Exhibit 10.1


 


AXCELIS TECHNOLOGIES, INC.


 


EMPLOYEE STOCK PURCHASE PLAN


 


Adopted
by the Board of Directors and the sole stockholder on June 9, 2000, and

effective on July 10, 2000

As amended by the Board of Directors on 

January 27, 2005 and May 12, 2005 (stockholder approval not required)

to be effective January 1, 2006


 


1.                                      PURPOSE.


 


The
purpose of this Plan is to provide an opportunity for Employees of Axcelis
Technologies, Inc. (the “Corporation”) and its Designated Subsidiaries, to
purchase Common Stock of the Corporation and thereby to have an additional
incentive to contribute to the prosperity of the Corporation.  It is the intention of the Corporation that
the Plan qualifies as an “Employee Stock Purchase Plan” under Section 423
of the Internal Revenue Code of 1986, as amended.


 


2.                                      DEFINITIONS.


 


(a)                                  “Board”
shall mean the Board of Directors of the Corporation.


 


(b)                                 “Code”
shall mean the Internal Revenue Code of 1986, as amended.  Any reference to a section of the Code
herein shall be a reference to any successor or amended section of the
Code.


 


(c)                                  “Committee”
shall mean the committee appointed by the Board in accordance with Section 14
of the Plan.


 


(d)                                 “Common
Stock” shall mean the Common Stock of the Corporation, or any stock
into which such Common Stock may be converted.


 


(e)                                  “Compensation”
shall mean base pay, including pay under any system which measures earnings by
quantity and quality of production, variable pay, including without limitation,
bonuses and incentive payments (but excluding sign-on bonuses and bonuses paid
under the Axcelis Team Incentive Plan, and any successors to such plans and any
other similar management bonuses or incentive payments), shift premium and
overtime pay, but excluding severance pay in a single lump sum and not as salary
continuation, pay in lieu of vacation, cost-of-living allowance, retainers,
fees, and any other special remuneration, with any modifications determined by
the Committee.  The Committee shall have
the authority to determine and approve all forms of pay to be 


 





















 


included in the
definition of Compensation and may change the definition on a prospective
basis.


 


(f)                                    “Corporation”
shall mean Axcelis Technologies, Inc., a Delaware corporation.


 


(g)                                 “Designated
Subsidiary” shall mean a Subsidiary that has been designated by the
Committee as eligible to participate in the Plan with respect to its Employees.


 


(h)                                 “Employee”
shall mean an individual classified as an employee (within the meaning of Code Section 3401(c) and
the regulations thereunder) by the Corporation or a Designated Subsidiary on
the Corporation’s or such Designated Subsidiary’s payroll records during the
relevant participation period.  Employees
shall not include individuals classified as independent contractors.


 


(i)                                     “Entry
Date” shall mean the first Trading Day of an Offering Period.


 


(j)                                     “Fair Market Value” shall be the closing sales price
for the Common Stock (or the closing bid, if no sales were reported) as quoted
on the NASDAQ National Market, or other principal securities market on which the
Common Stock is traded, on the date of determination if that date is a Trading
Day, or if the date of determination is not a Trading Day, the last market
Trading Day prior to the date of determination, as reported in The Wall Street Journal or such other source as the
Committee deems reliable.


 


(k)                                  “Offering Period” shall mean the period of six
(6)months commencing on the first Trading Day on or about July 1 of every
year and terminating on the last Trading Day in the period ending six (6) months
later.  Subsequent Offering Periods, if
any, shall run consecutively after the termination of the preceding Offering
Period.  The duration and timing of
Offering Periods may be changed or modified by the Committee.


 


(l)                                     “Participant” shall mean a participant in the Plan as
described in Section 5 of the Plan.


 


(m)                               “Plan” shall mean the Axcelis Technologies, Inc.
Employee Stock Purchase Plan.


 


(n)                                 “Purchase Date” shall mean the last Trading Day of
each Offering Period.


 


(o)                                 “Purchase Price” shall mean 85% of the Fair Market
Value of a share of Common Stock on the Entry Date or on the Purchase Date,
whichever is lower; provided


 


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however, that the
Purchase Price may be adjusted by the Committee pursuant to Section 7.4.


 


(q)                                 “Shareholder”
shall mean a record holder of shares entitled to vote shares of Common Stock
under the Corporation’s by-laws.


