www.eXFILE.com 888-775-4789 --- NEXX SYSTEMS, INC.  FORM S-1


    EXHIBIT
10.18

     

    THIS
WARRANT AND THE SHARES ISSUABLE HEREUNDER HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE SOLD, PLEDGED OR OTHERWISE
TRANSFERRED WITHOUT AN EFFECTIVE REGISTRATION THEREOF UNDER SUCH ACT OR PURSUANT
TO RULE 144 OR AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE CORPORATION
AND ITS COUNSEL THAT SUCH REGISTRATION IS NOT REQUIRED.

    


    WARRANT
TO PURCHASE STOCK

     

    
      
        	
                Corporation:

              	 
      	
                NEXX
      SYSTEMS, INC., a Delaware corporation

              
	
                Number
      of Shares:

              	 
      	
                115,384

              
	
                Class
      of Stock:

              	 
      	
                Series
      B Convertible Preferred

              
	
                Initial
      Exercise Price:

              	 
      	
                $1.322
      per share (Subject to adjustment)

              
	
                Issue
      Date:

              	 
      	
                June
      14, 2004

              
	
                Expiration
      Date:

              	 
      	
                June
      14, 2011 (Subject to Section
4.1)

              


      

    

     

     

    THIS
WARRANT CERTIFIES THAT, for good and valuable consideration, the receipt of
which is hereby acknowledged, COMERICA BANK or its assignee (“Holder”) is
entitled to purchase the number of fully paid and nonassessable shares of the
class of securities (the “Shares”) of the corporation (the “Company”) at the
initial exercise price per Share (the “Warrant Price”) all as set forth above
and as adjusted pursuant to Article 2 of this warrant, subject to the provisions
and upon the terms and conditions set forth in this warrant.

    


    ARTICLE
1.           EXERCISE.

    


    1.1           Method of Exercise.
Holder may exercise this warrant by delivering this warrant and a duly executed
Notice of Exercise in substantially the form attached as Appendix Ito the
principal office of the Company. Unless Holder is exercising the conversion
right set forth in Section 1.2, Holder shall also deliver to the Company a check
for the aggregate Warrant Price for the Shares being purchased.

    


    1.2           Conversion Right. In
lieu of exercising this warrant as specified in Section 1. I, Holder may from
time to time convert this warrant, in whole or in part, into a numb er of Shares
determined by dividing (a) the aggregate fair market value of the Shares or
other securities otherwise issuable upon exercise of this warrant minus the
aggregate Warrant Price of such Shares by (b) the fair market value of one
Share. The fair market value of the Shares shall be determined pursuant to
Section 1.4.

    


    1.3           Intentionally
Omitted.

    


    1.4           Fair Market Value. If
the Shares are traded regularly in a public market, the fair market value of the
Shares shall be the closing price of the Shares (or the closing price of the
Company’s stock into which the Shares are convertible) reported for the business
day immediately before Holder delivers its Notice of Exercise to the Company. If
the Shares are not regularly traded in a public market, the Board of Directors
of the Company shall determine fair market value in its reasonable good faith
judgment.

    


    1.5           Delivery of Certificate and
New Warrant. Promptly after Holder exercises or converts this warrant,
the Company shall deliver to Holder certificates for the Shares acquired and, if
this warrant has not been fully exercised or converted and has not expired, a
new warrant representing the Shares not so acquired.

    


    1.6           Replacement of
Warrants. On receipt of evidence reasonably satisfactory to the Company
of the loss, theft, destruction or mutilation of this warrant and, in the case
of loss, theft or destruction, on delivery of an indemnity agreement reasonably
satisfactory in form and amount to the Company or, in the case of mutilation, on
surrender and cancellation of this warrant, the Company at its expense
shall execute and deliver, in lieu of this warrant, a new warrant of like
tenor.

    


    
      
         

      

      
         

        
          

        

      

      
         

      

    

    1.7           Repurchase on Sale Merger.
or Consolidation of the Company.

    


    1
..7.1           “Acquisition.” For
the purpose of this warrant, “Acquisition” means any sale, license, or
other
disposition of all or substantially all of the assets (including intellectual
property) of the Company, or any reorganization, consolidation, or merger of the
Company where the holders of the Company’s securities before the transaction
beneficially own less than 50% of the outstanding voting securities of the
surviving entity after the transaction.

