1
EXHIBIT 2.1
MASTER SEPARATION AND DISTRIBUTION AGREEMENT
BETWEEN
XXXXX CORPORATION
AND
AXCELIS TECHNOLOGIES, INC.
DATED
JUNE 30, 2000
2
TABLE OF CONTENTS
Page
----
ARTICLE I SEPARATION.............................................................................................2
Section 1.1 Separation Date.............................................................................2
Section 1.2 Closing of Transactions.....................................................................2
ARTICLE II DOCUMENTS AND ITEMS TO BE DELIVERED AT THE SEPARATION CLOSING.........................................2
Section 2.1 Documents to Be Delivered by Eaton..........................................................2
Section 2.2 Documents to Be Delivered by Axcelis Technologies...........................................3
Section 2.3 Cash to be Transferred......................................................................3
ARTICLE III THE IPO AND ACTIONS PENDING THE IPO..................................................................3
Section 3.1 Transactions Related to the IPO.............................................................3
Section 3.2 Cooperation.................................................................................4
Section 3.3 Conditions Precedent to Consummation of the IPO.............................................4
Section 3.4 Dividend Payment............................................................................5
ARTICLE IV THE DISTRIBUTION......................................................................................6
Section 4.1 The Distribution............................................................................6
Section 4.2 Conditions Precedent to Distribution........................................................6
Section 4.3 Further Assurances Regarding the Distribution...............................................7
ARTICLE V COVENANTS AND OTHER MATTERS............................................................................7
Section 5.1 Other Agreements............................................................................7
Section 5.2 Further Instruments.........................................................................7
Section 5.3 Agreement for Exchange of Information.......................................................8
Section 5.4 Auditors and Audits; Annual and Quarterly Statements and Accounting.........................9
Section 5.5 Consistency with Past Practices............................................................11
Section 5.6 Payment of Expenses........................................................................11
Section 5.7 Foreign Subsidiaries.......................................................................12
Section 5.8 Dispute Resolution.........................................................................12
Section 5.9 Governmental Approvals; Compliance with Law................................................13
Section 5.10 No Representation or Warranty.............................................................13
Section 5.11 Non-Solicitation of Employees.............................................................13
Section 5.12 Cooperation in Obtaining New Agreements...................................................14
Section 5.13 Property Damage to Axcelis Technologies Assets Prior to the Separation Date...............14
-i-
3
ARTICLE VI MISCELLANEOUS........................................................................................14
Section 6.1 Limitation of Liability....................................................................14
Section 6.2 Governing Law..............................................................................15
Section 6.3 Termination................................................................................15
Section 6.4 Notices....................................................................................15
Section 6.5 Counterparts...............................................................................16
Section 6.6 Binding Effect; Assignment.................................................................16
Section 6.7 Severability...............................................................................16
Section 6.8 Failure or Indulgence Not Waiver; Remedies Cumulative......................................16
Section 6.9 Entire Agreement; Amendment................................................................16
Section 6.10 Authority.................................................................................16
Section 6.11 Interpretation............................................................................17
Section 6.12 Conflicting Agreements....................................................................17
Section 6.13 Public Announcements......................................................................17
Section 6.14 Subsequent Legal Fees.....................................................................17
Section 6.15 No Third-Party Beneficiaries or Right to Rely.............................................17
ARTICLE VII DEFINITIONS.........................................................................................18
Section 7.1 Affiliated Company.........................................................................18
Section 7.2 Assets.....................................................................................18
Section 7.3 Axcelis Technologies Assets................................................................18
Section 7.4 Axcelis Technologies Group.................................................................18
Section 7.5 Xxxxx Group................................................................................18
Section 7.6 Governmental Approvals.....................................................................18
Section 7.7 Governmental Authority.....................................................................18
Section 7.8 Information................................................................................18
Section 7.9 IPO Closing................................................................................19
Section 7.10 IPO Closing Date..........................................................................19
Section 7.11 Liabilities...............................................................................19
Section 7.12 Person....................................................................................19
Section 7.13 Subsidiary................................................................................19
-ii-
4
MASTER SEPARATION AND DISTRIBUTION AGREEMENT
This Master Separation and Distribution Agreement ("Agreement") is made
and entered into on June 30, 2000, by and between Xxxxx Corporation ("Eaton"),
an Ohio corporation, and Axcelis Technologies, Inc. (formerly known as Xxxxx
Semiconductor Equipment Inc.) ("Axcelis Technologies"), a Delaware corporation.
Capitalized terms used herein and not otherwise defined shall have the meanings
ascribed to such terms in Article VII hereof.
RECITALS
WHEREAS, Eaton currently owns all of the issued and outstanding common
stock of Axcelis Technologies;
WHEREAS, the business of Axcelis Technologies consists of the business
and operations conducted by Eaton and its Subsidiaries as Xxxxx'x Semiconductor
Equipment Operations (the "Axcelis Technologies Business") as described in the
IPO Registration Statement (as defined below);
WHEREAS, the Board of Directors of Eaton has determined that it would
be appropriate and desirable to separate the Axcelis Technologies Business from
Eaton and to reorganize it into an independent publicly held company;
WHEREAS, the Boards of Directors of Eaton and Axcelis Technologies have
each determined that it would be appropriate and desirable for Eaton to
contribute and transfer to Axcelis Technologies, and for Axcelis Technologies to
receive and assume, directly or indirectly, the Assets and Liabilities
(including contingent liabilities) of Eaton and its Subsidiaries associated with
the Axcelis Technologies Business to the extent not contributed and transferred
to Axcelis Technologies prior to May 4, 2000 (the "Separation");
WHEREAS, as part of the transactions contemplated by the Separation,
prior to the date hereof Eaton has caused the transfer to Axcelis of all of the
issued and outstanding capital stock of Fusion Systems Corporation and High
Temperature Engineering Corporation, all of Xxxxx'x ownership interest in
Sumitomo Eaton Nova Corporation and the intellectual property assets of the
Axcelis Technologies Business.
WHEREAS, Eaton and Axcelis Technologies currently contemplate that,
following the Separation, Axcelis Technologies will make an initial public
offering ("IPO") of an amount of its common stock pursuant to a registration
statement on Form S-1 under the Securities Act of 1933, as amended (the "IPO
Registration Statement"), that will reduce Xxxxx'x ownership interest in Axcelis
Technologies to not less than 80.1% of the outstanding common stock of Axcelis
Technologies;
WHEREAS, Eaton currently plans to consummate the divestiture of Axcelis
Technologies approximately six months following such IPO by means of a
distribution of all of the common stock of Axcelis Technologies owned by Eaton
to holders of Eaton common stock on a tax-free basis in a split-off, a spin-off
or some combination of both transactions (the "Distribution");
5
WHEREAS, Eaton and Axcelis Technologies intend that the Separation will
qualify as a tax-free reorganization under Section 368(a)(1)(D) of the Internal
Revenue Code of 1986, as amended (the "Code"), that the Distribution will
qualify as a tax-free distribution under Section 355 of the Code and that this
Agreement shall be, and is hereby adopted as, a plan of reorganization under
Section 368 of the Code; and
WHEREAS, the parties intend in this Agreement, including the Exhibits
hereto, to set forth the principal arrangements between them regarding the
Separation and to set forth certain other matters regarding the IPO and the
Distribution.
NOW, THEREFORE, in consideration of the foregoing and the covenants and
agreements set forth below, Eaton and Axcelis Technologies, intending to be
legally bound, hereby agree as follows:
ARTICLE I
SEPARATION
Section 1.1 Separation Date. Unless otherwise provided in this
Agreement or in any agreement to be executed in connection with this Agreement,
the effective time and date of the Separation shall be the earlier of (i) 12:01
a.m. on the IPO Closing Date or (ii) 12:59 p.m. on June 30, 2000 or such
subsequent date as may be designated at any time prior to the earlier of such
dates by the Chairman or President of Eaton (the "Separation Date").
