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EXHIBIT 2.6
FORM OF TRANSITIONAL SERVICES AGREEMENT
BETWEEN
EATON CORPORATION
AND
AXCELIS TECHNOLOGIES, INC.
dated
June ____, 2000
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FORM OF TRANSITIONAL SERVICES AGREEMENT
This Transitional Services Agreement ("Agreement") is made and entered
into on June ____, 2000 by and between Eaton Corporation, an Ohio corporation
(which, together with its Subsidiaries, is herein referred to as "Eaton"), and
Axcelis Technologies, Inc., a Delaware corporation (which, together with its
Subsidiaries, is herein referred to as "Axcelis"), to be effective on the
Separation Date as defined in the Separation Agreement.
In consideration of the covenants and agreements set forth below, Eaton
and Axcelis, intending to be legally bound, hereby agree as follows:
ARTICLE 1
DEFINITIONS
For the purpose of this Agreement, the following capitalized terms
shall have the following meanings:
1.1 ADDITIONAL SERVICES. "Additional Services" shall have the meaning
set forth in Section 3.4.
1.2 ANCILLARY AGREEMENTS. "Ancillary Agreements" shall have the meaning
set forth in the Separation Agreement.
1.3 AXCELIS SERVICE(S). "Axcelis Service(s)" shall have the meaning set
forth in Section 3.1.
1.4 DISTRIBUTION DATE. "Distribution Date" shall have the meaning set
forth in the Separation Agreement.
1.5 IMPRACTICABLE. "Impracticable" shall have the meaning set forth in
Section 3.2.
1.6 SEPARATION AGREEMENT. " Separation Agreement" shall mean that
certain Master Separation and Distribution Agreement dated June ____, 2000
between Eaton and Axcelis.
1.7 SEPARATION DATE. "Separation Date" shall mean 11:59 p.m., June 30,
2000, and have such additional meaning and conditions as set forth in the
Separation Agreement.
1.8 SERVICE(S). "Service(s)" shall have the meaning set forth in
Section 3.1.
1.9 SOFTWARE. "Software" means Eaton's software program(s), whether
owned or licensed by Eaton, listed and described in the relevant Transition
Service Schedule.
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1.10 SOURCE CODE. "Source Code" means any human readable code,
including interpreted code, of Eaton, listed and described in the relevant
Transition Service Schedule.
1.11 SOURCE CODE DOCUMENTATION. "Source Code Documentation" means the
manuals and other documentation that are reasonably necessary to use the Source
Code licensed herein, including those items listed and described in the relevant
Transition Service Schedule hereto.
1.12 SUBSIDIARY. "Subsidiary" of any entity means any 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 entity and/or
by any one or more of its Subsidiaries; provided that no entity that is not
directly or indirectly wholly-owned by any other entity shall be a Subsidiary of
such other entity unless such other entity controls, or has the right, power or
ability to control, that entity. For purposes of this Agreement, Axcelis shall
be deemed not to be a subsidiary of Eaton, and Sumitomo Eaton Nova Corporation
shall not be a Subsidiary of either party.
ARTICLE 2
TRANSITION SERVICE SCHEDULES
This Agreement will govern individual transitional services as
requested by Axcelis and provided by Eaton, the details of which are set forth
in the Transition Service Schedules attached to this Agreement. Each Service
shall be covered by this Agreement upon execution of a transition service
schedule in the form attached hereto (each transition service schedule, a
"Transition Service Schedule").
For each Service, the parties shall set forth, among other things, the
time period during which the Service will be provided (if different from the
term of this Agreement determined pursuant to Article 4), a summary of the
Service to be provided, a description of the Service, and the charge, if any,
for the Service and any other terms applicable thereto on the Transition Service
Schedule. Obligations regarding each Transition Service Schedule shall be
effective upon the Separation Date. This Agreement and all the Transition
Service Schedules shall be defined as the "Agreement" and incorporated herein
wherever reference to it is made.
ARTICLE 3
SERVICES
3.1 SERVICES GENERALLY. Except as otherwise provided herein, for the
term determined pursuant to Article 4, Eaton shall provide or cause to be
provided to Axcelis the service(s) described in the Transition Service
Schedule(s) attached hereto. The service(s) described in a single Transition
Service Schedule shall be referred to herein as a "Service", and,
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collectively, the services described in all the Transition Service Schedules
(including Additional Services) shall be referred to herein as "Services."
