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Filed pursuant to Rule 424b(1)
Registration No. 333-68062
BROOKS AUTOMATION, INC.
$175,000,000
4.75% CONVERTIBLE SUBORDINATED NOTES DUE 2008
AND THE COMMON STOCK
ISSUABLE UPON CONVERSION OF THE NOTES
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We issued the notes in a private placement in May 2001. This prospectus
will be used by the selling securityholders to resell their notes and the common
stock issuable upon conversion of their notes.
We will pay interest on the notes on December 1 and June 1 of each
year, beginning December 1, 2001. The notes will mature on June 1, 2008, unless
earlier converted or redeemed.
The notes are convertible, at the option of the holder, at any time on
or prior to maturity into shares of our common stock. The notes are convertible
at a conversion price of $70.23 per share which is equal to 14.2389 shares per
$1,000 principal amount of notes, subject to adjustment.
We may redeem some or all of the notes at any time before June 6, 2004
at a redemption price of $1,000 per $1,000 principal amount of notes to be
redeemed, plus accrued and unpaid interest, if any, to the redemption date if:
(a) the closing price of our common stock has exceeded 150% of the conversion
price then in effect for at least 20 trading days within a period of 30
consecutive trading days ending on the trading day before the date of mailing of
the provisional redemption notice and (b) the registration statement covering
resales of the notes and the common stock issuable upon conversion of the notes
is effective and available for use for the 30 days following the provisional
redemption date, unless registration is no longer required. We will make an
additional payment in cash or common stock with respect to the notes called for
provisional redemption in an amount equal to $142.50 per $1,000 principal amount
of notes, less the amount of any interest actually paid on the notes before the
date of redemption. We may redeem some or all of the notes at any time on or
after June 6, 2004 at the redemption prices described in this prospectus.
Holders may require us to repurchase their notes upon a change in
control.
Our common stock is quoted on the Nasdaq National Market under the
symbol "BRKS". On September 6, 2001, the last reported sale price of the common
stock on the Nasdaq National Market was $38.40 per share.
INVESTING IN THE NOTES OR THE COMMON STOCK ISSUABLE UPON THEIR
CONVERSION INVOLVES A HIGH DEGREE OF RISK. SEE "RISK FACTORS" BEGINNING ON PAGE
6.
THE SECURITIES AND EXCHANGE COMMISSION AND STATE SECURITIES REGULATORS
HAVE NOT APPROVED OR DISAPPROVED OF THESE SECURITIES OR DETERMINED IF THIS
PROSPECTUS IS TRUTHFUL OR COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
The date of this prospectus is September 6, 2001.
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TABLE OF CONTENTS
PROSPECTUS SUMMARY.................................................. 3
RISK FACTORS........................................................ 6
SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS................... 16
USE OF PROCEEDS..................................................... 17
RATIO OF EARNINGS TO FIXED CHARGES.................................. 17
DESCRIPTION OF THE NOTES............................................ 18
DESCRIPTION OF CAPITAL STOCK........................................ 33
U.S. FEDERAL TAX CONSEQUENCES....................................... 35
SELLING SECURITYHOLDERS............................................. 41
PLAN OF DISTRIBUTION................................................ 49
LEGAL MATTERS....................................................... 50
EXPERTS............................................................. 50
WHERE YOU CAN FIND MORE INFORMATION................................. 51
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.
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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 "Risk Factors" section and the financial
data, related notes and the information we have incorporated by reference before
making an investment decision.
Unless the context otherwise requires in this prospectus, "Brooks,"
"we," "us," and "our" refer to Brooks Automation, Inc. and its subsidiaries.
ABOUT BROOKS
We are a leading supplier of integrated tool and factory automation
solutions for the global semiconductor manufacturing and related industries. We
have distinguished ourselves as a technology and market leader, particularly in
the demanding cluster-tool vacuum-processing environment and in integrated
factory automation software applications. Our automation solutions are designed
to optimize equipment and factory productivity. These solutions include tool
automation modules, complete semiconductor wafer handling systems, factory
interface solutions and automation software and integration services.
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.
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THE OFFERING
The following is a brief summary of some of the terms of the notes
offered for resale in this prospectus. For a more complete description of the
terms of the notes, see "Description of Notes" in this prospectus.
Securities Offered................................... $175,000,000 aggregate principal amount of 4.75%
Convertible Subordinated Notes due 2008.
Interest............................................. The notes bear interest at an annual rate of 4.75%.
Interest is payable on June 1 and December 1 of each year,
beginning December 1, 2001.
Maturity Date........................................ June 1, 2008
Conversion Rights.................................... Holders may convert all or some of their notes at any time
prior to the close of business on the business day
immediately preceding the maturity date at a conversion
price of $70.23 per share. The initial conversion price is
equivalent to a conversion rate of 14.2389 shares per
$1,000 principal amount of notes. The conversion price is
subject to adjustment. Upon conversion, you will not
receive any cash representing accrued interest.
Provisional Redemption............................... We may redeem the notes, in whole or in part, at any time
before June 6, 2004, at a redemption price equal to $1,000
per $1,000 principal amount of notes to be redeemed plus
accrued and unpaid interest, if any, to the date of
redemption if (a) the closing price of our common stock has
exceeded 150% of the conversion price then in effect for at
least 20 trading days within a period of 30 consecutive
trading days ending on the trading day before the date of
mailing of the provisional redemption notice and (b) the
shelf registration statement covering resales of the notes
and the common stock issuable upon conversion of the notes
is effective and available for use and is expected to
remain effective and available for use for the 30 days
following the provisional redemption date, unless
registration is no longer required. Upon any provisional
redemption we will make an additional payment in cash or
common stock, or a combination thereof, with respect to the
notes called for redemption in an amount equal to $142.50
per $1,000 principal amount of notes, less the amount of
any interest actually paid on the notes before the date of
redemption. We will be obligated to make this additional
payment on all notes called for provisional redemption,
including any notes converted after the notice date and
before the provisional redemption date.
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Optional Redemption.................................. We may redeem the notes on or after June 6, 2004, at the
redemption prices set forth in this prospectus.
Change in Control.................................... Upon a change in control, we may be required to make an
offer to purchase each holder's notes at a price equal to
100% of the principal amount thereof, plus accrued and
unpaid interest, if any, to the date of purchase.
Subordination........................................ The notes are our unsecured obligations. The notes are
subordinated in right of payment to all of our existing and
future senior indebtedness and structurally subordinated to
all of our existing and future indebtedness and other
liabilities of our subsidiaries. As of June 30, 2001, our
total senior indebtedness was $18,096,149. The indenture
governing the notes will not limit our or our subsidiaries'
ability to incur senior indebtedness or other debt.
Use of Proceeds..................................... We will not receive any of the proceeds from the sale by
the selling securityholders of the notes and the common
stock issuable upon conversion of the notes.
Risk Factors
Investment in the notes involves a high degree of risk. You should
carefully consider the information under "Risk Factors" beginning on page 6 and
all other information included in this prospectus before investing in the notes
or the common stock into which the notes are convertible.
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RISK FACTORS
You should carefully consider the risks described below before
investing in the notes or the common stock issuable upon their conversion. If
any of the following risks actually occurs, our business, financial condition or
results of operations could be materially and adversely affected. In such case,
our ability to make payments on the notes could be impaired, the trading price
of the notes and our common stock could decline, and you could lose all or part
of your investment.
This prospectus also contains forward-looking statements that involve
risks and uncertainties. Our actual results could differ materially from those
anticipated in these forward-looking statements as a result of certain factors,
including the risks faced by us described below and elsewhere in this
prospectus.
RISK FACTORS 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. The semiconductor industry is cyclical and is currently
experiencing a downturn. We anticipate we will have lower shipments of our
products during the next few quarters. Despite this expected reduced volume, we
plan to continue to invest in those areas which we believe are important to our
long-term growth, such as our infrastructure, customer support and new product
development. As a result, consistent with our experience with downturns in the
past, we believe the existing industry downturn will lead to reduced revenues
for us and may cause us to incur losses.
OUR SALES VOLUME DEPENDS ON THE SALES VOLUME OF OUR ORIGINAL EQUIPMENT
MANUFACTURER CUSTOMERS AND ON INVESTMENT IN MAJOR CAPITAL EXPANSION PROGRAMS BY
SEMICONDUCTOR MANUFACTURING COMPANIES.
We sell a majority of our tool automation products to original
equipment manufacturers that incorporate our products into their equipment.
Therefore, our revenues are directly dependent on the ability of these customers
to develop, market and sell their equipment in a timely, cost-effective manner.
We also generate significant revenue in large orders by semiconductor
manufacturing companies that build new plants or invest in major automation
retrofits. Our revenue is dependent, in part, on continued capital investment of
semiconductor manufacturing companies.
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
approximately 42% of total revenues in the nine months ended June 30, 2001 and
43% of total revenues in fiscal 2000. Sales to Lam Research Corporation, our
largest customer, accounted for approximately 9% of our total revenues for the
nine months ended June 30, 2001 and for the fiscal year ended September 30,
2000.
DELAYS IN OR CANCELLATION OF SHIPMENT OF A FEW OF OUR LARGE ORDERS COULD
SUBSTANTIALLY DECREASE OUR REVENUES.
Historically, a substantial portion of our quarterly and annual
revenues has come 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 when we recognize 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 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.
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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 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 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 and proposal process before we can achieve volume sales of our
factory automation software to our factory automation customers. We cannot
guarantee that we will continue to achieve design wins or satisfy evaluations by
our end-user 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 48% of our total revenues in the nine months ended June
30, 2001, and 49% of our total revenues in fiscal 2000, 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 Canada, Germany, Japan, Malaysia, Singapore, South
Korea, Taiwan and the United Kingdom. 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
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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 depends in part
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 market opportunities
and products;
- completing and introducing new product designs in a timely
manner;
- market acceptance of our products and our customers' products;
- development of a comprehensive, integrated product strategy;
and
- efficient implementation and installation services.
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 be
unable to compete 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 internally
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 internally satisfy their wafer or
substrate handling needs, 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, ease
of integration, 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, IBM 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 we do.
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.
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
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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 alleging 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 and our ability to
grow.
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 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 certain of
our products infringed its patent rights. 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.
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OUR OPERATING RESULTS WOULD BE HARMED IF ONE OF OUR KEY SUPPLIERS FAILS TO
DELIVER COMPONENTS FOR OUR PRODUCTS.
We currently obtain many of our components on an as needed, purchase
order basis. We do not have any long-term supply contracts with our vendors.
When demand for semiconductor manufacturing equipment increases, our suppliers
face 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.
RISING ENERGY COSTS IN CALIFORNIA MAY RESULT IN INCREASED OPERATING EXPENSES AND
REDUCED NET INCOME.
California is currently experiencing an energy crisis. As a result,
energy costs in California, including natural gas and electricity, may rise
significantly over the next several months relative to the rest of the United
States. Because we maintain one of our manufacturing facilities in Southern
California, our operating expenses with respect to that facility may increase if
this trend continues. If we cannot pass along these costs to our customers, our
margins will suffer and our net income could decrease.
OUR FUTURE GROWTH COULD BE HARMED IF THE COMMERCIAL ADOPTION OF 300MM WAFER
TECHNOLOGY CONTINUES TO PROGRESS SLOWLY OR IS NOT ADOPTED BY THE INDUSTRY.
Our future growth relies in part on the adoption of new systems and
technologies to automate the processing of 300mm wafers. However, the industry
transition from the current, widely used 200mm manufacturing technology to 300mm
manufacturing technology is occurring more slowly than expected. A significant
delay in the adoption of 300mm manufacturing technology, or the failure of the
industry to adopt 300mm manufacturing technology, could significantly reduce our
opportunities for future growth. Moreover, continued delay in transition to
300mm technology could permit our competitors to introduce competing or superior
300mm products at more competitive prices. As a result of these factors,
competition for 300mm orders could become vigorous and could harm our results of
operations.
OUR RECENT RAPID GROWTH IS STRAINING OUR OPERATIONS AND REQUIRING US TO INCUR
COSTS TO UPGRADE OUR INFRASTRUCTURE.
During the last calendar year and through June 30, 2001, we have
experienced extremely rapid growth in our operations, our product offerings and
the geographic area of our operations. Our growth has placed 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 harmed.
WE MAY BE UNABLE TO RECRUIT AND RETAIN NECESSARY PERSONNEL BECAUSE OF INTENSE
COMPETITION FOR HIGHLY SKILLED PERSONNEL.
We need to retain a substantial number 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 and the current downturn in the
semiconductor market, we recently reduced our workforce as a cost reduction
measure. If the semiconductor market experiences an upturn, we may need to
rebuild our workforce. 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.
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OUR SYSTEMS INTEGRATION SERVICES BUSINESS HAS GROWN SIGNIFICANTLY RECENTLY AND
OUR POOR EXECUTION OF THOSE SERVICES COULD ADVERSELY IMPACT OUR OPERATING
RESULTS.
The number of projects we are pursuing for our systems integration
services business has grown significantly recently. This business consists of
integrating combinations of our software and hardware products to provide more
comprehensive solutions for our end-user customers. The delivery of these
services typically is complex, requiring that we coordinate personnel with
varying technical backgrounds in performing substantial amounts of services in
accordance with timetables. We are in the early stages of developing this
business and we are subject to the risks attendant to entering a business in
which we have limited direct experience. In addition, our ability to supply
these services and increase our revenues is limited by our ability to retain,
hire and train systems integration personnel. We believe that there is
significant competition for these personnel with the advanced skills and
technical knowledge that we need. Some of our competitors may have greater
resources to hire personnel with that skill and knowledge. Our operating margins
could be adversely impacted if we do not effectively hire and train additional
personnel or deliver systems integration services to our customers on a
satisfactory and timely basis consistent with our budgets.
CHANGES TO ACCOUNTING STANDARDS AND RULES COULD ADVERSELY AFFECT THE TIMING OF
WHEN WE RECOGNIZE REVENUE.
In December 1999, the Securities and Exchange Commission issued Staff
Accounting Bulletin No. 101, or SAB 101, "Revenue Recognition in Financial
Statements". SAB 101 provides guidance on applying generally accepted accounting
principles to revenue recognition issues in financial statements. While we have
not fully assessed the impact on us of the adoption of SAB 101, it may require a
portion of our quarterly revenues to be deferred. Any change in our revenue
recognition policy resulting from the implementation of SAB 101 would be
reported as a change in accounting principle in the quarter in which we
implemented SAB 101, with a cumulative adjustment in that quarter to reflect the
effect of the change. As a result, while SAB 101 would not affect the
fundamental aspects of our operations as measured by our shipments and cash
flows, implementation of SAB 101 could have an adverse affect on our reported
results of operations in the quarter that SAB 101 is implemented.
