission in accordance with
the Rules and Regulations and Section 5(a) of this Agreement. Prior to
such Closing Date, no stop order suspending the effectiveness of a
Registration Statement shall have been issued and no proceedings for that
purpose shall have been instituted or, to the knowledge of any Selling
Stockholder, the Company or the Representatives, shall be contemplated by
the Commission.
(c) Subsequent to the execution and delivery of this Agreement,
there shall not have occurred (i) any change, or any development or event
involving a prospective change, in the condition (financial or other),
business, properties or results of operations of the Company and its
subsidiaries taken as one enterprise which, in the judgment of a majority
in interest of the Underwriters including the Representatives, is
material and adverse and makes it impractical or inadvisable to proceed
with completion of the public offering or the sale of and payment for the
Offered Securities; (ii) any downgrading in the rating of any debt
securities of the Company by any "nationally recognized statistical
rating organization" (as defined for purposes of Rule 436(g) under the
Act), or any public announcement that any such organization has under
surveillance or review its rating of any debt securities of the Company
(other than an announcement with positive implications of a possible
upgrading, and no implication of a possible downgrading, of such rating);
(iii) any material suspension or material limitation of trading in
securities generally on the New York Stock Exchange, or any setting of
minimum prices for trading on such exchange, or any suspension of trading
of any securities of the Company on any exchange or in the
over-the-counter market; (iv) any banking moratorium declared by U.S.
Federal or New York authorities; or (v) any outbreak or escalation of
major hostilities in which the United States is involved, any declaration
of war by Congress or any other substantial national or international
calamity or emergency if, in the judgment of a majority in interest of
the Underwriters including the Representatives, the effect of any such
outbreak, escalation, declaration, calamity or emergency makes it
impractical or inadvisable to proceed with completion of the public
offering or the sale of and payment for the Offered Securities.
(d) (1) The Representatives shall have received an opinion,
dated such Closing Date, of Brown, Rudnick, Freed & Gesmer, P.C. ("BROWN
RUNDICK"), counsel for the Company, to the effect that:
(i) The Company has been duly incorporated and is an
existing corporation in good standing under the laws of the State
of Delaware, with corporate power and authority to own its
properties and conduct its business as described in the
Prospectus; and the Company is duly qualified to do business as a
foreign corporation in good standing in all other jurisdictions in
which its ownership or lease of property or the conduct of its
business requires such qualification;
(ii) Each of Brooks Automation Massachusetts Securities
Corporation, FASTech
-12-
<PAGE> 13
Integration, Inc., FASTech International, Inc., Midas Software,
Inc., Smart Machines Inc., Smart Machines of California, Inc.,
AutoSimulations, Inc. and Auto-Soft Corporation, have been
been duly incorporated and is an existing corporation in good
standing under the laws of the state of its incorporation, with
corporate power and authority to own its properties and conduct
its business as described in the Prospectus; each such company is
duly qualified to do business as a foreign corporation in good
standing in all other jurisdictions in which its ownership or
lease of property or the conduct of its business requires such
qualification; and all of the issued and outstanding shares of
each such company have been duly and validly authorized and
issued, are fully paid and nonassessable and, unless otherwise
stated in the Prospectus, are owned beneficially by the Company
free and clear of all liens, encumbrances, equities, claims,
security interests, voting trusts or other defects of title
whatsoever;
(iii) The Offered Securities delivered on such Closing
Date and all other outstanding shares of the Common Stock of the
Company have been duly authorized and validly issued, are fully
paid and nonassessable and conform to the description thereof
contained in the Prospectus; and the stockholders of the Company
have no preemptive rights with respect to the Securities;
(iv) Except as disclosed in the Prospectus, there are no
contracts, agreements or understandings known to such counsel
between the Company and any person granting such person the right
to require the Company to file a registration statement under the
Act with respect to any securities of the Company owned or to be
owned by such person or to require the Company to include such
securities in the securities registered pursuant to the
Registration Statement or in any securities being registered
pursuant to any other registration statement filed by the Company
under the Act;
(v) No consent, approval, authorization or order of, or
filing with, any governmental agency or body or any court is
required to be obtained or made by the Company or any Selling
Stockholder for the consummation of the transactions contemplated
by this Agreement or the Custody Agreement in connection with the
sale of the Offered Securities, except such as have been obtained
and made under the Act and such as may be required under state
securities laws;
(vi) The execution, delivery and performance of this
Agreement or the Custody Agreement and the consummation of the
transactions herein or therein contemplated will not result in a
breach or violation of any of the terms and provisions of, or
constitute a default under, any statute, any rule, regulation or
order of any governmental agency or body or any court having
jurisdiction over the Company or any subsidiary of the Company or
any of their properties, or any agreement or instrument to which
the Company or any such subsidiary is a party or by which the
Company or any such subsidiary is bound or to which any of the
properties of the Company or any such subsidiary is subject, or
the charter or by-laws of the Company or any such subsidiary;
(vii) The Initial Registration Statement was declared
effective under the Act as of the date and time specified in such
opinion, the Additional Registration Statement (if any) was filed
and became effective under the Act as of the date and time (if
determinable) specified in such opinion, the Prospectus either was
filed with the Commission pursuant to the subparagraph of Rule
424(b) specified in such opinion on the date specified therein or
was included in the Initial Registration Statement or the
Additional Registration Statement (as the case may be), and, to
the best of the knowledge of such counsel, no stop order
-13-
<PAGE> 14
suspending the effectiveness of a Registration Statement or any
part thereof has been issued and no proceedings for that purpose
have been instituted or are pending or contemplated under the Act,
and each Registration Statement and the Prospectus, and each
amendment or supplement thereto, as of their respective effective
or issue dates, complied as to form in all material respects with
the requirements of the Act and the Rules and Regulations; such
counsel have no reason to believe that any part of a Registration
Statement or any amendment thereto, as of its effective date or as
of such Closing Date, contained any untrue statement of a material
fact or omitted to state any material fact required to be stated
therein or necessary to make the statements therein not
misleading; or that the Prospectus or any amendment or supplement
thereto, as of its issue date or as of such Closing Date,
contained any untrue statement of a material fact or omitted to
state any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were
made, not misleading; the descriptions in the Registration
Statements and Prospectus of statutes, legal and governmental
proceedings and contracts and other documents are accurate and
fairly present the information required to be shown; and such
counsel do not know of any legal or governmental proceedings
required to be described in a Registration Statement or the
Prospectus which are not described as required or of any contracts
or documents of a character required to be described in a
Registration Statement or the Prospectus or to be filed as
exhibits to a Registration Statement which are not described and
filed as required; it being understood that such counsel need
express no opinion as to the financial statements or other
financial data contained in the Registration Statements or the
Prospectus;
(viii) This Agreement has been duly authorized, executed
and delivered by the Company; and
(ix) All Offered Securities have been accepted for
quotation on the Nasdaq National Market, subject to official
notice of issuance.
