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

 

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TABLE OF CONTENTS

(continued)

 

		Page
10.13	Severability	24
10.14	Currency	24
10.15	Principles of Construction	24

 

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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

 

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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.

 

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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. 

 

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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

 

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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

 

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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

 

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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.

 

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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

 

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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