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ARTICLE I
CONTRIBUTION AND ASSUMPTION
Section 1.1 Contribution of Assets and Assumption of Liabilities.
(a) Transfer of Assets. To the extent not assigned, transferred,
conveyed and delivered to Axcelis Technologies prior to the Separation Date,
effective on the Separation Date (except for certain Axcelis Technologies Assets
to be transferred pursuant to the Non-US Plan, which may be transferred at such
other times as Eaton reasonably determines), Eaton hereby assigns, transfers,
conveys and delivers (or will cause any applicable Eaton Subsidiary to assign,
transfer, convey and deliver) to Axcelis Technologies, or, pursuant to Section
1.4, to any applicable Axcelis Technologies Subsidiary, and Axcelis Technologies
hereby accepts from Eaton or such applicable Eaton Subsidiary, and agrees to
cause its applicable Axcelis Technologies Subsidiaries to accept, all of Eaton's
and its applicable Subsidiaries' respective right, title and interest in and to
the Axcelis Technologies Assets (as hereinafter defined).
(b) Assumption of Liabilities. Effective on the Separation Date and
with no recourse whatsoever to Eaton or any Eaton Subsidiary, Axcelis
Technologies hereby assumes and agrees faithfully to pay, perform and fulfill
(or will cause any applicable Subsidiaries to so assume, pay, perform and
fulfill), all of the Axcelis Technologies Liabilities (as hereinafter defined)
of Eaton and its applicable Subsidiaries. Thereafter, Axcelis Technologies shall
be responsible (or will cause any applicable Subsidiaries to be responsible) for
all Axcelis Technologies Liabilities of Eaton or any applicable Eaton
Subsidiaries, regardless of when or where such Liabilities arose or arise, or
whether the facts on which they are based occurred prior to, on or after the
Separation Date, regardless of where or against whom such Liabilities are
asserted or determined (including any Axcelis Technologies Liabilities arising
out of claims made by Eaton's or Axcelis Technologies' respective directors,
officers, consultants, independent contractors, employees or agents against any
member of the Eaton Group or the Axcelis Technologies Group) or whether asserted
or determined prior to, on or after the Separation Date, and regardless of
whether arising from or alleged to arise from negligence, recklessness,
violation of law, fraud or misrepresentation by any member of the Eaton Group or
the Axcelis Technologies Group or any of their respective directors, officers,
employees or agents.
(c) Misallocated Assets. In the event that at any time or from time to
time (whether prior to, on or after the Separation Date), either party hereto
(or any member of the Axcelis Technologies Group or the Eaton Group as
applicable) shall receive or otherwise possess any Asset that was intended,
pursuant to the Separation Agreement, this Agreement or any other Ancillary
Agreement, to be received or possessed by the other party and/or any member of
the Axcelis Technologies Group or the Eaton Group, as applicable, such party
shall promptly transfer, or cause to be transferred, such Asset to the Person so
entitled thereto. Prior to any such transfer, the Person receiving or possessing
such Asset shall hold such Asset in trust for any such other Person.
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Section 1.2 Axcelis Technologies Assets.