 


(r)                                    “Subsidiary”
shall mean any corporation (other than the Corporation) in an unbroken chain of
corporations beginning with the Corporation, as described in Code Section 424(f).


 


(s)                                  “Trading Day” shall mean a day on which U.S. national
stock exchanges and the NASDAQ System are open for trading.


 


3.                                      ELIGIBILITY.


 


3.1                                 Any
Employee regularly employed on a full-time or part-time basis by the
Corporation or by any Designated Subsidiary on an Entry Date shall be eligible
to participate in the Plan with respect to the Offering Period commencing on
such Entry Date, provided that the Committee may establish administrative rules requiring
that employment commence some minimum period (e.g., one pay period) prior to an
Entry Date to be eligible to participate with respect to the Offering Period
beginning on that Entry Date.


 


3.2                                 The
Committee may also determine that a designated group of highly compensated
Employees are ineligible to participate in the Plan so long as the excluded
category fits within the definition of “highly compensated employee” in Code Section 414(q).  No Employee may participate in the Plan if
immediately after an option is granted the Employee owns or is considered to
own (within the meaning of Code Section 424(d)), shares of stock,
including stock which the Employee may purchase by conversion of convertible
securities or under outstanding options granted by the Corporation, possessing
five percent (5%) or more of the total combined voting power or value of all
classes of stock of the Corporation or of any of its Subsidiaries.


 


3.3                                 All
Employees who participate in the Plan shall have the same rights and privileges
under the Plan except for differences which may be mandated by local law and
which are consistent with Code Section 423(b)(5); provided, however, that
any affiliate of the Corporation whose Employees are not granted options under
this Plan may adopt a separate “sub-plan” in accordance with the provisions of Section 15
which is not designed to qualify under Code section 423 and the Employees
participating thereunder need not have the same rights and privileges as
Employees participating in the Code section 423 Plan.  The Board may impose restrictions on
eligibility and participation of Employees who are officers and directors to
facilitate compliance with federal or state securities laws or foreign laws.


 


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4.                                      OFFERING
PERIODS.


 


The Plan shall be
implemented by consecutive Offering Periods with a new Offering Period
commencing on the first Trading Day on or after the date six (6) months
from the first date of the immediately preceding Offering Period, or on such other
date as the Committee shall determine, and continuing thereafter for six (6) months
or until terminated pursuant to Section 13 hereof.  Unless otherwise determined by the Committee,
the Plan will operate with successive six (6) month Offering Periods commencing
at July 1 and January 1.  The
Committee shall have the power to change the duration of future Offering
Periods, without Shareholder approval, and without regard to the expectations
of any Participants.


 


4.1                                 The
Committee shall have the authority to change the duration of Offering Periods
(including the commencement dates thereof) with respect to future offerings
without Shareholder approval if such change is announced at least five (5) days
prior to the scheduled beginning of the first Offering Period to be affected
thereafter.


 


5.                                      PARTICIPATION.


 


5.1                                 An
Employee who is eligible to participate in the Plan in accordance with Section 3
may become a Participant by completing and submitting, on a date prescribed by
the Committee prior to an applicable Entry Date (unless a later date is set by
the Committee), a completed payroll deduction authorization and Plan enrollment
form provided by the Corporation or by following an electronic or other
enrollment process as prescribed by the Committee.  An eligible Employee may authorize payroll
deductions at the rate of any whole percentage of the Employee’s Compensation,
not to exceed ten percent (10%) of the Employee’s Compensation.  As determined by the Committee, payroll
deductions may begin at a date after the effective date of the Plan.  All payroll deductions may be held by the
Corporation and commingled with its other corporate funds where
administratively appropriate.  No interest
shall be paid or credited to the Participant with respect to such payroll deductions.  The Corporation shall maintain a separate
bookkeeping account for each Participant under the Plan and the amount of each
Participant’s payroll deductions shall be credited to such account.  A Participant may not make any additional
payments into such account.