During the term of this Agreement, Axcelis shall continue to provide or cause to
be provided to Eaton any services being so provided on the Separation Date
("Axcelis Service(s)").
3.2 IMPRACTICABILITY. Neither party hereto shall be required to provide
any service to the extent the performance of such service becomes
"Impracticable" as a result of a cause or causes outside the reasonable control
of such party, including without limitation unfeasible technological
requirements, or to the extent the performance of such services would violate
any applicable laws, rules, regulations or existing written policies of such
parties or would breach any software license or other applicable contract.
3.3 ADDITIONAL RESOURCES. Except as provided in a Transition Service
Schedule for a specific Service, in providing the Services, Eaton shall not be
obligated to: (i) hire any additional employees or contract workers; (ii)
maintain the employment of any specific employee; (iii) purchase, lease or
license any additional equipment or software; or (iv) pay any costs related to
the transfer or conversion of data or any alternate supplier of Services.
3.4 ADDITIONAL SERVICES. From time to time after the Separation Date,
the parties may identify additional services that one party will provide to the
other party in accordance with the terms of this Agreement (the "Additional
Services"). Accordingly, the parties shall execute additional Transition Service
Schedules for such Additional Services pursuant to Article 2. Except as set
forth in Section 3.5, the parties may agree in writing on Additional Services
during the term of this Agreement.
3.5 OBLIGATIONS AS TO ADDITIONAL SERVICES. Except as set forth in the
next sentence, Eaton shall be obligated to perform, at a charge determined using
the principles for determining fees under Section 5.1, any Additional Service
that: (a) was provided by Eaton immediately prior to the Separation Date and
that was inadvertently or unintentionally omitted from the list of Services, or
(b) is essential to effectuate an orderly transition under the Separation
Agreement, unless such performance would significantly disrupt Eaton's
operations or materially increase the scope of its responsibilities under this
Agreement. If Eaton reasonably believes the performance of Additional Services
required under clauses (a) or (b) of the preceding sentence would significantly
disrupt its operations or materially increase the scope of its responsibilities
under this Agreement, Eaton and Axcelis shall negotiate in good faith to
establish terms under which Eaton can provide such Additional Services, but
Eaton shall not be obligated to provide such Additional Services if, following
good faith negotiation, Eaton and Axcelis are unable to reach agreement on such
terms.
ARTICLE 4
TERM
The term of this Agreement shall commence on the Separation Date and
shall remain in effect until one (1) year after the Distribution Date (the
"Expiration Date"), unless earlier
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terminated under Article 7. This Agreement may be extended for up to one (1)
additional year by the parties in writing, either in whole or with respect to
one or more of the Services; provided that such extension shall only apply to
the Services for which the Agreement was extended and only to the extent
permissible by U.S. tax laws in order to maintain the tax-free status of the
Distribution (as defined in the Separation Agreement). The parties shall be
deemed to have extended this Agreement with respect to a specific Service if the
Transition Service Schedule for such Service specifies a completion date beyond
the aforementioned Expiration Date. The parties may agree on an earlier
expiration date respecting a specific Service by specifying such date on the
Transition Service Schedule for that Service. Services shall be provided up to
and including the dates established pursuant to this Article 4.
ARTICLE 5
COMPENSATION
5.1 CHARGES FOR SERVICES. Each party shall pay the other party the
charges, if any, set forth on the Transition Service Schedules for each of the
Services listed therein as adjusted, from time to time, in accordance with the
processes and procedures established under Section 5.4 and Section 5.5. Such
charges shall include the direct costs, as determined using the process
described in such Transition Service Schedule, and indirect costs of providing
the Services plus any mark-up specified in such Transitional Service Schedule,
unless specifically indicated otherwise on a Transition Service Schedule.
However, if the term of this Agreement is extended beyond the Expiration Date as
provided in Article 4, Axcelis will reimburse Eaton such costs plus any mark-up
specified in such Transitional Service Schedule for the Services unless the
Transition Service Schedule for such Service indicates it is to extend beyond
the Expiration Date. The parties shall use good faith efforts to discuss any
situation in which the actual charge for a Service is reasonably expected to
exceed the estimated charge, if any, set forth on a Transition Service Schedule
for a particular Service; provided that the incurring of charges in excess of
any such estimate on such Transition Service Schedule shall not justify stopping
the provision of, or payment for, Services under this Agreement.