(a) Included Assets. For purposes of this Agreement, "Axcelis
Technologies Assets" shall mean (without duplication) the following Assets,
except as otherwise provided for in the Separation Agreement or in any other
Ancillary Agreement or other express agreement of the parties and except for the
Excluded Assets referred to in Section 1.2(b) hereof:
(i) all Assets owned by Eaton or any Eaton Subsidiary and reflected
in the Axcelis Technologies Balance Sheet, subject to any dispositions of any
such Assets subsequent to the date of the Axcelis Technologies Balance Sheet;
(ii) all Assets owned by Eaton or any Eaton Subsidiary that have
been written off, expensed or fully depreciated that, had they not been written
off, expensed or fully depreciated, would have been reflected in the Axcelis
Technologies Balance Sheet in accordance with the principles and accounting
policies under which the Axcelis Technologies Balance Sheet was prepared;
(iii) all Assets acquired by Eaton or its Subsidiaries after the
date of the Axcelis Technologies Balance Sheet that would be reflected in the
consolidated balance sheet of Axcelis Technologies as of the Separation Date if
such consolidated balance sheet were prepared using the same principles and
accounting policies under which the Axcelis Technologies Balance Sheet was
prepared, plus any such Assets acquired by Eaton or its Subsidiaries after the
Separation Date;
(iv) all Assets owned by Eaton that are used primarily by the
Axcelis Technologies Business at the Separation Date but are not reflected in
the Axcelis Technologies Balance Sheet, provided that no such Asset shall be an
Axcelis Technologies Asset requiring any transfer by Eaton unless Axcelis
Technologies or its Subsidiaries have, on or before the second anniversary of
the Distribution Date, given Eaton or its Subsidiaries notice that such Asset is
an Axcelis Technologies Asset;
(v) all Axcelis Technologies Contingent Gains;
(vi) all Axcelis Technologies Contracts; and
(vii) all Assets that are expressly contemplated by this Agreement,
the Separation Agreement or any other Ancillary Agreement (including Schedule
1.2(a)(vii) hereto or any other Schedule hereto or thereto) as Assets to be
transferred to Axcelis Technologies or any other member of the Axcelis
Technologies Group.
(b) Excluded Assets. For the purposes of this Agreement, "Excluded
Assets" shall mean:
(i) the Assets listed or described on Schedule 1.2(b)(i) hereto
[Schedule to list Eaton company owned life insurance and to define intercompany
assets]; and
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(ii) any and all Assets that are expressly contemplated by the
Separation Agreement, this Agreement or any other Ancillary Agreement (including
the Schedules hereto or thereto) as Assets to be retained by Eaton or any other
member of the Eaton Group.
(c) Axcelis Technologies acknowledges and agrees that the Assets
reflected as Axcelis Technologies Assets on the Axcelis Technologies Balance
Sheet are so reflected based on the books and records maintained and other
information supplied by Axcelis Technologies personnel, and that the Axcelis
Technologies Assets constitute all of the Assets necessary to operate the
Axcelis Technologies Business as presently conducted.
Section 1.3 Axcelis Technologies Liabilities.
(a) Included Liabilities. For the purposes of this Agreement, "Axcelis
Technologies Liabilities" shall mean (without duplication) the following
Liabilities, except as otherwise provided for in the Separation Agreement, this
Agreement or any other Ancillary Agreement and except for the Excluded
Liabilities referred to in Section 1.3(b) hereof:
(i) all Liabilities reflected in the Axcelis Technologies Balance
Sheet, subject to any discharge of any such Liabilities subsequent to the date
of the Axcelis Technologies Balance Sheet;
(ii) all Liabilities of Eaton or its Subsidiaries that arise after
the date of the Axcelis Technologies Balance Sheet that would be reflected in
the consolidated balance sheet of Axcelis Technologies as of the Separation Date
if such consolidated balance sheet were prepared using the same principles and
accounting policies under which the Axcelis Technologies Balance Sheet was
prepared;
(iii) all Liabilities that are related primarily to the Axcelis
Technologies Business at the Separation Date but are not reflected in the
Axcelis Technologies Balance Sheet;
(iv) all Liabilities (other than Liabilities for Taxes which are
governed by the Tax Sharing Agreement), whether arising before, on or after the
Separation Date, primarily relating to, arising out of or resulting from:
(1) the operation of the Axcelis Technologies
Business, as conducted at any time prior to, on or after the Separation Date
(including any Liability relating to, arising out of or resulting from any act
or failure to act by any director, officer, employee, agent or representative,
whether or not such act or failure to act is or was within such Person's
authority);
(2) the operation of any business conducted
by any member of the Axcelis Technologies Group at any time after the Separation
Date (including any Liability relating to, arising out of or resulting from any
act or failure to act by any director, officer, employee, agent or
representative, whether or not such act or failure to act is or was within such
Person's authority); or
(3) any Axcelis Technologies Assets; and
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(v) all Liabilities that are expressly contemplated by the
Separation Agreement, this Agreement or any other Ancillary Agreement (including
the Schedules hereto or thereto) as Liabilities to be assumed by Axcelis
Technologies or any member of the Axcelis Technologies Group, and all contracts,
obligations and Liabilities of any member of the Axcelis Technologies Group
under the Separation Agreement, this Agreement or any of the other Ancillary
Agreements.
