UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549

FORM 10-K

(Mark One)    
ý   ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934

For the fiscal year ended December 31, 2011

o

 

TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934

For the transition period from                  to                 
Commission file number 000-30941

AXCELIS TECHNOLOGIES, INC.
(Exact name of registrant as specified in its charter)

Delaware
(State or other jurisdiction
of incorporation or organization)
  34-1818596
(IRS Employer Identification No.)

108 Cherry Hill Drive
Beverly, Massachusetts 01915
(Address of principal executive offices) (zip code)

(978) 787-4000
(Registrant's telephone number, including area code)

Securities registered pursuant to Section 12(b) of the Act:

Title of each class
 
Name of each exchange on which registered
Common Stock, $.001 par value   The Nasdaq Stock Market LLC

Securities registered pursuant to Section 12(g) of the Act:
None

         Indicate by check mark if the registrant is a well-known seasoned issuer, as defined in Rule 405 of the Securities Act. Yes o No ý

         Indicate by check mark if the registrant is not required to file reports pursuant to Section 13 or Section 15(d) of the Act. Yes o No ý

         Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Yes ý No o

         Indicate by checkmark whether the registrant has submitted electronically and posted on its corporate Web site, of any, every Interactive Data File required to be submitted and posted pursuant to Rule 405 of Regulation S-T during the preceding 12 months (or for such shorter period that the registrant was required to submit and post such files). Yes ý No o

         Indicate by check mark if disclosure of delinquent filers pursuant to Item 405 of Regulation S-K is not contained herein, and will not be contained, to the best of registrant's knowledge, in definitive proxy or information statements incorporated by reference in Part III of this Form 10-K or any amendment to this Form 10-K. ý

         Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of "large accelerated filer," "accelerated filer" and "smaller reporting company" in Rule 12b-2 of the Exchange Act.

Large accelerated filer o   Accelerated filer ý   Non-accelerated filer o
(Do not check if a smaller reporting company)
  Smaller reporting company o

         Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Act). Yes o No ý

         Aggregate market value of the voting stock held by non-affiliates of the registrant as of June 30, 2011: $171,923,525

         Number of shares outstanding of the registrant's Common Stock, $0.001 par value, as of February 27, 2012: 107,117,038.

Documents incorporated by reference:

         Portions of the definitive Proxy Statement for Axcelis Technologies, Inc.'s Annual Meeting of Stockholders to be held on May 2, 2012 are incorporated by reference into Part III of this Form 10-K.



PART I

Item 1.    Business.

Overview of Our Business

        Axcelis Technologies, Inc. ("Axcelis," the "Company," "we," "us," or "our") designs, manufactures and services ion implantation, dry strip and other processing equipment used in the fabrication of semiconductor chips. We sell to leading semiconductor chip manufacturers worldwide. The ion implantation business comprised approximately 74.5% of our revenue in 2011 with the remaining 25.5% of revenue derived from our dry strip and other processing systems. In addition to equipment, we provide extensive aftermarket service and support, including spare parts, equipment upgrades, maintenance services and customer training.

        Axcelis, which was incorporated in Delaware in 1995, is headquartered in Beverly, Massachusetts. We maintain an Internet site at http://www.axcelis.com. We make available free of charge on and through this website our annual reports on Form 10-K, quarterly reports on Form 10-Q, current reports on Form 8-K, and amendments to those reports filed or furnished pursuant to Section 13(a) or 15(d) of the Exchange Act as soon as reasonably practicable after we electronically file such material with, or furnish it to, the Securities and Exchange Commission. Our website and the information contained therein or connected thereto shall not be deemed to be incorporated into this Form 10-K.

Industry Overview

        Semiconductor chips, also known as integrated circuits, are used in personal computers, telecommunication equipment, digital consumer electronics, wireless communication products and other applications. Types of semiconductor chips include memory chips (which store and retrieve information), microprocessors (logic devices which process information) and "system on chip" devices (which have both logic and memory features). Most semiconductor chips are built on a wafer of silicon of either 200mm (8 inches) or 300mm (12 inches) in diameter. Each semiconductor chip is made up of millions of tiny transistors or "switches" to control the functions of the device. Transistors are created in the silicon wafer by introducing various precisely placed impurities into the silicon in specific patterns. The process steps in the formation of transistors are traditionally referred to as "front-end-of-line." The "back-end-of-line" process steps connect the transistors and other components together through several overlapping layers of metal wires, known as interconnect, creating a complete circuit. Each layer of metal interconnect must be separated by a non-conductive or insulating material called inter-level dielectric. Each layer that is added is selectively patterned to all previous layers through a process called photolithography.

        Semiconductor chip manufacturers utilize many different types of equipment in the making of integrated circuits. Over 300 process steps utilizing over 50 different types of process tools are required to make a single device like a microprocessor. Semiconductor chip manufacturers seek efficiency improvements through increased throughput, equipment utilization and higher manufacturing yields. Capacity is added by increasing the amount of manufacturing equipment in existing fabrication facilities and by constructing new fabrication facilities. Periodically the semiconductor industry adopts a larger silicon wafer size to achieve lower manufacturing costs. Semiconductor manufacturers can produce more chips on a larger wafer, thus reducing the overall manufacturing cost per chip. For example, the use of 200mm wafers in production began at the end of the 1980s. The migration from 200mm to 300mm began at the end of the 1990s. The majority of wafer fabrication facilities today are using wafers with a diameter of 300mm. In 2011, Axcelis derived 75.1% of total systems revenue (a component of product revenue) from sales of 300mm equipment. In 2011, industry participants began planning for the next wafer size transition, to 450mm diameter wafers. The schedule for this future transition will vary by customer.

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        The customer base is also changing. Given the magnitude of the investment needed to build a new wafer fabrication facility (often referred to as a "fab"), which can be over $4 billion for a new 300mm fab, many customers are entering into partnerships to offset the cost of technology development and manufacturing. In addition, many chip developers outsource all or part of their chip manufacturing requirements to contract manufacturers, known as foundries. Foundries are significant purchasers of semiconductor manufacturing equipment.

        The semiconductor industry is highly cyclical, as global chip production capacities successively exceed, then lag behind, global chip demand. When chip demand is high, and inventories low, chip manufacturers add capacity though capital equipment purchases. Given the difficulties of forecasting and calibrating chip demand and production capacity, the industry periodically experiences excess chip inventories and softening chip prices. Our customers react with muted capital spending, lowering the demand for our equipment. Changes in consumer and business demand for products in which chips are used also affect the industry. A successful semiconductor equipment manufacturer must not only provide some of the most technically complex products manufactured in the world but also must design its business to thrive during the inevitable low points in the cycle.

        After historic lows in 2009, the market for our products steadily improved during 2010 and we gained market share with our single wafer ion implant systems for high current and high energy applications (the Optima HDx and Optima XEx). This market recovery continued during the first half of 2011, but during the second half of 2011, deterioration within the industry environment decreased our revenues as compared with the first half of the year. In addition, we had delays in key penetrations in the second half of 2011. These delays were a function of poor market conditions and issues in our prioritization of new technology. The Company's 2011 results reflect efforts in recent years to lower our breakeven revenue levels to avoid significant losses in a downturn.

Axcelis' Strategy

        Our mission and vision is to:

        Operationally, we manage our business based on three main tenets:

        We have continued to invest in research and development through the industry cycles to assure our products meet the needs of our customers. We take pride in our scientists and engineers who continue to add to our portfolio of patents and unpatented proprietary technology to ensure that our investment in technology leadership is translated into unique product advantages. We strive for operational excellence by focusing on ways to lower our manufacturing and design costs and to improve our delivery times to our customers. Finally, we have improved our customer support infrastructure and have established Global Customer Teams and a focused account management structure to strengthen our customer relationships and increase customer satisfaction.

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        Although the Company continues to focus on equipment for the semiconductor manufacturing industry, we have and will continue to explore, from time to time, ways to utilize our existing products in alternative markets such as solar and LED (Light-Emitting Diodes).

Ion Implantation Systems

        Ion implantation is a principal step in the transistor formation cycle of the semiconductor manufacturing process. An ion implanter is a large, technically advanced machine that injects dopants such as arsenic, boron or phosphorus into a silicon wafer. These dopants are ionized and therefore have electric charges. With an electric charge they can be manipulated, moved and accelerated with electric and magnetic fields. Ion implanters use these fields to create a beam of ions with a precisely defined amount of energy (ranging between several hundred and three million electron-volts) and with a precisely defined amount of beam current (ranging from microamps to milliamps). Certain areas of the silicon wafer are blocked off by a polymer material known as photoresist, which acts as a "stencil" to pattern devices so that the dopants will only enter the wafer where needed. The dopants change the electrical properties of the silicon wafer to create the active components of a chip, called the transistors. Typical process flows require twenty implant steps, with the most advanced processes requiring thirty or more. Each implant step is characterized by four key parameters: dopant type, dose (amount of dopant), energy (depth into the silicon) and tilt (angle of wafer relative to the ion beam).

        In order to cover the wide range of implant steps, three different types of implanters have been developed, each designed to cover a specific range of applications, primarily defined by dose and energy. The three traditional implanter types are referred to as medium current, high current and high energy:

        Axcelis offers a complete line of high energy, high current and medium current implanters for all application requirements.

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        We believe the Optima products will continue to meet customer demand for advantages in productivity, simplicity, process performance and technical extendibility.

Dry Strip

        In the process steps prior to ion implantation, a light sensitive, polymer-based liquid called photoresist is spread in a uniformly thin film on the wafer. Through a process known as photolithography, the photoresist is developed into a pattern like a stencil. Once the subsequent implant processes and etch steps (in which the top layer of the surface of the wafer not covered by photoresist is removed) are completed, the photoresist is no longer necessary and must be removed. The primary means of removing photoresist and residue is a process called "dry strip" or "ashing." Our dry strip machines, also called "ashers," use microwave and radio frequency energy to turn process gases into plasma, which then acts to "clean" the surface of the wafer by removing the photoresist and unwanted residue.

        Axcelis offers a full line of dry strip tools that cover the entire range of customer applications. Our most advanced products, the Integra RS and ES, bring significantly higher productivity and flexibility to Axcelis' already proven advanced dry strip process capabilities. The Integra's unique multi-chamber design includes paired-chamber process modules that can run production recipes with the highest throughputs available for leading edge memory and logic devices. Each of the chamber pairs can operate independently, giving users the choice of running different cleaning recipes simultaneously or performing maintenance on one module while the others continue to operate. This flexiblity makes the system ideal for a variety of advanced cleaning applications in a high volume manufacturing environment. The platform also includes technology required to address cleaning challenges at emerging transistor device nodes, such as those associated with advanced source/drain formation and high-k/metal-gate structures.

        We believe our dry strip products and technology will continue to meet customer demand for advantages in productivity, process performance and technical extendibility.

Aftermarket Support and Services

        We offer our customers extensive aftermarket service and support throughout the lifecycle of the equipment we manufacture as well as equipment we previously manufactured. We believe that approximately 3,000 of our products are in use in 32 countries worldwide. The service and support that we provide include spare parts, equipment upgrades, and maintenance services. We provide service out of 32 field offices to customers located in 32 countries. Revenue generated through our service and support business represented about 46.2%, 51.7%, and 73.8% of revenue in 2011, 2010, and 2009, respectively.

        To support our aftermarket business we have several hundred staff members, including sales and marketing personnel, field service engineers, and spare parts and applications engineers, as well as employees located at our manufacturing facilities who work with our customers to provide customer training and documentation, product, process and applications support. In 2011, Applied Materials, Inc.

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provided aftermarket services and support services for our products in Japan. This role will be transitioned to Ulvac Techno, a Japanese company, in 2012.

        Most of our customers maintain spare parts inventories for our machines. In addition to our web-based spare parts management and replenishment tracking program, we offer a number of Business-to-Business options to support our customers' parts management requirements. Our Axcelis Managed Inventory service offering, a parts consignment arrangement, provides the customer with full spares support, with Axcelis retaining responsibility for the complete supply chain. The expansion of these services provides ease of use alternatives that help us reduce order fulfillment costs and improve cycle time, resulting in an expanded customer base for this service offering.

Sales and Marketing

        We primarily sell our equipment and services through our direct sales force. We have 11 sales offices in 7 countries. Aftermarket service and support is also offered at all of these offices. In the United States, we conduct sales and marketing activities from two locations. Outside of the United States, our sales offices are located in Taiwan, South Korea, China, Germany, Singapore and Italy. In addition, isolated sales are made in smaller markets through distributors and manufacturing representatives.

        Since March 2009, SEN Corporation, or "SEN" (our former Japanese joint venture, which was divested in 2009), has held a non-exclusive license to use certain patented and unpatented technology associated with legacy products owned by the Company. Axcelis benefits from a reciprocal license of implant technology from SEN. These royalty-free, perpetual cross licenses do not restrict our ability to sell any of our products in Japan or elsewhere in the world. See Note 17 to our Consolidated Financial Statements contained in Item 15 of this Annual Report on Form 10-K for further information regarding SEN.

        International revenue, including export sales from our U.S. manufacturing facilities to foreign customers, sales by foreign subsidiaries and branches, and royalties, accounted for 72.3% of total revenue in 2011, 75.8% in 2010, and 62.8% in 2009. Substantially all of our sales are denominated in U.S. dollars. See Note 15 to our Consolidated Financial Statements contained in Item 15 of this Form 10-K for a breakdown of our revenue and long-lived assets in the United States, Europe and Asia.

Customers

        In 2011, the top 20 semiconductor manufacturers accounted for approximately 84.6% of total semiconductor industry capital spending, up from 78.9% in 2010. These manufacturers are from the four largest semiconductor manufacturing regions in the world: the United States, Asia Pacific (Taiwan, South Korea, Singapore, and China), Japan and Europe. The Company serves all leading semiconductor manufacturers.

        Revenue from our ten largest customers accounted for 68.6%, 62.7%, and 56.6% of revenue in 2011, 2010, and 2009, respectively. We expect that sales of our products to relatively few customers will continue to account for a high percentage of revenue for the foreseeable future. In 2011, one customer accounted for 21.2% of revenue. In 2010, one customer accounted for 18.6% of revenue. In 2009 no customer accounted for more than 10% of revenue.

        Our Beverly, Massachusetts Advanced Technology Center houses a process development laboratory with 12,500 sq. ft. of class 10/100/1000 clean room for product demonstrations and process development and a 34,000 sq. ft. customer training center. The Advanced Technology Center provides infrastructure and process capabilities that allow customers to test their unique process steps on our systems under conditions that substantially replicate the customers' production environment. This facility also provides significant capability for our research and development efforts.

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Research and Development

        Our industry continues to experience rapid technological change, requiring us to frequently introduce new products and enhancements. Our ability to remain competitive in this market will depend in part upon our ability to develop new and enhanced systems and to introduce these systems at competitive prices on a timely and cost effective basis.

        We devote a significant portion of our personnel and financial resources to research and development programs and seek to maintain close relationships with our customers to remain responsive to their product needs. We have also sought to reduce the development cycle for new products through a collaborative process whereby our engineering, manufacturing and marketing personnel work closely together with one another and with our customers at an earlier stage in the process. We also use 3D, computer-aided design, finite element analysis and other computer-based modeling methods to test new designs.

        Our expenditures for research and development were $47.2 million, $39.5 million and $32.7 million in 2011, 2010, and 2009, respectively, or 14.8%, 14.4% and 24.6% of revenue, respectively. We expect that research and development expenditures will continue to represent a substantial investment in future years.

Manufacturing

        We manufacture products at our 417,000 sq. ft. ISO 9000:2008, ISO 14001:2004 certified plant in Beverly, Massachusetts. Our facility employs best in class manufacturing techniques including lean manufacturing, six sigma controls and advanced inventory management, purchasing and quality systems. Our clean manufacturing process uses class 1000/10,000 space to facilitate most of our manufacturing requirements.

        The Company's core manufacturing competency is built around system assembly and test which remains an in house capability due to the high degree of expertise and intellectual property associated with the process and design. Non-core work is sourced to one of several global partners and includes items such as power distribution, vacuum systems, wafer handling and commodity level components. We continuously pursue outsourcing opportunities where the economics are justified, with a goal of enabling factory capacity, quality and margin improvement. Our supply chain team is globally focused and is located in Beverly and Singapore. Customized and commercially available software solutions drive our planning, purchasing and inventory tracking process.

        Our products are designed to be assembled and tested in a modular fashion, which facilitates our industry-recognized "ship-from-cell" process. Specially developed test stands, software and tooling provide the framework for this accelerated delivery process. Customers that choose ship-from-cell substantially improve their delivery times while receiving the same high level of quality provided by more traditional longer cycle integration techniques. Product margins and inventory turns also improve as a result of shorter factory cycle times and increased labor productivity.

        Installation of our equipment is provided by factory and field teams. The process includes placing and leveling the equipment at its installation site, connecting it to sources of gas, water and electricity and recalibrating it to specifications that had previously been met during factory testing.

Competition

        The semiconductor wafer fabrication equipment market is highly competitive and is characterized by a small number of medium to large size participants. We compete in two principal product markets of the semiconductor wafer fabrication process: ion implantation and dry strip. Significant competitive factors in the semiconductor equipment market include price, cost of ownership, equipment

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performance, customer support, breadth of product line, distribution and financial viability. Relationships also have a significant influence on a customer's choice of equipment supplier.

        Ion Implantation.    In ion implantation, we compete against Varian Semiconductor Equipment Associates, Inc. (acquired by Applied Materials, Inc. in late 2011), SEN, Nissin Electric Co., Ltd. and Advanced Ion Beam Technology, Inc.

        Dry Strip.    Our principal competitors in the dry strip product market are PSK, Inc., Mattson Technology Inc. and Novellus Systems, Inc.

Intellectual Property

        We rely on patent, copyright, trademark and trade secret protection, as well as contractual restrictions, in the United States and in other countries to protect our proprietary rights in our products and our business. As of January 1, 2012, we had 377 patents issued in the United States and 469 patents granted in other countries, as well as 719 patent applications (72 in the United States and 647 in other countries) on file with various patent agencies worldwide. Patents are generally in effect for up to 20 years from the filing of the application.

        We intend to file additional patent applications and grow our intellectual property portfolio as appropriate. Although patents are important to our business, we do not believe that we are substantially dependent on any single patent or any group of patents.

        We have trademarks, both registered and unregistered, that are maintained to provide customer recognition for our products in the marketplace.

        From time to time, we enter into license agreements with third parties under which we obtain or grant rights to patented or proprietary technology. Except for our license agreement with SEN (described above under "Sales and Marketing"), we do not believe that any of our licenses are currently material to us.

        We can give no assurance that we, our licensors, licensees, customers or suppliers will not be subject to claims of patent infringement or claims to invalidate our patents, or that any such claims will not be successful, requiring us to pay substantial damages or remove certain features from our products or both.

Backlog

        As of December 31, 2011, our systems backlog (excluding deferred systems revenue) was $10.8 million, as compared to $51.7 million as of December 31, 2010. Systems backlog including deferred systems revenue was $23.1 million and $68.0 million as of December 31, 2011 and 2010, respectively. The decrease in backlog is indicative of the overall trend toward slowdown in the semiconductor equipment market during the second half of 2011. We believe it is meaningful to investors to include deferred systems revenue as part of our backlog. Deferred systems revenue represents revenue that will be recognized in future periods based on prior shipments. Our policy is to include in backlog only those system orders for which we have accepted purchase orders and typically are due to ship within six months. Backlog does not include orders received for our service business (spare parts, consumables and service contracts) due to the turn rate associated with that business. Generally, orders for services or parts received during the quarter are performed or shipped within the same quarter. All orders are subject to cancellations or rescheduling by customers with limited or no penalties. Due to possible changes in system delivery schedules, cancellations of orders, and delays in systems shipments, our backlog at any particular date is not necessarily indicative of our actual sales for any succeeding period. In addition, our backlog at the beginning of a quarter typically does not include all orders required to achieve our sales objectives for that quarter and is not a reliable indicator of our future sales.

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Employees

        As of December 31, 2011, we had 1,025 employees and 22 temporary staff worldwide, of which 784 work in North America, 203 in Asia and 60 in Europe. We consider our relationship with our employees to be good. Our employees are not represented by a labor union and are not subject to a collective bargaining agreement. One of our European locations has formed a work council, which has certain information and discussion rights under applicable law.

Environmental

        We are subject to environmental laws and regulations in the countries in which we operate that regulate, among other things: air emissions; water discharges; and the generation, use, storage, transportation, handling and disposal of solid and hazardous wastes produced by our manufacturing, research and development and sales activities. As with other companies engaged in like businesses, the nature of our operations exposes us to the risk of environmental liabilities, claims, penalties and orders. We believe, however, that our operations are in substantial compliance with applicable environmental laws and regulations and that there are no pending environmental matters that would have a material impact on our business. We are ISO-14001 certified at our Beverly, MA facility.

Executive Officers of the Registrant

        Mary G. Puma, 54, has been our President and Chief Executive Officer since January 2002 and Chairman since 2005. From May 2000 until January 2002, Ms. Puma was our President and Chief Operating Officer, prior to which she served as a Vice President of Axcelis from February 1999. In 1998, she became General Manager and Vice President of the Implant Systems Division of Eaton Corporation, a global diversified industrial manufacturer. In May 1996, she joined Eaton as General Manager of the Commercial Controls Division. Prior to joining Eaton, Ms. Puma spent 15 years in various marketing and general management positions for General Electric Company. Ms. Puma is a director of Nordson Corporation, North Shore Medical Center and Semiconductor Equipment and Materials International (SEMI).

        Jay Zager, 62, became our Executive Vice President and Chief Financial Officer in January 2011. Prior to joining Axcelis, from 2007 until 2010, Mr. Zager was Executive Vice President and Chief Financial Officer at 3Com Corporation, a global enterprise networking solutions provider acquired by Hewlett Packard. From February 2005 until June 2007, Mr. Zager was Executive Vice President and Chief Financial Officer at Gerber Scientific, Inc., a supplier of automated manufacturing systems. Prior to joining Gerber, Mr. Zager was Senior Vice President and Chief Financial Officer of Helix Technology Corp., a semiconductor equipment manufacturer, from February 2002 to January 2005.

        Kevin J. Brewer, 53, has been our Executive Vice President, Operations since 2008. Mr. Brewer held the position of Senior Vice President, Manufacturing Operations since May 2005, prior to which he had been Vice President of Manufacturing Operations since October 2002 and Director of Operations from 1999 to 2002. Prior to joining Axcelis in 1999, Mr. Brewer was Director of Operations, Business Jets at Raytheon Aircraft Company, a leading manufacturer of business and special mission aircraft owned by Raytheon Company, a manufacturer of defense, government and commercial electronics, as well as aircraft. Prior to that, Mr. Brewer held various management positions in operations and strategic planning in Raytheon Company's Electronic Systems and Missile Systems groups.

        Lynnette C. Fallon, 52, is our Executive Vice President, Human Resources/Legal and General Counsel, a position she has held since May 2005. Prior to that, Ms. Fallon was Senior Vice President HR/Legal and General Counsel since 2002, and Senior Vice President and General Counsel since 2001. Ms. Fallon has also been our corporate Secretary since 2001. Before joining Axcelis, Ms. Fallon was a partner in the Boston law firm of Palmer & Dodge LLP since 1992, where she was head of the Business Law Department from 1997 to 2001.

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        William Bintz, 55, has been our Executive Vice President, Product Development, Engineering and Marketing since 2011. Prior to that, he was our Senior Vice President, Marketing since September 2007, after joining Axcelis in early 2006 as Director of Marketing for curing and cleaning products and shortly thereafter becoming Vice President of Product Marketing. Prior to joining Axcelis, from 2002 Mr. Bintz was Product Director for Medium Current and High Energy Ion Implant System at Varian Semiconductor Equipment Associates, Inc. Before that, he was General Manager of the Materials Delivery Products Group at MKS Instruments, beginning in 1999, and General Manager of the Thermal Processing Systems Division at Eaton Corporation (now Axcelis) beginning in 1995.

Item 1A.    Risk Factors.

Risks Related to Our Business and Industry

        Set forth below and elsewhere in this Form 10-K and in other documents we file with the SEC are risks and uncertainties that could cause actual results to differ materially from the results contemplated by the forward-looking statements contained in this Form 10-K. We note that factors set forth below, individually or in the aggregate, may cause our actual results to differ materially from expected and historical results. We note these factors for investors as permitted by the Private Securities Litigation Reform Act of 1995. You should understand that it is not possible to predict or identify all such factors. Consequently, you should not consider the following to be a complete discussion of all potential risks or uncertainties.

If we fail to develop and introduce reliable new or enhanced products and services that meet the needs of semiconductor manufacturers, our results will suffer.

        Rapid technological changes in semiconductor manufacturing processes require us to respond quickly to changing customer requirements. Our future success will depend in part upon our ability to develop, manufacture and successfully introduce new systems and product lines with improved capabilities and to continue to enhance existing products. This will depend upon a variety of factors, including new product selection, timely and efficient completion of product design and development and of manufacturing and assembly processes, product performance in the field and effective sales and marketing. In particular:

        Our failure to meet any of these requirements will have a material adverse effect on our operating results and profitability.

