Exhibit 10.1


 


CONFORMED COPY


 


SHARE PURCHASE AGREEMENT


 


by and among


 


SUMITOMO HEAVY INDUSTRIES, LTD.,


 


AXCELIS TECHNOLOGIES, INC.


 


and


 


SEN CORPORATION, AN SHI AND AXCELIS COMPANY


 


Dated as of February 26, 2009


 

















 


TABLE OF CONTENTS


 


	
   

  	
   

  	
  Page

  
	
  ARTICLE I

  	
  PURCHASE AND SALE; CLOSING

  	
  1

  
	
  1.1

  	
  Purchase of Shares

  	
  1

  
	
  1.2

  	
  Purchase Price and Method of Payment

  	
  2

  
	
  1.3

  	
  Closing

  	
  2

  
	
  ARTICLE II

  	
  CLOSING DELIVERABLES

  	
  2

  
	
  2.1

  	
  Seller’s Deliverables at Closing

  	
  2

  
	
  2.2

  	
  Purchaser’s Deliverables at Closing

  	
  3

  
	
  2.3

  	
  The Company’s Deliverables at Closing

  	
  4

  
	
  ARTICLE III

  	
  REPRESENTATIONS AND WARRANTIES OF SELLER

  	
  4

  
	
  3.1

  	
  Due Incorporation; Good Standing; Qualification

  	
  4

  
	
  3.2

  	
  Due Authorization; No Conflict; Consents

  	
  4

  
	
  3.3

  	
  Capital Stock

  	
  5

  
	
  3.4

  	
  Litigation

  	
  5

  
	
  3.5

  	
  Purchase Price/Solvency/No Fraudulent Conveyance

  	
  5

  
	
  3.6

  	
  Arm’s Length Negotiations

  	
  6

  
	
  ARTICLE IV

  	
  REPRESENTATIONS AND WARRANTIES OF PURCHASER

  	
  6

  
	
  4.1

  	
  Due Incorporation; Good Standing; Qualification

  	
  6

  
	
  4.2

  	
  Due Authorization; No Conflict; Consents

  	
  6

  
	
  4.3

  	
  Litigation

  	
  7

  
	
  ARTICLE V

  	
  COVENANTS

  	
  7

  
	
  5.1

  	
  Certain Notifications by Seller

  	
  7

  
	
  5.2

  	
  Certain Notifications by Purchaser

  	
  7

  
	
  5.3

  	
  Updating the Disclosure Schedule

  	
  8

  
	
  5.4

  	
  Confidentiality and Announcements

  	
  8

  
	
  5.5

  	
  Consents; Commercially Reasonable Efforts

  	
  9

  
	
  5.6

  	
  Further Assurances

  	
  9

  
	
  5.7

  	
  Compliance by the Company

  	
  9

  
	
  5.8

  	
  Use of Name

  	
  9

  
	
  5.9

  	
  Payment of Royalties and Commissions

  	
  10

  
	
  5.10

  	
  Company Cooperation with Seller’s Post-Closing SEC
  and Tax Filings

  	
  10

  



 


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TABLE OF CONTENTS


(continued)


 


	
   

  	
   

  	
  Page

  
	
  5.11

  	
  Schedules to the License Agreement

  	
  10

  
	
  5.12

  	
  Intellectual Property

  	
  10

  
	
  ARTICLE VI

  	
  CONDITIONS TO CLOSING

  	
  11

  
	
  6.1

  	
  Conditions to Purchaser’s Obligation to Consummate
  the Acquisition

  	
  11

  
	
  6.2

  	
  Conditions to Seller’s Obligation to Consummate the
  Acquisition

  	
  13

  
	
  ARTICLE VII

  	
  TERMINATION

  	
  14

  
	
  7.1

  	
  Termination of Agreement

  	
  14

  
	
  7.2

  	
  Procedure Upon Termination

  	
  14

  
	
  7.3

  	
  Effect of Termination

  	
  14

  
	
  ARTICLE VIII

  	
   SURVIVAL AND INDEMNIFICATION

  	
  15

  
	
  8.1

  	
  Survival

  	
  15

  
	
  8.2

  	
  Indemnification by Seller

  	
  15

  
	
  8.3

  	
  Indemnification by Purchaser

  	
  15

  
	
  8.4

  	
  Notice of Claims; Assumption of Defense

  	
  16

  
	
  8.5

  	
  Settlement or Compromise

  	
  16

  
	
  ARTICLE IX

  	
  CERTAIN DEFINITIONS

  	
  16

  
	
  9.1

  	
  Definitions

  	
  16

  
	
  ARTICLE X

  	
  MISCELLANEOUS

  	
  20

  
	
  10.1

  	
  Expenses

  	
  20

  
	
  10.2

  	
  Amendment; Waivers

  	
  20

  
	
  10.3

  	
  Notices

  	
  21

  
	
  10.4

  	
  Counterparts

  	
  22

  
	
  10.5

  	
  Headings

  	
  22

  
	
  10.6

  	
  Applicable Law; Arbitration

  	
  22

  
	
  10.7

  	
  Specific Performance; Injunctive Relief

  	
  23

  
	
  10.8

  	
  Assignment

  	
  23

  
	
  10.9

  	
  No Third Party Beneficiaries

  	
  23

  
	
  10.10

  	
  Entire Understanding

  	
  23

  
	
  10.11

  	
  Construction

  	
  23

  
	
  10.12

  	
  Schedules

  	
  23

  
				



 


ii

















 


TABLE OF CONTENTS


(continued)


 


	
   

  	
   

  	
  Page

  
	
  10.13

  	
  Severability

  	
  24

  
	
  10.14

  	
  Currency

  	
  24

  
	
  10.15

  	
  Principles of Construction

  	
  24

  



 


iii

















 


SHARE PURCHASE AGREEMENT


 


This SHARE PURCHASE AGREEMENT (this “Agreement”) is made as of the 26th day of
February, 2009, by and among SUMITOMO HEAVY INDUSTRIES, LTD., a company organized as a kabushiki kaisha under the laws of Japan (“Purchaser”), Axcelis Technologies, Inc.,
a corporation incorporated under the laws of Delaware (“Seller”), and SEN CORPORATION, AN SHI AND
AXCELIS COMPANY, a company organized as a kabushiki kaisha under
the laws of Japan (the “Company”).  Certain capitalized terms used in this
Agreement are defined in Article IX.


 


WHEREAS,
the Company is a joint venture between Seller and Purchaser that licenses
technology from Seller relating to the manufacture of specified ion
implantation products and has exclusive rights to manufacture and sell these
products in the territory of Japan;


 


WHEREAS,
subject to the terms and conditions of this Agreement, Purchaser desires to
purchase from Seller, and Seller desires to sell to Purchaser, six thousand
(6,000) common shares of the Company (the “Shares”), which
represent 50% of all the issued and outstanding common shares of the Company
(the “Acquisition”);


 


WHEREAS,
concurrently and in connection with the closing of the Acquisition, the Company
and Seller will enter into the License Agreement (as defined herein), pursuant
to which each of the Company and Seller will grant to one another certain of
each such party’s intellectual property;


 


WHEREAS,
concurrently and in connection with the closing of the Acquisition, Purchaser
and Seller will terminate the joint venture relationship between the parties
with respect to the Company, along with the Terminated Agreements (as defined
herein), pursuant to the Termination Agreement (as defined herein); and


 


WHEREAS,
concurrently and in connection with the closing of the Acquisition, Purchaser,
Seller and the Company will enter into the Cross-Release (as defined herein),
pursuant to which each of the parties will fully and completely settle, waive,
release and relinquish any and all claims and rights that such party has or may
have had against another party.


 


NOW,
THEREFORE, in consideration of the premises and mutual
representations, warranties, covenants and agreements hereinafter set forth,
the parties hereto agree as follows:


 


ARTICLE I

PURCHASE AND SALE; CLOSING


 


1.1          Purchase of Shares.  Subject to the terms and conditions of this
Agreement, Seller shall sell, transfer, convey, assign and deliver to
Purchaser, free and clear of all Encumbrances of every kind, nature and
descriptions, and Purchaser shall purchase from Seller, all but not less than
all of Seller’s right, title and interest in, to and under the Shares.