    


    1.7.2           Assumption of
Warrant. If upon the closing of any Acquisition the successor entity
assumes
the obligations of this warrant, then this warrant shall be exercisable for the
same securities, cash, and property as would be payable for the Shares issuable
upon exercise of the unexercised portion of this warrant as if such Shares were
outstanding on the record date for the Acquisition and subsequent closing. The
Warrant Price shall be adjusted accordingly. The Company shall use reasonable
efforts to cause the surviving corporation to assume the obligations of this
warrant.

    


    1.7.3           Nonassumption. If
upon the closing of any Acquisition the successor entity does not assume
the obligations of this warrant and Holder has not otherwise exercised this
warrant in full, then this warrant shall be deemed to have been automatically
converted pursuant to Section 1.2 and thereafter Holder shall participate in the
Acquisition on the same terms as other holders of the same class of securities
of the Company.

    


    ARTICLE
2.           ADJUSTMENTS TO THE
SHARES.

    


    2.1           Stock Dividends. Splits.
Etc. If the Company declares or pays a dividend on its common stock
payable
in common stock, or other securities, subdivides the outstanding common stock
into a greater amount of common stock, then upon exercise of this warrant, for
each Share acquired, Holder shall receive, without cost to Holder, the total
number and kind of securities to which Holder would have been entitled had
Holder owned the Shares of record as of the date the dividend or subdivision
occurred.

    


    2,2           Reclassification. Exchange
or Substitution. Upon any reclassification, exchange, substitution, or
other
event that results in a change of the number and/or class of the securities
issuable upon exercise or conversion of this warrant, Holder shall be entitled
to receive, upon exercise or conversion of this warrant, the number and kind of
securities and property that Holder would have received for the Shares if this
warrant had been exercised immediately before such reclassification, exchange,
substitution, or other event. Such an event shall include any automatic
conversion of the outstanding or issuable securities of the Company of the same
class or series as the Shares to common stock pursuant to the terms of the
Company’s Certificate of Incorporation upon the closing of a registered public
offering of the Company’s common stock. The Company or its successor shall
promptly issue to Holder a new
warrant for such new securities or other property. The new warrant shall
provide for adjustments which shall be as nearly equivalent as may be
practicable to the adjustments provided for in this Article 2 including, without
limitation, adjustments to the Warrant Price and to the number of securities or
property issuable upon exercise of the new warrant. The provisions of this
Section 2.2 shall similarly apply to successive reclassifications, exchanges,
substitutions, or other events.

    


    2.3           Adjustments for
Combinations. Etc. If the outstanding Shares are combined or
consolidated, by reclassification
or otherwise, into a lesser number of shares, the Warrant Price shall be
proportionately increased. If the outstanding Shares are combined or
consolidated, by reclassification or otherwise, into a greater number of shares,
the Warrant Price shall be proportionately decreased.

    


    2.4           Adjustments for Diluting
Issuances. The Warrant Price and the number of Shares issuable upon
exercise
of this warrant shall be subject to adjustment, from time to time, in the manner
set forth on Exhibit
A.

    


    2.5           No Impairment. The
Company shall not, by amendment of its Certificate of Incorporation or
through a
reorganization, transfer of assets, consolidation, merger, dissolution, issue,
or sale of securities or any other voluntary action, avoid or seek to avoid the
observance or performance of any of the terms to be observed or performed under
this warrant by the Company, but shall at all times in good faith assist in
carrying out all the provisions
of this Article 2 and in taking all such action as may be necessary or
appropriate to protect Holder’s rights under this Article against
impairment.

    


    
      
         

      

      
         

        
          

        

      

      
         

      

    

    2.6           Certificate as to
Adjustments. Upon each adjustment of the Warrant Price, the Company at
its expense
shall promptly compute such adjustment, and furnish Holder with a certificate of
its Chief Financial Officer setting forth such adjustment and the facts upon
which such adjustment is based. The Company shall, upon written request, furnish
Holder a certificate setting forth the Warrant Price in effect upon the date
thereof and the series of adjustments leading to such Warrant
Price.