(2) The Representatives shall have received an opinion, dated
such Closing Date, from each of the following: local counsel in Barbados
for Brooks Automation International Ltd., local counsel in the United
Kingdom for Brooks Automation, Ltd., local counsel in Japan for Brooks
Automation K.K., local counsel in Ireland for FASTech International Ltd.,
local counsel in Singapore for FASTech Asia Pte Ltd., local counsel in
the Netherlands for FASTech International, B.V., local counsel in Germany
for Brooks Automation GmbH, local counsel in Canada for Brooks Automation
Software Corp., local counsel in Taiwan for Brooks Automation Taiwan,
local counsel in Korea for Hanyon Technologies Co. Ltd., local counsel in
Korea for Brooks Automation Korea, Ltd., local counsel in Korea for
Brooks Automation Asia, Ltd., local counsel in France for Brooks
Automation S.A.R.L. and local counsel in Malaysia for Brooks Automation
SND. BHD., in each case to the effect that each such company has been
duly incorporated and is an existing corporation in good standing under
the laws of the jurisdiction of its incorporation or organization, with
corporate power and authority to own its properties and conduct its
business as described in the Prospectus, that, if applicable, each such
company is duly qualified to do business as a foreign corporation in good
standing in all other jurisdictions in which its ownership or lease of
property or the conduct of its business requires such qualification and
that all of the issued and outstanding shares or equivalent equity
interests of each such company have been duly and validly authorized and
issued, are fully paid and nonassessable and, unless otherwise stated in
the Prospectus, are owned beneficially by the Company free and clear of
all liens, encumbrances, equities, claims, security interests, voting
trusts or other defects of title whatsoever.
-14-
<PAGE> 15
(3) The Representatives shall have received an opinion, dated
such Closing Date, of Perman & Green, patent counsel for the Company, in
form and substance reasonably satisfactory in all respects to the
Representatives and their counsel.
(e) The Representatives shall have received the opinion
contemplated in the Power of Attorney executed and delivered by each
Selling Stockholder and an opinion, dated such Closing Date, of [FIRM],
with respect to Daikufu America Corporation, or Brown Rudnick, with
respect to the remaining Selling Stockholders, to the effect that:
(i) Such Selling Stockholder had valid and unencumbered
title to the Offered Securities delivered by such Selling
Stockholder on such Closing Date and had full right, power and
authority to sell, assign, transfer and deliver the Offered
Securities delivered by such Selling Stockholder on such Closing
Date hereunder; and the several Underwriters have acquired valid
and unencumbered title to the Offered Securities purchased by them
from the Selling Stockholders on such Closing Date hereunder;
(ii) No consent, approval, authorization or order of, or
filing with, any governmental agency or body or any court is
required to be obtained or made by such Selling Stockholder for
the consummation of the transactions contemplated by the Custody
Agreement or this Agreement in connection with the sale of the
Offered Securities sold by such Selling Stockholder, except such
as have been obtained and made under the Act and such as may be
required under state securities laws;
(iii) The execution, delivery and performance of the
Custody Agreement and this Agreement and the consummation of the
transactions therein and herein contemplated will not result in a
breach or violation of any of the terms and provisions of, or
constitute a default under, any statute, any rule, regulation or
order of any governmental agency or body or any court having
jurisdiction over such Selling Stockholder or any of his, her or
its properties or any agreement or instrument to which such
Selling Stockholder is a party or by which such Selling
Stockholder is bound or to which any of the properties of such
Selling Stockholder is subject or, if the Selling Stockholder is a
corporation, the charter or by-laws of such Selling Stockholder;
(iv) The Power of Attorney and related Custody Agreement
with respect to such Selling Stockholder has been duly authorized,
executed and delivered by such Selling Stockholder and constitute
valid and legally binding obligations of such Selling Stockholder
enforceable in accordance with their terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or affecting
creditors' rights and to general equity principles; and
(v) This Agreement has been duly authorized, executed
and delivered by such Selling Stockholder.
(f) The Representatives shall have received from Testa Hurwitz,
counsel for the Underwriters, such opinion or opinions, dated such
Closing Date, with respect to the incorporation of the Company, the
validity of the Offered Securities delivered on such Closing Date, the
Registration Statements, the Prospectus and other related matters as the
Representatives may require, and the Selling Stockholders and the Company
shall have furnished to such counsel such documents as they request for
the purpose of enabling them to pass upon such matters.