RISK FACTORS RELATING TO OUR ACQUISITIONS
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 core 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:
- assimilating products and designs into integrated solutions;
- informing customers, suppliers and distributors of the effects
of the acquisitions and integrating them into our overall
operations;
- integrating personnel with disparate business backgrounds and
cultures;
- defining and executing a comprehensive product strategy;
- managing geographically remote units;
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- managing the risks of entering markets or types of businesses
in which we have limited or no direct experience; and
- minimizing the loss of key employees of the acquired
businesses.
If we delay the integration 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.
RISK FACTORS 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 we sell;
- competitive pricing pressures; and
- the level of automation required in fab extensions, upgrades
and new facilities.
We entered the factory automation software business in fiscal 1999. We
believe a substantial portion of
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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.
OUR STOCK PRICE IS VOLATILE.
The market price of our common stock has fluctuated widely. For
example, between April 4, 2001 and April 30, 2001, the closing price of our
common stock rose from approximately $35.45 to $62.61 per share and between July
17, 2000 and August 10, 2000, the price of our common stock dropped from
approximately $68.00 to $35.38 per share. Consequently, the current market price
of our common stock may not be indicative of future market prices, and we may be
unable 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.
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 MADE BY THEM MAY BE DETRIMENTAL TO YOUR INTERESTS.
By virtue of their stock ownership and voting agreements, Robert J.
Therrien, our president and chief executive officer, Jenoptik AG 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
to 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. As
of May 9, 2001, Mr. Therrien holds approximately 5.8% of our common stock, M+W
Zander Holding GmbH, a subsidiary of Jenoptik AG, holds approximately 4.5% of
our common stock and Daifuku America Corporation, the U.S. affiliate of Daifuku
Co. Ltd. of Japan, holds approximately 1.6% of our common stock. Collectively,
these stockholders hold approximately 11.9% of our outstanding common stock.
On September 30, 1999 we entered into a stockholders agreement with Mr.
Therrien, M+W Zander Holding GmbH and Jenoptik AG. This agreement was amended on
October 16, 2000. Under the amended agreement, M+W Zander Holding GmbH agreed to
vote all of its shares on all matters in accordance with the recommendation of a
majority of our board of directors.
On January 6, 2000, in connection with our acquisition of Auto-Soft
Corporation and AutoSimulations, Inc. from Daifuku America Corporation, we
entered into a stockholders agreement with Daifuku America Corporation and
Daifuku Co., Ltd. Under the stockholders 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
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directors.
PROVISIONS OF OUR CERTIFICATE OF INCORPORATION, BYLAWS, CONTRACTS AND THE NOTES
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. Finally, upon a
change of control of us, we may be required to purchase the notes at a price
equal to 100% of the principal outstanding amount thereof, plus accrued and
unpaid interest, if any, to the date of the purchase of the notes. Such a
repurchase of the notes would represent a substantial expense; accordingly, the
repayment of the notes upon a change of control of us could discourage third
parties from proposing a merger with, initiating a tender offer for or otherwise
attempting to gain control of us.
RISK FACTORS RELATING TO THE NOTES
THE NOTES ARE SUBORDINATED.
The notes are unsecured and subordinated in right of payment to all of
our existing and future senior indebtedness. The indenture defines senior
indebtedness as all of our indebtedness other than any indebtedness that
expressly states that it is subordinated to the notes. The terms of the notes do
not limit the amount of additional indebtedness, including secured indebtedness,
that we can create, incur, assume or guarantee. In the event of our bankruptcy,
liquidation or reorganization or upon acceleration of the notes due to an event
of default under the indenture and in certain other events, our assets will be
available to pay obligations on the notes only after all senior indebtedness has
been paid. In addition, the subordination provisions of the indenture provide
that payments with respect to the notes will be blocked in the event of a
payment default on senior indebtedness and may be blocked for up to 179 days
each year in the event of certain non-payment defaults on senior indebtedness.
As a result, there may be insufficient assets remaining to pay amounts due on
any or all of the outstanding notes. In addition, under the subordination
provisions of the indenture, payments that would otherwise be made to holders of
the notes will instead be paid to holders of senior indebtedness under certain
circumstances. As a result of these provisions, our other creditors (including
trade creditors) that are not holders of senior indebtedness may recover more,
ratably, than the holders of the notes. The notes are structurally subordinated
to all liabilities, including trade payables, of our subsidiaries. The indenture
governing the notes does not limit our or our subsidiaries' ability to incur
debt, including senior indebtedness. Any right of ours to receive assets of any
subsidiary upon its liquidation or reorganization, and the consequent right of
the holders of the notes to participate in the assets will be subject to the
claims of that subsidiary's creditors. If we or our subsidiaries were to incur
additional debt or liabilities, our ability to pay our obligations on the notes
could be adversely affected. See "Description of the Notes -- Subordination of
Notes."
WE MAY BE UNABLE TO MEET THE REDEMPTION REQUIREMENTS UPON A CHANGE IN CONTROL.
Upon a change in control, you may require us to purchase all or a
portion of your notes. If a change in control were to occur, we may not have
enough funds to pay the purchase price for all tendered notes. Future agreements
relating to our indebtedness might contain provisions that prohibit the
repurchase of the notes upon a change in control. If a change in control occurs
at a time when we are prohibited from purchasing the notes, we could seek the
consent of our lenders to purchase the notes or could attempt to refinance this
debt. If we do not
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obtain consent, we could not purchase the notes. Our failure to purchase
tendered notes would constitute an event of default under the indenture. In such
circumstances, or if a change in control would constitute an event of default
under our senior indebtedness, the subordination provisions of the indenture
would restrict payments to you. The term "change in control" is limited to
certain specified transactions and may not include other events that might harm
our financial condition. Our obligation to offer to purchase the notes upon a
change in control would not necessarily afford the note holders protection in
the event of a highly leveraged transaction, reorganization, merger or similar
transaction involving us.
A PUBLIC MARKET MAY NOT DEVELOP FOR THE NOTES.
Since the issuance of the notes, the initial purchasers have made a
market in the notes. However, the initial purchasers are not obligated to make a
market and may discontinue this market making activity at any time without
notice. In addition, market-making activity by the initial purchasers will be
subject to the limits imposed by the Securities Act and the Exchange Act. As a
result, we cannot assure you that any market for the notes will develop or, if
one does develop, that it will be maintained. If an active market for the notes
fails to develop or be sustained, the trading price of the notes could decline
significantly.
BECAUSE OF OUR SUBSTANTIAL INDEBTEDNESS, WE MAY BE UNABLE TO ADJUST OUR STRATEGY
TO MEET CHANGING CONDITIONS IN THE FUTURE.
As of June 30, 2001, we had long-term debt obligations of approximately
$175 million due to the issuance of the 4.75% Convertible Subordinated Notes due
2008. This indebtedness could have several important consequences for our future
operations. Specifically,
- we may be unable to obtain additional financing for capital
expenditures, acquisitions or general corporate purposes;
- we may be unable to withstand changing competitive pressures,
economic conditions or government regulations; and
- we may be unable to otherwise take advantage of significant
business opportunities that may arise.
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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 51 contain forward-looking
statements within the meaning of Section 27A of the Securities Act and Section
21E of the Exchange Act. 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:
- general economic and business conditions, both nationally and
in our markets;
- our expectations and estimates concerning our future financial
performance, financing plans and the effect of competition;
- anticipated capital expenditures by semiconductor
manufacturers;
- 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; 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.
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USE OF PROCEEDS
We will not receive any proceeds from the sale of the notes or the underlying
common stock by the selling securityholders.
RATIO OF EARNINGS TO FIXED CHARGES
Our ratio of earnings to fixed charges for each of the periods
indicated is as follows:
NINE MONTHS NINE MONTHS
FISCAL YEARS ENDED SEPTEMBER 30, ENDED JUNE ENDED JUNE
-------------------------------- 30, 30,
1996 1997 1998 1999 2000 2000 2001 (3)
---- ---- ---- ---- ---- ---- --------
RATIO OF EARNINGS TO
FIXED CHARGES (1) 5.2x NM (2) NM (2) NM (2) 9.1x 4.1x NM(2)
(1) These ratios are calculated by dividing (a) earnings before minority
interests and income taxes and adjusted for fixed charges by (b) fixed
charges. Fixed charges include interest expense plus capitalized
interest and the portion of interest expense under operating leases we
deem to be representative of the interest factor.
(2) In fiscal 1997, 1998 and 1999, and the nine months ended June 30, 2001,
earnings before income taxes were insufficient to cover fixed charges
by approximately $3.2 million, $28.0 million, $11.0 million and $2.148
million, respectively.
(3) Includes the results of SEMY Engineering, Inc. (acquired February 16,
2001) and of SimCon N.V. (acquired May 15, 2001) for the periods
subsequent to their respective acquisitions.
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DESCRIPTION OF THE NOTES
We issued the notes under an indenture dated as of May 23, 2001 between
State Street Bank and Trust Company, as trustee and us (the "indenture"). The
following description is only a summary of the material provisions of the
indenture, the notes and the registration rights agreement. We urge you to read
the indenture, the notes and the registration rights agreement in their entirety
because they, and not this description, define the rights of the holders of the
notes. Copies of these documents are included with our publicly available
filings with the Securities and Exchange Commission and also may be obtained by
request at our address listed under the caption "Where You Can Find More
Information".
In this section of the prospectus entitled "Description of the Notes",
when we refer to "Brooks," "we," "our," or "us," we are referring to Brooks
Automation, Inc. and not any of its subsidiaries.
GENERAL
The notes are unsecured general obligations of Brooks in an aggregate
principal amount of $175,000,000 and are subordinate in right of payment as
described in the section herein entitled " -- Subordination of Notes." The notes
are convertible into common stock as described in the section herein entitled "
-- Conversion of Notes." The notes have been issued only in denominations of
$1,000 or in multiples of $1,000. The notes will mature on June 1, 2008, unless
earlier redeemed at our option by us or purchased by us at your option upon a
change in control.
The indenture does not limit our or our subsidiaries' ability to pay
dividends, incur debt or issue or repurchase securities. In addition, there are
no financial covenants in the indenture. You are not protected under the
indenture in the event of a highly leveraged transaction or a change of control
of Brooks, except to the extent described under "Purchase of Notes at Your
Option Upon a Change of Control."
The notes bear interest at the annual rate of 4.75% subject to
increases described in the section herein entitled " -- Registration Rights"
below. Interest is payable on June 1 and December 1 of each year, beginning
December 1, 2001, subject to limited exceptions if the notes are converted,
redeemed or purchased prior to the interest payment date. The record dates for
the payment of interest will be May 15 and November 15. We may, at our option,
pay interest on the notes by check mailed to the holders. However, a holder with
an aggregate principal amount of notes in excess of $2,000,000 will be paid by
wire transfer in immediately available funds at its election. Interest on the
notes is computed on the basis of a 360-day year comprised of twelve 30-day
months. We are not required to make any payment on the notes due on any day
which is not a business day until the next succeeding business day. The payment
made on the next succeeding business day will be treated as though it were paid
on the original due date and no interest will accrue on the payment for the
additional period of time.
We maintain an office in The City of New York where the notes may be
presented for registration, transfer, exchange or conversion. This office is
initially an office or agency of the trustee. The notes are issued only in
fully-registered book-entry form, without coupons, and are represented by one or
more global notes. There is no service charge for any registration of transfer
or exchange of notes. We may, however, require holders to pay a sum sufficient
to cover any tax or other governmental charge payable in connection with certain
transfers or exchanges.
CONVERSION OF NOTES
You have the right, at your option, to convert the notes into shares of
our common stock at any time prior to maturity, unless previously redeemed or
purchased, at the conversion price of $70.23 per share, subject to the
adjustments described below.
Except as described below, we will not make any payment or other
adjustment for accrued interest or dividends on any common stock issued upon
conversion of the notes. If you submit your notes for conversion between a
record date and the opening of business on the next interest payment date, you
must pay funds equal to
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the interest payable on the converted principal amount, except if the submitted
notes or portions of notes are called for redemption or are subject to purchase
following a change in control on a date during the period from the close of
business on a record date and ending on the opening of business on the first
business day after the next interest payment date, or if this interest payment
date is not a business day, the second business day after the interest payment
date. As a result of the foregoing provisions, if the exception described in the
preceding sentence does not apply and you surrender your notes for conversion on
a date that is not an interest payment date, you will not receive any interest
for the period from the interest payment date next preceding the date of
conversion to the date of conversion or for any later period.
We will not issue fractional shares of common stock upon conversion of
notes. Instead, we will pay a cash amount based upon the closing market price of
the common stock on the last trading day prior to the date of conversion.
If the notes are called for redemption or are subject to purchase
following a change in control, your conversion rights on the notes called for
redemption or so subject to purchase will expire at the close of business on the
last business day before the redemption date or purchase date, as the case may
be, unless we default in the payment of the redemption price or purchase price.
If you have submitted the notes for purchase upon a change in control, you may
only convert the notes if you withdraw your election in accordance with the
indenture.
The conversion price will be adjusted upon the occurrence of:
(1) the issuance of shares of our common stock as a dividend or
distribution on our common stock;
(2) the subdivision or combination of our outstanding common
stock;
(3) the issuance to all or substantially all holders of our common
stock of rights or warrants entitling them for a period of not
more than 60 days to subscribe for or purchase our common
stock, or securities convertible into our common stock, at a
price per share or a conversion price per share less than the
then current market price per share, provided that the
conversion price will be readjusted to the extent that such
rights or warrants are not exercised prior to the expiration;
(4) the distribution to all or substantially all holders of our
common stock of shares of our capital stock, evidences of
indebtedness or other non-cash assets, or rights or warrants,
excluding:
- dividends, distributions and rights or warrants
referred to in clause (1) or (3) above;
- dividends or distributions exclusively in cash
referred to in clause (5) below; and
- distribution of rights to all holders of common stock
pursuant to an adoption of a shareholder rights plan;
(5) the dividend or distribution to all or substantially all
holders of our common stock of all-cash distributions in an
aggregate amount that together with (A) any cash and the fair
market value of any other consideration payable in respect of
any tender offer by us or any of our subsidiaries for our
common stock consummated within the preceding 12 months not
triggering a conversion price adjustment and (B) all other
all-cash distributions to all or substantially all holders of
our common stock made within the preceding 12 months not
triggering a conversion price adjustment, exceeds an amount
equal to 10% of our market capitalization on the business day
immediately preceding the day on which we declare such
distribution; and
(6) the purchase of our common stock pursuant to a tender offer
(within the meaning of the U.S. federal securities laws) made
by us or any of our subsidiaries to the extent that the same
involves aggregate consideration that together with (A) any
cash and the fair market value of any other consideration
payable in respect of any tender offer by us or any of our
subsidiaries for our common stock
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consummated within the preceding 12 months not triggering a
conversion price adjustment and (B) all-cash distributions to
all or substantially all holders of our common stock made
within the preceding 12 months not triggering a conversion
price adjustment, exceeds an amount equal to 10% of our market
capitalization on the expiration date of such tender offer.
