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


    EXHIBIT
10.3

     

    RESTRICTED
STOCK AGREEMENT

    


    NEXX
SYSTEMS, INC.

    


    


    AGREEMENT
made as of the 23 day of June, 2009, between NEXX Systems, Inc., a Delaware
corporation (the “Company”), and Thomas Walsh (the “Executive”).

    


    WHEREAS,
the Company has entered into an offer letter dated as of September 13, 2008 with
the Executive, a copy of which is attached hereto as Exhibit A (the “Offer
Letter”) and the Executive commenced employment with the Company on October 6,
2008 (the “Start Date”);

    


    WHEREAS,
pursuant to the Offer Letter, the Company desires to offer to the Executive
shares of the Company’s common stock, $0.01 par value per share (“Common
Stock”), all on the terms and conditions hereinafter set forth;

    


    WHEREAS,
Executive wishes to accept said offer; and

    


    WHEREAS,
the parties hereto understand and agree that any terms used and not defined
herein have the meanings ascribed to such terms in the Offer Letter and that any
and all references herein to employment of the Executive by the Company shall
include the Executive’s employment or service as an employee or consultant of
the Company or any Affiliate.

    


    NOW,
THEREFORE, in consideration of the promises and the mutual covenants contained
herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree as
follows:

    


    1.         
  Terms of
Grant.  The Executive hereby accepts the offer of the Company
to issue to the Executive, in accordance with the terms of this Agreement,
4,490,920 shares of the Company’s Common Stock (such shares, subject to
appropriate adjustment in the event of a stock split, stock dividend,
combination or other similar recapitalization with respect to the Common Stock,
the “Granted Shares”) at a purchase price per share of $0.01 (the “Purchase
Price”), receipt of which is hereby acknowledged by the Company.

    


    2.1.           Company’s Lapsing Repurchase
Right.

    


    (a)           Lapsing Repurchase
Right.  Except as set forth in Subsections 2.1(b), 2.1(c) and
2.1(d) hereof, in the event that for any reason the Executive is no longer an
employee or consultant of the Company or an Affiliate prior to October 6, 2012,
the Company (or its designee) shall have the option, but not the obligation, to
purchase from the Executive (or the Executive’s Estate), and, in the event the
Company exercises such option, the Executive (or the Executive’s Estate) shall
be obligated to sell to the Company (or its designee), at a price per Granted
Share equal to the Purchase Price, all or any part of the Granted Shares set
forth in clauses (i) and (ii) below (the “Lapsing Repurchase Right”). The
Company’s Lapsing Repurchase Right shall be valid for a period of sixty (60)
days commencing with the date of such termination of employment or
service.  Notwithstanding any other provision hereof, in the event


     

    
      
         

      

      
         

        
          

        

      

      
         

      

    

    the
Company is prohibited during such one year period from exercising its Lapsing
Repurchase Right by applicable law, then the time period during which such
Lapsing Repurchase Right may be exercised shall be extended until thirty (30)
days after the Company is first not so prohibited.

    


    (i)           If
such termination is prior to the first anniversary of the Start Date, the
Company shall have the option to repurchase all of the Granted Shares acquired
by the Executive hereunder.

    


    (ii)           If
such termination is on or after the first anniversary of the Start Date, but
prior to October 6, 2012, the Company shall have the option to repurchase all of
the Granted Shares less 93,553 of the Granted Shares for each full month period
elapsed after the Start Date that the Executive continues to serve as an
employee, director or consultant of the Company or an Affiliate; provided that
in the event such termination is on or after September 6, 2012 but prior to
October 6, 2012, the Company shall have the option to repurchase 93,553 of the
Granted Shares.

    


    (iii)           Notwithstanding
the provisions of subsections (i) and (ii) above, if such termination
occurs:

    


     (A) prior to October 6, 2009 and
the Executive has been terminated by the Company without Cause (as defined in
the Offer Letter), then the Lapsing Repurchase Right may be exercised by the
Company as to only 2,245,460 of the Granted Shares;

    


     (B) on or after October 6, 2009
but prior to October 6, 2010 and the Executive has been terminated by the
Company without Cause, then the Lapsing Repurchase Right may be exercised by the
Company as to 2,245,460 of the Granted Shares less those number of Granted
Shares equal to the calendar days of and from October 6, 2009 through the date
of notice of termination without Cause multiplied by 3,076 shares per calendar
day  [For illustration purposes only, if Executive’s employment is
terminated without Cause on January 2, 2001 (the 100th
calendar day from October 6, 2010), then the number of Granted Shares to which
the lapsing repurchase Right shall remain in effect shall equal 1,937,860
(2,245,460 -307,600)].; and

    


    (C) on or after October 6, 2010 and the
Executive has been terminated by the Company without Cause, then none of the
Granted Shares shall be subject to the Lapsing Repurchase Right.