(b) Excluded Liabilities. For the purposes of this Agreement, "Excluded
Liabilities" shall mean:
(i) all Liabilities listed or described in Schedule 1.3(b)(i)
hereto [Schedule to define and include intercompany liabilities but to specify
that Eaton guarantees issued to benefit or benefiting Axcelis Technologies or
the Axcelis Technologies Business are included in Axcelis Technologies
Liabilities];
(ii) all Insured Axcelis Technologies Liabilities;
(iii) all Liabilities that are expressly contemplated by the
Separation Agreement, this Agreement or any other Ancillary Agreement (including
the Schedules hereto or thereto) as Liabilities to be retained or assumed by
Eaton or any other member of the Eaton Group, and all agreements and obligations
of any member of the Eaton Group under the Separation Agreement, this Agreement
or any other Ancillary Agreement.
Section 1.4 The Non-US Plan.
Each of Eaton and Axcelis Technologies shall take, and shall cause each
member of its respective Group to take, such actions as are reasonably necessary
to consummate the transactions contemplated by the Non-US Plan (whether prior
to, on or after the Separation Date), including execution and delivery of the
Local Transfer Agreements contemplated by the Non-US Plan. Notwithstanding
anything in the Separation Agreement, this Agreement or any other Ancillary
Agreement to the contrary, no party to a Local Transfer Agreement shall be
entitled to receive or retain any Asset unless such party shall have paid any
consideration contemplated to be paid in connection therewith pursuant to the
Non-US Plan.
Section 1.5 Methods of Transfer and Assumption.
(a) Terms of Ancillary Agreements Govern. The parties shall enter into
the Separation Agreement and the other Ancillary Agreements on or about the date
of this Agreement. To the extent that the transfer of any Axcelis Technologies
Assets or the assumption of any Axcelis Technologies Liabilities is expressly
provided for by the terms of the Separation Agreement or any other Ancillary
Agreements, the terms of the Separation Agreement or such Ancillary Agreement
shall effect, and determine the manner of, the transfer or assumption. It is the
intent of the parties that pursuant to Sections 1.1, 1.2 and 1.3 hereof, the
transfer and assumption of all other Axcelis Technologies Assets and Axcelis
Technologies Liabilities shall be made effective not later than the Separation
Date; provided that circumstances in various jurisdictions outside the United
States may require the transfer of certain Assets and the assumption of certain
Liabilities to occur in such other manner and at such other times as Eaton
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reasonably determines in accordance with any other applicable provision of this
Agreement, including without limitation Sections 1.4 and 1.6 hereof.
(b) Documents Relating to Other Transfers of Assets and Assumptions of
Liabilities. In furtherance of the assignment, transfer and conveyance of
Axcelis Technologies Assets and the assumption of Axcelis Technologies
Liabilities set forth in the Separation Agreement, this Agreement and any other
Ancillary Agreement, simultaneously with the execution and delivery hereof at
the Separation Closing or as promptly as practicable thereafter, (i) Eaton shall
execute and deliver, and shall cause its Subsidiaries in accordance with Local
Transfer Agreements to execute and deliver, such bills of sale, stock powers,
certificates of title, assignments of contracts and other instruments of
transfer, conveyance and assignment as and to the extent in Eaton's judgment
necessary to evidence the transfer, conveyance and assignment of all of Eaton's
and its Subsidiaries' right, title and interest in and to the Axcelis
Technologies Assets to Axcelis Technologies and its Subsidiaries, and (ii)
Axcelis Technologies shall execute and deliver, and cause its Subsidiaries to
execute and deliver, to Eaton and its Subsidiaries such assumptions of contracts
and other instruments of assumption as and to the extent in Eaton's judgment
necessary to evidence the valid and effective assumption of the Axcelis
Technologies Liabilities by Axcelis Technologies and its Subsidiaries.