We may be unable to obtain needed additional capital to finance our operations.

        Our capital requirements may vary widely from quarter to quarter, depending on, among other things, capital expenditures, fluctuations in our operating results, financing activities, acquisitions and investments and inventory and receivables management. We believe that our existing cash and cash

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equivalents will be sufficient to satisfy our anticipated cash requirements through the end of 2012 and beyond, but this, of course, depends on the accuracy of our assumptions about levels of sales and expenses. A number of factors, including those described in these "Risk Factors," could prove our assumptions wrong and cause us to require additional capital from external sources. Depending on market conditions, future debt or equity financings may not be possible on attractive terms or at all. In addition, future debt or equity financings could be dilutive to the existing holders of our common stock.

If semiconductor manufacturers do not make sufficient capital expenditures, our sales and profitability will be harmed.

        Almost all of our new orders will depend upon demand from semiconductor manufacturers who build or expand fabrication facilities. When the rate of construction or expansion of fabrication facilities declines, demand for our systems will decline, reducing our revenue. Revenue decline also hurts our profitability because our fixed cost structure and our continued investments in engineering, research and development and marketing necessary to develop new products and to maintain extensive customer service and support capabilities limit our ability to reduce expenses in proportion to declining sales.

Our financial results may fluctuate significantly.

        We derive most of our revenue from the sale of a relatively small number of expensive products to a small number of customers. The list prices on these products range from $0.2 million to $5.0 million. At our current sales level, each sale, or failure to make a sale, has a material effect on us in a particular quarter. In a given quarter, a number of factors can adversely affect our revenue and results, including changes in our product mix, increased fixed expenses per unit due to reductions in the number of products manufactured, and higher fixed costs due to increased levels of research and development and expansion of our worldwide sales and marketing organization. Our financial results also fluctuate based on gross profit realized on sales. A variety of factors may cause gross profit as a percentage of revenue to vary, including the mix and average selling prices of products sold, costs to manufacture and customize systems and warranty costs. New product introductions may also affect our gross margins. Fluctuations in our financial results may have an adverse effect on the price of our common stock.

Our financial results may fall short of anticipated levels; forecasting revenue and profitability is complex and may be inaccurate.

        Management may from time to time provide financial forecasts. These forecasts are based on assumptions, believed to be reasonable when made, of shipment timing and contract terms. However, in some cases, the final customer terms may not have been agreed and documented at the time the forecast is made, so the level of revenue recognizable in a particular quarter may vary from the forecast. Our lengthy sales cycle, coupled with customers' competing capital budget considerations, make the timing of customer orders uneven and difficult to predict. In addition, our backlog at the beginning of a quarter typically does not include all orders required to achieve our sales objectives for that quarter and is not a reliable indicator of our future sales. As a result, our revenue and operating results for a quarter depend on our shipping orders as scheduled during that quarter, receiving customer acceptance of shipped products during the quarter, and obtaining new orders for products to be shipped in that same quarter. Any delay in, or cancellation of, scheduled shipments and customer acceptances or in shipments from new orders could materially and adversely affect our financial results.

        Accounting rules addressing revenue recognition have added additional complexity in forecasting quarterly revenue and profitability. Orders for our products usually contain multiple delivery elements that result in revenue deferral under generally accepted accounting principles. Due to the foregoing factors, investors should understand that our actual financial results for a quarter may vary significantly

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from our forecasts of financial performance for that quarter. Failure to meet forecasted financial performance may have an adverse effect on the price of our common stock.

The semiconductor industry is highly cyclical and we expect that demand for our products will regularly increase and decrease, making it difficult to manage the business and potentially causing harm to our sales and profitability.

        The semiconductor business is highly cyclical, experiencing upturns when the demand for our products is high and downturns when our customers are not investing in new or expanded fabrication facilities. From time to time, inventory buildups in the semiconductor industry, resulting in part from periodic downturns, produce an oversupply of semiconductors. This will cause semiconductor manufacturers to revise capital spending plans, resulting in reduced demand for capital equipment such as our products. If an oversupply is not reduced by increasing demand from the various electronics industries that use semiconductors, which we cannot accurately predict, our sales and profitability will be harmed. Our revenue can vary significantly from one point in the cycle to another, making it difficult to manage the business, both when revenue is increasing and when it is decreasing. In addition, a substantial portion of our operating expenses are fixed and do not fluctuate with changes in volume. Significant decreases in revenue can therefore have a disproportionate effect on profitability.

If we fail to compete successfully in the highly competitive semiconductor equipment industry, our sales and profitability will decline.

        The market for semiconductor manufacturing equipment is highly competitive and includes companies with substantially greater financial, engineering, manufacturing, marketing and customer service and support resources than we have that may be better positioned to compete successfully in the industry. In addition, there are smaller, emerging semiconductor equipment companies that provide innovative systems with technology that may have performance advantages over our systems. We expect our competitors to continue to improve the design and performance of their existing products and processes and to introduce new products and processes with improved price and performance characteristics. If we are unable to improve or introduce competing products when demanded by the markets, our business will be harmed. In addition, if competitors enter into strategic relationships with leading semiconductor manufacturers covering products similar to those sold or being developed by us, our ability to sell products to those manufacturers may be adversely affected. Finally, if we must lower prices to remain competitive without commensurate cost of goods savings, our gross margins and profitability will be adversely affected.

We have been dependent on sales to a limited number of large customers; the loss of any of these customers or any reduction in orders from them could materially affect our sales.

        Historically, we have sold a significant portion of our products and services to a limited number of fabricators of semiconductor products. For example, in 2011, our top ten customers accounted for 68.6% of our net sales. None of our customers has entered into a long-term agreement requiring it to purchase our products. Although the composition of the group comprising our largest customers has varied from year to year, the loss of a significant customer or any reduction or delays in orders from any significant customer could adversely affect us. The ongoing consolidation of semiconductor manufacturers may also increase the harmful effect of losing one or more significant customers.

Axcelis is subject to the risks of operating internationally and we derive a substantial portion of our revenue from outside the United States, especially from Asia.

        We are substantially dependent on sales of our products and services to customers outside the United States. International sales, including export sales from our U.S. manufacturing facilities to non-U.S. customers and sales by our non-U.S. subsidiaries and branches, accounted for 72.3% of total

11


revenue in 2011 in comparison to 75.8% in 2010 and 62.8% in 2009. System shipments to Asian customers represented 60% of total shipment dollars in 2011 in comparison to 68% in 2010 and 76% in 2009. We anticipate that international sales will continue to account for a significant portion of our revenue. Because of our dependence upon international sales, our results and prospects may be adversely affected by a number of factors, including:

We may not be able to maintain and expand our business if we are not able to hire, retain and integrate qualified personnel.

        Our business depends on our ability to attract and retain qualified, experienced employees. There is substantial competition for experienced engineering, technical, financial, sales and marketing personnel in our industry. In particular, we must attract and retain highly skilled design and process engineers. Competition for such personnel is intense, particularly in the Boston metropolitan area, as well as in other locations around the world. If we are unable to retain our existing key personnel, or attract and retain additional qualified personnel, we may from time to time experience levels of staffing inadequate to develop, manufacture and market our products and perform services for our customers. As a result, our growth could be limited or we could fail to meet our delivery commitments or experience deterioration in service levels or decreased customer satisfaction, all of which could adversely affect our financial results.

Our dependence upon a limited number of suppliers for many components and sub-assemblies could result in increased costs or delays in the manufacture and sale of our products.

        We rely to a substantial extent on outside vendors to manufacture many of the components and sub-assemblies of our products. We obtain many of these components and sub-assemblies from either a sole source or a limited group of suppliers. Accordingly, we may be unable to obtain an adequate supply of required components on a timely basis, on price and other terms acceptable to us, or at all.

        In addition, we often quote prices to our customers and accept customer orders for our products before purchasing components and sub-assemblies from our suppliers. If our suppliers increase the cost of components or sub-assemblies, we may not have alternative sources of supply and may not be able to raise the price of our products to cover all or part of the increased cost of components.

        The manufacture of some of these components and sub-assemblies is an extremely complex process and requires long lead times. As a result, we have in the past, and may in the future, experience delays or shortages. If we are unable to obtain adequate and timely deliveries of our required components or sub-assemblies, we may have to seek alternative sources of supply or manufacture these components internally. This could delay our ability to manufacture or to ship our

12


systems on a timely basis, causing us to lose sales, incur additional costs, delay new product introductions and suffer harm to our reputation.

Our international operations involve currency risk.

        Substantially all of our sales are billed in U.S. dollars, thereby reducing the impact of fluctuations in foreign exchange rates on our results. Operating margins of certain foreign operations can fluctuate with changes in foreign exchange rates to the extent revenue is billed in U.S. dollars and operating expenses are incurred in the local functional currency. During the year ended December 31, 2011, approximately 21% of our revenue was derived from foreign operations with this inherent risk. In addition, at December 31, 2011, our operations outside of the United States accounted for approximately 37% of our total assets, the majority of which was denominated in currencies other than the U.S. dollar.

Our stock price has been volatile and you could lose the value of your investment.

        Our stock price has been volatile and has fluctuated significantly to date. The trading price of our stock is likely to continue to be highly volatile and subject to wide fluctuations. Your investment in our stock could lose value. Some of the factors that could significantly affect the market price of our stock include:

        The stock market in general has experienced extreme price fluctuations.

Our proprietary technology may be vulnerable to efforts by competitors to challenge or design around, potentially reducing our market share.

        We rely on a combination of patents, copyrights, trademark and trade secret laws, non-disclosure agreements and other intellectual property protection methods to protect our proprietary technology. Despite our efforts to protect our intellectual property, our competitors may be able to legitimately ascertain the non-patented proprietary technology embedded in our systems. If this occurs, we may not be able to prevent their use of this technology. Our means of protecting our proprietary rights may not be adequate and our patents may not be sufficiently broad to prevent others from using technology that is similar to or the same as our technology. In addition, patents issued to us have been, or might be challenged, and might be invalidated or circumvented and any rights granted under our patents may not provide adequate protection to us. Our competitors may independently develop similar technology, duplicate features of our products or design around patents that may be issued to us. As a result of these threats to our proprietary technology, we may have to resort to costly litigation to enforce or defend our intellectual property rights. Finally, all patents expire after a period of time (in the U.S., patents expire 20 years from the date of filing of the patent application). Our market share could be negatively impacted by the expiration of a patent which had created a barrier for our competitors.

        Axcelis also has agreements with third parties for licensing of patented or proprietary technology with Axcelis as the licensor or the licensee. Termination of license agreements could have an adverse impact on our financial performance or ability to ship products with existing configurations.

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We (or customers that we indemnify) might face intellectual property infringement claims or patent disputes that may be costly to resolve and, if resolved against us, could be very costly to us and prevent us from making and selling our systems.

        From time to time, claims and proceedings have been or may be asserted against us relative to patent validity or infringement matters. We typically agree to indemnify our customers from liability to third parties for intellectual property infringement arising from the use of our products in their intended manner. Therefore, we occasionally receive notification from customers who believe that we owe them indemnification or other obligations related to infringement claims made against the customers by third parties. Our involvement in any patent dispute or other intellectual property dispute or action to protect trade secrets, even if the claims are without merit, could be very expensive to defend and could divert the attention of our management. Adverse determinations in any litigation could subject us to significant liabilities to third parties, require us to seek costly licenses from third parties and prevent us from manufacturing and selling our systems. In addition, infringement indemnification clauses in system sale agreements may require us to take other actions or require us to provide certain remedies to customers who are exposed to indemnified liabilities. Any of these situations could have a material adverse effect on our business results.

If operations were disrupted at Axcelis' primary manufacturing facility it would have a negative impact on our business.

        We have one primary manufacturing facility, located in Massachusetts. Its operations could be subject to disruption for a variety of reasons, including, but not limited to natural disasters, work stoppages, operational facility constraints and terrorism. Such disruption could cause delays in shipments of products to our customers and could result in cancellation of orders or loss of customers, which could seriously harm our business.

Item 1B.    Unresolved Staff Comments.

        None.

Item 2.    Properties.

        We own one property and lease 48 properties, of which 15 are located in the United States and the remainder are located in Asia and Europe, including offices in Taiwan, Singapore, South Korea, China, Malaysia, Italy, and Germany.

        Our principal facilities are listed below:

Facility Location
  Principal Use   Square Footage
(Owned/Leased)
Beverly, Massachusetts   Manufacturing, research and development, sales/marketing, customer support, advanced process development, product demonstration, customer-training center and corporate headquarters.   417,000
(owned)

Rockville, Maryland

 

Research and development and customer support.

 

11,000
(leased)

        Although we are currently operating significantly below normal capacity as a result of the continuing downturn in the industry, we believe that there is no material long-term, excess capacity in our manufacturing facilities, although utilization is subject to change based on customer demand. We believe that our manufacturing facilities and equipment generally are well maintained, in good operating condition, suitable for our purposes, and adequate for our present operations. Our Beverly,

14


Massachusetts facility is ISO 9001 and ISO 14001 certified and all other locations are ISO 9001 certified.

Item 3.    Legal Proceedings.

        The Company is not presently a party to any litigation that it believes might have a material adverse effect on its business operations. The Company is, from time to time, a party to litigation that arises in the normal course of its business operations.

Item 4.    Mine Safety Disclosures.

        Not applicable.

15



PART II

Item 5.    Market for Registrant's Common Equity, Related Stockholder Matters and Issuer Purchases of Equity Securities.

        Our common stock trades on the Nasdaq Global Select Market under the symbol ACLS. The following table sets forth the high and low sale prices as reported on the Nasdaq Global Select Market during each of the quarters for the two most recent years. As of February 29, 2012, we had approximately 5,000 stockholders of record. We have never paid any cash dividends to our shareholders and do not anticipate paying cash dividends in the future and in any event, we would be restricted from doing so by the terms of our bank credit agreement.

 
  Common Stock Price  
 
  High   Low  

2010

             

First Quarter

  $ 1.86   $ 1.41  

Second Quarter

  $ 2.58   $ 1.44  

Third Quarter

  $ 1.96   $ 1.34  

Fourth Quarter

  $ 3.72   $ 1.80  

2011

             

First Quarter

  $ 3.77   $ 2.20  

Second Quarter

  $ 2.69   $ 1.48  

Third Quarter

  $ 1.94   $ 1.14  

Fourth Quarter

  $ 1.55   $ 1.00  

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Item 6.    Selected Financial Data.

        The following selected consolidated statements of operations data for each of the three years ended December 31, 2011, 2010, and 2009 and the consolidated balance sheet data as of December 31, 2011 and 2010 have been derived from the audited consolidated financial statements contained in Item 15 of Part IV of this Form 10-K. The selected consolidated balance sheet data as of December 31, 2009 and 2008, and the statement of operations data for the years ended December 31, 2008 and 2007, has been derived from the audited financial statements contained in our Form 10-K filed on March 15, 2010. The consolidated balance sheet data as of December 31, 2007 has been derived from the audited financial statements contained in our Form 10-K filed on March 17, 2008.

        The historical financial information set forth below may not be indicative of our future performance and should be read together with "Management's Discussion and Analysis of Financial Condition and Results of Operations" and our historical consolidated financial statements and notes to those statements included in Item 7 of Part II and Item 15 of Part IV, respectively, of this Form 10-K.

 
  Years ended December 31,  
 
  2011   2010   2009   2008   2007  
 
  (In thousands, except per share amounts)
 

Consolidated statements of operations data:

                               

Revenue

  $ 319,416   $ 275,212   $ 133,022   $ 250,214   $ 404,800  

Gross profit

    114,737     85,838     28,064     62,615     152,861  

Equity income (loss) of SEN

            (3,238 )   (3,667 )   10,416  

Income (loss) before Income taxes

    7,471     (17,261 )   (76,603 )   (195,803 )   (11,808 )

Net income (loss)

    5,077     (17,573 )   (77,468 )   (196,664 )   (11,398 )

Net income (loss) per share:

                               

Basic

  $ 0.05   $ (0.17 ) $ (0.75 ) $ (1.91 ) $ (0.11 )

Diluted

  $ 0.05   $ (0.17 ) $ (0.75 ) $ (1.91 ) $ (0.11 )

Shares used in computing basic and diluted per share amounts:

                               

Basic

    106,234     104,522     103,586     102,739     101,891  

Diluted

    109,098     104,522     103,586     102,739     101,891  

Consolidated balance sheet data:

                               

Cash and cash equivalents

  $ 46,877   $ 45,743   $ 45,020   $ 37,694   $ 83,877  

Working capital

    164,561     160,501     163,849     111,182     284,679  

Total assets

    269,245     280,872     250,603     455,181     669,929  

Long-term liabilities

    7,218     7,176     4,447     5,808     89,920  

Stockholders' equity

    214,555     205,567     216,399     319,377     486,006  

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Item 7.    Management's Discussion and Analysis of Financial Condition and Results of Operations.

        Certain statements in "Management's Discussion and Analysis of Financial Condition and Results of Operations" are forward-looking statements that involve risks and uncertainties. Words such as may, will, should, would, anticipates, expects, intends, plans, believes, seeks, estimates and similar expressions identify such forward-looking statements. The forward-looking statements contained herein are based on current expectations and entail various risks and uncertainties that could cause actual results to differ materially from those expressed in such forward-looking statements. Factors that might cause such a difference include, among other things, those set forth under "Liquidity and Capital Resources" and "Risk Factors" and others discussed elsewhere in this Form 10-K. Readers are cautioned not to place undue reliance on these forward-looking statements, which reflect management's analysis only as of the date hereof. We assume no obligation to update these forward-looking statements to reflect actual results or changes in factors or assumptions affecting forward-looking statements, except as may be required by law.

Overview

        The semiconductor capital equipment industry is subject to significant cyclical swings in capital spending by semiconductor manufacturers. Capital spending is influenced by demand for semiconductors and the products using them, the utilization rate and capacity of existing semiconductor manufacturing facilities and changes in semiconductor technology, all of which are outside of our control. As a result, our revenue and gross margins fluctuate from year to year and period to period. We typically become more efficient in manufacturing products as they mature. Our expense base is largely fixed and does not vary significantly with changes in volume. Therefore, we experience fluctuations in operating results and cash flows depending on our revenue as driven by the level of capital expenditures by semiconductor manufacturers.

        The sizable expense of building, upgrading or expanding a semiconductor fabrication facility is increasingly causing semiconductor companies to contract with foundries to manufacture their semiconductors. In addition, consolidation and partnering within the semiconductor manufacturing industry is increasing. We expect these trends to continue to reduce the number of our potential customers. This growing concentration of Axcelis' customers may increase pricing pressure as higher percentages of our total revenue are tied to the buying decisions of a particular customer or a small number of customers. Axcelis' net revenue from its ten largest customers accounted for 68.6% of total revenue for the year ended December 31, 2011 compared to, 62.7%, and 56.6% of revenue for the years ended December 31, 2010 and 2009, respectively.

        After historic lows in 2009, the market for our products steadily improved during 2010 and we gained market share with our single wafer ion implant systems for high current and high energy applications (the Optima HDx and Optima XEx). This market recovery continued during the first half of 2011, but during the second half of 2011, deterioration within the industry environment decreased our revenues as compared with the first half of the year. In addition, we had delays in key penetrations in the second half of 2011. These delays were a function of poor market conditions and issues in our prioritization of new technology. However, in 2011 we continued to penetrate new customers with our Optima implant products which we expect will lead to additional future sales. In 2011 we also gained market share with our Integra dry strip products. We expect the industry to recover in 2012, and as a result, we believe that our financial results will improve. In the event that industry conditions cause the demand for Axcelis' products to decline in future periods, we believe that we can align manufacturing and operating expense levels to changing business conditions and provide sufficient liquidity to support operations.

        Operating results for the years presented are not necessarily indicative of the results that may be expected for future interim periods or years as a whole.

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Critical Accounting Estimates

        Management's discussion and analysis of our financial condition and results of operations are based upon Axcelis' consolidated financial statements, which have been prepared in accordance with accounting principles generally accepted in the United States. The preparation of these financial statements requires management to make estimates and judgments that affect the reported amounts of assets, liabilities, revenue and expenses, and related disclosure of contingent assets and liabilities. On an on-going basis, we evaluate our estimates and assumptions. Management's estimates are based on historical experience and on various other assumptions that are believed to be reasonable under the circumstances, the results of which form the basis for making judgments about the carrying values of assets and liabilities that are not readily apparent from other sources. Actual results may differ from these estimates under different assumptions or conditions.

        We believe the following accounting policies are critical in the portrayal of our financial condition and results of operations and require management's most significant judgments and estimates in the preparation of our consolidated financial statements. For additional accounting policies see Notes to Consolidated Financial Statements Note 2. Significant Accounting Policies.

Revenue Recognition

        Our revenue recognition policy involves significant judgment by management. As described below, we consider a broad array of facts and circumstances in determining when to recognize revenue, including contractual future service obligations to the customer, the complexity of the customer's post delivery acceptance provisions, payment history, customer creditworthiness and the installation process. In the future, if the post delivery acceptance provisions and installation process become more complex or result in a materially lower rate of acceptance, we may have to revise our revenue recognition policy, which could delay the timing of revenue recognition.

        Axcelis' system sales transactions are made up of multiple elements, including the system itself and elements that are not delivered simultaneously with the system. These undelivered elements might include a combination of installation services, extended warranty and support and spare parts, all of which are generally covered by a single sales price. Effective January 1, 2011, we adopted Accounting Standards Update, or ASU, No. 2009-13, Multiple Deliverable Revenue Arrangements, as required, using the prospective method. Accordingly, this guidance is being applied to all system revenue arrangements entered into or materially modified on or after January 1, 2011. The adoption of the amended guidance did not change the accounting for arrangements entered into prior to January 1, 2011. There was no material impact on our financial position, results of operations or cash flows upon adoption and we do not expect adoption will have a material impact on our future reporting periods based on our current practices.

        The impact of adopting this amended guidance on our results of operations has been limited to transactions involving the sale of systems. ASU No. 2009-13 amended the previous guidance for multiple-element arrangements. Pursuant to the amended guidance in ASU 2009-13, our system revenue arrangements with multiple elements are divided into separate units of accounting if specified criteria are met, including whether the delivered element has stand-alone value to the customer. If the criteria are met, then the consideration received is allocated among the separate units based on their relative selling price, and the revenue is recognized separately for each of the separate units.

        We determine selling price for each unit of accounting (element) using vendor specific objective evidence (VSOE) or third-party evidence (TPE), if they exist, otherwise, we use best estimated selling price (BESP). The Company generally expects that it will not be able to establish TPE due to the nature of its products, and, as such, the Company typically will determine selling price using VSOE or BESP.

19


        Where required, the Company determines BESP for an individual element based on consideration of both market and Company-specific factors, including the selling price and profit margin for similar products, the cost to produce the deliverable and the anticipated margin on that deliverable and the characteristics of the varying markets in which the deliverable is sold.

        The total consideration to be received in the transaction is allocated to each element in the arrangement based upon the relative selling price of each element when compared to the consideration received.

        Systems are not sold separately and VSOE or TPE is not available for the systems element. Therefore the selling price associated with systems is based on BESP. The allocated value for installation in the arrangement includes (a) the greater of (i) the relative selling price of the installation or (ii) the portion or the sales price that will not be received until the installation is completed (the "retention"). The selling price of installation is based upon the fair value of the service performed, including labor, which is based upon the estimated time to complete the installation at hourly rates, and material components, both of which are sold separately. The selling price of all other elements (extended warranty for support, spare parts, and labor) is based upon the price charged when these elements are sold separately, or VSOE.

        Product revenue for products which have demonstrated market acceptance, is generally recognized upon shipment provided title and risk of loss has passed to the customer, evidence of an arrangement exists, prices are contractually fixed or determinable, collection is reasonably assured through historical collection results and regular credit evaluations, and there are no uncertainties regarding customer acceptance. Revenue from installation services is recognized at the time formal acceptance is received from the customer or, for certain customers, when both the formal acceptance and retention payment have been received. Revenue for other elements is recognized at the time products are shipped or the related services are performed.

        We generally recognize product revenue for systems which have demonstrated market acceptance at the time of shipment because the customer's post-delivery acceptance provisions and installation process have been established to be routine, commercially inconsequential and perfunctory. While some customers accept Axcelis' standard specifications, the majority of Axcelis' systems are designed and tailored to meet the customer's specifications, as outlined in the contract between the customer and Axcelis. To ensure that the customer's specifications are satisfied, many customers request that new systems be tested at Axcelis' facilities prior to shipment, normally with the customer present, under conditions that substantially replicate the customer's production environment and the customer's criteria are confirmed to have been met. We believe the risk of failure to complete a system installation is remote. Should an installation not be completed successfully, the contractual provisions do not provide for forfeiture, refund or other purchase price concession beyond those prescribed by the provisions of the Uniform Commercial Code applicable generally to such transactions.

