Exhibit 10.1


 


Conformed Execution Copy


 


AXCELIS TECHNOLOGIES, INC.


 


EXECUTIVE SEPARATION AGREEMENT


 


THIS EXECUTIVE SEPARATION AGREEMENT, dated as of January 28, 2005,
is made by and between Axcelis Technologies, Inc. (hereinafter referred to as
the “Company”) and Jan Paul van Maaren 
(hereinafter referred to as “Executive”).  In consideration of the mutual covenants
contained herein, the parties agree as follows:


 


1.                                       Termination of Active
Employment; Separation Period.  Executive’s last day in the Company’s offices
will be Friday, February 11, 2005. 
Executive’s active employment with the Company will terminate not later
than Thursday, March 31, 2005 (the “Separation Commencement Date”).  During the period from April 1, 2005
through December 30, 2005, Executive will continue to provide services to
the Company on a part time basis from his home office.   As described in Section 2, Executive
will receive the salary continuation and benefits during the period following
the Separation Commencement Date and ending Friday, December 30, 2005 (the
“Separation Period”).  It is understood
that Executive may accept employment with a third party during the Separation
Period.  During the Separation Period,
the Executive shall:


 


1.1.                              cooperate with
the reasonable requests of the Company to support the transition of the
Executive’s duties to other Company personnel; and


 


1.2.                              continue to be
an employee to the extent necessary to provide the benefits described in Section 2.


 


At the end of the Separation
Period, all aspects of Executive’s employment shall terminate (the Termination
Date”).


 


2.                                       Termination Compensation.


 


2.1                                 Axcelis Time
Management (ATM).  Employee
will receive a lump sum amount for his ATM balance, following the commencement
of the Separation Period (ATM will cease to accrue as of the commencement of
the Separation Period).


 


2.2                                 Axcelis Team
Incentive.  Executive
will continue to be eligible for the 2004 Axcelis Team Incentive (ATI) payout
as long as Executive does not voluntarily terminate employment or is terminated
for misconduct prior to the Separation Commencement Date. Executive’s 2004 ATI
payment will continue to be determined by the individual target previously
communicated to the Executive as well as your individual performance multiplier
and the company performance score for 2004, determined by the Board of
Directors. It is contemplated that the 2004 ATI payout will be distributed to
employees no later than March 15, 2005.


 


2.3                                 Salary
Continuation.  The Company
will pay Executive, on a salary continuation basis, Executive’s base salary at
the Separation Commencement Date during the Separation Period, less legally
required payroll tax deductions and the elective deductions referred to in Section 2.4.


 


2.4                                 Benefits.  Attachment
A sets forth detailed information on the impact of Executive’s
separation on Company-provided benefits. 
During the Separation Period, the Company shall:


 





















 


(a)                                  Allow Executive to continue
to contribute to the Company’s 401(k) Plan, (the Executive shall receive any
contribution that may be made by the Company to his account) to the extent
permissible under the Plan and applicable law and maintain Executive’s status
as employed for the purposes of the Eaton Cash Balance Plan, if applicable;


 


(b)                                 Allow Executive to continue
to participate in the Company’s Employee Stock Purchase Plan in accordance with
plan terms, subject to the applicable deductions from the payments under Section 2.1
to reflect such participation;


 


(c)                                  Allow Executive to continue
to vest in his stock options until the Termination Date and to exercise any
vested options until the Termination Date and for 90 days thereafter, to the
extent so provided in the option;


 


(d)                                 Continue Executive’s
participation in the medical and dental plans (including the Mass General
Hospital Executive Registry Program) selected by Executive prior to the
Separation Commencement Date, subject to the applicable deductions from the
payments under Section 2.1 to reflect such participation (Executive will
cease to be covered by the Company’s short and long term disability insurance
upon the Separation Commencement Date and your Company-provided life insurance
on March 31, 2005);


 


(e)                                  Continue to afford the
Executive the privileges afforded under the “Executive Tax Preparation and
Financial Planning Program” subject to the limits outlined in the program
overview document;


 


(f)                                    The Company agrees to allow
the Executive to retain the laptop computer used by him during the Separation
Period;


 


(g)                                 The Company agrees to allow
Executive to maintain email during his Separation Period or until Executive
finds other employment; and


 


(h)                                 The Company agrees to give
the mobile phone to the Executive and pay the Executive a lump sum amount to
cover cell phone premiums at the standard plan level ($99 per month) covering
the Separation Period.


 


2.5                                 Outplacement
Services.  At the
request of Executive, the Company will pay up to $12,500 for an outplacement
service for services rendered in assisting Executive in locating other
employment.  These payments are
contingent upon Executive’s cooperation with the outplacement service and upon
active efforts by Executive to locate another position.