 

















 


1.2          Purchase Price and Method of Payment.  Subject to the terms and
conditions of this Agreement, as consideration for (x) the sale, transfer,
conveyance, assignment and delivery to Purchaser of the Shares and (y) the
obligations assumed by Seller and the rights received by the Company pursuant
to the License Agreement, Purchaser and the Company shall pay, as applicable,
the following to Seller (the sum of clauses (a), (b) and (c) below,
the “Purchase Price”):


 


(a)           the amount set forth
on Schedule 1.2(a), as such schedule may be updated by Seller to reflect
amounts outstanding as of the Closing Date, shall be paid by Purchaser to U.S.
Bank, National Association by wire transfer of immediately available funds
denominated in Japanese Yen and converted to and paid in U.S. Dollars at the
applicable exchange rate communicated (in writing, by electronic communication
or orally) to Purchaser by U.S. Bank, National Association for the purchase of
Japanese Yen using U.S. Dollars as of the Closing Date to an account previously
designated in writing by U.S. Bank, National Association; provided, however
that Schedule 1.2 as updated shall be acceptable to Purchaser in its
sole and absolute discretion;


 


(b)           the amount set forth
on Schedule 1.2(b), as such schedule may be updated by the mutual
agreement of Purchaser and the Company at any time prior to the Closing Date,
in consideration for the obligations assumed by Seller and the rights received
by the Company pursuant to the License Agreement, shall be paid by the Company
to Seller by wire transfer of immediately available funds denominated in
Japanese Yen to an account previously designated in writing by Seller; and


 


(c)           an amount equal to
the remainder of (x) Thirteen Billion Japanese Yen (¥13,000,000,000) less
(y) the sum of the amount paid in Japanese Yen pursuant to Section 1.2(a) and
Section 1.2(b) above, shall be paid by Purchaser to Seller by
wire transfer of immediately available funds denominated in Japanese Yen to an
account previously designated in writing by Seller.


 


1.3          Closing.  The closing of the Acquisition (the “Closing”) shall occur at the offices of Morrison &
Foerster LLP, Shin-Marunouchi
Building, 29th Floor, 5-1, Marunouchi 1-chome, Chiyodaku, Tokyo 100-6529, Japan,
at 10:00 a.m. Tokyo time, on the later of (i) the second Business Day
following the satisfaction or waiver of the conditions set forth in Article VI
or (ii) March 31, 2009, or at such other date, time or place as the
parties may agree (the “Closing Date”).


 


ARTICLE II

CLOSING DELIVERABLES


 


2.1          Seller’s
Deliverables at Closing.  On the Closing Date, Seller shall deliver the
following items to Purchaser:


 


(a)           an executed
certificate of an officer of Seller: (A) attaching all necessary
authorizing resolutions evidencing approval of the execution and delivery of
this Agreement and the Ancillary Agreements to which it is a party, which
resolutions shall be in full force and effect at the time of the Closing, (B) attaching
the articles of incorporation and by-laws of Seller, which 


 


2

















 


shall be in full force and effect at the time
of the Closing, and (C) certifying the incumbency and true signatures of
the officers of Seller executing this Agreement or any Ancillary Agreement to
which it is a party on behalf of Seller;


 


(b)           a payoff letter
evidencing the termination of any and all outstanding debt (including all
principal, interest and penalties thereon) of Seller owed pursuant to that
certain Indenture dated as of May 2, 2006, by and between Seller and U.S.
Bank National Association, as trustee, in form and substance reasonably
satisfactory to Purchaser;


 


(c)           a counterpart of the
License Agreement duly executed by Seller;


 


(d)           a certificate, dated
as of the Closing Date, in form and substance satisfactory to Purchaser, signed
by each of the Chief Executive Officer and Chief Financial Officer of Seller,
in substantially the form exchanged between Purchaser and Seller on the date of
this Agreement;


 


(e)           a counterpart of the
Termination Agreement duly executed by Seller;


 


(f)            a counterpart of
the Cross-Release duly executed by Seller;


 


(g)           a consent executed
and delivered to Seller by Silicon Valley Bank, in substantially the form
exchanged among the parties to this Agreement on the date of this Agreement;
and


 


(h)           a counterpart of the
Request to Reflect Change of Stock Ownership on Shareholder List, substantially
in the form exchanged among the parties to this Agreement on the date of this
Agreement (the “Change Request”),
duly executed by Seller.


 


2.2          Purchaser’s
Deliverables at Closing.  On the Closing Date, Purchaser shall deliver
the following items:


 


(a)           an executed
certificate of an officer of Purchaser: (A) attaching all necessary
authorizing resolutions evidencing approval of the execution and delivery of
this Agreement and the Ancillary Agreements to which it is a party, which
resolutions shall be in full force and effect at the time of the Closing, (B) attaching
the articles of incorporation of Purchaser or similar organizational documents
of Purchaser, which shall be in full force and effect at the time of the
Closing, and (C) certifying the incumbency and true signatures of the
officers of Purchaser executing this Agreement or any Ancillary Agreement to
which it is a party on behalf of Purchaser;


 


(b)           the Purchase Price
in accordance with Section 1.2;


 


(c)           a counterpart of the
Termination Agreement duly executed by Purchaser;


 


(d)           a counterpart of the
Cross-Release duly executed by Purchaser; and


 


(e)           a counterpart of the
Change Request, duly executed by Purchaser.


 


3

















 


2.3          The
Company’s Deliverables at Closing.  On the Closing
Date, the Company shall deliver the following items:


 


(a)           an amount equal to
Thirty Six Million, Eight Hundred Seventy Four Thousand, Six Hundred Forty
Eight Japanese Yen (¥36,874,648) shall be paid by the Company to Seller by wire
transfer of immediately available funds denominated in Japanese Yen to an
account previously designated in writing by Seller as Royalty and Commission
Payments for the period from October 1, 2008 through January 31,
2009;


 


(b)           an executed
certificate of an officer of the Company: (A) attaching all necessary
authorizing resolutions evidencing approval of the transfer of the Shares from
Seller to Purchaser and the execution and delivery of this Agreement and the
Ancillary Agreements to which it is a party, which resolutions shall be in full
force and effect at the time of the Closing, (B) attaching the articles of
incorporation and by-laws of the Company or similar organizational documents,
which shall be in full force and effect at the time of the Closing, and (C) certifying
the incumbency and true signatures of the officers of the Company executing
this Agreement or any Ancillary Agreement to which it is a party on behalf of
the Company;


 


(c)           a counterpart of the
License Agreement duly executed by the Company;


 


(d)           a counterpart of the
Termination Agreement duly executed by the Company; and


 


(e)           a counterpart of the
Cross-Release duly executed by the Company.


 


ARTICLE III

REPRESENTATIONS AND WARRANTIES OF SELLER


 


Seller represents and warrants to Purchaser the following on the date
hereof and again on the Closing Date, except as set forth in the disclosure
schedule accompanying this Agreement (the “Disclosure Schedule”)
(which will be arranged in paragraphs corresponding to the numbered paragraphs
contained in this Article III, provided that any matter disclosed therein
shall be deemed disclosed for other sections of the Disclosure Schedule to the
extent that it is reasonably apparent from a reading of such disclosure item
that it would also qualify or apply to such other sections):


 


3.1          Due
Incorporation; Good Standing; Qualification.  Seller is a Delaware corporation, duly
organized, validly existing and in good standing under the laws of Delaware,
with all requisite power and authority to own, lease and operate its assets and
to carry on its business as currently conducted.  Seller is duly qualified to do business and
in good standing in each other jurisdiction where the nature of its business or
ownership of its assets requires it to be so qualified, except where a failure
to be so qualified or in good standing would not result in a Material Adverse
Effect.


 


3.2          Due Authorization;
No Conflict; Consents.  Seller
has full corporate power and authority to enter into this Agreement and to
carry out the transactions contemplated hereby. 
The execution, delivery and performance of this Agreement by Seller have
been duly authorized by all necessary action on the part of Seller, including
the approval of Seller’s board of directors. 



 


4

















 


This
Agreement has been duly and validly executed and delivered by Seller, and
constitutes the legal, valid and binding obligation of Seller, enforceable in
accordance with its terms.  Subject to
compliance with applicable regulatory requirements, the execution, delivery and
performance by Seller of this Agreement and all other instruments, agreements,
certificates and documents contemplated hereby: 
(a) do not, and will not, violate or conflict with any provision of
the articles of incorporation or by-laws of Seller; (b) do not, and will
not, violate or constitute a default under any Law or any Contract to which
Seller is a party, or by which any of Seller’s assets are bound; and (c) will
not result in the creation of any Encumbrance upon Seller’s assets or permit
the acceleration of the maturity of any indebtedness secured by any of Seller’s
assets.  No notice to, filing with,
authorization of, exemption by or consent of any Person is required in order
for Seller to consummate the transactions contemplated hereby, except as shall
have been obtained on or prior to the Closing Date.


 


3.3          Capital
Stock.  Seller is the
owner, beneficially and of record, of all of the Shares and has no other equity
interests in the Company other than the Shares and has no right to acquire any
equity interests in the Company.  At the
Closing, none of the Shares will be subject to any liens or restrictions on
transfer, other than restrictions imposed by applicable securities laws and,
upon the transfer of the Shares to Purchaser, Purchaser will obtain good and
marketable title to such securities, free and clear of all liens, claims and
encumbrances of any kind.  On the Closing
Date, there will be no authorized or outstanding option, subscription, warrant,
call, right, commitment or other agreement obligating Seller to issue or
transfer any of the Shares or any securities convertible into or exercisable
for any of the Shares.  Seller is not a
party to any voting trust, proxy or other agreement or understanding with
respect to the Shares.


 


3.4          Litigation.  There is no Proceeding pending or, to Seller’s
Knowledge, threatened against Seller which may affect Seller’s ability to
perform its obligations under this Agreement or the Ancillary Agreements to
which it is a party.  To Seller’s
Knowledge, Seller is not named in any order, judgment, decree, stipulation or
consent of or with any Governmental Authority that affects or may affect the
transactions contemplated by this Agreement.