 


5.2                                 Under
procedures established by the Committee, a Participant may withdraw from the
Plan during a Offering Period, by completing and filing a new payroll deduction
authorization and Plan enrollment form with the Corporation or by following
electronic or other procedures prescribed by the Committee, prior to a date set
by the Committee that precedes the Purchase Date.  If a Participant withdraws from the Plan
during an Offering Period, his or her accumulated payroll deductions will be


 


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refunded to the
Participant without interest.  The
Committee may establish rules limiting the frequency with which
Participants may withdraw and re-enroll in the Plan and may impose a waiting
period on Participants wishing to re-enroll following withdrawal.


 


5.3                                 A
Participant may change his or her rate of contribution through payroll
deductions during the periods specified by the Committee by filing a new
payroll deduction authorization and Plan enrollment form or by following
electronic or other procedures prescribed by the Committee.  If a Participant has not followed such
procedures to change the rate of contribution, the rate of contribution shall
continue at the originally elected rate throughout the Offering Period and
future Offering Periods.  In accordance
with Section 423(b)(8) of the Code, the Committee may reduce a
Participant’s payroll deductions to zero percent (0%) at any time during an
Offering Period.


 


6.                                      TERMINATION
OF EMPLOYMENT.


 


In the
event any Participant terminates employment with the Corporation or any of its
Designated Subsidiaries for any reason (including death) prior to the
expiration of a Offering Period, the Participant’s participation in the Plan
shall terminate and all amounts credited to the Participant’s account shall be
paid to the Participant or, in the case of death, to the Participant’s heirs or
estate, without interest.  Whether a
termination of employment has occurred shall be determined by the
Committee.  The Committee may also
establish rules regarding when leaves of absence or changes of employment
status will be considered to be a termination of employment, including rules regarding
transfer of employment among Designated Subsidiaries, Subsidiaries and the
Corporation, and the Committee may establish termination of employment
procedures for this Plan which are independent of similar rules established
under other benefit plans of the Corporation and its Subsidiaries.


 


7.                                      OFFERING.


 


7.1                                 Subject
to adjustment as set forth in Section 10, the maximum number of shares of
Common Stock which may be issued pursuant to the Plan shall be 2.5 million
shares, plus an annual increase to be added on the last day of each fiscal year
of the Corporation beginning in 2001, equal to one percent (1%) of the
outstanding shares of the Corporation on such date or a lesser amount
determined by the Committee, provided that the maximum number of shares of
Common Stock that may be issued pursuant to the Plan shall be 7.5 million
shares.  If, on a given Purchase Date,
the number of shares with respect to which options are to be exercised exceeds
the number of shares then available under the Plan, the Corporation shall make
a pro rata allocation of the shares


 


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remaining available for
purchase in as uniform a manner as shall be practicable and as it shall
determine to be equitable.


 


7.3                                 With
respect to any Offering Period, each eligible Employee who has elected to
participate as provided in Section 5.1 shall be granted, as of such
Employee’s Entry Date, an option for each Offering Period to purchase that
number of whole shares of Common Stock (not to exceed 1,500 shares) which may
be purchased with the payroll deductions accumulated on behalf of such Employee
during each such Offering Period at the purchase price specified in Section 7.4
below, subject to the additional limitation that no Employee participating in
the Section 423 Plan shall be granted an option to purchase Common Stock
under the Plan at a rate which exceeds U.S. twenty-five thousand dollars (U.S.
$25,000) of the Fair Market Value of such Common Stock (determined at the time
such option is granted) for each calendar year in which such option is
outstanding at any time.  The foregoing
sentence shall be interpreted so as to comply with Code Section 423(b)(8).


 


7.4                                 The
purchase price under each option shall a percentage (not less than eighty-five
percent (85%)) established by the Committee (“Designated Percentage”) of the
Fair Market Value of the Common Stock on the Purchase Date on which the Common
Stock is purchased.  The Committee may
change the Designated Percentage with respect to any future Offering Period,
but not below eighty-five percent (85%), and the Committee may determine with
respect to any prospective Offering Period that the option price shall be the
Designated Percentage of the Fair Market Value of the Common Stock on the
Purchase Date.


 


8.                                      PURCHASE
OF STOCK.


 


Upon
the expiration of each Offering Period, a Participant’s option shall be
exercised automatically for the purchase of that number of whole and fractional
shares of Common Stock which the accumulated payroll deductions credited to the
Participant’s account at that time shall purchase at the applicable price
specified in Section 7.4. 
Notwithstanding the foregoing, the Corporation or its designee may make
such provisions and take such action as it deems necessary or appropriate for
the withholding of taxes and/or social insurance which the Corporation or its
Designated Subsidiary is required by law or regulation of any governmental
authority to withhold.  Each Participant,
however, shall be responsible for payment of all individual tax liabilities
arising under the Plan.