Section 1.2 Closing of Transactions. Except as otherwise provided
herein, the closing of the transactions contemplated in Article II (the
"Separation Closing") shall occur on the Separation Date (beginning at 10:00
a.m. Cleveland time), at the offices of Eaton at Eaton Center, 0000 Xxxxxxxx
Xxxxxx, Xxxxxxxxx, Xxxx 00000, or at such other place as Eaton may in its sole
discretion determine, by the delivery of the executed instruments of transfer,
assumptions of liability, undertakings, agreements, instruments or other
documents to be executed pursuant to Article II of this Agreement.
ARTICLE II
DOCUMENTS AND ITEMS TO BE DELIVERED AT THE SEPARATION CLOSING
Section 2.1 Documents to Be Delivered by Eaton. On or before the
Separation Date or such other date or dates as determined by Eaton in connection
with the Non-US Plan (as defined in Section 5.7), Eaton will deliver, or will
cause its appropriate Subsidiaries to deliver, to Axcelis Technologies all of
the following items and agreements (collectively, together with all exhibits,
schedules, agreements and documents contemplated by this Agreement and such
agreements, the "Ancillary Agreements"):
(a) A duly executed General Assignment and Assumption
Agreement (the "Assignment Agreement") substantially in the form attached hereto
as Exhibit A;
(b) A duly executed Trademark License Agreement substantially
in the form attached hereto as Exhibit B;
2
6
(c) A duly executed Employee Matters Agreement substantially
in the form attached hereto as Exhibit C;
(d) A duly executed Tax Sharing and Indemnification Agreement
substantially in the form attached hereto as Exhibit D;
(e) A duly executed Transitional Services Agreement
substantially in the form attached hereto as Exhibit E;
(f) A duly executed Real Estate Matters Agreement
substantially in the form attached hereto as Exhibit F;
(g) A duly executed Indemnification and Insurance Matters
Agreement substantially in the form attached hereto as Exhibit G;
(h) Such other agreements, documents or instruments as Eaton
may determine are necessary or desirable in order to achieve the purposes
hereof.
Section 2.2 Documents to Be Delivered by Axcelis Technologies. On or
before the Separation Date, Axcelis Technologies will deliver to Eaton a duly
executed counterpart of any agreement or instrument referred to in Section 2.1
in each case where Axcelis Technologies is to be a party to such agreement or
instrument.
Section 2.3 Cash to be Transferred. Since December 31, 1999, portions
of the cash receipts and disbursements of Axcelis Technologies and certain of
its Subsidiaries have been processed through Xxxxx'x centralized cash management
system and recorded as a receivable from or payable to Eaton. In connection with
the Separation Closing, the "Receivables from Xxxxx Corporation" included on the
Axcelis Technologies combined balance sheet on the Separation Date, less any
portion thereof not directly owned by the Axcelis Technologies Group, will be
settled in cash by payment to the Axcelis Technologies Group. The portion not
directly owned by the Axcelis Technologies Group will be retained by Eaton and
will not be made available to the Axcelis Technologies Group. Also in connection
with the Separation Closing, the cash and short-term investments on the Axcelis
Technologies combined balance sheet on the Separation Date will be paid,
transferred or made available to Axcelis Technologies, less any portion thereof
not directly owned by the Axcelis Technologies Group. The amounts to be settled,
paid, transferred or made available to the Axcelis Technologies Group pursuant
to this Section 2.3 shall be calculated by Eaton in its sole discretion, and its
determination shall be final and binding. The provisions of this Section 2.3
shall supersede any provisions of this Agreement or any Ancillary Agreement to
the contrary.
ARTICLE III
THE IPO AND ACTIONS PENDING THE IPO
Section 3.1 Transactions Related to the IPO. Subject to the conditions
specified in Section 3.3, Eaton and Axcelis Technologies shall use their
reasonable commercial efforts to consummate the IPO. Such efforts shall include,
without limitation, those specified in this Section 3.1.
3
7
(a) Registration Statement. Axcelis Technologies filed on May
4, 2000 and shall file with the Securities and Exchange Commission (the "SEC")
the IPO Registration Statement and such amendments or supplements thereto as may
be necessary in order to cause the same to become and remain effective as
required by law, including, but not limited to, filing such amendments to the
IPO Registration Statement as may be required by the underwriting agreement to
be entered into between the managing underwriters for the IPO (the
"Underwriters") and Axcelis Technologies, (the "Underwriting Agreement") or by
the SEC or other applicable federal, state or foreign securities laws. Eaton and
Axcelis Technologies shall also cooperate in preparing, filing with the SEC and
causing to become effective a registration statement registering the common
stock of Axcelis Technologies under the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), and any registration statements or amendments
thereof which are required to reflect the establishment of, or amendments to,
any employee benefit and other plans necessary or appropriate in connection with
the Separation, the IPO, the Distribution and the other transactions
contemplated by this Agreement.
(b) Underwriting Agreement. Axcelis Technologies shall enter
into the Underwriting Agreement (including indemnification by Eaton as described
in the IPO Registration Statement), in form and substance reasonably
satisfactory to the committee established by the Board of Directors of Axcelis
Technologies with respect to the IPO, consisting of the three persons
constituting the directors of Axcelis Technologies on May 3, 2000 (the "Offering
Committee"), and shall comply with its obligations thereunder.
(c) Nasdaq Listing. Axcelis Technologies shall prepare, file
and use reasonable commercial efforts to make effective an application for
listing of the common stock of Axcelis Technologies issued in the IPO on the
Nasdaq National Market ("Nasdaq"), subject to official approval for quotation.
(d) Resignations. Eaton will obtain, or cause its appropriate
Subsidiaries to obtain, resignations of each person who is an officer of Eaton
or its Subsidiaries immediately prior to the IPO Closing and who will be an
employee of Axcelis Technologies from and after the IPO Closing Date.
Section 3.2 Cooperation. Axcelis Technologies shall consult, and
cooperate in all respects, with Eaton in connection with the pricing of the
common stock of Axcelis Technologies to be offered in the IPO. Axcelis
Technologies shall, at Xxxxx'x direction, promptly take any and all actions
necessary or desirable to consummate the IPO as contemplated by the IPO
Registration Statement and the Underwriting Agreement.
Section 3.3 Conditions Precedent to Consummation of the IPO. The
obligations of the parties to use their reasonable commercial efforts to
consummate the IPO shall be conditioned on the satisfaction of the following
conditions:
(a) Registration Statement. The IPO Registration Statement
shall have been filed and declared effective by the SEC, and there shall be no
stop-order in effect with respect thereto.
4
8
(b) Blue Sky and NASD. The actions and filings with regard to
state securities and blue sky laws of the United States (and any comparable laws
under any foreign jurisdictions) shall have been taken and, where applicable,
become effective or been accepted. Where the amount of compensation to be
allowed or paid to the underwriters and any other arrangement among Axcelis
Technologies, the underwriters and other broker dealers participating in the IPO
are reviewed by the National Association of Securities Dealers, Inc. ("NASD"),
no statement shall have been issued by the NASD prior to effectiveness
expressing objections to the compensation and other arrangements which has not
been resolved as of the IPO Closing Date.
(c) Nasdaq Listing. The common stock of Axcelis Technologies
to be issued in the IPO shall have been accepted for listing on the Nasdaq, on
official approval for quotation.