 


3.5          Purchase Price/Solvency/No
Fraudulent Conveyance.


 


(a)           Seller
is not entering into this Agreement or the Ancillary Agreements with the intent
to hinder, delay or defraud any Person to which Seller is, or may become,
indebted.  The Purchase Price is not less
than the reasonably equivalent value or fair market value of (i) the
Shares and (ii) the obligations of Seller under the Ancillary Agreements.


 


(b)           Immediately after
giving effect to the transactions contemplated by this Agreement and the
Ancillary Agreements:


 


(i)                                     the
fair value of the property of Seller will exceed the amount of Seller’s
liabilities (including disputed, contingent and unliquidated liabilities) as
such value is established and liabilities evaluated for purposes of Section 101(32)
of the Bankruptcy Code; and


 


(ii)                                  the
present fair saleable value of the property of Seller will not be less than the
amount that will be required to pay the probable 


 


5

















 


liability of Seller on its debts as they
become absolute and matured.


 


(c)           Immediately after
giving effect to the transactions contemplated by this Agreement and the
Ancillary Agreements and based on the current forecasts, financial projections
and business plan through the period ending March 31, 2010 prepared by
management of Seller in good faith using reasonable assumptions:


 


(i)                                     Seller
will be able to realize upon its property and pay its debts and other
liabilities (including disputed, contingent and unliquidated liabilities) as
they mature in the normal course of business;


 


(ii)                                  Seller
does not intend to, and does not believe that it will, incur debts or
liabilities beyond Seller’s ability to pay as such debts and liabilities
mature; and


 


(iii)                               Seller
is not currently engaged in any business or a transaction, and is not about to
engage in any business or a transaction, for which Seller’s property would
constitute unreasonably small capital.


 


3.6          Arm’s Length Negotiations.  (a) Before executing this Agreement,
Seller has fully informed itself of the terms, contents, conditions, and
effects of this Agreement; (b) Seller has relied solely and completely
upon its own judgment in executing this Agreement; (c) Seller has had the
opportunity to seek and has obtained the advice of counsel before executing
this Agreement; (d) Seller has acted voluntarily and of its own free will
in executing this Agreement; (e) Seller is not acting under duress, whether
economic or physical, in executing this Agreement; and (f) this Agreement
is the result of arm’s length negotiations conducted by and among the parties
and their respective counsel in good faith.


 


ARTICLE IV

REPRESENTATIONS AND WARRANTIES OF PURCHASER


 


Purchaser represents and warrants to the Company and Seller, on the
date hereof and again on the Closing Date, the following:


 


4.1          Due
Incorporation; Good Standing; Qualification.  Purchaser is a
company organized as a kabushiki kaisha
under the laws of Japan, duly organized, validly existing and in good standing
under the laws of Japan, with all requisite power and authority to own, lease
and operate its assets and to carry on its business as currently
conducted.  Purchaser is duly qualified
to do business and in good standing in each other jurisdiction where the nature
of its business or ownership of its assets requires it to be so qualified,
except where failure to be so qualified or in good standing would not result in
a Material Adverse Effect.


 


4.2          Due
Authorization; No Conflict; Consents.  Purchaser has
full corporate power and authority to enter into this Agreement and to carry
out the transactions contemplated hereby. 
The execution, delivery and performance of this Agreement by Purchaser
have been duly authorized by all necessary action on the part of Purchaser,
including the approval of Purchaser’s board of directors.  This Agreement has been duly executed and
delivered by Purchaser and


 


6
















 


constitutes the legal, valid and binding obligation of Purchaser,
enforceable in accordance with its terms. 
Subject to compliance with applicable regulatory requirements, the
execution, delivery and performance by Purchaser of this Agreement and all other
instruments, agreements, certificates and documents contemplated hereby:  (a) do not, and will not, violate or
conflict with any provision of the articles of incorporation of Purchaser; (b) do
not, and will not, violate or constitute a default under any Law or any
Contract to which Purchaser is a party, or by which any of Purchaser’s assets
are  bound; and (c) will not result
in the creation of an Encumbrance upon Purchaser’s assets or permit the
acceleration of the maturity of any indebtedness secured by any of Purchaser’s
assets.  No notice to, filing with,
authorization of, exemption by or consent of any Person or entity is required
for Purchaser to consummate the transactions contemplated hereby, except as
shall have been obtained on or prior to the Closing Date.


 


4.3           Litigation.  There is no
Proceeding pending or, to Purchaser’s Knowledge, threatened against Purchaser
which may affect Purchaser’s ability to perform its obligations under this
Agreement and the Ancillary Agreements to which it is a party.  To Purchaser’s Knowledge, Purchaser is not
named in any order, judgment, decree, stipulation or consent of or with any
Governmental Authority that affects or may affect the transactions contemplated
by this Agreement.


 


ARTICLE V

COVENANTS


 


5.1           Certain Notifications by Seller.  From the date of this Agreement until the
Closing, Seller shall promptly notify Purchaser in writing regarding any:


 


(a)           Fact,
circumstance, event, or action by Seller (i) which, if known on the date
of this Agreement, would have been required to be disclosed in or pursuant to
this Agreement; or (ii) the existence, occurrence, or taking of which
would result in any of the representations and warranties of Seller contained
in this Agreement or in any Ancillary Agreement not being true and correct when
made or at Closing; provided that such notice shall not operate to in any way
modify or cure any breach of the representations and warranties made by Seller
in this Agreement or any exhibits or schedules referred to herein or attached hereto;


 


(b)           Breach
of any covenant or obligation of Seller hereunder; and


 


(c)           Circumstance
or event which will result in, or could reasonably be expected to result in,
the failure of Seller to timely satisfy any of the closing conditions specified
in Article VI  of this Agreement.


 


5.2           Certain Notifications by Purchaser.  From the date of this Agreement until the
Closing, Purchaser shall promptly notify Seller in writing regarding any:


 


(d)           Fact,
circumstance, event, or action by Purchaser (i) which, if known on the
date of this Agreement, would have been required to be disclosed in or pursuant
to this Agreement; or (ii) the existence, occurrence, or taking of which
would result in any of the representations and warranties of Purchaser
contained in this Agreement or in any Ancillary Agreement not being true and
correct when made or at Closing; provided that such notice shall 


 


7

















 


not
operate to in any way modify or cure any breach of the representations and warranties
made by Purchaser in this Agreement or any exhibits or schedules referred to
herein or attached hereto;


 


(e)           Breach
of any covenant or obligation of Purchaser hereunder; and


 


(f)            Circumstance
or event which will result in, or could reasonably be expected to result in,
the failure of Purchaser to timely satisfy any of the closing conditions
specified in Article VI  of this Agreement.


 


5.3           Updating the
Disclosure Schedule.  From the
date of this Agreement until the Closing, if any event, condition, fact or
circumstance that is required to be disclosed pursuant to Section 5.1
would require a change to the Disclosure Schedule, if the Disclosure Schedule
were dated as of the date of the occurrence, existence or discovery of such
event, condition, fact or circumstance, then Seller shall promptly deliver to
Purchaser an update to the Disclosure Schedule specifying such change and shall
use its best efforts to remedy same, as applicable; provided, however, that no
such update shall be deemed to supplement or amend the Disclosure Schedule for
the purpose of (i) determining the accuracy of any of the representations
and warranties made by Seller in this Agreement or (ii) determining
whether any of the conditions set forth in Article VI have been
satisfied.


 


5.4           Confidentiality and Announcements. 
From the date of this Agreement until the Closing Date, any public
announcement or similar publicity with respect to this Agreement and the
Acquisition will be issued at such time and in such manner as Purchaser and
Seller shall jointly determine.  Seller
and Purchaser shall use all reasonable efforts to consult with each other
before issuing any press release or otherwise making any public statement with
respect to this Agreement or the transactions contemplated hereby, unless
otherwise required by Law or by obligations pursuant to any listing agreement
with or rules of any securities exchange, in which case the party required
to issue such press release or public announcement shall allow the other party
a reasonable opportunity to comment on such press release or public
announcement in advance of such issuance to the extent practicable.


 


8

















 


5.5           Consents; Commercially Reasonable Efforts.


 


(a)           Upon
the terms and subject to the conditions of this Agreement, each of the parties
hereto shall use commercially reasonable efforts to take, or cause to be taken,
all actions, and to do, or cause to be done, all things necessary, proper or
advisable under applicable Laws to consummate and make effective the
transactions contemplated by this Agreement as promptly as practicable,
including, without limitation:  (i) the
prompt preparation and filing of all forms, registrations and notices required
to be filed to consummate the transactions contemplated by this Agreement and
the taking of such commercially reasonable actions as are necessary to obtain
any requisite consents, orders, exemptions or waivers by any Governmental
Authority or any other Person; and (ii) using commercially reasonable efforts
to cause the satisfaction of all conditions to Closing.   Each party shall promptly consult with the
others with respect to, provide any necessary information with respect to, and
provide the other (or its counsel) copies of, all filings made by such party
with any Governmental Authority or any other Person or any other information
supplied by such party to a Governmental Authority or any other Person in
connection with this Agreement and the transactions contemplated hereby and
thereby.