(g) The Representatives shall have received a certificate,
dated such Closing Date, of the
-15-
<PAGE> 16
President or any Vice President and a principal financial or accounting
officer of the Company in which such officers, to the best of their
knowledge after reasonable investigation, shall state that: the
representations and warranties of the Company in this Agreement are true
and correct; the Company has complied with all agreements and satisfied
all conditions on its part to be performed or satisfied hereunder at or
prior to such Closing Date; no stop order suspending the effectiveness of
any Registration Statement has been issued and no proceedings for that
purpose have been instituted or are contemplated by the Commission; the
Additional Registration Statement (if any) satisfying the requirements of
subparagraphs (1) and (3) of Rule 462(b) was filed pursuant to Rule
462(b), including payment of the applicable filing fee in accordance with
Rule 111(a) or (b) under the Act, prior to the time the Prospectus was
printed and distributed to any Underwriter; and, subsequent to the dates
of the most recent financial statements in the Prospectus, there has been
no material adverse change, nor any development or event involving a
prospective material adverse change, in the condition (financial or
other), business, properties or results of operations of the Company and
its subsidiaries taken as a whole except as set forth in or contemplated
by the Prospectus or as described in such certificate.
(h) The Representatives shall have received a letter, dated
such Closing Date, of PricewaterhouseCoopers LLP which meets the
requirements of subsection (a) of this Section, except that the specified
date referred to in such subsection will be a date not more than three
days prior to such Closing Date for the purposes of this subsection.
(i) On or prior to the date of this Agreement, the
Representatives shall have received lockup letters from each of executive
officers and directors of the Company who are not Selling Stockholders.
The Selling Stockholders and the Company will furnish the Representatives with
such conformed copies of such opinions, certificates, letters and documents as
the Representatives reasonably request. CSFBC may in its sole discretion waive
on behalf of the Underwriters compliance with any conditions to the obligations
of the Underwriters hereunder, whether in respect of an Optional Closing Date or
otherwise.
7. Insurance. The Selling Stockholders will provide not later than
the First Closing Date a policy or undertaking of , or other insurers, in
form satisfactory to CSFBC indemnifying in the aggregate amount of $ each
Underwriter and each person, if any, who controls any Underwriter within the
meaning of the Act in priority to any others insured against any losses, claims,
damages or liabilities, or expenses in connection therewith, joint or several,
to which such or such controlling person may become subject under the Act or
otherwise and which arise out of the purchase, offering or sale by such
Underwriter of the Offered Securities sold by the Selling Stockholders. Such
insurance may provide for a deductible amount not in excess of $ .
8. Indemnification and Contribution. (a) The Company will indemnify
and hold harmless each Underwriter, its partners, directors and officers and
each person, if any who controls such Underwriter within the meaning of Section
15 of the Act, against any losses, claims, damages or liabilities, joint or
several, to which such Underwriter may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in any Registration Statement,
the Prospectus, or any amendment or supplement thereto, or any related
preliminary prospectus, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, and will reimburse
each Underwriter for any legal or other expenses reasonably incurred by such
Underwriter in connection with investigating or defending any such loss, claim,
damage, liability or action as such expenses are incurred; provided, however,
that the liability of the Company under this Section shall be limited to the
amount of losses, claims, damages or liabilities which are not covered
-16-
<PAGE> 17
and paid by the insurance referred to in Section 7 (whether by reason of being
within the deductible amount or for any other reason); and provided, further,
that the Company will not be liable in any such case to the extent that any such
loss, claim, damage or liability arises out of or is based upon an untrue
statement or alleged untrue statement in or omission or alleged omission from
any of such documents in reliance upon and in conformity with written
information furnished to the Company by any Underwriter through the
Representatives specifically for use therein, it being understood and agreed
that the only such information furnished by any Underwriter consists of the
information described as such in subsection (c) below.
(b) The Selling Stockholders, jointly and severally, will indemnify
and hold harmless each Underwriter, its partners, directors and officers and
each person who controls such Underwriter within the meaning of Section 15 of
the Act, against any losses, claims, damages or liabilities, joint or several,
to which such Underwriter may become subject, under the Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged untrue
statement of any material fact contained in any Registration Statement, the
Prospectus, or any amendment or supplement thereto, or any related preliminary
prospectus, or arise out of or are based upon the omission or alleged omission
to state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, and will reimburse each Underwriter
for any legal or other expenses reasonably incurred by such Underwriter in
connection with investigating or defending any such loss, claim, damage,
liability or action as such expenses are incurred; PROVIDED, HOWEVER, (i) that
the liability of the Selling Stockholders under this Section shall be limited to
the amount of losses, claims, damages or liabilities which are not covered and
paid by the insurance referred to in Section 7 (whether by reason of being
within the deductible amount or for any other reason); (ii) that the Selling
Stockholders will not be liable in any such case to the extent that any such
loss, claim, damage or liability arises out of or is based upon an untrue
statement or alleged untrue statement in or omission or alleged omission from
any of such documents in reliance upon and in conformity with written
information furnished to the Company by an Underwriter through the
Representatives specifically for use therein, it being understood and agreed
that the only such information furnished by any Underwriter consists of the
information described as such in subsection (c) below, and (iii) that the
liability of each Selling Stockholder under this Section shall be limited to an
amount equal to the initial public offering price of the Offered Securities sold
by such Selling Stockholder to the Underwriters minus the amount of the
underwriting discounts and commissions paid thereon to the Underwriters by such
Selling Stockholder.
(c) Each Underwriter will severally and not jointly indemnify and hold
harmless the Company, its directors and officers and each person, if any, who
controls the Company within the meaning of Section 15 of the Act, and each
Selling Stockholder against any losses, claims, damages or liabilities to which
the Company or such Selling Stockholder may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in any Registration Statement,
the Prospectus, or any amendment or supplement thereto, or any related
preliminary prospectus, or arise out of or are based upon the omission or the
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, in each case to the
extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and in
conformity with written information furnished to the Company by such Underwriter
through the Representatives specifically for use therein, and will reimburse any
legal or other expenses reasonably incurred by the Company and each Selling
Stockholder in connection with investigating or defending any such loss, claim,
damage, liability or action as such expenses are incurred, it being understood
and agreed that the only such information furnished by any Underwriter consists
of the following information in the Prospectus furnished on behalf of each
Underwriter: the concession and reallowance figures appearing in the fourth
paragraph under the caption "Underwriting" and the information in the ninth
paragraph under the caption "Underwriting".