    


    2.7           Fractional Shares. No
fractional Shares shall be issuable upon exercise or conversion of the
Warrant
and the Number of Shares to be issued shall be rounded down to the nearest whole
Share. If a fractional share interest arises upon any exercise or conversion of
the Warrant, the Company shall eliminate such fractional share interest by
paying Holder amount computed by multiplying the fractional interest by the fair
market value of a full Share.

    


    ARTICLE
3.          REPRESENTATIONS AND
COVENANTS OF THE COMPANY.

    


    3.1           Representations and
Warranties. The Company hereby represents and warrants to the Holder as
follows:

    


    
      	
              (a)  

            	
              The
      initial Warrant Price referenced on the first page of this warrant is not
      greater than the price at which the Shares were last sold immediately
      prior to the Issue Date.

            


    

    


    
      	
              (b)  

            	
              All
      Shares which may be issued upon the exercise of the purchase right
      represented by this warrant, and all securities, if any, issuable upon
      conversion of the Shares, shall, upon issuance, be duly authorized,
      validly issued, fully paid and nonassessable, and free of any liens and
      encumbrances except for restrictions on transfer provided for herein or
      under applicable federal and state securities
  laws.

            


    

    


    
      	
              (c)  

            	
              The
      Company’s capitalization table attached to this warrant is true and
      complete as of the Issue Date.

            


    

    


    3.2           Notice of Certain
Events. If the Company proposes at any time (a) to declare any dividend
or distribution
upon its common stock, whether in cash, property, stock, or other securities and
whether or not a regular cash dividend; (b) to offer for subscription pro rata
to the holders of any class or series of its stock any additional shares of
stock of any class or series or other rights; (c) to effect any reclassification
or recapitalization of common stock; or (d) to merge or consolidate with or into
any other corporation, or sell, lease, license, or convey all or substantially
all of its assets, or to liquidate, dissolve or wind up, then, in connection
with each such event, the Company shall give Holder (1) at least 20 days prior
written notice of the date on which a record will be taken for such dividend,
distribution, or subscription rights (and specifying the date on which the
holders of common stock will be entitled thereto) or for determining rights to
vote, if any, in respect of the matters referred to in (a) and above;
and (2) in the case of the matters referred to in (c) and (d) above at least 20
days prior written notice of the date when the same will take place (and
specifying the date on which the holders of common stock will be entitled to
exchange their common stock for securities or other property deliverable upon
the occurrence of such event).

    


    3.3           Information Rights.
So long as the Holder holds this warrant and/or any of the Shares, the
Company
shall deliver to the Holder (a) promptly after mailing, copies of all
communiques to the shareholders of the Company, (b) within ninety (90) days
after the end of each fiscal year of the Co mpany, the annual audited financial
statements of the Company certified by independent public accountants of
recognized standing and within
forty-five (45) days after the end of each of the first three quarters of each
fiscal year, the Company’s quarterly, unaudited financial
statements.

    


    3.4           Registration Under
Securities Act of 1933. as amended. The Company agrees that the Shares
or, if the
Shares are convertible into common stock of the Company, such common stock,
shall be subject to the registration rights set forth on Exhibit
B.

     

    
      
         

      

      
         

        
          

        

      

      
         

      

    

    ARTICLE
4.          MISCELLANEOUS.

    


    4.1           Term: Notice of
Expiration. This warrant is exercisable in whole or in part, at any time
and from time to
time on or before the Expiration Date set forth above; provided, however, that
if the Company completes its initial public offering within the three-year
period immediately prior to the Expiration Date, the Expiration Date shall
automatically be extended until the third anniversary of the effective date of
the Company’s initial public offering. If this warrant has not been exercised
prior to the Expiration Date, this warrant shall be deemed to have been
automatically exercised on the Expiration Date by “cashless” conversion pursuant
to Section 1.2.

    


    4.2           Legends. This warrant
and the Shares (and the securities issuable, directly or indirectly, upon
conversion
of the Shares, if any) shall be imprinted with a legend in substantially the
following form:

    


    THIS
SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED,
AND MAY NOT BE SOLD, PLEDGED OR OTHERWISE TRANSFERRED WITHOUT AN EFFECTIVE
REGISTRATION THEREOF UNDER SUCH ACT OR PURSUANT TO RULE 144 OR AN OPINION OF
COUNSEL REASONABLY SATISFACTORY TO THE CORPORATION AND ITS COUNSEL THAT SUCH
REGISTRATION IS NOT REQUIRED.