 


(b)           Each party hereto shall
promptly inform the others of any communication from any Governmental Authority
regarding the Acquisition.  If any party
or Affiliate thereof receives a request for additional information or documentary
material from any such Governmental Authority with respect to the transactions
contemplated by this Agreement, then such party will endeavor in good faith to
make, or cause to be made, as soon as reasonably practicable and after
consultation with the other party, an appropriate response in compliance with
such request.


 


5.6           Further Assurances. 
All deliveries, payments and other transactions and documents relating
to the transactions contemplated herein shall be interdependent and none shall
be effective unless and until all are effective (except to the extent that the
party entitled to the benefit thereof has waived in writing satisfaction or
performance thereof as a condition precedent to Closing).  Seller shall, upon the request of Purchaser,
in a timely manner on and after the Closing Date execute and deliver to
Purchaser such other documents, releases, assignments and other instruments as
may be reasonably required to effectuate completely the transfer and assignment
to Purchaser of Seller’s rights to the Shares.


 


5.7           Compliance by the Company.  From the date of this Agreement until the
Closing, Purchaser and Seller shall use their commercially reasonable efforts
to cause the Company to comply with all of its obligations under this Agreement
including, without limitation, the execution and delivery by the Company of the
Cross-Release, the License Agreement and the Termination Agreement pursuant to Section 2.3
of this Agreement.  In addition,
Purchaser and Seller shall use their commercially reasonable efforts to cause
the Company’s Board of Directors to approve the transfer of the Shares from
Seller to Purchaser at the Closing.


 


5.8           Use of Name.  The Company shall change its name within
ninety (90) days after the Closing Date to a name that does not include the
word “Axcelis”.  Seller hereby
acknowledges and agrees that the Company may continue to use the names and/or
marks “SEN” and “SEN Corporation” and/or any associated logos (collectively,
the “SEN Marks”), and/or 


 


9

















 


any name or mark that incorporates any of the SEN Marks, following the
Closing.  Seller further acknowledges and
agrees that Seller has no intellectual property or other proprietary rights
with respect to the SEN Marks, and hereby disclaims any right, title and
interest in the SEN Marks.


 


5.9           Payment of Royalties
and Commissions.  After the
Closing, the Company shall deliver to Seller by no later than April 30,
2009, an amount equal to the Royalty and Commission Payments for the period
between February 1, 2009 and the Closing Date owed by the Company to
Seller as determined in good faith by the Company and as set forth on the
Company’s Royalty Statement, a form of which has been exchanged among the
parties to this Agreement on the date of this Agreement, prepared on a basis
consistent with all methods, practices and policies historically used by the
Company in the preparation of such Royalty Statements.  The amount so determined by the Company shall
be a conclusive determination absent manifest error or fraud, and provided that
the total revenue reported by the Company in determining any royalties due to
Seller under this Section 5.9 can be reconciled with the revenue
reported by the Company on its statutory financial statements for the year
ended March 31, 2009.  The payment
of such amount shall be made by wire transfer of immediately available funds
and shall constitute full and final satisfaction of any claims of Seller
related to such Royalty and Commission Payments and shall be made conditional
upon the release by Seller of the Company in connection with any claims related
thereto.


 


5.10         Company Cooperation
with Seller’s Post-Closing SEC and Tax Filings.  The Company hereby agrees to provide
timely to Seller (i) the Company’s audited financial statements for the
fiscal year ended March 31, 2009 for inclusion with Seller’s required
public filings with the U.S. Securities and Exchange Commission to the extent
the inclusion of such financial statements is required by Law and (ii) certain
information reasonably requested by Seller in order for Seller to calculate the
amount of its foreign tax credit under U.S. income tax laws for the period
prior to the Closing Date.


 


5.11         Schedules to the
License Agreement.  The parties
agree to use commercially reasonable efforts and to negotiate in good faith to
finalize on or prior to the Closing Date the License Agreement and any
schedules or exhibits thereto.


 


5.12         Intellectual Property.  From the date of this Agreement and for
so long as the License Agreement is effective:


 


(a)           Seller shall not agree
to amend, restate or otherwise modify the SVB Loan Documents in a manner that
materially or adversely affects the rights of the Company under this Agreement
or the License Agreement;


 


(b)           in the event that
Seller grants any security interest in any Seller IP (including but not limited
to a grant to Silicon Valley Bank in connection with an increase or  extension of the Obligations (as defined in
the SVB Loan Agreement)) (any such security interest, a “New Loan Document”):


 


(i)                                     any
such New Loan Document shall contain the provisions as set forth in Exhibit A
to this Agreement;


 


10

















 


(ii)                                  the
terms and conditions of each such New Loan Document shall not materially or
adversely affect the rights of Purchaser under this Agreement or the Company
under this Agreement or the License Agreement; and


 


(iii)                               any
of Seller’s subsidiaries or affiliates party to any such New Loan Document
which, at such time, may own any of the Seller IP subject to the License
Agreement, shall agree to acknowledge and agree to the terms and provisions of
this Section 5.12;


 


(c)           Seller shall provide to
the Company and Purchaser written notice within at least three (3) Business
Days’ after the occurrence of either (i) the execution by Seller, or any
of its subsidiaries, of any New Loan Document which grants a security interest
in the Seller IP subject to the License Agreement, or (ii) Seller’s
receipt or delivery of any notice of default, event of default or acceleration
pursuant to the SVB Loan Documents or any New Loan Document accompanied with a
copy of such notice of default, event of default or acceleration; provided
that, so long as Seller is subject to the reporting requirements of the
Securities Exchange Act of 1934 (the “Exchange
Act”), such notices required under clauses (i) and (ii) above
shall be provided concurrent with disclosure materials filed with the U.S.
Securities and Exchange Commission or pursuant to the Exchange Act; and


 


(d)           each of Seller and any
subsidiary or affiliate of Seller that is a party to the SVB Loan Agreement or
any New Loan Document hereby authorizes the Company, or its designees, to file
or record at any time and from time to time any financing statements or notice
filings, at any governmental or similar offices (including without limitation
any international filings and with the U.S. Copyright Office or U.S. Patent and
Trademark Office), regarding its rights in and to the Seller IP granted under
the License Agreement.


 


Notwithstanding the foregoing, with respect to Seller IP consisting of
Patents (as defined in the License Agreement), this obligation shall terminate
on the twenty-first anniversary of the Closing Date.


 


ARTICLE VI

CONDITIONS TO CLOSING


 


6.1           Conditions to Purchaser’s Obligation to
Consummate the Acquisition.  The obligation of Purchaser to consummate the
Acquisition is subject to the satisfaction or waiver of the following:


 


(a)           Purchaser shall have
received everything specified in Section 2.1 and Section 2.3;


 


(b)           The representations and
warranties of Seller in this Agreement and the other certificates and documents
contemplated hereby shall be true and correct in all material respects (other
than representations and warranties that are qualified as to materiality or by
Material Adverse Effect, which representations shall be true and correct in all
respects) as of the Closing Date, other than representations and warranties
that speak of another specific date or 


 


11

















 


time prior to the Closing Date
(which need only be true and correct, to the extent set forth above, as of such
date or time);


 


(c)           Seller shall have
complied in all material respects with all of the covenants and obligations of
it contained in this Agreement;


 


(d)           There shall not have been
a Material Adverse Effect on the Company or Seller;


 


(e)           Purchaser shall have
received a certificate executed by the Chief Executive Officer of Seller, dated
the Closing Date, affirming the statements set forth in Sections 6.1(b) — (d) and
(j);


 


(f)            All necessary consents
of Governmental Authorities required for the consummation of the Acquisition
and the other transactions contemplated by this Agreement, all of which are set
forth on Schedule 6.1(f), shall have been obtained;


 


(g)           There shall not be in
effect any Law of any Governmental Authority restraining, enjoining, materially
delaying or otherwise prohibiting the consummation of the Acquisition and the
other transactions contemplated hereby;


 


(h)           No action, suit, or
proceeding by a third party shall have commenced and not been withdrawn before
any court or quasi-judicial or administrative agency of any U.S. or foreign
jurisdiction or before any arbitrator, in which action, suit or proceeding such
third party has a reasonable likelihood of prevailing, and wherein an
unfavorable injunction, judgment, order, decree, ruling, or charge would (A) prevent
consummation of any of the transactions contemplated by this Agreement and the
Ancillary Agreements or (B) cause any of the transactions contemplated by this
Agreement or the Ancillary Agreements to be rescinded following consummation
thereof (and no such injunction, judgment, order, decree, ruling, or charge
shall be in effect);


 


(i)            Purchaser shall have
received an opinion from an independent valuation firm mutually agreed upon by
Purchaser and Seller dated as of the Closing Date, in form and substance
reasonably satisfactory to Purchaser, opining that the Purchase Price
represents the reasonably equivalent value of (i) the Shares and (ii) the
obligations of Seller under the Ancillary Agreements;


 


(j)            As of March 31,
2009, after giving effect to the transactions contemplated by this Agreement
and the Ancillary Agreements, Seller shall have met each of the financial
metrics set forth in the Financial Metrics Schedule;


 


(k)           Purchaser shall have
received from Seller, on or prior to March 16, 2009, copies, certified by
an officer of Seller, of Seller’s (A) most recent pro forma balance sheet
at March 31, 2009, (B) most recent pro forma projected income
statement at March 31, 2009, and (C) most recent business plan
(forecasts) for each of the four quarters ending on June 30, 2009, September 30,
2009, December 31, 2009, and March 31, 2010 developed by management
of Seller; and


 


12

















 


(l)            On or prior to the
Closing Date, the parties shall have completed and agreed upon (having
negotiated in good faith pursuant to Section 5.11) the License
Agreement and any schedules or exhibits thereto.