        For initial shipments of systems with new technologies or in the small number of instances where Axcelis is unsure of meeting the customer's specifications or obtaining customer acceptance upon shipment of the system, Axcelis will defer the recognition of systems revenue and related costs until written customer acceptance of the system is obtained. This deferral period is generally within twelve months of shipment.

        Revenue related to maintenance and service contracts is recognized ratably over the duration of the contracts, or based on parts usage, where appropriate. Revenue related to service hours is recognized when the services are performed.

        Royalty revenue was primarily earned under the terms of our license agreement with SEN. Royalty revenue was recorded at the time SEN notified Axcelis that royalties had been earned.

20


Impairment of Long-Lived Assets

        We record impairment losses on long-lived assets when events and circumstances indicate that these assets might not be recoverable. Recoverability is measured by a comparison of the assets' carrying amount to their expected future undiscounted net cash flows. If such assets are considered to be impaired, the impairment is measured based on the amount by which the carrying value exceeds its fair value.

        Future actual performance could be materially different from our current forecasts, which could impact future estimates of undiscounted cash flows and may result in the impairment of the carrying amount of the long-lived assets in the future. This could be caused by strategic decisions made in response to economic and competitive conditions, the impact of the economic environment on our customer base, or a material adverse change in our relationships with significant customers.

        As of December 31, 2011 the Company completed a test for recoverability due to indicators that were present at December 31, 2011. Results of this test indicated no impairment as of December 31, 2011. The Company did not record an impairment charge for the years ended December 31, 2011, 2010, or 2009.

Accounts Receivable—Allowance for Doubtful Accounts

        We record an allowance for doubtful accounts for estimated losses resulting from the inability of our customers to make required payments. Our allowance for doubtful accounts is established based on a specific assessment of collectibility of our customer accounts. If the financial condition of our customers were to deteriorate, resulting in an impairment of their ability to make payments, additional allowances may be necessary.

Inventory—Allowance for Excess and Obsolescence

        We record an allowance for estimated excess and obsolete inventory. The allowance is determined using management's assumptions of materials usage, based on estimates of forecasted and historical demand and market conditions. If actual market conditions become less favorable than those projected by management, additional inventory write-downs may be required.

        Although we make every effort to ensure the accuracy of our forecasts or product demand and pricing assumptions, any significant unanticipated changes in demand, pricing, or technical developments would significantly impact the value of our inventory and our reported operating results. In the future, if we find that estimates are too optimistic and determine that inventory needs to be written down, the Company will recognize such costs in our cost of revenue at the time of such determination. Conversely, if we find our estimates are too pessimistic and we subsequently sell product that has previously been written down, our gross margin in that period will be favorably impacted.

Product Warranty

        We generally offer a one year warranty for all of our systems, the terms and conditions of which vary depending upon the product sold. For all systems sold, we accrue a liability for the estimated cost of standard warranty at the time of system shipment and defer the portion of systems revenue attributable to the fair value of non-standard warranty. Costs for non-standard warranty are expensed as incurred. Factors that affect our warranty liability include the number of installed units, historical and anticipated product failure rates, material usage and service labor costs. We periodically assess the adequacy of our recorded liability and adjust the amount as necessary.

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Results of Operations

        The following table sets forth our results of operations as a percentage of total revenue for the periods indicated:

 
  Years Ended December 31,  
 
  2011   2010   2009  

Revenue:

                   

Product

    90.0 %   88.2 %   74.2 %

Service

    10.0     11.8     25.5  

Royalties, primarily from SEN

            0.3  
               

Total revenue

    100.0     100.0     100.0  

Cost of revenue:

                   

Product

    56.8     61.1     63.3  

Services

    7.3     7.7     15.6  
               

Total cost of revenue

    64.1     68.8     78.9  
               

Gross profit

    35.9     31.2     21.1  

Operating expenses:

                   

Research and development

    14.8     14.4     24.6  

Sales and marketing

    9.1     10.0     19.0  

General and administrative

    9.8     11.7     25.6  

Restructuring charges

            4.2  
               

Total operating expenses

    33.7     36.1     73.4  
               

Income (loss) from operations:

    2.2     (4.9 )   (52.3 )

Other income (expense):

                   

Gain on sale of SEN

            0.8  

Equity loss of SEN

            (2.4 )

Interest income

            0.1  

Interest expense

            (1.3 )

Other, net

    0.1     (1.5 )   (2.6 )
               

Total other income (expense)

    0.1     (1.5 )   (5.4 )
               

Income (loss) before income taxes

    2.3     (6.4 )   (57.7 )

Provision for income taxes

    0.7         0.7  
               

Net income (loss)

    1.6 %   (6.4 )%   (58.4 )%
               

Year ended December 31, 2011 in comparison to the year ended December 31, 2010

Revenue

        Revenue increased significantly in 2011 compared to 2010 as the Company benefited from improving market conditions and increased capacity utilization at customers' manufacturing facilities during the first half of 2011. However during the second half of 2011, deterioration within the industry environment resulted in a decrease in our revenues as compared to the first half of the year.

Product

        Product revenue, which includes systems sales, sales of spare parts and product upgrades, was $237.9 million or 90.0% of revenue in 2011, compared with $242.8 million, or 88.2% of revenue in 2010. The increase in product revenue in 2011 is attributable to the strengthening of the semiconductor market and a related increase in capital spending by semiconductor manufacturers during the first half

22


of 2011. However, our revenues decreased during the second half of 2011 due to the weakening of the semiconductor market and the related delay in capital spending by semiconductor manufacturers. In addition, we had delays in key penetrations in the second half of 2011. These delays were a function of poor market conditions and issues in our prioritization of new technology. Despite this market slowdown we believe we are gaining market traction with our single wafer ion implant systems. During 2011, we also gained market share with our Integra dry strip products.

        Approximately 24.9% of systems revenue in 2011 was from sales of 200mm products and 75.1% was from sales of 300mm products, compared with 12.8% and 87.2% for sales of 200mm products and 300mm products in 2010, respectively.

        A portion of our revenue from system sales is deferred until installation and other services related to future deliverables are performed. The total amount of deferred revenue at December 31, 2011 and 2010 was $12.3 million and $16.3 million, respectively. The decrease was mainly due to the decrease in systems sales in the second half of 2011 and the timing of acceptance of deferred system sales.

Service

        Service revenue, which includes the labor component of maintenance and service contracts and fees for service hours provided by on-site service personnel, was $32.1 million, or 10.0% of revenue for 2011, compared with $32.4 million, or 11.8% of revenue, for 2010. Although service revenue should increase with the expansion of the installed base of systems, it can fluctuate from period to period based on capacity utilization at customers' manufacturing facilities, which affects the need for equipment service. The slight decrease during 2011 was primarily due to a decrease in fabrication utilization in the semiconductor industry particularly during the second half of 2011.

Revenue Categories used by Management

        As an alternative to the line item revenue categories discussed above, management also uses revenue categorizations which look at revenue by product line (the most significant of which is ion implant) and by aftermarket, as described below.

Ion Implant

        Included in total revenue of $319.4 million in 2011 is revenue from sales of ion implantation products and related service of $237.9 million, or 74.5% of total revenue, compared with $232.4 million, or 84.4%, of total revenue in 2010. The dollar increase was due to the factors discussed above for product revenue. Annual revenue from the sale of ion implantation products and service typically averages from 70% to 80% of total revenue.

Aftermarket

        The Company's product revenue includes sales of spare parts and product upgrades as well as complete systems. We refer to the business of selling spare parts and product upgrades, combined with the sale of maintenance labor and service contracts and service hours, as the "aftermarket" business. Included in total revenue of $319.4 million in 2011 is revenue from our aftermarket business of $147.6 million, compared to $142.2 million for 2010. Aftermarket revenue generally increases with expansion of the installed base of systems but can fluctuate from period to period based on capacity utilization at customers' manufacturing facilities which affects the sale of spare parts and demand for equipment service.

23


Gross Profit

Product

        Gross profit from product revenue was 36.9% for the twelve months ended December 31, 2011, compared to 30.8% for the twelve months ended December 31, 2010. The increase in gross profit of 6.1 percentage points is due primarily to a favorable mix of products at higher margins and leveraging our on-going efforts to drive labor and material productivity through lean, ship from cell and our global sourcing efforts.

Service

        Gross profit from service revenue was 27.0% for the twelve months ended December 31, 2011, compared to 34.3% for the twelve months ended December 31, 2010. The decrease in gross profit is attributable to changes in the mix of service contracts and the unfavorable absorption of fixed service costs.

Research and Development

        Research and development expense was $47.2 million in 2011, an increase of $7.7 million, or 19.5%, compared with $39.5 million in 2010. The increase was primarily payroll costs due to increased headcount ($3.8 million), as well as increased amortization and depreciation costs for assets used as demonstration and/or test systems ($1.8 million), increased project material costs ($1.1 million), and increased professional fee expenses ($1.0 million).

        Research and development expense was attributable to the following activities for 2011: 57% for new product development, 30% for improvement and enhancement of existing products, and 13% for product testing.

Sales and Marketing

        Sales and marketing expense was $29.3 million in 2011, an increase of $1.8 million, or 6.5%, compared with $27.5 million in 2010. The increase was driven primarily by increased payroll costs ($2.5 million), increased travel costs ($0.4 million), increased freight costs ($0.1 million), increased miscellaneous other ($0.4 million), offset by decreased supplies and marketing costs ($1.6 million).

General and Administrative

        General and administrative expense was $31.2 million in 2011, a decrease of $0.9 million, or 2.8% compared with $32.1 million in 2010. The lower general and administrative expense in 2011 was driven primarily by decreased incentive compensation expense ($1.9 million), and decreased professional fee expenses ($0.6 million), offset by increased payroll costs ($0.6 million), increased separation costs associated with the retirement of a former executive of the Company ($0.3 million) and increased other miscellaneous costs ($0.7 million).

Other Income (Expense)

        Other income (expense) for the year ended December 31, 2011 primarily consisted of foreign exchange gains compared to foreign exchange losses in 2010, as a result of U.S. dollar currency fluctuations against the local currencies of certain of the countries in which we operate.

        For the year ended December 31, 2011 the Company incurred $1.2 million of foreign exchange gains. For the year ended December 31, 2010 the Company incurred $1.9 million of foreign exchange losses. Included in foreign exchange losses in 2010 are $0.3 million of foreign exchange losses relating to currency hedging activities.

24


Income Taxes

        We incur income tax expense relating principally to operating results of foreign entities in jurisdictions in Europe and Asia, where we earn taxable income. We have significant net operating loss carryforwards in the United States and certain European jurisdictions, and, as a result, we do not currently pay significant income taxes in those jurisdictions. Additionally we do not recognize the tax benefit for such losses in the United States and certain European taxing jurisdictions. In the fourth quarter of 2011, the Company recorded a tax expense of $0.9 million related to an uncertain tax position in one of our European jurisdictions.

        In 2010, the Company performed an evaluation of the deferred tax assets of certain of our foreign subsidiaries for which the Company had previously established a valuation allowance. Based on the subsidiaries' recent and expected ability to generate taxable income, the Company reduced the subsidiaries' corresponding valuation allowance and recognized a tax benefit of $1.3 million.

Year ended December 31, 2010 in comparison to the year ended December 31, 2009

Revenue

        Revenue increased significantly in 2010 compared to 2009 as the Company benefited from improving market conditions and increased capacity utilization at customers' manufacturing facilities. The Company expects this positive trend to continue into 2011.

Product

        Product revenue, which includes systems sales, sales of spare parts and product upgrades, was $242.8 million or 88.2% of revenue in 2010, compared with $98.7 million, or 74.2% of revenue in 2009. The increase in product revenue in 2010 is attributable to the strengthening of the semiconductor market and a related increase in capital spending by semiconductor manufacturers. In addition, we also believe we are gaining market share with our single wafer ion implant systems for high current and high energy applications (the Optima HDx and Optima XEx), as customers are showing a higher acceptance of our technology.

        Approximately 12.8% of systems revenue in 2010 was from sales of 200mm products and 87.2% was from sales of 300mm products, compared with 25.0% and 75.0% for sales of 200mm products and 300mm products in 2009, respectively.

        A portion of our revenue from system sales is deferred until installation and other services related to future deliverables are performed. The total amount of deferred revenue at December 31, 2010 and 2009 was $16.3 million and $5.7 million, respectively. The increase was mainly due to the increase in systems sales in 2010.

Service

        Service revenue, which includes the labor component of maintenance and service contracts and fees for service hours provided by on-site service personnel, was $32.4 million, or 11.8% of revenue for 2010, compared with $33.9 million, or 25.5% of revenue, for 2009. Although service revenue should increase with the expansion of the installed base of systems, it can fluctuate from period to period based on capacity utilization at customers' manufacturing facilities, which affects the need for equipment service. The slight decrease during 2010 was primarily due to a decrease in fabrication utilization in the North American semiconductor industry.

25


Royalties

        Royalties were previously earned under our prior license agreement with SEN. As a result of the sale of our investment in SEN, SEN has had no further royalty obligations since March 30, 2009. Royalty revenue was $0.4 million or 0.3% of revenue for 2009.

Revenue Categories used by Management

        As an alternative to the line item revenue categories discussed above, management also uses revenue categorizations which look at revenue by product line (the most significant of which is ion implant) and by aftermarket, as described below.

Ion Implant

        Included in total revenue of $275.2 million in 2010 is revenue from sales of ion implantation products and service of $232.4 million, or 84.4% of total revenue, compared with $110.9 million, or 83.4%, of total revenue in 2009. The dollar increase was due to the factors discussed above for product revenue. Annual revenue from the sale of ion implantation products and service typically averages from 70% to 80% of total revenue.

Aftermarket

        The Company's product revenue includes sales of spare parts and product upgrades as well as complete systems. We refer to the business of selling spare parts and product upgrades, combined with the sale of maintenance labor and service contracts and service hours, as the "aftermarket" business. Included in total revenue of $275.2 million in 2010 is revenue from our aftermarket business of $142.2 million, compared to $98.2 million for 2009. Aftermarket revenue generally increases with expansion of the installed base of systems but can fluctuate from period to period based on capacity utilization at customers' manufacturing facilities which affects the sale of spare parts and demand for equipment service.

Gross Profit

Product

        Gross profit from product revenue was 30.8% for the twelve months ended December 31, 2010, compared to 14.7% for the twelve months ended December 31, 2009. Approximately 3.3% of the 16.1% increase resulted from a lower provision for excess inventory. The remaining 12.8% increase in gross profit from product revenue is attributable to higher systems sales volume and the related favorable absorption of fixed overhead costs which increased gross margins by 22.3%, offset by a 9.5% decrease in gross margin resulting from an unfavorable mix of parts and upgrade revenue.

Service

        Gross profit from service revenue was 34.3% for the twelve months ended December 31, 2010, compared to 38.8% for the twelve months ended December 31, 2009. The decrease in gross profit is attributable to lower volumes.

Research and Development

        Research and development expense was $39.5 million in 2010, an increase of $6.8 million, or 20.8%, compared with $32.7 million in 2009. The increase was primarily payroll costs due to increased headcount ($3.1 million), increased professional fee expenses ($2.4 million), increased project material costs ($1.3 million), and increased asset amortization and depreciation costs for assets used as demonstration and/or test systems ($0.1 million).

26


        Research and development expense was attributable to the following activities for 2010: 53% for new product development, 31% for improvement of existing products, and 16% for product testing.

Sales and Marketing

        Sales and marketing expense was $27.5 million in 2010, an increase of $2.3 million, or 9.1%, compared with $25.2 million in 2009 as the Company benefited from improved market conditions in 2010. The increase was driven primarily by increased travel costs ($0.8 million), increased freight costs ($0.8 million), increased supplies and marketing costs ($0.4 million), and increased payroll costs ($0.3 million).

General and Administrative

        General and administrative expense was $32.1 million in 2010, a decrease of $2.0 million, or 5.9% compared with $34.1 million in 2009. The decrease was driven primarily by decreased professional fee expenses ($4.6 million) primarily due to legal transaction costs and business outsourcing activities being incurred in 2009 and a decrease in other miscellaneous costs ($0.4 million), offset by increased payroll and incentive compensation costs ($3.0 million).

Other Income (Expense)

        Equity loss attributable to SEN was $3.2 million for the year ended December 31, 2009. As a result of the sale of the Company's investment in SEN, subsequent to March 30, 2009, the Company no longer records equity income or loss from SEN.

        Interest income of $0.1 million for the year ended December 31, 2010, primarily relates to interest earned on cash and cash equivalents. Interest income decreased by $0.1 million from the year ended December 31, 2009, primarily due to lower average cash balances and lower interest rates.

        We had no interest expense for the year ended December 31, 2010. Our interest expense was $1.7 million for the year ended December 31, 2009. We have had no borrowings since we paid in full our convertible senior subordinated notes on March 30, 2009.

        For the year ended December 31, 2010 and 2009 the Company incurred $1.9 million of foreign exchange losses. Included in foreign exchange losses in 2010 are $.3 million of foreign exchange losses relating to currency hedging activities. The primary reason for foreign exchange losses in both years was due to the weakening of the U.S dollar.

Income Taxes

        We incur income tax expense relating principally to operating results of foreign entities in jurisdictions, principally in Asia, where we earn taxable income. We have significant net operating loss carryforwards in the United States and certain foreign jurisdictions, principally Europe, and, as a result, we do not currently pay significant income taxes in those jurisdictions and we do not recognize the tax benefit for such losses as discussed in Note 18 to the consolidated financial statements. Accordingly, our effective income tax rate is not meaningful.

27


        In 2010, the Company performed an evaluation of the deferred tax assets of certain of our foreign subsidiaries for which the Company had previously established a valuation allowance. Based on the subsidiaries recent and expected ability to generate taxable income, the Company reduced the subsidiary's corresponding valuation allowance and recognized a tax benefit of $1.3 million.

Liquidity and Capital Resources

        Capital expenditures were $2.1 million and $1.4 million for the years ended December 31, 2011 and 2010, respectively. We have no significant capital projects planned for 2012 and total capital expenditures for 2012 are projected to be less than $2.5 million. Future capital expenditures beyond 2012 will depend on a number of factors, including the timing and rate of expansion of our business and our ability to generate cash to fund them.

        We have outstanding standby letters of credit, statutory liability deposits and surety bonds in the amount of $5.8 million to support certain operating programs, workers' compensation insurance, and certain value added tax claims in Europe, of which $104,000 at December 31, 2011 was supported by cash pledged as collateral. The pledged cash is reflected as long-term restricted cash on the consolidated balance sheet.

        The following represents our commercial commitments as of December 31, 2011 (in thousands):

 
   
  Amount of Commitment Expiration by Period  
Other Commercial Commitments
  Total   2012   2013-2014   2015-2016   Thereafter  

Surety bonds

  $ 4,146   $ 2,842   $ 1,304   $   $  

Standby letters of credit

    1,575     1,575              

Statutory liability deposits

    104         104          
                       

  $ 5,825   $ 4,417   $ 1,408   $   $  
                       

        The following represents our contractual obligations as of December 31, 2011 (in thousands):

 
   
  Payments Due by Period  
Contractual Obligations
  Total   2012   2013-2014   2015-2016   Thereafter  

Purchase order commitments

  $ 24,229   $ 24,229   $   $   $  

Operating leases

    10,145     3,434     3,831     2,100     780  
                       

  $ 34,374   $ 27,663   $ 3,831   $ 2,100   $ 780  
                       

        We have no off-balance sheet arrangements at December 31, 2011.

        Our liquidity is affected by many factors. Some of these relate specifically to the operations of our business, for example, the rate of sale of our Optima and Integra products, and others relate to the uncertainties of global economies, including the availability of credit, and the condition of the overall semiconductor equipment industry.

        We have net operating loss and tax credit carryforwards the tax effect of which aggregate $108.2 million at December 31, 2011. These carryforwards, which expire principally between 2021 and 2031, are available to reduce future income tax liabilities in the United States and certain foreign jurisdictions.

        In 2011, $3.5 million of cash was generated by operating activities compared to a cash use of $5.9 million in 2010. The $9.4 million increase in cash generated by operations in 2011 was predominately driven by the Company's income from operations in addition to noncash charges for depreciation and amortization and stock based compensation expense. Cash and cash equivalents at December 31, 2011 were $46.9 million, compared to $45.7 million at December 31, 2010. Working

28


capital at December 31, 2011 was $164.6 million. Approximately $15.6 million of cash is located in foreign jurisdictions as of December 31, 2011.

        It is Company policy to provide taxes for the total anticipated tax impact of the undistributed earnings of our wholly-owned foreign subsidiaries' as such earnings are not expected to be reinvested indefinitely. The Company anticipates that US tax resulting from remitting such earnings will be off-set by net operating loss or credit carryforwards to the extent available. In addition, the Company does not anticipate incurring a foreign withholding tax on remitting such earnings since it does not intend to remit the earnings as dividends.

        On April 25, 2011, the Company amended its existing revolving credit facility with a bank. The amended agreement provides for borrowings up to $30 million based primarily on accounts receivable. The facility has certain financial covenants requiring us to maintain minimum levels of operating results and liquidity. The agreement will terminate on April 10, 2015. The Company uses the facility to support letters of credit and hedging transactions.

        On December 27, 2011, the Company entered into a modification agreement relating to this facility, which revises the Company's covenant to require a minimum trailing six month adjusted net income (as defined in the agreement) for the six month period ending December 31, 2011 of ($3,000,000).

        At December 31, 2011 the Company's available borrowing capacity under the amended credit facility was $23.3 million and the Company was compliant with all covenants of the loan agreement.

        We believe that based on our current market, revenue and expense forecasts, our existing cash and cash equivalents will be sufficient to satisfy our anticipated cash requirements in the short and long-term. Our 2012 forecast reflects revenue and gross margins consistent with our understanding of customer plans, the market conditions currently forecasted by the industry, and capacity utilization at customers' manufacturing facilities.

Related-Party Transactions

        There are no significant related-party transactions that require disclosure in the consolidated financial statements for the year ended December 31, 2011, or in this Annual Report on Form 10-K.

Recent Accounting Pronouncements

        A discussion of recent accounting pronouncements is included in Note 2 to the consolidated financial statements for the year ended December 31, 2011 included in this Annual Report on Form 10-K.

Item 7A.    Quantitative and Qualitative Disclosures about Market Risk.

Interest Rate Sensitivity

        Axcelis' exposure to market risk for changes in interest rates relates primarily to our investment portfolio, which consists entirely of cash-equivalents at December 31, 2011. The primary objective of our investment activities is to preserve principal while maximizing yields without significantly increasing risk. This is accomplished by investing in marketable high investment grade securities and limiting exposure to any one issue or issuer. We do not use derivative financial instruments in managing our investment portfolio and, due to the nature of our investments, we do not expect our operating results or cash flows to be affected to any significant degree by any change in market interest rates.

29


Foreign Currency Exchange Risk

        Substantially all of our sales are billed in U.S. dollars, thereby reducing the impact of fluctuations in foreign exchange rates on our results. Operating margins of certain foreign operations can fluctuate with changes in foreign exchange rates to the extent revenues are billed in U.S. dollars and operating expenses are incurred in the local functional currency. During the years ended December 31, 2011 and 2010, approximately 21% and 24% of our revenue were derived from foreign operations with this inherent risk. In addition, at both December 31, 2011 and 2010, our operations outside of the United States accounted for approximately 37% and 34% of our total assets, respectively, the majority of which was denominated in currencies other than the U.S. dollar.

Item 8.    Financial Statements and Supplementary Data.

        Response to this Item is submitted as a separate section of this report immediately following Item 15.

Item 9.    Changes in and Disagreements with Accountants on Accounting and Financial Disclosure.

        None.

Item 9A.    Controls and Procedures.

Evaluation of Disclosure Controls and Procedures.

        Our management, with the participation of our principal executive officer and principal financial officer, has evaluated the effectiveness of our disclosure controls and procedures (as defined in Rule 13a-15(e) under the Securities Exchange Act of 1934, as amended (the "Exchange Act")) as of the end of the period covered by this annual report (the "Evaluation Date"). Based on this evaluation, our principal executive officer and principal financial officer concluded that, as of the Evaluation Date, these disclosure controls and procedures are effective.

30


Internal Control over Financial Reporting


Management's Annual Report on Internal Control over Financial Reporting

        Management is responsible for establishing and maintaining adequate internal control over financial reporting, as such term is defined in Rule 13a-15(f) under the Exchange Act. Because of its inherent limitations, internal control over financial reporting may not prevent or detect all misstatements. A control system, no matter how well designed and operated, can provide only reasonable assurance with respect to financial statement preparation and presentation. Projections of any evaluation of effectiveness to future periods are subject to the risk that controls may become inadequate because of changes in conditions, or that the degree of compliance with the policies or procedures may deteriorate.

        Management assessed the effectiveness of our internal control over financial reporting as of December 31, 2011. In making this assessment, management used the criteria set forth in the Committee of Sponsoring Organizations of the Treadway Commission (COSO) Internal Control-Integrated Framework.

        Based on this assessment, management has concluded that, as of December 31, 2011, our internal control over financial reporting is effective based on those criteria.