Section 1.6 Governmental Approvals and Consents.
(a) Transfer in Violation of Laws. If and to the extent that the valid,
complete and perfected transfer, assignment, conveyance or novation to the
Axcelis Technologies Group of any Axcelis Technologies Assets (or from the
Axcelis Technologies Group of any assets which are not Axcelis Technologies
Assets) or the valid, complete and perfected assumption of any Axcelis
Technologies Liabilities by the Axcelis Technologies Group would be a violation
of applicable law or require any consent or Governmental Approval in connection
with the Separation, the IPO, the Distribution or otherwise, then, unless Eaton
shall otherwise determine, the transfer, assignment, conveyance or novation to
or from the Axcelis Technologies Group, as the case may be, of such Axcelis
Technologies Assets or assets which are not Axcelis Technologies Assets, or such
assumption of Axcelis Technologies Liabilities by the Axcelis Technologies Group
respectively, shall be automatically deferred and any such purported transfer,
assignment, conveyance or novation or such assumption shall be null and void
until such time as all legal impediments are removed and/or such consents or
Governmental Approvals have been obtained. Notwithstanding the foregoing, such
Asset shall still be considered an Axcelis Technologies Asset for purposes of
determining whether any Liability is an Axcelis Technologies Liability; provided
that if such consents or Governmental Approvals have not been obtained within
twelve months after the Separation Date, the parties will use reasonable
commercial efforts to achieve an alternative solution in accordance with the
parties' intentions.
(b) Transfers Not Consummated by the Separation Date. If the transfer,
assignment, conveyance or novation of any Assets intended to be transferred,
assigned or conveyed hereunder, including pursuant to the Non-US Plan, is not
consummated prior to or on the Separation Date or such other date as Eaton may
determine pursuant to the Non-US Plan, whether as a result of the provisions of
Section 1.6 (a) hereof or for any other reason, then the Person retaining such
Asset shall thereafter hold such Asset for the use and benefit, insofar as
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reasonably possible, of the Person entitled thereto. In addition, the Person
retaining such Asset shall take such other actions as may be reasonably
requested by the Person to whom such Asset is to be transferred in order to
place such Person, insofar as reasonably possible, in the same position as if
such Asset had been transferred as contemplated hereby and so that all the
benefits and burdens relating to such Assets, including possession, use, risk of
loss, potential for gain, and dominion, control and command over such Asset
inure from and after the Separation Date to the Person to whom the asset is to
be transferred. If and when the consents and/or Governmental Approvals, the
absence of which caused the deferral of transfer of any Asset pursuant to
Section 1.6(a) hereof or otherwise, are obtained, the transfer of the applicable
Asset shall be effected in accordance with the terms of this Agreement and/or
such applicable Ancillary Agreement.
(c) Expenses. The Person retaining an Asset due to the deferral of the
transfer of such Asset shall not be obligated, in connection with the foregoing,
to expend any money unless the necessary funds are advanced by the Person
entitled to the Asset.
Section 1.7 Nonrecurring Costs and Expenses.
Notwithstanding anything herein to the contrary, any nonrecurring costs
and expenses incurred by the parties hereto to effect the transactions
contemplated hereby which are not allocated pursuant to the terms of the
Separation Agreement, this Agreement or any other Ancillary Agreement shall be
the responsibility of the party which incurs such costs and expenses.
Section 1.8 Novation of Assumed Axcelis Technologies Liabilities.
(a) Reasonable Commercial Efforts. Each of Eaton and Axcelis
Technologies, at the request of the other, shall use reasonable commercial
efforts to obtain, or to cause to be obtained, any consent, substitution,
approval or amendment required to novate (including with respect to any federal
government contract) or assign all rights and obligations under agreements,
leases, licenses and other obligations or Liabilities (including Axcelis
Technologies OFLs) of any nature whatsoever that constitute Axcelis Technologies
Liabilities or to obtain in writing the unconditional release of all parties to
such arrangements other than any member of the Axcelis Technologies Group, so
that, in any such case, Axcelis Technologies and its Subsidiaries will be solely
responsible for such Liabilities; provided that neither Eaton, Axcelis
Technologies nor their Subsidiaries shall be obligated to pay any consideration
therefor to any third party from whom such consents, approvals, substitutions
and amendments are requested.