(d) Underwriting Agreement. Axcelis Technologies shall have
entered into the Underwriting Agreement (including indemnification by Eaton as
described in the IPO Registration Statement), and all conditions to the
obligations of Axcelis Technologies and the Underwriters shall have been
satisfied or waived.
(e) Common Stock Ownership. Eaton shall be satisfied in its
sole discretion that it will own at least 80.1% of the outstanding common stock
of Axcelis Technologies following the IPO. All other conditions to permit the
Separation, the IPO and the Distribution to qualify as a tax-free distribution
to Eaton, Axcelis Technologies and Xxxxx'x stockholders shall, to the extent
applicable as of the time of the IPO, be satisfied. There shall be no event or
condition that is likely to cause any of such conditions not to be satisfied as
of the time of the IPO or thereafter.
(f) No Legal Restraints. No order, injunction or decree issued
by any court or agency of competent jurisdiction or other legal restraint or
prohibition preventing the consummation of the Separation or the IPO or any of
the other transactions contemplated by this Agreement shall be in effect.
(g) Separation. The Separation shall have become effective in
accordance with Articles I and II hereof.
(h) Other Actions. Such other actions as the parties hereto
may, based upon the advice of counsel, reasonably request to be taken prior to
the IPO to assure the successful completion of the IPO shall have been taken.
(i) No Termination. This Agreement shall not have been
terminated.
Section 3.4 Dividend Payment. Axcelis Technologies presently expects to
pay the $300 million dividend payable to Eaton, which dividend payment Eaton
intends to use directly to satisfy obligations to its lenders.
5
9
ARTICLE IV
THE DISTRIBUTION
Section 4.1 The Distribution. Subject to the provisions of Section 4.2,
Eaton currently intends to consummate the Distribution within approximately six
months of the IPO Closing Date. Eaton shall, in its sole and absolute
discretion, determine the date of the consummation of the Distribution and all
terms of the Distribution, including, without limitation, the form, structure,
timing and terms of any transaction(s) and/or offering(s) to effect the
Distribution and the timing of and conditions to the consummation of the
Distribution. In addition, Eaton may at any time and from time to time until the
consummation of the Distribution modify or change the terms of the Distribution,
including without limitation by accelerating or delaying the timing of the
consummation of all or part of the Distribution. Axcelis Technologies shall
cooperate with Eaton in all respects to accomplish the Distribution and shall,
at Xxxxx'x direction, promptly take any and all actions necessary or desirable
to effect the Distribution, including without limitation the registration under
the Securities Act of the common stock of Axcelis Technologies on an appropriate
registration form or forms to be designated by Eaton and any listing thereof
with Nasdaq and/or the filing of information statements or other documents with
the SEC. Eaton shall select any investment banker(s) and manager(s) in
connection with the Distribution, as well as any financial printer, solicitation
and/or exchange agent and outside counsel for Eaton; provided, however, that
nothing herein shall prohibit Axcelis Technologies from engaging (at its own
expense) its own financial, legal, accounting and other advisors in connection
with the Distribution. Axcelis Technologies shall not issue or sell any shares
of its common stock on or prior to the Distribution Date without the prior
written consent of Eaton, although Axcelis Technologies may at any time on or
after the IPO Closing Date grant options pursuant to the Axcelis Technologies
2000 Stock Option Agreement.
Section 4.2 Conditions Precedent to Distribution. Axcelis Technologies
acknowledges and agrees that, notwithstanding anything to the contrary contained
in this Agreement or any Ancillary Agreement, Eaton is not obligated in any
respect to proceed with or consummate the Distribution and that Eaton may, in
its sole discretion, at any time abandon its plan to proceed with or consummate
the Distribution. Without limiting the foregoing, the following are certain
conditions that must take place prior to the consummation of the Distribution:
(a) IRS Ruling. Eaton shall have obtained a private letter
ruling from the Internal Revenue Service in form and substance satisfactory to
Eaton (in its sole discretion), and such ruling shall remain in effect as of the
date of the consummation of the Distribution (the "Distribution Date"), to the
effect that (i) the transfer by Eaton and its Subsidiaries to the Axcelis
Technologies Group of the property, subject to liabilities, held by Eaton of the
Axcelis Technologies Business, and Axcelis Technologies' assumption of the
liabilities held by Eaton and its Subsidiaries related to the Axcelis
Technologies Business, followed by the distribution by Eaton of all of its
Axcelis Technologies common stock to stockholders of Eaton, will qualify as a
reorganization under Sections 368(a)(1)(D) and 355 of the Code; (ii) no gain or
loss will be recognized by Eaton on its transfer of property of the Axcelis
Technologies Business to Axcelis Technologies; (iii) no gain or loss will be
recognized by Axcelis Technologies on its receipt of property of the Axcelis
Technologies Business from Eaton; and (iv) no gain or loss will be
6
10
recognized by (and no amount will otherwise be included in the income of)
stockholders of Eaton upon their receipt of Axcelis Technologies common stock
pursuant to the Distribution;
(b) Government Approvals. Any material Governmental Approvals
necessary to consummate the Distribution shall have been obtained and be in full
force and effect;
(c) No Legal Restraints. No order, injunction or decree issued
by any court or agency of competent jurisdiction or other legal restraint or
prohibition preventing the consummation of the Distribution shall be in effect,
and no other event outside the control of Eaton shall have occurred or failed to
occur that prevents the consummation of the Distribution; and
(d) No Material Adverse Effect. No other events or
developments shall have occurred that, in the judgment of the Board of Directors
of Eaton, would result in the Distribution having a material adverse effect on
Eaton or on the stockholders of Eaton.
Section 4.3 Further Assurances Regarding the Distribution.
In addition to the actions specifically provided for elsewhere
in this Agreement, Axcelis Technologies shall, at Xxxxx'x direction, use all
commercially reasonable efforts to take, or cause to be taken, all actions, and
to do, or cause to be done, all things commercially reasonably necessary, proper
or expeditious under applicable laws, regulations and agreements in order to
consummate and make effective the Distribution as promptly as reasonably
practicable. Without limiting the generality of the foregoing, Axcelis
Technologies shall, at Xxxxx'x direction, cooperate with Eaton, and execute and
deliver, or use all commercially reasonable efforts to cause to have executed
and delivered, all instruments, including instruments of conveyance, assignment
and transfer, and to make all filings with, and to obtain all consents,
approvals or authorizations of, any Government Authority requested by Eaton in
order to consummate and make effective the Distribution.
ARTICLE V
COVENANTS AND OTHER MATTERS
Section 5.1 Other Agreements. Eaton and Axcelis Technologies will
execute or cause to be executed by the appropriate parties and deliver, as
appropriate, such other agreements, instruments and other documents as may be
necessary or desirable in order to effect the purposes of this Agreement and the
Ancillary Agreements.
Section 5.2 Further Instruments. Subject to Xxxxx'x approval in its
reasonable judgment, and without further consideration, Eaton will execute and
deliver, and will cause its applicable Subsidiaries to execute and deliver, to
Axcelis Technologies and its Subsidiaries such other instruments of transfer,
conveyance, assignment, substitution and confirmation and take such action as
Axcelis Technologies may reasonably request in order more effectively to
transfer, convey and assign to Axcelis Technologies and its Subsidiaries and
confirm Axcelis Technologies' and its Subsidiaries' title to all of the assets,
rights and other things of value contemplated to be transferred to Axcelis
Technologies and its Subsidiaries pursuant to this Agreement, the Ancillary
Agreements, and any documents referred to herein and therein, to put
7
11
Axcelis Technologies and its Subsidiaries in actual possession and operating
control thereof and to permit Axcelis Technologies and its Subsidiaries to
exercise all rights with respect thereto (including, without limitation, rights
under contracts and other arrangements as to which the consent of any third
party to the transfer thereof shall not have previously been obtained). At the
request of Eaton and without further consideration, Axcelis Technologies will
execute and deliver, and will cause its applicable Subsidiaries to execute and
deliver, to Eaton and its Subsidiaries all instruments, assumptions, novations,
undertakings, substitutions or other documents and take such other action as
Eaton may reasonably deem necessary or desirable in order to have the Axcelis
Technologies Group fully and unconditionally assume and discharge the
liabilities contemplated to be assumed by the Axcelis Technologies Group under
this Agreement or any document in connection herewith and to relieve the Xxxxx
Group of any liability or obligation with respect thereto and evidence the same
to third parties.
