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Exhibit - 10.2
FORM OF INDEMNIFICATION AGREEMENT
This Agreement, made this _____ day of __________, _____, by and
between Axcelis Technologies, Inc., a Delaware corporation (the "Company"), and
____________________, ____________________ ("Indemnitee");
WHEREAS, the Company and Indemnitee are each aware of the
exposure to litigation of officers, directors and representatives of the Company
as such persons exercise their duties to the Company;
WHEREAS, the Company and Indemnitee are also aware of
conditions in the insurance industry that have affected and may affect in the
future the Company's ability to obtain appropriate directors' and officers'
liability insurance on an economically acceptable basis;
WHEREAS, the Company desires to continue to benefit from the
services of highly qualified, experienced and otherwise competent persons such
as Indemnitee; and
WHEREAS, Indemnitee desires to serve or to continue to serve
the Company as an officer and/or director of the Company, or, if requested to do
so by the Company, as a director, officer, trustee, employee, representative or
agent of another corporation, partnership, joint venture, trust or other
enterprise, for so long as the Company continues to provide on an acceptable
basis adequate and reliable indemnification against certain liabilities and
expenses which may be incurred by Indemnitee;
NOW, THEREFORE, in consideration of the foregoing premises and
the mutual covenants herein contained, the parties hereto agree as follows:
1. INDEMNIFICATION
(a) The Company shall indemnify Indemnitee to the
fullest extent permitted by law with respect to Indemnitee's activities as an
officer and/or director of the Company and/or as a person who is or was serving
or has agreed to serve at the request of the Company as a director, officer,
trustee, employee or agent of another corporation, partnership, joint venture,
trust or other enterprise, domestic or foreign, against expenses (including
attorneys' fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by such person or on such person's behalf ("Expenses") in
connection with any claim against Indemnitee, whether or not such claim is
brought by any party who may be an "insured person" under the Company's
directors' and officers' liability insurance, which is the subject of any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative,
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investigative or otherwise and whether formal or informal (a "Proceeding"), to
which Indemnitee was, is, or is threatened to be made a party by reason of
anything done or not done by Indemnitee in any such capacity.
(b) The rights of Indemnitee hereunder shall be in
addition to any rights Indemnitee may now or hereafter have to indemnification
by the Company or otherwise. More specifically, the parties hereto intend that
Indemnitee shall be entitled to receive, as determined by Indemnitee, payment to
the maximum extent permitted by one or any combination of the following:
(i) the payments provided by the Company's
By-laws, as amended and restated, and as in effect on the date hereof, a copy of
the relevant portions of which are attached hereto as Exhibit I;
(ii) the payments provided by the Restated
Certificate of Incorporation or By-laws or their equivalent of the Company in
effect at the time Expenses are incurred by Indemnitee;
(iii) the payments allowable under Delaware law in
effect at the date hereof;
(iv) the payments allowable under the law of the
jurisdiction under which the Company is incorporated at the time Expenses are
incurred by Indemnitee;
(v) the payments available under liability
insurance obtained by the Company; and
(vi) such other payments as are or may be
otherwise available to Indemnitee.
Combination of two or more of the payments
provided by (i) through (vi) shall be available to the extent that the
Applicable Document, as hereafter defined, does not require that the payments
provided therein be exclusive of other payments. The document or law providing
for any of the payments listed in items (i) through (vi) above is referred to in
this Agreement as the "Applicable Document." The Company hereby undertakes to
use its best efforts to assist Indemnitee, in all proper and legal ways, to
obtain the payments selected by Indemnitee under items (i) through (vi) above.
(c) For purposes of this Agreement, references to
"other enterprises" shall include employee benefit plans for employees of the
Company or of any of its subsidiaries without regard to ownership of such plans;
references to "fines" shall include any excise taxes assessed on Indemnitee with
respect to any employee benefit plan; references to "serving at the request of
the Company" shall include any service as a director, officer, trustee,
employee, representative or agent of the Company
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which imposes duties on, or involves services by, Indemnitee with respect to an
employee benefit plan, its participants or beneficiaries; references to the
masculine shall include the feminine; references to the singular shall include
the plural and vice versa; and if Indemnitee acted in good faith and in a manner
Indemnitee reasonably believed to be in the interest of the participants and
beneficiaries of an employee benefit plan, Indemnitee shall be deemed to have
acted in a manner consistent with the standards required for indemnification by
the Company under the Applicable Documents.