 


6.2           Conditions to Seller’s Obligation to
Consummate the Acquisition.  The obligation of Seller to consummate the
Acquisition is subject to the satisfaction or waiver of the following:


 


(a)           Seller shall have
received everything specified in Section 2.2 and Section 2.3;


 


(b)           The representations and
warranties of Purchaser in this Agreement and the other certificates and
documents contemplated hereby shall be true and correct in all material
respects (other than representations and warranties that are qualified as to
materiality or by Material Adverse Effect, which representations shall be true
and correct in all respects) as of the Closing Date, other than representations
and warranties that speak of another specific date or time prior to the Closing
Date (which need only be true and correct, to the extent set forth above, as of
such date or time);


 


(c)           Purchaser shall have
complied in all material respects with all of the covenants and obligations of
it contained in this Agreement;


 


(d)           There shall not have
been a Material Adverse Effect on Purchaser;


 


(e)           Seller shall have
received a certificate from Purchaser executed by an officer of Purchaser,
dated the Closing Date, affirming the statements set forth in Sections 6.2(b) - (d);


 


(f)            All necessary consents
of Governmental Authorities required for the consummation of the Acquisition
and the other transactions contemplated by this Agreement, all of which are set
forth on Schedule 6.2(f), shall have been obtained;


 


(g)           There shall not be in
effect any Law of any Governmental Authority restraining, enjoining, materially
delaying or otherwise prohibiting the consummation of the Acquisition and the
other transactions contemplated hereby; and


 


(h)           No action, suit, or
proceeding by a third party shall have commenced and not been withdrawn before
any court or quasi-judicial or administrative agency of any U.S. or foreign
jurisdiction or before any arbitrator, in which action, suit or proceeding such
third party has a reasonable likelihood of prevailing, and wherein an
unfavorable injunction, judgment, order, decree, ruling, or charge would (A) prevent
consummation of any of the transactions contemplated by this Agreement and the
Ancillary Agreements or (B) cause any of the transactions contemplated by
this Agreement or the Ancillary Agreements to be rescinded following
consummation thereof (and no such injunction, judgment, order, decree, ruling,
or charge shall be in effect).


 


13

















 


ARTICLE VII

TERMINATION


 


7.1           Termination of
Agreement.  This Agreement may be
terminated prior to the Closing as follows:


 


(a)           by mutual written
consent of the parties;


 


(b)           Seller may terminate
this Agreement by giving written notice to Purchaser and the Company at any
time prior to the Closing if: (i) Purchaser has breached any covenant,
representation or warranty in any material respect contained in this Agreement
and such breach has not been cured within twenty (20) calendar days following
the delivery of notice of such breach (so long as Seller is not then in
material breach of any covenant, representation or warranty contained in this
Agreement); or (ii) if the Closing shall not have occurred on or before April 10,
2009 (the “Expiration Date”), by
reason of the failure of any condition precedent under Section 6.2
hereof (unless the failure results primarily from Seller’s breach of any
representation, warranty or covenant contained in this Agreement);


 


(c)           Purchaser may terminate
this Agreement by giving written notice to Seller and the Company at any time
prior to the Closing: (i) if Seller has breached any covenant,
representation or warranty in any material respect contained in this Agreement
and such breach has not been cured within twenty (20) calendar days following
the delivery of notice of such breach (so long as Purchaser is not then in
material breach of any covenant, representation or warranty contained in this
Agreement); or (ii) if the Closing shall not have occurred on or before
the Expiration Date, by reason of the failure of any condition precedent under Section 6.1
hereof (unless the failure results primarily from Purchaser’s breach of any
representation, warranty or covenant contained in this Agreement); or


 


(d)           by any of the parties
if there shall be in effect a final nonappealable judgment or order of a
Governmental Authority of competent jurisdiction restraining, enjoining or
otherwise prohibiting the consummation of the transactions contemplated hereby;
it being agreed that the parties hereto shall use commercially reasonable
efforts to appeal any adverse determination which is not nonappealable (and
pursue such appeal with reasonable diligence).


 


7.2           Procedure Upon
Termination.  In the event of
termination and abandonment in accordance with Section 7.1, written
notice thereof shall forthwith be given to the other party or parties, and this
Agreement shall terminate, and the Acquisition shall be abandoned, without
further action by the parties.


 


7.3           Effect of
Termination.  In the event that
this Agreement is validly terminated in accordance with Section 7.2,
the parties shall be relieved of their duties and obligations arising under
this Agreement after the date of such termination and such termination shall be
without liability to the parties; provided, that no such termination shall
relieve any party hereto from liability for any willful breach of this
Agreement; provided, further, that the obligations of the parties set forth in Section 5.4
(Confidentiality), and Article X (Miscellaneous) hereof shall
survive any such termination and shall be enforceable hereunder.


 


14

















 


ARTICLE VIII

SURVIVAL AND INDEMNIFICATION


 


8.1           Survival.  The representations
and warranties of the parties contained in this Agreement or in any other
certificate, report or other writing delivered pursuant hereto shall survive
until eighteen (18) months following the Closing Date (the “Survival Date”); except that (i) those representations
and warranties contained in Sections  3.1, 3.2, 3.3,
4.1 and 4.2 shall survive indefinitely and (ii) an expiration
of the Survival Date shall not affect the rights of any indemnified party under
this Article VIII or otherwise to seek recovery for indemnifiable
Losses arising out of any fraud or intentional misrepresentation by any
party.  The covenants and agreements of
Purchaser and Seller contained herein shall survive and remain in full force
and effect for the applicable period specified therein, or if no such period is
specified, indefinitely.  Any claim for
indemnification based upon a breach of any such representation, warranty or
covenant and asserted prior to the Survival Date by written notice in
accordance with Section 8.4 shall survive until final resolution of
such claim.  The representations and
warranties contained in this Agreement (and any right to indemnification for
breach thereof) shall not be affected by any investigation, verification or
examination by any party hereto or by any such party or by any such party’s
knowledge of any facts with respect to the accuracy or inaccuracy of any such
representation or warranty.


 


8.2           Indemnification by Seller.  In an aggregate amount not to exceed the
Purchase Price, Seller will
indemnify and hold harmless Purchaser and its directors, officers, agents,
representatives, stockholders and employees, and each Person, if any, who
controls or may control Purchaser within the meaning of the Securities Act (the
“Purchaser Indemnified Parties”)
against any Losses incurred or suffered by any Purchaser Indemnified Parties
(as incurred) relating to or arising out of any of the following:


 


(a)           any breach of or
inaccuracy in any representation or warranty made by Seller pursuant to this
Agreement or any certificate, document, writing or instrument delivered by
Seller pursuant to this Agreement; and


 


(b)           any material breach of
or failure by Seller to perform any covenant or obligation of Seller set out in
this Agreement.


 


8.3           Indemnification by Purchaser. 
In an aggregate amount not to exceed the Purchase Price, Purchaser will
indemnify and hold harmless Seller and
its directors, officers, agents, representatives, stockholders and employees,
and each Person, if any, who controls or may control Seller within the meaning
of the Securities Act (the “Seller
Indemnified Parties”) against any Losses incurred or suffered by any
Seller Indemnified Parties (as incurred) relating to or arising out of any of
the following:


 


(a)           any breach of or any
inaccuracy in any representation or warranty made by Purchaser pursuant to this
Agreement or any certificate, document, writing or instrument delivered by
Purchaser pursuant to this Agreement; and


 


(b)           any material breach of
or failure by Purchaser to perform any covenant or obligation of Purchaser set
out in this Agreement.


 


15

















 


8.4           Notice of Claims; Assumption of Defense. 
The indemnified party shall give prompt notice to the indemnifying
party, in accordance with the terms of Section 10.3, of the assertion of any claim, or the
commencement of Proceeding in respect of which indemnity may be sought hereunder,
specifying the basis therefor and giving the indemnifying party such
information with respect thereto as the indemnifying party may reasonably
request, to the extent known by the indemnified party (but the giving of such
notice shall not be a condition precedent to indemnification hereunder, except
to the extent that any failure to provide such notice materially prejudices the
indemnifying party’s ability to contest any such Proceeding).  The indemnifying party may, at its own
expense: (a) participate in; and (b) upon notice to the indemnified
party and the indemnifying party’s written agreement that the indemnified party
is entitled to indemnification pursuant to Section 8.2  or  Section 8.3
for Losses arising out of such Proceeding, at any time during the course of any
such Proceeding, assume the defense thereof; provided, that: (y) the
indemnifying party’s counsel is reasonably satisfactory to the indemnified
party; and (z) the indemnifying party shall thereafter consult with the
indemnified party upon the indemnified party’s request for such consultation
from time to time with respect to such Proceeding.  If the indemnifying party assumes such
defense, the indemnified party shall have the right (but not the duty) to
participate in the defense thereof and to employ counsel, at its own expense,
separate from the counsel employed by the indemnifying party.  Whether or not the indemnifying party chooses
to defend or prosecute any such Proceeding, all of the parties hereto shall
cooperate in the defense or prosecution thereof.  In the event that the indemnifying party
elects not to assume the defense of any such Proceeding, such election shall
not relieve the indemnifying party of its obligations hereunder.