Section 5.3 Agreement for Exchange of Information.
(a) Generally. Each of Eaton and Axcelis Technologies shall
provide, or cause to be provided, to each other, at any time before or after the
Distribution Date, as soon as reasonably practicable after written request
therefore, any Information in the possession or under the control of such party
that the requesting party reasonably needs (i) to comply with reporting,
disclosure, filing or other requirements imposed on the requesting party
(including under applicable securities laws) by a Governmental Authority, (ii)
for use in any judicial, regulatory, administrative or other proceeding or in
order to satisfy audit, accounting, claims, litigation, regulatory, tax or other
similar requirements, (iii) to comply with its obligations under this Agreement
or any Ancillary Agreement or (iv) in connection with the ongoing businesses of
Eaton or Axcelis Technologies, as the case may be; provided, however, that in
the event that any party determines that any such provision of Information would
be commercially detrimental, violate any law or agreement or waive any
attorney-client privilege, the parties shall take all reasonable measures to
permit the compliance with such obligations in a manner that avoids any such
harm or consequence.
(b) Internal Accounting Controls; Financial Information. After
the Separation Date, each party shall (i) maintain and cause its Subsidiaries to
maintain in effect at its own cost and expense adequate systems and controls for
its business to the extent necessary to enable the other party to satisfy its
reporting, accounting, audit and other obligations, and (ii) provide and cause
its Subsidiaries to provide, or cause to be provided, to the other party and its
Subsidiaries in such form as such requesting party shall request, at no charge
to the requesting party, all financial and other data and information as the
requesting party determines necessary or advisable in order to prepare its and
its Subsidiaries financial statements and reports or filings with any
Governmental Authority.
(c) Ownership of Information. Any Information owned by a party
that is provided to a requesting party pursuant to this Section 5.3 shall remain
the property of the providing party. Unless specifically set forth herein,
nothing contained in this Agreement shall be construed as granting or conferring
rights of license or otherwise in any such Information.
(d) Record Retention. To facilitate the possible exchange of
Information pursuant to this Section 5.3 and other provisions of this Agreement
after the Distribution Date,
8
12
each party shall use its reasonable commercial efforts to retain all Information
in its respective possession or control on the Distribution Date substantially
in accordance with the policies of Eaton as in effect on the Separation Date.
However, except as set forth in the Tax Sharing and Indemnification Agreement,
at any time after the Distribution Date, each party may amend its respective
record retention policies at such party's discretion; provided, however, that if
a party desires to effect the amendment within three (3) years after the
Distribution Date, the amending party must give sixty (60) days prior written
notice of such change in the policy to the other party to this Agreement. No
party will destroy, or permit any of its Subsidiaries to destroy, any
Information that exists on the Separation Date (other than Information that is
permitted to be destroyed under the current record retention policies of Eaton)
and that falls under the categories listed in Section 5.3(a), without first
using its reasonable commercial efforts to notify the other party of the
proposed destruction and giving the other party the opportunity to take
possession of such Information prior to such destruction.
(e) Limitation of Liability. No party shall have any liability
to any other party in the event that any Information exchanged or provided
pursuant to this Section 5.3 is found to be inaccurate, in the absence of gross
negligence or willful misconduct by the party providing such Information. No
party shall have any liability to any other party if any Information is
destroyed or lost after reasonable commercial efforts by such party to comply
with the provisions of Section 5.3(d).
(f) Other Agreements Providing for Exchange of Information.
The rights and obligations granted under this Section 5.3 are subject to any
specific limitations, qualifications or additional provisions on the sharing,
exchange or confidential treatment of Information set forth in this Agreement or
any Ancillary Agreement.
(g) Production of Witnesses; Records; Cooperation. After the
Distribution Date, except in the case of a legal or other proceeding by one
party against another party (which shall be governed by such discovery rules as
may be applicable under Section 5.8 or otherwise), each party hereto shall use
its reasonable commercial efforts to make available to each other party, upon
written request, the former, current and future directors, officers, employees,
other personnel and agents of such party as witnesses and any books, records or
other documents within its control or which it otherwise has the ability to make
available, to the extent that any such person (giving consideration to business
demands of such directors, officers, employees, other personnel and agents) or
books, records or other documents may reasonably be required in connection with
any legal, administrative or other proceeding in which the requesting party may
from time to time be involved, regardless of whether such legal, administrative
or other proceeding is a matter with respect to which indemnification may be
sought hereunder. The requesting party shall bear all costs and expenses in
connection therewith.
Section 5.4 Auditors and Audits; Annual and Quarterly Statements and
Accounting. For as long as Eaton is required in accordance with United States
generally accepted accounting principles to consolidate Axcelis Technologies'
results of operations and financial position:
(a) Selection of Auditors. Axcelis Technologies shall not
select a different accounting firm from that used by Eaton in each respective
country to serve as its (and its Subsidiaries') independent certified public
accountants ("Axcelis Technologies' Auditors") for
9
13
purposes of providing an opinion on its consolidated financial statements
without Xxxxx'x prior written consent (which shall not be unreasonably
withheld).
(b) Date of Auditors' Opinion and Quarterly Reviews. Axcelis
Technologies shall use its reasonable commercial efforts to enable Axcelis
Technologies' Auditors to complete their audit such that they will date their
opinion on Axcelis Technologies' audited annual financial statements on the same
date that Xxxxx'x independent certified public accountants ("Xxxxx'x Auditors")
date their opinion on Xxxxx'x audited annual financial statements, and to enable
Eaton to meet its timetable for the printing, filing and public dissemination of
Xxxxx'x annual financial statements. Axcelis Technologies shall use its
reasonable commercial efforts to enable Axcelis Technologies' Auditors to
complete their quarterly review procedures such that they will provide clearance
on Axcelis Technologies' quarterly financial statements on the same date that
Xxxxx'x Auditors provide clearance on Xxxxx'x quarterly financial statements.
(c) Annual and Quarterly Financial Statements. Axcelis
Technologies shall provide to Eaton on a timely basis all Information that Eaton
reasonably requires to meet its schedule for the preparation, printing, filing
and public dissemination of Xxxxx'x annual and quarterly financial statements.
Without limiting the generality of the foregoing, Axcelis Technologies will
provide all required financial Information with respect to Axcelis Technologies
and its Subsidiaries to Axcelis Technologies' Auditors in a sufficient and
reasonable time and in sufficient detail to permit Axcelis Technologies'
Auditors to take all steps and perform all reviews necessary to provide
sufficient assistance to Xxxxx'x Auditors with respect to financial Information
to be included or contained in Xxxxx'x annual and quarterly financial
statements. Similarly, Eaton shall provide to Axcelis Technologies on a timely
basis all financial Information that Axcelis Technologies reasonably requires to
meet its schedule for the preparation, printing, filing and public dissemination
of Axcelis Technologies' annual and quarterly financial statements. Without
limiting the generality of the foregoing, Eaton will provide all required
financial Information with respect to Eaton and its Subsidiaries to Xxxxx'x
Auditors in a sufficient and reasonable time and in sufficient detail to permit
Xxxxx'x Auditors to take all steps and perform all reviews necessary to provide
sufficient assistance to Axcelis Technologies' Auditors with respect to
Information to be included or contained in Axcelis Technologies' annual and
quarterly financial statements.