In the event of:
- any reclassification of our common stock; or
- a consolidation, merger or combination involving
Brooks; or
- a sale or conveyance to another person of the
property and assets of Brooks as an entirety or
substantially as an entirety,
in which holders of our outstanding common stock would be entitled to receive
stock, other securities, other property, assets or cash for their common stock,
holders of notes generally are entitled to convert their notes into the same
type of consideration received by common stockholders immediately prior to one
of these types of events.
We are permitted to reduce the conversion price of the notes by any
amount for a period of at least 20 days if our board of directors determines
that such reduction would be in the best interest of Brooks. We are required to
give at least 15 days prior notice of any reduction in the conversion price. We
may also reduce the conversion price to avoid or diminish income tax to holders
of our common stock in connection with a dividend or distribution of stock or
similar event.
You may, in some circumstances, be deemed to have received a
distribution or dividend subject to United States federal income tax as a result
of an adjustment or the non-occurrence of an adjustment to the conversion price.
No adjustment in the conversion price is required unless it will result
in a change in the conversion price of at least one percent. Any adjustment not
made will be taken into account in subsequent adjustments. Except as stated
above, we will not adjust the conversion price for the issuance of our common
stock or any securities convertible into or exchangeable for our common stock or
the right to purchase our common stock or such convertible or exchangeable
securities.
SUBORDINATION OF NOTES
The payment of the principal of, premium, if any, and interest on the
notes is subordinated to the extent provided in the indenture to the prior
payment in full, in cash or other payment satisfactory to the holders of senior
indebtedness, of all senior indebtedness.
Upon any distribution of our assets upon any dissolution, winding-up,
liquidation or reorganization, or in bankruptcy, insolvency, receivership or
similar proceedings, payment of the principal of, premium, if any, and interest
(including any additional interest) on the notes is subordinated in right of
payment to the prior payment in full, in cash or other payment satisfactory to
the holders of senior indebtedness, of all senior indebtedness.
In the event of any acceleration of the notes because of an event of
default, the holders of any senior indebtedness then outstanding would be
entitled to payment in full, in cash or other payment satisfactory to the
holders of senior indebtedness, of all obligations with respect to such senior
indebtedness before the holders of notes are entitled to receive any payment or
other distribution. We are required to promptly notify holders of senior
indebtedness if payment of the notes is accelerated because of an event of
default.
We also may not make any payment on the notes if:
- a default in the payment of designated senior indebtedness
occurs and is continuing beyond any applicable period of
grace; or
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- any other default occurs and is continuing with respect to
designated senior indebtedness that permits holders of the
designated senior indebtedness to accelerate its maturity and
the trustee receives a notice of such default, which we refer
to as a payment blockage notice, from any person permitted to
give this notice under the indenture.
We may resume making payments on the notes:
- in the case of a payment default, when the default is cured or
waived or ceases to exist; and
- in the case of a nonpayment default, the earlier of (1) when
the default is cured or waived or ceases to exist and (2) 179
days after receipt of the payment blockage notice.
No new period of payment blockage may be commenced pursuant to a
payment blockage notice unless and until 365 days have elapsed since our receipt
of the prior payment blockage notice.
No default that existed on the date of delivery of any payment blockage
notice to the trustee may be the basis for a subsequent payment blockage notice.
By reason of the subordination provisions described above, in the event
of our bankruptcy, dissolution or reorganization, holders of senior indebtedness
may receive more, ratably, and the holders of notes may receive less, ratably,
than the other creditors of Brooks. These subordination provisions will not
prevent the occurrence of any event of default under the indenture. The
indenture does not limit our ability to incur additional indebtedness, including
senior indebtedness. The incurrence of significant amounts of additional debt
could adversely affect our ability to service our debt, including the notes.
A portion of our operations are or in the future may be conducted
through subsidiaries. As a result, our cash flow and our ability to service our
debt, including the notes, would depend upon the earnings of our subsidiaries.
In addition, we would be dependent on the distribution of earnings, loans or
other payments by our subsidiaries to us.
Our subsidiaries are separate and distinct legal entities. Our
subsidiaries have no obligation to pay any amounts due on the notes or to
provide us with funds for our payment obligations, whether by dividends,
distributions, loans or other payments. In addition, any payment of dividends,
distributions, loans or advances by our subsidiaries to us could be subject to
statutory or contractual restrictions. Payments to us by our subsidiaries will
also be contingent upon our subsidiaries' earnings.
Our right to receive any assets of any of our subsidiaries upon their
liquidation or reorganization, and therefore the right of the holders of the
notes to participate in those assets, will be structurally subordinated to the
claims of that subsidiary's creditors, including trade creditors. In addition,
even if we were a creditor of any of our subsidiaries, our rights as a creditor
would be subordinate to any security interest in the assets of our subsidiaries
and any indebtedness of our subsidiaries senior to that held by us.
As of June 30, 2001, we had approximately $18,096,149 of indebtedness
outstanding that would constitute senior indebtedness. The indenture does not
limit our ability or the ability of our subsidiaries to incur senior
indebtedness or any other indebtedness.
CERTAIN DEFINITIONS
"credit facility" means that certain Demand Promissory Note Agreement
dated as of May 2, 2000 with ABN AMRO Bank N.V., including any related notes,
guarantees, collateral documents, instruments and agreements executed in
connection therewith, and in each case as amended (including any amendment and
restatement thereof), modified, renewed, refunded, replaced, refinanced or
restructured (including, without limitation, any amendment
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increasing the amount of available borrowing thereunder) from time to time and
whether with the same or any other agent, lender or group of lenders.
"designated senior indebtedness" means the credit facility and any
other particular senior indebtedness that expressly provides that such senior
indebtedness is "designated senior indebtedness" for purposes of the indenture.
"indebtedness" means:
(1) all of our indebtedness, obligations and other liabilities, contingent
or otherwise, for borrowed money, including:
- overdrafts, foreign exchange contracts, currency exchange
agreements, interest rate protection agreements, and any loans
or advances from banks, whether or not evidenced by notes or
similar instruments; or
- credit or loan agreements, bonds, debentures, notes or other
written obligations, whether or not the recourse of the lender
is to all of our assets or to only a portion thereof; other
than any account payable or other accrued current liability or
obligation incurred in the ordinary course of business in
connection with the obtaining of materials or services;
(2) all of our reimbursement obligations and other liabilities, contingent
or otherwise, with respect to letters of credit, bank guarantees or
bankers' acceptances;
(3) all of our obligations and liabilities, contingent or otherwise, in
respect of leases required, in conformity with generally accepted
accounting principles, to be accounted for as capitalized lease
obligations on our balance sheet;
(4) all of our obligations evidenced by a note or similar instrument given
in connection with the acquisition of any businesses, properties or
assets of any kind;
(5) all of our obligations issued or assumed as the deferred purchase price
of property or services, but excluding trade accounts payable and
accrued liabilities arising in the ordinary course of business;
(6) all of our obligations and other liabilities, contingent or otherwise,
under any lease or related document, including a purchase agreement, in
connection with the lease of real property or improvements (or any
personal property included as part of any such lease) which provides
that we are contractually obligated to purchase or cause a third party
to purchase the leased property and thereby guarantee a residual value
of leased property to the lessor and all of our obligations under such
lease or related document to purchase or to cause a third party to
purchase the leased property (whether or not such lease transaction is
characterized as an operating lease or a capitalized lease in
accordance with generally accepted accounting principles);
(7) all of our obligations, contingent or otherwise, with respect to an
interest rate, currency or other swap, cap, floor or collar agreement,
hedge agreement, forward contract, or other similar instrument or
agreement or foreign currency hedge, exchange, purchase or similar
instrument or agreement;
(8) all of our direct or indirect guarantees or similar agreements to
purchase or otherwise acquire or otherwise assure a creditor against
loss in respect of indebtedness, obligations or liabilities of another
person of the kind described in clauses (1) through (7); and
(9) any and all deferrals, renewals, extensions and refundings of, or
amendments, modifications, supplements to, any indebtedness, obligation
or liability of the kind described in clauses (1) through (8).
"senior indebtedness" means the principal of, premium, if any, interest,
including all interest accruing subsequent to the commencement of any bankruptcy
or similar proceeding, whether or not a claim for post-petition
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interest is allowable as a claim in any such proceeding, and rent payable on or
in connection with, and all fees, costs, expenses and other amounts accrued or
due on or in connection with, indebtedness of Brooks whether secured or
unsecured, absolute or contingent, due or to become due, outstanding on the date
of the indenture or thereafter created, incurred, assumed, guaranteed or in
effect guaranteed by Brooks, including all deferrals, renewals, extensions or
refundings of, or amendments, modifications or supplements to, the foregoing,
unless in the case of any particular indebtedness the instrument creating or
evidencing the same or the assumption or guarantee thereof expressly provides
that such indebtedness shall not be senior in right of payment to the notes or
expressly provides that such indebtedness is on the same basis or junior to the
notes.
Senior indebtedness does not include any indebtedness of Brooks to any
subsidiary of Brooks or any obligation for federal, state, local or other taxes.
PROVISIONAL REDEMPTION
We may redeem any portion of the notes at any time prior to June 6,
2004 upon at least 20 and not more than 60 days' notice by mail to the holders
of the notes, at a redemption price equal to $1,000 per note plus accrued and
unpaid interest to but excluding the redemption date if (1) the closing price of
our common stock has exceeded 150% of the conversion price for at least 20
trading days in any consecutive 30-day trading period ending on the trading day
prior to the mailing of the notice of redemption and (2) the shelf registration
statement covering resales of the notes and the common stock is effective and
expected to remain effective and available for use for the 30 days following the
redemption date, unless registration is no longer required.
If we redeem the notes under these circumstances, we will make an
additional "make whole" payment on the redeemed notes equal to $142.50 per
$1,000 note, minus the amount of any interest actually paid on the note prior to
the redemption date. We must make these "make whole" payments on all notes
called for redemption, including notes converted after the date we mailed the
notice. The "make whole" payment for notes converted shall not be reduced by
accrued and unpaid interest. We may make these "make whole" payments, at our
option, either in cash or in our common stock or a combination of cash and
stock, if a shelf registration covering resales of such common stock is
effective and expected to remain effective and available for use for the 30 days
following the redemption date. We will specify the type of consideration for the
"make whole" payment in the redemption notice. Payments made in our common stock
will be valued at 97% of the average of the closing sales prices of our common
stock for the five trading days ending on the day prior to the redemption date.
OPTIONAL REDEMPTION BY BROOKS
Except as set forth under in the section herein entitled " --
Provisional Redemption," we may not redeem the notes at our option prior to June
6, 2004. Thereafter, we may redeem the notes at our option in whole, or in part,
upon not less than 20 nor more than 60 days' notice by mail to holders of the
notes.
The redemption prices (expressed as a percentage of principal amount)
are as follows for notes redeemed during the periods set forth below:
PERIOD REDEMPTION PRICE
------ ----------------
Beginning on June 6, 2004 through May 31, 2005....... 102.38%
Beginning on June 1, 2005 through May 31, 2006....... 101.58%
Beginning on June 1, 2006 through May 31, 2007....... 100.79%
Beginning on June 1, 2007 and thereafter............. 100.00%
In each case, we will pay accrued interest to, but not including, the
redemption date; provided that if the redemption date falls after an interest
payment record date and on or before an interest payment date, then the interest
payment shall be payable to holders of record on the relevant record date.
If fewer than all of the notes are to be redeemed, the trustee will
select the notes to be redeemed by lot, or
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in its discretion, on a pro rata basis. If any note is redeemed in part only, a
new note in principal amount equal to the unredeemed principal portion will be
issued. If a portion of your notes is selected for partial redemption and a
holder converts a portion of their notes, the converted portion will be deemed
to be of the portion selected for redemption.
No sinking fund is provided for the notes.
PURCHASE OF NOTES AT YOUR OPTION UPON A CHANGE IN CONTROL
If a change in control occurs, you have the right to require us to
purchase all or any part of the notes 30 business days after the occurrence of a
change in control at a purchase price equal to 100% of the principal amount of
the notes plus accrued and unpaid interest to, but excluding, the purchase date.
Notes submitted for purchase must be in a principal amount of $1,000 or
multiples of $1,000.
We will mail to the trustee and to each note holder a written notice of
the change in control within 10 business days after the occurrence of a change
in control. This notice will state:
- the terms and conditions of the change in control;
- the procedures required for exercise of the change in control
purchase feature; and
- the holder's right to require Brooks to purchase the notes.
You must deliver written notice of your exercise of this purchase right
to a paying agent at any time prior to the close of business on the business day
prior to the change in control purchase date. The written notice must specify
the notes for which the purchase right is being exercised. If you wish to
withdraw this election, you must provide a written notice of withdrawal to the
paying agent at any time prior to the close of business on the business day
prior to the change in control purchase date.
A change in control will be deemed to have occurred if any of the
following occurs:
- any "person" or "group" is or becomes the "beneficial owner,"
directly or indirectly, of shares of voting stock of Brooks
representing 50% or more of the total voting power of all
outstanding classes of voting stock of Brooks or such person
or group has the power, directly or indirectly, to elect a
majority of the members of the board of directors of Brooks;
- Brooks consolidates with, or merges with or into, another
person or Brooks sells, assigns, conveys, transfers, leases or
otherwise disposes of all or substantially all of the assets
of Brooks, or any person consolidates with, or merges with or
into, Brooks, in any such event other than pursuant to a
transaction in which the persons that "beneficially owned,"
directly or indirectly, the shares of voting stock of Brooks
immediately prior to such transaction "beneficially own,"
directly or indirectly, shares of voting stock of Brooks,
representing at least a majority of the total voting power of
all outstanding classes of voting stock of the surviving or
transferee person; or
- Brooks is dissolved or liquidated.
However, a change in control will not be deemed to have occurred if
either:
- the last sale price of our common stock for any five trading
days during the ten trading days immediately preceding the
change in control is at least equal to 105% of the conversion
price in effect on such day; or
- in the case of a merger or consolidation, all of the
consideration excluding cash payments for fractional shares in
the merger or consolidation constituting the change in control
consists of common
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stock traded on a United States national securities exchange
or quoted on The Nasdaq National Market (or which will be so
traded or quoted when issued or exchanged in connection with
such change in control) and as a result of such transaction or
transactions the notes become convertible solely into such
common stock.
For purposes of this change in control definition:
- "person" or "group" have the meanings given to them for
purposes of Sections 13(d) and 14(d) of the Exchange Act or
any successor provisions, and the term "group" includes any
group acting for the purpose of acquiring, holding or
disposing of securities within the meaning of Rule 13d-5(b)(1)
under the Exchange Act, or any successor provision;
- a "beneficial owner" will be determined in accordance with
Rule 13d-3 under the Exchange Act, as in effect on the date of
the indenture, except that the number of shares of voting
stock of Brooks will be deemed to include, in addition to all
outstanding shares of voting stock of Brooks and unissued
shares deemed to be held by the "person" or "group" or other
person with respect to which the change in control
determination is being made, all unissued shares deemed to be
held by all other persons;
- "beneficially owned" has a meaning correlative to that of
beneficial owner;
- "unissued shares" means shares of voting stock not outstanding
that are subject to options, warrants, rights to purchase or
conversion privileges exercisable within 60 days of the date
of determination of a change in control; and
- "voting stock" means any class or classes of capital stock
pursuant to which the holders of capital stock under ordinary
circumstances have the power to vote in the election of the
board of directors, managers or trustees of any person or
other persons performing similar functions irrespective of
whether or not, at the time capital stock of any other class
or classes shall have, or might have, voting power by reason
of the happening of any contingency.