5.2 PAYMENT TERMS. The party providing services shall bill the party
receiving the services monthly for all charges pursuant to this Agreement. Such
bills shall be accompanied by reasonable documentation or other reasonable
explanation supporting such charges. Payment for all services provided hereunder
shall be made within thirty (30) days after receipt of an invoice therefor. Late
payments shall bear interest at the lesser of 12% per annum or the maximum rate
allowed by law.
5.3 PERFORMANCE UNDER ANCILLARY AGREEMENTS. Notwithstanding anything to
the contrary contained herein, neither party shall be charged under this
Agreement for any obligations that are specifically required to be performed
under the Separation Agreement or any Ancillary Agreement, and any such other
obligations shall be performed and charged for (if applicable) in accordance
with the terms of the Separation Agreement or such Ancillary Agreements.
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5.4 ERROR CORRECTION; TRUE-UPS; ACCOUNTING. The parties shall
reasonably agree on a process and procedure for conducting internal audits of
variable payments that are not "fixed" and making adjustments to charges as a
result of the movement of employees and functions between parties, the discovery
of errors or omissions in charges, and a true-up of amounts owed. Any such
internal audits must be completed within one (1) year after completion of a
Service.
5.5 PRICING ADJUSTMENTS. In the event of a tax audit adjustment
relating to the pricing of any or all Services provided pursuant to this
Agreement in which it is determined by a taxing authority that any of the
charges, individually or in combination, did not result in an arm's-length
payment, then the parties, including any Eaton subcontractor providing Services
hereunder, shall agree to make corresponding adjustments to the charges in
question for such period to the extent necessary to achieve arm's-length
pricing. Any adjustment made pursuant to this Section 5.5 at any time during the
term of this Agreement or after termination of this Agreement shall be reflected
in the parties' legal books and records, and the resulting underpayment or
overpayment shall create, respectively, an obligation to be paid in the manner
specified in Section 5.2, or a credit against amounts owed under this Agreement.
ARTICLE 6
GENERAL OBLIGATIONS; STANDARD OF CARE
6.1 PERFORMANCE BY EATON. Subject to Section 3.3 and any other terms
and conditions of this Agreement, Eaton shall maintain sufficient resources to
perform its obligations hereunder. Specific performance metrics for Eaton for a
specific Service may be set forth in the corresponding Transition Service
Schedule. Where none is set forth, Eaton shall use reasonable efforts to provide
Services in accordance with its policies, procedures and practices in effect
immediately before the Separation Date and shall exercise the same care and
skill as it exercises in performing similar services for itself.
6.2 DISCLAIMER OF WARRANTIES. EATON MAKES NO WARRANTIES, EXPRESS,
IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO THE
SERVICES, SOFTWARE OR OTHER DELIVERABLES PROVIDED BY IT HEREUNDER.
6.3 PERFORMANCE BY AXCELIS. Specific performance requirements for
Axcelis for a specific Service may be set forth in the corresponding Transition
Service Schedule. Where none is set forth, Axcelis shall use reasonable efforts,
in connection with receiving services, to follow the policies, procedures and
practices in effect immediately before the Separation Date, including without
limitation providing information and documentation sufficient for Eaton to
perform the Services as they were performed immediately before the Separation
Date and making available, as reasonably requested by Eaton, sufficient
resources and timely decisions, approvals and acceptances in order that Eaton
may accomplish its obligations hereunder in a timely manner.
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6.4 TRANSITIONAL NATURE OF SERVICES; CHANGES. The parties acknowledge
the transitional nature of the Services and that Eaton may make changes from
time to time in the manner of performing the Services if Eaton is making similar
changes in performing similar services for itself and if Eaton furnishes to
Axcelis thirty (30) days' advance written notice regarding such changes.
6.5 RESPONSIBILITY FOR ERRORS; DELAYS. Eaton's sole responsibility and
liability to Axcelis:
(a) for errors or omissions in Services, shall be to correct the
services, to the extent reasonably possible or to return to Axcelis the amount
charged for the Services; provided that Axcelis must promptly advise Eaton of
any such error or omission of which Axcelis becomes aware after having used
reasonable efforts to detect any such errors or omissions; and
(b) for failure to deliver any Service on time because of
Impracticability, shall be to use reasonable commercial efforts, subject to
Section 3.2, to make the Services available and/or to resume performing the
Services as promptly as reasonably practicable.