(d) Identity of Personnel Performing the Annual Audit and
Quarterly Reviews. Axcelis Technologies shall authorize Axcelis Technologies'
Auditors to make available to Xxxxx'x Auditors both the personnel who performed
or will perform the annual audits and quarterly reviews of Axcelis Technologies
and work papers related to the annual audits and quarterly reviews of Axcelis
Technologies, in all cases within a reasonable time prior to Axcelis
Technologies' Auditors' opinion date, so that Xxxxx'x Auditors are able to
perform the procedures they consider necessary to take responsibility for the
work of Axcelis Technologies' Auditors as it relates to Xxxxx'x Auditors' report
on Xxxxx'x financial statements, all within sufficient time to enable Eaton to
meet its timetable for the printing, filing and public dissemination of Xxxxx'x
annual and quarterly statements. Similarly, Eaton shall authorize Xxxxx'x
Auditors to make available to Axcelis Technologies' Auditors both the personnel
who performed or will perform the annual audits and quarterly reviews of Eaton
and work papers related to the annual audits and quarterly reviews of Eaton, in
all cases within a reasonable time prior to Xxxxx'x Auditors' opinion date, so
that Axcelis Technologies' Auditors are able to
10
14
perform the procedures they consider necessary to take responsibility for the
work of Xxxxx'x Auditors as it relates to Axcelis Technologies' Auditors' report
on Axcelis Technologies' statements, all within sufficient time to enable
Axcelis Technologies to meet its timetable for the printing, filing and public
dissemination of Axcelis Technologies' annual and quarterly financial
statements.
(e) Access to Books and Records. Axcelis Technologies shall
provide Xxxxx'x internal auditors and their designees access to Axcelis
Technologies' and its Subsidiaries' books and records so that Eaton may conduct
reasonable audits relating to the financial statements provided by Axcelis
Technologies pursuant hereto as well as to the internal accounting controls and
operations of Axcelis Technologies and its Subsidiaries. Similarly, Eaton shall
provide Axcelis Technologies' internal auditors and their designees access to
Xxxxx'x and its Subsidiaries' books and records so that Axcelis Technologies may
conduct reasonable audits relating to the financial statements provided by Eaton
pursuant hereto as well as to the internal accounting controls and operations of
Eaton and its Subsidiaries
(f) Notice of Change in Accounting Principles. Subsequent to
the Distribution, Axcelis Technologies shall give Eaton as much prior notice as
reasonably practical of any proposed determination of, or any significant
changes in, its accounting estimates or accounting principles from those in
effect prior to the Distribution. Axcelis Technologies will consult with Eaton
and, if requested by Eaton, Axcelis Technologies will consult with Xxxxx'x
Auditors with respect thereto. Eaton shall give Axcelis Technologies as much
prior notice as reasonably practical of any proposed determination of, or any
significant changes in, its accounting estimates or accounting principles from
those in effect on the Separation Date. Eaton will consult with Axcelis
Technologies and, if requested by Axcelis Technologies, Eaton will consult with
Axcelis Technologies' Auditors with respect thereto.
(g) Conflict with Third-Party Agreements. Nothing in this
Section 5.4 shall require Eaton or Axcelis Technologies to violate any agreement
with any third party regarding the confidentiality of confidential and
proprietary information relating to that third party or its business; provided
that in the event that Eaton or Axcelis Technologies is required under this
Section 5.4 to disclose any such Information, each of Eaton and Axcelis
Technologies shall use commercially reasonable efforts to seek to obtain such
third party's consent to the disclosure of such information.
Section 5.5 Consistency with Past Practices. At all times prior to
consummation of the IPO, Eaton and Axcelis Technologies will use commercially
reasonable efforts to conduct the Axcelis Technologies Business in the ordinary
course, consistent with past practices, except as otherwise contemplated in
connection with the Separation.
Section 5.6 Payment of Expenses. Except as otherwise specifically
provided to the contrary in any of the Ancillary Agreements, Axcelis
Technologies shall be responsible, as determined by Eaton in its sole
discretion, for third party costs and expenses incurred by the parties hereto in
connection with the IPO (including without limitation discounts, commissions and
reimbursable expenses of the Underwriters), and Eaton shall be responsible, as
determined by Eaton in its sole discretion, for the balance of such fees, costs
and expenses incurred in connection with this Agreement (including such fees,
costs and expenses incurred solely in
11
15
connection with the Distribution). Axcelis Technologies and Eaton shall each be
responsible for their own internal costs and expenses incurred in connection
with the Separation, the IPO and the Distribution.
Section 5.7 Foreign Subsidiaries. Eaton and Axcelis Technologies shall
cause their applicable foreign subsidiaries to execute such local transfer
agreements, assignments, assumptions, novations and other documents and to take
such other actions as shall be necessary to carry out the Non-US Plan, a copy of
which is attached hereto as Exhibit H (the "Non-US Plan"), to effect the
purposes of this Agreement with respect to their respective operations outside
the United States.
Section 5.8 Dispute Resolution.
(a) If a dispute, controversy or claim ("Dispute") arises
between the parties relating to the interpretation or performance of this
Agreement or the Ancillary Agreements, or the grounds for the termination
hereof, appropriate senior executives of each party with authority to resolve
the matter shall meet to attempt in good faith to negotiate a resolution of the
Dispute prior to pursuing other available remedies. The initial meeting between
the appropriate senior executives shall be referred to herein as the "Dispute
Resolution Commencement Date". Discussions and correspondence relating to trying
to resolve such Dispute shall be treated as confidential information developed
for the purpose of settlement and shall be exempt from discovery or production
and shall not be admissible in arbitration or litigation. If the senior
executives are unable to resolve the Dispute within thirty (30) days from the
Dispute Resolution Commencement Date, and either party wishes to pursue its
rights relating to such Dispute, then the Dispute will be mediated by a mutually
acceptable mediator selected by the parties within forty-five (45) days after
written notice by one party to the other demanding non-binding mediation.
Neither party may unreasonably withhold consent to the selection of a mediator
or the location of the mediation. Both parties will share the costs of the
mediation equally, except that each party shall bear its own costs and expenses,
including attorneys' fees, witness fees, travel expenses, and preparation costs.
The parties may also agree to replace mediation with some other form of
non-binding or binding ADR.
(b) Any Dispute which the parties cannot resolve through
mediation within ninety (90) days of the Dispute Resolution Commencement Date,
unless otherwise mutually agreed, shall be submitted to final and binding
arbitration under the then current Commercial Arbitration Rules of the American
Arbitration Association ("AAA"), by three (3) arbitrators in Cleveland, Ohio.
Such arbitrators shall be selected by the mutual agreement of the parties or,
failing such agreement, shall be selected according to the aforesaid AAA rules.
The arbitrators will be instructed to prepare and deliver a written, reasoned
opinion stating their decision within thirty (30) days of the completion of the
arbitration. The prevailing party in such arbitration shall be entitled to its
expenses, including costs and reasonable attorneys' and other professional fees,
incurred in connection with the arbitration (but excluding any costs and fees
associated with prior negotiation or mediation). The decision of the arbitrators
shall be final and non-appealable and may be enforced in any court of competent
jurisdiction. The use of any ADR procedures will not be construed under the
doctrine of laches, waiver or estoppel to adversely affect the rights of either
party.