The term "all or substantially all" as used in the definition of change
in control will likely be interpreted under applicable state law and will be
dependent upon particular facts and circumstances. There may be a degree of
uncertainty in interpreting this phrase. As a result, we cannot assure you how a
court would interpret this phrase under applicable law if you elect to exercise
your rights following the occurrence of a transaction which you believe
constitutes a transfer of "all or substantially all" or our assets.
We will:
- comply with the provisions of Rule 13e-4 and Rule 14e-1, if
applicable, under the Exchange Act;
- file a Schedule TO or any successor or similar schedule if
required under the Exchange Act; and
- otherwise comply with all federal and state securities laws in
connection with any offer by us to purchase the notes upon a
change in control.
This change in control purchase feature may make more difficult or
discourage a takeover of Brooks and the removal of incumbent management.
However, we are not aware of any specific effort to accumulate shares of our
common stock or to obtain control of us by means of a merger, tender offer,
solicitation or otherwise. In addition, the change in control purchase feature
is not part of a plan by management to adopt a series of anti-takeover
provisions. Instead, the change in control purchase feature is a result of
negotiations between us and the initial purchasers of the notes.
We could, in the future, enter into certain transactions, including
recapitalizations, that do not constitute a change in control but would increase
the amount of indebtedness, including senior indebtedness, outstanding or
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otherwise adversely affect a holder. Neither we nor our subsidiaries are
prohibited from incurring indebtedness, including senior indebtedness, under the
indenture. The incurrence of significant amounts of additional indebtedness
could adversely affect our ability to service our debt, including the notes.
We may not repurchase any note at any time when the subordination
provisions of the indenture otherwise would prohibit us from making such
repurchase. If we fail to repurchase the notes when required, this failure will
constitute an event of default under the indenture whether or not repurchase is
permitted by the subordination provisions of the indenture.
If a change in control were to occur, we may not have sufficient funds
to pay the change in control purchase price for the notes tendered by holders.
In addition, we may in the future incur indebtedness that has similar change of
control provisions that permit holders of that debt to accelerate or require us
to repurchase that indebtedness upon the occurrence of events similar to a
change in control. Our failure to repurchase the notes upon a change in control
will result in an event of default under the indenture, whether or not the
purchase is permitted by the subordination provisions of the indenture.
EVENTS OF DEFAULT
Each of the following will constitute an event of default under the
indenture:
(1) we fail to pay principal or premium, if any, on any note when
due, whether or not prohibited by the subordination provisions
of the indenture;
(2) we fail to pay any interest on any note when due if such
failure continues for 30 days, whether or not prohibited by
the subordination provisions of the indenture;
(3) we fail to perform any other covenant required of us in the
indenture if such failure continues for 60 days after notice
is given in accordance with the indenture;
(4) we fail to pay the purchase price of any note when due,
whether or not prohibited by the subordination provisions of
the indenture;
(5) we fail to provide timely notice of a change in control; or
(6) certain events in bankruptcy, insolvency or reorganization of
Brooks.
If an event of default, other than an event of default described in
clause (6) above, occurs and is continuing, either the trustee or the holders of
at least 25% in aggregate principal amount of the outstanding notes may declare
the principal amount of the notes to be due and payable immediately. If an event
of default described in clause (6) above occurs, the principal amount of the
notes will automatically become immediately due and payable. Any payment by us
on the notes following any such acceleration will be subject to the
subordination provisions described above.
After any such acceleration, but before a judgment or decree based on
acceleration, the holders of a majority in aggregate principal amount of the
notes may, under certain circumstances, rescind and annul such acceleration.
Subject to the trustee's duties in the case of an event of default, the
trustee will not be obligated to exercise any of its rights or powers at the
request of the holders, unless the holders have offered to the trustee
reasonable indemnity. Subject to the trustee's indemnification, the holders of a
majority in aggregate principal amount of the outstanding notes will have the
right to direct the time, method and place of conducting any proceeding for any
remedy available to the trustee or exercising any trust or power conferred on
the trustee with respect to the notes.
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No holder will have any right to institute any proceeding under the
indenture, or for the appointment of a receiver or a trustee, or for any other
remedy under the indenture unless:
- the holder has previously given to the trustee written notice
of a continuing event of default;
- the holders of at least 25% in aggregate principal amount of
the outstanding notes have made a written request and have
offered reasonable indemnity to the trustee to institute such
proceeding as trustee;
- the trustee has not complied with the request within 60 days
after receipt of the request and the offer of security or
indemnity; and
- the holders of a majority in principal amount of the
outstanding notes have not given the trustee a direction
inconsistent with the request within the 60-day period.
However, these limitations do not apply to a suit instituted by a
holder for the enforcement of payment of the principal of or any premium or
interest on any note on or after the applicable due date or the right to convert
the note.
Generally, the holders of not less than a majority of the aggregate
principal amount of outstanding notes may waive any default or event of default
unless:
- we fail to pay principal, premium or interest on any note when
due;
- we fail to convert any note into common stock; or
- we fail to comply with any of the provisions of the indenture
that would require the consent of the holder of each
outstanding note affected.
We are required to furnish to the trustee, on an annual basis, a
statement by our officers as to whether or not Brooks, to the officer's
knowledge, is in default in the performance or observance of any of the terms,
provisions and conditions of the indenture, specifying any known defaults.
MODIFICATION AND WAIVER
We and the trustee may make certain modifications and amendments to the
indenture or the notes without notice to or the consent of any holder, including
modifications or amendments to comply with the merger provisions described in
the indenture, to provide for uncertificated notes in addition to or in place of
certificated notes, to comply with the provisions of the Trust Indenture Act, to
appoint a successor trustee, to cure any ambiguity, defect or inconsistency, or
to make any other change that does not adversely affect the rights of the
holders.
We and the trustee may make other modifications and amendments to the
indenture or the notes with the consent of the holders of a majority in
aggregate principal amount of the outstanding notes.
However, neither we nor the trustee may make any modification or
amendment without the consent of the holder of each outstanding note if such
modification or amendment would:
- change the stated maturity of the principal of or interest on
any note;
- reduce the principal amount of, or any premium or interest on,
any note;
- reduce the amount of principal payable upon acceleration of
the maturity of any note;
- change the place or currency of payment of principal of, or
any premium or interest on, any note;
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- impair the right to institute suit for the enforcement of any
payment on, or with respect to, any note;
- modify the subordination provisions in a manner materially
adverse to the holders of notes;
- adversely affect the right of holders to convert notes other
than as provided in or under the indenture;
- reduce the percentage in principal amount of outstanding notes
required for modification or amendment of the indenture;
- reduce the percentage in principal amount of outstanding notes
necessary for waiver of compliance with certain provisions of
the indenture or for waiver of certain defaults; or
- modify the foregoing requirements.
CONSOLIDATION, MERGER AND SALE OF ASSETS
We may not consolidate with or merge into any other person, in a
transaction in which we are not the surviving corporation, or convey, transfer
or lease our properties and assets substantially as an entirety to any successor
person, unless:
- the successor person, if any, is a corporation or limited
liability company organized and existing under the laws of the
United States, or any state of the United States, and assumes
our obligations on the notes and under the indenture;
- immediately after giving effect to the transaction, no default
or event of default shall have occurred and be continuing; and
- other conditions specified in the indenture are met.
REGISTRATION RIGHTS
We have agreed to file a shelf registration statement under the
Securities Act within 90 days after the first date of original issuance of the
notes to register resales of the notes and the shares of common stock into which
the notes are convertible, referred to as registrable securities. We will use
commercially reasonable efforts to have this shelf registration statement
declared effective within 180 days after the first date of original issuance of
the notes, and to keep it effective until the earliest of:
(1) two years after the effective date;
(2) the date when all registrable securities shall have been
registered under the Securities Act and disposed of; and
(3) the date on which all registrable securities (other than those
held by affiliates of Brooks) are eligible to be sold to the
public pursuant to Rule 144(k) under the Securities Act.
We will be permitted to suspend the use of the prospectus which is a
part of the registration statement for a period not to exceed 90 consecutive
days or an aggregate of 120 days in any twelve-month period under certain
circumstances relating to pending corporate developments, public filings with
the Securities and Exchange Commission and similar events.
A holder of registrable securities that sells registrable securities
pursuant to the shelf registration statement generally is required to provide
information about itself and the specifics of the sale, be named as a selling
security
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holder in the related prospectus and deliver a prospectus to purchasers, be
subject to relevant civil liability provisions under the Securities Act in
connection with such sales and be bound by the provisions of the registration
rights agreements which are applicable to such holder.
If:
(1) on or prior to the 90th day after the first date of original
issuance of the notes, the shelf registration statement has
not been filed with the SEC;
(2) on or prior to the 180th day after the first date of original
issuance of the notes, the shelf registration statement has
not been declared effective by the SEC;
(3) we fail with respect to a note holder that supplies the
appropriate selling stockholder questionnaire to supplement
the shelf registration statement in a timely manner in order
to name additional selling securities holders; or
(4) after the shelf registration statement has been declared
effective, such shelf registration statement ceases to be
effective or fails to be usable in connection with resales of
notes and the common stock issuable upon the conversion of the
notes in accordance with and during the periods specified in
the registration rights agreement and (A) we do not cure the
shelf registration statement within five business days by a
post-effective amendment or a report filed pursuant to the
Exchange Act or (B) if applicable, we do not terminate the
suspension period described above by the 90th day, as the case
may be;
(each such event referred to in clauses (1) through (4), a registration
default), additional interest will accrue daily on registrable securities over
and above the rate set forth in the title of the notes, from and including the
date on which any such registration default shall occur to but excluding the
date on which all registration defaults have been cured, at the annual rate of
0.5% for the notes or, if applicable, on an equivalent basis per share (subject
to adjustment in the case of stock splits, stock recombinations, stock dividends
and the like) of common stock constituting registrable securities. We have no
other liabilities for monetary damages with respect to our registration
obligations. With respect to each holder, our obligations to pay additional
interest remain in effect only so long as the notes and the common stock
issuable upon the conversion of the notes held by the holder are "registrable
securities" within the meaning of the registration rights agreement.
We will pay all expenses of the shelf registration statement, provide
each holder that is selling registrable securities pursuant to the shelf
registration statement copies of the related prospectus and take other actions
as are required to permit, subject to the foregoing, registered resales of the
registrable securities.
SATISFACTION AND DISCHARGE
We may discharge our obligations under the indenture while notes remain
outstanding if (1) all outstanding notes will become due and payable at their
scheduled maturity within 90 days or (2) all outstanding notes have been called
for redemption within 90 days, and, in either case, we have deposited with the
trustee an amount sufficient to pay and discharge all outstanding notes on the
date of their scheduled maturity or the scheduled date of redemption.
TRANSFER AND EXCHANGE
We have initially appointed the trustee as security registrar, paying
agent and conversion agent acting through its corporate trust office. We reserve
the right to:
- vary or terminate the appointment of the security registrar,
paying agent or conversion agent;
- appoint additional paying agents or conversion agents; or
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- approve any change in the office through which any security
registrar or any paying agent or conversion agent acts.
PURCHASE AND CANCELLATION
All notes surrendered for payment, redemption, registration of transfer
or exchange or conversion shall, if surrendered to any person other than the
trustee, be delivered to the trustee. All notes delivered to the trustee shall
be cancelled promptly by the trustee. No notes shall be authenticated in
exchange for any notes cancelled as provided in the indenture.
We may, to the extent permitted by law, purchase notes in the open
market or by tender offer at any price or by private agreement. Any notes
purchased by us may, to the extent permitted by law, be reissued or resold or
may, at our option, be surrendered to the trustee for cancellation. Any notes
surrendered for cancellation may not be reissued or resold and will be promptly
cancelled.
REPLACEMENT OF NOTES
We will replace mutilated, destroyed, stolen or lost notes at your
expense upon delivery to the trustee of the mutilated notes, or evidence of the
loss, theft or destruction of the notes satisfactory to us and the trustee. In
the case of a lost, stolen or destroyed note, indemnity satisfactory to the
trustee and us may be required at the expense of the holder of such note before
a replacement note will be issued.
GOVERNING LAW
The indenture and the notes will be governed by and construed in
accordance with the laws of the State of New York, without regard to conflicts
of laws principles.
THE TRUSTEE
State Street Bank and Trust Company has agreed to serve as the trustee
under the indenture. The trustee will be permitted to deal with us and any of
our affiliates with the same rights as if it were not trustee. However, under
the Trust Indenture Act, if the trustee acquires any conflicting interest and
there exists a default with respect to the notes, the trustee must eliminate
such conflicts or resign. State Street Bank and Trust Company has, on a number
of occasions in connections with acquisitions by us, served on an arm's length
basis as escrow agent in connection with indemnification and expense obligations
of the sellers of a number of the companies we have acquired. It is possible
State Street Bank and Trust Company will, in the future, serve as escrow agent
in connection with future acquisitions by us.
The holders of a majority in principal amount of all outstanding notes
will have the right to direct the time, method and place of conducting any
proceeding for exercising any remedy or power available to the trustee. However,
any such direction may not conflict with any law or the indenture, may not be
unduly prejudicial to the rights of another holder or the trustee and may not
involve the trustee in personal liability.
BOOK-ENTRY, DELIVERY AND FORM
We initially issued the notes in the form of one or more global
securities. The global security was deposited with the trustee as custodian for
DTC and registered in the name of a nominee of DTC. Except as set forth below,
the global security may be transferred, in whole and not in part, only to DTC or
another nominee of DTC. The note holders may hold their beneficial interests in
the global security directly through DTC if they have an account with DTC or
indirectly through organizations which have accounts with DTC. Notes in
definitive certificated form (called "certificated securities") will be issued
only in certain limited circumstances described below.
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DTC has advised us that it is:
- a limited purpose trust company organized under the laws of
the State of New York;
- a member of the Federal Reserve System;
- a "clearing corporation" within the meaning of the New York
Uniform Commercial Code; and
- a "clearing agency" registered pursuant to the provisions of
Section 17A of the Exchange Act.
