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EXHIBIT 2.3
TRADEMARK LICENSE AGREEMENT
THIS AGREEMENT is made this 30th day of June, 2000, between
EATON CORPORATION, a corporation organized and existing under the laws of the
State of Ohio, United States of America, and having its principal place of
business at 1111 Superior Avenue, Eaton Center, Cleveland, Ohio 44114, United
States of America (hereinafter called "EATON"), and AXCELIS TECHNOLOGIES, INC.
(formerly known as Eaton Semiconductor Equipment, Inc.), a corporation organized
and existing under the laws of the State of Delaware, and having executive
offices at 55 Cherry Hill Drive, Beverly, Massachusetts 01915 (hereinafter
called "LICENSEE"). Capitalized terms used herein and not otherwise defined
shall have the meanings ascribed to such terms in Article I hereof.
WITNESSETH:
WHEREAS, EATON manufactures and sells PRODUCTS (as hereinafter defined)
in the United States of America (U.S.A.) and in other countries of the world;
WHEREAS, EATON has adopted and for many years has used the LICENSED
TRADEMARKS (as hereinafter defined) throughout the world in connection with the
PRODUCTS, and EATON is the owner in many countries in the world of registrations
and applications for registration of the LICENSED TRADEMARKS;
WHEREAS, the business of LICENSEE consists of the business and
operations conducted by EATON and its subsidiaries as EATON's Semiconductor
Equipment Operations and LICENSEE desires to use the LICENSED TRADEMARKS in
connection with the PRODUCTS in accordance with the terms and provisions set
forth in this TRADEMARK LICENSE AGREEMENT (hereinafter called this "AGREEMENT");
WHEREAS, EATON is agreeable to such use of LICENSED TRADEMARKS by
LICENSEE on the terms set forth below provided that the LICENSED TRADEMARKS
remain the exclusive property of EATON; and
WHEREAS, EATON has also licensed one or more of the LICENSED TRADEMARKS
in connection with products similar to the PRODUCTS to Sumitomo Eaton Nova
Kabushiki Kaisha (hereinafter called "SEN") subject to and upon the terms of a
Trademark Agreement dated January 16, 1996, as amended (hereinafter called the
"SEN Trademark Agreement"), and EATON has authorized SEN to use "EATON" in its
corporate name, subject to and upon the terms of a Corporate Name Agreement
dated April 1, 1983 (hereinafter called the
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SEN Corporate Name Agreement), and these agreements with SEN have been assigned
by EATON to LICENSEE.
NOW, THEREFORE, in consideration of the promises, terms, covenants and
provisions hereinafter contained, and intending to be legally bound, the parties
hereby agree as follows:
I. DEFINITIONS:
1.01 "PRODUCTS" as used herein shall mean semiconductor
manufacturing equipment including dry strip,
photostabilization, rapid thermal processing, and ion
implantation equipment.
1.02 "LICENSED TRADEMARKS" as used herein shall mean the
following trademarks, all of which are owned exclusively by
EATON:
(i) "EATON" in block, Helvetica or other type letters;
and
(ii) "EATON" in stylized form, also referred to as LOGO or
logomark.
1.03 "SEPARATION DATE" and "SEPARATION AGREEMENT" are
described in Section 3.06 herein.
1.04 "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.
1.05 "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.
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1.06 "SUBSIDIARY" of any PERSON means a corporation or other
organization, whether incorporated or unincorporated, of which
at least a majority of the securities or interests having by
the terms thereof ordinary voting power to elect at least a
majority of the board of directors or others performing
similar functions with respect to such corporation or other
organization is directly or indirectly owned or controlled by
such PERSON and/or by any one or more of its SUBSIDIARIES;
provided that no PERSON that is not directly or indirectly
wholly-owned by any other PERSON shall be a SUBSIDIARY of such
other PERSON unless such other PERSON controls, or has the
right power or ability to control, that PERSON.