 


8.5           Settlement or Compromise. 
No party shall settle or compromise any claim, suit, action or
proceeding that implicates the provisions of this Article VIII
without the prior written consent of the other party, which shall not be
unreasonably withheld or delayed (it being understood that it shall not be unreasonable
for the indemnified party to withhold its consent from any settlement which (i) commits
the indemnified party to take, or forbear to take, any action, or (ii) does
not provide for a complete release of the indemnified party by such third-party);
provided, however, that the indemnifying party
may make any settlement of any claims without the written consent of the other
for any settlement that consists solely of monetary payment by the indemnifying
party.  Any settlement or compromise made
or caused to be made by the indemnified party or the indemnifying party, as the
case may be, of any such claim, suit, action or proceeding of the kind referred
to in Section 8.4
shall also be binding upon the indemnifying party or the indemnified party, as
the case may be, in the same manner as if a final judgment or decree had been
entered by a court of competent jurisdiction in the amount of such settlement
or compromise.


 


ARTICLE IX

CERTAIN DEFINITIONS


 


9.1           Definitions.  The following terms,
as used herein, have the following meanings:


 


(a)           “Acquisition”
shall have the meaning set forth in the preamble.


 


(b)           “Affiliates”
of any Person shall mean any other Person directly or indirectly controlling,
controlled by or under common control with such Person.


 


16
















 


(c)                                  “Agreement” shall have the meaning set
forth in the preamble.


 


(d)                                 “Ancillary Agreements” shall mean the
License Agreement, the Termination Agreement, and the Cross-Release.


 


(e)                                  “Bankruptcy Code” means Chapter 11 of
Title 11 of the United States Code, 11 U.S.C. §§ 101, et seq.


 


(f)                                    “Business Day” means a day other
than a Saturday, Sunday or other day on which commercial banks in New York, New
York or Japan are authorized or required by law to close.


 


(g)                                 “Closing” shall have the meaning set
forth in Section 1.3.


 


(h)                                 “Closing Date” shall have the
meaning set forth in Section 1.3.


 


(i)                                     “Code” shall mean the US Internal Revenue Code of 1986, as
amended.


 


(j)                                     “Company” shall have the meaning set
forth in the preamble.


 


(k)                                  “Contract” shall mean any contract,
lease, lease option, commitment, understanding sales order, purchase order,
license, equipment lease, mortgage, note, bond or other agreement, whether
written or oral, including any agreements for the purchase of goods, the
provision of services, agreements with suppliers, security agreements, joint
venture, partnership or similar agreements, advertising agreements, franchise
agreements and broker or distributorship agreements.


 


(l)                                     “Corporate Name Agreements” shall mean
those certain Name Agreements by and among Purchaser, Seller and the Company
dated as of March 31, 2006 related to the use of the name “SHI” and “AXCELIS”.


 


(m)                               “Cross-Release” shall mean that certain
Cross-Release to be entered into by and among the parties to this Agreement as
of the Closing Date, substantially in the form exchanged among the parties to
this Agreement on the date of this Agreement.


 


(n)                                 “Disclosure Schedule” shall have the
meaning set forth in the introductory paragraph to Article III.


 


(o)                                 “Encumbrance” shall mean any encumbrance
or restriction of any kind, including any pledge, security interest, lien,
charge, mortgage, hypothecation, trust deed, easement, lease, finance lease,
sublease, claim (including any contingent, unliquidated or disputed claim),
right of way, covenant, option, condition, right of first refusal or
restriction, however imposed.


 


(p)                                 “Exchange Act” shall have the meaning
set forth in Section 5.12(c).


 


(q)                                 “Expiration Date” shall have the meaning
set forth in Section 7.1(b).


 


17

















 


(r)                                    “Export Sales Agreement” shall mean that
certain Export Sales Agreement by and between Seller and the Company dated as
of January 16, 1996.


 


(s)                                  “Financial Metrics Schedule” shall mean
that certain schedule setting forth certain financial metrics of Seller
exchanged between Purchaser and Seller on the date of this Agreement in
accordance with Section 6.1(j) of this Agreement.


 


(t)                                    “Governmental Authority” shall mean
any:  (a) nation, principality,
state, commonwealth, province, territory, county, municipality, district or
other jurisdiction of any nature; (b) federal, state, local, municipal,
foreign or other government; (c) governmental or quasi-governmental
authority of any nature (including any governmental division, subdivision,
department, agency, bureau, branch, office, commission, council, board,
instrumentality, officer, official, representative, organization, unit, body or
entity and any court or other tribunal); (d) multinational organization or
body; or (e) individual, entity or body exercising, or entitled to
exercise, any executive, legislative, judicial, administrative, regulatory,
police, military or taxing authority or power of any nature.


 


(u)                                 “ICC” shall have the meaning set forth
in Section 10.6(b).


 


(v)                                 “Knowledge” with respect to any Person
shall mean the knowledge of the officers (including, without limitation, the
General Counsel) and directors of such Person after due inquiry.


 


(w)                               “Law” shall mean any federal, state,
local, foreign or other law, decree, statute, ordinance, regulation, rule,
policy, guideline, ordinance, bylaw (zoning or otherwise), order, judgment,
consent decree, permit, settlement agreement, judicial or administrative
decision, injunction or requirement of any kind applicable to or binding on
Purchaser, Seller, the Company or the Shares.


 


(x)                                   “License Agreement” shall mean that
certain License Agreement to be entered into by and between the Company and
Seller as of the Closing Date.


 


(y)                                 “Losses” shall mean all liabilities
(including, without limitation, all Taxes), equitable remedies, losses, costs
(including costs of settlement), fines, damages of any nature, judgments,
penalties, diminution of value, or expenses (including reasonable attorneys’
fees and costs of litigation).


 


(z)                                   “Master License Agreement” shall mean
that certain Master License Agreement by and between the Company and Seller
dated as of January 16, 1996, as amended from time to time.


 


(aa)                            “Material Adverse Effect” shall mean
with respect to any Person, any change, effect, event, occurrence, state of
facts or development which, individually or in the aggregate (i) is or is
reasonably likely to be materially adverse to the business, financial
condition, properties, assets, liabilities (contingent or otherwise) or results
of operations of such Person, taken as a whole, or (ii) would reasonably
be expected to prevent or materially impede the consummation of such Person of
the transactions contemplated by this Agreement.


 


18

















 


(bb)                          “MOU” shall mean that certain Memorandum
of Understanding by and between the Company and Seller dated as of June 1,
2001.


 


(cc)                            “New Loan Document” shall have the
meaning set forth in Section 5.12.


 


(dd)                          “Person” shall mean any individual,
corporation, partnership, limited liability company, association, trust,
Governmental Authority or other entity or organization.


 


(ee)                            “Proceeding” means any action,
litigation, suit, dispute, proceeding, claim, arbitration or investigation of
any nature, civil, criminal, regulatory or otherwise before or by any
Governmental Authority or otherwise.


 


(ff)                                “Purchase Price” shall have the
meaning set forth in Section 1.2.


 


(gg)                          “Purchaser” shall have the meaning
set forth in the preamble.


 


(hh)                          “Purchaser Indemnified Parties”
shall have the meaning set forth in Section 8.2.


 


(ii)                                  “Royalty and Commission Payments” shall
mean the amounts for which Seller is entitled to payment for the period from October 1,
2008 up to and including the Closing Date in respect of (i) accrued and
unpaid royalties under the Master License Agreement and MOU and (ii) accrued
and unpaid commissions under each of the Export Sales Agreement and the Sales
Assistance Agreement.  For the avoidance
of doubt, Royalty and Commission Payments shall not include any amounts for
which Seller alleges that it is entitled to payment with respect to any accrued
and unpaid royalties relating to any SHX product of the Company.


 


(jj)                                  “Sales Assistance Agreement” shall mean
that certain Sales Assistance Agreement by and between Seller and the Company
dated as of January 16, 1996.


 


(kk)                            “Securities Act” shall mean the
Securities Act of 1933, as amended.


 


(ll)                                  “Seller” shall have the meaning set
forth in the preamble.


 


(mm)                      “Seller Indemnified Parties” shall
have the meaning set forth in Section 8.3.


 


(nn)                          “Seller IP” shall mean certain
Patents and Technical Information (as those terms are defined in the License
Agreement) owned or controlled by Seller and that are to be licensed by Seller
to the Company pursuant to the License Agreement.


 


(oo)                          “SEN Marks” shall have the meaning set
forth in Section 5.8.