    


    (b)           Effect of Termination for
Disability or upon Death.  The following rules apply if the
Executive ceases to be an employee or consultant of the Company or an Affiliate
by reason of Disability or death:  to the extent the Company’s Lapsing
Repurchase Right has not lapsed as of the date of Disability or death, as case
may be, the Company may exercise such Lapsing Repurchase Right; provided,
however, that the Company’s Lapsing Repurchase Right shall be deemed to have
lapsed to the extent of a pro rata portion of the Granted Shares through the
date of Disability or death, as would have lapsed had the Executive not become
Disabled or died, as the case may be.  The proration shall be based
upon the number of days accrued in such current vesting period prior to the
Executive’s date of Disability or death, as the case may be.

    


    
      
         

      

      
        B-2

        
          

        

      

      
         

      

    

    (c)           Effect of a For Cause
Termination.   Notwithstanding anything to the contrary
contained in this Agreement, in the event the Company or an Affiliate terminates
the Executive’s employment or service for Cause or in the event the
Administrator determines, within one year after the Executive’s termination,
that either prior or subsequent to the Executive’s termination the Executive
engaged in conduct that would constitute Cause, all of the Granted Shares then
held by the Executive shall be forfeited to the Company immediately as of the
time the Executive is notified that he has been terminated for Cause or that he
engaged in conduct which would constitute Cause.

     

    (d) 
         Effect of Certain Events
Following a Change of Control.  Except as otherwise provided in
Subsection 2.1(c) above, and notwithstanding the provisions of subsections (i),
(ii) and (iii) above), if Executive’s employment is either terminated by the
Company either without Cause or by the Executive due to a Constructive
Termination (as defined in the Offer Letter), each such event occurring within
six months following a Change of Control (as defined in the Offer Letter), then
none of the Granted Shares shall be subject to the Lapsing Repurchase
Right.

     

    (e)           Closing.  In
the event that the Company exercises the Lapsing Repurchase Right, the Company
shall notify the Executive, or, in the case of the Executive’s death, his
Estate, in writing of its intent to repurchase the Granted
Shares.  Such notice may be mailed by the Company up to and including
the last day of the time period provided for above for exercise of the Lapsing
Repurchase Right.  The notice shall specify the place, time and date
for payment of the repurchase price (the “Closing”) and the number of Granted
Shares with respect to which the Company is exercising the Lapsing Repurchase
Right.  The Closing shall be not less than ten days or more than 60
days from the date of mailing of the notice, and the Executive or the
Executive’s Estate with respect to the Granted Shares which the Company elects
to repurchase shall have no further rights as the owner thereof from and after
the date specified in the notice.  At the Closing, the repurchase
price shall be delivered to the Executive or the Executive’s Estate and the
Granted Shares being repurchased, duly endorsed for transfer, shall, to the
extent that they are not then in the possession of the Company, be delivered to
the Company by the Executive or the Executive’s Estate.

    


    (f)           Escrow.  The
certificates representing all Granted Shares acquired by the Executive hereunder
which from time to time are subject to the Lapsing Repurchase Right shall be
delivered to the Company and the Company shall hold such Granted Shares in
escrow as provided in this Subsection 2.1(f).  Promptly following
receipt by the Company of a written request from the Executive, the Company
shall release from escrow and deliver to the Executive a certificate for the
whole number of Granted Shares, if any, as to which the Company’s Lapsing
Repurchase Right has lapsed. In the event of a
repurchase by the Company of Granted Shares subject to the Lapsing Repurchase
Right, the Company shall release from escrow and cancel a certificate for the
number of Granted Shares so repurchased.  Any securities distributed
in respect of the Granted Shares held in escrow, including, without limitation,
shares issued as a result of stock splits, stock dividends or other
recapitalizations, shall also be held in escrow in the same manner as the
Granted Shares.