-17-
<PAGE> 18
(d) Promptly after receipt by an indemnified party under this Section
of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against an indemnifying party under
subsection (a), (b) or (c) above, notify the indemnifying party of the
commencement thereof; but the omission so to notify the indemnifying party will
not relieve it from any liability which it may have to any indemnified party
otherwise than under subsection (a), (b) or (c) above. In case any such action
is brought against any indemnified party and it notifies an indemnifying party
of the commencement thereof, the indemnifying party will be entitled to
participate therein and, to the extent that it may wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof, with
counsel satisfactory to such indemnified party (who shall not, except with the
consent of the indemnified party, be counsel to the indemnifying party), and
after notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, the indemnifying party will not be
liable to such indemnified party under this Section for any legal or other
expenses subsequently incurred by such indemnified party in connection with the
defense thereof other than reasonable costs of investigation. No indemnifying
party shall, without the prior written consent of the indemnified party, effect
any settlement of any pending or threatened action in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party unless such (i) settlement includes
an unconditional release of such indemnified party from all liability on any
claims that are the subject matter of such action and (ii) does not include a
statement as to, or an admission of, fault, culpability or a failure to act by
or on behalf of an indemnified party.
(e) If the indemnification provided for in this Section is unavailable
or insufficient to hold harmless an indemnified party under subsection (a), (b)
or (c) above, then each indemnifying party shall contribute to the amount paid
or payable by such indemnified party as a result of the losses, claims, damages
or liabilities referred to in subsection (a), (b) or (c) above (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company and the Selling Stockholders on the one hand and the Underwriters on the
other from the offering of the Securities or (ii) if the allocation provided by
clause (i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Company and the Selling Stockholders on
the one hand and the Underwriters on the other in connection with the statements
or omissions which resulted in such losses, claims, damages or liabilities as
well as any other relevant equitable considerations. The relative benefits
received by the Company and the Selling Stockholders on the one hand and the
Underwriters on the other shall be deemed to be in the same proportion as the
total net proceeds from the offering (before deducting expenses) received by the
Company and the Selling Stockholders bear to the total underwriting discounts
and commissions received by the Underwriters. The relative fault shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Company, the Selling
Stockholders or the Underwriters and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such untrue
statement or omission. The amount paid by an indemnified party as a result of
the losses, claims, damages or liabilities referred to in the first sentence of
this subsection (e) shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any action or claim which is the subject of this subsection (e).
Notwithstanding the provisions of this subsection (e), no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Securities underwritten by it and distributed to the public
were offered to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters' obligations in this subsection
(e) to contribute are several in proportion to their respective underwriting
obligations and not joint.
(f) The obligations of the Company and the Selling Stockholders under
this Section shall be in addition to any liability which the Company and the
Selling Stockholders may otherwise have and shall extend, upon the same terms
and conditions, to each person, if any, who controls any Underwriter within the
meaning
-18-
<PAGE> 19
of the Act; and the obligations of the Underwriters under this Section shall be
in addition to any liability which the respective Underwriters may otherwise
have and shall extend, upon the same terms and conditions, to each director of
the Company, to each officer of the Company who has signed a Registration
Statement and to each person, if any, who controls the Company within the
meaning of the Act.
9. Default of Underwriters. If any Underwriter or Underwriters
default in their obligations to purchase Offered Securities hereunder on either
the First or any Optional Closing Date and the aggregate number of shares of
Offered Securities that such defaulting Underwriter or Underwriters agreed but
failed to purchase does not exceed 10% of the total number of shares of Offered
Securities that the Underwriters are obligated to purchase on such Closing Date,
CSFBC may make arrangements satisfactory to the Company and the Selling
Stockholders for the purchase of such Offered Securities by other persons,
including any of the Underwriters, but if no such arrangements are made by such
Closing Date, the non-defaulting Underwriters shall be obligated severally, in
proportion to their respective commitments hereunder, to purchase the Offered
Securities that such defaulting Underwriters agreed but failed to purchase on
such Closing Date. If any Underwriter or Underwriters so default and the
aggregate number of shares of Offered Securities with respect to which such
default or defaults occur exceeds 10% of the total number of shares of Offered
Securities that the Underwriters are obligated to purchase on such Closing Date
and arrangements satisfactory to CSFBC, the Company and the Selling Stockholders
for the purchase of such Offered Securities by other persons are not made within
36 hours after such default, this Agreement will terminate without liability on
the part of any non-defaulting Underwriter, the Company or the Selling
Stockholders, except as provided in Section 10 (provided that if such default
occurs with respect to Optional Securities after the First Closing Date, this
Agreement will not terminate as to the Firm Securities or any Optional
Securities purchased prior to such termination). As used in this Agreement, the
term "Underwriter" includes any person substituted for an Underwriter under this
Section. Nothing herein will relieve a defaulting Underwriter from liability for
its default.
10. Survival of Certain Representations and Obligations. The
respective indemnities, agreements, representations, warranties and other
statements of the Selling Stockholders, of the Company or its officers and of
the several Underwriters set forth in or made pursuant to this Agreement will
remain in full force and effect, regardless of any investigation, or statement
as to the results thereof, made by or on behalf of any Underwriter, any Selling
Stockholder, the Company or any of their respective representatives, officers or
directors or any controlling person, and will survive delivery of and payment
for the Offered Securities. If this Agreement is terminated pursuant to Section
9 or if for any reason the purchase of the Offered Securities by the
Underwriters is not consummated, the Company and the Selling Stockholders shall
remain responsible for the expenses to be paid or reimbursed by them pursuant to
Section 5 and the respective obligations of the Company, the Selling
Stockholders, and the Underwriters pursuant to Section 8 shall remain in effect,
and if any Offered Securities have been purchased hereunder the representations
and warranties in Section 2 and all obligations under Section 5 shall also
remain in effect. If the purchase of the Offered Securities by the Underwriters
is not consummated for any reason other than solely because of the termination
of this Agreement pursuant to Section 9 or the occurrence of any event specified
in clause (iii), (iv) or (v) of Section 6(c), the Company and the Selling
Stockholders will, jointly and severally, reimburse the Underwriters for all
out-of-pocket expenses (including fees and disbursements of counsel) reasonably
incurred by them in connection with the offering of the Offered Securities.