 


2.6                                 Home Office
Furniture.  On or prior
to the Separation Commencement Date, the Company will transfer to Executive,
without charge, the office furniture listed on Attachment B.   This
office furniture will be delivered to the Executive’s home at the Company’s
expense and shall be used by Executive in performing services hereunder as well
as personal use.


 


2.7                                 Relocation.  In the event that the Executive wishes to
return to the Boston metropolitan area other than in connection with new
employment, Axcelis will pay for the move, provided the relocation is
substantially completed during the Separation Period.  The scope and obligations of the Company in
connection with this relocation are set forth in the Company’s domestic
relocation program.  If the Executive fails to
substantially complete his return move prior to the Termination Date, he will
forfeit this benefit.


 


2.8                                 Executive
Acknowledgement of Compensation.  The Executive acknowledges that in exchange
for entering into this Agreement the Executive has received good, sufficient
and valuable consideration in excess of that to which the Executive would
otherwise have been entitled in the absence of this Agreement.  The Executive acknowledges that the Executive
has been paid in full for any and all wages, including accrued unused vacation
pay.  Unless otherwise provided for
expressly in this Agreement, all other benefits have ceased as of the
Separation Commencement Date.


 





















 


2.9                                 Effect of
Breach on Compensation.  The
Executive agrees that the compensation and benefits contained in this Agreement
and which flow to the Executive from the Company are subject to termination,
reduction or cancellation in the event that the Executive takes any action or
engages in any conduct deemed by the Company to be in violation of this
Agreement.


 


3.                                       Executive Obligations.


 


3.1                                 Return of
Property.  The
Executive shall return all papers, files, documents, computers, reference
guides, equipment, keys, identification, credit cards, software, computer
access codes, disks and institutional manuals, or other property belonging to
the Company within one week after the Separation Commencement Date; provided
the Executive shall return the laptop computer referenced in Section 2
above not later than the end of the Separation Period. The Executive shall not
retain any copies, duplicates, reproductions or excerpts of any of the Company’s
property.   The executive may retain
copies of all agreements between the Executive and the Company and other
documents relating to his personal performance.


 


3.2                                 Nondisclosure
of Confidential Information.  During the course of the Executive’s
employment with the Company, the Executive has become acquainted with and/or
developed confidential information belonging to the Company and its customers.
The Executive agrees not to use or to disclose to any person or entity any
confidential information of the Company or of any past or present customer of
the Company, including but not limited to financial data or projections,
customer lists, projects, economic information, systems, plans, methods,
procedures, operations, techniques, know-how, trade secrets or merchandising or
marketing strategies. In addition, Executive shall continue to be bound by the
terms of Employee Invention
Assignment, and Confidentiality Agreement, which the Executive executed in
connection with his employment. That Agreement is affixed hereto and
incorporated by reference as Attachment C.


 


3.3                                 Nondisparagement.  Provided the Executive is not in breach of
his obligations under this Agreement, the Company agrees not to disparage or
make negative statements about the Executive. The Executive agrees not to
disparage or make negative statements about the Company or any of its officers,
directors, agents, employees, successors and assigns.


 


3.4                                 Non-Compete and
Non-Solicitation.  The
Executive hereby agrees with the Company that for a period of 12 months
following the Termination Date:


 


(a)                                  The Executive shall not,
without the prior written consent of the Chief Financial Officer of the
Company, directly or indirectly, engage in, be employed by, act as a consultant
or advisor to, be a director, officer, owner or partner of, or acquire an
interest in, any business competing with any of the businesses conducted by the
Company or any of its subsidiaries or affiliates, nor directly or indirectly
have any interest in, own, manage, operate, control, be connected with as a
stockholder, lender, joint venturer, officer, employee, partner or consultant,
or otherwise engage, invest or participate in any business that is competitive
with any of the businesses conducted by the Company or by any subsidiary or
affiliate of the Company; provided, however, that nothing contained in this Section 3.4
shall prevent the Executive from investing or trading in publicly traded
stocks, bonds, commodities or securities or in real estate or other forms of
investment for Executive’s own account and benefit (directly or indirectly);


 


(b)                                 The Executive shall not
actively solicit any employee of the Company or any of its subsidiaries or
affiliates to leave the employment thereof; and the Executive shall not enter
onto Company property without prior written consent from the Chief Executive
Officer of the Company or other executive officer of the Company; and


 


(c)                                  The Executive shall not
induce or attempt to induce any customer, supplier, licensor, licensee or other
individual, corporation or business organization having a business relationship
with the Company or its subsidiaries or affiliates to cease doing business with
the Company or its subsidiaries or affiliates or in any way interfere with the
relationship between any such customer, supplier, licensor, licensee or other
individual, corporation or business organization and the Company or its
subsidiaries or affiliates.