6.6 GOOD FAITH COOPERATION; CONSENTS. The parties will use good faith
efforts to cooperate with each other in all matters relating to the provision
and receipt of Services. Such cooperation shall include exchanging information,
performing true-ups and adjustments, and obtaining (through reasonable
commercial efforts) all third party consents, licenses, sublicenses or approvals
necessary to permit each party to perform its obligations hereunder (including,
by way of example and not by way of limitation, rights to use third party
software needed for the performance of Services). The reasonable out-of-pocket
costs incurred by either party in obtaining such third party consents, licenses,
sublicenses or approvals shall be borne by Axcelis. Each of the parties will
maintain, in accordance with its standard document retention procedures,
documentation supporting the information relevant to cost calculations contained
in the Transition Service Schedules and will cooperate with each other in making
such information available as needed in the event of a tax audit, whether in the
United States or any other country.
6.7 ALTERNATIVES. If Eaton reasonably believes it is unable to provide
any Service because of the inability to obtain necessary consents, licenses,
sublicenses or approvals pursuant to Section 6.6 or because of Impracticability,
the parties shall cooperate to determine the best alternative approach. Until
such alternative approach is found or the problem is otherwise resolved to the
satisfaction of the parties, Eaton shall use reasonable commercial efforts,
subject to Section 3.2 and Section 3.3, to continue providing the Service. To
the extent an agreed-upon alternative approach requires payment above and beyond
that which is included in Eaton's charge for the Service in question, the
parties shall share equally in making any such payment unless they otherwise
agree in writing.
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ARTICLE 7
TERMINATION
7.1 TERMINATION. Subject to any specific notice provision or
termination provision contained in the applicable Transition Service Schedule,
Axcelis may terminate this Agreement, either with respect to all or with respect
to any one or more of the Services provided to Axcelis hereunder, for any reason
or for no reason, at any time upon sixty (60) days' prior written notice to
Eaton, subject to the requirement that Axcelis pay Eaton the costs, if any,
associated with such termination. In addition, subject to the provisions of
Article 15, either party may terminate this Agreement with respect to a specific
Service if the other party materially breaches a material provision with regard
to that particular Service and does not cure such breach (or does not take
reasonable steps required under the circumstances to cure such breach going
forward) within sixty (60) days after being given notice of the breach; provided
that the non-terminating party may request that the parties engage in a dispute
resolution negotiation as specified in Article 15 prior to termination for
breach.
7.2 SURVIVAL. Those Sections of this Agreement that, by their nature,
are intended to survive termination will survive in accordance with their terms.
Notwithstanding the foregoing, in the event of any termination with respect to
one or more, but less than all Services, this Agreement shall continue in full
force and effect with respect to any Services not terminated.
7.3 USER IDS AND PASSWORDS. The parties shall use good faith efforts at
the termination or expiration of this Agreement or any specific Service to
ensure that all applicable user IDs and passwords are canceled.
ARTICLE 8
RELATIONSHIP BETWEEN THE PARTIES
The relationship between the parties established under this Agreement
is that of independent contractors, and neither party is an employee, agent,
partner, or joint venturer of or with the other. As between Eaton and Axcelis,
Eaton will be solely responsible for any employment-related taxes, insurance
premiums or other employment benefits respecting its personnel's performance of
Services under this Agreement, subject to any payment or reimbursement
obligation of Axcelis hereunder. Axcelis will grant Eaton personnel access to
sites, systems and information (subject to the provisions of confidentiality in
Article 13) as necessary for Eaton to perform its obligations hereunder. Eaton
will instruct its personnel to obey any and all security regulations and other
published policies of Axcelis regarding access to Axcelis' facilities.
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ARTICLE 9
SUBCONTRACTORS
Eaton may engage a subcontractor to perform all or any portion of
Eaton's duties under this Agreement; provided that any such subcontractor agrees
in writing to be bound by confidentiality obligations at least as protective as
the terms of Article 13 regarding confidentiality; and, provided, further, that
Eaton remain responsible for the performance of such subcontractor. As used in
this Agreement, subcontractor will mean any individual, partnership,
corporation, firm, association, unincorporated organization, joint venture,
trust or other entity engaged to perform a service hereunder.
ARTICLE 10
INTELLECTUAL PROPERTY
10.1 ALLOCATION OF RIGHTS BY ANCILLARY AGREEMENTS. This Agreement and
the performance of this Agreement will not affect the ownership of any patents,
trademarks, patent applications, trademark applications, trade secrets,
servicemarks, domain names, copyrights or other intellectual property rights to
the extent that they are the subject of any provision in any other of the
Ancillary Agreements.