 


9.                                      PAYMENT
AND DELIVERY.


 


As
soon as practicable after the exercise of an option, the Corporation shall
deliver to the Participant a record of the Common Stock purchased and the
balance of any amount of payroll deductions credited to the Participant’s
account not used for the


 


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purchase, except as
specified below.  The Committee may
permit or require that shares be deposited directly with a broker designated by
the Committee or to a designated agent of the Corporation, and the Committee
may utilize electronic or automated methods of share transfer.  The Committee may require that shares be
retained with such broker or agent for a designated period of time and/or may
establish other procedures to permit tracking of disqualifying dispositions of
such shares.  The Corporation shall
retain the amount of payroll deductions used to purchase Common Stock as full
payment for the Common Stock and the Common Stock shall then be fully paid and
non-assessable.  No Participant shall
have any voting, dividend, or other Shareholder rights with respect to shares
subject to any option granted under the Plan until the shares subject to the
option have been purchased and delivered to the Participant as provided in this
Section 9.


 


10.                               RECAPITALIZATION.


 


If
after the grant of an option, but prior to the purchase of Common Stock under
the option, there is any increase or decrease in the number of outstanding
shares of Common Stock because of a stock split, stock dividend, combination or
recapitalization of shares subject to options, the number of shares to be
purchased pursuant to an option, the price per share of Common Stock covered by
an option and the maximum number of shares specified in Section 7.1 may be
appropriately adjusted by the Board, and the Board shall take any further actions
which, in the exercise of its discretion, may be necessary or appropriate under
the circumstances.


 


The
Board’s determinations under this Section 10 shall be conclusive and
binding on all parties.


 


11.                               MERGER,
LIQUIDATION, OTHER CORPORATION TRANSACTIONS.


 


In the
event of shareholder approval of a liquidation or dissolution of the
Corporation, the Offering Period will terminate immediately, unless otherwise
provided by the Board in its sole discretion, and all outstanding options shall
automatically terminate and the amounts of all payroll deductions will be
refunded without interest to the Participants.


 


In the
event of a sale of all or substantially all of the assets of the Corporation,
the acquisition by a person (including any entity or group) of beneficial
ownership of a majority of the Corporation’s outstanding capital stock (based
on voting power, but excluding any acquisition by the Corporation, its
affiliate, employee benefit plans of the Corporation or its affiliate, and any
underwriter holding securities temporarily pursuant to an offering), or the
merger or consolidation of the Corporation with or into another corporation,
then in the sole discretion of the Board, (1) each option shall be assumed
or an equivalent option shall be substituted by the successor corporation or
parent or subsidiary of such successor corporation, (2) a date established
by the Board on or


 


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before the date of
consummation of such merger, consolidation or sale shall be treated as a
Purchase Date, and all outstanding options shall be exercised on such date, or (3) all
outstanding options shall terminate and the accumulated payroll deductions will
be refunded without interest to the Participants.


 


12.                               TRANSFERABILITY.


 


Options
granted to Participants may not be voluntarily or involuntarily assigned,
transferred, pledged, or otherwise disposed of in any way, and any attempted
assignment, transfer, pledge, or other disposition shall be null and void and
without effect.  If a Participant in any
manner attempts to transfer, assign or otherwise encumber his or her rights or
interests under the Plan, other than as permitted by the Code, such act shall
be treated as an election by the Participant to discontinue participation in
the Plan pursuant to Section 5.2.


 


13.                               AMENDMENT
OR TERMINATION OF THE PLAN.


 


13.1                           The
Plan shall continue until June 30, 2020 unless otherwise terminated in
accordance with Section 13.2.


 


13.2                           The
Board may, in its sole discretion, insofar as permitted by law, terminate or
suspend the Plan, or revise or amend it in any respect whatsoever, except that,
without approval of the Shareholders, no such revision or amendment shall
materially increase the number of shares subject to the Plan, other than an
adjustment under Section 10 of the Plan.