        The independent registered public accounting firm of Ernst & Young LLP, as auditors of our consolidated financial statements, has issued an attestation report on its assessment of our internal control over financial reporting.

31



Report of Independent Registered Public Accounting Firm

The Board of Directors and Stockholders of Axcelis Technologies, Inc.

        We have audited Axcelis Technologies, Inc.'s internal control over financial reporting as of December 31, 2011, based on criteria established in Internal Control—Integrated Framework issued by the Committee of Sponsoring Organizations of the Treadway Commission (the COSO criteria). Axcelis Technologies, Inc.'s management is responsible for maintaining effective internal control over financial reporting, and for its assessment of the effectiveness of internal control over financial reporting included in the accompanying Management's Annual Report on Internal Control over financial reporting. Our responsibility is to express an opinion on the Company's internal control over financial reporting based on our audit.

        We conducted our audit in accordance with the standards of the Public Company Accounting Oversight Board (United States). Those standards require that we plan and perform the audit to obtain reasonable assurance about whether effective internal control over financial reporting was maintained in all material respects. Our audit included obtaining an understanding of internal control over financial reporting, assessing the risk that a material weakness exists, testing and evaluating the design and operating effectiveness of internal control based on the assessed risk, and performing such other procedures as we considered necessary in the circumstances. We believe that our audit provides a reasonable basis for our opinion.

        A company's internal control over financial reporting is a process designed to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles. A company's internal control over financial reporting includes those policies and procedures that (1) pertain to the maintenance of records that, in reasonable detail, accurately and fairly reflect the transactions and dispositions of the assets of the company; (2) provide reasonable assurance that transactions are recorded as necessary to permit preparation of financial statements in accordance with generally accepted accounting principles, and that receipts and expenditures of the company are being made only in accordance with authorizations of management and directors of the company; and (3) provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use, or disposition of the company's assets that could have a material effect on the financial statements.

        Because of its inherent limitations, internal control over financial reporting may not prevent or detect misstatements. Also, projections of any evaluation of effectiveness to future periods are subject to the risk that controls may become inadequate because of changes in conditions, or that the degree of compliance with the policies or procedures may deteriorate.

        In our opinion, Axcelis Technologies, Inc. maintained, in all material respects, effective internal control over financial reporting as of December 31, 2011, based on the COSO criteria.

        We also have audited, in accordance with the standards of the Public Company Accounting Oversight Board (United States), the consolidated balance sheets of Axcelis Technologies, Inc. as of December 31, 2011 and 2010, and the related consolidated statements of operations, stockholders' equity, and cash flows for each of the three years in the period ended December 31, 2011 of Axcelis Technologies, Inc. and our report dated February 29, 2012 expressed an unqualified opinion thereon.

  /s/ Ernst & Young LLP      

Boston, Massachusetts
February 29, 2012

32


Changes in Internal Control over Financial Reporting

        There was no change in our internal control over financial reporting (as defined in Rule 13a-15(f) under the Exchange Act) identified in connection with the evaluation of our internal control that occurred during our fourth quarter that has materially affected, or is reasonably likely to materially affect, our internal control over financial reporting.

Item 9B.    Other Information.

        The Company entered into Amended and Restated Indemnification Agreements dated February 28, 2012 with each of its current directors and officers to conform to an updated form of Indemnification Agreement. The previous form of Indemnification Agreement was adopted in June, 2000 and the Board determined that certain provisions required clarification or enhancement in light of court decisions interpreting indemnification agreements during the period since the previous form was adopted. These amendments:


PART III

Item 10.    Directors, Executive Officers and Corporate Governance.

        A portion of the information required by Item 10 of Form 10-K is incorporated by reference from the information responsive thereto contained in the sections in Axcelis Proxy Statement for the Annual Meeting of Stockholders to be held May 2, 2012 (the "Proxy Statement") captioned:

        The remainder of such information is set forth under the heading "Executive Officers of the Registrant" at the end of Item 1 in Part I of this report.

Item 11.    Executive Compensation.

        The information required by Item 11 of Form 10-K is incorporated by reference from the information responsive thereto contained in the sections in the Proxy Statement captioned:

Item 12.    Security Ownership of Certain Beneficial Owners and Management and Related Stockholder Matters.

        A portion of the information required by Item 12 of Form 10-K is incorporated by reference from the information responsive thereto contained in the sections in the Proxy Statement captioned:

33


        The remainder of such information is set forth below:

Equity Plan Reserves Disclosure

        We maintain two equity compensation plans, the 2000 Stock Plan and the Employee Stock Purchase Plan. The number of shares issuable upon exercise of outstanding options and unvested restricted stock units granted to employees and non-employee directors, as well as the number of shares remaining available for future issuance, under our equity compensation plans as of December 31, 2011 are summarized in the following table:

 
   
   
  (C)
 
 
  (A)
   
  Number of
shares remaining
available for future
issuance under equity
compensation plans
(excluding shares reflected
in column (A)(2)
 
 
  Number of shares
to be issued upon
exercise of
outstanding options,
warrants and rights(1)
  (B)
 
Plan category
  Weighted-average
exercise price of
outstanding options,
warrants and rights
 

Equity compensation plans approved by stockholders

    21,244,352   $ 2.75     9,663,316  

Equity compensation plans not approved by stockholders

             
               

Total

    21,244,352   $ 2.75     9,663,316  
               

(1)
Represents 21,093,022 shares issuable on exercise of outstanding options as of December 31, 2011, plus 151,330 shares issuable on vesting of outstanding restricted stock units as of December 31, 2011 (some of which will be withheld to compensate for tax withholding).

(2)
Represents the total shares available for issuance under our 2000 Stock Plan and our Employee Stock Purchase Plan, as of December 31, 2011, as follows:

(A)
7,318,082 shares were available for future issuance under the 2000 Stock Plan. Such amount represents the total number of shares reserved for issuance under the 2000 Stock Plan (33,173,367), less 418,880 outstanding shares issued under the plan as restricted stock, 1,879,176 shares issued on vesting of outstanding restricted stock units, 2,312,877 shares issued upon option exercises, and the outstanding options and unvested restricted stock units shown in column (A), all as of December 31, 2011. This plan is generally used for grants to employees and directors and was approved by our stockholders at our 2002 annual meeting.

(B)
2,345,234 shares were available under our Employee Stock Purchase Plan, which represents the total number of shares reserved for issuance under the plan (7,500,000) less 5,154,766 shares issued through December 31, 2011.

Item 13.    Certain Relationships and Related Transactions and Director Independence.

        The information required by Item 13 of Form 10-K is incorporated by reference from the information responsive thereto contained in the sections in the Proxy Statement captioned:

Item 14.    Principal Accounting Fees and Services

        The information required by Item 14 of Form 10-K is incorporated by reference from the information responsive thereto contained in the section captioned "Proposal 2: Ratification of the Appointment of our Independent Registered Public Accounting Firm" in the Proxy Statement.

34



PART IV

Item 15.    Exhibits, Financial Statement Schedules.

(a)
The following documents are filed as part of this Report:

1)
Financial Statements:

Report of Independent Registered Public Accounting Firm

  F-1

Consolidated Statements of Operations—For the years ended December 31, 2011, 2010 and 2009

  F-2

Consolidated Balance Sheets—December 31, 2011 and 2010

  F-3

Consolidated Statements of Stockholders' Equity—For the years ended December 31, 2011, 2010 and 2009

  F-4

Consolidated Statements of Cash Flows—For the years ended December 31, 2011, 2010 and 2009

  F-5

Notes to Consolidated Financial Statements

  F-6

35



Report of Independent Registered Public Accounting Firm

The Board of Directors and Stockholders of Axcelis Technologies, Inc.

        We have audited the accompanying consolidated balance sheets of Axcelis Technologies, Inc. (the "Company") as of December 31, 2011 and 2010, and the related consolidated statements of operations, stockholders' equity, and cash flows for each of the three years in the period ended December 31, 2011. Our audits also included the financial statement schedule listed in the index at Item 15(a). These financial statements and schedule are the responsibility of the Company's management. Our responsibility is to express an opinion on these financial statements and schedule based on our audits.

        We conducted our audits in accordance with the standards of the Public Company Accounting Oversight Board (United States). Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the financial statements are free of material misstatement. An audit includes examining, on a test basis, evidence supporting the amounts and disclosures in the financial statements. An audit also includes assessing the accounting principles used and significant estimates made by management, as well as evaluating the overall financial statement presentation. We believe that our audits provide a reasonable basis for our opinion.

        In our opinion, the financial statements referred to above present fairly, in all material respects, the consolidated financial position of Axcelis Technologies, Inc. at December 31, 2011 and 2010, and the consolidated results of its operations and its cash flows for each of the three years in the period ended December 31, 2011, in conformity with U.S. generally accepted accounting principles. Also, in our opinion, the related financial statement schedule, when considered in relation to the basic financial statements taken as a whole, presents fairly in all material respects the information set forth therein.

        We also have audited, in accordance with the standards of the Public Company Accounting Oversight Board (United States), Axcelis Technologies, Inc.'s internal control over financial reporting as of December 31, 2011, based on criteria established in Internal Control—Integrated Framework issued by the Committee of Sponsoring Organizations of the Treadway Commission and our report dated February 29, 2012 expressed an unqualified opinion thereon.

    /s/ Ernst & Young LLP        

Boston, Massachusetts
February 29, 2012

F-1



Axcelis Technologies, Inc.
Consolidated Statements of Operations
(In thousands, except per share amounts)

 
  Year Ended December 31,  
 
  2011   2010   2009  

Revenue

                   

Product

  $ 287,324   $ 242,771   $ 98,716  

Service

    32,092     32,441     33,917  

Royalties, primarily from SEN

            389  
               

    319,416     275,212     133,022  

Cost of revenue

                   

Product

    181,241     168,047     84,185  

Service

    23,438     21,327     20,773  
               

    204,679     189,374     104,958  

Gross profit

    114,737     85,838     28,064  

Operating expenses

                   

Research and development

    47,176     39,524     32,661  

Sales and marketing

    29,255     27,549     25,209  

General and administrative

    31,174     32,132     34,087  

Restructuring charges

            5,541  
               

    107,605     99,205     97,498  
               

Income (loss) from operations

    7,132     (13,367 )   (69,434 )

Other income (expense)

                   

Gain on sale of SEN

            1,080  

Equity loss of SEN

            (3,238 )

Interest income

    42     96     181  

Interest expense

            (1,676 )

Other, net

    297     (3,990 )   (3,516 )
               

    339     (3,894 )   (7,169 )
               

Income (loss) before income taxes

    7,471     (17,261 )   (76,603 )

Income taxes

    2,394     312     865  
               

Net income (loss)

  $ 5,077   $ (17,573 ) $ (77,468 )
               

Net income (loss) per share

                   

Basic net income (loss) per share

  $ 0.05   $ (0.17 ) $ (0.75 )
               

Diluted net income (loss) per share

  $ 0.05   $ (0.17 ) $ (0.75 )
               

Shares used in computing basic and diluted net income (loss) per share

                   

Weighted average common shares outstanding basic

    106,234     104,522     103,586  
               

Weighted average common shares outstanding diluted

    109,098     104,522     103,586  
               

   

See accompanying Notes to these Consolidated Financial Statements

F-2



Axcelis Technologies, Inc.
Consolidated Balance Sheets
(In thousands, except per share amounts)

 
  December 31,  
 
  2011   2010  

ASSETS

             

Current assets

             

Cash and cash equivalents

  $ 46,877   $ 45,743  

Accounts receivable, net

    35,071     57,888  

Inventories, net

    120,023     109,653  

Prepaid expenses and other current assets

    10,062     15,346  
           

Total current assets

    212,033     228,630  

Property, plant and equipment, net

    37,204     38,594  

Long-term restricted cash

    104     107  

Other assets

    19,904     13,541  
           

  $ 269,245   $ 280,872  
           

LIABILITIES AND STOCKHOLDERS' EQUITY

             

Current liabilities

             

Accounts payable

  $ 19,551   $ 36,709  

Accrued compensation

    8,285     10,597  

Warranty

    3,556     2,556  

Income taxes

    495      

Deferred revenue

    10,786     13,859  

Other current liabilities

    4,799     4,408  
           

Total current liabilities

    47,472     68,129  

Long-term deferred revenue

    1,488     2,417  

Other long-term liabilities

    5,730     4,759  
           

Commitments and contingencies (Note 14)

             

Stockholders' equity

             

Preferred stock, $0.001 par value, 30,000 shares authorized; none issued or outstanding

         

Common stock, $0.001 par value, 300,000 shares authorized; 106,809 shares issued and 106,689 shares outstanding at December 31, 2011; 105,906 shares issued and 105,786 shares outstanding at December 31, 2010

    107     106  

Additional paid-in capital

    499,332     493,967  

Treasury stock, at cost, 120 shares at December 31, 2011 and 2010

    (1,218 )   (1,218 )

Accumulated deficit

    (288,443 )   (293,520 )

Accumulated other comprehensive income

    4,777     6,232  
           

    214,555     205,567  
           

  $ 269,245   $ 280,872  
           

   

See accompanying Notes to these Consolidated Financial Statements

F-3



Axcelis Technologies, Inc.
Consolidated Statements of Stockholders' Equity
(In thousands)

 
  Common Stock    
   
   
  Accumulated
Other
Comprehensive
Income (Loss)
   
 
 
  Additional
Paid-in
Capital
  Treasury
Stock
  Accumulated
Deficit
  Total
Stockholders'
Equity
 
 
  Shares   Amount  

Balance at December 31, 2008

    103,400   $ 103   $ 483,546   $ (1,218 ) $ (198,479 ) $ 35,425   $ 319,377  
                               

Comprehensive loss

                                           

Net loss

                    (77,468 )       (77,468 )

Foreign currency translation adjustments

                        (30,239 )   (30,239 )

Change in pension

                        (47 )   (47 )
                                           

Total comprehensive loss

                                        (107,754 )

Exercise of stock options

    66     1     44                 45  

Issuance of shares under Employee Stock Purchase Plan

    302         184                 184  

Issuance of restricted common shares

    444         (104 )               (104 )

Stock-based compensation expense

            4,651                 4,651  
                               

Balance at December 31, 2009

    104,212     104     488,321     (1,218 )   (275,947 )   5,139     216,399  

Comprehensive loss

                                           

Net loss

                    (17,573 )       (17,573 )

Foreign currency translation adjustments

                        1,535     1,535  

Change in pension

                        (442 )   (442 )
                                           

Total comprehensive loss

                                        (16,480 )

Exercise of stock options

    704     1     552                 553  

Issuance of shares under Employee Stock Purchase Plan

    280     1     637                 638  

Issuance of restricted common shares

    262         (201 )               (201 )

Issuance of restricted shares in satisfaction of accrued compensation

    448         570                 570  

Stock-based compensation expense

            4,088                 4,088  
                               

Balance at December 31, 2010

    105,906     106     493,967     (1,218 )   (293,520 )   6,232     205,567  

Comprehensive income

                                           

Net income

                    5,077         5,077  

Foreign currency translation adjustments

                        (1,466 )   (1,466 )

Change in pension

                        11     11  
                                           

Total comprehensive income

                                        3,622  

Exercise of stock options

    372         288                 288  

Issuance of shares under Employee Stock Purchase Plan

    398     1     502                 503  

Issuance of restricted common shares

    133         (112 )               (112 )

Stock-based compensation expense

            4,687                 4,687  
                               

Balance at December 31, 2011

    106,809   $ 107   $ 499,332   $ (1,218 ) $ (288,443 ) $ 4,777   $ 214,555  
                               

   

See accompanying Notes to these Consolidated Financial Statements

F-4



Axcelis Technologies, Inc.
Consolidated Statements of Cash Flow
(In thousands)

 
  Year Ended December 31,  
 
  2011   2010   2009  

Cash flows from operating activities

                   

Net income (loss)

  $ 5,077   $ (17,573 ) $ (77,468 )

Adjustments to reconcile net loss to net cash provided by (used for) operating activities

                   

Undistributed loss of SEN

            3,238  

Depreciation and amortization

    8,497     7,045     7,436  

Gain on sale of SEN

            (1,080 )

Deferred income taxes

    585     (1,525 )   (765 )

Other

    28         133  

Stock-based compensation expense

    4,687     4,088     4,651  

Provision for excess inventory

    1,015     2,015     9,818  

Changes in operating assets & liabilities

                   

Accounts receivable

    22,692     (38,652 )   8,572  

Inventories

    (11,870 )   3,549     26,445  

Prepaid expenses and other current assets

    3,049     (3,469 )   8,131  

Accounts payable & other current liabilities

    (17,940 )   32,276     (11,038 )

Deferred revenue

    (4,006 )   10,601     (8,695 )

Income taxes

    507     (1,406 )   1,154  

Other assets and liabilities

    (8,788 )   (2,841 )   (4,474 )
               

Net cash provided by (used for) operating activities

    3,533     (5,892 )   (33,942 )

Cash flows from investing activities

                   

Expenditures for property, plant, and equipment

    (2,124 )   (1,403 )   (463 )

Decrease in restricted cash

    3     7,056     1,491  

Proceeds from sale of SEN

            132,847  

Payments related to sale of SEN

            (10,590 )
               

Net cash (used for) provided by investing activities

    (2,121 )   5,653     123,285  

Cash flows from financing activities

                   

Repayment of convertible debt

            (83,344 )

Financing fees and other expenses

    (200 )   (523 )    

Proceeds from exercise of stock options

    288     553     45  

Proceeds from Employee Stock Purchase Plan

    503     569     184  
               

Net cash provided by (used for) financing activities

    591     599     (83,115 )

Effect of exchange rate changes on cash

    (869 )   363     1,098  
               

Net increase in cash and cash equivalents

    1,134     723     7,326  

Cash and cash equivalents at beginning of period

  $ 45,743   $ 45,020   $ 37,694  
               

Cash and cash equivalents at end of period

  $ 46,877   $ 45,743   $ 45,020  
               

Cash paid for interest

  $   $   $ 3,009  

Cash paid for income taxes

  $ 515   $ 2,286   $ 734  

Non cash investing and financing activities:

                   

Issuance of restricted common stock in satisfaction of accrued compensation

  $   $ 570   $  

   

See accompanying Notes to these Consolidated Financial Statements

F-5



Axcelis Technologies, Inc.
Notes to Consolidated Financial Statements

Note 1.  Nature of Business

        Axcelis Technologies, Inc. ("Axcelis" or the "Company"), is a worldwide producer of ion implantation, dry strip and other processing equipment used in the fabrication of semiconductor chips in the United States, Europe and Asia. In addition, the Company provides extensive aftermarket service and support, including spare parts, equipment upgrades, and maintenance services to the semiconductor industry.

        Until March 30, 2009, the Company owned 50% of the equity of a joint venture with Sumitomo Heavy Industries, Ltd. ("SHI") in Japan. This joint venture, which was known as SEN, licensed technology from the Company relating to the manufacture of specified ion implantation products and had exclusive rights to manufacture and sell these products in the territory of Japan. On March 30, 2009, the Company sold to SHI all of the Company's common shares in SEN, in exchange for a cash payment of 13 billion Yen, which resulted in proceeds of approximately $132.8 million before advisor fees and other expenses of $10.6 million. The sales price was determined through an arm's length negotiation. This transaction terminated all prior agreements among the three parties relating to the SEN joint venture. In addition, the arbitration with SEN initiated by Axcelis in Tokyo was dismissed. Detailed information about the Company's investment in SEN is provided in Note 17. A portion of the proceeds of the sale were used to pay off, in full, the amounts due to the holder of the Company's 4.25% Convertible Senior Subordinated Notes.

Note 2.  Significant Accounting Policies

Principles of Consolidation

        The consolidated financial statements include the accounts of Axcelis and its wholly-owned, controlled subsidiaries. All intercompany balances and transactions have been eliminated in consolidation.

Use of Estimates

        The preparation of consolidated financial statements in conformity with generally accepted accounting principles requires management to make estimates and assumptions that affect the amounts reported in the consolidated financial statements and accompanying notes. Actual results could differ from those estimates.

Foreign Currency

        The functional currency for substantially all operations outside the United States is the local currency. Financial statements for these operations are translated into United States dollars at year-end rates as to assets and liabilities and average exchange rates during the year as to revenue and expenses. The resulting translation adjustments are recorded in stockholders' equity as an element of accumulated other comprehensive income (loss). Foreign currency transaction gains and losses are included in other income (expense) in the consolidated statements of operations.

        For the year ended December 31, 2011 the Company incurred $1.2 million of foreign exchange gains. For the year ended December 31, 2010 the Company incurred $1.9 million of foreign exchange losses.

F-6


Cash and Cash Equivalents

        Cash and cash equivalents consist of cash on hand and highly liquid investments with original maturities of ninety days or less. Cash equivalents consist primarily of money market securities and certificates of deposit. Cash equivalents are carried on the balance sheet at fair market value.

Inventories

        Inventories are carried at lower of cost, determined using the first-in, first-out (FIFO) method, or market. The Company periodically reviews its inventories and makes provisions as necessary for estimated obsolescence or damaged goods to ensure values approximate lower of cost or market. The amount of such markdowns is equal to the difference between cost of inventory and the estimated market value based upon assumptions about future demands, selling prices, and market conditions.

        Axcelis records an allowance for estimated excess inventory. The allowance is determined using management's assumptions of materials usage, based on estimates of demand and market conditions. If actual market conditions become less favorable than those projected by management, additional inventory write-downs may be required.

Property, Plant and Equipment

        Property, plant and equipment are recorded at cost. Depreciation is computed using the straight-line method. The historical cost of buildings is depreciated over forty years and machinery and equipment principally over three to ten years. Expenditures for maintenance and repairs are expensed as incurred. Expenditures for renewals and betterments are capitalized.

Impairment of Long-Lived Assets

        The Company records impairment losses on long-lived assets when events and circumstances indicate that these assets might not be recoverable. Recoverability is measured by a comparison of the assets' carrying amount to their expected future undiscounted net cash flows. If such assets are considered to be impaired, the impairment is measured based on the amount by which the carrying value exceeds its fair value. As of December 31, 2011 the Company completed a test for recoverability due to indicators that were present at December 31, 2011. Results of this test indicated no impairment as of December 31, 2011. The Company did not record an impairment charge for the years ended December 31, 2011, 2010, or 2009.

        Future actual performance could be materially different from our current forecasts, which could impact future estimates of undiscounted cash flows and may result in the impairment of the carrying amount of the long-lived assets in the future. This could be caused by strategic decisions made in response to economic and competitive conditions, the impact of the economic environment on our customer base, or a material adverse change in the Company's relationships with significant customers. The Company performs an impairment analysis when circumstances or events warrant.

Concentration of Risk

        Financial instruments, which potentially expose Axcelis to concentrations of credit risk, consist principally of accounts receivable and cash equivalents. Axcelis' customers consist of semiconductor manufacturers located throughout the world. Axcelis' net sales to its ten largest customers accounted for 68.6%, 62.7%, and 56.6% of revenue in 2011, 2010, and 2009, respectively.

        Axcelis performs ongoing credit evaluations of its customers' financial condition and generally requires no collateral to secure accounts receivable. For selected overseas sales, Axcelis requires customers to obtain letters of credit before product is shipped. Axcelis maintains an allowance for doubtful accounts based on its assessment of the collectability of accounts receivable. The Company

F-7


reviews the allowance for doubtful accounts monthly. The Company does not have any off-balance-sheet credit exposure related to its customers.

        Axcelis' exposure to market risk for changes in interest rates relates primarily to cash equivalents. The primary objective of the Company's investment activities is to preserve principal while maximizing yields without significantly increasing risk. This is accomplished by investing in marketable high investment grade securities and limiting exposure to any one issue or issuer. The Company does not use derivative financial instruments to manage its investment portfolio and does not expect operating results or cash flows to be affected to any significant degree by any change in market interest rates.

        Some of the components and sub-assemblies included in the Company's products are obtained either from a sole source or a limited group of suppliers. Disruption to the Company's supply source, resulting either from depressed economic conditions or other factors, could affect its ability to deliver products to its customers.

Accumulated Other Comprehensive Income

        Comprehensive income is comprised of two components, net loss and other comprehensive income. Other comprehensive income consists of foreign currency translation adjustments and the effects of the minimum pension liability. The following table shows the cumulative components of accumulated other comprehensive income for the years ended December 31, 2011, 2010 and 2009:

 
  2011   2010   2009  
 
  (in thousands)
 

Foreign currency translation adjustments

  $ 4,857   $ 6,323   $ 4,788  

Pension benefit adjustment

    (80 )   (91 )   351  
               

Total accumulated other comprehensive income

  $ 4,777   $ 6,232   $ 5,139  
               

Fair Value of Financial Instruments

        The carrying amounts of certain of the Company's financial instruments, including cash equivalents, accounts receivable, accounts payable and other accrued liabilities approximate fair value due to their short maturities.