    


    
      
         

      

      
        B-3

        
          

        

      

      
         

      

    

    (g)           Prohibition on
Transfer.  The Executive recognizes and agrees that all Granted
Shares which are subject to the Lapsing Repurchase Right may not be sold,
transferred, assigned, hypothecated, pledged, encumbered or otherwise disposed
of, whether voluntarily or by operation of law, other than to the Company (or
its designee).  However, the Executive, with the approval of the
Administrator, may transfer the Granted Shares for no consideration to or for
the benefit of the Executive’s Immediate Family (including, without limitation,
to a trust for the benefit of the Executive’s Immediate Family or to a
partnership or limited liability company for one or more members of the
Executive’s Immediate Family), subject to such limits as the Administrator may
establish, and the transferee shall remain subject to all the terms and
conditions applicable to this Agreement prior to such transfer and each such
transferee shall so acknowledge in writing as a condition precedent to the
effectiveness of such transfer.  The term “Immediate Family” shall
mean the Executive’s spouse, former spouse, parents, children, stepchildren,
adoptive relationships, sisters, brothers, nieces and nephews and grandchildren
(and, for this purpose, shall also include the Executive. The Company shall not be
required to transfer any Granted Shares on its books which shall have been sold,
assigned or otherwise transferred in violation of this Subsection 2.1(g), or to
treat as the owner of such Granted Shares, or to accord the right to vote as
such owner or to pay dividends to, any person or organization to which any such
Granted Shares shall have been so sold, assigned or otherwise transferred, in
violation of this Subsection 2.1(g).

    


    (h)           Failure to Deliver Granted
Shares to be Repurchased.  In the event that the Granted Shares
to be repurchased by the Company under this Agreement are not in the Company’s
possession pursuant to Subsection 2.1(f) above or otherwise and the Executive or
the Executive’s Estate fails to deliver such Granted Shares to the Company (or
its designee), the Company may elect (i) to establish a segregated account in
the amount of the repurchase price, such account to be turned over to the
Executive or the Executive’s Estate upon delivery of such Granted Shares, and
(ii) immediately to take such action as is appropriate to transfer record title
of such Granted Shares from the Executive to the Company (or its designee) and
to treat the Executive and such Granted Shares in all respects as if delivery of
such Granted Shares had been made as required by this Agreement.  The
Executive hereby irrevocably grants the Company a power of attorney which shall
be coupled with an interest for the purpose of effectuating the preceding
sentence.

    


    2.2           General Restrictions on
Transfer of Granted Shares.

    


    (a)           Limitations on
Transfer.  In addition to the restrictions set forth above in
Section 2.1, the Granted Shares acquired by the Executive hereunder and no
longer subject to the provisions of Section 2.1 herein (the “Vested Shares”)
shall not be transferred by the Executive (except as permitted herein), shall be
subject to the provisions of Sections 2.1 (f), (g) and (h) above and shall be
subject to the repurchase rights described herein.

    


    (b)           Right to Repurchase on
Proposed Transfer.  It shall be a condition precedent to the
validity of any sale or other transfer of any Vested Shares by the Executive
that the following restrictions be complied with (except as hereinafter
otherwise provided):

    


    
      
         

      

      
        B-4

        
          

        

      

      
         

      

    

    
      	
            	
              (i)

            	
              No
      Vested Shares owned by the Executive may be sold, pledged or otherwise
      transferred (including by gift or devise) to any person or entity,
      voluntarily, or by operation of law, except in accordance with the terms
      and conditions hereinafter set
forth.

            


    

    


    
      	
            	
              (ii)

            	
              Before
      selling or otherwise transferring all or part of the Vested Shares, the
      Executive shall give written notice of such intention to the Company which
      notice shall include the name of the proposed transferee, the proposed
      purchase price per share, the terms of payment of such purchase price and
      all other matters relating to such sale or transfer and shall be
      accompanied by a copy of the binding written agreement of the proposed
      transferee to purchase the Vested Shares of the Executive.  Such
      notice shall constitute a binding offer by the Executive to sell to the
      Company such number of the Vested Shares then held by the Executive as are
      proposed to be sold in the notice at the monetary price per share equal to
      the price at which the Company last issued shares of the Company’s Common
      Stock or options to employees to purchase Common Stock based upon an
      independent third party appraisal designed to comply with the provisions
      of Section 409A of the Code (provided, however, that the Company shall not
      be required to meet any non-monetary terms of the proposed transfer,
      including, without limitation, delivery of other securities in exchange
      for the Vested Shares proposed to be sold).  The Company shall
      give written notice to the Executive as to whether such offer has been
      accepted in whole by the Company within 60 days after its receipt of
      written notice from the Executive.  The Company may only accept
      such offer in whole and may not accept such offer in part.  Such
      acceptance notice shall fix a time, location and date for the closing on
      such purchase (“Closing Date”) which shall not be less than ten nor more
      than sixty days after the giving of the acceptance notice; provided,
      however, if any of the Shares to be sold pursuant to this Section 2.2(b)
      have been held by the Executive for less than six months, then the Closing
      Date may be extended by the Company until no more than ten days after such
      Shares have been held by the Executive for six months.  At the
      Closing, the Executive shall accept payment as set forth herein and shall
      deliver to the Company in exchange therefor the Granted Shares being
      repurchased, duly endorsed for transfer, to the extent that they are not
      then in the possession of the
Company.