 


14.                               ADMINISTRATION.


 


The
Board shall appoint a Committee consisting of at least two members who will
serve for such period of time as the Board may specify and whom the Board may
remove at any time.  The Committee will
have the authority and responsibility for the day-to-day administration of the
Plan, the authority and responsibility specifically provided in this Plan and
any additional duty, responsibility and authority delegated to the Committee by
the Board, which may include any of the functions assigned to the Board in this
Plan.  The Committee may delegate to one
or more individuals the day-to-day administration of the Plan.  The Committee shall have full power and
authority to promulgate any rules and regulations which it deems necessary
for the proper administration of the Plan, to interpret the provisions and
supervise the administration of the Plan, to make factual determinations
relevant to Plan entitlements and to take all action in connection with
administration of the Plan as it deems necessary or advisable, consistent with
the delegation from the Board.  Decisions
of the Board and the Committee shall be final and binding upon all
participants.  Any decision reduced to
writing and signed by a majority of the members of the Committee shall be fully
effective as if it had been made at a meeting of the Committee duly held.  The


 


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Corporation shall pay all
expenses incurred in the administration of the Plan.  No Board or Committee member shall be liable
for any action or determination made in good faith with respect to the Plan or
any option granted hereunder.


 


15.                               COMMITTEE
RULES FOR FOREIGN JURISDICTIONS.


 


The
Committee may adopt rules or procedures relating to the operation and
administration of the Plan to accommodate the specific requirements of local
laws and procedures.  Without limiting
the generality of the foregoing, the Committee is specifically authorized to
adopt rules and procedures regarding handling of payroll deductions,
payment of interest, conversion of local currency, payroll tax, withholding
procedures and handling of stock certificates which vary with local
requirements.


 


The
Committee may also adopt “sub-plans” separate from this Plan for purposes of
Code Section 423 applicable to particular affiliates of the Corporation,
which sub-plans may be designed to be outside the scope of Code section 423.  Notwithstanding the foregoing, the shares of
Common Stock issued under any sub-plan shall be aggregated with the shares of
Common Stock issued under this Plan and such aggregate number of shares shall
be subject to the maximum number set forth under Section 7.1 hereof.  The rules of such sub-plans may take
precedence over other provisions of this Plan, with the exception of Section 7.1,
but unless otherwise superseded by the terms of such sub-plan, the provisions
of this Plan shall govern the operation of such sub-plan.


 


16.                               SECURITIES
LAWS REQUIREMENTS.


 


The
Corporation shall not be under any obligation to issue Common Stock upon the
exercise of any option unless and until the Corporation has determined that: (i) it
and the Participant have taken all actions required to register the Common
Stock under the Securities Act of 1933, or to perfect an exemption from the
registration requirements thereof; (ii) any applicable listing requirement
of any stock exchange on which the Common Stock is listed has been satisfied;
and (iii) all other applicable provisions of state, federal and applicable
foreign law have been satisfied.


 


17.                               GOVERNMENTAL
REGULATIONS.


 


This
Plan and the Corporation’s obligation to sell and deliver shares of its stock
under the Plan shall be subject to the approval of any governmental authority
required in connection with the Plan or the authorization, issuance, sale, or
delivery of stock hereunder.


 


18.                               NO
ENLARGEMENT OF EMPLOYEE RIGHTS.


 


Nothing
contained in this Plan shall be deemed to give any Employee the right to be
retained in the employ of the Corporation or any Designated Subsidiary or to


 


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interfere with the right
of the Corporation or Designated Subsidiary to discharge any Employee at any
time.


 


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19.                               GOVERNING
LAW.


 


This
Plan shall be governed by Delaware law, without regard to that State’s choice
of law rules.


 


20.                               EFFECTIVE
DATE.


 


This
Plan was adopted by the Corporation’s Board of Directors on June 9, 2000,
was approved by the sole shareholder of the Corporation on June 9, 2000,
and became effective on July 10, 2000. 
The amendments to the Plan adopted by the Board of Directors on January 27,
2005 shall become effective for Offering Periods commencing on or after January 1,
2006.


 


21.                               REPORTS.


 


Individual accounts shall be maintained for each
Participant in the Plan.  Statements of
account shall be given to Participants at least annually, which statements
shall set forth the amounts of payroll deductions, the Purchase Price, the
number of shares purchased and the remaining cash balance, if any.


 


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