10.2 EXISTING OWNERSHIP RIGHTS UNAFFECTED. Neither party will gain, by
virtue of this Agreement, any rights of ownership of copyrights, patents and
applications, trade secrets, trademarks and applications, domain names or any
other intellectual property rights owned by the other.
10.3 OWNERSHIP OF DEVELOPED WORKS. Subject to Section 10.2, Eaton will
continue to own, to the same extent as exists immediately after the Separation
Date, all copyrights, patents and patent applications, trade secrets, trademarks
and trademark applications, domain names and other intellectual property rights
subsisting in or arising from the Software Deliverables (as defined in Section
11.1) and other preexisting works developed by or for Eaton.
10.4 LICENSE TO PREEXISTING WORKS. Axcelis grants Eaton a
non-exclusive, worldwide, royalty-free license to use, copy, make derivative
works of, distribute, display, perform and transmit Axcelis' preexisting
copyrighted works or other intellectual property rights solely to the extent
necessary to perform its obligations under this Agreement.
ARTICLE 11
SOFTWARE LICENSE
11.1 SOFTWARE DELIVERABLE/LICENSE. Unless otherwise agreed by the
parties under the Ancillary Agreements or any separate license or technology
agreement, if Eaton supplies Axcelis with a deliverable that in whole or in part
consists of software, firmware, or
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other computer code (referred to as a "Software Deliverable") as indicated in a
Transition Service Schedule, such Software Deliverable will be supplied in any
form in which it exists and will be subject to the terms of this Article 11. In
the event that any such Software Deliverable is licensed to Eaton by third
parties, Axcelis shall be bound by any conditions that are required by such
third parties.
11.2 DELIVERY AND ACCEPTANCE.
(a) DELIVERY. To the extent permitted under any agreement with a third
party owner or licensor of the Software, Eaton will deliver to Axcelis one (1):
(i) master copy of the Software in any form in which it exists (as specified on
the relevant Transition Service Schedule of the Agreement) on the media
described on the relevant Transition Service Schedule and (ii) Documentation for
the Software on the media described in the relevant Transition Service Schedule
((i) and (ii) collectively a "Complete Copy") as listed in the relevant
Transition Service Schedule no later than ten (10) days after the Separation
Date (or any other start date as specifically indicated in the relevant
Transition Service Schedule). If Source Code is licensed under this Agreement,
Eaton will deliver one (1) copy of such Source Code no later than ten (10) days
after the Separation Date (or any other start date as specifically indicated in
the relevant Transition Service Schedule). Additional Software or Source Code
may be added to this Agreement from time to time by execution by the parties of
a Transition Service Schedule.
(b) ACCEPTANCE OF SOFTWARE (NON-SOURCE CODE). Axcelis will have thirty
(30) days from the date of receipt of a Complete Copy of the Software to
evaluate the Software for conformity with the manuals and other documentation
that Eaton and/or the Software owner or licensor makes available with the
Software to end users, including those items listed and described in the
relevant Transition Service Schedule (the "Documentation") and specifications,
and either to accept the Software, to return the Software for rework to Eaton,
if Eaton owns the Software, or to the licensor, if licensed to Eaton (provided
that the Software has not previously been reworked), or to reject the Software.
Axcelis shall accept the Software if it substantially conforms with
Documentation and specifications. Axcelis will be entitled to test and evaluate
the Software, and Eaton hereby grants to Axcelis the right to use and reproduce
the Software only to the extent necessary for Axcelis to perform its evaluation
and only to the extent permitted under the applicable Software license
agreement. Such license will include the right of Axcelis to use third party
subcontractors bound by the relevant restrictions herein solely as necessary to
achieve the foregoing. If Axcelis returns the Software for rework, Eaton will
use reasonable commercial efforts to correct or have the licensor thereof
correct the identified defects and resubmit the Software for reevaluation under
the same acceptance procedure. In the event Axcelis rejects the Software a
second time, this Agreement will terminate with respect to that Software.
Payment due from Axcelis to Eaton under a Transition Service Schedule that
includes Software to be licensed shall be reduced by the pro rata portion of
compensation attributable to the rejected Software, unless the Software has been
accepted by Axcelis in writing or Axcelis fails to reject the Software within
such thirty (30) day period.
(c) ACCEPTANCE OF SOURCE CODE. The Source code is provided "as is" and
for Axcelis' reference only and is subject to the limitations in Section 11.3.