12
16
(c) Any Dispute regarding the following is not required to be
negotiated, mediated or arbitrated prior to seeking relief from a court of
competent jurisdiction: breach of any obligation of confidentiality;
infringement, misappropriation, or misuse of any intellectual property right; or
any other claim where interim relief from the court is sought to prevent serious
and irreparable injury to one of the parties or to others. However, the parties
to the Dispute shall make a good faith effort to negotiate and mediate such
Dispute, according to procedures described above in paragraph (a), while such
court action is pending.
(d) Continuity of Service and Performance. Unless otherwise
agreed to in writing, the parties will continue to provide service and honor all
other commitments under this Agreement and each Ancillary Agreement during the
course of dispute resolution pursuant to the provisions of this Section 5.8 with
respect to all matters not subject to such dispute, controversy or claim.
Section 5.9 Governmental Approvals; Compliance with Law. To the extent
that the Separation, the IPO or the Distribution requires any Governmental
Approvals, the parties will use their reasonable commercial efforts to obtain
such Governmental Approvals. From and after the IPO Closing Date, Axcelis
Technologies shall comply with all federal, state, local and international laws,
rules, regulations, orders, judgments, decrees, ordinances, and injunctions,
including without limitation applicable federal, state and foreign securities
laws, rules, regulations, orders, judgments, decrees, ordinances and
injunctions.
Section 5.10 No Representation or Warranty. Unless specifically
provided to the contrary in any agreement specifically covering any portion of
the non-US operations of the Axcelis Technologies Business, Eaton does not, in
this Agreement or any other agreement, instrument or document contemplated by
this Agreement, make any representation as to, warranty of or covenant with
respect to:
(a) the value of any asset or thing of value to be transferred
to Axcelis Technologies;
(b) the freedom from encumbrance of any asset or thing of
value to be transferred to Axcelis Technologies;
(c) the absence of defenses or freedom from counterclaims with
respect to any claim to be transferred to Axcelis Technologies; or
(d) the legal sufficiency of any assignment, document or
instrument delivered hereunder to convey title to any asset or thing of value
upon its execution, delivery and filing.
Except as may expressly be set forth herein or in any Ancillary Agreement, all
assets to be transferred to Axcelis Technologies shall be transferred "AS IS,
WHERE IS," and Axcelis Technologies shall bear the economic and legal risk that
any conveyance shall prove to be insufficient to vest in Axcelis Technologies
good and marketable title, free and clear of any lien, claim, equity or other
encumbrance.
Section 5.11 Non-Solicitation of Employees. Eaton and Axcelis
Technologies shall not solicit or recruit, without the other party's express
prior written consent, any of the other party's
13
17
employees for a period of two (2) years following the Distribution Date. To the
extent this prohibition is waived, any recruitment efforts by either Eaton or
Axcelis Technologies during such two-year period shall be coordinated by each
party's senior human resources executive or his or her designee and appropriate
management. Notwithstanding the foregoing, this prohibition on solicitation does
not apply to actions taken by a party solely as a result of: (a) an employee's
affirmative response to a general recruitment effort carried out through a
public or general solicitation, or (b) an employee's initiative.
Section 5.12 Cooperation in Obtaining New Agreements. Eaton understands
that, prior to the Separation Date, Axcelis Technologies has derived benefits
under certain agreements and relationships between Eaton and third parties,
which agreements and relationships are not being assigned or transferred to
Axcelis Technologies in connection with the Separation. Upon the request of
Axcelis Technologies, Eaton will make introductions of appropriate Axcelis
Technologies personnel to Xxxxx'x contacts at such third parties, and will
provide reasonable assistance to Axcelis Technologies, at Xxxxx'x expense, so
that Axcelis Technologies may enter into agreements or relationships with such
third parties under substantially equivalent terms and conditions, including
financial terms and conditions, that apply to Eaton. Such assistance may
include, but is not limited to, (i) requesting and encouraging such third
parties to enter into such agreements or relationships with Axcelis
Technologies, (ii) attending meetings and negotiating sessions with Axcelis
Technologies and such third parties, and (iii) participating in buying
consortiums with Axcelis Technologies. Eaton also understands that certain
agreements between Eaton and third parties which are being assigned to Axcelis
Technologies in connection with the Separation may require the consent of the
applicable third party. Eaton shall assist Axcelis Technologies in seeking and
obtaining the consent of such third parties to such assignment. The parties
expect that the activities contemplated by this Section 5.12 will be
substantially completed by the Distribution Date, but in any event Xxxxx'x
obligations hereunder will terminate after the first anniversary of the
Distribution Date.
Section 5.13 Property Damage to Axcelis Technologies Assets Prior to
the Separation Date. In the event of any property damage, other than ordinary
wear and tear, to any Axcelis Technologies Assets held by Eaton which occurs
prior to the Separation Date, Eaton shall repair or otherwise address such
damage in the ordinary course of business consistent with past practices;
provided, however, that nothing in this clause shall restrict Eaton from
disposing of any Assets in the ordinary course of business consistent with past
practices.
ARTICLE VI
MISCELLANEOUS
Section 6.1 Limitation of Liability. EXCEPT TO THE EXTENT, IF ANY,
SPECIFICALLY PROVIDED TO THE CONTRARY HEREIN OR IN ANY ANCILLARY AGREEMENT, IN
NO EVENT SHALL ANY MEMBER OF THE XXXXX GROUP OR THE AXCELIS TECHNOLOGIES GROUP
BE LIABLE TO ANY OTHER MEMBER OF THE XXXXX GROUP OR THE AXCELIS TECHNOLOGIES
GROUP FOR ANY SPECIAL, CONSEQUENTIAL, INDIRECT, INCIDENTAL OR PUNITIVE DAMAGES
OR LOST PROFITS, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY (INCLUDING
NEGLIGENCE), ARISING IN ANY WAY OUT OF THIS AGREEMENT OR ANY
14
18
ANCILLARY AGREEMENT, WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES; PROVIDED THAT THE FOREGOING LIMITATIONS SHALL NOT
LIMIT EITHER PARTY'S INDEMNIFICATION OBLIGATIONS FOR LIABILITIES AS SET FORTH IN
THE INDEMNIFICATION AND INSURANCE MATTERS AGREEMENT.
Section 6.2 Governing Law. This Agreement and the Ancillary Agreements
(except to the extent that a mandatory rule of law which governs any matter
contemplated by the Non-US Plan otherwise provides) shall be construed in
accordance with, and all Disputes hereunder or thereunder shall be governed by,
the local laws of the State of Ohio, excluding its conflict of law rules. The
United States District Court for the Northern District of Ohio shall have
jurisdiction and venue over, and shall be the sole court used by the parties to
initiate resolution of, all Disputes between the parties hereto and to the
Ancillary Agreements.
Section 6.3 Termination. This Agreement and all Ancillary Agreements
may be terminated and the IPO abandoned, or the IPO may be delayed, at any time
prior to the IPO Closing by and in the sole discretion of Eaton without the
consent of Axcelis Technologies. This Agreement or any of the Ancillary
Agreements may be terminated at any time after the IPO Closing and before the
Distribution Date by mutual consent of Eaton and Axcelis Technologies. In the
event of termination pursuant to this Section 6.3, no party shall have any
liability of any kind to the other party.
Section 6.4 Notices. Notices, offers, instructions, consents, requests
or other communications required or permitted to be given by either party
pursuant to the terms of this Agreement or any Ancillary Agreement shall be
given in writing to the respective parties to the following addresses:
if to Eaton:
Office of the Secretary
Xxxxx Corporation
Eaton Center
0000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000
Fax: (000) 000-0000
if to Axcelis Technologies:
Chief Executive Officer
Axcelis Technologies, Inc.