DTC was created to hold securities of institutions that have accounts
with DTC (called "participants") and to facilitate the clearance and settlement
of securities transactions among its participants in such securities through
electronic book-entry changes in accounts of the participants, thereby
eliminating the need for physical movement of securities certificates. DTC's
participants include securities brokers and dealers, which may include the
initial purchasers of the notes, banks, trust companies, clearing corporations
and certain other organizations. Access to DTC's book-entry system is also
available to others such as banks, brokers, dealers and trust companies (called
"indirect participants") that clear through or maintain a custodial relationship
with a participant, whether directly or indirectly.
Pursuant to procedures established by DTC, upon the deposit of the
global security with DTC, DTC credited on its book-entry registration and
transfer system the principal amount of notes represented by such global
security to the accounts of participants. The accounts to be credited were
designated by the initial purchasers. Ownership of beneficial interests in the
global security is limited to participants or persons that may hold interests
through participants. Ownership of beneficial interests in the global security
is shown on, and the transfer of those ownership interests may be effected only
through, records maintained by DTC (with respect to participants' interests),
the participants and the indirect participants. The laws of some jurisdictions
may require that certain purchasers of securities take physical delivery of such
securities in definitive form. These limits and laws may impair the ability to
transfer or pledge beneficial interests in the global security.
Beneficial owners of interests in global securities who desire to
convert their interests into common stock should contact their brokers or other
participants or indirect participants through whom they hold such beneficial
interests to obtain information on procedures, including proper forms and
cut-off times, for submitting requests for conversion.
So long as DTC, or its nominee, is the registered owner or holder of a
global security, DTC or its nominee, as the case may be, will be considered the
sole owner or holder of the notes represented by the global security for all
purposes under the indenture and the notes. In addition, no beneficial owner of
an interest in a global security will be able to transfer that interest except
in accordance with the applicable procedures of DTC. Except as set forth below,
as an owner of a beneficial interest in the global security, you will not be
entitled to have the notes represented by the global security registered in your
name, will not receive or be entitled to receive physical delivery of
certificated securities and will not be considered to be the owner or holder of
any notes under the global security. We understand that under existing industry
practice, if an owner of a beneficial interest in the global security desires to
take any action that DTC, as the holder of the global security, is entitled to
take, DTC would authorize the participants to take such action and the
participants would authorize beneficial owners owning through such participants
to take such action or would otherwise act upon the instructions of beneficial
owners owning through them.
We will make payments of principal of, premium, if any, and interest
(including any additional interest) on the notes represented by the global
security registered in the name of and held by DTC or its nominee to DTC or its
nominee, as the case may be, as the registered owner and holder of the global
security. Neither we, the trustee nor any paying agent will have any
responsibility or liability for any aspect of the records relating to or
payments made on account of beneficial ownership interests in the global
security or for maintaining, supervising or reviewing any records relating to
such beneficial ownership interests.
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We expect that DTC or its nominee, upon receipt of any payment of
principal of, premium, if any, or interest (including any additional interest)
on the global security, will credit participants' accounts with payments in
amounts proportionate to their respective beneficial interests in the principal
amount of the global security as shown on the records of DTC or its nominee. We
also expect that payments by participants or indirect participants to owners of
beneficial interests in the global security held through such participants or
indirect participants will be governed by standing instructions and customary
practices and will be the responsibility of such participants or indirect
participants. We will not have any responsibility or liability for any aspect of
the records relating to, or payments made on account of, beneficial ownership
interests in the global security for any note or for maintaining, supervising or
reviewing any records relating to such beneficial ownership interests or for any
other aspect of the relationship between DTC and its participants or indirect
participants or the relationship between such participants or indirect
participants and the owners of beneficial interests in the global security
owning through such participants.
Transfers between participants in DTC will be effected in the ordinary
way in accordance with DTC rules and will be settled in same-day funds.
DTC has advised us that it will take any action permitted to be taken
by a holder of notes only at the direction of one or more participants to whose
account the DTC interests in the global security is credited and only in respect
of such portion of the aggregate principal amount of notes as to which such
participant or participants has or have given such direction. However, if DTC
notifies us that they are unwilling to be a depository for the global security
or ceases to be a clearing agency or there is an event of default under the
notes, DTC will exchange the global security for certificated securities which
it will distribute to its participants and which will be legended, if required.
Although DTC is expected to follow the foregoing procedures in order to
facilitate transfers of interests in the global security among participants of
DTC, they are under no obligation to perform or continue to perform such
procedures, and such procedures may be discontinued at any time. Neither we nor
the trustee will have any responsibility or liability for the performance by DTC
or the participants or indirect participants of their respective obligations
under the rules and procedures governing their respective operations.
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DESCRIPTION OF CAPITAL STOCK
Our authorized capital stock consists of 43,000,000 shares of common stock,
par value $0.01 per share, and 1,000,000 shares of preferred stock, par value
$0.01 per share.
BROOKS COMMON STOCK
As of September 6, 2001, there were 18,894,539 shares of our common stock
outstanding. These shares were held of record by approximately 324 stockholders.
Our common stockholders are entitled to one vote per share on all matters
to be voted on by stockholders. They are entitled to receive dividends, if any,
as declared by our board of directors from legally available funds. In the event
of our liquidation, dissolution or winding up, the holders of our common stock
are entitled to share ratably in all assets available for distribution to the
stockholders, subject to prior distribution rights of our preferred stock, if
any, then outstanding. Our common stock has no preemptive or other subscription
rights, and there are no conversion rights or redemption or sinking fund
provisions with respect to such shares. Our common stockholders do not have
cumulative voting rights in the election of directors. All of the shares of our
common stock are fully paid and nonassessable.
PREFERRED STOCK
Our board of directors, without further stockholder approval, has the
authority to issue shares of preferred stock in one or more series and to fix
the rights, preferences, privileges and restrictions thereof, including dividend
rights, dividend rates, conversion rights, voting rights, terms of redemption,
redemption prices, liquidation preferences and the number of shares constituting
any series or the designation of such series. No shares of preferred stock are
outstanding and we have no present plans to issue any of our preferred stock.
POSSIBLE ANTITAKEOVER EFFECTS
Certificate of Incorporation and Bylaws
Our certificate of incorporation includes several other provisions in
addition to our preferred stock which may have the effect of preventing changes
in our management. These provisions may make an unfriendly tender offer, proxy
contest, merger or other change in control of us more difficult. These
provisions are intended to enhance the likelihood of continuity and stability in
the composition of our board of directors and in the policies formulated by our
board of directors and to discourage certain types of transactions that may
involve a change in control. These provisions are also designed to reduce our
vulnerability to unsolicited acquisition proposals and to discourage certain
tactics that may be used in proxy fights. These provisions, however, could have
the effect of discouraging others from making tender offers for the shares of
our common stock and, as a consequence, they also may inhibit fluctuations in
the market price of the shares of our common stock which could result from
actual or rumored takeover attempts.
Our certificate of incorporation contains a so-called "anti-greenmail"
provision. The provision is intended to discourage speculators who accumulate
beneficial ownership of a significant block of stock of a company and then,
under the threat of making a tender offer or instigating a proxy contest or some
other corporate disruption, succeed in extracting from the company a premium
price to repurchase the shares acquired by the speculator. This tactic has
become known as greenmail. The anti-greenmail provision prohibits us from
purchasing any shares of our common stock from a related person, who has
beneficially owned such common stock or right to purchase such common stock for
less than two years prior to the date of such purchase, at a per share price in
excess of the fair market value at the time of the purchase unless the purchase
is approved by the holders of two-thirds of the outstanding shares of our common
stock, excluding any votes cast by the related person. The term "related person"
means any person who acquires more than five percent of our voting stock.
Shareholder approval is not required for such purchases when the offer is made
available on the same terms to all holders of shares of our common stock or
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34
when the purchases are effected on the open market.
Our certificate of incorporation also provides that all stockholder action
must be effected at a duly called meeting and not by written consent, and that
certain stockholder proposals may only be approved by the holders of 80% of the
shares of stock entitled to vote on the proposal. In addition, our bylaws do not
permit our stockholders to call a special meeting of stockholders.
The authority of the our board of directors to issue authorized but
unissued shares of our common stock might be considered as having the effect of
discouraging an attempt by another person or entity to effect a takeover or
otherwise gain control of us, since the issuance of additional shares of our
common stock would dilute the voting power of our common stock then outstanding.
Rights Agreement
Our board of directors has adopted a rights plan. As a result, we issued
one purchase right for each outstanding share of common stock. One purchase
right will be issued for each additional share of common stock that we issue,
including shares issuable upon conversion of the notes. The rights become
exercisable if, without the prior approval of our board of directors, a person
or group acquires 15% or more of our outstanding common stock or commences or
announces a tender or exchange offer which would result in such ownership. Each
right that becomes exercisable entitles the registered holder to purchase one
one-thousandth of a share of our junior participating preferred stock at a
purchase price of $135 per one-thousandth of a share, subject to adjustment.
If, after the rights become exercisable, we were to be acquired through a
merger or other business combination transaction or 50% or more of our assets or
earning power were sold, each right would permit the holder to purchase, for the
purchase price, common stock of the surviving company having a market value of
twice the purchase price.
The rights expire on July 31, 2007, unless earlier redeemed or exchanged by
us. The purchase price payable and the shares of preferred stock issuable upon
exercise of the rights are subject to adjustment as described in the rights
agreement. In addition, our board of directors retains the authority to redeem,
at $0.001 per right, the rights at any time prior to the acquisition by a person
or group of 15% or more of our outstanding common stock.
Section 203 of Delaware Law
We are subject to the provisions of Section 203 of the Delaware General
Corporation Law. Section 203 prohibits publicly held Delaware corporations from
engaging in a "business combination" with an "interested stockholder" for a
period of three years after the date of the transaction in which the person
became an interested stockholder, unless the business combination is approved in
a prescribed manner. A "business combination" includes mergers, asset sales and
other transactions resulting in a financial benefit to the interested
stockholder. Generally, an "interested stockholder" is a person who, together
with affiliates and associates, owns or was, within the three year period
immediately prior to the date on which it is sought to be determined whether
such person is an interested stockholder, an owner of 15% or more of a
corporation's voting stock. These provisions could have the effect of delaying,
deferring or preventing a change in control of our company or reducing the price
that certain investors might be willing to pay in the future for shares of our
common stock.
TRANSFER AGENT AND REGISTRAR
The transfer agent and registrar for our common stock is EquiServe LP.
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U.S. FEDERAL TAX CONSEQUENCES
This section summarizes some of the U.S. federal income tax considerations
relating to the purchase, ownership, and disposition of the notes and of common
stock into which the notes may be converted. This summary does not provide a
complete analysis of all potential tax considerations. The information provided
below is based on existing authorities. These authorities may change, or the
Internal Revenue Service (the "IRS") might interpret the existing authorities
differently. In either case, the tax consequences of purchasing, owning or
disposing of notes or common stock could differ from those described below.
Except as specifically stated below, the summary applies only to "U.S. Holders"
that purchase notes in the offering at their issue price and hold the notes or
common stock as "capital assets" (generally, for investment). For this purpose,
U.S. Holders include individual citizens or residents of the United States and
corporations (or entities treated as corporations for U.S. federal income tax
purposes) organized under the laws of the United States or any state or the
District of Columbia. Trusts are U.S. Holders if they are subject to the primary
supervision of a U.S. court and the control of one or more U.S. persons with
respect to substantial trust decisions. An estate is a U.S. Holder if the income
of the estate is subject to U.S. federal income taxation regardless of the
source of the income. The term "Non-U.S. Holder" means a holder that is not a
U.S. Holder. This summary describes some, but not all, of the special rules
applicable to Non-U.S. Holders. The tax treatment of a holder of notes or common
stock may vary depending on such holder's particular situation. This summary
does not address all of the tax consequences that may be relevant to you in
light of your particular circumstances, including but not limited to the
application of the alternative minimum tax or rules applicable to taxpayers in
special circumstances. Special rules may apply, for instance, to banks and
financial institutions, insurance companies, S corporations, broker-dealers,
tax-exempt organizations, persons who hold notes or common stock as part of a
hedge, conversion or constructive sale transaction, straddle or other risk
reduction transaction, to persons that have a "functional currency" other than
the U.S. dollar, or to persons subject to taxation as expatriates. Furthermore,
in general, this discussion does not address the tax consequences applicable to
holders that are treated as partnerships or other pass-through entities for U.S.
federal income tax purposes. This summary is based on the U.S. federal income
tax law in effect as of the date hereof, which is subject to change, possibly on
a retroactive basis. Finally, the summary does not describe the effect of the
federal estate tax laws on U.S. Holders or the effects of any other federal or
any applicable foreign, state, or local tax laws.
PLEASE CONSULT YOUR OWN TAX ADVISOR REGARDING THE APPLICATION OF THE U.S.
FEDERAL INCOME TAX LAWS TO YOUR PARTICULAR SITUATION AND THE CONSEQUENCES OF
OTHER FEDERAL TAX LAWS, FOREIGN, STATE, OR LOCAL TAX LAWS, AND TAX TREATIES.
U.S. HOLDERS
The following rules apply to you if you are a U.S. Holder.
Taxation of Interest
U.S. Holders will be required to recognize as ordinary income any interest
paid or accrued on the notes, in accordance with their regular method of
accounting for U.S. federal income tax purposes. In general, if a holder of a
debt instrument may receive payments other than fixed periodic interest that
exceed the issue price of the instrument, the holder may be required to
recognize additional interest as "original issue discount" over the term of the
instrument. We believe that the notes will not be issued with original issue
discount. If the price of our common stock exceeds 150% of the conversion price
of the notes during a prescribed period, and certain other conditions are met
regarding the registration of the notes and common stock, we will be able to
call the notes for redemption at a price that will include an additional amount
in excess of their principal amount. The original issue discount regulations
allow contingent payments such as this to be disregarded in computing a holder's
interest income if the contingency is either "incidental" or "remote." If we
exercise our provisional redemption right, it is likely that holders of the
notes would convert the notes into common stock. Therefore, we believe that the
possibility that we will pay the prescribed redemption premium is remote. Our
determination that this contingency is
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incidental or remote is binding on holders unless they disclose their contrary
position. Our determination, however, is not binding on any taxing authority. If
we pay a redemption premium in connection with our exercise of our provisional
redemption right, the premium would more likely than not be treated as capital
gain. In addition, the conversion rights should not constitute a contingent
payment under the original issue discount regulations, and therefore should not
cause the notes to have original issue discount.
Under the terms of the notes, if a note holder converts a note into our
common stock after the record date but prior to the interest payment date, the
note holder is obligated to pay us funds equal to the interest payable on the
converted principal amount. The tax consequences to the note holder of the
receipt and repayment of interest are uncertain. We believe that neither the
receipt nor the repayment should be taken into account in computing the note
holder's taxable income. A taxing authority, however, may require the note
holder to recognize ordinary income in an amount equal to the interest received.
In that case, the note holder should be allowed an offsetting deduction for the
repayment. The note holder, however, may be required to capitalize (rather than
deduct) the repaid interest payment as an addition to tax basis in the common
stock received in the conversion, or may otherwise be subject to certain
limitations on the deductibility of interest.