 


(pp)                          “Shares”  shall have the meaning set forth in the preamble.


 


(qq)                          “Survival Date” shall have the meaning
set forth in Section 8.1.


 


19

















 


(rr)                                “SVB Loan Agreement” means the Loan
and Security Agreement, dated as of April 23, 2008, by and among Silicon
Valley Bank, Seller, and Axcelis Technologies CCS Corporation, as amended,
restated, supplemented or modified from time to time.


 


(ss)                            “SVB Loan Documents” means the SVB Loan
Agreement and any other pledge agreements, security agreements, any guaranties
or any other documents executed in connection with the SVB Loan Agreement.


 


(tt)                                “Taxes” shall mean all taxes,
however denominated, including any interest, penalties or other additions to
tax that may become payable in respect thereof, imposed by any federal,
territorial, state, local or foreign government or any agency or political
subdivision of any such government, which taxes shall include, without limiting
the generality of the foregoing, all income or profits taxes (including, but
not limited to, federal income taxes and state income taxes), payroll and
employee withholding taxes, unemployment insurance, social security taxes,
sales and use taxes, ad valorem taxes, excise taxes, franchise taxes, gross
receipts taxes, business license taxes, occupation taxes, real and personal
property taxes, stamp taxes, environmental taxes, transfer taxes, workers’
compensation, value added taxes and other obligations of the same or of a
similar nature to any of the foregoing.


 


(uu)                          “Terminated Agreements” shall mean any
and all Contracts by and between or among Purchaser and/or the Company and
Seller, including but not limited to that certain (i) Organization
Agreement by and between Purchaser and Seller dated as of December 3,
1982, (ii) Master License Agreement, (iii) Export Sales Agreement, (iv) Sales
Assistance Agreement, (v) Taiwan Sales and Service Agreement by and
between the Company and Seller dated as of April 26, 1999, (vi) Trademark
License Agreement by and between the Company and Seller dated as of June 30,
2000, (vii) MOU, (viii) Corporate Name Agreements, and (ix) 
Memorandum of Understanding by and between Purchaser and Seller dated as of June 6,
2007.  Notwithstanding the foregoing, the
Terminated Agreements shall not include (a) this Agreement, the Ancillary
Agreements, and any Contracts contemplated to be entered into under such
agreements, and (b) the Mutual Non-Disclosure Agreement between Seller and
Purchaser, dated February 16, 2009 and the letter agreement between
Purchaser, Seller, and TPG Capital, L.P., dated June 5, 2008.


 


(vv)                          “Termination Agreement” shall mean that
certain Termination of Agreement to be entered into by and among the parties to
this Agreement as of the Closing Date, substantially in the form exchanged
among the parties to this Agreement on the date of this Agreement.


 


ARTICLE X


MISCELLANEOUS


 


10.1                        Expenses.  Each party shall bear
all expenses incurred by each such party in connection with the negotiations
among the parties, and the authorization, preparation, execution and
performance of this Agreement and the transactions contemplated hereby.


 


10.2                        Amendment; Waivers. 
This Agreement may not be amended, modified or supplemented unless such
amendment is in writing and duly executed by the parties.  No 


 


20

















 


approval,
consent or waiver will be enforceable unless signed by the granting party.  Failure to insist on strict performance or to
exercise a right when entitled does not prevent a party from doing so later for
that breach or a future one.


 


10.3                        Notices.  All notices,
requests, demands, claims and other communications hereunder shall be in
writing.  Any notice, request, demand,
claim, or other communication hereunder shall be deemed duly given: (i) if
personally delivered, when so delivered; (ii) if mailed by registered or
certified U.S. mail (airmail, if international), return receipt requested,
postage prepaid and addressed to the intended recipient as set forth below,
when received; (iii) if given by telecopier, once such notice or other
communication is transmitted to the telecopier number specified below, provided
that:  (A) the sending telecopier
generates a transmission report showing successful completion of such
transaction; and (B) such notice or other communication is promptly
thereafter mailed in accordance with the provisions of clause (ii) above
or sent by internationally-recognized overnight delivery service in accordance
with the provisions of clause (iv) below, and provided, further, that if
such telecopy is sent after 5:00 p.m. local time at the location of the
receiving telecopier, or is sent on a day other than a Business Day, such
notice or communication shall be deemed given as of 9:00 a.m. local time
at such location on the next succeeding Business Day; or (iv) if sent
through an internationally-recognized overnight delivery service that
guarantees next day delivery, two Business Days following its delivery to such
service in time for next day delivery when sent from the United States to Japan
and one Business Day following delivery to such service in time for next day
delivery in all other cases.


 


	
  If to
  Seller, to:

  	
  If to
  Purchaser, to:

  
	
   

  	
   

  
	
  Axcelis Technologies, Inc.

  	
  Sumitomo Heavy Industries, Ltd.

  
	
  108 Cherry Hill Drive

  	
  ThinkPark Tower

  
	
  Beverly, Massachusetts 01915

  	
  1-1 Osaki 2-chome

  
	
  Attn: Chief Executive Officer

  	
  Shinigawa-ku

  
	
  Facsimile: (978) 787-4090

  	
  Tokyo 141-6025, Japan

  
	
   

  	
  Attn: Yukio Kinoshita, Senior Executive 

  
	
  Copy (which
  shall not constitute notice) to:

  	
  Vice President

  
	
   

  	
  Facsimile: 81-3-6866-5111

  
	
  Jones Day LLP

  	
   

  
	
  901 Lakeside Avenue

  	
  Copy (which
  shall not constitute notice) to:

  
	
  Cleveland, Ohio 44114

  	
   

  
	
  Attn: William H. Coquillette

  	
  Morrison & Foerster LLP

  
	
  Facsimile: (216) 579-0212

  	
  425 Market Street

  
	
   

  	
  San Francisco, California 94105

  
	
  If to the
  Company, to:

  	
  Attn: Robert S. Townsend

  
	
   

  	
  Facsimile: (415) 268-7522

  
	
  SEN Corporation, an SHI and Axcelis 

  	
   

  
	
  Company

  	
   

  
	
  SBS Tower 9F

  	
   

  
	
  4-10-1 Yoga, Setagaya-ku

  	
   

  
	
  Tokyo 158-0097, Japan

  	
   

  
	
  Attn: Yoshitomo Hidaka, 

  	
   

  
	
  Representative Director and President

  	
   

  



 


21

















 


	
  Facsimile: 81-3-5491-7804

  	
   

  
	
   

  	
   

  
	
  Copy (which
  shall not constitute notice) to:

  	
   

  
	
   

  	
   

  
	
  Nagashima Ohno & Tsunematsu

  	
   

  
	
  Kioicho Building

  	
   

  
	
  3-12 Kioicho, Chiyoda-ku

  	
   

  
	
  Tokyo 102-0094, Japan

  	
   

  
	
  Attn: Ryuji Sakai

  	
   

  
	
  Facsimile: 81-3-5213-7800

  	
   

  



 


Any party may
change the address to which notices, requests, demands, claims and other
communications hereunder are to be delivered by giving the other parties notice
in the manner herein set forth.


 


10.4                        Counterparts. 
This Agreement may be executed simultaneously in counterparts (including
by way of electronic transmission), each of which shall be deemed an original,
but all of which together shall constitute one and the same instrument.


 


10.5                        Headings.  The headings
preceding the text of Articles and Sections of this Agreement are for reference
only and shall not be deemed part of this Agreement.


 


10.6                        Applicable Law; Arbitration.


 


(a)                                  This
Agreement shall be construed in accordance with, and governed in all respects
by, the substantive laws of the State of New York (without giving effect to
principles of conflicts of laws that would result in the application of the
laws of a jurisdiction other than the State of New York).  This Agreement shall not be governed by the
U.N. Convention on Contracts for the International Sale of Goods, the
application of which is expressly excluded.


 


(b)                                 All
disputes arising out of or in connection with this Agreement shall be finally
settled under the Rules of Arbitration of the International Chamber of
Commerce (“ICC”) by three
arbitrators. Two arbitrators shall be selected by the respective parties, one
by the claimant(s) and one by the respondent(s); the third arbitrator
shall be the chair and shall be appointed by the two party-appointed
arbitrators or, if such two arbitrators fail to agree within thirty (30) days,
by the ICC. The seat of the arbitration shall be Tokyo, Japan. The language of
the arbitration shall be English, in which all of the arbitrators shall be
proficient.  Judgment on the award
rendered may be entered in any court having jurisdiction thereof.  Notwithstanding the foregoing, a party shall
have the right to institute a legal action in a court of proper jurisdiction
for injunctive relief and/or a decree for specific performance pending final
settlement by arbitration in accordance with this provision.  Each of the parties to this Agreement
acknowledges and agrees that it has entered into other agreements related to
this Agreement (including the Termination Agreement, License Agreement and
Cross-Release) with one or more of the other parties, and that, in response to
a demand for arbitration under any one or more of such agreements, any party
may raise, by way of counterclaim or cross-claim, any claims rising out of or
in connection with any of such other agreements.