11. Notices. All communications hereunder will be in writing and, if
sent to the Underwriters, will be mailed, delivered or telegraphed and confirmed
to the Representatives at Credit Suisse First Boston Corporation, Eleven Madison
Avenue, New York, N.Y. 10010-3629, Attention: Investment Banking Department -
Transactions Advisory Group, or, if sent to the Company, will be mailed,
delivered or telegraphed and confirmed to it at 15 Elizabeth Drive, Chelmsford,
MA 01824, Attention: Robert J. Therrien, or, if sent to the Selling Stockholders
or any of them, will be mailed, delivered or telegraphed and confirmed to
at ; provided, however, that any notice to an Underwriter pursuant to
Section 7 will be mailed, delivered or telegraphed and confirmed to such
Underwriter.
-19-
<PAGE> 20
12. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective personal representatives
and successors and the officers and directors and controlling persons referred
to in Section 7, and no other person will have any right or obligation
hereunder.
13. Representation. The Representatives will act for the several
Underwriters in connection with the transactions contemplated by this Agreement,
and any action under this Agreement taken by the Representatives will be binding
upon all the Underwriters. [NAME] will act for the Selling Stockholders in
connection with such transactions, and any action under or in respect of this
Agreement taken by [NAME] will be binding upon all the Selling Stockholders.
14. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
15. Applicable Law. This Agreement shall be governed by, and construed
in accordance with, the laws of the State of New York, without regard to
principles of conflicts of laws. The Company and each Selling Stockholder hereby
submits to the non-exclusive jurisdiction of the Federal and state courts in the
Borough of Manhattan in The City of New York in any suit or proceeding arising
out of or relating to this Agreement or the transactions contemplated hereby.
-20-
<PAGE> 21
If the foregoing is in accordance with the Representatives' understanding
of our agreement, kindly sign and return to the Company one of the counterparts
hereof, whereupon it will become a binding agreement among the Selling
Stockholders, the Company and the several Underwriters in accordance with its
terms.
Very truly yours,
THE SELLING STOCKHOLDERS LISTED ON
SCHEDULE A ATTACHED HERETO
By:
------------------------------------
Name:
Title:
As Attorney-in-Fact acting on behalf
of each of the Selling Stockholders
named in Schedule A attached hereto
BROOKS AUTOMATION, INC.
By:
------------------------------------
Name:
Title:
The foregoing Underwriting Agreement is hereby
confirmed and accepted as of the date first above
written.
CREDIT SUISSE FIRST BOSTON CORPORATION
SG COWEN SECURITIES CORPORATION
NEEDHAM & COMPANY, INC.
ADAMS, HARKNESS & HILL, INC.
SOUNDVIEW TECHNOLOGY GROUP, INC.
Acting on behalf of themselves and as the
Representatives of the several
Underwriters.
By CREDIT SUISSE FIRST BOSTON CORPORATION
By:
-------------------------------------
Name:
Director
-21-
<PAGE> 22
SCHEDULE A
NUMBER OF
NUMBER OF OPTIONAL
FIRM SECURITIES SECURITIES TO
SELLING STOCKHOLDER(S) TO BE SOLD BE SOLD
---------------------- --------------- -------------
Daifuku America Corporation 150,000 100,000
Robert Therrien 255,000 45,000
David Beaulieu 5,000 1,000
Ellen Richstone 7,000 1,000
James Pelusi 9,000 1,000
Michael Pippins 33,000 5,000
Michael Werner 36,000 4,000
Lynda Avallone 2,500 --
Steven Hebert 2,500 --
-------- -------
500,000 165,000
Total ........................................ ======== =======
-22-
<PAGE> 23
SCHEDULE B
-23-
<PAGE> 24
SCHEDULE C
NUMBER OF
FIRM SECURITIES
UNDERWRITER TO BE PURCHASED
----------- ---------------
Credit Suisse First Boston Corporation........................
SG Cowen Securities Corporation...............................
Needham & Company, Inc........................................
Adams, Harkness & Hill, Inc...................................
SoundView Technology Group, Inc...............................
-----------
Total ........................................ ===========
<PAGE> 1
Exhibit 5.01
February 11, 2000
Brooks Automation, Inc.
15 Elizabeth Drive
Chelmsford, MA 01824
RE: Registration Statement on Form S-3 of Brooks Automation, Inc.
filed on February 11, 2000
----------------------------------------------------------------------
Ladies and Gentlemen:
We have acted as counsel to Brooks Automation, Inc., a Delaware corporation
(the "Company"), in connection with the preparation and filing with the
Securities and Exchange Commission of a Registration Statement on Form S-3 (the
"Registration Statement") pursuant to which the Company is registering under the
Securities Act of 1933, as amended (the "Act"), a total of 3,737,500 shares of
common stock, $.01 par value (the "Common Stock"). Pursuant to the Registration
Statement and an underwriting agreement (the "Underwriting Agreement") by and
among the Company, Credit Suisse First Boston Corporation; SG Cowen Securities
Corporation; Needham & Company, Inc.; Adams, Harkness & Hill, Inc. and
SoundView Technology Group, Inc., as representatives of the several underwriters
(the "Underwriters") and certain of the Company's Stockholders (the "Selling
Stockholders"), in substantially the form filed as Exhibit 1.01 to the
Registration Statement, the Company proposes to sell to the Underwriters up to
3,080,500 shares of Common Stock (the "Company Shares") and the Selling
Stockholders propose to sell to the Underwriters up to 657,000 shares of Common
Stock (the "Selling Stockholder Shares"). This opinion is being rendered in
connection with the filing of the Registration Statement. Unless otherwise
indicated, capitalized terms used herein shall have the meanings ascribed
thereto in the Underwriting Agreement.