    


    4.3           Compliance with Securities
Laws on Transfer. This warrant and the Shares issuable upon exercise
of this
warrant (and the securities issuable, directly or indirectly, upon conversion of
the Shares, if any) may not be transferred or assigned in whole or in part
without compliance with applicable federal and state securities laws by the
transferor and the transferee (including, without limitation, the delivery of
investment representation letters and legal opinions reasonably satisfactory to
the Company). The Company shall not require Holder to provide an opinion of
counsel if the transfer is to an affiliate of Holder or if there is no material
question as to the availability of current information as referenced in Rule
144(c), Holder represents that it has complied with Rule 144(d) and (e) in
reasonable detail, the selling broker represents that it has complied with Rule
144(f), and the Company is provided with a copy of Holder’s notice of proposed
sale.

    


    4.4           Transfer Procedure.
Subject to the provisions of Section 4.3 and the Agreements referenced in
Exhibit C
hereto, Holder may transfer all or part of this warrant or the Shares issuable
upon exercise of this warrant (or the securities issuable, directly or
indirectly, upon conversion of the Shares, if any) by giving the Company notice
of the portion of the warrant being transferred setting forth the name, address
and taxpayer identification number of the transferee and surrendering this
warrant to the Company for reissuance to the transferee(s) (and Holder, if
applicable); provided,
however that Holder may transfer all or part of this warrant to its
affiliates, including, without limitation, Comerica Incorporated, at any time
without notice to the Company, and such affiliate shall then be entitled to all
the rights of Holder under this warrant and any related agreements, and the
Company shall cooperate fully in ensuring that any stock issued upon exercise of
this warrant is issued in the name of the affiliate that exercises the warrant.
The terms and conditions of this warrant shall inure to the benefit of, and be
binding upon, the Company and the holders hereof and their respective permitted
successors and assigns. Unless the Company is filing financial information with
the SEC pursuant to the Securities Exchange Act of 1934, the Company shall have
the right to refuse to transfer any portion of this warrant to any person who
directly competes with the Company.

    


    4.5           Notices. All notices
and other communications from the Company to the Holder, or vice versa,
shall be
deemed delivered and effective when given personally or mailed by first-class
registered or certified mail, postage prepaid, at such address as may have been
furnished to the Company or the Holder, as the case may be, in writing by the
Company or such Holder from time to time. All notices to the Holder shall be
addressed as follows:

    


    COMERICA
BANK

    Attn:
Warrant Administrator

    500
Woodward Avenue, 32nd Floor, MC 3379 Detroit, MI 48226

    


    4.6           Amendments. This
warrant and any term hereof may be changed, waived, discharged or terminated
only by an instrument in writing signed by the party against which enforcement
of such change, waiver, discharge or termination is sought.

    


    4.7           Attorneys’ Fees. In
the event of any dispute between the parties concerning the terms and
provisions
of this warrant, the party prevailing in such dispute shall be entitled to
collect from the other party all costs incurred in such dispute, including
reasonable attorneys’ fees.

    


    
      
         

      

      
         

        
          

        

      

      
         

      

    

    4.8           Governing Law. This
warrant shall be governed by and construed in accordance with the laws
of

    the State
of California, without giving effect to its principles regarding conflicts of
law.

    


    NEXX
SYSTEMS, INC.

    


    By: /s/ Richard
Post                       
                                           

    Name:
Richard
Post                       
 
                                          

    Title:
President                               
                                                      

    


    


    By; /s/ John R.
Freeman                                                                       

    Name: John R.
Freeman                                                                        

    Title:
Treasurer                                                                                      

    


    


    


    


    


    Authorized
signatories under Corporate Resolutions to Borrow or an authorized signer(s)
under a resolution covering warrants must sign the warrant.