Revenue Recognition

        The Company's revenue recognition policy involves significant judgment by management. As described below, the Company considers a broad array of facts and circumstances in determining when to recognize revenue, including contractual obligations to the customer, the complexity of the customer's post delivery acceptance provisions, payment history, customer creditworthiness and the installation process. In the future, if the post delivery acceptance provisions and installation process become more complex or result in a materially lower rate of acceptance, the Company may have to revise its revenue recognition policy, which could delay the timing of revenue recognition.

        Axcelis' system sales transactions are made up of multiple elements, including the system itself and elements that are not delivered simultaneously with the system. These undelivered elements might include a combination of installation services, extended warranty and support and spare parts, all of which are covered generally by a single sales price. Effective January 1, 2011, the Company adopted Accounting Standards Update, or ASU, No. 2009-13, Multiple Deliverable Revenue Arrangements, as required, using the prospective method. Accordingly, this guidance is being applied to all system revenue arrangements entered into or materially modified on or after January 1, 2011. The adoption of the amended guidance did not change the accounting for arrangements entered into prior to January 1, 2011. There was no material impact on our financial position, results of operations or cash flows upon

F-8


adoption and we do not expect adoption will have a material impact on our future reporting periods based on our current practices.

        The impact of adopting this amended guidance on the Company's results of operations has been limited to transactions involving the sale of systems. ASU No. 2009-13 amended the previous guidance for multiple-element arrangements. Pursuant to the amended guidance in ASU 2009-13, the Company's system revenue arrangements with multiple elements are divided into separate units of accounting if specified criteria are met, including whether the delivered element has stand-alone value to the customer. If the criteria are met, then the consideration received is allocated among the separate units based on their relative selling price, and the revenue is recognized separately for each of the separate units.

        The Company determines selling price for each unit of accounting (element) using vendor specific objective evidence (VSOE) or third-party evidence (TPE), if they exist, otherwise, the Company uses best estimated selling price (BESP). The Company generally expects that it will not be able to establish TPE due to the nature of its products, and, as such, the Company typically will determine selling price using VSOE or BESP.

        Where required, the Company determines BESP for an individual element based on consideration of both market and Company-specific factors, including the selling price and profit margin for similar products, the cost to produce the deliverable and the anticipated margin on that deliverable and the characteristics of the varying markets in which the deliverable is sold.

        The total consideration to be received in the transaction is allocated to each element in the arrangement based upon the relative selling price of each element when compared to the consideration received.

        Systems are not sold separately and VSOE or TPE is not available for the systems element. Therefore the selling price associated with systems is based on BESP. The allocated value for installation in the arrangement includes (a) the greater of (i) the relative selling price of the installation or (ii) the portion or the sales price that will not be received until the installation is completed (the "retention"). The selling price of installation is based upon the fair value of the service performed, including labor, which is based upon the estimated time to complete the installation at hourly rates, and material components, both of which are sold separately. The selling price of all other elements (extended warranty for support, spare parts, and labor) is based upon the price charged when these elements are sold separately, or VSOE.

        Product revenue for products which have demonstrated market acceptance, generally recognized upon shipment provided title and risk of loss has passed to the customer, evidence of an arrangement exists, prices are contractually fixed or determinable, collectability is reasonably assured through historical collection results and regular credit evaluations, and there are no uncertainties regarding customer acceptance. Revenue from installation services is recognized at the time formal acceptance is received from the customer or, for certain customers, when both the formal acceptance and retention payment have been received. Revenue for other elements is recognized at the time products are shipped or the related services are performed.

        The Company generally recognizes revenue for products which have demonstrated market acceptance at the time of shipment because the customer's post-delivery acceptance provisions and installation process have been established to be routine, commercially inconsequential and perfunctory. The majority of Axcelis' systems are designed and tailored to meet the customer's specifications, as outlined in the contract between the customer and Axcelis, which may be the Axcelis standard specification. To ensure that the customer's specifications are satisfied, many customers request that new systems be tested at Axcelis' facilities prior to shipment, normally with the customer present, under conditions that substantially replicate the customer's production environment and the customer's

F-9


criteria are confirmed to have been met. The Company believes the risk of failure to complete a system installation is remote. Should an installation not be completed successfully, the contractual provisions do not provide for forfeiture, refund or other purchase price concession beyond those prescribed by the provisions of the Uniform Commercial Code applicable generally to such transactions.

        For initial shipments of systems with new technologies or in the small number of instances where Axcelis is unsure of meeting the customer's specifications or obtaining customer acceptance upon shipment of the system, Axcelis will defer the recognition of systems revenue and related costs until written customer acceptance of the system is obtained. This deferral period is generally within twelve months of shipment.

        Revenue related to maintenance and service contracts is recognized ratably over the duration of the contracts, or based on parts usage, where appropriate. Revenue related to service hours is recognized when the services are performed.

        Product revenue includes revenue from system sales, sales of spare parts, the spare parts component of maintenance and service contracts and product upgrades. Service revenue includes the labor component of maintenance and service contract amounts charged for on-site service personnel.

Shipping and Handling Costs

        Shipping and handling costs are included in cost of revenue.

Stock-Based Compensation

        The Company recognizes compensation expense for all share-based payments to employees and directors, including grants of employee stock options, based on the grant-date fair value of those share-based payments using the Black- Sholes option pricing model, adjusted for expected forfeitures. Stock-based compensation expense is recognized ratably over the requisite service period.

        See Note 12 for additional information relating to stock-based compensation.

Income Taxes

        The Company records income taxes using the asset and liability method. Deferred income tax assets and liabilities are recognized for the future tax consequences attributable to differences between the financial statement carrying amounts of existing assets and liabilities and their respective income tax bases, and operating loss and tax credit carryforwards. The Company's consolidated financial statements contain certain deferred tax assets which have arisen primarily as a result of operating losses, as well as other temporary differences between financial and tax accounting. The Company establishes a valuation allowance if the likelihood of realization of the deferred tax assets is reduced based on an evaluation of objective verifiable evidence. Significant management judgment is required in determining the Company's provision for income taxes, the Company's deferred tax assets and liabilities and any valuation allowance recorded against those net deferred tax assets. The Company evaluates the weight of all available evidence to determine whether it is more likely than not that some portion or all of the net deferred income tax assets will not be realized.

        Income taxes include the largest amount of tax benefit for an uncertain tax position that is more likely than not to be sustained upon audit based on the technical merits of the tax position. Settlements with tax authorities, the expiration of statutes of limitations for particular tax positions, or obtaining new information on particular tax positions may cause a change to the effective tax rate. The Company recognizes accrued interest related to unrecognized tax benefits as interest expense and penalties as operating expense.

F-10


Net Income (Loss) per Share

        Basic earnings per share is computed by dividing income available to common stockholders (the numerator) by the weighted-average number of common shares outstanding (the denominator) for the period. The computation of diluted earnings per share is similar to basic earnings per share, except that the denominator is increased to include the number of additional common shares that would have been outstanding if the potentially dilutive common shares had been issued, calculated using the treasury stock method.

 
  Years Ended December 31,  
 
  2011   2010   2009  
 
  (in thousands, except per share data)
 

Income (loss) available to common stockholders

  $ 5,077   $ (17,573 ) $ (77,468 )
               

Weighted average common shares outstanding used in computing basic net income (loss) per share

    106,234     104,522     103,586  

Incremental shares

    2,864          
               

Weighted average common shares outstanding used in computing diluted net income (loss) per share

    109,098     104,522     103,586  
               

Net income (loss) per share

                   

Basic

  $ 0.05   $ (0.17 ) $ (0.75 )

Diluted

  $ 0.05   $ (0.17 ) $ (0.75 )

        Because the Company had a net loss for each of the years ended December 31, 2010 and 2009, any common shares related to outstanding stock options, restricted stock, restricted stock units and convertible debt have been excluded from the calculation of net loss per share because the effect would have been anti-dilutive.

Recent Accounting Pronouncements

        In June 2011, the Financial Accounting Standards Board, or FASB, issued Accounting Standards Update, or ASU, No. 2011-05, Comprehensive Income (Topic 220). This newly issued accounting standard (1) eliminates the option to present the components of other comprehensive income as part of the statement of changes in stockholders' equity; (2) requires the consecutive presentation of the statement of net income and other comprehensive income; and (3) requires an entity to present reclassification adjustments on the face of the financial statements from other comprehensive income to net income. This update does not change the items that must be reported in other comprehensive income or when an item of other comprehensive income must be reclassified to net income nor does it affect how earnings per share is calculated or presented. In December, 2011, The Financial Accounting Standards Board (FASB) issued Accounting Standards Update No. 2011-12, Comprehensive Income (Topic 220): Deferral of the Effective Date for Amendments to the Presentation of Reclassifications of Items Out of Accumulated Other Comprehensive Income in Accounting Standards Update No. 2011-05. The Update defers the specific requirement to present items that are reclassified from accumulated other comprehensive income to net income separately with their respective components of net income and other comprehensive income. The Board did not defer the requirement to report comprehensive income either in a single continuous statement or in two separate but consecutive financial statements. This update is required to be applied retrospectively and is effective for us for fiscal years (and interim periods within those years) beginning on or after January 1, 2012. As this update only requires enhanced disclosure, the adoption of this update will not impact our financial position or results of operations.

F-11


Note 3.  Restricted Cash

        The components of restricted cash are as follows:

 
  December 31,  
 
  2011   2010  
 
  (in thousands)
 

Statutory liability deposit

  $ 104   $ 107  
           

  $ 104   $ 107  
           

        In addition to the statutory liability deposit, the Company has surety bonds related to value added tax claims and refunds in Europe of approximately $4.1 million at December 31, 2011 and standby letters of credit issued under the credit line of $1.6 million. Restricted cash is reflected in non-current assets based on the expiration of the requirement with the bank or counterparty.

Note 4.  Accounts Receivable, net

        The components of accounts receivable are as follows:

 
  December 31,  
 
  2011   2010  
 
  (in thousands)
 

Trade receivables

  $ 35,482   $ 59,245  

Allowance for doubtful accounts

    (411 )   (1,357 )
           

  $ 35,071   $ 57,888  
           

Note 5.  Inventories, net

        The components of inventories are as follows:

 
  December 31,  
 
  2011   2010  
 
  (in thousands)
 

Raw materials

  $ 85,829   $ 74,596  

Work in process

    25,639     29,848  

Finished goods (completed systems)

    8,555     5,209  
           

  $ 120,023   $ 109,653  
           

        When recorded, inventory reserves are intended to reduce the carrying value of inventories to their net realizable value. The Company establishes inventory reserves when conditions exist that indicate inventory may be in excess of anticipated demand or is obsolete based upon assumptions about future demand for the Company's products or market conditions. The Company regularly evaluates the ability to realize the value of inventories based on a combination of factors including the following: forecasted sales or usage, estimated product end of life dates, estimated current and future market value and new product introductions. Purchasing and usage alternatives are also explored to mitigate inventory exposure. As of December 31, 2011 and 2010, inventories are stated net of inventory reserves of $22.8 million and $27.5 million respectively. The decrease in inventory reserves in 2011 is primarily due to the sale or disposal of $5.6 million of previously reserved inventory.

F-12


Note 6.  Property, Plant and Equipment, net

        The components of property, plant and equipment are as follows:

 
  December 31,  
 
  2011   2010  
 
  (in thousands)
 

Land and buildings

  $ 78,985   $ 79,754  

Machinery and equipment

    7,020     5,775  

Construction in process

    541     621  
           

    86,546     86,150  

Accumulated depreciation

    (49,342 )   (47,556 )
           

  $ 37,204   $ 38,594  
           

        Depreciation expense was $3.5 million, $3.6 million, and $3.8 million, for the years ended December 31, 2011, 2010, and 2009, respectively.

Note 7.  Assets Manufactured for Internal Use

        The components of assets manufactured for internal use, included in amounts reported as other assets, are as follows:

 
  December 31,  
 
  2011   2010  
 
  (in thousands)
 

Cost

  $ 25,684   $ 16,148  

Accumulated depreciation

    (8,707 )   (3,768 )
           

  $ 16,977   $ 12,380  
           

        These products are used in-house for research and development, training, and customer demonstration purposes. Costs are generally amortized to expense over five years. Amortization expense was $4.9 million, $3.3 million, and $3.8 million, for the years ended December 31, 2011, 2010, and 2009, respectively.

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Note 8.  Restructuring Charges

        The Company did not incur any restructuring charges for the years ended December 31, 2011 or December 31, 2010. In 2009, the Company implemented a reduction in force of approximately 20 percent of the Company's global workforce resulting in a total charge to restructuring expense of approximately $6.1 million principally for severance and related costs. The Company's restructuring liability for the years ended December 31, 2011, 2010 and 2009 are as follows:

 
  Severance  
 
  (In thousands)
 

Balance at December 31, 2008

  $ 746  

Restructuring expense

    6,084  

Cash payments

    (6,533 )
       

Balance at December 31, 2009

    297  

Cash payments

    (126 )
       

Balance at December 31, 2010

    171  

Cash payments

     
       

Balance at December 31, 2011

  $ 171  
       

Note 9.  Product Warranty

        The Company generally offers a one year warranty for all of its systems, the terms and conditions of which vary depending upon the product sold. For all systems sold, the Company accrues a liability for the estimated cost of standard warranty at the time of system shipment and defers the portion of systems revenue attributable to the fair value of non-standard warranty. Costs for non-standard warranty are expensed as incurred. Factors that affect the Company's warranty liability include the number of installed units, historical and anticipated product failure rates, material usage and service labor costs. The Company periodically assesses the adequacy of its recorded liability and adjusts the amount as necessary.

        Changes in the Company's product warranty liability are as follows:

 
  Years Ended December 31,  
 
  2011   2010   2009  
 
  (in thousands)
 

Balance at January 1 (beginning of year)

  $ 2,713   $ 726   $ 3,530  

Warranties issued during the period

    4,772     3,722     791  

Settlements made during the period

    (5,275 )   (1,923 )   (2,363 )

Changes in estimate of liability for pre-existing warranties during the period

    1,487     188     (1,232 )
               

Balance at December 31 (end of year)

  $ 3,697   $ 2,713   $ 726  
               

Amount classified as current

  $ 3,556   $ 2,556   $ 638  

Amount classified as long-term

    141     157     88  
               

Total Warranty Liability

  $ 3,697   $ 2,713   $ 726  
               

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Note 10.  Financing Arrangements

Convertible Subordinated Debt

        On March 30, 2009, Axcelis used $85 million of the proceeds of its sale of SEN to pay in full its outstanding 4.25% Convertible Senior Subordinated Notes which it had issued in May 2006.

Bank Credit Facility

        On April 25, 2011, the Company amended its revolving credit facility. The amended agreement provides for borrowings up to $30 million based primarily on accounts receivable. The facility has certain financial covenants requiring us to maintain minimum levels of operating results and liquidity. The agreement will terminate on April 10, 2015. The Company uses the facility to support letters of credit and hedging transactions.

        On December 27, 2011, the Company entered into a modification agreement relating to this facility, which revises the Company's covenant to require a minimum trailing six month adjusted net income (as defined in the agreement) for the six month period ending December 31, 2011 of ($3,000,000).

        At December 31, 2011 the Company's available borrowing capacity under the amended credit facility was $23.3 million and the Company was compliant with all covenants of the loan agreement.

Note 11.  Defined Contribution Plan

        The Company maintains the Axcelis Long-Term Investment Plan, a defined contribution plan. All regular employees are eligible to participate and may contribute up to 35% of their compensation on a before-tax basis subject to IRS limitations. Highly compensated employees may contribute up to 16% of their compensation on a before-tax basis subject to IRS limitations. The Company suspended matching contributions in 2009, so no expense was recorded for this plan in 2011, 2010 or 2009.

Note 12.  Stock Award Plans and Stock-Based Compensation

2000 Stock Plan

        The Company maintains the Axcelis Technologies, Inc. 2000 Stock Plan (the "2000 Plan"), a stock award and incentive plan which permits the issuance of options, stock appreciation rights, restricted stock, restricted stock units, and performance awards to selected employees, directors and consultants of the Company. The 2000 Plan originally reserved 18.5 million shares of common stock for future grant, which amount was subsequently increased to 33.2 million shares of common stock. The 2000 Plan expires in 2012. At December 31, 2011, there were 7.3 million shares of common stock available for future grant. At December 31, 2011, stock awards outstanding under the 2000 Plan included stock options, restricted stock and restricted stock units.

        Expiration of non-qualified stock options or stock appreciation rights is based on award agreements. Non-qualified stock options typically expire ten years from date of grant, but, if approved by the Board of Directors, may have a stated term in excess of ten years. Incentive stock option awards expire ten years from the date of grant. Generally, options granted to employees terminate upon termination of employment. Under the terms of the 2000 Plan, the exercise price, determined by the Board of Directors, may not be less than the fair market value of a share of the Company's common stock on the date of grant. Stock options granted to employees generally vest over a period of four years, while stock options granted to non-employee members of the Company's Board of Directors generally vest over a period of 6 months and, once vested, are not affected by the director's termination of service to the Company. The Company settles stock option exercises with newly issued common shares.

F-15


        Generally, unvested restricted stock and restricted stock unit awards expire upon termination of service to the Company. Restricted stock or restricted stock unit awards granted to employees generally vest over a period of four years, while restricted stock or restricted stock units granted to members of the Company's Board of Directors generally vest over a period of six months. The Company plans to settle restricted stock units upon vesting with newly issued common shares.

        Under the 2000 Plan, fair market value is defined as the closing price of a share of the common stock on the Nasdaq Global Select Market as of any applicable date, as long as the Company's shares are traded on such exchange.

Grant-Date Fair Value

        For the purpose of valuing stock options, the Company uses the Black-Scholes option pricing model to calculate the grant-date fair value of an award. The fair values of options granted were calculated using the following estimated weighted-average assumptions:

 
  Years ended December 31,  
 
  2011   2010   2009  

Weighted-average expected volatility

    97.8 %   97.8 %   76.5 %

Weighted-average expected term (in years)

    6.1     6.2     5.5  

Risk-free interest rate

    1.1–2.4 %   1.5–2.0 %   2.1–2.6 %

Expected dividend yield

    0 %   0 %   0 %

        Expected volatility—The Company is responsible for estimating volatility and has considered a number of factors when estimating volatility. The Company's method of estimating expected volatility for all stock options granted relies on a combination of historical and implied volatility. The Company believes that this blended volatility results in a more accurate estimate of the grant-date fair value of employee stock options because it more appropriately reflects the market's current expectations of future volatility.

        Expected term—Weighted average expected term was calculated using a forward looking lattice model of the Company's stock price incorporating a suboptimal exercise factor and a projected post-vest forfeiture rate.

        Risk-free interest rate—The yield on zero-coupon U.S. Treasury securities for a period that is commensurate with the expected term assumption is used as the risk-free interest rate.

        Expected dividend yield—Expected dividend yield was not considered in the option pricing formula since the Company does not pay dividends and has no current plans to do so in the future.

Stock-Based Compensation Expense

        The Company estimates the fair value of stock options using the Black-Scholes valuation model. The fair value of the Company's restricted stock and restricted stock units is calculated based upon the fair market value of the Company's stock at the date of grant.

        The Company uses the straight-line attribution method to recognize expense for stock-based awards such that the expense associated with awards is evenly recognized throughout the period.

        The amount of stock-based compensation recognized is based on the value of the portion of the awards that are ultimately expected to vest. The Company estimates forfeitures at the time of grant and revises them, if necessary, in subsequent periods if actual forfeitures differ from those estimates. The term "forfeitures" is distinct from "cancellations" or "expirations" and represents only the unvested portion of the surrendered stock-based award. The Company currently expects, based on a historical analysis, a forfeiture rate of 5% per year, including executive officer awards.

F-16


        The Company recognized stock-based compensation expense of $4.7 million, $4.1 million and $4.7 million for the years ended December 31, 2011, 2010 and 2009, respectively. For 2011, 2010 and 2009, the Company primarily used stock options in its annual share-based payment program.

        The benefits of tax deductions in excess of recognized compensation cost is reported as a financing cash flow, rather than as an operating cash flow. Because the Company does not recognize the benefit of tax deductions in excess of recognized compensation cost due to its cumulative net operating loss position, this had no impact on the Company's consolidated statement of cash flows as of and for the years ended December 31, 2011, 2010 and 2009.

Stock Options

        The following table summarizes the stock option activity for the years ended December 31, 2011, 2010 and 2009:

 
  Options   Weighted
Average
Exercise
Price
  Weighted
Average
Remaining
Contractual
Term
  Aggregate
Intrinsic
Value
 
 
  (in thousands)
   
  (years)
  (in thousands)
 

Outstanding at December 31, 2008

    15,524   $ 8.05              

Granted

    4,555     1.11              

Exercised

    (66 )   0.68              

Canceled

    (887 )   1.20              

Expired

    (1,758 )   9.73              
                       

Outstanding at December 31, 2009

    17,368     6.43              

Granted

    5,310     1.61              

Exercised

    (704 )   0.79              

Canceled

    (333 )   1.23              

Expired

    (2,693 )   18.26              
                       

Outstanding at December 31, 2010

    18,948   $ 3.70              
                       

Granted

    4,662     1.70              

Exercised

    (372 )   0.77              

Canceled

    (654 )   1.43              

Expired

    (1,491 )   12.38              
                       

Outstanding at December 31, 2011

    21,093   $ 2.76     7.01   $ 3,112  
                   

Exercisable at December 31, 2011

    10,205   $ 4.13     5.22   $ 2,129  
                   

Options Vested or Expected to Vest at December 31, 2011(1)

    20,284   $ 2.81     7.03   $ 2,548  
                   

(1)
In addition to the vested options, the Company expects a portion of the unvested options to vest at some point in the future. Options expected to vest is calculated by applying an estimated forfeiture rate to the unvested options.

        Of the options outstanding at December 31, 2011, 2010, and 2009, 10,205, 8,443, and 9,335, respectively, were vested and exercisable with a weighted average exercise price of $4.13, $6.68, and $11.12, respectively. The total intrinsic value of options exercised (i.e. the difference between the market price at exercise and the price paid by the employee to exercise the options) for the years ended December 31, 2011, 2010 and 2009 was $0.7, $1.2 and $0.8 million, respectively.

F-17


        The total fair value of stock options vested during the year ended December 31, 2011 was $3.3 million. As of December 31, 2011, there was $9.5 million of total forfeiture adjusted unrecognized compensation cost related to non-vested stock options granted under the 2000 Plan. That cost is expected to be recognized over a weighted-average period of 2.8 years.

Restricted Stock and Restricted Stock Units

        Restricted stock units ("RSUs") represent the Company's unfunded and unsecured promise to issue shares of the common stock at a future date, subject to the terms of the RSU Award Agreement and the 2000 Plan. The purpose of these awards is to assist in attracting and retaining highly competent employees and directors and to act as an incentive in motivating selected employees and directors to achieve long-term corporate objectives. These RSU awards typically vest over four years for employees and executive officers. The restricted stock awards to directors typically vest over six months. The fair value of restricted stock unit and restricted stock awards is charged to expense ratably over the applicable service period.

        Changes in the Company's non-vested restricted stock and restricted stock units for the years ended December 31, 2011, 2010, and 2009 are as follows:

 
  Shares/units   Weighted-Average
Grant Date Fair
Value per Share
 
 
  (in thousands)
   
 

Outstanding at December 31, 2008

    1,612   $ 5.94  

Vested

    (798 )   6.04  

Forfeited

    (210 )   5.63  
           

Outstanding at December 31, 2009

    604   $ 5.90  

Granted

    695     1.72  

Vested

    (1,052 )   3.30  

Forfeited

    (19 )   2.94  
           

Outstanding at December 31, 2010

    228   $ 5.38  

Granted

    121     2.50  

Vested

    (196 )   5.81  

Forfeited

    (2 )   6.01  
           

Outstanding at December 31, 2011

    151   $ 2.52  
           

        The company's offers a net share settlement program to offset the personal income tax obligations of the employee's restricted stock vesting. Vesting activity above reflects shares vested before net share settlement. As of December 31, 2011, there was $0.3 million of total forfeiture adjusted unrecognized compensation cost related to nonvested restricted stock and restricted stock units, which is expected to be amortized over a weighted average amortization period of 2.99 years.

Employee Stock Purchase Plan

        The Employee Stock Purchase Plan (the "Purchase Plan") provides effectively all Axcelis employees the opportunity to purchase common stock of the Company at less than market prices. Purchases are made through payroll deductions of up to 10% of the employee's salary, subject to certain caps set forth in the Purchase Plan. Employees may purchase Axcelis common stock at 85% of the market value of the Company's common stock on the day the stock is purchased.

F-18


        The Purchase Plan is considered compensatory and as such, compensation expense has been recognized based on the benefit of the discounted stock price, amortized to compensation expense over each offering period of six months. Compensation expense for the years ended December 31, 2011, 2010, and 2009 was $0.1 million, $0.1 million, and $0.0 million respectively.

        As of December 31, 2011, there were a total of 2.3 million shares reserved for issuance and available for purchase under the Purchase Plan. There were 0.4, 0.3, and 0.3 million shares purchased under the Purchase Plan for the years ended December 31, 2011, 2010, and 2009 respectively.