For purposes of this opinion, we have assumed, without any investigation,
(i) the legal capacity of each natural person, (ii) the full power and authority
of each entity and person other than the Company to execute, deliver and perform
each document heretofore executed and delivered or hereafter to be executed and
delivered and to do each other act heretofore done or hereafter to be done by
such entity or person, (iii) the due authorization by each entity or person
other than the Company of each document heretofore executed and delivered or
hereafter to be executed and delivered and to do each other act heretofore done
or to be done by such entity or person, (iv) the due execution and delivery by
each entity
<PAGE> 2
Brooks Automation, Inc.
February 11, 2000
Page 2
or person other than the Company of each document heretofore executed and
delivered or hereafter to be executed and delivered by such entity or person,
(v) the legality, validity, binding effect and enforceability as to each entity
or person other than the Company of each document heretofore executed and
delivered or hereafter to be executed and delivered and of each other act
heretofore done or hereafter to be done by such entity or person, (vi) the
genuineness of each signature on, and the completeness of each document
submitted to us as an original, (vii) the conformity to the original of each
document submitted to us as a copy, (viii) the authenticity of the original of
each document submitted to us as a copy, (ix) the completeness, accuracy and
proper indexing of all governmental and judicial records searched and (x) no
modification of any provision of any document, no waiver of any right or remedy
and no exercise of any right or remedy other than in a commercially reasonable
and conscionable manner and in good faith.
In connection with this opinion, we have examined the following
(collectively, the "Documents"):
(i) the Certificate of Incorporation of the Company;
(ii) the Bylaws of the Company;
(iii) the corporate minute books or other records of the Company;
(iv) a specimen certificate for the Common Stock incorporated by reference
as Exhibit 4.01 to the Registration Statement; and
(v) the form of Underwriting Agreement.
The opinions expressed herein are based solely upon (i) our review of the
Documents, (ii) discussions with Robert J. Therrien, the Chief Executive Officer
and President of the Company and Ellen B. Richstone, the Company's Senior Vice
President Finance and Administration and Chief Financial Officer; (iii) the
representations and warranties of the Company and the Selling Stockholders
contained in the Underwriting Agreement and the exhibits thereto, (iv)
discussions with those of our attorneys who have devoted substantive attention
to the matters contained herein, and (v) such review of published sources of law
as we have deemed necessary.
Our opinions contained herein are limited to the laws of The Commonwealth
of Massachusetts, the General Corporation Law of the State of Delaware and the
federal law of the United States of America.
Based upon and subject to the foregoing, we are of the opinion that:
1. The Company Shares to be sold by the Company under the circumstances
contemplated in the Registration Statement are duly authorized and, when
delivered pursuant to the Underwriting Agreement, will be validly issued, fully
paid and nonassessable.
2. The Selling Stockholder Shares to be sold by the Selling Stockholders
under the circumstances contemplated in the Registration Statement are duly
authorized, validly issued, fully paid and nonassessable.
<PAGE> 3
Brooks Automation, Inc.
February 11, 2000
Page 3
We understand that this opinion is to be used in connection with the
Registration Statement. We consent to the filing of this opinion as an Exhibit
to said Registration Statement and to the reference to our firm wherever it
appears in the Registration Statement, including the prospectus constituting a
part thereof and any amendments thereto. This opinion may be used in connection
with the offering of the Company Shares and the Selling Stockholder Shares while
the Registration Statement, as it may be amended from time to time, remains in
effect.
Very truly yours,
BROWN, RUDNICK, FREED & GESMER
By: BROWN, RUDNICK, FREED & GESMER,
P.C.
By: /s/ Samuel P. Williams
----------------------------------
Samuel P. Williams, A Member
Duly Authorized
SPW/DHM/DAG
<PAGE> 1
Exhibit 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-3 of our reports dated November 17, 1999, relating to the
consolidated financial statements and the financial statement schedule of Brooks
Automation, Inc., which appear in the Brooks Automation, Inc. Annual Report on
Form 10-K for the year ended September 30, 1999. We also consent to the
incorporation by reference of our reports dated December 27, 1999 relating to
the financial statements of AutoSimulations, Inc. and Auto-Soft Corporation,
which appear in Amendment No. 1 to the Current Report on Form 8-K/A of Brooks
Automation, Inc. dated February 14, 2000. We also consent to the reference to us
under the heading "Experts" in such Registration Statement.
PricewaterhouseCoopers LLP
Boston, Massachusetts
February 14, 2000
<PAGE> 1
Exhibit 23.3
CONSENT OF INDEPENDENT AUDITORS
We hereby consent to the incorporation by reference in this Registration
Statements on Form S-3 of Brooks Automation, Inc. of our report dated December
13, 1999, relating to the financial statements prepared in conformity with
German GAAP of the Infab Group which appear in Brooks Automation, Inc.'s Report
on Form 8-K/A, Amendment No. 1 to the Current Report, dated December 14, 1999.
Stuttgart, February 9, 2000
Dr. Ebner, Dr. Stolz and Partner GmbH
Auditors
Tax Consultants
/s/ Dr. Wolfgang Russ
Dr. Wolfgang Russ
Auditor
<PAGE> 1
Exhibit 99.05
Name: _________________________
SELLING STOCKHOLDER AGREEMENT
AGREEMENT, dated as of February __, 2000 (the "Agreement"), among Brooks
Automation, Inc., a Delaware corporation (the "Company"), and each stockholder
of the Company listed on Exhibit A, attached hereto (collectively the "Selling
Stockholders").
W I T N E S S E T H:
WHEREAS, the Board of Directors of the Company has determined that a
public offering (the "Public Offering") of the Company's Common Stock, $.01 par
value (the "Common Stock"), would be beneficial to the Company and its
stockholders and proposes to issue shares of Common Stock (the "Company Shares")
for such purpose; and
WHEREAS, the Company also has determined that it would be beneficial to
the Company and its stockholders for certain stockholders to have the
opportunity to sell in the Public Offering a portion of the shares of Common
Stock held by such stockholders; and
WHEREAS, the Company has offered such stockholders such opportunity and
the Selling Stockholders propose to accept such offer and sell in the Public
Offering an aggregate of up to ______________ shares of Common Stock (the
"Stockholder Shares").