(b) Inability to Obtain Novation. If Eaton and Axcelis Technologies are
unable to obtain, or to cause to be obtained, any such required consent,
approval, release, substitution or amendment, and the applicable member of the
Eaton Group shall continue to be bound by such agreements, leases, licenses and
other obligations or Liabilities and, unless not permitted by law or the terms
thereof (except to the extent expressly set forth in the Separation Agreement,
this Agreement or any other Ancillary Agreement), Axcelis Technologies shall, as
agent or subcontractor for Eaton or such other Person, as the case may be, pay,
perform and discharge fully, or cause to be paid, transferred or discharged
fully all the obligations or other Liabilities of Eaton or such other Person, as
the case may be, thereunder from and after the Separation Date.
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Eaton shall, without further consideration, promptly pay and remit, or cause to
be paid or remitted, to Axcelis Technologies or its appropriate Subsidiary all
money, rights and other consideration received by it or any member of the Eaton
Group, as applicable, in respect of such performance (unless any such
consideration is an Excluded Asset). If and when any such consent, approval,
release, substitution or amendment shall be obtained or such agreement, lease,
license or other rights or obligations or Liabilities shall otherwise become
assignable or able to be novated, Eaton shall thereafter assign, or cause to be
assigned, all its rights, obligations and other Liabilities thereunder or any
rights or obligations of any member of the Eaton Group to Axcelis Technologies
without payment of further consideration and Axcelis Technologies shall, without
the payment of any further consideration, fully assume such rights, obligations
and Liabilities.
ARTICLE II
LITIGATION
Section 2.1 Litigation Transferred to Axcelis Technologies.
All defense costs and other litigation costs of any sort whatever,
settlements and judgments related to claims and litigation constituting an
Axcelis Technologies Liability shall be the responsibility of Axcelis
Technologies. Management of such claims and litigation shall be in accordance
with the relevant portions of the Transitional Services Agreement, the
Indemnification and Insurance Matters Agreement and any other relevant Ancillary
Agreements.
Section 2.2 Cooperation.
Eaton and Axcelis Technologies and their respective Subsidiaries shall
cooperate with each other in the defense or prosecution of any claim or
litigation covered under this Article II and afford to each other Information as
required by Section 5.3 of the Separation Agreement.
ARTICLE III
MISCELLANEOUS
Section 3.1 Miscellaneous.
The miscellaneous provisions contained in Article VI of the Separation
Agreement are hereby incorporated by reference into this Agreement in their
entirety. Wherever used in such Article VI as incorporated herein, the term
"this Agreement" means the Separation Agreement, and the term "Ancillary
Agreements" includes this General Assignment and Assumption Agreement.
ARTICLE IV
DEFINITIONS
Section 4.1 Action.
"Action" means any demand, action, suit, litigation, claim,
countersuit, arbitration, inquiry, proceeding or investigation by any third
Person or Governmental Authority or before
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any federal, state, local, foreign or international court or other governmental
authority or any arbitration or mediation tribunal.
Section 4.2 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 4.3 Ancillary Agreement.
"Ancillary Agreement" has the meaning set forth in Section 2.1 of the
Separation Agreement.
Section 4.4 Assets.