Note 13.  Stockholders' Equity

Preferred Stock

        The Company may issue up to 30 million shares of preferred stock in one or more series. The Board of Directors is authorized to fix the rights and terms for any series of preferred stock without additional shareholder approval. As of December 31, 2011, 2010, and 2009, there were no outstanding shares of preferred stock.

Note 14.  Commitments and Contingencies

Lease Commitments

        The Company leases manufacturing and office facilities and certain equipment under operating leases that expire through 2016. Rental expense was $4.6 million, $5.2 million, and $5.7 million under operating leases for the years ended December 31, 2011, 2010, and 2009 respectively. Future minimum lease commitments on non-cancelable operating leases are as follows:

Year ended December 31,
  Operating
Leases
 
 
  (in thousands)
 

2012

  $ 3,434  

2013

    2,320  

2014

    1,511  

2015

    1,247  

2016

    853  

Thereafter

    780  
       

  $ 10,145  
       

Purchase Commitments

        The Company has non-cancelable contracts and purchase orders for inventory of $24.2 million at December 31, 2011.

Litigation

        The Company is not presently a party to any litigation that it believes might have a material adverse effect on its business operations. The Company is, from time to time, a party to litigation that arises in the normal course of its business operations.

Indemnifications

        The Company's system sales agreements typically include provisions under which the Company agrees to take certain actions, provide certain remedies and defend its customers against third-party claims of intellectual property infringement under specified conditions and to indemnify customers against any damage and costs awarded in connection with such claims. The Company has not incurred

F-19


any material costs as a result of such indemnifications and has not accrued any liabilities related to such obligations in the accompanying consolidated financial statements.

Note 15.  Business Segment, Geographic Region Information, and Significant Customers

        Axcelis operates in one business segment, which is the manufacture of capital equipment for the semiconductor manufacturing industry. The principal market for semiconductor manufacturing equipment is semiconductor manufacturers. Substantially all sales are made directly by Axcelis to customers located in the United States, Europe and Asia Pacific.

        Axcelis' ion implantation systems product line includes high current, medium current and high energy implanters. Other products include dry strip equipment, curing systems, and thermal processing systems. In addition to equipment, Axcelis provides post-sales equipment service and support, including spare parts, equipment upgrades, maintenance services and customer training.

        Revenue by product lines is as follows:

 
  Years ended December 31,  
 
  2011   2010   2009  
 
  (in thousands)
 

Ion implantation systems, services, and royalties

  $ 237,857   $ 232,335   $ 110,946  

Other products systems, services, and royalties

    81,559     42,877     22,076  
               

  $ 319,416   $ 275,212   $ 133,022  
               

        Revenue and long-lived assets by geographic region, based on the physical location of the operation recording the sale or the asset, are as follows:

 
  Revenue   Long-Lived
Assets
 
 
  (in thousands)
 

2011

             

United States

  $ 234,132   $ 54,472  

Europe

    31,505      

Asia Pacific

    53,779     996  
           

  $ 319,416   $ 55,468  
           

2010

             

United States

  $ 190,819   $ 50,532  

Europe

    33,822      

Asia Pacific

    50,571     442  
           

  $ 275,212   $ 50,974  
           

2009

             

United States

  $ 83,790   $ 53,494  

Europe

    23,063      

Asia Pacific

    26,169      
           

  $ 133,022   $ 53,494  
           

        Long-lived assets consist of property, plant and equipment, net and assets manufactured for internal use. Operations in Europe and Asia Pacific consist of sales and service organizations.

        International revenue, including export sales from U.S. manufacturing facilities to foreign customers, sales by foreign subsidiaries and branches, and royalties was $231.0 million (72.3% of total

F-20


revenue) in 2011, $208.5 million (75.8% of total revenue) in 2010, and $83.5 million (62.8% of total revenue) in 2009.

        One customer accounted for 21.2% of revenue and 27.2% of consolidated accounts receivable at December 31, 2011. One customer accounted for 18.6% of consolidated revenue and two customers accounted for 30.2% and 10.4% of consolidated accounts receivable, respectively at December 31, 2010. No customer accounted for more than 10% of consolidated revenue or consolidated accounts receivable at December 31, 2009.

Note 16.  Income Taxes

        Income (loss) before income taxes are as follows:

 
  Years ended December 31,  
 
  2011   2010   2009  
 
  (in thousands)
 

United States

  $ 2,622   $ (21,526 ) $ (78,185 )

Foreign

    4,849     4,265     4,820  

Equity loss of SEN

            (3,238 )
               

Income (loss) before income taxes

  $ 7,471   $ (17,261 ) $ (76,603 )
               

        Income taxes (credits) are as follows:

 
  Years ended December 31,  
 
  2011   2010   2009  
 
  (in thousands)
 

Current:

                   

United States

                   

Federal

  $   $   $ 5  

State

    163     309     99  

Foreign

    1,646     1,528     1,526  
               

Total current

    1,809     1,837     1,630  
               

Deferred:

                   

Foreign

    585     (1,525 )   (765 )
               

Total deferred

    585     (1,525 )   (765 )
               

Income taxes

  $ 2,394   $ 312   $ 865  
               

F-21


        Reconciliations of income taxes at the United States Federal statutory rate to the effective income tax rate are as follows:

 
  Years ended December 31,  
 
  2011   2010   2009  
 
  (in thousands)
 

Income (credit) at the United States statutory rate

  $ 2,615   $ (6,041 ) $ (26,812 )

State income taxes

    31     309     99  

Unrecognized tax benefits

    899     842      

Unremitted earnings of foreign subsidiaries

            705  

Effect of change in valuation allowance

    (3,160 )   6,550     (21,446 )

Foreign income tax rate differentials

    (365 )   (1,490 )   (926 )

Restoration of foreign deferred tax assets

        (1,329 )    

Equity loss of SEN

            1,133  

Taxable gain on sale of investment in SEN

            41,973  

Deemed distribution from foreign subsidiaries

    1,533     2,152     3,914  

Other, net

    841     (681 )   2,225  
               

Income taxes

  $ 2,394   $ 312   $ 865  
               

        Significant components of current and long-term deferred income taxes are as follows:

 
  As of December 31,  
 
  2011   2010  
 
  Current   Long Term   Current   Long Term  
 
  (in thousands)
 

Federal net operating loss carryforwards

  $   $ 79,163   $   $ 75,459  

State net operating loss carryforwards

        2,685         2,812  

Foreign net operating loss carryforwards

        1,821         1,723  

Federal tax credit carryforwards

        15,505         15,087  

State tax credit carryforwards

        9,051         9,205  

Unremitted earnings of foreign subsidiaries

        (10,370 )       (1,589 )

Intangible assets

        803     82     898  

Property, plant and equipment

        5,589         6,627  

Accrued compensation

    541         1,642      

Inventories

    22,447         17,519      

Stock compensation

        3,970         4,038  

Warranty

    1,293     51     938     57  

Other

    1,243     (3,814 )   74     3,914  
                   

Deferred taxes, gross

    25,524     104,454     20,255     118,231  
                   

Valuation allowance

    (24,160 )   (102,814 )   (18,174 )   (116,723 )
                   

Deferred taxes, net

  $ 1,364   $ 1,640   $ 2,081   $ 1,508  
                   

        At December 31, 2011, the Company had $130.0 million of deferred tax assets relating to net operating loss carryforwards, tax credit carryforwards and other temporary differences, which are available to reduce income taxes in future years. A valuation allowance must be established when it is "more likely than not" that all or a portion of deferred tax assets will not be realized. A review of all available positive and negative evidence needs to be considered, including a company's performance, the market environment in which the company operates length of carryback and carryforward periods, existing sales backlog, and projections of future operating results. Where there are cumulative losses in

F-22


recent years there is a strong presumption that a valuation allowance is needed. This presumption can be overcome in very limited circumstances.

        The Company is in a three year cumulative loss position in the United States. As a result, the Company maintains a 100% valuation allowance for entities in those tax jurisdictions to reduce the carrying value of deferred tax assets to zero. The Company will continue to maintain a full valuation allowance for those tax assets until sustainable future levels of profitability are evident.

        Changes in the valuation allowance in 2011 and 2010 were attributable to changes in the composition of temporary differences and changes in net operating loss carryforwards. In addition, during 2010 the Company performed an evaluation of the deferred tax assets of certain of its foreign subsidiaries. Based on the subsidiaries recent and expected ability to generate taxable income, the Company reduced the subsidiaries' corresponding valuation allowance and recognized a tax benefit of $1.3 million.

        At December 31, 2011, the Company has federal and state net operating loss carryforwards of approximately $227.9 million and foreign net operating loss carryforwards of approximately $4.5 million expiring principally between 2021 and 2030.

        The Company has research and development and other tax credit carryforwards of approximately $19.0 million at December 31, 2011 that can be used to reduce future federal and state income tax liabilities. These tax credit carryforwards expire principally between 2021 and 2031. In addition, the Company has foreign tax credit carryforwards of approximately $5.6 million at December 31, 2011 that are available to reduce future U.S. income tax liabilities subject to certain limitations. These foreign tax credit carryforwards expire between 2012 and 2016.

        It is Company policy to provide taxes for the total anticipated tax impact of the undistributed earnings of our wholly-owned foreign subsidiaries', as such earnings are not expected to be reinvested indefinitely. The Company anticipates that US tax resulting from remitting such earnings will be off-set by net operating loss or credit carryforwards to the extent available. In addition, the Company does not anticipate incurring a foreign withholding tax on remitting such earnings since it does not intend to remit the earnings as dividends.

        The Company and its subsidiaries file income tax returns in the U.S. federal jurisdiction and various states and foreign jurisdictions. The Company and most foreign subsidiaries are subject to income tax examinations by tax authorities for all years dating back to 2001. The Company's policy is to recognize interest related to unrecognized tax benefits as interest expense and penalties as operating expenses. The Company believes that it has appropriate support for the income tax positions taken and to be taken on its tax returns and that its accruals for tax liabilities are adequate for all open years based on an assessment of many factors including past experience and interpretations of tax law applied to the facts of each matter.

        At December 31, 2011, the Company had unrecognized tax benefits of approximately $8.0 million, of which approximately $4.8 million reduced the Company's deferred tax assets and the offsetting valuation allowance and $3.2 million was recorded in other long-term liabilities. The Company does not expect any significant changes in unrecognized tax benefits in 2012.

F-23


        A reconciliation of the beginning and ending balance of unrecognized tax benefits are as follows:

 
  2011   2010  
 
  (in thousands)
 

Balance at beginning of year

  $ 6,965   $ 5,934  

Increases in unrecognized tax benefits as a result of tax positions taken during a prior period

    1,124     189  

Increases in unrecognized tax benefits as a result of tax positions taken during the current period

        842  
           

Balance at end of year

  $ 8,089   $ 6,965  
           

Recorded as other long-term liability

  $ 3,244   $ 2,246  

Recorded as a decrease in deferred tax assets and offsetting valuation allowance

    4,845     4,719  
           

  $ 8,089   $ 6,965  
           

Note 17.  SEN

        Until March 30, 2009, the Company owned 50% of the equity of a joint venture with Sumitomo Heavy Industries, Ltd. ("SHI") in Japan. This joint venture, which was known as SEN was established in 1982 and licensed technology from the Company relating to the manufacture of specified ion implantation products and had exclusive rights to manufacture and sell these products in the territory of Japan. On March 30, 2009, pursuant to a Share Purchase Agreement dated February 26, 2009, the Company sold to SHI all of the Company's common shares in SEN in exchange for a cash payment of 13 billion Yen, which resulted in proceeds of approximately $132.8 million before advisor fees and other expenses of $10.6 million. The sales price was determined through an arm's length negotiation. This transaction terminated all prior agreements among the three parties relating to the SEN joint venture. In addition, an arbitration the Company had initiated against SEN in Tokyo was dismissed.

        In connection with the sale of the Company's investment in SEN, on March 30, 2009, the Company and SEN entered into a License Agreement pursuant to which the parties have cross licensed each other to use certain ion implant patents and technical information on a non-exclusive, perpetual, royalty-free, worldwide basis, provided that both received sole exclusive licenses for 4 years in the U.S. and Japan, respectively. The licenses to technical information cover only technical information shared by the parties prior to the date of the license, so the license to SEN does not cover technical information relating to the Optima HD and Optima XE. The license also excludes patents relating to the Company's work in molecular implant and certain patents developed for the Optima HD and Optima XE. The parties provided each other with limited warranties regarding their right to grant these licenses, and indemnity with respect thereto, but disclaim any warranty regarding the validity or freedom from infringement of the licensed intellectual property. Neither party will provide any support for the other party's use of the licensed intellectual property.

        The sale of the Company's investment in SEN on March 30, 2009, resulted in a gain of approximately $1.1 million. This gain includes net proceeds of $122.2 million (after payment of advisor fees and other costs of $10.6 million) and cumulative foreign translation gain of $23.5 million, previously recorded in other comprehensive income, reduced by the carrying value of the investment on the date of sale of $144.6 million. The gain from the sale of the Company's investment in SEN is recorded in other income.

F-24


Note 18.  Quarterly Results of Operations (unaudited)

 
  Dec. 31,
2011
  Sept. 30,
2011
  June 30,
2011
  March 31,
2011
  Dec. 31,
2010
  Sept. 30,
2010
  June 30,
2010
  March 31,
2010
 
 
  (in thousands, except per share data)
 

Revenue

  $ 60,411   $ 72,455   $ 93,380   $ 93,170   $ 93,403   $ 75,106   $ 58,203   $ 48,500  

Gross profit

    22,623     26,895     34,138     31,081     31,493     21,470     19,868     13,007  

Net income (loss)

    (2,113 )   1,151     4,227     1,812     4,330     (6,273 )   (4,529 )   (11,101 )

Net income (loss) per share basic and diluted

  $ (0.02 ) $ 0.01   $ 0.04   $ 0.02   $ 0.04   $ (0.06 ) $ (0.04 ) $ (0.11 )

        Results of operations for the quarters ended December 31, 2011 include a tax expense of $0.9 million related to an uncertain tax position in a certain foreign jurisdiction. Results of operations for the quarter ended December 31, 2010 include a tax benefit of $1.3 million related to the restoration of deferred tax assets in certain foreign jurisdictions.

Note 19.  Subsequent Events

        In order to align manufacturing and operating expense levels to changing business conditions, the Company implemented a headcount reduction of approximately 9% in the first quarter of 2012. This action is expected to generate savings in the range of $8 million to $12 million annually. The Company anticipates recording employee termination benefits and other related costs of $2.5 million to $3.5 million during the first and second quarters of 2012.

F-25



Signatures

        Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.

    AXCELIS TECHNOLOGIES, INC.

 

 

By:

 

/s/ MARY G. PUMA

Dated: February 29, 2012       Mary G. Puma, Chief Executive Officer

        Pursuant to the requirements of the Securities Exchange Act of 1934, this report has been signed below by the following persons on behalf of the Registrant and in the capacities and on the date indicated.

Signature   Title   Date

 

 

 

 

 
/s/ MARY G. PUMA

Mary G. Puma
  Director and Principal Executive Officer   February 29, 2012

/s/ JAY ZAGER

Jay Zager

 

Principal Accounting and Financial Officer

 

February 29, 2012

/s/ EDWARD H. BRAUN

Edward H. Braun

 

Director

 

February 29, 2012

/s/ R. JOHN FLETCHER

R. John Fletcher

 

Director

 

February 29, 2012

/s/ STEPHEN R. HARDIS

Stephen R. Hardis

 

Director

 

February 29, 2012

/s/ WILLIAM C. JENNINGS

William C. Jennings

 

Director

 

February 29, 2012

/s/ JOSEPH P. KEITHLEY

Joseph P. Keithley

 

Director

 

February 29, 2012

/s/ PATRICK H. NETTLES

Patrick H. Nettles

 

Director

 

February 29, 2012

/s/ H. BRIAN THOMPSON

H. Brian Thompson

 

Director

 

February 29, 2012


Exhibit Index

Exhibit No.   Description
      3.1   Amended and Restated Certificate of Incorporation of the registrant, as adopted May 6, 2009. Incorporated by reference to Exhibit 3.1 of the Company's Form 8-K filed with the Commission on May 11, 2009.
      3.2   Bylaws of the Company, as amended as of August 8, 2007. Incorporated by reference to Exhibit 3.2 of the Company's Form 10-Q for the quarter ended June 30, 2007, filed with the Commission on August 9, 2007.
      4.1   Specimen Stock Certificate. Incorporated by reference to Exhibit 4.1 of the Company's Registration Statement on Form S-1 (Registration No. 333-36330).
    10.1*   Axcelis Technologies, Inc. 2000 Stock Plan, as amended through June 23, 2005. Incorporated by reference to Exhibit 10.2 to the Company's Current Report on Form 8-K filed with the Commission on June 28, 2005.
    10.2*   Axcelis Management Incentive Plan, as amended and restated by the Compensation Committee of the Board of Directors on February 11, 2010. Incorporated by reference to Exhibit 10.2 of the Company's report on Form 10-K for the year ended December 31, 2009 filed with the Commission on March 15, 2010.
    10.3   Form of Indemnification Agreement entered into by the Company with each of its directors and executive officers prior to 2012. Incorporated by reference to Exhibit 10.2 of the Company's Registration Statement on Form S-1 (Registration No. 333-36330).
    10.4   Form of Indemnification Agreement approved by the Board of Directors of the Company on February 9, 2012 for use with each of its directors and officers, together with a schedule of each current indemnitee. Filed herewith.
    10.5*   Form of Change in Control Agreement, as approved by the Board of Directors on October 16, 2007 and first effective on November 6, 2007, between the Company and each of its executive officers. Incorporated by reference to Exhibit 10.4 of the Company's report on Form 10-Q for the quarter ended September 30, 2007 filed with the Commission on November 8, 2007.
    10.6*   Form of Employee non-qualified stock option grant under the 2000 Stock Plan, updated as of April 5, 2002. Incorporated by reference to Exhibit 10.1 of the Company's report on Form 10-Q filed with the Commission on November 9, 2004.
    10.7*   Form of Non-Employee Director stock non-qualified stock option grant under the 2000 Stock Plan, updated as of July 12, 2004. Incorporated by reference to Exhibit 10.2 of the Company's report on Form 10-Q filed with the Commission on November 9, 2004.
    10.8*   Form of Restricted Stock Agreement for use under the 2000 Stock Plan. Incorporated by reference to Exhibit 10.4 to the Company's Current Report on Form 8-K filed with the Commission on June 28, 2005.
    10.9*   Form of Restricted Stock Unit Award Agreement for use under the 2000 Stock Plan. Incorporated by reference to Exhibit 10.3 to the Company's Current Report on Form 8-K filed with the Commission on June 28, 2005.
    10.10*   Named Executive Officer Base Compensation at February 29, 2012. Filed herewith.
    10.11*   Non-Employee Director Cash Compensation at February 29, 2012. Filed herewith.
    10.12*   Amended and Restated Employment Agreement between the Company and Mary G. Puma dated November 6, 2007. Incorporated by reference to Exhibit 10.3 of the Company's report on Form 10-Q for the quarter ended September 30, 2007 filed with the Commission on November 8, 2007.

Exhibit No.   Description
    10.13*   Letter from Mary G. Puma to the Board of Directors dated May 1, 2009, modifying her Amended and Restated Employment Agreement with the Company. Incorporated by reference to Exhibit 10.1 of the Company's report on Form 8-K filed with the Commission on May 11, 2009.
    10.14*   Letter Agreement with Mary G. Puma dated September 22, 2011. Filed herewith.
    10.15   Second Amended and Restated Loan and Security Agreement dated as of April 25, 2011 between the Company and Axcelis Technologies CCS Corporation, as borrowers, and Silicon Valley Bank. Incorporated by reference to Exhibit 10.1 to the Company's report on Form 10-Q for the quarter ended March 31, 2011 filed with the Commission on May 6, 2011.
    10.16   First Loan Modification Agreement dated as of December 27, 2011 between the Company and Axcelis Technologies CCS Corporation, as borrowers, and Silicon Valley Bank with other Company subsidiaries confirming guaranties. Filed herewith.
    10.17   License Agreement dated as of March 30, 2009 between the Company and SEN Corporation. Incorporated by reference to Exhibit 10.1 to the Company's Current Report on Form 8-K filed with the Commission on April 3, 2009.
    14.1   Ethical Business Conduct at Axcelis, revised through January 2003. Incorporated by reference to Exhibit 14.1 of the Company's report on Form 10-K filed with the Commission on March 28, 2003.
    21.1   Subsidiaries of the Company. Filed herewith.
    23.1   Consent of Ernst & Young LLP, Independent Registered Public Accounting Firm. Filed herewith.
    31.1   Certification of the Principal Executive Officer under Exchange Act Rule 13a-14(a)/15d-14(a) (Section 302 of the Sarbanes-Oxley Act), dated February 29, 2012. Filed herewith.
    31.2   Certification of the Principal Financial Officer under Exchange Act Rule 13a-14(a)/15d-14(a) (Section 302 of the Sarbanes-Oxley Act), dated February 29, 2012. Filed herewith.
    32.1   Certification of the Principal Executive Officer pursuant to Section 1350 of Chapter 63 of title 18 of the United States Code (Section 906 of the Sarbanes-Oxley Act), dated February 29, 2012. Filed herewith.
    32.2   Certification of the Principal Financial Officer pursuant to Section 1350 of Chapter 63 of title 18 of the United States Code (Section 906 of the Sarbanes-Oxley Act), dated February 29, 2012. Filed herewith.
  101   The following materials from the Company's Form 10-K for the year ended December 31, 2011, formatted in eXtensible Business Reporting Language (XBRL): (i) Consolidated Statements of Operations, (ii) Consolidated Balance Sheets, (iii) Consolidated Statements of Equity, (iv) Consolidated Statements of Cash Flows, and (v) Notes to Consolidated Financial Statements.

*
Indicates a management contract or compensatory plan.

You may obtain a copy of any of these exhibits free of charge either on our website at http://www.axcelis.com or by contacting Investor Relations at Axcelis Technologies, Inc., 108 Cherry Hill Drive, Beverly, MA 01915-1053.



Schedule II—Valuation and Qualifying Accounts
Axcelis Technologies, Inc.
(In thousands)

 
  Balance at
Beginning of
Period
  Charged to
Costs and
Expenses
  Deductions   Other(*)   Balance at
End of
Period
 

Year Ended December 31, 2011

                               

Allowance for doubtful accounts and returns

  $ 1,357   $ (535 ) $ (449 ) $ 38   $ 411  

Reserve for excess and obsolete inventory

    27,517     1,015     (5,583 )   (171 )   22,778  

Year Ended December 31, 2010

                               

Allowance for doubtful accounts and returns

  $ 2,390   $ (1,120 ) $ (17 ) $ 104   $ 1,357  

Reserve for excess and obsolete inventory

    36,980     2,015     (11,224 )   (254 )   27,517  

Year Ended December 31, 2009

                               

Allowance for doubtful accounts and returns

  $ 2,545   $ (88 ) $   $ (67 ) $ 2,390  

Reserve for excess and obsolete inventory

    47,656     9,818     (20,732 )   238     36,980  

(*)
Represents foreign currency translation adjustments.



Exhibit 10.4

 

FORM OF [AMENDED AND RESTATED](1)

INDEMNIFICATION AGREEMENT

 

This [Amended and Restated] Indemnification Agreement, effective as of the          day of                   , 20    , by and between Axcelis Technologies, Inc., a Delaware corporation (the “Company”), and                             , the {Title} of the Company (“Indemnitee”) [amends and restates the Indemnification Agreement dated as of                         , 20     by and between the Company and Indemnitee, as previously amended];

 

WHEREAS, the Company and Indemnitee are each aware of the exposure to litigation of officers, directors and representatives of the Company as such persons exercise their duties to the Company;

 

WHEREAS, the Company and Indemnitee are also aware of conditions in the insurance industry that have affected and may affect in the future the Company’s ability to obtain appropriate directors’ and officers’ liability insurance on an economically acceptable basis;

 

WHEREAS, the Company desires to provide adequate protection to its directors and officers against inordinate risks of claims and actions against them arising out of their services on the Company’s behalf so as to continue to benefit from the services of highly qualified, experienced and otherwise competent persons such as Indemnitee;

 

WHEREAS, Indemnitee desires to serve or to continue to serve the Company as an officer and/or director of the Company, or, if requested to do so by the Company, as a director, officer, trustee, employee, representative or agent of another corporation, partnership, limited liability company, joint venture, trust or other enterprise, for so long as the Company continues to provide on an acceptable basis adequate and reliable indemnification against certain liabilities and expenses which may be incurred by Indemnitee; and

 

WHEREAS, Indemnitee may be entitled to indemnification pursuant to the General Corporation Law of the State of Delaware (the “DGCL”), and the certificate of incorporation and the bylaws of the Company (a) require indemnification of the officers and directors of the Company and (b) expressly provide that the indemnification provisions thereof are not exclusive, and thereby contemplate that contracts may be entered into between the Company and members of the board of directors, officers and other persons with respect to indemnification;

 

NOW, THEREFORE, in consideration of the foregoing premises and the mutual covenants herein contained, the parties hereto agree as follows:

 


(1)  Amended and Restated language in brackets was used in agreements with indemnitees who had entered into Indemnification Agreements prior to February 9, 2012 that were subsequently amended and restated to conform to this form.  All Indemnification Agreements entered into after that date do not include the bracketed language.