NOW THEREFORE, in consideration of the premises and the mutual and
dependent promises hereinafter set forth and such other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
parties hereto agree as follows:
SECTION 1. PAYMENT OF EXPENSES.
(a) The Company shall pay (i) all of the expenses, other than
underwriting discounts, incurred in connection with the Public Offering
(including, but not limited to, all registration, filing and qualification fees,
transfer agent's fees, printing and engraving fees and legal and accounting
fees), and (ii) the Company's pro rata portion of all underwriting discounts
incurred in connection with the Public Offering, determined in accordance with
the number of Company Shares and Stockholder Shares actually sold by each
respective party in the Public Offering.
(b) Each Selling Stockholder shall pay such Selling
Stockholder's pro rata portion of all underwriting discounts incurred in
connection with the Public Offering, determined in accordance with the number of
Company Shares and Stockholder Shares actually sold by each respective party in
the Public Offering.
(c) Notwithstanding the provisions of this Section 1 or any
other agreement of the Company to pay certain expenses of the Public Offering,
if the payment of any such expenses by the Company shall be prohibited by any
state Blue Sky or securities regulatory
- 1 -
<PAGE> 2
commission in a jurisdiction in which Shares are offered, then each Selling
Stockholder agrees to pay his or its pro rata portion of any such expenses
determined in accordance with the number of Company Shares and Stockholder
Shares actually sold by each respective party in the Public Offering.
SECTION 2. INDEMNIFICATION; CONTRIBUTION.
(a) The Company shall indemnify each of the Selling
Stockholders, and each person (if any) who controls such Selling Stockholder
within the meaning of Section 15 of the Securities Act of 1933, as amended (the
"Act"), against all losses, claims, damages and liabilities and expense
(including all reasonable fees and disbursements of counsel incurred in
defending against any such claim, damage or liability) caused by any untrue
statement or alleged untrue statement of a material fact contained in the
registration statement filed or to be filed with the Securities and Exchange
Commission (the "Commission"), in connection with the Public Offering, as the
same may be amended or supplemented from time to time (the "Registration
Statement") or in any prospectus filed with, or delivered to, the Commission in
connection with the Public Offering, or caused by any omission or alleged
omission therefrom of a material fact required to be stated therein or necessary
to make the statements therein, in the light of the circumstances in which they
were made, not misleading; provided, however, insofar as such losses, claims,
damages, or liabilities are caused by an untrue statement of a material fact
contained in, or any material fact omitted from, information relating to a
Selling Stockholder furnished in writing to the Company by such Selling
Stockholder for use in the Registration Statement or any amendment or supplement
thereto, or any such prospectus, then the Company shall have no obligation
hereunder to indemnify the Selling Stockholder furnishing such information.
(b) Each Selling Stockholder shall indemnify each of the Company
and the other Selling Stockholders, and each person (if any) who controls the
Company or such other Selling Stockholder within the meaning of Section 15 of
the Act against all losses, claims, damages and liabilities and expense
(including all reasonable fees and disbursements of counsel incurred in
defending against any such claim, damage or liability) caused by any untrue
statement or alleged untrue statement of a material fact contained in the
Registration Statement or in any prospectus filed with, or delivered to, the
Commission in connection with the Public Offering, or caused by any omission or
alleged omission therefrom of a material fact required to be stated therein or
necessary to make the statements therein, in the light of the circumstances in
which they were made, not misleading, but only with respect to information
relating to such Selling Stockholder furnished in writing by or on behalf of
such Selling Stockholder expressly for use in the Registration Statement or any
amendment or supplement thereto, or any such prospectus, PROVIDED, HOWEVER, no
Selling Stockholder shall be liable in an amount that exceeds the aggregate
public offering price of the Stockholder Shares sold by the Selling Stockholder,
net of the underwriting discount.
(c) The indemnity agreements of the Company and the Selling
Stockholders contained in this Section 2 shall remain operative and in full
force and effect regardless of any investigation made by or on behalf of any
indemnified party and shall survive delivery of shares of Common Stock pursuant
to the Public Offering.
- 2 -
<PAGE> 3
(d) In order to provide for just and equitable contribution in
circumstances in which indemnification provided for in paragraphs (a) or (of
this Section 2 is unavailable, the Company and each of the Selling Stockholders
shall contribute to the aggregate losses, claims, damages, liabilities and
expenses (including all reasonable fees and disbursements of counsel incurred in
defending against any claim, damage, or liability), to which one or more of the
Selling Stockholders may be subject in such proportion as is appropriate to
reflect the relevant fault of the Company and the respective Selling
Stockholders in connection with the statements or omissions that resulted in
such losses, claims, damages, liabilities and expenses as well as any other
relevant equitable considerations; PROVIDED, HOWEVER, that:
(i) in any case where any Selling Stockholder is
seeking contribution hereunder such Selling Stockholder shall be entitled to
contribution from the remaining Selling Stockholders pursuant to this Agreement
only after first seeking contribution from the Company;
(ii) no Selling Stockholder shall in any case be
required to contribute or make any payments under this paragraph (d) which in
the aggregate exceed his pro rata share of such losses, claims, damages,
liabilities and expenses determined in accordance with the total number of
Company Shares and Stockholder Shares sold by each respective party hereto
PROVIDED, HOWEVER, that no Selling Stockholder shall be liable to contribute an
amount that exceeds the aggregate public offering price of the Stockholder
Shares sold by the Selling Stockholder, net of the underwriting discount; and
(iii) neither the Company nor any Selling
Stockholder will be required to make any contribution to another Selling
Stockholder with respect to matters for which the other Selling Stockholder
would not otherwise be entitled to be indemnified under paragraph (a) of this
Section 2 had such indemnification been available.