 


22

















 


10.7                        Specific Performance; Injunctive Relief. 
Each party recognizes and affirms that in the event of breach by it of
the provisions of this Agreement, money damages would be inadequate and the
other parties would have no adequate remedy at law.  Accordingly, each party agrees that the other
parties shall, between the date hereof and the Closing Date, have the right, in
addition to any other rights and remedies existing in its favor, to institute
an action to enforce its rights and obligations under this Agreement not only
by an action or actions for damages, but also by an action or actions for
specific performance, injunction and/or other equitable relief in order to
enforce or prevent any violations (whether anticipatory, continuing or future)
of the provisions of this Agreement without the necessity of proving actual
damages or posting bond pending final settlement by arbitration in accordance
with Section 10.6.  The
parties hereto agree that any and all actions or proceedings raised under any
right pursuant to this Section 10.7 shall be brought in the courts
of the State of New York, County of New York, including federal courts located
therein, should federal jurisdiction requirements exist.  Each of the parties consents to the
jurisdiction of such courts (and of the appropriate appellate courts) in any
such action or proceeding and waives any objection to venue laid therein.  Process in any action or proceeding referred
to in the preceding sentence may be served on any party anywhere in the world.


 


10.8                        Assignment.  This Agreement shall
be binding upon and inure to the benefit of the parties hereto and their
respective heirs, personal representatives, successors and assigns; provided, however, that no assignment
shall be made hereof without the prior written consent of the non-assigning
parties.


 


10.9                        No Third Party Beneficiaries. 
This Agreement is solely for the benefit of the parties and their
respective Affiliates and no provision of this Agreement shall be deemed to
confer upon third parties any remedy, claim, liability, reimbursement, claim of
action or other right in excess of those existing without reference to this
Agreement.


 


10.10                 Entire Understanding. 
This Agreement and the Ancillary Agreements set forth the entire
agreement and understanding of the parties in respect to the transactions
contemplated hereby and supersedes all prior agreements, arrangements and
understandings relating to the subject matter hereof and is not intended to
confer upon any other person any rights or remedies hereunder.  There have been no representations or
statements, oral or written, that have been relied on by any party hereto,
except those expressly set forth in this Agreement and the Ancillary
Agreements.


 


10.11                 Construction. 
The parties acknowledge and agree that each of them have participated in
the drafting of this Agreement and that this Agreement has been reviewed by the
respective legal counsel for such parties and that the normal rule of
construction to the effect that any ambiguities are to be resolved against the
drafting party shall not be applied to the interpretation of this
Agreement.  No inference in favor of, or
against, any party shall be drawn from the fact that one party has drafted any
portion of this Agreement.


 


10.12                 Schedules.  The parties hereto
are exchanging copies of all Schedules referred to in this Agreement, which
Schedules are hereby made a part hereof and incorporated herein by
reference.  All such Schedules shall be
read as of the Closing Date or, as to any of the Schedules bearing a particular
date, as of such other date specified therein. 
The Schedules referred to in 


 


23

















 


this
Agreement and other related instruments or documents may be incorporated herein
and made a part hereof without being attached hereto.


 


10.13                 Severability. 
Whenever possible each provision and term of this Agreement shall be
interpreted in such manner as to be effective and valid under applicable law,
but if any provision or term of this Agreement shall be held to be prohibited
by or invalid under such applicable law, or determined to be void or
unenforceable for any reason, then such provision or term shall be ineffective
only to the extent of such prohibition, invalidity or unenforceability, without
invalidating or affecting in any manner whatsoever the remainder of such provision
or term or the remaining provisions or terms of this Agreement, and the
prohibited, invalid or unenforceable provision shall be modified to the minimum
extent necessary to make it permissible, valid and enforceable, unless the
result of any such invalidity or unenforceability shall be to cause a material
failure of consideration to the party seeking to sustain the validity or
enforceability of the subject provision.


 


10.14                 Currency.  As used in this Agreement, the symbol U.S. $
or $ shall refer to United States Dollars; and the symbol ¥ or JPY shall refer
to Japanese Yen.  Payments of designated
amounts shall be made in the currency specified by the relevant provision of
this Agreement.


 


10.15                 Principles of Construction. 
In this Agreement and all other attached exhibits, annexes and schedules
to this Agreement, unless otherwise expressly indicated or required by the
context:


 


(a)                                  reference
to and the definition of any document or agreement shall be deemed a reference
to such document or agreement as it may be amended, supplemented, revised, or
modified, in writing, from time to time but disregarding any amendment,
supplement, replacement or novation made in breach of this Agreement;


 


(b)                                 defined
terms in the singular shall include the plural and vice versa,
and the masculine, feminine or neuter gender shall include all genders;


 


(c)                                  the
words “including” or “includes” shall be deemed to mean “including without
limitation” and “including but not limited to” (or “includes without limitation”
and “includes but is not limited to”) regardless of whether the words “without
limitation” or “but not limited to” actually follow the term;


 


(d)                                 the
words “hereof,” “herein” and “hereunder” and words of similar import when used
in this Agreement or exhibits, annexes and schedules shall refer to this
Agreement and its exhibits, annexes and schedules as a whole and not to any
particular provision hereof or thereof, as the case may be; and


 


(e)                                  any
reference herein to a time of day means the time of day in New York, New York.


 


[Signatures on Following Page]


 


24

















 


IN WITNESS WHEREOF,
the parties have caused this Agreement to be executed and delivered on the date
first above written.


 


 


	
   

  	
  PURCHASER:

  
	
   

  	
   

  
	
   

  	
  SUMITOMO HEAVY INDUSTRIES, LTD.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
  :  /s/ Yukio Kinoshita

  
	
   

  	
  Name: Yukio Kinoshita

  
	
   

  	
  Title: Representative Director, Senior Executive Vice 

  
	
   

  	
  President and CFO

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  THE COMPANY:

  
	
   

  	
   

  
	
   

  	
  SEN CORPORATION, AN SHI AND AXCELIS COMPANY

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
  :  /s/ Yoshitomo Hidaka

  
	
   

  	
  Name: Yoshitomo Hidaka

  
	
   

  	
  Title: Representative Director and President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  SELLER:

  
	
   

  	
   

  
	
   

  	
  AXCELIS TECHNOLOGIES, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
  :  /s/ Mary G. Puma

  
	
   

  	
  Name: Mary G. Puma

  
	
   

  	
  Title:  Chairman, Chief Executive
  Officer & President

  



 

















 


Exhibit A


 


Terms of the New Loan Documents


 


New
Loan Documents will contain the following term and provisions (except as
modified to incorporate the terms of the New Loan Documents):


 


1.                      Consents. Each of the lender and the secured party (i) consent to the
License Agreement and the terms and conditions thereof, entered into by Axcelis
and SEN, and (ii) agree that, for the purposes of the New Loan Documents,
the License Agreement shall be included as a lien permitted under the New Loan
Documents.


 


2.                      Agreements Concerning the License Agreement.  Each
of the lender and the secured party agree that, notwithstanding anything to the
contrary contained in the New Loan Documents, the security interest in the
Axcelis IP granted to the lender or secured party pursuant to the New Loan
Documents (the “IP Security Interest”) is and shall at all times be
subject to the rights, title and interest granted to SEN under the License
Agreement, and no exercise of remedies by the lender or the secured party under
the New Loan Documents, and no enforcement of their rights with respect to the
collateral (including, without limitation, any foreclosure, strict foreclosure
or deed in lieu of foreclosure) shall terminate, modify, alter or extinguish
the License granted to SEN under the terms of the License Agreement, which
License shall continue in full force and effect under the terms of the License
Agreement.


 


3.                      The provisions set forth above shall be for
the benefit of and may be relied on by SEN and its successors and assigns.


 

















 


List of Schedules Omitted from the Share
Purchase Agreement by and among Sumitomo Heavy Industries, Ltd. (“SHI”),
Axcelis Technologies, Inc. (“Axcelis”) and SEN Corporation, an SHI and
Axcelis Company (“SEN”), as filed with the Securities Exchange Commission (the
“Commission”) on Form 8-K dated February 26, 2009


 


1.               Schedule 12.(a):  Listing the amount due to US Bank National
Association, as trustee, at closing, as a portion of the total Purchase Price
noted in Section 1.2(c). The schedule contains an estimated amount, but
the final amount will vary depending on legal and trustee fees due the bank and
timing of the closing.


 


2.               Schedule 12(b):  This schedule states the portion of the total
Purchase Price to be paid by SEN, and is currently “zero.”


 


3.               Disclosure
Schedule:  Listing the Silicon Valley
Bank consent deliverable under Section 2.1(g), the corporate
organizational documents of SEN and the Organization Agreement dated December 3,
1982 between the Seller and the Purchaser, a copy of which has been filed with
the Commission as Exhibit 10.6 to Axcelis’ Registration Statement on Form S-1
(Registration No. 333-36330)..


 


4.               Schedule 6.1(f):  This schedule states any requisite
governmental consents on behalf of Axcelis and is currently “None.”


 


5.               Schedule 6.2(f):  This schedule states any requisite
governmental consents on behalf of SHI and is currently “None.”


 


Axcelis will furnish supplementally a copy of any omitted schedule to
the Commission upon request.