2. INSURANCE
The Company shall maintain directors' and officers'
liability insurance which is at least as favorable to Indemnitee as the policy
in effect on the date hereof and for so long as Indemnitee's services are
covered hereunder, provided and to the extent that such insurance is available
on a reasonable commercial basis. However, Indemnitee shall continue to be
entitled to the indemnification rights provided hereunder regardless of whether
liability or other insurance coverage is at any time obtained or retained by the
Company. Any payments in fact made to Indemnitee under an insurance policy
obtained or retained by the Company shall reduce the obligation of the Company
to make payments hereunder by the amount of the payments made under any such
insurance policy. In the event that insurance becomes unavailable in the amount
or scope of coverage of the policy in effect on the date hereof on a reasonable
commercial basis and the Company foregoes maintenance of all or a portion of
such insurance coverage, the Company shall stand as a self-insurer with respect
to the coverage, or portion thereof, not retained, and shall indemnify
Indemnitee against any loss arising out of the reduction or cancellation of such
insurance coverage.
3. PAYMENT OF EXPENSES
At Indemnitee's request, the Company shall pay the
Expenses as and when incurred by Indemnitee, after receipt of written notice
pursuant to Paragraph 6 hereof and an undertaking in the form of Exhibit II
attached hereto by or on behalf of Indemnitee (i) to repay such amounts so paid
on Indemnitee's behalf if it shall ultimately be determined under the Applicable
Document that Indemnitee is required to repay such Expenses and (ii) to
reasonably cooperate with the Company concerning the Proceeding. That portion of
Expenses which represents attorneys' fees and other costs incurred in defending
any Proceeding shall be paid by the Company within 30 days of its receipt of
such notice, together with reasonable documentation evidencing the amount and
nature of such Expenses.
4. ESCROW RESERVE
The Company shall dedicate up to an aggregate of
$10,000,000 as collateral security for the initial funding of its obligations
hereunder and under similar agreements with other directors, officers and
representatives by depositing assets or bank letters of credit in escrow or
reserving lines of credit that may be drawn down by an escrow agent in the
dedicated amount (the "Escrow Reserve"); provided, however,
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that the terms of any such Escrow Reserve may provide that the cash, securities
or letters or lines of credit available therefor shall only be utilized for the
indemnification or advancement of expenses provided for herein in the event that
there shall have occurred within the preceding five years a Change in Control of
the Company, as defined below. The Company shall promptly provide Indemnitee
with a true and complete copy of the agreement relating to the establishment and
operation of the Escrow Reserve, together with such additional documentation or
information with respect to the escrow as Indemnitee may from time to time
reasonably request. The Company shall promptly deliver an executed copy of this
Agreement to the Escrow Reserve agent to evidence to the agent that Indemnitee
is a beneficiary of the Escrow Reserve and shall deliver to Indemnitee the
escrow agent's signed receipt evidencing that delivery. For purposes of this
Agreement, a "Change in Control" of the Company shall have occurred if at any
time any of the following events shall occur: (i) a tender offer shall be made
and consummated for the ownership of securities of the Company representing 25%
or more of the combined voting power of Company's then outstanding voting
securities; (ii) the Company shall be merged or consolidated with another
corporation and as a result of such merger or consolidation less than 75% of the
outstanding voting securities of the surviving or resulting corporation shall be
owned in the aggregate by the former shareholders of the Company, other than
affiliates (within the meaning of the Securities Exchange Act of 1934, as
amended (the "Exchange Act")) of any party to such merger or consolidation, as
the same shall have existed immediately prior to such merger of consolidation;
(iii) the Company shall sell substantially all of its assets to another
corporation which is not a wholly-owned subsidiary of the Company; (iv) any
person (as such term is used in Sections 3(a)(9) and 13(d)(3) of the Exchange
Act) is or becomes the beneficial owner, directly or indirectly, of securities
of the Company representing 25% or more of the combined voting power of the
Company's then outstanding securities; or (v) during any period of two
consecutive years, individuals who at the beginning of such period constitute
the Board of Directors of the Company cease for any reason to constitute at
least a majority thereof unless the election, or the nomination for election by
the Company's shareholders, of each new director was approved by a vote of at
least two-thirds of the directors then still in office who were directors at the
beginning of the period. For purposes of this Agreement, ownership of voting
securities shall take into account and include ownership as determined by
applying the provisions of Rule 13d-3(d)(1)(i) of the Exchange Act (as then in
effect).
5. ADDITIONAL RIGHTS
The indemnification provided in this Agreement shall
not be exclusive of any other indemnification or right to which Indemnitee may
be entitled and shall continue after Indemnitee has ceased to occupy a position
as an officer, director or representative as described in Paragraph 1 above with
respect to Proceedings relating to or arising out of Indemnitee's acts or
omissions during Indemnitee's service in such position.
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6. NOTICE TO COMPANY
Indemnitee shall provide to the Company prompt written
notice of any Proceeding brought, threatened, asserted or commenced against
Indemnitee with respect to which Indemnitee may assert a right to
indemnification hereunder; provided that failure to provide such notice shall
not in any way limit Indemnitee's rights under this Agreement.