The Source Code
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may not be accepted or rejected according to the provisions in Section 11.2(b).
If Axcelis rejects the Source Code, Axcelis must destroy all copies of such
rejected Source Code and promptly furnish evidence of such rejection and
destruction to Eaton.
11.3 RIGHTS GRANTED AND RESTRICTIONS.
(a) LICENSE TO SOFTWARE. Subject to the terms and conditions of this
Agreement and the terms and conditions of any applicable software license
agreements with third parties, Eaton hereby grants to Axcelis, under Eaton's
intellectual property rights in and to the Software, a royalty-free,
nonexclusive, nontransferable worldwide license (i) to use and display the
Software for its own internal information processing services and computing
needs and to make sufficient copies as necessary for such use, and (ii) to use
the Documentation in connection with the permitted use of the Software and to
make sufficient copies as permitted and as necessary for such use.
(b) LICENSE TO SOURCE CODE. Subject to the terms and conditions of this
Agreement, Eaton hereby grants to Axcelis, under Eaton's intellectual property
rights in and to the Software, a nonexclusive, nontransferable worldwide license
(i) to use and reproduce (for archival and back-up purposes only), for the sole
purpose of supporting the object code version of the Software (if such object
code exists), or, if no object code exists, for the sole purpose of its own
internal information processing services and computing needs and (ii) to use
Source Code Documentation in connection with the permitted use of the Source
Code and to make copies for archival and back-up purposes only.
(c) RESTRICTIONS. Axcelis shall not itself, nor through any Subsidiary,
affiliate, agent or third party: (i) sell, lease, license or sublicense the
Software, the Source Code, the Documentation or the Source Code Documentation;
(ii) decompile, disassemble, or reverse engineer the Software or Source Code, in
whole or in part, except to the extent such restriction is prohibited by
applicable law; (iii) allow access to the Software or Source Code by any user or
third party other than Axcelis; (iv) write or develop any derivative software or
any other software program based upon the Software or Source Code; (v) use the
Software or Source Code to provide processing services to third parties; (vi)
otherwise use the Software or Source Code on a "service bureau" basis; or (vii)
provide, disclose, divulge or make available to, or permit use of the Software
or Source Code by, any third party without Eaton's prior written consent.
(d) CONFIDENTIALITY. The Source Code and Source Code Documentation are
hereby deemed "Confidential Information" and subject to the terms of Article 13.
(e) TRADEMARKS. Neither party is granted any ownership in or license to
the trademarks, service or certification marks or trade names (collectively,
"Marks") of the other party with respect to the Software.
(f) OWNERSHIP. Eaton hereby reserves all of its rights to the Software,
Source Code and Documentation, and any copyrights, patents or trademarks,
embodied therein or used in connection therewith, except for the rights
expressly granted herein.
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(g) COPYRIGHT NOTICES. Axcelis will not remove any copyright notices,
proprietary markings, trademarks or trade names from the Software, Source Code,
Documentation or Source Code Documentation.
(h) TECHNICAL ASSISTANCE AND TRAINING. Eaton will provide technical
assistance and training to Axcelis personnel only if such assistance is set
forth in the relevant Transition Service Schedule.
11.4 AS-IS WARRANTY.
(a) AS-IS WARRANTY. The Software and Source Code provided hereunder is
licensed on an "as-is" basis only, without any express warranties of any kind.
(b) IMPLIED WARRANTY DISCLAIMER. Eaton makes no warranties whatsoever,
either express or implied, regarding the Software or Source Code (including
Documentation), its merchantability or its fitness for any particular purpose.
11.5 MISCELLANEOUS.
(a) NO OBLIGATIONS. Neither party assumes any responsibility or
obligations whatever, other than the responsibilities and obligations expressly
set forth in this Agreement or a separate written agreement between the parties.
(b) NON-RESTRICTIVE RELATIONSHIP. This Agreement shall not be construed
to preclude Axcelis from independently developing, acquiring or marketing
computer software packages which may perform the same or similar functions as
the Software provided by Eaton.
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ARTICLE 12
INDEMNIFICATION
To the extent Eaton delivers or licenses any of its intellectual
property or that of a third party to Axcelis after the Separation Date in
performance of this Agreement, such delivery or license is on an "AS IS" basis,
and Eaton shall not be responsible for any claims, actions or suits (any of the
foregoing, a "Claim") incurred by or asserted against Axcelis based upon
infringement of a third party patent or other intellectual property right.