1.07 "AXCELIS TECHNOLOGIES GROUP" means the LICENSEE,
SUBSIDIARY and AFFILIATED COMPANY of the LICENSEE immediately
after the SEPARATION DATE or that is contemplated to be a
SUBSIDIARY or AFFILIATED COMPANY of LICENSEE pursuant to the
NON-US PLAN and each PERSON that becomes a SUBSIDIARY or
AFFILIATED COMPANY of LICENSEE after the SEPARATION DATE.
NON-US PLAN is defined in the SEPARATION AGREEMENT.
1.08 "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.
II. GRANT :
2.01 EATON hereby grants to LICENSEE for the term of this
AGREEMENT a worldwide, royalty free, non-exclusive right and
license to use the LICENSED TRADEMARKS in connection with the
PRODUCTS manufactured by or for LICENSEE.
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III. MARKING AND USE:
3.01 LICENSEE may use one or more of the LICENSED TRADEMARKS
(a) on the PRODUCTS and/or packaging for the PRODUCTS, and (b)
in or on literature, signs, stationery, nameplates, labels,
and advertising and promotional materials associated with the
PRODUCTS in such a manner which will at all times preserve the
validity of the LICENSED TRADEMARKS. EATON shall have the
right to review (a) whether and which of the LICENSED
TRADEMARKS will be used by the LICENSEE on the PRODUCTS and/or
on the packaging and (b) the manner in which the LICENSED
TRADEMARKS are affixed or applied to the PRODUCTS and/or the
packaging. Such determination will take into consideration the
type and size of the PRODUCTS. Unless otherwise approved in
writing, all the PRODUCTS, literature, signs, packaging,
stationery, nameplates, labels, advertising and promotional
materials shall include the following notice:
"EATON" is a trademark of and used under
license from Eaton Corporation, U.S.A."
3.02 LICENSEE shall follow the rules and guidelines regarding
form, layout, letter size and colors of the LICENSED
TRADEMARKS as set forth in EATON's Corporate Identity Manual,
including any amendments to said Manual by EATON from time to
time.
3.03 LICENSEE shall not do any act that will in any way impair
or affect the validity of the LICENSED TRADEMARKS.
3.04 LICENSEE shall take all action necessary to satisfy
trademark marking requirements in all countries in which the
LICENSED TRADEMARKS are used.
3.05 LICENSEE further agrees that all use of the LICENSED
TRADEMARKS shall inure to the benefit of EATON.
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3.06 Unless otherwise approved in writing by EATON, LICENSEE
shall not use any trademark, designation or insignia in
combination with the LICENSED TRADEMARKS on the PRODUCTS,
packaging and literature, signs, stationery, nameplates,
labels, and/or advertising and promotional material associated
with the PRODUCTS, except that, for the term of this
AGREEMENT, (i) LICENSEE will be allowed to phase in any
reasonable use of the mark "AXCELIS" with the LICENSED
TRADEMARKS subject to prior review and written approval by
EATON; and (ii) LICENSEE will be allowed to use the LICENSED
TRADEMARKS with other trademarks in the same manner and
appearance as was used before the "SEPARATION DATE" as defined
in the Master Separation and Distribution Agreement dated June
30, 2000 by and between EATON and LICENSEE (the "SEPARATION
AGREEMENT"), to which this AGREEMENT is an exhibit.
IV. QUALITY STANDARDS:
4.01 The rights granted under this AGREEMENT by EATON to
LICENSEE are all expressly conditioned upon the maintenance by
LICENSEE of the standards of quality and reliability for the
PRODUCTS established in conformity with past practices by
EATON.