"Assets" means assets, properties and rights (including goodwill),
wherever located (including in the possession of vendors or other third parties
or elsewhere), whether real, personal or mixed, tangible, intangible or
contingent, in each case whether or not recorded or reflected or required to be
recorded or reflected on the books and records or financial statements of any
Person, including the following:
(i) all accounting and other books, records and files, whether
in paper, microfilm, microfiche, computer tape or disc, magnetic tape or any
other form;
(ii) all apparatus, computers and other electronic data
processing equipment, telecommunications equipment, fixtures, machinery,
equipment, furniture, office equipment, automobiles, trucks, rolling stock,
motor vehicles and other transportation equipment, special and general tools and
dies, test devices, prototypes and models and other tangible personal property;
(iii) all inventories of materials, parts, raw materials,
supplies, work-in-process and finished goods and products;
(iv) all interests in real property of whatever nature,
including without limitation plants, buildings, land, fixtures, impairments and
easements, whether as owner, mortgagee or holder of a Security Interest, lessor,
sublessor, lessee, sublessee or otherwise;
(v) all interests in any capital stock or other equity
interests of any Subsidiary or any other Person, all bonds, notes receivable,
debentures receivable or other securities issued by any Subsidiary or any other
Person, all loans receivable, advances or other extensions of credit or capital
contributions to any Subsidiary or any other Person and all other investments in
securities of any Person;
(vi) all license agreements, leases of and conditional sales
arrangements for personal property, open purchase orders for raw materials,
supplies, parts or services, unfilled
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sales orders for the manufacture and sale of products or for services and other
contracts, agreements or commitments;
(vii) all deposits, letters of credit, bank guarantees and
performance and surety bonds;
(viii) all written technical information, data,
specifications, research and development information, engineering drawings,
operating and maintenance manuals and materials and analyses prepared by
consultants and other third parties;
(ix) all Intellectual Property and licenses from third Persons
granting the right to use any Intellectual Property;
(x) all computer applications, programs and other software,
including operating software, network software, firmware, middleware, design
software, design tools, systems documentation and instructions;
(xi) all cost information, marketing, sales and pricing data
and information, customer prospect records and lists, supplier records and
lists, customer and vendor data and correspondence, product literature, artwork,
design, development and manufacturing files, vendor and customer drawings,
formulations and specifications, quality and warranty records and reports,
employee records and other books, records, studies, surveys, reports, plans and
documents;
(xii) all prepaid expenses, trade accounts and other accounts
and notes receivables;
(xiii) all rights under contracts or agreements, all claims or
rights against any Person arising from the ownership of any Asset, all rights in
connection with any bids or offers and all claims, choses in action or similar
rights, whether accrued or contingent;
(xiv) all rights as a named insured under Insurance Policies
and all non-insurance rights in the nature of indemnification or contribution;
(xv) all licenses (including radio and similar licenses),
permits, approvals and authorizations which have been issued by any Governmental
Authority;
(xvi) cash or cash equivalents, bank accounts, lock boxes and
other deposits; and
(xvii) all receivables in respect of interest rate, currency,
commodity or other swap, collar, cap or other hedging or similar agreements or
arrangements.
Section 4.5 Axcelis Technologies Balance Sheet.
"Axcelis Technologies Balance Sheet" means the unaudited combined
balance sheet (including the notes thereto) of the Axcelis Technologies Business
at March 31, 2000, that is included in the IPO Registration Statement.
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Section 4.6 Axcelis Technologies Business.
"Axcelis Technologies Business" means the business and operations
conducted by Eaton and its Subsidiaries as Eaton's Semiconductor Equipment
Operations as described in the IPO Registration Statement.
Section 4.7 Axcelis Technologies Common Stock.
"Axcelis Technologies Common Stock" means the common stock, par value
$0.001 per share, of Axcelis Technologies.
Section 4.8 Axcelis Technologies Contingent Gain.