Sale, Exchange or Redemption of the Notes
U.S. Holders will generally recognize capital gain or loss if the holder
disposes of a note in a sale, redemption or exchange (other than a conversion)
of the note into common stock. The note holder's gain or loss will equal the
difference between the proceeds received by the note holder and the note
holder's adjusted tax basis in the note. The proceeds received by the note
holder will include the amount of any cash and the fair market value of any
other property received for the note. The note holder's tax basis in the note
will generally equal the amount the note holder paid for the note. The portion
of any proceeds that is attributable to accrued interest will not be taken into
account in computing capital the note holder's gain or loss. Instead, that
portion of the proceeds will be recognized as ordinary interest income to the
extent that it was not previously included the accrued interest in income. The
gain or loss recognized by a note holder on a disposition of the note will be
long-term capital gain or loss if the holder held the note for more than one
year. Long-term capital gains of individual taxpayers are generally taxed at a
maximum rate of 20 percent, or 18 percent for assets acquired after the year
2000 and held for more than five years. The deductibility of capital losses is
subject to limitations.
Conversion of the Notes
A U.S. Holder generally will not recognize any income, gain or loss on
converting a note into common stock. If the note holder receives cash in lieu of
a fractional share of stock, however, the note holder will be treated as if he
received the fractional share and then had the fractional share redeemed for the
cash. The note holder would recognize gain or loss equal to the difference
between the cash received and that portion of his basis in the stock
attributable to the fractional share. The note holder's aggregate basis in the
common stock will equal the adjusted basis in the note (less the basis allocable
to the fractional share). The holding period for the stock will include the
period during which the note holder held the note.
Dividends on Common Stock
If, after a U.S. Holder converts a note into common stock, we make a
distribution in respect of that stock, the distribution will be treated as a
dividend, taxable to the U.S. Holder as ordinary income, to the extent it is
paid from our current or accumulated earnings and profits. If the distribution
exceeds our current and accumulated earnings and profits, the excess will be
treated first as a tax-free return of the note holder's investment, up to its
basis in the common stock. Any remaining excess will be treated as capital gain.
If a note holder is a U.S. corporation, it may be able to claim a deduction
equal to a portion of any dividends received.
Adjustment of Conversion Rate
The terms of the notes allow for changes in the conversion price of the
notes in certain circumstances. A
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change in the conversion price that allows note holders to receive more shares
of common stock on conversion may increase the note holders' proportionate
interests in our earnings and profits or assets. In that case, the note holders
may be treated as though they received a dividend in the form of our stock. Such
a constructive stock dividend could be taxable to the note holders, although
they would not actually receive any cash or other property. A taxable
constructive stock dividend would result, for example, if the conversion price
is adjusted to compensate note holders for distributions of cash or property to
our shareholders. Not all changes in the conversion price that allow note
holders to receive more stock on conversion, however, increase the note holders'
proportionate interests in Brooks. For instance, a change in the conversion
price could simply prevent the dilution of the note holders' interests upon a
stock split or other change in capital structure. Changes of this type, if made
by a bona fide, reasonable adjustment formula, are not treated as constructive
stock dividends. Conversely, if an event occurs that dilutes the note holders'
interests and the conversion price is not adjusted, the resulting increase in
the proportionate interests of our shareholders could be treated as a taxable
stock dividend to them. Any taxable constructive stock dividends resulting from
a change to, or failure to change, the conversion price would be treated like
distributions paid in cash or other property. They would result in ordinary
income to the recipient, to the extent of our current or accumulated earnings
and profits, with any excess treated as a tax-free return of capital up to the
recipient's tax basis and then as capital gain.
Sale of Common Stock
U.S. Holders will generally recognize capital gain or loss on a sale or
exchange of common stock. A U.S. Holder's gain or loss will equal the difference
between the proceeds received by the holder and the holder's adjusted tax basis
in the stock. The proceeds received by the holder will include the amount of any
cash and the fair market value of any other property received for the stock. The
gain or loss recognized by a holder on a sale or exchange of stock will be
long-term capital gain or loss if they hold the stock for more than one year. In
the case of individuals, long-term capital gains are generally taxed at a
maximum rate of 20 percent, or 18 percent for assets acquired after the year
2000 and held for more than five years. The deductibility of capital losses is
subject to limitations.
SPECIAL TAX RULES APPLICABLE TO NON-U.S. HOLDERS
The following rules apply to you if you are a Non-U.S. Holder.
Taxation of Interest
Payments of interest to nonresident persons or entities are generally
subject to U.S. federal withholding tax at a rate of 30 percent of the amount of
interest, collected by means of withholding by the payor. Payments of interest
on the notes to most Non-U.S. Holders, however, will qualify as "portfolio
interest," and thus will be exempt from the withholding tax, if the holders
certify their nonresident status as described below. The portfolio interest
exception will not apply to payments of interest to a note holder that:
- owns, directly or indirectly, 10 percent or more of the total combined
voting power of all classes of our stock entitled to vote; or
- is a "controlled foreign corporation" that is related to us.
In general, a foreign corporation is a controlled foreign corporation if
more than 50 percent of its stock is owned, directly or indirectly, by one or
more U.S. persons that each owns, directly or indirectly, 10 percent or more of
the total combined voting power of all classes of stock entitled to vote. If a
note holder is a bank investing in the notes as an extension of credit made
pursuant to a loan agreement entered into in the ordinary course of your trade
or business, such note holder should consult their own tax advisor regarding
their investment in the notes. Even if the portfolio interest exemption does not
apply, U.S. federal withholding tax may be reduced or eliminated under an
applicable treaty assuming the note holder properly certifies their entitlement
of the benefit under the treaty.
The portfolio interest exception and several of the special rules for
Non-U.S. Holders described below
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apply only if a note holder certifies its nonresident status. Note holders can
meet this certification requirement by providing a Form W-8BEN or appropriate
substitute form to us, or our paying agent. If a note holder holds the note
through a financial institution or other agent acting on their behalf, it will
be required to provide appropriate documentation to the agent. The note holder's
agent will then be required to provide certification to us or our paying agent,
either directly or through other intermediaries.
Sale, Exchange or Redemption of the Notes
Non-U.S. Holders generally will not be subject to U.S. federal income tax
on any gain realized on the sale, exchange, or other disposition of notes. This
general rule, however, is subject to several exceptions. For example, the gain
would be subject to U.S. federal income tax if:
- the gain is effectively connected with the conduct by the Non-U.S.
Holder of a U.S. trade or business;
- the Non-U.S. Holder was a citizen or long-term resident of the United
States subject to special rules that apply to expatriates; or
- the Non-U.S. Holder is an individual present in the United States for
183 days or more in the year of such sale, exchange or disposition and
certain other requirements are met.
Conversion of the Notes
Non-U.S. Holders generally will not recognize any income, gain or loss on
converting a note into common stock.
Dividends on Common Stock
Dividends paid to Non-U.S. Holders on common stock received on conversion
of a note will generally be subject to U.S. withholding tax at a 30 percent
rate. The withholding tax might not apply, however, or might apply at a reduced
rate, under the terms of a tax treaty between the United States and the Non-U.S.
Holder's country of residence. In order to claim the benefits of a tax treaty, a
Non-U.S. Holder must demonstrate its entitlement to treaty benefits by
certifying its nonresident status. Some of the common means of meeting this
requirement are described above under "Special Tax Rules Applicable to Non-U.S.
Holders -- Taxation of Interest."
Sale of Common Stock
Non-U.S. Holders will generally not be subject to U.S. federal income tax
on any gain realized on the sale, exchange, or other disposition of common
stock. This general rule, however, is subject to exceptions, some of which are
described above under "Special Tax Rules Applicable to Non-U.S. Holders -- Sale,
Exchange or Redemption of the Notes."
Income or Gains Effectively Connected With a U.S. Trade or Business
The preceding discussion of the tax consequences of the purchase, ownership
and disposition of notes or common stock by a Non-U.S. Holder assumes that the
holder is not engaged in a U.S. trade or business. If any interest on the notes,
dividends on common stock, or gain from the sale, exchange or other disposition
of the notes or common stock is effectively connected with a U.S. trade or
business conducted by a note holder, then the income or gain will be subject to
U.S. federal income tax at the regular graduated rates. If the Non-U.S. Holder
is eligible for the benefits of a tax treaty between the United States and their
country of residence, any "effectively connected" income or gain generally will
be subject to U.S. federal income tax only if it is also attributable to a
permanent establishment maintained by the note holder in the United States.
Payments of interest or dividends that are effectively connected with a U.S.
trade or business, and therefore included in a note holder's gross income, will
not be subject to the 30 percent withholding tax. To claim this exemption from
withholding, a note holder must certify
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its qualification, which can be done by filing a Form W-8ECI. If a note holder
is a foreign corporation, its income effectively connected with a U.S. trade or
business would generally be subject to an additional "branch profits tax." The
branch profits tax rate is generally 30 percent, although an applicable tax
treaty might provide for a lower rate.
United States Real Property Holding Corporation Status
The Foreign Investment in Real Property Tax Act ("FIRPTA") rules may apply
to a sale, exchange or other disposition of notes or common stock if we are, or
were within five years before the transaction, a "United States real property
holding corporation" ("USRPHC"). In general, we would be a USRPHC if interests
in U.S. real estate comprised most of our assets. We do not believe that we are
a USRPHC or that we will become one in the future. The FIRPTA rules would apply
to a disposition by a Non-U.S. Holder only if we otherwise were a USRPHC and (i)
in the case of common stock, such holder owned, directly or indirectly, more
than 5 percent of our common stock within five years before the disposition of
the common stock and (ii) in the case of the notes, such holder owned, directly
or indirectly, notes which, as of any date on which such notes were acquired by
such holder, had a fair market value greater than the fair market value on that
date of 5 percent of our common stock (or, possibly, of the regularly traded
class of stock with the lowest fair market value). If all of these conditions
were met, and the FIRPTA rules applied to the sale, exchange, or other
disposition of notes or common stock by such holder, then any gain recognized by
such holder would be treated as effectively connected with a U.S. trade or
business, and would thus be subject to U.S. federal income tax.
U.S. Federal Estate Tax
The estates of nonresident alien individuals are subject to U.S. federal
estate tax on property with a U.S. situs. The notes will not be U.S. situs
property as long as interest on the notes would have qualified as portfolio
interest (as described above under "Special Tax Rules Applicable to Non-U.S.
Holders -- Taxation of Interest") were it received by the decedent at the time
of death. Because we are a U.S. corporation, our common stock will be U.S. situs
property, and therefore will be included in the taxable estate of a nonresident
alien decedent. The U.S. federal estate tax liability of the estate of a
nonresident alien may be affected by a tax treaty between the United States and
the decedent's country of residence.
BACKUP WITHHOLDING AND INFORMATION REPORTING
The Internal Revenue Code and the Treasury regulations require those who
make specified payments to report the payments to the IRS. Among the specified
payments are interest, dividends, and proceeds paid by brokers to their
customers. The required information returns enable the IRS to determine whether
the recipient properly included the payments in income. This reporting regime is
reinforced by "backup withholding" rules. These rules require the payors to
withhold tax at a 31 percent rate from payments subject to information reporting
if the recipient fails to cooperate with the reporting regime, fails to provide
a correct taxpayer identification number to the payor or if the IRS or a broker
informs the payor that withholding is required. The information reporting and
backup withholding rules do not apply to payments to corporations, whether
domestic or foreign.
If a note holder is an individual U.S. holder of notes or common stock,
payments of interest or dividends to such holder will generally be subject to
information reporting, and will be subject to backup withholding unless we are
provided with a correct taxpayer identification number of the holder and neither
the IRS nor a broker informs us that withholding is required.
The backup withholding rules do not apply to payments that are subject to
the 30 percent withholding tax on dividends or interest paid to nonresidents, or
to payments that are exempt from that tax by application of a tax treaty or
special exception. Therefore, payments to Non-U.S. Holders of dividends on
common stock, or interest on notes, will generally not be subject to backup
withholding. To avoid backup withholding on dividends, a Non-U.S. Holder will
have to certify its nonresident status. Some of the common means of doing so are
described under "Special Rules Applicable to Non-U.S. Holders -- Taxation of
Interest." Even if certification is provided, information reporting may still
apply to payments of dividends and interest.
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If a note holder is a U.S. Holder, payments made to it by a broker upon a
sale of notes or common stock will generally be subject to information reporting
and possible backup withholding. If a note holder is a Non-U.S. Holder, payments
made to it by a broker upon a sale of notes or common stock will not be subject
to information reporting or backup withholding as long as it certifies its
foreign status.
Amounts withheld from a payment to a holder of notes or common stock under
the backup withholding rules can be credited against any U.S. federal income tax
liability of the holder.
THE PRECEDING DISCUSSION OF CERTAIN U.S. FEDERAL INCOME TAX CONSIDERATIONS
IS FOR GENERAL INFORMATION ONLY. IT IS NOT TAX ADVICE. EACH PROSPECTIVE INVESTOR
SHOULD CONSULT ITS OWN TAX ADVISOR REGARDING THE PARTICULAR U.S. FEDERAL, STATE,
LOCAL, AND FOREIGN TAX CONSEQUENCES OF PURCHASING, HOLDING, AND DISPOSING OF OUR
NOTES OR COMMON STOCK, INCLUDING THE CONSEQUENCES OF ANY PROPOSED CHANGE IN
APPLICABLE LAWS.
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SELLING SECURITYHOLDERS
We originally issued the notes in a private placement in May 2001 that was
exempt from the registration requirements of the Securities Act. The notes were
resold by the initial purchasers to qualified institutional buyers under Rule
144A of the Securities Act or in other transactions exempt from registration
under the Securities Act. Selling securityholders may offer and sell the notes
and the underlying common stock pursuant to this prospectus.
The following table contains information as of September 6, 2001, with
respect to selling securityholders and the principal amount of notes and
underlying common stock beneficially owned by each of the selling
securityholders that may be offered using this prospectus. The information is
based on information provided by or on behalf of the selling securityholders and
may have changed as of the date hereof. Because the selling securityholders may
offer all or some of their notes or the underlying common stock from time to
time, we cannot estimate the amount of the notes or underlying common stock that
will be held by the selling securityholders upon the termination of any
particular offering. The column showing ownership after completion of the
offering assumes that the selling securityholders will sell all of the
securities offered by this prospectus. The selling securityholders listed in the
table may have sold or transferred, in transactions exempt from the registration
requirements of the Securities Act, some or all of their notes since the date on
which the information in table is presented. Information about the selling
stockholders may change over time. Any change in this information will be set
forth in prospectus supplements, if required. None of the selling
securityholders or any of its affiliates, officers, directors or principal
equity holders has held any position or office or has had any material
relationship with us or our affiliates within the past three years.