7. COOPERATION IN DEFENSE AND SETTLEMENT
Indemnitee shall not make any admission or effect any
settlement with respect to a Proceeding without the Company's written consent
unless Indemnitee shall have determined to undertake Indemnitee's own defense in
such matter and has waived the benefits of this Agreement in writing delivered
to the Company. The Company shall not settle any proceeding to which Indemnitee
is a party in any manner which would impose an Expense on Indemnitee without
Indemnitee's written consent. Neither Indemnitee nor the Company will
unreasonably withhold consent to any proposed settlement. Indemnitee and the
Company shall cooperate to the extent reasonably possible with each other and
with the Company's insurers, in attempts to defend or settle such Proceeding.
8. ASSUMPTION OF DEFENSE
Except as otherwise provided below, to the extent that
it may wish, the Company jointly with any other indemnifying party similarly
notified will be entitled to assume Indemnitee's defense in any Proceeding, with
counsel mutually satisfactory to Indemnitee and the Company. After notice from
the Company to Indemnitee of the Company's election so to assume such defense,
the Company will not be liable to Indemnitee under this Agreement for Expenses
subsequently incurred by Indemnitee in connection with the defense thereof other
than reasonable costs of investigation or as otherwise provided below.
Indemnitee shall have the right to employ counsel in such Proceeding, but the
fees and expenses of such counsel incurred after notice from the Company of its
assumption of the defense thereof shall be at Indemnitee's expense unless:
(a) the employment of counsel by Indemnitee has been
authorized by the Company;
(b) counsel employed by the Company initially is
unacceptable or later becomes unacceptable to Indemnitee and such
unacceptability is reasonable under then existing circumstances;
(c) Indemnitee shall have reasonably concluded that
there may be a conflict of interest between Indemnitee and the Company in the
conduct of the defense of such Proceeding; or
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(d) the Company shall not have employed counsel
promptly to assume the defense of such Proceeding.
In each of the cases set forth in items (a) through (d)
above, the fees and expenses of counsel shall be at the expense of the Company
and subject to payment pursuant to this Agreement. The Company shall not be
entitled to assume the defense of Indemnitee in any Proceeding brought by or on
behalf of the Company or as to which Indemnitee shall have reached either of the
conclusions provided for in clauses (b) or (c) above.
9. ENFORCEMENT
In the event that any dispute or controversy shall arise
under this Agreement between Indemnitee and the Company with respect to whether
Indemnitee is entitled to indemnification in connection with any Proceeding or
with respect to the amount of Expenses incurred, then with respect to each such
dispute or controversy Indemnitee may seek to enforce this Agreement through
legal action or, at Indemnitee's sole option and request, through arbitration.
If arbitration is requested, such dispute or controversy shall be submitted by
the parties to binding arbitration in the City of Boston, Commonwealth of
Massachusetts, before a single arbitrator agreeable to both parties. If the
parties cannot agree on a designated arbitrator within 15 days after arbitration
is requested in writing by either of them, the arbitration shall proceed in the
City of Boston, Commonwealth of Massachusetts, before an arbitrator appointed by
the American Arbitration Association. In either case, the arbitration proceeding
shall commence promptly under the rules then in effect of that Association and
the arbitrator agreed to by the parties or appointed by that Association shall
be an attorney other than an attorney who has, or is associated with a firm
having associated with it an attorney which has, been retained by or performed
services for the Company or Indemnitee at any time during the five years
preceding the commencement of arbitration. The award shall be rendered in such
form that judgment may be entered thereon in any court having jurisdiction
thereof. The prevailing party shall be entitled to prompt reimbursement of any
costs and expenses (including, without limitation, reasonable attorney's fees)
incurred in connection with such legal action or arbitration provided that
Indemnitee shall not be obligated to reimburse the Company unless the arbitrator
or court which resolves the dispute determines that Indemnitee acted in bad
faith in bringing such action or arbitration.
10. EXCLUSIONS
Notwithstanding the scope of indemnification which may
be available to Indemnitees from time to time under an Applicable Document, no
indemnification, reimbursement or payment shall be required of the Company
hereunder with respect to:
(a) any claim or any part thereof as to which
Indemnitee shall have been adjudged by a court of competent jurisdiction from
which no appeal is or can be taken, by clear and convincing evidence, to have
acted or failed to act with deliberate
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intent to cause injury to the Company or with reckless disregard for the best
interests of the Company;
(b) any claim or any part thereof arising under
Section 16(b) of the Exchange Act pursuant to which Indemnitee shall be
obligated to pay any penalty, fine, settlement or judgment;
(c) any obligation of Indemnitee based upon or
attributable to Indemnitee gaining in fact any personal gain, profit or
advantage to which Indemnitee was not entitled; or
(d) any Proceeding initiated by Indemnitee without
the consent or authorization of the Board of Directors of the Company, provided
that this exclusion shall not apply with respect to any claims brought by
Indemnitee (i) to enforce Indemnitee's rights under this Agreement or (ii) in
any Proceeding initiated by another person or entity whether or not such claims
were brought by Indemnitee against a person or entity who was otherwise a party
to such Proceeding.