"Axcelis Technologies Contingent Gain" means any claim or other right
of a member of the Eaton Group or the Axcelis Technologies Group that primarily
relates to the Axcelis Technologies Business, whenever arising, against any
Person other than a member of the Eaton Group or the Axcelis Technologies Group,
if and to the extent that (i) such claim or right arises out of events, acts or
omissions occurring on or before the Separation Date (based on then existing
law) and (ii) the existence or scope of the obligation of such other Person as
of the Separation Date was not acknowledged, fixed or determined in any material
respect, due to a dispute or other uncertainty as of the Separation Date or as a
result of the failure of such claim or other right to have been discovered or
asserted as of the Separation Date. A claim or right meeting the foregoing
definition shall be considered an Axcelis Technologies Contingent Gain
regardless of whether there was any Action pending, threatened or contemplated
as of the Separation Date with respect thereto. For purposes of the foregoing, a
claim or right shall be deemed to have accrued as of the Separation Date if all
the elements of the claim necessary for its assertion shall have occurred on or
prior to the Separation Date. Notwithstanding the foregoing, none of (i) any
insurance proceeds, (ii) any Excluded Assets, (iii) any reversal of any
litigation or other reserve or (iv) any matters relating to Taxes (which are
governed by the Tax Sharing Agreement) shall be deemed to be an Axcelis
Technologies Contingent Gain.
Section 4.9 Axcelis Technologies Contracts.
"Axcelis Technologies Contracts" means the following contracts and
agreements to which Eaton or any relevant Subsidiary is a party or by which it
or any of its Assets is bound, whether or not in writing, except for any such
contract or agreement that is contemplated to be retained by Eaton or any member
of the Eaton Group pursuant to any express provision of this Agreement or any
other Ancillary Agreement:
(i) any contract or agreement entered into in the name of, or
expressly on behalf of, any division or business unit of or becoming part of,
Axcelis Technologies;
(ii) any contract or agreement that relates primarily to the
Axcelis Technologies Business;
(iii) any contract or agreement that is otherwise expressly
contemplated pursuant to this Agreement, the Separation Agreement or any of the
other Ancillary Agreements to be assigned to Axcelis Technologies;
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(iv) any guarantee, indemnity, representation, warranty or
other liability of any member of the Axcelis Technologies Group or the Eaton
Group in respect of any other Axcelis Technologies Contract, any Axcelis
Technologies Liability or the Axcelis Technologies Business (including
guarantees of financing incurred by customers or other third parties in
connection with purchases of products or services from the Axcelis Technologies
Business); and
(v) any Axcelis Technologies OFL.
Section 4.10 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 4.11 Axcelis Technologies OFLs.
"Axcelis Technologies OFLs" means all liabilities, obligations,
contingencies, instruments and other Liabilities relating to the Axcelis
Technologies Business of a financial nature with third parties existing on the
Separation Date, including any of the following:
(i) foreign exchange contracts;
(ii) letters of credit;
(iii) guarantees of third party loans to customers;
(iv) surety bonds (excluding surety for workers' compensation
self-insurance);
(v) interest support agreements on third party loans to
customers;
(vi) performance bonds or guarantees issued to third parties;
(vii) swaps or other derivatives contracts; and
(viii) recourse arrangements on the sale of receivables or
notes.
Section 4.12 Contracts.
"Contracts" means any contract, agreement, lease, license, sales order,
purchase order, instrument or other commitment that is binding on any Person or
any part of its property under applicable law.
Section 4.13 Distribution.
"Distribution" means the divestiture by Eaton of Axcelis Technologies
approximately six months following the IPO by means of a distribution of all of
the common stock of Axcelis
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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.
Section 4.14 Eaton Group.
"Eaton 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 that becomes a Subsidiary or Affiliated Company of Eaton after the
Separation Date.
Section 4.15 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 4.16 Governmental Authority.
"Governmental Authority" means any federal, state, local, foreign or
international court, government, department, commission, board, bureau, agency,
official or other regulatory, administrative or governmental authority.
Section 4.17 Indemnification and Insurance Matters Agreement.
"Indemnification and Insurance Matters Agreement" means the
Indemnification and Insurance Matters Agreement which is an Exhibit to the
Separation Agreement.
Section 4.18 Insurance Policies.
"Insurance Policies" means insurance policies pursuant to which a
Person makes a true risk transfer to an insurer which is not part of the Eaton
Group.
Section 4.19 Insured Axcelis Technologies Liabilities.