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# of Shares of Common
Stock to be
Principal Amount # of Shares of Beneficially Owned
of Notes Common Stock # of Shares After Completion of
Beneficially Percentage Beneficially of Common Offering and % of
Name of Selling Owned that May of Notes Owned Prior to Stock that Common Stock
Securityholder be Sold ($) Outstanding the Offering(1) May be Sold(1) Outstanding(2)
-------------------------------------------------------------------------------------------------------------------
AFTRA Health Fund 390,000 0.22% 5,553 5,553 0
-------------------------------------------------------------------------------------------------------------------
AIG/National Union
Fire Insurance 1,175,000 0.67% 16,730 16,730 0
-------------------------------------------------------------------------------------------------------------------
Alexandra Global
Investment Fund I, Ltd. 4,250,000 2.43% 60,515 60,515 0
-------------------------------------------------------------------------------------------------------------------
Allstate Insurance
Company 1,550,000 .89% 37,777(3) 22,070 9,300(4) *
-------------------------------------------------------------------------------------------------------------------
Allstate Life
Insurance Company 450,000 .25% 37,777(5) 6,407 9,300(4) *
-------------------------------------------------------------------------------------------------------------------
Aloha Airlines
Non-Pilots Pension
Trust 210,000 0.12% 2,990 2,990 0
-------------------------------------------------------------------------------------------------------------------
Aloha Pilots
Retirement Trust 120,000 0.07% 1,708 1,708 0
-------------------------------------------------------------------------------------------------------------------
Alpine Associates 6,850,000 3.91% 97,536 97,536 0
-------------------------------------------------------------------------------------------------------------------
Alpine Partners, L.P. 1,150,000 0.66% 16,374 16,374 0
-------------------------------------------------------------------------------------------------------------------
Arbitex Master Fund,
L.P. 4,200,000 2.40% 59,803 59,803 0
-------------------------------------------------------------------------------------------------------------------
Arkansas PERS 975,000 0.56% 13,882 13,882 0
-------------------------------------------------------------------------------------------------------------------
Arkansas Teachers
Retirement 4,318,000 2.47% 61,483 61,483 0
-------------------------------------------------------------------------------------------------------------------
Attorneys' Title
Insurance Fund Inc. 200,000 0.11% 2,847 2,847 0
-------------------------------------------------------------------------------------------------------------------
Aventis Pension
Master Trust 105,000 0.06% 1,495 1,495 0
-------------------------------------------------------------------------------------------------------------------
Bancroft Convertible
Fund, Inc. 1,000,000 0.57% 14,238 14,238 0
-------------------------------------------------------------------------------------------------------------------
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# of Shares of Common
Stock to be
Principal Amount # of Shares of Beneficially Owned
of Notes Common Stock # of Shares After Completion of
Beneficially Percentage Beneficially of Common Offering and % of
Name of Selling Owned that May of Notes Owned Prior to Stock that Common Stock
Securityholder be Sold ($) Outstanding the Offering(1) May be Sold(1) Outstanding(2)
-------------------------------------------------------------------------------------------------------------------
BANK AUSTRIA CAYMAN
ISLAND, Ltd. 1,500,000 0.86% 21,358 21,358 0
-------------------------------------------------------------------------------------------------------------------
Baptist Health of
South Florida 594,000 0.34% 8,457 8,457 0
-------------------------------------------------------------------------------------------------------------------
Bear Stearns & Co.
Inc. 500,000 0.29% 7,119 7,119 0
-------------------------------------------------------------------------------------------------------------------
Boilermakers -
Blacksmith Pension
Trust 1,375,000 0.79% 19,578 19,578 0
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Boston Museum of Fine
Art 77,000 0.04% 1,096 1,096 0
-------------------------------------------------------------------------------------------------------------------
C & H Sugar Company
Inc. 315,000 0.18% 4,485 4,485 0
-------------------------------------------------------------------------------------------------------------------
CALAMOS(R) Convertible
Fund - CALAMOS(R)
Investment Trust 1,310,000 0.75% 18,652 18,652 0
-------------------------------------------------------------------------------------------------------------------
CALAMOS(R) Convertible
Growth and Income
Fund - CALAMOS(R)
Investment Trust 565,000 0.32% 8,044 8,044 0
-------------------------------------------------------------------------------------------------------------------
CALAMOS(R) Convertible
Portfolio - CALAMOS(R)
Advisors Trust 45,000 0.03% 640 640 0
-------------------------------------------------------------------------------------------------------------------
CALAMOS(R) Convertible
Technology Fund -
CALAMOS(R) Investment
Trust 70,000 0.04% 996 996 0
-------------------------------------------------------------------------------------------------------------------
CALAMOS(R) Global
Convertible Fund -
CALAMOS(R) Investment
Trust 50,000 0.03% 711 711 0
-------------------------------------------------------------------------------------------------------------------
Castle Convertible
Fund, Inc. 250,000 0.14% 3,559 3,559 0
-------------------------------------------------------------------------------------------------------------------
City of Albany
Pension Plan 130,000 0.07% 1,851 1,851 0
-------------------------------------------------------------------------------------------------------------------
42
43
-------------------------------------------------------------------------------------------------------------------
# of Shares of Common
Stock to be
Principal Amount # of Shares of Beneficially Owned
of Notes Common Stock # of Shares After Completion of
Beneficially Percentage Beneficially of Common Offering and % of
Name of Selling Owned that May of Notes Owned Prior to Stock that Common Stock
Securityholder be Sold ($) Outstanding the Offering(1) May be Sold(1) Outstanding(2)
-------------------------------------------------------------------------------------------------------------------
City of Knoxville
Pension System 125,000 0.07% 1,779 1,779 0
-------------------------------------------------------------------------------------------------------------------
Clarica Life
Insurance Co. - U.S. 145,000 0.08% 2,064 2,064 0
-------------------------------------------------------------------------------------------------------------------
Clinton Multistrategy
Master Fund, Ltd. 3,500,000 2.00% 49,836 49,836 0
-------------------------------------------------------------------------------------------------------------------
Clinton Riverside
Convertible Portfolio
Limited 4,700,000 2.69% 66,922 66,922 0
-------------------------------------------------------------------------------------------------------------------
Credit Suisse First
Boston Corporation 4,370,000 2.50% 62,224 62,224 0
-------------------------------------------------------------------------------------------------------------------
Delaware PERS 1,500,000 0.86% 21,358 21,358 0
-------------------------------------------------------------------------------------------------------------------
Delta Airlines Master
Trust 980,000 0.56% 13,954 13,954 0
-------------------------------------------------------------------------------------------------------------------
Delta Pilots
Disability and
Survivorship Trust 200,000 0.11% 2,847 2,847 0
-------------------------------------------------------------------------------------------------------------------
Drury University 85,000 0.05% 1,210 1,210 0
-------------------------------------------------------------------------------------------------------------------
Ellsworth Convertible
Growth and Income
Fund, Inc. 1,000,000 0.57% 14,238 14,238 0
-------------------------------------------------------------------------------------------------------------------
Engineers Joint
Pension Fund 575,000 0.33% 8,187 8,187 0
-------------------------------------------------------------------------------------------------------------------
Enterprise
Convertible
Securities Fund 208,000 0.12% 2,961 2,961 0
-------------------------------------------------------------------------------------------------------------------
F. R. Convt. Sec. Fn. 145,000 0.08% 2,064 2,064 0
-------------------------------------------------------------------------------------------------------------------
First Union
International Capital
Markets 10,500,000 6.00% 149,508 149,508 0
-------------------------------------------------------------------------------------------------------------------
Global Bermuda
Limited Partnership 200,000 0.11% 2,847 2,847 0
-------------------------------------------------------------------------------------------------------------------
H. K. Porter Company,
Inc. 35,000 0.02% 498 498 0
-------------------------------------------------------------------------------------------------------------------
43
44
-------------------------------------------------------------------------------------------------------------------
# of Shares of Common
Stock to be
Principal Amount # of Shares of Beneficially Owned
of Notes Common Stock # of Shares After Completion of
Beneficially Percentage Beneficially of Common Offering and % of
Name of Selling Owned that May of Notes Owned Prior to Stock that Common Stock
Securityholder be Sold ($) Outstanding the Offering(1) May be Sold(1) Outstanding(2)
-------------------------------------------------------------------------------------------------------------------
Hawaiian Airlines
Employees Pension
Plan-IAM 100,000 0.06% 1,423 1,423 0
-------------------------------------------------------------------------------------------------------------------
Hawaiian Airlines
Pension Plan for
Salaried Employees 20,000 0.01% 284 284 0
-------------------------------------------------------------------------------------------------------------------
Hawaiian Airlines
Pilots Retirement Plan 190,000 0.11% 2,705 2,705 0
-------------------------------------------------------------------------------------------------------------------
ICI American Holdings
Trust 650,000 0.37% 9,255 9,255 0
-------------------------------------------------------------------------------------------------------------------
Innovest
Finanzdienstleistungs 675,000 0.39% 9,611 9,611 0
-------------------------------------------------------------------------------------------------------------------
KBC Financial
Products USA 2,000,000 1.14% 28,477 28,477 0
-------------------------------------------------------------------------------------------------------------------
Kentfield Trading,
Ltd. 19,585,000 11.19% 278,869 278,869 0
-------------------------------------------------------------------------------------------------------------------
Kettering Medical
Center Funded
Depreciation Account 90,000 0.05% 1,281 1,281 0
-------------------------------------------------------------------------------------------------------------------
Knoxville Utilities
Board Retirement
System 60,000 0.03% 854 854 0
-------------------------------------------------------------------------------------------------------------------
Lakeshore
International Ltd. 1,800,000 1.03% 25,630 25,630 0
-------------------------------------------------------------------------------------------------------------------
Lincoln National
Convertible
Securities Fund 500,000 0.29% 7,119 7,119 0
-------------------------------------------------------------------------------------------------------------------
Lincoln National
Global Asset
Allocation Fund, Inc. 140,000 0.08% 1,993 1,993 0
-------------------------------------------------------------------------------------------------------------------
Lipper Convertibles
Series II, L.P. 1,000,000 0.57% 14,238 14,238 0
-------------------------------------------------------------------------------------------------------------------
Lipper Convertibles,
L.P. 11,000,000 6.29% 156,628 156,628 0
-------------------------------------------------------------------------------------------------------------------
Lipper Offshore
Convertibles, L.P. 4,000,000 2.29% 56,955 56,955 0
-------------------------------------------------------------------------------------------------------------------
44
45
-------------------------------------------------------------------------------------------------------------------
# of Shares of Common
Stock to be
Principal Amount # of Shares of Beneficially Owned
of Notes Common Stock # of Shares After Completion of
Beneficially Percentage Beneficially of Common Offering and % of
Name of Selling Owned that May of Notes Owned Prior to Stock that Common Stock
Securityholder be Sold ($) Outstanding the Offering(1) May be Sold(1) Outstanding(2)
-------------------------------------------------------------------------------------------------------------------
Louisiana Workers'
Compensation
Corporation 200,000 0.11% 2,847 2,847 0
-------------------------------------------------------------------------------------------------------------------
Lumbermens Mutual
Casualty 610,000 0.35% 8,685 8,685 0
-------------------------------------------------------------------------------------------------------------------
MainStay Convertible
Fund 6,130,000 3.50% 87,284 87,284 0
-------------------------------------------------------------------------------------------------------------------
MainStay VP
Convertible Portfolio 1,360,000 0.78% 19,364 19,364 0
-------------------------------------------------------------------------------------------------------------------
Mark IV-Gem Cap Mgmt. 1,000,000 0.57% 14,238 14,238 0
-------------------------------------------------------------------------------------------------------------------
McMahan Securities
Co., L.P. 140,000 0.08% 1,993 1,993 0
-------------------------------------------------------------------------------------------------------------------
Motion Pictures
Industry 666,000 0.38% 9,483 9,483 0
-------------------------------------------------------------------------------------------------------------------
Museum of Fine Arts,
Boston 10,000 0.01% 142 142 0
-------------------------------------------------------------------------------------------------------------------
New York Life
Separate Account #7 820,000 0.47% 11,675 11,675 0
-------------------------------------------------------------------------------------------------------------------
Nicholas Applegate
Convertible Fund 1,774,000 1.01% 25,259 25,259 0
-------------------------------------------------------------------------------------------------------------------
Ondeo Nalco 310,000 0.18% 4,414 4,414 0
-------------------------------------------------------------------------------------------------------------------
Parker-Hannif
Corporation 160,000 0.09% 2,278 2,278 0
-------------------------------------------------------------------------------------------------------------------
Physicians Life 456,000 0.26% 6,492 6,492 0
-------------------------------------------------------------------------------------------------------------------
PIMCO Convertible Fund 1,300,000 0.74% 18,510 18,510 0
-------------------------------------------------------------------------------------------------------------------
45
46
-------------------------------------------------------------------------------------------------------------------
# of Shares of Common
Stock to be
Principal Amount # of Shares of Beneficially Owned
of Notes Common Stock # of Shares After Completion of
Beneficially Percentage Beneficially of Common Offering and % of
Name of Selling Owned that May of Notes Owned Prior to Stock that Common Stock
Securityholder be Sold ($) Outstanding the Offering(1) May be Sold(1) Outstanding(2)
-------------------------------------------------------------------------------------------------------------------
Port Authority of
Allegheny County
Retirement and
Disability Allowance
Plan for the
Employees Represented
by Local 85 of the
Amalgamated Transit
Union 610,000 0.35% 8,685 8,685 0
-------------------------------------------------------------------------------------------------------------------
Putnam Asset
Allocation Funds-
Balanced Portfolio 680,000 0.39% 9,682 9,682 0
-------------------------------------------------------------------------------------------------------------------
Putnam Asset
Allocation
Funds-Conservative
Portfolio 520,000 0.30% 7,404 7,404 0
-------------------------------------------------------------------------------------------------------------------
Putnam Convertible
Income-Growth Trust 5,390,000 3.08% 76,747 76,747 0
-------------------------------------------------------------------------------------------------------------------
Putnam Convertible
Opportunities and
Income Trust 180,000 0.10% 2,563 2,563 0
-------------------------------------------------------------------------------------------------------------------
Putnam Variable
Trust-Putnam VT
Global Asset
Allocation Fund 180,000 0.10% 2,563 2,563 0
-------------------------------------------------------------------------------------------------------------------
Queens Health Plan 75,000 0.04% 1,067 1,067 0
-------------------------------------------------------------------------------------------------------------------
RCG Latitude Master
Fund 1,500,000 0.86% 21,358 21,358 0
-------------------------------------------------------------------------------------------------------------------
Robertson Stephens 3,000,000 1.71% 42,716 42,716 0
-------------------------------------------------------------------------------------------------------------------
Rockhaven Premier
Dividend Fund 755,000 0.43% 10,750 10,750 0
----------------------- ------------------ ------------- ----------------- --------------- ------------------------
San Diego City
Retirement 1,102,000 0.63% 15,691 15,691 0
----------------------- ------------------ ------------- ----------------- --------------- ------------------------
San Diego County
Convertible 2,217,000 1.27% 31,567 31,567 0
----------------------- ------------------ ------------- ----------------- --------------- ------------------------
SCI Endowment Care
Common Trust Fund -
National Fiduciary
Services 70,000 0.04% 996 996 0
-------------------------------------------------------------------------------------------------------------------
46
47
-------------------------------------------------------------------------------------------------------------------
# of Shares of Common
Stock to be
Principal Amount # of Shares of Beneficially Owned
of Notes Common Stock # of Shares After Completion of
Beneficially Percentage Beneficially of Common Offering and % of
Name of Selling Owned that May of Notes Owned Prior to Stock that Common Stock
Securityholder be Sold ($) Outstanding the Offering(1) May be Sold(1) Outstanding(2)
-------------------------------------------------------------------------------------------------------------------
SCI Endowment Care
Common Trust Fund -
Suntrust 100,000 0.06% 1,423 1,423 0
-------------------------------------------------------------------------------------------------------------------
Screen Actors Guild
Pension Convertible 607,000 0.35% 8,643 8,643 0
-------------------------------------------------------------------------------------------------------------------
SEI Trust Company 100,000 0.06% 6,303(6) 1,423 4,880(6) *
-------------------------------------------------------------------------------------------------------------------
SG Cowen Securities
Corporation 12,000,000 1.14% 28,477 28,477 0
-------------------------------------------------------------------------------------------------------------------
Southern Farm Bureau
Life Insurance 1,175,000 0.67% 16,730 16,730 0
-------------------------------------------------------------------------------------------------------------------
Spear, Leeds & Kellogg 750,000 0.43% 10,679 10,679 0
-------------------------------------------------------------------------------------------------------------------
SPT 485,000 0.28% 6,905 6,905 0
-------------------------------------------------------------------------------------------------------------------
Starvest Combined
Portfolio 1,250,000 0.71% 17,798 17,798 0
-------------------------------------------------------------------------------------------------------------------
Starvest Managed
Portfolio 30,000 0.02% 427 427 0
-------------------------------------------------------------------------------------------------------------------
State of Oregon/SAIF
Corporation 6,500,000 3.71% 92,553 92,553 0
-------------------------------------------------------------------------------------------------------------------
State of Oregon-Equity 4,775,000 2.73% 67,990 67,990 0
-------------------------------------------------------------------------------------------------------------------
Syngenta AG 255,000 0.15% 3,630 3,630 0
-------------------------------------------------------------------------------------------------------------------
The Dow Chemical
Company Employees'
Retirement Plan 1,100,000 0.63% 15,662 15,662 0
-------------------------------------------------------------------------------------------------------------------
The Fondren Foundation 90,000 0.05% 1,281 1,281 0
-------------------------------------------------------------------------------------------------------------------
TQA Master Fund, Ltd. 2,000,000 1.14% 28,477 28,477 0
-------------------------------------------------------------------------------------------------------------------
Union Carbide
Retirement Account 900,000 0.51% 12,815 12,815 0
-------------------------------------------------------------------------------------------------------------------
47
48
-------------------------------------------------------------------------------------------------------------------
# of Shares of Common
Stock to be
Principal Amount # of Shares of Beneficially Owned
of Notes Common Stock # of Shares After Completion of
Beneficially Percentage Beneficially of Common Offering and % of
Name of Selling Owned that May of Notes Owned Prior to Stock that Common Stock
Securityholder be Sold ($) Outstanding the Offering(1) May be Sold(1) Outstanding(2)
-------------------------------------------------------------------------------------------------------------------
United Food and
Commercial Workers
Local 1262 and
Employers Pension Fund 100,000 0.06% 1,423 1,423 0
-------------------------------------------------------------------------------------------------------------------
Vopak VSA, Inc.