Nothing in this Paragraph 10 shall eliminate or diminish
the Company's obligations to advance that portion of Indemnitee's Expenses which
represent attorneys' fees and other costs incurred in defending any proceeding
pursuant to Paragraph 3 of this Agreement.
11. EXTRAORDINARY TRANSACTIONS
The Company covenants and agrees that, in the event of
any merger, consolidation or reorganization in which the Company is not the
surviving entity, any sale of all or substantially all of the assets of the
Company or any liquidation of the Company (each such event is hereinafter
referred to as an "extraordinary transaction"), the Company shall:
(a) have the obligations of the Company under this
Agreement expressly assumed by the survivor, purchaser or successor, as the case
may be, in such extraordinary transaction; or
(b) otherwise adequately provide for the satisfaction
of the Company's obligations under this Agreement, in a manner acceptable to
Indemnitee.
12. NO PERSONAL LIABILITY
Indemnitee agrees that neither the directors nor any
officer, employee, representative or agent of the Company shall be personally
liable for the satisfaction of the Company's obligations under this Agreement,
and Indemnitee shall look solely to the assets of the Company and the Escrow
Reserve referred to in Paragraph 4 hereof for satisfaction of any claims
hereunder.
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13. PERIOD OF LIMITATIONS
No legal action shall be brought and no cause of action
shall be asserted by or on behalf of the Company or any affiliate of the Company
against Indemnitee, Indemnitee's spouse, heirs, executors or personal or legal
representatives after the expiration of two years from the date of accrual of
such cause of action, and any claim or cause of action of the Company or its
affiliate shall be extinguished and deemed released unless asserted by the
timely filing of legal action within such two-year period; provided, however,
that if any shorter period of limitations is otherwise applicable to any such
cause of action such shorter period shall govern.
14. SEVERABILITY
If any provision, phrase, or other portion of this
Agreement should be determined by any court of competent jurisdiction to be
invalid, illegal or unenforceable, in whole or in part, and such determination
should become final, such provision, phrase or other portion shall be deemed to
be severed or limited, but only to the extent required to render the remaining
provisions and portions of this Agreement enforceable, and this Agreement as
thus amended shall be enforced to give effect to the intention of the parties
insofar as that is possible.
15. SUBROGATION
In the event of any payment under this Agreement, the
Company shall be subrogated to the extent thereof to all rights to
indemnification or reimbursement against any insurer or other entity or person
vested in Indemnitee, who shall execute all instruments and take all other
action as shall be reasonably necessary for the Company to enforce such rights.
16. GOVERNING LAW
The parties hereto agree that this Agreement shall be
construed and enforced in accordance with and governed by the laws of the State
of Delaware.
17. NOTICES
All notices, requests, demands and other communications
hereunder shall be in writing and shall be considered to have been duly given if
delivered by hand and receipted for by the party to whom the notice, request,
demand or other communication shall have been directed, or mailed by certified
mail, return receipt requested, with postage prepaid:
(a) If to the Company, to:
Axcelis Technologies, Inc.
00 Xxxxxx Xxxx Xxxxx
Xxxxxxx, Xxxxxxxxxxxxx 00000
Attention: Secretary
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(b) If to Indemnitee, to:
[Name of Indemnitee]
Axcelis Technologies, Inc.
00 Xxxxxx Xxxx Xxxxx
Xxxxxxx, Xxxxxxxxxxxxx 00000
Or to such other or further address as shall be designated from time to time by
Indemnitee or the Company to the other.
18. TERMINATION
This Agreement may be terminated by either party upon
not less than 60 days' prior written notice delivered to the other party, but
such termination shall not in any way diminish the obligations of the Company
hereunder (including the obligation to maintain the Escrow Reserve referred to
in Paragraph 4 hereof) with respect to Indemnitee's activities prior to the
effective date of the termination.
19. AMENDMENTS
This Agreement and the rights and duties of Indemnitee
and the Company hereunder may not be amended, modified or terminated except by
written instrument signed and delivered by the parties hereto.
20. BINDING EFFECT
This Agreement is and shall be binding upon and shall
inure to the benefit of the parties thereto and their respective heirs,
executors, administrators, successors and assigns.
IN WITNESS WHEREOF, the undersigned have executed this
Agreement as of the date first above written.
AXCELIS TECHNOLOGIES, INC.
By: __________________________
Title:
INDEMNITEE
By: __________________________
Title:
[Exhibits omitted. The registrant hereby agrees to furnish supplementally,
upon request, a copy of any omitted exhibits to this agreement.]
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