    


    


     

    
      
         

      

      
         

        
          

        

      

      
         

      

    

    APPENDIX
I

    NOTICE OF
EXERCISE

    


    1.           The
undersigned hereby elects to purchase ____ shares of the ___stock of NEXX
SYSTEMS, INC. pursuant to the terms of the attached warrant, and tenders
herewith payment of the purchase price of such shares in full.

    


    1.           The
undersigned hereby elects to convert the attached warrant into shares in the
manner specified in the
warrant. This conversion is exercised with respect to ______of the shares
covered by the warrant.

    


    [Strike
paragraph that does not apply.]

    


    2.           Please
issue a certificate or certificates representing said shares in the name of the
undersigned or in such other name as is specified below:

    


    COMERICA
BANK

    Attn:
Warrant Administrator

    500
Woodward Avenue, 32nd Floor, MC 3379 Detroit, MI 48226

    


    3.           The
undersigned represents it is acquiring the shares solely for its own account and
not as a nominee for any other party and not with a view toward the resale or
distribution thereof except in compliance with applicable securities
laws.

    


    COMERICA
BANK or Registered Assignee

    


    


    ____________________________________

    (Signature)

    


    


    ____________________________________

    (Date)

    


     

    
      
         

      

      
         

        
          

        

      

      
         

      

    

    EXHIBIT
A

    


    Anti-Dilution
Provisions

    (For
Preferred Stock Warrants With Existing Anti-Dilution Protection)

    


    In the
event of the issuance (a “Diluting Issuance”) by the Company, after the Issue
Date of the warrant, of securities at a price per share less than the Warrant
Price, then the Series B Conversion Price shall be adjusted in accordance with
(and as defined in) those provisions (the “Provisions”) of the Company’s
Certificate of Incorporation which apply to Diluting Issuances.

    


    Under no
circumstances shall the aggregate Warrant Price payable by the Holder upon
exercise of the warrant increase as a result of any adjustment arising from a
Diluting Issuance.

    


     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

    
      
         

      

      
         

        
          

        

      

      
         

      

    

    EXHIBIT
B

    


    Registration
Rights

    


    The
Shares, or the common stock issuable upon conversion of the Shares, shall be
deemed “registrable securities” or otherwise entitled to “piggyback”
registration rights in accordance with the terms of the Registration Rights
Agreement dated as of May 7, 2004 (the “Registration Rights Agreement”) between
the Company and its investor(s). By acceptance of the Warrant to which this
Exhibit B is attached, Holder shall be deemed to be a party to the Registration
Rights Agreement.

    


    The
Company agrees that no amendments will be made to the Registration Rights
Agreement, which would have an adverse impact on Holder’s registration rights
thereunder, disproportionate to other holders of the Shares party thereto,
without the consent of Holder.

    


     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

    
      
         

      

      
         

        
          

        

      

      
         

      

    

    EXHIBIT
C

    


    Right of First Refusal and
Co-Sale Rights

    


    The
Shares, or the common stock issuable upon conversion of the Shares, shall be
entitled to the rights and obligations set forth in the Right of First Refusal
and Co-Sale Agreement dated as of May 7, 2004 (the “ROFR Agreement”) in
accordance with the terms of the ROFR Agreement between the Company and its
investor(s). By acceptance of the Warrant to which this Exhibit C is attached,
Holder shall be deemed to be a party to the ROFR Agreement.

    


    The
Company agrees that no amendments will be made to the ROFR Agreement, which
would have an adverse impact on Holder’s registration rights thereunder,
disproportionate to other holders of the Shares party thereto, without the
consent of Holder.

    


     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

    
      
         

      

      
         

        
          

        

      

      
         

      

    

    EXHIBIT
D

    


    Voting Rights
Agreement

    


    The
Shares, or the common stock issuable upon conversion of the Shares, shall be
entitled to the rights and obligations set forth in the Voting Rights Agreement
dated as of May 7, 2004 (the “Voting Agreement”) in accordance with the terms of
the Voting Agreement between the Company and its investor(s). By acceptance of
the Warrant to which this Exhibit D is attached, Holder shall be deemed to be a
party to the Voting Agreement.

    


    The
Company agrees that no amendments will be made to the Voting Agreement, which
would have an adverse impact on Holder’s registration rights thereunder,
disproportionate to other holders of the Shares party thereto, without the
consent of Holder.