4.02 LICENSEE shall submit to EATON upon request regular
production samples or photographs of the PRODUCTS for
inspection and/or testing by EATON. LICENSEE shall permit
authorized representatives of EATON to inspect, during normal
business hours, the plant, equipment, manufacturing and
assembly techniques of LICENSEE which relate to the PRODUCTS
and EATON shall have the right to test the PRODUCTS at its own
expense on the premises of LICENSEE or at any other location
so as to determine whether LICENSEE is manufacturing the
PRODUCTS in conformity with the past practices of quality
standards and specifications of EATON. EATON shall advise
LICENSEE of any discrepancies in quality or specifications and
LICENSEE, upon receipt of such advice, agrees to promptly
correct any discrepancies to the satisfaction of EATON.
V. SAMPLE APPROVAL:
5.01 LICENSEE shall submit for examination and approval by
EATON samples or photographs of all the PRODUCTS, packaging
for the PRODUCTS and literature, signs, stationery, labels,
nameplates, advertising and promotional material associated
with the PRODUCTS (hereinafter called "TRADEMARKED ARTICLES")
prior to use and/or distribution by
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LICENSEE. Such submission shall be made to EATON's Patent Law
Department and the Communications Department at Eaton
Corporation, 1111 Superior Avenue, Eaton Center, Cleveland,
Ohio 44114, U.S.A.
5.02 In the event EATON does not approve any such proposed use
of the LICENSED TRADEMARKS on the TRADEMARKED ARTICLES,
LICENSEE shall not make such use of the TRADEMARKED ARTICLES.
5.03 EATON shall approve any proposed use of the LICENSED
TRADEMARKS which is reasonable, but in no event will approve
any such proposed use which would diminish the value of or
impair the validity of any of the LICENSED TRADEMARKS or
violate any of the trademark laws of any country in which the
TRADEMARKED ARTICLES will be used and/or distributed.
VI. SIMILAR TRADEMARKS:
6.01 Other than the right to use the LICENSED TRADEMARKS
provided for in this AGREEMENT, LICENSEE shall not use any
mark confusingly similar to any of the LICENSED TRADEMARKS
without express written permission from EATON. Should
LICENSEE, during the term of this AGREEMENT, assert ownership
in any insignia, designation or trademark which, in the
reasonable opinion of EATON, is the same as, or confusingly
similar to any insignia, designation or trademark owned by
EATON, its subsidiaries and/or associated companies, LICENSEE
will upon request of EATON, transfer and assign all right,
title and interest in such insignia, designation or trademark
to EATON or EATON's designee.
VII. OTHER MARKS:
7.01 Except as authorized by the terms of this AGREEMENT,
LICENSEE shall not use any trademark insignia or designation
similar to any of the LICENSED TRADEMARKS on or in connection
with the PRODUCTS or file
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or cause to be filed any trademark or service mark application
in any country of the world covering any of the PRODUCTS or
any trademark, service mark, insignia or designation similar
to any of the LICENSED TRADEMARKS without first obtaining
written permission from EATON.
VIII. CONTINUED RIGHTS:
8.01 Upon termination of this AGREEMENT all rights granted to
LICENSEE herein shall revert to EATON, but LICENSEE may
continue to enjoy the trademark privileges set forth herein
for a period of six (6) months after the date of termination
or until the depletion of LICENSEE's stock of the PRODUCTS
which bear the LICENSED TRADEMARKS, whichever shall occur
first. However, the aforementioned six (6) months' continued
use privilege shall not apply if EATON terminates this
AGREEMENT pursuant to Sections 10.02 or 10.03 hereof and in
such case the use shall cease immediately as of the date of
termination.
IX. ALLEGED INFRINGEMENT:
9.01 LICENSEE shall promptly notify EATON of any alleged
and/or suspected infringement of the LICENSED TRADEMARKS and
agrees to cooperate with EATON and do all acts, deeds and
things necessary for protecting the LICENSED TRADEMARKS
against alleged infringers. EATON shall have the sole right to
initiate and control legal proceedings with respect to alleged
infringers or take whatever action it deems necessary with
respect thereto. EATON shall have the right to institute such
legal proceedings in its name, or in the name of LICENSEE, or
in the joint names of EATON and LICENSEE. All costs incurred
regarding the LICENSED TRADEMARKS under this Section 9.01
shall be borne by EATON.