Axcelis will notify Eaton promptly of any Claim and permit Eaton at Axcelis'
expense to defend such Claim and will cooperate in the defense thereof. Axcelis
will not enter into or permit any settlement of any such Claim without the
express written consent of Eaton. Axcelis may, at its option and expense, have
its own counsel participate in any proceeding that is under the direction of
Eaton and will cooperate with Eaton and its insurer (if any) in the disposition
of any such matter. To the extent that any action or failure to act by Axcelis
with respect to any software results in any claims, actions, suits, liabilities,
damages, costs or penalties or the like, notwithstanding the provisions of
Section 16.1, Axcelis shall defend, indemnify and hold harmless Eaton and its
directors, officers, employees and agents with respect thereto.
ARTICLE 13
CONFIDENTIALITY
13.1 DEFINITION. The term "Confidential Information," as used in this
Agreement, shall mean any information, whether in oral or written form, which
has been, or will hereafter be, furnished or disclosed by a party hereto
("Disclosing Party") to the other party hereto ("Recipient Party") or to the
Recipient Party's directors, officers, employees, agents, lenders and other
representatives, including without limitation independent attorneys, financial
advisers, independent accountants and actuaries (such directors, officers,
employees, agents, lenders and other representatives collectively are
hereinafter referred to as "Authorized Representatives"), including without
limitation information pertaining to the business, financial condition,
operations, properties, technical information and prospects of the Disclosing
Party. However, the term "Confidential Information" excludes information which:
(a) was generally available to the public at the time of receipt by the
Recipient Party or its Authorized Representatives or subsequently became
generally available to the public other than by disclosure by the Recipient
Party or its Authorized Representatives; (b) was in the possession of the
Recipient Party on a nonconfidential basis from any third party prior to the
time of receipt from the Disclosing Party; (c) becomes available to the
Recipient Party on a nonconfidential basis from a non-affiliated third party who
does not thereby breach a contractual, fiduciary or other legal obligation to
the Disclosing Party; or (d) was developed independently by the Recipient Party
without reference to Confidential Information or other information disclosed to
it by the Disclosing Party.
13.2 OBLIGATIONS. For a period of five (5) years from the date of
disclosure of Confidential Information:
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A. The Recipient Party shall not disclose, reveal or permit
others to have access to any Confidential Information, except
for a limited group of the Recipient Party's Authorized
Representatives who reasonably need to know the Confidential
Information in connection with this Agreement;
B. The Recipient Party and the Recipient Party's Authorized
Representatives shall use the Confidential Information only
for the purpose of this Agreement and in no event shall use
any Confidential Information for any other purpose whatsoever.
The Recipient Party will (i) inform each of the Recipient
Party's Authorized Representatives receiving Confidential
Information of the confidential nature of such Information and
of this Agreement, (ii) direct the Recipient Party's
Authorized Representatives to treat the information
confidentially and not use it other than as permitted in
accordance with this Agreement, and (iii) be responsible for
any improper use of the Confidential Information by the
Recipient Party or the Recipient Party's Authorized
Representatives (including without limitation the Recipient
Party's Authorized Representatives who, subsequent to the
first date of disclosure of Confidential Information
hereunder, become the Recipient Party's former Authorized
Representatives). The Recipient Party shall, at the Recipient
Party's sole expense, take all reasonable measures, including
without limitation court proceedings, to restrain the
Recipient Party's Authorized Representatives and former
Authorized Representatives from unauthorized disclosure or use
of the Confidential Information;
C. If the Recipient Party or any of the Recipient Party's
Authorized Representatives are requested or required (by
interrogatories, subpoena or other judicial process) to
disclose any of the Confidential Information to a court,
government agency or others, the Recipient Party will promptly
notify the Disclosing Party of such request or requirement so
that the Disclosing Party may seek an appropriate protective
order or similar court order or waive compliance with the
provisions of this Agreement. In this connection, it is agreed
that if, in the absence of a protective order or similar court
order or receipt of a waiver hereunder, the Recipient Party is
nonetheless, in the written opinion of the Recipient Party's
attorneys addressed to the Disclosing Party, compelled at that
time to disclose Confidential Information to the court,
government agency or others or else stand liable for contempt
or suffer other censure or penalty, the Recipient Party may
disclose to such court, government agency or others, only that
part of such Confidential Information as is required by law to
be disclosed, and the Recipient Party shall use its best
efforts at the Disclosing Party's expense to obtain a
protective order or other reliable assurance of confidential
treatment therefor.