 



 

1.     INDEMNIFICATION

 

(a)       The Company shall indemnify Indemnitee to the fullest extent permitted by law with respect to Indemnitee’s status or activities (i) as an officer and/or director of the Company and (ii) as a person who is or was serving or has agreed to serve at the request of, for the convenience of, or to represent the interests of, the Company as a director, officer, trustee, employee, fiduciary or agent of another corporation, partnership, limited liability company, joint venture, trust or other enterprise, domestic or foreign, against all judgments, fines and amounts paid in settlement and all Expenses (as hereinafter defined) reasonably incurred by or on behalf of Indemnitee (including all interest, assessments and other charges paid or payable in connection with or in respect of such judgments, fines, amounts paid in settlement and Expenses) in connection with any claim against Indemnitee in or arising out of a Proceeding (as hereinafter defined). The Company shall also indemnify Indemnitee to the fullest extent permitted by applicable law for all Expenses incurred by or on behalf of Indemnitee in connection with the enforcement of Indemnitee’s rights under this Agreement by legal action, arbitration or otherwise. .

 

(b)       As used in this Agreement:

 

(i)    “Expenses” shall mean all attorneys’ fees, retainers, court costs, transcript costs, fees of experts and other professionals, witness fees, travel expenses, duplicating costs, printing and binding costs, telephone charges, postage, delivery service fees, any federal, state, local or foreign taxes imposed on Indemnitee as a result of the actual or deemed receipt of any payments under this Agreement, ERISA excise taxes and penalties, premiums, security for, and other costs relating to any cost bond, supersedeas bond, or other appeal bond or its equivalent, and all other disbursements or expenses of the types customarily incurred in connection with prosecuting, defending, preparing to prosecute or defend, appealing, investigating, being or preparing to be a witness in, or otherwise participating in, any threatened, pending or completed action, suit, claim, counterclaim, cross claim, arbitration, mediation, alternative dispute resolution mechanism, investigation, inquiry, administrative hearing or any other actual, threatened or completed proceeding, including any appeal therefrom.  Expenses also shall include (other than in a Proceeding by or in the right of the Company to procure a judgment in its favor) any deductibles required to be paid by Indemnitee under any director and officer or similar insurance policy maintained by the Company.  Expenses shall not include amounts paid in settlement by Indemnitee or the amount of any judgments or fines against or imposed on Indemnitee.

 

(ii)   “Proceeding” shall mean any threatened, pending or completed action, suit, claim, counterclaim, cross claim, arbitration, mediation, alternative dispute resolution mechanism, investigation, inquiry, administrative hearing or any other actual, threatened or completed proceeding, whether brought in the right of the Company or otherwise and whether of a civil, criminal, administrative, legislative, or investigative (formal or informal) nature, including any appeal therefrom, in which Indemnitee was, is or will be involved as a party, potential party, non-party witness or otherwise by reason of the fact that Indemnitee is or was a serving in any of the capacities described in Paragraph 1(a), by reason of any action taken by him (or a failure to take action by him) or of any action (or failure to act) on his part while acting in any such capacity, in each case whether or not serving in such capacity at the time any liability or Expense is incurred for which indemnification, reimbursement, or advancement of Expenses can be provided under this Agreement.  If Indemnitee believes in good faith that a given situation may lead to or culminate in the institution of a Proceeding, this shall be considered a Proceeding for purposes of this Agreement.

 

(c)        The parties hereto intend that Indemnitee shall be entitled to receive, as determined by Indemnitee, payment to the maximum extent permitted by one or any combination of the following:

 

(i)     the payments provided by the Company’s certificate of incorporation and bylaws as in effect on the date hereof, a copy of the relevant portions of which are attached hereto as

 



 

Exhibit I;

 

(ii)     the payments provided by the Company’s certificate of incorporation and bylaws in effect at the time Expenses are incurred by Indemnitee;

 

(iii)     the payments allowable under Delaware law in effect at the date hereof (or, if Delaware law is hereafter amended to be more favorable to Indemnitee, under Delaware law as hereafter amended);

 

(iv)    the payments allowable under the law of the jurisdiction under which the Company is incorporated at the time Expenses are incurred by Indemnitee;

 

(v)     the payments available under liability insurance obtained by the Company; and

 

(vi)     such other payments as are or may be otherwise available to Indemnitee (including pursuant to this Agreement);

 

provided that, no right to indemnification or to advancement of Expenses arising under a provision of the Company’s certificate of incorporation or bylaws shall be eliminated or impaired by an amendment to the certificate of incorporation or the bylaws after the occurrence of the act or omission that is the subject of the Proceeding for which indemnification or advancement of Expenses is sought.

 

Combination of two or more of the payments provided by clauses (i) through (vi) above shall be available to the extent that the Applicable Document, as hereafter defined, does not require that the payments provided therein be exclusive of other payments.  The document or law providing for any of the payments listed in items (i) through (vi) above is referred to in this Agreement as the “Applicable Document.”  The Company hereby undertakes, upon an appropriate determination that Indemnitee is entitled thereto, to use its best efforts to assist Indemnitee, in all proper and legal ways, to obtain the payments selected by Indemnitee under clauses (i) through (vi) above.

 

(d)       For purposes of this Agreement, references to “other enterprises” shall include employee benefit plans for employees of the Company or of any of its subsidiaries without regard to ownership of such plans; references to “fines” shall include any excise taxes assessed on Indemnitee with respect to any employee benefit plan; references to “serving at the request of the Company” shall include any service as a director, officer, trustee, employee, representative or agent of the Company which imposes duties on, or involves services by, Indemnitee with respect to an employee benefit plan, its participants or beneficiaries; references to the masculine shall include the feminine; references to the singular shall include the plural and vice versa; and if Indemnitee acted in good faith and in a manner Indemnitee reasonably believed to be in the interest of the participants and beneficiaries of an employee benefit plan, Indemnitee shall be deemed to have acted in a manner consistent with the standards required for indemnification by the Company under the Applicable Documents.

 

2.     INSURANCE

 

The Company shall maintain directors’ and officers’ liability insurance which is at least as favorable to Indemnitee as the policy in effect on the date hereof and for so long as Indemnitee’s services are covered hereunder, provided and to the extent that such insurance is available on a reasonable commercial basis.  However, Indemnitee shall continue to be entitled to the indemnification rights provided hereunder regardless of whether liability or other insurance coverage is at any time obtained or retained by the Company.  Any payments in fact made to Indemnitee under an insurance policy obtained or retained by the Company shall reduce the obligation of the Company to make payments hereunder by the amount of the payments made under any such insurance policy.  In the event

 



 

that insurance becomes unavailable in the amount or scope of coverage of the policy in effect on the date hereof on a reasonable commercial basis and the Company foregoes maintenance of all or a portion of such insurance coverage, the Company shall stand as a self-insurer with respect to the coverage, or portion thereof, not retained, and shall indemnify Indemnitee against any loss arising out of the reduction or cancellation of such insurance coverage.

 

3.     ADVANCEMENT AND PAYMENT OF EXPENSES

 

At Indemnitee’s request, the Company shall advance (or, to the extent previously paid, reimburse) Expenses as and when incurred by or on behalf of Indemnitee after receipt of written notice pursuant to Paragraph 6 hereof and an undertaking in the form of Exhibit II attached hereto by or on behalf of Indemnitee (i) to repay such amounts so paid to or on behalf of Indemnitee if it shall ultimately be determined under the Applicable Document that Indemnitee is required to repay such Expenses and (ii) to reasonably cooperate with the Company concerning the Proceeding.  Expenses shall be advanced or paid by the Company, as applicable, within 15 days of its receipt of such notice, together with reasonable documentation evidencing the amount and nature of such Expenses.  Any advancements or repayments of Expenses and undertakings to repay shall be unsecured and interest free.

 

4.     [Intentionally Omitted]

 

5.     ADDITIONAL RIGHTS

 

(a)       The indemnification provided in this Agreement shall not be exclusive of any other indemnification or right to which Indemnitee may be entitled and shall continue after Indemnitee has ceased to occupy a position as an officer, director or representative as described in Paragraph 1 above with respect to Proceedings relating to or arising out of Indemnitee’s acts or omissions during Indemnitee’s service in such position.

 

(b)       To the fullest extent permissible under applicable law, if the indemnification provided for in this Agreement is unavailable to Indemnitee for any reason whatsoever, the Company, in lieu of indemnifying Indemnitee, shall contribute to the amount incurred by Indemnitee, whether for judgments, fines, penalties, excise taxes, amounts paid or to be paid in settlement and/or for Expenses, in connection with any claim relating to an indemnifiable event under this Agreement, in such proportion as is deemed fair and reasonable in light of all of the circumstances of such Proceeding in order to reflect (i) the relative benefits received by the Company and Indemnitee as a result of the event(s) and/or transaction(s) giving cause to such Proceeding; and/or (ii) the relative fault of the Company (and its directors, officers, employees and agents) and Indemnitee in connection with such event(s) and/or transaction(s).

 

6.     NOTICE AND PROCEDURE FOR INDEMNIFICATION

 

(a)       Indemnitee shall provide to the Company prompt written notice of any Proceeding brought, threatened, asserted or commenced against Indemnitee with respect to which Indemnitee may assert a right to indemnification hereunder; provided that failure to provide such notice shall not in any way limit Indemnitee’s rights under this Agreement.

 

(b)       To obtain indemnification under this Agreement, Indemnitee shall submit to the Company a written request, including therein or therewith such documentation and information related thereto as is reasonably available to Indemnitee.

 

(c)        Upon written request by Indemnitee for indemnification pursuant to Paragraph

 



 

6(b), a determination, if required by applicable law, with respect to Indemnitee’s entitlement thereto shall be made in the specific case: (i) if a Change in Control shall have occurred, by Independent Counsel (as hereinafter defined) in a written opinion to the board of directors of the Company (the “Board”), a copy of which shall be delivered to Indemnitee; or (ii) if a Change in Control shall not have occurred, (A) by a majority vote of the Disinterested Directors (as hereinafter defined), even though less than a quorum of the Board, (B) by a committee of Disinterested Directors designated by a majority vote of the Disinterested Directors, even though less than a quorum of the Board, (C) if there are no such Disinterested Directors or, if such Disinterested Directors so direct, by Independent Counsel in a written opinion to the Board, a copy of which shall be delivered to Indemnitee or (D) if so directed by the Board, by the stockholders of the Company; and, if it is so determined that Indemnitee is entitled to indemnification, payment to Indemnitee shall be made within 10 days after such determination.  Indemnitee shall cooperate with the person, persons or entity making such determination with respect to Indemnitee’s entitlement to indemnification, including providing to such person, persons or entity upon reasonable advance request any documentation or information which is not privileged or otherwise protected from disclosure and which is reasonably available to Indemnitee and reasonably necessary to such determination.  Any costs or Expenses incurred by Indemnitee in so cooperating with the person, persons or entity making such determination shall be borne by the Company (irrespective of the determination as to Indemnitee’s entitlement to indemnification), and the Company hereby indemnifies and agrees to hold Indemnitee harmless therefrom.  The Company promptly will advise Indemnitee in writing with respect to any determination that Indemnitee is or is not entitled to indemnification, including a description of any reason or basis for which indemnification has been denied.

 

(d)       In the event the determination of entitlement to indemnification is to be made by Independent Counsel pursuant to Paragraph 6(c) hereof, the Independent Counsel shall be selected as provided in this Paragraph 6(d).  If a Change in Control shall not have occurred, the Independent Counsel shall be selected by the Board, and the Company shall give written notice to Indemnitee advising him of the identity of the Independent Counsel so selected.  If a Change in Control shall have occurred, the Independent Counsel shall be selected by Indemnitee (unless Indemnitee shall request that such selection be made by the Board, in which event the preceding sentence shall apply), and Indemnitee shall give written notice to the Company advising it of the identity of the Independent Counsel so selected.  In either event, Indemnitee or the Company, as the case may be, may, within 10 days after such written notice of selection shall have been given, deliver to the Company or to Indemnitee, as the case may be, a written objection to such selection; provided, however, that such objection may be asserted only on the ground that the Independent Counsel so selected does not meet the requirements of “Independent Counsel” as defined below, and the objection shall set forth with particularity the factual basis of such assertion.  Absent a proper and timely objection, the person so selected shall act as Independent Counsel.  If such written objection is so made and substantiated, the Independent Counsel so selected may not serve as Independent Counsel unless and until such objection is withdrawn or a court having jurisdiction or an arbitrator chosen pursuant to Paragraph 10 of this Agreement has determined that such objection is without merit.  Upon the commencement of any legal action or arbitration pursuant to Paragraph 10, Independent Counsel shall be discharged and relieved of any further responsibility in such capacity (subject to the applicable standards of professional conduct then prevailing).  The Company shall pay the reasonable fees and Expenses of the Independent Counsel referred to above and shall fully indemnify such counsel against any and all Expenses, claims, liabilities and damages arising out of or relating to this Agreement or its engagement pursuant hereto.

 

(e)                As used in this Agreement:

 

(i)    “Disinterested Director” shall mean a director of the Company who is not and was not a party to the Proceeding in respect of which indemnification is sought by Indemnitee, and

 

(ii)   “Independent Counsel” shall mean a law firm, or a member of a law firm, that is experienced in matters of corporation law and neither presently is, nor in the past 5 years

 



 

preceding the commencement of the Proceeding has been, retained to represent: (A) the Company or Indemnitee in any matter material to either such party (other than with respect to matters concerning the Indemnitee under this Agreement, or of other indemnitees under similar indemnification agreements), or (B) any other party to the Proceeding giving rise to a claim for indemnification hereunder.  Notwithstanding the foregoing, the term “Independent Counsel” shall not include any person who, under the applicable standards of professional conduct then prevailing, would have a conflict of interest in representing either the Company or Indemnitee in an action to determine Indemnitee’s rights under this Agreement.

 

7.     PRESUMPTIONS AND EFFECT OF CERTAIN PROCEEDINGS.

 

(a)       In making a determination with respect to entitlement to indemnification hereunder, the person or persons or entity making such determination shall, to the fullest extent not prohibited by law, presume that Indemnitee is entitled to indemnification under this Agreement if Indemnitee has submitted a request for indemnification in accordance with Paragraph 6(b), and, in connection with the making by any person, persons or entity of any determination contrary to that presumption, the Company shall, to the fullest extent not prohibited by law, have the burden of proof to overcome that presumption. Neither the failure of the Company (including by its directors or Independent Counsel) to have made a determination before the commencement of any action pursuant to this Agreement that indemnification is proper in the circumstances because Indemnitee has met the applicable standard of conduct, nor an actual determination by the Company (including by its directors or Independent Counsel) that Indemnitee has not met such applicable standard of conduct, shall be a defense to the action or create a presumption that Indemnitee has not met the applicable standard of conduct.

 

(b)       Subject to Paragraph 10(e), if the person, persons or entity empowered or selected under Paragraph 6 of this Agreement to determine whether Indemnitee is entitled to indemnification shall not have made a determination within 60 days after receipt by the Company of the request therefor, the requisite determination of entitlement to indemnification shall, to the fullest extent not prohibited by law, be deemed to have been made and Indemnitee shall be entitled to such indemnification, absent (i) a misstatement by Indemnitee of a material fact, or an omission of a material fact necessary to make Indemnitee’s statement not materially misleading, in connection with the request for indemnification, or (ii) a prohibition of such indemnification under applicable law; provided, however, that such 60-day period may be extended for a reasonable time, not to exceed an additional 30 days, if the person, persons or entity making the determination with respect to entitlement to indemnification in good faith requires such additional time for the obtaining or evaluating of documentation and/or information relating thereto; and provided, further, that the foregoing provisions of this Paragraph 7(b) shall not apply (i) if the determination of entitlement to indemnification is to be made by the stockholders pursuant to Paragraph 6(c) hereof and if (A) within 15 days after receipt by the Company of the request for such determination the Board has resolved to submit such determination to the stockholders for their consideration at an annual meeting thereof to be held within 75 days after such receipt and such determination is made thereat, or (B) a special meeting of stockholders is called within 15 days after such receipt for the purpose of making such determination, such meeting is held for such purpose within 60 days after having been so called and such determination is made thereat, or (ii) if the determination of entitlement to indemnification is to be made by Independent Counsel pursuant to Paragraph 6(c).

 

(c)        The termination of any Proceeding or of any claim, issue or matter therein, by judgment, order, settlement or conviction, or upon a plea of nolo contendere or its equivalent, shall not (except as expressly provided in this Agreement) of itself adversely affect the right of Indemnitee to indemnification or create a presumption that Indemnitee did not act in accordance with the standards for indemnification set forth in the DGCL.

 

(d)       For purposes of any determination of good faith, Indemnitee shall be deemed

 



 

to have acted in good faith if Indemnitee’s action is based on the records or books of account of the Company, including financial statements, or on information supplied to Indemnitee by the directors or officers of the Company in the course of their duties, or on the advice of legal counsel for the Company or on information or records given or reports made to the Company by an independent certified public accountant or by an appraiser or other expert selected with the reasonable care by the Company.  The provisions of this Paragraph 7(d) shall not be deemed to be exclusive or to limit in any way the other circumstances in which the Indemnitee may be deemed to have met the applicable standard of conduct set forth in this Agreement.

 

(e)        The knowledge and/or actions, or failure to act, of any director, officer, trustee, partner, managing member, fiduciary, agent or employee of the Company shall not be imputed to Indemnitee for purposes of determining the right to indemnification under this Agreement.

 

8.     COOPERATION IN DEFENSE AND SETTLEMENT

 

Indemnitee shall not make any admission or effect any settlement with respect to a Proceeding without the Company’s written consent unless Indemnitee shall have determined to undertake Indemnitee’s own defense in such matter and has waived the benefits of this Agreement in writing delivered to the Company.  The Company shall not settle any Proceeding to which Indemnitee is a party in any manner which would impose an Expense on Indemnitee without Indemnitee’s written consent.  Neither Indemnitee nor the Company will unreasonably withhold consent to any proposed settlement.  Indemnitee and the Company shall cooperate to the extent reasonably possible with each other and with the Company’s insurers, in attempts to defend or settle such Proceeding. Nothing in this paragraph shall be construed to limit Indemnitee’s ability in any criminal or civil proceeding to exercise Indemnitee’s constitutional rights or to impose any obligation on Indemnitee to act in any manner contrary to law.

 

9.     ASSUMPTION OF DEFENSE

 

Except as otherwise provided below, to the extent that it may wish, the Company jointly with any other indemnifying party similarly notified will be entitled to assume Indemnitee’s defense in any Proceeding, with counsel mutually satisfactory to Indemnitee and the Company.  After notice from the Company to Indemnitee of the Company’s election so to assume such defense, the Company will not be liable to Indemnitee under this Agreement for Expenses subsequently incurred by Indemnitee in connection with the defense thereof other than reasonable costs of investigation or as otherwise provided below.  Indemnitee shall have the right to employ counsel in such Proceeding, but the fees and Expenses of such counsel incurred after notice from the Company of its assumption of the defense thereof shall be at Indemnitee’s expense unless:

 

(a)       the employment of counsel by Indemnitee has been authorized by the Company;

 

(b)       counsel employed by the Company initially is unacceptable or later becomes unacceptable to Indemnitee and such unacceptability is reasonable under then existing circumstances;

 

(c)        Indemnitee shall have reasonably concluded that there may be a conflict of interest between Indemnitee and the Company in the conduct of the defense of such Proceeding; or

 

(d)       the Company shall not have employed counsel promptly to assume the defense of such Proceeding.

 

In each of the cases set forth in clauses (a) through (d) above, the fees and Expenses of counsel shall be at the expense of the Company and subject to payment pursuant to this Agreement.  The Company shall not be entitled to assume the defense of Indemnitee in any Proceeding

 



 

brought by or on behalf of the Company or as to which Indemnitee shall have reached either of the conclusions provided for in clauses (b) or (c) above.

 

10.     ENFORCEMENT

 

(a)       In the event that any dispute or controversy shall arise under this Agreement between Indemnitee and the Company with respect to whether Indemnitee is entitled to indemnification in connection with any Proceeding or with respect to the amount of Expenses incurred, then with respect to each such dispute or controversy Indemnitee may seek to enforce this Agreement exclusively through binding arbitration.  If arbitration is requested, it shall occur in the City of Boston, Commonwealth of Massachusetts, before a single arbitrator agreeable to both parties who shall be an attorney other than an attorney who has, or who is associated with a firm having associated with it an attorney who has, been retained by or performed services for the Company or Indemnitee at any time during the five years preceding the commencement of arbitration.  The arbitration shall be governed by, although not necessarily subject to unless requested by both of the parties or as otherwise provided below, the procedures set forth in the Commercial Rules of the American Arbitration Association.  If the parties cannot agree on a designated arbitrator within 15 days after arbitration is requested in writing by either of them, the arbitration shall proceed in the City of Boston, Commonwealth of Massachusetts, before an arbitrator appointed by the American Arbitration Association.  In either case, the arbitration proceeding shall commence promptly.  The award shall be rendered in such form that judgment may be entered thereon in any court having jurisdiction thereof.  The prevailing party shall be entitled to prompt reimbursement of any costs and Expenses (including, without limitation, reasonable attorney’s fees) incurred in connection with such legal action or arbitration provided that Indemnitee shall not be obligated to reimburse the Company unless the arbitrator or court which resolves the dispute determines that Indemnitee acted in bad faith in bringing such action or arbitration.

 

(b)       The Company expressly confirms and agrees that it has entered into this Agreement and assumed the obligations imposed on it hereby in order to induce Indemnitee to serve as a director or officer of the Company, and the Company acknowledges that Indemnitee is relying upon this Agreement in serving as a director or officer of the Company. It is the Company’s intent that Indemnitee not be required to incur the Expenses associated with the interpretation, enforcement or defense of Indemnitee’s rights under this Agreement by legal action, arbitration or otherwise because the cost and expense thereof would substantially detract from the benefits intended to be extended to Indemnitee hereunder.  Accordingly, and notwithstanding any other provision of this Agreement, the Company shall, to the fullest extent permitted by law, indemnify Indemnitee against any and all Expenses and, if requested by Indemnitee, shall (within 15 days after receipt by the Company of a written request therefor) advance, to the extent not prohibited by law, such Expenses to Indemnitee, that are incurred by Indemnitee in connection with any action, suit, investigation, arbitration or other proceeding brought by Indemnitee for indemnification or advance of Expenses from the Company under this Agreement or under any directors’ and officers’ liability insurance policy(ies) maintained by the Company if, in the case of indemnification, Indemnitee is wholly successful on the underlying claims.  If Indemnitee is not wholly successful on the underlying claims, then such indemnification shall be only to the extent Indemnitee is successful on such underlying claims or otherwise as permitted by law, whichever is greater.

 

(c)        In the event that a determination shall have been made pursuant to Paragraph 6 of this Agreement that Indemnitee is not entitled to indemnification, any legal action or arbitration commenced pursuant to this Paragraph 10 shall be conducted in all respects as a de novo trial or arbitration on the merits and Indemnitee shall not be prejudiced by reason of that adverse determination.  In any legal action or arbitration commenced pursuant to this Paragraph 10, the Company shall have the burden of proving Indemnitee is not entitled to indemnification or advancement of Expenses, as the case may be.

 

(d)       If a determination shall have been made pursuant to Paragraph 6 of this

 



 

Agreement that Indemnitee is entitled to indemnification, the Company shall be bound by such determination in any legal action or arbitration commenced pursuant to this Paragraph 10, absent (i) a misstatement by Indemnitee of a material fact, or an omission of a material fact necessary to make Indemnitee’s statement not materially misleading, in connection with the request for indemnification, or (ii) a prohibition of such indemnification under applicable law.

 

(e)        Notwithstanding anything in this Agreement to the contrary, no determination as to Indemnitee’s entitlement to indemnification under this Agreement shall be required to be made before the final disposition of the respective Proceeding.

 

8.     EXCLUSIONS

 

Notwithstanding the scope of indemnification which may be available to Indemnitee from time to time under an Applicable Document, no indemnification, reimbursement or payment shall be required of the Company hereunder with respect to:

 

(a)       any claim or any part thereof as to which Indemnitee shall have been adjudged by a court of competent jurisdiction from which no appeal is or can be taken, by clear and convincing evidence, to have acted or failed to act with deliberate intent to cause injury to the Company or with reckless disregard for the best interests of the Company;

 

(b)       any claim or any part thereof arising under Section 16(b) of the Exchange Act pursuant to which Indemnitee shall be obligated to pay any penalty, fine, settlement or judgment; or

 

(c)        any Proceeding initiated by Indemnitee without the consent or authorization of the Board of Directors of the Company, provided that this exclusion shall not apply with respect to any claims brought by Indemnitee (i) to enforce Indemnitee’s rights under this Agreement,(ii) in any Proceeding initiated by another person or entity whether or not such claims were brought by Indemnitee against a person or entity who was otherwise a party to such Proceeding, or (iii) in response to any counterclaims brought by the Company or its affiliates in a proceeding initiated by Indemnitee.