00 Xxxxxx Xxxx Xxxxx
Xxxxxxx, Xxxxxxxxxxxxx 00000
Fax: (000) 000-0000
or to such other address as the party to whom notice is given may have
previously furnished to the other in writing as provided herein. Any notice
involving non-performance, termination, or renewal shall be sent by hand
delivery, recognized overnight courier or, within the United States, may also be
sent via certified mail, return receipt requested. All other notices may also be
sent
15
19
by fax, confirmed by first class mail. All notices shall be deemed to have been
given and received on the earlier of actual delivery or three (3) days from the
date of postmark.
Section 6.5 Counterparts. This Agreement and the Ancillary Agreements
will be executed in counterparts, each of which shall be deemed to be an
original but all of which shall constitute one and the same agreement.
Section 6.6 Binding Effect; Assignment. This Agreement and the
Ancillary Agreements shall inure to the benefit of and be binding upon the
parties hereto and their respective successors and permitted assigns. This
Agreement may be enforced separately by each member of the Xxxxx Group and each
member of the Axcelis Technologies Group. Neither party may assign this
Agreement or any Ancillary Agreement or any rights or obligations hereunder or
thereunder in whole or in part without the prior written consent of the other
party, which consent shall not be unreasonably withheld, and any assignment
without such consent shall be void. No permitted assignment of any rights or
obligations hereunder or in any Ancillary Agreement, in whole or in part, by
operation of law or otherwise, will release the assigning party as the obligor,
jointly and severally with the assignee, from any of its obligations hereunder
or in any Ancillary Agreement.
Section 6.7 Severability. If any term or other provision of this
Agreement or any Ancillary Agreement is determined by a court, administrative
agency or arbitrator to be invalid, illegal or incapable of being enforced by
any rule of law or public policy, all other conditions and provisions of this
Agreement or any Ancillary Agreement shall nevertheless remain in full force and
effect. Upon such determination that any term or other provision is invalid,
illegal or incapable of being enforced, the parties hereto shall negotiate in
good faith to modify this Agreement or such Ancillary Agreement so as to effect
the original intent of the parties as closely as possible in an acceptable
manner to the end that the transactions contemplated hereby or in such Ancillary
Agreement are fulfilled to the fullest extent possible.
Section 6.8 Failure or Indulgence Not Waiver; Remedies Cumulative. Any
provision of this Agreement or any Ancillary Agreement or any breach thereof may
only be waived if done specifically and in writing by the party that is entitled
to the benefits thereof. No failure or delay on the part of either party hereto
or thereto in the exercise of any right hereunder or thereunder shall impair
such right or be construed to be a waiver of, or acquiescence in, any breach of
any representation, warranty or agreement herein or therein, nor shall any
single or partial exercise of any such right preclude other or further exercise
thereof or of any other right. All rights and remedies existing under this
Agreement or the Ancillary Agreements are cumulative to, and not exclusive of,
any rights or remedies otherwise available.
Section 6.9 Entire Agreement; Amendment. This Agreement and the
Ancillary Agreements constitute the sole and entire understanding of the parties
with respect to the matters contemplated hereby and thereby and supersede and
render null and void all prior negotiations, representations, agreements and
understandings (oral and written) between the parties with respect to such
matters. No change or amendment may be made to this Agreement or any Ancillary
Agreement except by an instrument in writing signed by each of the parties
thereto.
Section 6.10 Authority. Each of the parties hereto represents to the
other that (a) it has the corporate or other requisite power and authority to
execute, deliver and perform this
16
20
Agreement and the Ancillary Agreements, (b) the execution, delivery and
performance of this Agreement and the Ancillary Agreements by it have been duly
authorized by all necessary corporate or other actions, (c) it has duly and
validly executed and delivered this Agreement and the Ancillary Agreements, and
(d) this Agreement and each of the Ancillary Agreements constitutes a legal,
valid and binding obligation, enforceable against it in accordance with its
terms subject to applicable bankruptcy, insolvency, reorganization, moratorium
or other similar laws affecting creditors' rights generally and subject to
general equity principles.
Section 6.11 Interpretation. The headings contained in this Agreement
and the Ancillary Agreements and in the tables of contents to this Agreement and
the Ancillary Agreements are for reference purposes only and shall not affect in
any way the meaning or interpretation hereof or thereof. Any capitalized term
used in any Exhibit or Schedule to this Agreement or any Ancillary Agreement but
not otherwise defined therein shall have the meaning assigned to such term in
this Agreement. When a reference is made in this Agreement to an Article or a
Section, Exhibit or Schedule, such reference shall be to an Article or Section
of, or an Exhibit or Schedule to, this Agreement unless otherwise indicated. The
language used in this Agreement and in any Ancillary Agreement will be deemed to
be the language chosen by the parties hereto to express their mutual intent and
agreement, and no rule of strict construction or canons or aids in
interpretation will be applied against either party.
Section 6.12 Conflicting Agreements. In the event of conflict between
this Agreement and any Ancillary Agreement or other document executed in
connection herewith, unless otherwise specifically provided in this Agreement,
the provisions of such Ancillary Agreement or document shall prevail.
Section 6.13 Public Announcements. Through the Distribution Date, Eaton
shall determine the contents of all press releases relating to any matters
contemplated by this Agreement or any of the Ancillary Agreements, including
without limitation the Separation, the IPO and the Distribution, to be issued by
either of the parties, after consultation with Axcelis Technologies, including
without limitation any termination of this Agreement for any reason, and such
press releases shall be consistent with the respective disclosure obligations of
the parties.
Section 6.14 Subsequent Legal Fees. In the event that any arbitration
or litigation is initiated to interpret or enforce the terms and provisions of
this Agreement or any Ancillary Agreement, the party prevailing in said action
shall be entitled to its reasonable attorneys' fees and costs and shall be paid
same in full by the losing party promptly upon demand by the prevailing party. A
party may also include its claim for such fees and costs in such arbitration or
litigation.
Section 6.15 No Third-Party Beneficiaries or Right to Rely.
Notwithstanding anything to the contrary in this Agreement or any Ancillary
Agreement, (a) nothing in this Agreement or any Ancillary Agreement is intended
to or shall create for or grant to any third Person any rights or remedies
whatever, as a third party beneficiary or otherwise; (b) no third Person is
entitled to rely on any of the representations, warranties, covenants or
agreements contained herein or in any Ancillary Agreement; and (c) no party
hereto or to any Ancillary Agreement shall incur any
17
21
liability or obligation to any third Person because of any reliance by such
third Person on any representation, warranty, covenant or agreement herein or in
any Ancillary Agreement.
ARTICLE VII
DEFINITIONS
Section 7.1 Affiliated Company. "Affiliated Company" of any Person
means any entity that controls, is controlled by or is under common control with
such Person. As used herein, "control" means the possession, directly or
indirectly, of the power to direct or cause the direction of the management and
policies of such entity, whether through ownership of voting securities or other
interests, by contract or otherwise.
Section 7.2 Assets. "Assets" has the meaning set forth for such term in
Article IV of the Assignment Agreement.
Section 7.3 Axcelis Technologies Assets. "Axcelis Technologies Assets"
has the meaning set forth in Section 1.2 of the Assignment Agreement.
Section 7.4 Axcelis Technologies Group. "Axcelis Technologies Group"
means Axcelis Technologies, each Subsidiary and Affiliated Company of Axcelis
Technologies immediately after the Separation Date or that is contemplated to be
a Subsidiary or Affiliated Company of Axcelis Technologies pursuant to the
Non-US Plan and each Person that becomes a Subsidiary or Affiliated Company of
Axcelis Technologies after the Separation Date.