 





















 


Solicitation of customers for the purposes of
this obligation refers to existing and/or contemplated products as of the time
of this Agreement.


 


(d)                                 The applicable time periods
set forth in this Section 3.4 shall be extended by the time of any (1)
breach by the Executive of any terms of this Agreement, or (2) litigation
involving the Executive and the Company in respect of any of the provisions of
this Agreement (whether by the Executive seeking relief from the terms hereof
or by the Company seeking to enforce the terms hereof or otherwise).


 


3.5                                 Resignations
from Corporate Office.  Not later than the Separation Commencement
Date, the Executive will execute and deliver to the Company his resignation as
a Vice President of the Company and any subsidiaries of the Company, attached
here to as Attachment D.  Executive expressly acknowledges that the
compensation payable to Executive under this Agreement is in full satisfaction
of any compensation due to him in connection with his corporate positions
described in this Section 3.5.


 


3.6                                 Cooperation.  The Executive will cooperate fully with the
Company in its defense of or other participation in any administrative,
judicial or other proceeding arising from any charge, complaint or other action
which has been or may be filed against the Company and with respect to which
Executive has knowledge. The Executive agrees to be responsive to requests for
information related to the smooth transition of a successor to his position.


 


4.                                       SEC Reporting and
Applicability of the Company’s Insider Trading Policy.


 


4.1                                 Rule 144.  For the purposes of Rule 144 promulgated by
the Securities Exchange Commission, the Executive shall cease to be an “affiliate”
of the Company on the Separation Commencement Date.


 


4.2                                 Section 16
Reporting.  The
Executive shall cease to be a reporting person under the Securities Exchange
Act of 1934, as amended, as of the Separation Commencement Date, provided
however, the Executive must file a Form 4 with the SEC to report any purchase,
sale, or option exercise after the Separation Commencement Date if the
transaction occurs within six months following a Form 4 transaction going the
opposite way (e.g., sale vs. purchase) prior to the Separation Commencement
Date.


 


5.                                       Insider Trading Policy.  Assuming the Executive does not acquire
material non-public information after the Separation Commencement Date,
beginning on the date two trading days after the Company’s public announcement
of its earnings for the fiscal quarter ending after the Separation Commencement
Date, the Executive will no longer be subject to restrictions on trading
arising under the Company’s insider trading policy.


 


6.                                       General Release and Covenant
Not to Sue.


 


Release.  In consideration of the Company’s covenants
in this Agreement, the Executive hereby releases and discharges the Company and
its officers, directors, agents, employees, successors and assigns (“Released
Parties”) from any and all claims by the Executive arising before the signing
of this Agreement, including all claims arising out of the Executive’s
employment with the Company or the termination thereof (except those relating
to performance of this Agreement and the Company’s obligations under the
Indemnification Agreement between the Executive and the Company dated September 21,
2000 (the “Indemnification Agreement”)) and claims arising under common law and
claims arising under federal or state labor and employment laws and laws prohibiting
discrimination on the basis of age, sex, race, national origin or disability.
The laws referred to in the preceding sentence include Title VII of the Civil
Rights Act of 1964, as amended; the Equal Pay Act of 1963, as amended; the Age
Discrimination in Employment Act of 1967 (ADEA), as amended; the Fair Labor
Standards Act of 1938, as amended; the Americans With Disabilities Act of 1990,
as amended; the Rehabilitation Act of 1973, as amended; the Family and Medical
Leave Act of 1993, as amended; Chapter 151B of the Massachusetts General Laws,
Chapter 149 of the Massachusetts General Laws; the Massachusetts Civil Rights
Act and the Massachusetts Equal Rights Law; the Worker Adjustment


 





















 


and Retraining Notification
(“WARN”) Act; Maryland Ann. Code Article 100 Sections 88-94, and Maryland
Ann. Code Article 49B, Sections 1 et
seq; or any other state or federal law, order, public policy or
regulation affecting or relating to the rights and/or claims of employees.  Nothing in this Agreement shall be construed
to be a release of certain ADEA and Title VII rights that is not allowed by
law, except that the Executive waives and shall not accept any damages from any
such claims.


 


6.2                                 Covenant Not to
Sue.  The Executive represents and
warrants that he has not filed any complaints, charges, or claims for relief
against the Released Parties with any local, state or federal court or
administrative agency.  The Executive
agrees and covenants not to sue or bring any claims or charges against the
Released Parties with respect to any matters arising out of or relating to the
Executive’s employment with or separation from the Company, other than
enforcement of the terms of this Agreement or the Indemnification
Agreement.  In the event that the
Executive institutes any such action, that claim shall be dismissed upon
presentation of this Agreement and he shall reimburse the Company for all legal
fees and expenses incurred in defending such claim and obtaining its dismissal.