9.02 LICENSEE hereby agrees to indemnify, defend, save and
hold EATON and its subsidiaries and affiliates harmless from
any and all costs or expenses relating to any claims of injury
or damage to person or property
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arising out of the manufacture, marketing, and/or use of
PRODUCTS sold, leased, or promoted in connection with the
LICENSED TRADEMARKS, unless such are shown to have been caused
by EATON's gross negligence or willful misconduct.
X. TERM AND TERMINATION:
10.01 This AGREEMENT shall be effective on the "SEPARATION
DATE" as defined in the SEPARATION AGREEMENT. As to the use of
the LICENSED TRADEMARKS by LICENSEE, excluding the use thereof
by SEN in accordance with the terms of the SEN Trademark
Agreement and the use of "EATON" in its corporate name by SEN
in accordance with the terms of the SEN Corporate Name
Agreement (defined in Section 11.01(a) hereinbelow), this
Agreement shall remain in effect, unless terminated earlier
pursuant to Sections 10.02 or 10.03 hereof, for a period of
three (3) years ending June 30, 2003. As to the use of the
Licensed Trademarks by SEN in accordance with the terms of the
SEN Trademark Agreement and the use of "EATON" in its
corporate name by SEN in accordance with the terms of the SEN
Corporate Name Agreement, this Agreement shall remain in
effect until December 31, 2004 unless the SEN Trademark
Agreement and/or the SEN Corporate Name Agreement are
terminated earlier in accordance with their respective terms.
10.02 LICENSEE shall have the right to terminate this
AGREEMENT at any time upon written notice to EATON.
10.03 EATON shall have the right to terminate this AGREEMENT
immediately upon written notice to LICENSEE in the event of:
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(a) liquidation, insolvency, bankruptcy, or
receivership of LICENSEE or any assignment for the
benefit of creditors by LICENSEE; or
(b) any litigation arising from or in
connection with LICENSEE's use of the LICENSED
TRADEMARKS which in EATON's reasonable opinion may
adversely diminish the value of the LICENSED
TRADEMARKS in the jurisdiction of the litigation; or
(c) if LICENSEE is in default of any Section
of this Agreement, which default is not remedied by
LICENSEE within thirty (30) days notice from EATON.
10.04 This AGREEMENT may be terminated and the IPO
abandoned, or the IPO may be delayed, at any time
prior to the IPO Closing by and in the sole
discretion of EATON without the consent of LICENSEE.
This AGREEMENT may be terminated at any time after
the IPO Closing and before the Distribution Date by
mutual consent of EATON and LICENSEE. In the event of
termination pursuant to this Section 10.04, no party
shall have any liability of any kind to the other
party. "IPO", "IPO Closing" and "Distribution Date"
are each defined in the SEPARATION AGREEMENT and
incorporated herein by reference.
XI. EATON-SEN INTELLECTUAL PROPERTY AGREEMENTS:
11.01 LICENSEE and EATON acknowledge the following:
(a) EATON and SEN are parties to a Master
License Agreement dated January 16, 1996, as amended
(hereinafter called the "Master License Agreement"),
the SEN Corporate Name Agreement and the SEN
Trademark Agreement. These agreements between EATON
and SEN are hereinafter collectively referred to as
the "EATON-SEN IP Agreements";
(b) The Master License Agreement by its
terms shall continue until December 31, 2004 and be
automatically renewed
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unless either of the parties thereto provides written
notice by December 31, 2003 to the other of its
intention to terminate the agreement or renew with
modifications, subject to renegotiation. The SEN
Trademark Agreement by its terms shall continue in
effect for a period which is concurrent with the
Master License Agreement and any renewal thereof. The
SEN Corporate Name Agreement provides that EATON may
withdraw its consent to use by SEN of the name
"EATON" in SEN's corporate name upon sixty (60) days
written notice to SEN.