SECTION 3. GOVERNING LAW.
This Agreement shall be governed by and construed in accordance with the
laws of The Commonwealth of Massachusetts.
SECTION 4. INVALIDITY.
If any provision of this Agreement shall be determined by a court of
competent jurisdiction to be invalid or unenforceable, such determination shall
not affect the remaining provisions of the Agreement, all of which shall remain
in full force and effect.
SECTION 5. COUNTERPARTS.
This Agreement may be executed in any number of counterparts, each of
which shall be deemed to be an original and all of which together shall be
deemed to be one and the same instrument.
SECTION 6. NOTICES.
- 3 -
<PAGE> 4
Any notice given pursuant to this Agreement shall be sent by certified
mail, return receipt requested, to the address set forth under each party's name
on the signature page of this Agreement, or to such other address as may be
designated by notice given to each party pursuant to the provisions hereof.
SECTION 7. HEADINGS.
The headings contained in this Agreement are for descriptive purposes
only and shall not be given substantive effect.
[Signature Page to Follow]
- 4 -
<PAGE> 5
IN WITNESS WHEREOF, each of the parties hereto has executed this
Agreement under seal as of the day and year first written above.
BROOKS AUTOMATION, INC.
By: _____________________________
Robert J. Therrien, President
SELLING STOCKHOLDERS
---------------------------------
Address:
---------------------------------
---------------------------------
---------------------------------
- 5 -
<PAGE> 6
EXHIBIT A
SELLING STOCKHOLDERS
SCHEDULE A
NUMBER OF
NUMBER OF OPTIONAL
FIRM SECURITIES SECURITIES TO
SELLING STOCKHOLDER(S) TO BE SOLD BE SOLD
---------------------- --------------- -------------
Daifuku America Corporation 150,000 100,000
Robert Therrien 255,000 45,000
David Beaulieu 5,000 1,000
Ellen Richstone 7,000 1,000
James Pelusi 9,000 1,000
Michael Pippins 33,000 5,000
Michael Werner 36,000 4,000
Lynda Avallone 2,500 --
Steven Hebert 2,500 --
-------- -------
500,000 165,000
Total ........................................ ======== =======
- 6 -
<PAGE> 1
Exhibit 99.06
[GARTNER GROUP LOGO]
251 River Oaks Parkway
San Jose, CA 95134-1913
USA
+408-468-8000 (Phone)
+408-954-1780 (Fax)
DATAQUEST www.gartner.com
February 11th, 2000
Mr. Raoul Advani
Credit Suisse First Boston
Eleven Madison Ave.
NY, NY 10010
Dear Mr. Advani
You have our approval to use the requested quotes as stated below for inclusion
in the S-3 document.
"Based upon data published by Dataquest, an independent research group, we
believe that we are the largest independent producer of vacuum tool automation
systems and a leading independent producer of tool software and controls."
"According to Dataquest, semiconductor manufacturers will spend about $25.1
billion on fab equipment in 2000, and this spending will grow to $38.3 billion
by 2002, representing a compound annual growth rate of 24%."
"Dataquest estimates that in 2000 semiconductor and process equipment
manufacturers will spend $1.4 billion on manufacturing automation and control
systems and that this number will grow to $2.4 billion by 2002, representing a
compound annual growth rate of 30%."
(The numbers above are drawn from the Dataquest Alert "Wafer Fab Equipment
Forecast Update" dated January 4, 2000, and the Dataquest Report "1998 Wafer Fab
Equipment Market Share Estimates")
Please note the following text as a point of indemnification agreement:
The GartnerGroup information contained therein represents GartnerGroup's
estimates and no representation shall be made that GartnerGroup's information
represents facts. Furthermore, Client agrees to indemnify and hold harmless
GartnerGroup, its officers, employees and agents, from and against any and all
claims, suits, actions, causes of action, and all liabilities, judgments,
losses, costs, damages and expenses in connection therewith (including, but not
limited to, all costs and expenses of investigation and all fees and expenses of
counsel), arising, directly or indirectly, out of any breach of the foregoing or
any untrue statement or alleged untrue statement of a material fact contained in
the Offering Memorandum or any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading or any violations by Client of any rule or regulation
promulgated under the Securities Act of 1933, as amended (or similar statute),
as the same may be in effect from time to time relating to any action or
inaction required of Client in connection with the Offering Memorandum.
With respect to any indemnity sought against Client hereunder,
GartnerGroup shall promptly notify Client of the claim in writing, and Client,
upon the request of GartnerGroup, shall assume the defense thereof on behalf of
GartnerGroup including the employment of counsel and payment of expenses.
GartnerGroup also shall have the right to participate in such defense and to
employ its own counsel, but the fees and expenses of such counsel shall be at
the expense of GartnerGroup unless (i)
<PAGE> 2
Client and GartnerGroup shall mutually agree to the employment of such counsel,
or (ii) the named parties in any such action (including any impleaded parties)
include both GartnerGroup and Client and GartnerGroup shall have been advised by
such counsel that there may be one or more legal defenses available to
GartnerGroup which are different from or additional to those available to Client
(it being understood, however, that Client shall not, in connection with any one
such claim or separate but substantially similar or related claims in the same
jurisdiction arising out of the same general allegations or circumstances, be
liable for the reasonable fees and expenses of more than one separate firm of
attorneys for GartnerGroup, which firms shall be designated in writing).
GartnerGroup shall cooperate with reasonable requests of Client in the
defense and disposition of any claim for which indemnification applies.
Client shall not in any such defense, except with GartnerGroup's
written consent, consent to entry of any judgment or enter into any settlement
which does not include as an unconditional term thereof the giving by the
claimant or plaintiff of a release of GartnerGroup from all liability.
Please acknowledge by e-mail or fax receipt and agreement with the above
statement. If there are any questions please let me know.
Sincerely yours,
David Hankin
Senior VP and Managing Director, Dataquest