Retirement Plan 165,000 0.09% 2,349 2,349 0
-------------------------------------------------------------------------------------------------------------------
Wake Forest University 864,000 0.49% 12,302 12,302 0
-------------------------------------------------------------------------------------------------------------------
White River
Securities L.L.C. 500,000 0.29% 7,119 7,119 0
-------------------------------------------------------------------------------------------------------------------
Writers Guild
Convertible 361,000 0.21% 5,140 5,140 0
-------------------------------------------------------------------------------------------------------------------
Wyoming State
Treasurer 1,213,000 0.69% 17,271 17,271 0
-------------------------------------------------------------------------------------------------------------------
Zeneca Holdings Trust 375,000 0.21% 5,339 5,339 0
-------------------------------------------------------------------------------------------------------------------
Any other holder of
notes or future
transferee, pledgee,
donee or successor
(7) (8)
-------------------------------------------------------------------------------------------------------------------
(1) Assumes conversion of all of the holder's notes at a conversion price
of $70.23 a share of common stock. Fractions of a share are not
included for the purposes of this calculation. The conversion price
will be subject to adjustment as described under "Description of Notes
- Conversion of Notes." As a result, the amount of common stock
issuable upon conversion of the notes may increase or decrease in the
future.
(2) Calculated based on Rule 13d-3(d)(1)(i) of the Exchange Act, using
18,894,539 shares of common stock outstanding as of September 6, 2001.
In calculating this amount, we treated as outstanding the number of
shares of common stock issuable upon conversion of all of that
particular holder's notes. However, we did not assume the conversion of
any other holder's notes.
(3) Includes 6,200 shares beneficially owned by Allstate Insurance Company,
300 shares owned by Allstate Life Insurance Company, 600 shares owned
by Allstate Pension Plan and 2,200 shares owned by Allstate Retirement
Plan. Also includes 6,407 shares owned by Allstate Life Insurance
Company, assuming the conversion by Allstate Life Insurance Company of
its $450,000 principal amount of notes at a conversion price of $70.23
a share.
(4) Includes 6,200 shares beneficially owned by Allstate Insurance Company,
300 shares owned by Allstate Life Insurance Company, 600 shares owned
by Allstate Pension Plan and 2,200 shares owned by Allstate Retirement
Plan.
(5) Includes 6,200 shares beneficially owned by Allstate Insurance Company,
300 shares owned by Allstate Life Insurance Company, 600 shares owned
by Allstate Pension Plan, and 2,200 shares owned by Allstate Retirement
Plan. Also includes 22,070 shares owned by Allstate Insurance Company,
assuming the conversion by Allstate Insurance Company of its $1,550,000
principal amount of notes at a conversion price of $70.23 a share.
(6) Includes 4,880 shares beneficially owned by SEI Trust Company.
(7) Information about other selling securityholders will be set forth in
prospectus supplements, if required.
(8) Assumes that any other holders of notes, or any future transferees,
pledgees, donees or successors of or from any other such holders of
notes, do not beneficially own any common stock other than the common
stock issuable upon conversion of the notes at the initial conversion
rate.
* Less than 1% of total outstanding common stock.
48
49
PLAN OF DISTRIBUTION
We will not receive any of the proceeds of the sale of the notes and the
underlying common stock offered by this prospectus. The notes and the underlying
common stock may be sold from time to time to purchasers:
- directly by the selling securityholders;
- through underwriters, broker-dealers or agents who may receive
compensation in the form of discounts, concessions or commissions from
the selling securityholders or the purchasers of the notes and the
underlying common stock.
The selling securityholders and any such broker-dealers or agents who
participate in the distribution of the notes and the underlying common stock may
be deemed to be "underwriters." As a result, any profits on the sale of the
notes and underlying common stock by selling securityholders and any discounts,
commissions or concessions received by any such broker-dealers or agents might
be deemed to be underwriting discounts and commissions under the Securities Act.
If the selling securityholders were to deemed underwriters, the selling
securityholders may be subject to certain statutory liabilities of, including,
but not limited to, Sections 11, 12 and 17 of the Securities Act and Rule 10b-5
under the Exchange Act.
If the notes and underlying common stock are sold through underwriters or
broker-dealers, the selling securityholders will be responsible for underwriting
discounts or commissions or agent's commissions.
The notes and underlying common stock may be sold in one or more
transactions at:
- fixed prices;
- prevailing market prices at the time of sale;
- varying prices determined at the time of sale; or - negotiated prices.
- These sales may be effected in transactions:
- on any national securities exchange or quotation service on which the
notes and underlying common stock may be listed or quoted at the time
of the sale, including the Nasdaq National Market in the case of the
common stock;
- in the over-the-counter market;
- in transactions otherwise than on such exchanges or services or in the
over-the-counter market; or
- through the writing of options.
These transactions may include block transactions or crosses. Crosses are
transactions in which the same broker acts as an agent on both sides of the
trade.
In connection with sales of the notes and underlying common stock or
otherwise, the selling securityholders may enter into hedging transactions with
broker-dealers. These broker-dealers may in turn engage in short sales of the
notes and underlying common stock in the course of hedging their positions. The
selling securityholders may also sell the notes and underlying common stock
short and deliver notes and underlying common stock to close out short
positions, or loan or pledge notes and underlying common stock to broker-dealers
that in turn may sell the notes and underlying common stock.
To our knowledge, there are currently no plans, arrangements or
understandings between any selling securityholder and any underwriter,
broker-dealer or agent regarding the sale of the notes and the underlying common
stock by the selling securityholders. There is no assurance that any selling
securityholders will sell any or all of the notes and the underlying common
stock offered by them pursuant to this prospectus. In addition, we cannot assure
you that any such selling securityholder will not transfer, devise or gift the
notes and the underlying common stock by other means not described in this
prospectus.
49
50
Our common stock trades on the Nasdaq National Market under the symbol
"BRKS". We do not intend to apply for listing of the notes on any securities
exchange or for quotation through Nasdaq. Accordingly, no assurance can be given
as to the development of liquidity or any trading market for the notes. See
"Risk Factors -- A Public Market May Not Develop for the Notes."
In addition, any securities covered by this prospectus which qualify for
sale pursuant to Rule 144, Rule 144A or any other available exemption from
registration under the Securities Act may be sold under Rule 144, Rule 144A or
any of the other available exemptions rather than pursuant to this prospectus.
The selling securityholders and any other person participating in such
distribution will be subject to the Exchange Act. The Exchange Act rules
include, without limitation, Regulation M, which may limit the timing of
purchases and sales of any of the notes and the underlying common stock by the
selling securityholders and any other such person. In addition, Regulation M of
the Exchange Act may restrict the ability of any person engaged in the
distribution of the notes and the underlying common stock to engage in
market-making activities with respect to the particular notes and the underlying
common stock being distributed for a period of up to five business days prior to
the commencement of such distribution. This may affect the marketability of the
notes and the underlying common stock and the ability of any person or entity to
engage in market-making activities with respect to the notes and the underlying
common stock.
Pursuant to the registration rights agreement incorporated by reference
into the registration statement of which this prospectus is a part, we and the
selling securityholders will be indemnified by the other against certain
liabilities, including certain liabilities under the Securities Act or will be
entitled to contribution in connection with these liabilities.
We have agreed to pay substantially all of the expenses incidental to the
registration, offering and sale of the notes and underlying common stock to the
public other than commissions, fees and discounts of underwriters, brokers,
dealers and agents.
LEGAL MATTERS
The validity of the securities offered hereby will be passed upon for us by
Brown, Rudnick, Freed & Gesmer, Boston, Massachusetts.
EXPERTS
The audited 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, 2000, except as they relate to Irvine Optical Company,
LLC as of December 31, 1999 and for each of the two years in the period ended
December 31, 1999, have been audited by PricewaterhouseCoopers LLP, independent
accountants, and insofar as they relate to Irvine Optical Company, LLC as of
December 31, 1999 and for each of the two years in the period ended December 31,
1999, by Ernst & Young LLP, independent auditors, whose report thereon is
incorporated herein. Such financial statements have been so incorporated in
reliance in the reports of such independent accountants and independent auditors
given on the authority of such firms as experts in auditing and accounting.
The audited supplementary financial statements incorporated in this
prospectus by reference to the Current Report on Form 8-K dated August 20, 2001,
except as they relate to Irvine Optical Company, LLC as of December 31, 1999 and
for each of the two years in the period ended December 31, 1999 and Progressive
Technologies, Inc., as of December 31, 2000 and 1999 and for each of the three
years in the period ended December 31, 2000, have been audited by
PricewaterhouseCoopers LLP, independent accountants, and, insofar as they relate
to Irvine Optical Company, LLC as of December 31, 1999 and for each of the two
years in the period ended December 31, 1999 and Progressive Technologies, Inc.,
by Ernst & Young LLP, independent auditors and Arthur Andersen LLP, independent
public accountants, respectively, whose reports thereon are also incorporated
herein. Such supplementary financial statements have been so incorporated in
reliance on the reports of such independent accountants, independent auditors,
and independent public accountants given on the authority of such firms as
experts in auditing and accounting.
The audited financial statements of Auto-Soft Corporation and
AutoSimulations, Inc., incorporated in this prospectus by reference to Brooks
Automation, Inc.'s Current Report on Form 8-K/A, Amendment No. 1 to the Current
Report, 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.
Ernst & Young LLP, independent auditors, have audited the financial
statements of Irvine Optical Company, LLC as of December 31, 1999 and 1998, and
for the years then ended, as set forth in their report (which contains an
explanatory paragraph describing conditions that raise substantial doubt about
Irvine Optical Company, LLC's ability to continue as a going concern as
described in Note 1 to those financial statements). We have incorporated by
reference Ernst & Young LLP's report with respect to Irvine Optical Company,
LLC's financial statements in this prospectus and elsewhere in the registration
statement in reliance on Ernst & Young LLP's report, given on their authority as
experts in accounting and auditing.
Arthur Andersen LLP, as independent public accountants, has audited
the consolidated financial statements of Progressive Technologies, Inc. as of
December 31, 2000 and 1999 and for the three years then ended (not presented
separately herein), as indicated in their report with respect thereto. We have
incorporated by reference Arthur Andersen LLP's report with respect to
Progressive Technologies, Inc.'s consolidated financial statements in this
prospectus and elsewhere in the registration statement in reliance upon the
authority of Arthur Andersen LLP as experts in accounting and auditing in giving
said report.
50
51
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and current reports, proxy statements and other
information with the SEC. You may read and copy these reports, proxy statements
and other information filed by us at the SEC's public reference rooms at 450
Fifth Street, NW., Washington, D.C. 20549. 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 with respect to the notes and the common stock issuable upon the
conversion of the notes 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,
the notes 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 it, 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 Exchange Act until the
selling securityholders sell all of their Brooks common stock:
- Annual Report on Form 10-K for the fiscal year ended September 30,
2000;
- Quarterly Reports on Form 10-Q for the fiscal quarters ended December
31, 2000, March 31, 2001 and June 30, 2001;
- Our definitive proxy materials on Schedule 14A as filed with the SEC
on January 24, 2001;
- 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; and
- Current Reports on Form 8-K and 8-K/A filed with the SEC on December
14, 1999, February 14, 2000, March 1, 2001, May 15, 2001, May 24,
2001, May 29, 2001, July 9, 2001, July 24, 2001 and August 21, 2001.
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.
51