(c) Pursuant to the Consent Letter dated
April 25, 2000, Sumitomo Heavy Industries, Ltd.
("SHI"), SHI agreed to the assignment of the
EATON-SEN IP Agreements by EATON to LICENSEE.
(d) Pursuant to the terms of an agreement
between EATON and LICENSEE titled "Assignment And
Assumption Agreement" to be executed on or about the
same date as this Agreement, EATON has assigned its
rights and obligations under the terms of the
EATON-SEN IP Agreements to LICENSEE.
11.02 In accordance with Sections 21.02 and 21.03 of the
Master License Agreement, LICENSEE shall notify SEN by
December 31, 2003 of its intent to renegotiate the EATON-SEN
IP Agreements in order to effect the termination of the SEN
Trademark Agreement and the SEN Corporate Name Agreement by
December 31, 2004, including therein that the notice also
constitutes notice of termination of the SEN Trademark
Agreement and the SEN Corporate Name Agreement effective
December 31, 2004. LICENSEE shall promptly provide copies to
EATON of the notice to and any reply from SEN and keep EATON
timely informed of the renegotiation as it relates to this
matter.
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11.03 LICENSEE shall not amend, renew, extend or allow the
extension of the SEN Corporate Name Agreement or the SEN
Trademark Agreement beyond December 31, 2004 without the prior
written consent of EATON, which consent may be withheld in
EATON's sole discretion.
11.04 If SEN ceases to use "EATON" in its corporate name
and/or as a trademark prior to December 31, 2004, LICENSEE
shall conduct discussions with SEN regarding the termination
of the SEN Corporate Name Agreement and/or the SEN Trademark
Agreement prior to December 31, 2004. LICENSEE shall keep
EATON informed regarding such discussions and/or any decision
by SEN to phase out its use of "EATON", and provide a copy to
EATON of any written agreement resulting from such
discussions.
11.05 None of the terms of the EATON-SEN IP Agreements that
provides a right of early termination is intended to be waived
or modified by any term of this Agreement and shall continue
in effect.
11.06 LICENSEE shall be responsible for monitoring and
enforcement of the quality control and other rights to protect
the use of the name "EATON" in SEN's corporate name under the
terms of the SEN Corporate Name Agreement and the LICENSED
TRADEMARKS under the terms of the SEN Trademark Agreement,
including enforcement of Section 6 entitled "Marking and Use",
Section 7 entitled "Quality Standards" and Section 8 entitled
"Sample Approval". LICENSEE shall promptly provide notice to
EATON of any breach or perceived breach of any of the terms of
the SEN Trademark Agreement or the SEN Corporate Name
Agreement.
11.07 The above Sections 11.01-11.06 shall survive the
termination or expiration of the LICENSEE's right to use the
LICENSED TRADEMARKS pursuant to Section 10.01 above and shall
continue in effect until the SEN Trademark Agreement is
terminated or has expired and the SEN Corporate Name Agreement
is terminated.
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XII. RECORDAL:
12.01 LICENSEE shall execute all papers which are necessary to
record LICENSEE or SEN as a user of the LICENSED TRADEMARKS in
the countries where such recordal is necessary or advisable in
order to protect EATON's rights in the LICENSED TRADEMARKS.
The fees for such recordal shall be paid for by LICENSEE.
XIII. SUBLICENSING RIGHTS:
13.01 LICENSEE shall not have the right to sublicense any of
its rights granted under this AGREEMENT except to carry out
the terms of the SEN Trademark Agreement and the SEN Corporate
Name Agreement.