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ARTICLE 14
FORCE MAJEURE
Each party will be excused for any failure or delay in performing any
of its obligations under this Agreement, other than the obligations of Axcelis
to make certain payments to Eaton pursuant to Article 5 for services rendered,
if such failure or delay is caused by Force Majeure. "Force Majeure" means any
act of God or the public enemy, any accident, explosion, fire, storm,
earthquake, flood or any other circumstance or event beyond the reasonable
control of the party relying upon such circumstance or event.
ARTICLE 15
DISPUTE RESOLUTION
15.1 MEDIATION. If a dispute, controversy or claim ("Dispute") arises
between the parties relating to the interpretation or performance of this
Agreement, or the grounds for the termination hereof, appropriate senior
executives of each party who shall have the 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 nonbinding 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 nonbinding
or binding ADR.
15.2 ARBITRATION. 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
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 arbitrator
shall be
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final and nonappealable 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.
15.3 COURT ACTION. 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 the above procedures, while such court action is pending.
15.4 CONTINUITY OF SERVICE AND PERFORMANCE. Unless otherwise agreed in
writing, the parties will continue to provide service and to honor all other
commitments under the Separation Agreement, this Agreement and the other
Ancillary Agreements during the course of dispute resolution pursuant to the
provisions of this Article 15 with respect to all matters not subject to such
dispute, controversy or claim.
ARTICLE 16
MISCELLANEOUS
16.1 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 EATON GROUP OR THE AXCELIS GROUP (AS SUCH TERMS
ARE DEFINED IN THE SEPARATION AGREEMENT) BE LIABLE TO ANY OTHER MEMBER OF THE
EATON GROUP OR THE AXCELIS 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 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.
16.2 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 (as such term is defined in the Separation Agreement)
otherwise provides) shall be construed in accordance with, and all Disputes
hereunder or thereunder shall be governed by, the 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.
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16.3 TERMINATION. This Agreement and all Ancillary Agreements may be
terminated and the IPO abandoned at any time prior to the IPO Closing (as the
terms "IPO" and "IPO Closing" are defined in the Separation Agreement) by and in
the sole discretion of Eaton without the consent of Axcelis. 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.
In the event of termination pursuant to this Section 16.3, no party shall have
any liability of any kind to the other party.
16.4 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
Eaton Corporation
Eaton Center
1111 Superior Avenue
Cleveland, Ohio 44114
Fax: (216) 479-7103
if to Axcelis:
Chief Executive Officer
Axcelis Technologies, Inc.
55 Cherry Hill Drive
Beverly, Massachusetts 01915
Fax: (978) 232-4221
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 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.
16.5 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.
16.6 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 assigns. This Agreement may be enforced
separately by each member of the Eaton Group and each member of the Axcelis
Group. Neither party may assign this Agreement or any Ancillary Agreement or any
rights or obligations hereunder, or thereunder without the prior written consent
of the other party, and any such assignment shall be void. No
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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.
16.7 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.
16.8 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 which 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 Agreement are cumulative to, and not exclusive
of, any rights or remedies otherwise available.
16.9 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 on behalf of each of the
parties thereto.
16.10 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 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.
16.11 INTERPRETATION. The headings contained in this Agreement and the
Ancillary Agreements and in the tables of contents to this Agreement and the
Ancillary
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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.
16.12 CONFLICTING AGREEMENTS. In the event of conflict between this
Agreement and any Ancillary Agreement or other document executed in connection
herewith, the provisions of such other agreement or document shall prevail.
16.13 PUBLIC ANNOUNCEMENTS. Through the Distribution Date, Eaton shall
determine the contents of all press releases to be issued by either of the
parties upon and after the execution of this Agreement, after consultation with
Axcelis, including without limitation, any termination of this Agreement for any
reason, and such press release shall be consistent with the respective
disclosure obligations of the parties.
16.14 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 the arbitration or
litigation thereof.
16.15 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 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.
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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.
EATON CORPORATION AXCELIS TECHNOLOGIES, INC.
By:___________________________________ By:___________________________________
Name:_________________________________ Name:_________________________________
Title:________________________________ Title:________________________________
By:___________________________________ By:___________________________________
Name:_________________________________ Name:_________________________________
Title:________________________________ Title:________________________________
[Schedules omitted. The registrant hereby agrees to furnish supplementally,
upon request, a copy of any omitted schedule to this agreement.]
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