 

Nothing in this Paragraph 11 shall eliminate or diminish the Company’s obligations to advance that portion of Indemnitee’s Expenses which represent attorneys’ fees and other costs incurred in defending any Proceeding pursuant to Paragraph 3 of this Agreement.

 

92.     EXTRAORDINARY TRANSACTIONS

 

The Company covenants and agrees that, in the event of any merger, consolidation or reorganization in which the Company is not the surviving entity, any sale of all or substantially all of the assets of the Company or any liquidation of the Company (each such event is hereinafter referred to as an “extraordinary transaction”), the Company shall:

 

(a)       have the obligations of the Company under this Agreement expressly assumed by the survivor, purchaser or successor, as the case may be, in such extraordinary transaction; or

 

(b)       otherwise adequately provide for the satisfaction of the Company’s obligations under this Agreement, in a manner acceptable to Indemnitee.

 

13.     NO PERSONAL LIABILITY

 

Indemnitee agrees that neither the directors nor any officer, employee, representative or agent of the Company shall be personally liable for the satisfaction of the Company’s

 


 

obligations under this Agreement, and Indemnitee shall look solely to the assets of the Company for satisfaction of any claims hereunder.

 

104.                        PERIOD OF LIMITATIONS

 

No legal action shall be brought and no cause of action shall be asserted by or on behalf of the Company or any affiliate of the Company against Indemnitee, Indemnitee’s spouse, heirs, executors or personal or legal representatives after the expiration of two years from the date of accrual of such cause of action, and any claim or cause of action of the Company or its affiliate shall be extinguished and deemed released unless asserted by the timely filing of legal action within such two-year period; provided, however, that if any shorter period of limitations is otherwise applicable to any such cause of action such shorter period shall govern.

 

15.                    SEVERABILITY

 

If any provision, phrase, or other portion of this Agreement should be determined by any court of competent jurisdiction to be invalid, illegal or unenforceable, in whole or in part, and such determination should become final, such provision, phrase or other portion shall be deemed to be reformed to the extent necessary to conform to applicable law , but only to the extent required to render such provision and the remaining provisions and portions of this Agreement enforceable, and this Agreement as thus amended shall be enforced to give effect to the intention of the parties insofar as that is possible.

 

16.                    SUBROGATION

 

In the event of any payment under this Agreement, the Company shall be subrogated to the extent thereof to all rights to indemnification or reimbursement against any insurer or other entity or person vested in Indemnitee, who shall execute all instruments and take all other action as shall be reasonably necessary for the Company to enforce such rights.

 

17.                    GOVERNING LAW

 

The parties hereto agree that this Agreement shall be construed and enforced in accordance with and governed by the laws of the State of Delaware.

 

18.                    NOTICES

 

All notices, requests, demands and other communications hereunder shall be in writing and shall be considered to have been duly given if delivered by hand and receipted for by the party to whom the notice, request, demand or other communication shall have been directed, or mailed by certified mail, return receipt requested, with postage prepaid:

 

(a)  If to the Company, to:

Axcelis Technologies, Inc.

 

 

108 Cherry Hill Drive

 

 

Beverly, Massachusetts  01915

 

 

Attention: Secretary

 

 

 

(b)  If to Indemnitee, to:

 

 

 

Axcelis Technologies, Inc.

 

 

108 Cherry Hill Drive

 

 

Beverly, MA  01915

 

Or to such other or further address as shall be designated from time to time by Indemnitee or the

 



 

Company to the other.

 

19.                    TERMINATION

 

This Agreement may be terminated by either party upon not less than 60 days’ prior written notice delivered to the other party, but such termination shall not in any way diminish the obligations of the Company hereunder with respect to Indemnitee’s status or any act or omission of Indemnitee before the effective date of the termination, which shall survive termination.

 

20.                    AMENDMENTS

 

This Agreement and the rights and duties of Indemnitee and the Company hereunder may not be amended, modified or terminated except by written instrument signed and delivered by the parties hereto.

 

21.                    BINDING EFFECT

 

This Agreement is and shall be binding upon and shall inure to the benefit of the parties thereto (notwithstanding that Indemnitee may have ceased to serve in any of the capacities described in Paragraph 1(a)) and their respective heirs, executors, administrators, successors and assigns.

 

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

 

 

AXCELIS TECHNOLOGIES, INC.

 

 

 

 

 

By:

 

 

Title:

 

 

 

 

INDEMNITEE

 

 

 

 

 

By:

 

 

 

[Name]

 



 

EXHIBIT I

 

SECTION 10.2 OF THE AMENDED AND RESTATED

CERTIFICATE OF INCORPORATION OF

 

AXCELIS TECHNOLOGIES, INC.

 

(as amended May 6, 2009)

 

The Corporation shall indemnify and hold harmless, to the fullest extent permitted by applicable law as it presently exists or may hereafter be amended, any person who was or is made or is threatened to be made a party or is otherwise involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (a “proceeding”) by reason of the fact that such person, or a person for whom he or she is the legal representative, is or was a director, officer, employee or agent of the Corporation or is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust, enterprise or non-profit entity, including service with respect to employee benefit plans, against all liability and loss suffered and expenses reasonably incurred by such person. The Corporation shall be required to indemnify a person in connection with a proceeding initiated by such person only if the proceeding was authorized by the Board of Directors of the Corporation. The rights to indemnification and advancement of expenses conferred by this Article shall be presumed to have been relied upon by directors and officers of the Corporation in serving or continuing to serve the Corporation and shall be enforceable as contract rights. Said rights shall not be exclusive of any other rights to which those seeking indemnification may otherwise be entitled. The Corporation may enter into contracts to provide such persons with specific rights to indemnification, which contracts may confer rights and protections to the maximum extent permitted by the DGCL. The Corporation may create trust funds, grant security interests, obtain letters of credit, or use other means to ensure payment of such amounts as may be necessary to perform the obligations provided for in this Article or in any such contract. Any repeal or modification of this Article 10 by the stockholders of the Corporation shall not adversely affect any right or protection of a director of the Corporation existing at the time of such repeal or modification with respect to acts or omissions occurring before such repeal or modification.

 

ARTICLE V OF THE BYLAWS OF

 

AXCELIS TECHNOLOGIES, INC.

(as amended August 8, 2007)

 

INDEMNIFICATION OF DIRECTORS AND OFFICERS

 

The corporation shall, to the extent legally permissible, indemnify each person who may serve or who has served at any time as a director or officer of the corporation or of any of its subsidiaries, or who at the request of the corporation may serve or at any time has served as a director, officer or trustee of, or in a similar capacity with, another organization or an employee benefit plan, against all expenses and liabilities (including counsel fees, judgments, fines, excise taxes, penalties and amounts payable in settlements) reasonably incurred by or imposed upon such person in connection with any threatened, pending or completed action, suit or other proceeding, whether civil, criminal, administrative or investigative, in which he may become involved by reason of his serving or having served in such capacity (other than a proceeding voluntarily initiated by such person unless he is successful on the merits, the proceeding was authorized by the corporation or the proceeding seeks a declaratory judgment regarding his own conduct); provided that no indemnification shall be provided for any such person with

 



 

respect to any matter as to which he shall have been finally adjudicated in any proceeding not to have acted in good faith in the reasonable belief that his action was in the best interests of the corporation and, with respect to any criminal action or proceeding, he had reasonable cause to believe his conduct was unlawful or, to the extent such matter relates to service with respect to any employee benefit plan, in the best interests of the participants or beneficiaries of such employee benefit plan; and provided, further, that as to any matter disposed of by a compromise payment by such person, pursuant to a consent decree or otherwise, the payment and indemnification thereof have been approved by the corporation, which approval shall not unreasonably be withheld, or by a court of competent jurisdiction.  Such indemnification shall include payment by the corporation of expenses incurred in defending a civil or criminal action or proceeding in advance of the final disposition of such action or proceeding, upon receipt of an undertaking by the person indemnified to repay such payment if he shall be adjudicated to be not entitled to indemnification under this article, which undertaking may be accepted without regard to the financial ability of such person to make repayment.

 

A person entitled to indemnification hereunder whose duties include service or responsibilities as a fiduciary with respect to a subsidiary or other organization shall be deemed to have acted in good faith in the reasonable belief that his action was in the best interests of the corporation if he acted in good faith in the reasonable belief that his action was in the best interests of such subsidiary or organization or of the participants or beneficiaries of, or other persons with interests in, such subsidiary or organization to whom he had a fiduciary duty.

 

For purposes of determining whether a person is entitled to indemnification hereunder, the termination of any action, suit or other proceeding by judgment, order, settlement (with or without court approval), conviction, or upon a plea of nolo contendere, or its equivalent, shall not create a presumption that the person did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding, had reasonable cause to believe that his conduct was unlawful.

 

Where indemnification hereunder requires authorization or approval by the corporation, such authorization or approval shall be conclusively deemed to have been obtained, and in any case where a director of the corporation approves the payment of indemnification, such director shall be wholly protected, if:

 

(i)  the payment has been approved or ratified (l) by a majority vote of a quorum of the directors consisting of persons who are not at that time parties to the proceeding, (2) by a majority vote of a committee of two or more directors who are not at that time parties to the proceeding and are selected for this purpose by the full board (in which selection directors who are parties may participate), or (3) by a majority vote of a quorum of the outstanding shares of stock of all classes entitled to vote for directors, voting as a single class, which quorum shall consist of stockholders who are not at that time parties to the proceeding; or

 

(ii)  the action is taken in reliance upon the opinion of independent legal counsel (who may be counsel to the corporation) appointed for the purpose by vote of the directors or in the manner specified in clauses (l), (2) or (3) of subparagraph (i); or

 

(iii) the payment is approved by a court of competent jurisdiction; or

 

(iv) the directors have otherwise acted in accordance with the standard of conduct set forth in the Delaware General Corporation Law.

 

Any indemnification or advance of expenses under this article shall be paid promptly,

 



 

and in any event within 30 days, after the receipt by the corporation of a written request therefor from the person to be indemnified, unless with respect to a claim for indemnification the corporation shall have determined that the person is not entitled to indemnification.  If the corporation denies the request or if payment is not made within such 30 day period, the person seeking to be indemnified may at any time thereafter seek to enforce his rights hereunder in a court of competent jurisdiction and, if successful in whole or in part, he shall be entitled also to indemnification for the expenses of prosecuting such action.  Unless otherwise provided by law, the burden of proving that the person is not entitled to indemnification shall be on the corporation.

 

The right of indemnification under this article shall be a contract right inuring to the benefit of the directors, officers and other persons entitled to be indemnified hereunder and no amendment or repeal of this article shall adversely affect any right of such director, officer or other person existing at the time of such amendment or repeal.

 

The indemnification provided hereunder shall inure to the benefit of the heirs, executors and administrators of a director, officer or other person entitled to indemnification hereunder.  The indemnification provided hereunder may, to the extent authorized by the corporation, apply to the directors, officers and other persons associated with constituent corporations that have been merged into or consolidated with the corporation who would have been entitled to indemnification hereunder had they served in such capacity with or at the request of the corporation.

 

The right of indemnification under this article shall be in addition to and not exclusive of all other rights to which such director or officer or other persons may be entitled.  Nothing contained in this article shall affect any rights to indemnification to which corporation employees or agents other than directors and officers and other persons entitled to indemnification hereunder may be entitled by contract or otherwise under law.

 

The corporation shall have power to purchase and maintain insurance on behalf of any person who is or was a director, officer, employee or agent of the corporation or is or was serving at the request of the corporation as a director, officer, trustee, employee or agent of another corporation, partnership, joint venture, trust, other enterprise or employee benefit plan against any liability asserted against such person and incurred by such person in any such capacity or arising out of such person’s status as such, whether or not the corporation would have the power to indemnify such person against such liability under the provisions of the General Corporation Law of the State of Delaware.

 



 

EXHIBIT II

 

UNDERTAKING

 

The undersigned (the “Indemnitee”) hereby agrees (i)  to repay any amounts paid to Indemnitee or on Indemnitee’s behalf pursuant to that Indemnification Agreement (the “Indemnification Agreement”) dated as of                                         , by and between Indemnitee and Axcelis Technologies, Inc. (the “Company”) if it shall ultimately be determined in accordance with the Indemnification Agreement that Indemnitee is required to repay Expenses (as defined in the Indemnification Agreement), and (ii) to reasonably cooperate with the Company concerning the Proceeding (as defined in the Indemnification Agreement).

 

 

 

INDEMNITEE

 

 

 

 

 

 

Dated:

 

 

By:

 

 

 

 

 

 

 



 

List of Current Directors and Executive Officers of Axcelis Technologies, Inc.

to be offered Indemnification Agreements in the form approved by the Board of Directors

on February 9, 2012, to be dated as of February 28, 2012

 

Name

 

Title

Edward H. Braun

 

Director

R. John Fletcher

 

Director

Stephen R. Hardis

 

Lead Director

William C. Jennings

 

Director

Joseph P. Keithley

 

Director

Patrick H. Nettles

 

Director

Mary G. Puma

 

Chairman, CEO and President

H. Brian Thompson

 

Director

Jay Zager

 

EVP and Chief Financial Officer

Kevin Brewer

 

EVP, Operations

William Bintz

 

EVP, Product Development, Engineering and Marketing

Lynnette C. Fallon

 

EVP Legal/HR and General Counsel

 


 



Exhibit 10.10

 

Axcelis Technologies, Inc.

Named Executive Officer Base Compensation at February 29, 2012

 

This Exhibit discloses the current understandings with respect to base compensation between Axcelis Technologies, Inc. (the “Company”) and each of:

 

·                  the Company’s principal executive officer (Mary G. Puma),

 

·                  the Company’s principal financial officer (Jay Zager), and

 

·                  the three most highly compensated other executive officers serving as executive officers at December 31, 2011.

 

These executive officers are referred to herein as “named executive officers” or “NEOs.”

 

Other than in the case of Mary G. Puma, the Company has not entered into any written agreements with its named executive officers addressing the amount of base salary due to the executive. The Company’s Amended and Restated Employment Agreement with Ms. Puma (“Puma Employment Agreement”) is listed as Exhibit 10.11 to this Form 10-K (incorporated by reference to Exhibit 10.3 to the Company’s Form 10-Q for the quarter ended September 30, 2007 filed on November 8, 2007).

 

The Company maintains that all executive officers, other than Ms. Puma, are employees at will and that the Company has no obligation to continue their employment, other in cases where such obligation arises under the Change of Control Agreements described in our Proxy Statement and filed as an Exhibit to this Form 10-K.

 

In the course of the employment relationship with each NEO, the Company communicates to the named executive officer the amount of base salary approved by the Compensation Committee of the Board of Directors, which compensation is subject to change in the discretion of the Compensation Committee of the Board of Directors. The following table sets forth the annual base salary as communicated to the named executive officers of the Company as in effect on February 29, 2012:

 

Named Executive Officer

 

Title

 

Base Salary

 

Mary G. Puma

 

President and Chief Executive Officer

 

$

550,000

 

Jay Zager

 

Executive VP and Chief Financial Officer

 

$

350,000

 

Kevin Brewer

 

Executive VP, Operations

 

$

330,000

 

Lynnette C. Fallon

 

Executive VP HR/Legal and General Counsel

 

$

320,000

 

 




Exhibit 10.11

 

Axcelis Technologies, Inc.

Non-Employee Director Cash Compensation at February 29, 2012

 

This Exhibit discloses the current understandings with respect to cash compensation between Axcelis Technologies, Inc. (the “Company”) and each of its non-employee directors. Axcelis provides both cash retainers and meeting fees to its non-employee directors, as follows:

 

Annual Retainers (paid quarterly in advance)

 

Board Member
Position

 

Amount

 

Lead Director

 

$

50,000

 

Non-Employee Board Member (not Lead Director)

 

$

30,000

 

Audit Committee Chair*

 

$

15,000

 

Compensation Committee Chair*

 

$

10,000

 

Nominating and Governance Committee Chair*

 

$

7,500

 


*                                         Retainers for Committee Chairs are in addition to the retainer payable to all non-employee Board members.

 

Meeting Fees (payable quarterly in arrears)

 

Meeting Type

 

Amount Per Meeting

 

In Person Board Meetings

 

$

2,000

 

Telephone Board Meetings

 

$

1,000

 

In Person or Telephone Committee Meetings**

 

$

1,000

 

 


**                                  Committee meeting fees are paid only to committee members, and not to other Board me members, attending committee meetings.

 

Non-employee directors also receive reimbursement of out-of-pocket expenses incurred in attending Board and committee meetings. Non-employee directors do not receive any Company-paid perquisites.

 

The board, may, from time to time, form ad hoc committees in addition to the Audit, Compensation and Governance Committees and may set compensation for the chairman and members of such ad hoc committees.

 




Exhibit 10.14 Conformed Copy

 

Lynnette C. Fallon

Executive Vice President HR/Legal and General Counsel

Tel: (978) 787-4120

Fax: (978) 787-4090

 

September 22, 2011

 

Mary G. Puma, Chairman and Chief Executive Officer

Axcelis Technologies, Inc.

108 Cherry Hill Drive

Beverly, Massachusetts 01915

 

Re: Base Compensation of Chief Executive Officer and Chairman

 

Dear Mary:

 

As you know, at its meeting on April 26, 2011, the Compensation Committee of the Board of Directors of the Company approved an increase to your base pay to a rate of $550,000 per year, effective May 1, 2011.  This increase has not yet been implemented and you and the Compensation Committee have agreed that it will be implemented effective 1/1/2012.

 

Notwithstanding the delay in effectiveness of this salary increase, in the event that you are at any time entitled to separation pay under your Employment Agreement or your Change of Control Agreement with the Company, both dated as of November 6, 2007, your base compensation rate will be deemed to be the rate approved by the Compensation Committee on April 26, 2011 and all amounts due to you shall be calculated as if such increase had become effective on May 1, 2011 as initially contemplated by the Compensation Committee.

 

Please sign below to indicate your agreement to the foregoing.  Thank you.

 

 

Best regards,

 

 

 

AXCELIS TECHNOLOGIES, INC.

 

 

 

 

 

By:

/s/ Lynnette C. Fallon

 

 

 

Lynnette C. Fallon

 

Executive Vice President HR/Legal and General Counsel

 

 

ACCEPTED AND AGREED:

 

/s/ Mary G. Puma

 

Mary G. Puma

 

 




Exhibit 10.16 Conformed Copy

 

FIRST LOAN MODIFICATION AGREEMENT

 

This First Loan Modification Agreement (this “Loan Modification Agreement”) is entered into as of December 27, 2011, by and among (a) SILICON VALLEY BANK, a California corporation, with its principal place of business at 3003 Tasman Drive, Santa Clara, California 95054 and with a loan production office located at 275 Grove Street, Suite 2-200, Newton, Massachusetts 02466 (“Bank”), and (b) AXCELIS TECHNOLOGIES, INC., a Delaware corporation (“ATI”) and AXCELIS TECHNOLOGIES CCS CORPORATION, a Delaware corporation (“ATCC”), each with offices located at 108 Cherry Hill Drive, Beverly, Massachusetts 01915 (ATI and ATCC are referred to herein, individually and collectively, jointly and severally, as “Borrower”).

 

1.             DESCRIPTION OF EXISTING INDEBTEDNESS AND OBLIGATIONS.  Among other indebtedness and obligations which may be owing by Borrower to Bank, Borrower is indebted to Bank pursuant to a loan arrangement dated as of April 25, 2011, evidenced by, among other documents, a certain Second Amended and Restated Loan and Security Agreement dated as of April 25, 2011, between Borrower and Bank (as amended, supplemented, restated or otherwise modified from time to time, the “Loan Agreement”).  Capitalized terms used but not otherwise defined herein shall have the same meaning as in the Loan Agreement.

 

2.             DESCRIPTION OF COLLATERAL.  Repayment of the Obligations is secured by the Collateral as described in the Loan Agreement and the intellectual property as described in a certain Amended and Restated Intellectual Property Security Agreement dated as of March 12, 2010, between ATI and Bank, as amended by a certain First Amendment to Amended and Restated Intellectual Property Security Agreement dated as of April 25, 2011, between ATI and Bank (as amended, supplemented, restated or otherwise modified, the “IP Security Agreement”) (together with the Loan Agreement and any other documents granting collateral security to Bank, the “Security Documents”). Hereinafter, the Security Documents, together with all other documents evidencing or securing the Obligations, shall be referred to as the “Existing Loan Documents”.

 

3.             DESCRIPTION OF CHANGE IN TERMS.

 

A.                                    Modification to Loan Agreement.

 

1                                         The Loan Agreement shall be amended by deleting the following text appearing in subsection (a) of Section 2.1.2 thereof (entitled “Letters of Credit Sublimit”):

 

“The face amount of outstanding Letters of Credit (including drawn but unreimbursed Letters of Credit and any Letter of Credit Reserve) may not exceed the lesser of (A) Ten Million Dollars ($10,000,000), minus (i) the sum of all amounts used for Cash Management Services, and minus (ii) the FX Reserve, or (B) the lesser of Revolving Line or the Borrowing Base, minus (i) the sum of all outstanding principal amounts of any Advances (including any amounts used for Cash Management Services), and minus (ii) the FX Reserve.”

 

and inserting in lieu thereof the following:

 

“The face amount of outstanding Letters of Credit (including drawn but unreimbursed Letters of Credit and any Letter of Credit Reserve) may not exceed the lesser of (A) Ten Million Dollars ($10,000,000) or (B) (i) the lesser

 



 

of Revolving Line or the Borrowing Base, minus (ii) the sum of all outstanding principal amounts of any Advances.”

 

2                                         The Loan Agreement shall be amended by deleting each of (i) Section 2.1.3 (entitled “Foreign Exchange Sublimit”), and (ii) Section 2.1.4 (entitled “Cash Management Services Sublimit”) in their entirety.

 

3                                         The Loan Agreement shall be amended by deleting the following text appearing in Section 2.2 thereof (entitled “Overadvances”):

 

“If, at any time, (i) the sum of (a) the outstanding principal amount of any Advances (including any amounts used for Cash Management Services), plus (b) the face amount of any outstanding Letters of Credit (including drawn but unreimbursed Letters of Credit and any Letter of Credit Reserve), plus (c) the aggregate amount of any outstanding FX Forward Contracts exceeds (ii) the lesser of either the Revolving Line or the Borrowing Base (the amount by which (i) exceeds (ii) being an “Overadvance”), Borrower shall immediately pay to Bank in cash such Overadvance.”

 

and inserting in lieu thereof the following:

 

“If, at any time, (i) the sum of (a) the outstanding principal amount of any Advances, plus (b) the face amount of any outstanding Letters of Credit (including drawn but unreimbursed Letters of Credit and any Letter of Credit Reserve), exceeds (ii) the lesser of either the Revolving Line or the Borrowing Base (the amount by which (i) exceeds (ii) being an “Overadvance”), Borrower shall immediately pay to Bank in cash such Overadvance.”

 

4                                         The Loan Agreement shall be amended by deleting the following text appearing in Section 2.2(d) thereof (entitled “Unused Revolving Line Facility Fee”):

 

“The unused portion of the Revolving Line, for the purposes of this calculation, shall include amounts reserved under the Cash Management Services Sublimit for products provided and under the Foreign Exchange Sublimit for FX Forward Contracts.”

 

5                                         The Loan Agreement shall be amended by inserting the following text to appear at the end of Section 4.1 thereof (entitled “Grant of Security Interest”):

 

“Borrower acknowledges that it previously has entered, and/or may in the future enter, into Bank Services Agreements with Bank.  Regardless of the terms of any Bank Services Agreement, Borrower agrees that any amounts Borrower owes Bank thereunder shall be deemed to be Obligations hereunder and that it is the intent of Borrower and Bank to have all such Obligations secured by the first priority perfected security interest in the Collateral granted herein (subject only to Permitted Liens that may have superior priority to Bank’s Lien in this Agreement).  In the event (a) all Obligations (other than inchoate indemnity obligations), except for Bank Services, are satisfied in full, and (b) this Agreement is terminated, Bank shall terminate the security interest granted herein upon Borrower providing cash collateral acceptable to Bank in its good faith business judgment for Bank Services, if any.”

 



 

6                                         The Loan Agreement shall be amended by deleting the following text appearing in Section 6.4 thereof (entitled “Remittance of Proceeds”):

 

“Except as otherwise provided in Section 6.3(c), deliver, in kind, all proceeds arising from the disposition of any Collateral to Bank in the original form in which received by Borrower not later than the following Business Day after receipt by Borrower, to be applied to the Obligations pursuant to the terms of Section 9.4 hereof; provided that, if no Default or Eve