Section 7.5 Xxxxx Group. "Xxxxx Group" means Eaton, each Subsidiary and
Affiliated Company of Eaton (other than any member of the Axcelis Technologies
Group) immediately after the Separation Date, after giving effect to the Non-US
Plan, and each Person (other than any member of the Axcelis Technologies Group)
that becomes a Subsidiary or Affiliated Company of Eaton after the Separation
Date.
Section 7.6 Governmental Approvals. "Governmental Approvals" means any
notices, reports or other filings to be made to, or any consents, registrations,
approvals, permits or authorizations to be obtained from, any Governmental
Authority.
Section 7.7 Governmental Authority. "Governmental Authority" shall mean
any federal, state, local, foreign or international court, government,
department, commission, board, bureau, agency, official or other regulatory,
administrative or governmental authority.
Section 7.8 Information. "Information" means information, whether or
not patentable or copyrightable, in written, oral, electronic or other tangible
or intangible forms, stored in any medium, including studies, reports, records,
books, contracts, instruments, surveys, discoveries, ideas, concepts, know-how,
techniques, designs, specifications, drawings, blueprints, diagrams, models,
prototypes, samples, flow charts, data, computer data, disks, diskettes, tapes,
computer programs or other software, marketing plans, customer names,
communications by or to attorneys (including attorney-client privileged
communications), memos and other materials prepared by attorneys or under their
direction (including attorney work product), and any other technical, financial,
employee or business information or data.
18
22
Section 7.9 IPO Closing."IPO Closing" means the consummation of the IPO
by Axcelis in accordance with this Agreement and the Underwriting Agreement,
including without limitation its delivery of Axcelis common stock to, in return
for cash from, the Underwriters.
Section 7.10 IPO Closing Date. "IPO Closing Date" means the date of the
IPO Closing.
Section 7.11 Liabilities. "Liabilities" has the meaning set forth for
such term in Article IV of the Assignment Agreement
Section 7.12 Person. "Person" means any individual, partnership,
corporation, limited liability company, association, joint stock company, trust,
joint venture, unincorporated organization or governmental entity or any
department, agency or political subdivision thereof.
Section 7.13 Subsidiary. "Subsidiary" of any Person means a corporation
or other organization, whether incorporated or unincorporated, of which at least
a majority of the securities or interests having by the terms thereof ordinary
voting power to elect at least a majority of the board of directors or others
performing similar functions with respect to such corporation or other
organization is directly or indirectly owned or controlled by such Person and/or
by any one or more of its Subsidiaries; provided that no Person that is not
directly or indirectly wholly-owned by any other Person shall be a Subsidiary of
such other Person unless such other Person controls, or has the right, power or
ability to control, that Person.
19
23
WHEREFORE, each of the parties hereto, by its duly authorized officers
or representatives, has caused this Agreement to be executed on its behalf on
the date first above written.
ATTEST: AXCELIS TECHNOLOGIES, INC.
By: /s/ XXXX X. PUMA By: /s/ XXXXX X. XXXXXXX
------------------------------ -------------------------------
Name: Xxxx X. Puma Name: Xxxxx X. Xxxxxxx
---------------------------- -----------------------------
Title: President, Chief Operating Title: Chief Executive Officer and
--------------------------- ----------------------------
Officer and Secretary Vice Chairman of the Board
--------------------------- ----------------------------
ATTEST: XXXXX CORPORATION
By: /s/ XXX XXXXXXXXXXXX By: /s/ XXXXXX X. XXXXXX
------------------------------ -------------------------------
Name: Xxx Xxxxxxxxxxxx Name: Xxxxxx X. Xxxxxx
---------------------------- -----------------------------
Title: Vice President--Strategic Title: Executive Vice President,
--------------------------- ----------------------------
Planning Chief Financial and
--------------------------- ----------------------------
Planning Officer
----------------------------
24
EXHIBITS
Exhibit A General Assignment and Assumption Agreement
Exhibit B Trademark License Agreement
Exhibit C Employee Matters Agreement
Exhibit D Tax Sharing and Indemnification Agreement
Exhibit E Transitional Services Agreement
Exhibit F Real Estate Matters Agreement
Exhibit G Indemnification and Insurance Matters Agreement
Exhibit H Non-US Plan
[Exhibits A through G omitted. The registrant hereby agrees to furnish
supplementally, upon request, a copy of any omitted Exhibits to this
agreement.]
25
EXHIBIT H
AXCELIS TECHNOLOGIES, INC.
NON-U.S. PLAN
This document describes, by jurisdiction, the transfers of assets and
liabilities between various foreign subsidiaries of Xxxxx Corporation ("Eaton")
and various foreign subsidiaries of Axcelis Technologies, Inc. ("Axcelis
Technologies") that will occur as part of the separation of the Axcelis
Technologies business from Eaton.
France
On the Separation Date or as soon as practicable thereafter, Axcelis
Technologies Sarl, a newly formed wholly owned subsidiary of Fusion
Technology International Inc. ("Fusion International"), will acquire
the assets and assume the liabilities of the Ion Beam Systems Division
of Xxxxx Technologies S.A. for cash in an amount equal to the agreed
fair market value as of the Separation Date.
Italy
On the Separation Date or as soon as practicable thereafter, Axcelis
Technologies Srl, a newly formed wholly owned subsidiary of Fusion
International, will acquire the assets and assume the liabilities of
the SED Agrate-Italy Division of Eaton Automotive Srl for cash in an
amount equal to the agreed fair market value as of the Separation
Date.
Germany
On the Separation Date or as soon as practicable thereafter, Axcelis
Technologies GmbH, a newly formed wholly owned subsidiary of Fusion
International, will acquire the assets and assume the liabilities of
the Ion Beam Systems Division of Eaton GmbH and the Fusion Germany
Division of Eaton GmbH for cash in an amount equal to the agreed fair
market value as of the Separation Date.
United Kingdom
On the Separation Date or as soon as practicable thereafter, Axcelis
Technologies Limited, a wholly owned subsidiary of Fusion
International, will acquire the assets and assume the liabilities of
the Ion Beam Systems Division of Eaton Limited for cash in an amount
equal to the agreed fair market value as of the Separation Date.
26
Taiwan
As soon as practicable after the Separation Date, Axcelis Technologies
will cause Fusion International to form a wholly owned subsidiary in
Taiwan ("Axcelis Taiwan"). Axcelis Taiwan will agree to acquire
certain assets and liabilities of the SED Taiwan Division of Eaton
Limited and the Fusion Taiwan Division of Eaton Limited for cash in an
amount equal to the agreed fair market value as of the Separation
Date. The consummation of such transactions will occur as soon as
commercially practicable subject to Taiwan business and legal
requirements, but in any event no later than the date of the
consummation of the divestiture of Axcelis Technologies.
South Korea
On the Separation Date or as soon as practicable thereafter, Eaton
Semiconductor Ltd., a wholly owned subsidiary of Axcelis Technologies,
will sell that certain land and a building located in South Korea and
used in connection with the Axcelis Technologies business to Xxxxx
Ltd. for cash in an amount equal to the appraised fair market value of
such assets as of the Separation Date. Xxxxx Ltd. will agree to lease
to Eaton Semiconductor Ltd. for a rental equal to the fair rental
value that portion of the premises currently used by the semiconductor
equipment operations of Eaton Semiconductor Ltd. for an agreed period
after the Separation Date.
India
On the Separation Date or as soon as practicable thereafter, Implant
Systems India will sell its assets which are unrelated to the Axcelis
Technologies business to Eaton Industries Pvt Ltd. for cash in an
amount equal to the agreed fair market value of the assets.