"Insured Axcelis Technologies Liabilities" means any Axcelis
Technologies Liability to the extent that (i) it is covered under the terms of
Eaton's Insurance Policies in effect prior to the Distribution Date and (ii)
Axcelis Technologies is not a named insured under, or otherwise directly
entitled to the benefits of, such Insurance Policies.
Section 4.20 Intellectual Property.
"Intellectual Property" means all domestic and foreign patents and
patent applications, together with any continuations, continuations-in-part or
divisional applications thereof, and all patents issued thereon (including
reissues, renewals and re-examinations of the foregoing); invention disclosures;
mask works; copyrights, and copyright applications and registrations; domain
names, trademarks, service marks, trade names, and trade dress, in each case
together with any applications and registrations therefor and all appurtenant
goodwill relating thereto; trade secrets; commercial and technical information,
know-how, proprietary or confidential
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information, including engineering, production and other designs, notebooks,
processes, drawings, specifications, formulae, and technology; computer and
electronic data processing programs and software (object and source code), data
bases and documentation thereof; inventions (whether patented or not); utility
models; registered designs, certificates of invention and all other intellectual
property under the laws of any country throughout the world.
Section 4.21 IPO.
"IPO" has the meaning set forth in the recitals to the Separation
Agreement.
Section 4.22 IPO Registration Statement.
"IPO Registration Statement" means the registration statement on Form
S-1 under the Securities Act of 1933, as amended, as filed with the Securities
and Exchange Commission registering the shares of Axcelis Technologies Common
Stock to be issued in the IPO, together with all amendments thereto.
Section 4.23 Liabilities.
"Liabilities" means all debts, liabilities, payables, claims,
litigation, guarantees, assurances, commitments and obligations of any nature
whatsoever, whether fixed, contingent or absolute, asserted or unasserted,
matured or unmatured, liquidated or unliquidated, accrued or not accrued, known
or unknown, due or to become due, whenever or however arising (including without
limitation whether arising out of any Contract or tort based on negligence or
strict liability) and whether or not the same would be required by generally
accepted accounting principles and accounting policies to be reflected in
financial statements or disclosed in the notes thereto.
Section 4.24 Local Transfer Agreements.
"Local Transfer Agreements" means the agreements necessary to effect
the Non-US Plan.
Section 4.25 Non-US Plan.
"Non-US Plan" means the Non-US Plan which is an Exhibit to the
Separation Agreement.
Section 4.26 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 4.27 Security Interest.
"Security Interest" means any mortgage, deed of trust, security
interest, pledge, lien, charge, claim, option, right of any sort to acquire or
of first refusal, voting or other restriction,
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right-of-way, covenant, condition, easement, encroachment, restriction on
transfer, or other encumbrance of any nature whatsoever.
Section 4.28 Separation.
"Separation" has the meaning set forth in the recitals to the
Separation Agreement.
Section 4.29 Separation Date.
"Separation Date" means the effective date of the Separation as set
forth in the Separation Agreement.
Section 4.30 Subsidiary.
"Subsidiary" of any Person means any corporation or other organization,
whether incorporated or unincorporated, of which at least a majority of the
securities or interest 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. For purposes of this Agreement, Sumitomo Eaton Nova Corporation is a
Subsidiary of Eaton prior to the transfer of Eaton's share ownership thereof to
Axcelis Technologies,and thereafter is a Subsidiary of Axcelis Technologies.
Section 4.31 Taxes.
"Taxes" has the meaning set forth in the Tax Sharing Agreement.
Section 4.32 Tax Sharing Agreement.
"Tax Sharing Agreement" means the Tax Sharing and Indemnification
Agreement which is an Exhibit to the Separation Agreement.
[Rest of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be executed on its behalf by its duly authorized officers or
representatives on the date first above written.
AXCELIS TECHNOLOGIES, INC.
By: By:
--------------------------------- -----------------------------
Name: Name:
------------------------------- ---------------------------
Title: Title:
------------------------------ --------------------------
EATON CORPORATION
By: By:
--------------------------------- -----------------------------
Name: Name:
------------------------------- ---------------------------
Title: Title:
------------------------------ --------------------------
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