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, subject to the limitations set
forth in Section 4.


 


(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.


 


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(o)           “Purchase Price” shall mean 85% of the Fair Market
Value of a share of Common Stock on the Purchase Date; provided 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
if such change is announced at least five (5) days prior to the scheduled
beginning of the first Offering Period to be affected thereafter, provided, however, that an Offering Period shall in no
event be longer than twenty-seven (27) months or such longer period as may be
consistent with Section 423 of the Code.


 


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 an 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
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


 


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


 


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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%).


 


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 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


 


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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 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.


 


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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 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.


 


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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 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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