XIV. BINDING EFFECT; ASSIGNMENT:
14.01 This AGREEMENT shall inure to the benefit of and be
binding upon the parties hereto and their respective
successors and permitted assigns. This AGREEMENT may be
enforced separately by each member of the Eaton Group and each
member of the Axcelis Technologies Group. LICENSEE may not
assign this AGREEMENT or any right or obligation hereunder in
whole or in part without the prior written consent of EATON,
which consent may be withheld by EATON in its sole discretion,
and without such consent any assignment shall be void. EATON
shall have the right to assign this AGREEMENT or any right or
obligation under this Agreement in whole or in part to any
party without consent of LICENSEE. No permitted assignment of
any right or obligation hereunder, 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.
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XV. FORCE MAJEURE:
15.01 Neither party shall be liable or responsible for damages
or in any manner to the other for failure or delay to perform
or fulfill any provisions of this AGREEMENT when such failure
is due to fires, strikes, acts of God, legal acts of public
authorities, or delays and default caused by public carriers,
or for any other acts or causes whatsoever whether similar or
dissimilar, which cannot responsibly be predicted or provided
against, provided, however, that the party so affected shall
promptly give notice in writing to the other party setting
forth the reason or causes for such delay or non-performance
and shall use its best efforts to avoid or remove such reason
or cause and shall continue performance hereunder with the
utmost dispatch. Whenever such reason or cause for delay and
non-performance is not eliminated within a period of sixty
(60) days, the other party may, at its option, without any
liability whatsoever, suspend or terminate this AGREEMENT by
giving sixty (60) days written notice to the affected party.
XVI. ENTIRE AGREEMENT; AMENDMENT:
16.01 This AGREEMENT, along with the Separation Agreement and
the other Ancillary Agreements (as defined in the Separation
Agreement), constitute the sole and entire understandings of
the parties hereto with respect to the matters contemplated
hereby and supersedes and renders 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
except by an instrument in writing signed on behalf of each of
the parties.
XVII. FAILURE OR INDULGENCE NOT WAIVER; REMEDIES CUMULATIVE:
17.01 Any provisions of this AGREEMENT or any breach thereof
may only be waived if done specifically and in writing by the
party hereto that is entitled to the benefits thereof. No
failure or delay on the part of either
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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
are cumulative to, and not exclusive of, any rights or
remedies otherwise available.
17.02 EATON MAKES NO WARRANTIES OF ANY KIND, EITHER EXPRESS OR
IMPLIED, WITH RESPECT TO THE LICENSED TRADEMARKS. IN NO EVENT
SHALL EATON BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, OR
SPECIAL DAMAGES (INCLUDING LOSS OF BUSINESS PROFITS) ARISING
FROM OR RELATED TO LICENSEE'S USE OF THE LICENSED TRADEMARKS.
17.03 EXCEPT TO THE EXTENT, IF ANY, SPECIFICALLY PROVIDED TO
THE CONTRARY HEREIN, IN THE SEPARATION AGREEMENT OR ANY OTHER
AGREEMENT, IN NO EVENT SHALL ANY MEMBER OF THE EATON GROUP OR
THE AXCELIS TECHNOLOGIES GROUP BE LIABLE TO ANY OTHER MEMBER
OF THE EATON GROUP OR THE AXCELIS TECHNOLOGIES GROUP FOR ANY
SPECIAL, CONSEQUENTIAL, INDIRECT, INCIDENTAL OR PUNITIVE
DAMAGES OR LOST PROFITS, HOWEVER CAUSED AND ON ANY THEORY OF
LIABILITY (INCLUDING NEGLIGENCE) ARISING IN ANY WAY OUT OF
THIS AGREEMENT, 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 SEPARATE
INDEMNIFICATION AND INSURANCE MATTERS AGREEMENT BETWEEN THE
PARTIES HERETO.
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XVIII. COUNTERPARTS:
18.01 This AGREEMENT 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.
XIX. GOVERNING LAW:
19.01 This AGREEMENT shall be construed in accordance with and
all disputes hereunder should be governed by the local laws of
the State of Ohio, U.S.A., 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 either of the parties hereto
to initiate resolution of any dispute between the parties
under this AGREEMENT.