 


6.3           No Implied Admission.  It is understood and agreed that this
Agreement does not constitute any admission by the Company that any action
taken with respect to the Executive was unlawful or wrongful, or that such
action constituted a breach of contract or violated any federal or state law,
policy, rule or regulation.


 


7.                                       Compliance with Federal
Older Workers Benefit Protection Act of 1990.


 


7.1                                 Time To
Consider Agreement.  The
Executive acknowledges that he has been advised in writing to consult with an
attorney and has had ample opportunity to consult with and review this
Agreement with an attorney of his choice, and has been given a period of at
least forty-five (45) days within which to consider whether to sign this
Agreement.  If the Executive has signed
this Agreement prior to the end of this forty-five (45) day period, he
represents that he has done so knowingly and voluntarily.


 


7.2                                 Revocation
Right.  It is agreed and understood
that for a period of seven (7) days following the execution of this Agreement,
which period shall end at 5:00 p.m. on the seventh day following the date of
execution by the Executive, he may revoke this Agreement.  This Agreement will not become effective
until this revocation period has expired. 
This seven (7) day revocation period cannot be shortened by agreement of
the parties or by any other means.


 


8.                                       Miscellaneous.


 


8.1                                 Availability of
Equitable Remedies.  The
Executive agrees and warrants that the covenants contained herein are
reasonable, that valid consideration has been and will be received therefor and
that the agreements set forth herein are the result of arms-length negotiations
between the parties hereto.  The
Executive recognizes and acknowledges that the provisions of Section 3 are
vitally important to the continuing welfare of the Company, and its subsidiaries
and affiliates, and that money damages constitute a totally inadequate remedy
for any violation thereof.  Accordingly,
in the event of any such violation by the Executive, the Company, and its
subsidiaries and affiliates, in addition to any other remedies they may have,
shall have the right to institute and maintain a proceeding to compel specific
performance thereof or to obtain an injunction restraining any action by the
Executive in violation of Section 3.


 


8.2                                 Severability.  In the event that any provision of this
Agreement is found by a court, arbitrator or other tribunal to be illegal,
invalid or unenforceable, then such provision shall not be voided, but shall be
enforced to the maximum extent permissible under applicable law, and the
remainder of this Agreement shall remain in full force and effect.


 


8.3                                 Entire
Agreement.  This
Agreement and its Exhibits constitutes the entire agreement between the parties
about or relating to the Executive’s termination of employment from the
Company, or the Company’s obligations to the Executive with respect to his
termination and fully supersedes any and all prior agreements or understanding
between the parties, other than the Indemification Agreement.


 





















 


8.4                                 Binding Benefit.  This agreement shall be binding on the
parties and upon their heirs, administrators, representatives, executors,
successors and assigns and shall inure to their benefit and to that of their
heirs, administrators, representatives, executors, successors and assigns.


 


8.5                                 Amendments.  This Agreement may not be altered, amended or
modified, except by a further written document signed by the Executive and the
Company.


 


8.6                                 Governing Law.  This Agreement shall be governed by the laws
of the Commonwealth of Massachusetts, without regard to or application of
choice-of-law rules or principles.


 


8.7                                 Limitations on
Recovery.  In the
event that the Executive institutes legal proceedings to enforce this
Agreement, he agrees that the sole remedy available shall be enforcement of the
terms of this Agreement and/or a claim for damages resulting from the breach of
this Agreement, but that under no circumstances shall the Executive be entitled
to receive or collect any damages for claims that Executive has released under
this Agreement.


 





















 


IN WITNESS WHEREOF, the
undersigned have executed this Agreement as of the date first set forth above.


 


 


	
   

  	
  AXCELIS TECHNOLOGIES, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
  :  /s/ Lynnette C. Fallon

  	
   

  
	
   

  	
  Lynnette C. Fallon, Sr.
  Vice President, HR/Legal and General

  Counsel

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  /s/ Jan Paul van Maaren

  	
   

  
	
   

  	
  Jan Paul van Maaren

  
					



 


Attachments (to be
separately delivered)


 


	
  A —

  	
   

  	
  Benefits After
  Termination Date

  
	
  B —

  	
   

  	
  Transferred Office
  Furniture

  
	
  C —

  	
   

  	
  Employee Invention
  Assignment and Confidentiality Agreement

  
	
  D —

  	
   

  	
  Resignation from
  Office