XX. NOTICES:
20.01 Notices, offers, instructions, consents, requests or
other communications required or permitted to be given by
either party hereto pursuant to the terms of this AGREEMENT
shall be given in writing to the following addresses:
If to Eaton:
Office of the Secretary
Eaton Corporation
Eaton Center
1111 Superior Avenue
Cleveland, Ohio 44114, U.S.A.
Fax: (216) 479-7103
If to Axcelis Technologies:
Chief Executive Officer
Axcelis Technologies, Inc.
55 Cherry Hill Drive
Beverly, Massachusetts 01915
Fax: (978) 232-4221
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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.
XXI. SEVERABILITY:
21.01 If any term or other provision of this 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 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 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 are fulfilled to
the fullest extent possible.
XXII. AUTHORITY:
22.01 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, (b)
the executive, delivery and performance of this AGREEMENT 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 (d) this AGREEMENT constitutes a
legal, valid and binding obligation, enforceable against it in
accordance with its terms subject to applicable bankruptcy,
insolvency, reorganization, moratorium or
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other similar laws affecting creditors' rights generally and
subject to general equity principles.
XXIII. INTERPRETATION:
23.01 The headings contained in this AGREEMENT are for
reference purposes only and shall not affect in any way the
meaning or interpretation hereof. Any capitalized term used in
any Exhibit or Schedule to this 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 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.
XXIV. CONFLICTING AGREEMENTS:
24.01 In the event of conflict between this AGREEMENT and the
Separation Agreement or any other Ancillary Agreement executed
in connection herewith, the provisions of this AGREEMENT shall
prevail.
XXV. PUBLIC ANNOUNCEMENTS:
25.01 Through the Distribution Date, in regard to any matter
covered by this AGREEMENT, EATON shall determine the contents
of all press releases to be issued by either of the parties
hereto after consultation with LICENSEE, including without
limitation any termination of this AGREEMENT for any reason,
and such press releases shall be consistent with the
respective disclosure obligations of the parties.
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XXVI. SUBSEQUENT LEGAL FEES:
26.01 In the event that any arbitration or litigation is
initiated to interpret or enforce the terms and provisions of
this AGREEMENT, the party hereto prevailing in said action
shall be entitled to its reasonable attorneys' fees and costs
from the other party and shall be paid same in full by the
losing party promptly upon demand by the prevailing party. A
party may also include its claim for such fees and costs in
such arbitration or litigation.
XXVII. NO THIRD-PARTY BENEFICIARIES OR RIGHT TO RELY:
27.01 Notwithstanding anything to the contrary in this
AGREEMENT, (a) nothing in this 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; and (c) no party hereto 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.
IN WITNESS WHEREOF, each of the parties hereto has executed this
AGREEMENT by its duly authorized officers or representatives on the date first
above written.
EATON CORPORATION AXCELIS TECHNOLOGIES, INC.
(EATON) (LICENSEE)
By: /s/ ADRIAN T. DILLON By: /s/ BRIAN R. BACHMAN
----------------------------------- -----------------------------------
Title: Executive Vice President -- Title: Chief Executive Officer and
-------------------------------- --------------------------------
Chief Financial and Planning Vice Chairman of the Board
-------------------------------- --------------------------------
Officer
-------------------------------- --------------------------------
Date: June 30, 2000 Date: June 30, 2000
--------------------------------- ---------------------------------
By: /s/ KEN SEMELSBERGER By: /s/ MARY G. PUMA
----------------------------------- -----------------------------------
Title: Vice President -- Strategic Title: President, Chief Operating
-------------------------------- --------------------------------
Planning Officer and Secretary
-------------------------------- --------------------------------
Date: June 30, 2000 Date: June 30, 2000
--------------------------------- ---------------------------------
18