            


    

    


    
      	
            	
              (iii)

            	
              If
      the Company shall fail to accept any such offer, the Executive shall be
      free to sell all, but not less than all, of the Vested Shares set forth in
      his notice to the designated transferee at the price and terms designated
      in the Executive’s notice, provided that (i) such sale is consummated
      within six months after the giving of notice by the Executive to the
      Company as aforesaid, (ii) the transferee first agrees in writing to be
      bound by the provisions of this Section 2.2(b) so that he (and all
      subsequent transferees) shall thereafter only be permitted to sell or
      transfer the Vested Shares in accordance with the terms hereof; and (iii)
      such sale otherwise meets the obligations of the Executive (or his
      Permitted Transferees as described in subsection (v) below) under the
      terms of the Amended and Restated Right of First Refusal and Co-Sale
      Agreement dated as of June 27, 2008 (the “Right of First Refusal
      Agreement”), as the same may be amended from time to
      time.  After the expiration of such six months, the provisions
      of this Section 2.2(b) shall again apply with respect to any proposed
      voluntary transfer of the Vested Shares.  The provisions of this
      Agreement shall take precedence over the provisions of Section 3 of the
      Right of First Refusal Agreement.

            


    

    


    
      
         

      

      
        B-5

        
          

        

      

      
         

      

    

    
      	
            	
              (iv)

            	
              The
      provisions of this Section 2.2(b) may be waived by the
      Company.  Any such waiver may be unconditional or based upon
      such conditions as the Company may
impose.

            


    

     

    
      
        	
              	
                (v)

              	
                      
                  The
      restrictions on transfer contained in this Section 2.2(b) shall not apply
      to (a) transfers by the Executive to his spouse or children or to a trust
      for the benefit of his spouse or children, (b) transfers by the Executive
      to his guardian or conservator, and (c) or transfers by the Executive, in
      the event of his death, to his executor(s) or administrator(s) or to
      trustee(s) under his will (collectively, “Permitted Transferees”);
      provided however, that in any such event the Vested Shares so transferred
      in the hands of each such Permitted Transferee shall remain subject to
      this Agreement, and each such Permitted Transferee shall so acknowledge in
      writing as a condition precedent to the effectiveness of such
      transfer.

                

              


      

       

    

    (c)           The
provisions of Section 2.2 (a) and (b) shall terminate upon the effective date of
the registration of the Shares pursuant to the Securities Exchange Act of
1934.

    


    (d)           The
Executive agrees that in the event the Company proposes to offer for sale to the
public any of its equity securities and such Executive is requested by the
Company and any underwriter engaged by the Company in connection with such
offering to sign an agreement restricting the sale or other transfer of Shares,
then it will promptly sign such agreement and will not transfer, whether in
privately negotiated transactions or to the public in open market transactions
or otherwise, any Shares or other securities of the Company held by him during
such period as is determined by the Company and the underwriters, not to exceed
90 days following the closing of the offering, plus such additional period of
time as may be required to comply with Marketplace Rule 2711 of the National
Association of Securities Dealers, Inc. or similar rules thereto (such period,
the “Lock-Up Period”).  Such agreement shall be in writing and in form
and substance reasonably satisfactory to the Company and such underwriter and
pursuant to customary and prevailing terms and
conditions.  Notwithstanding whether the Executive has signed such an
agreement, the Company may impose stop-transfer instructions with respect to the
Shares or other securities of the Company subject to the foregoing restrictions
until the end of the Lock-Up Period.

    


    (e)           The
Executive acknowledges and agrees that neither the Company nor, its shareholders
nor its directors and officers, has any duty or obligation to disclose to the
Executive any material information regarding the business of the Company or
affecting the value of the Shares before, at the time of, or following a
termination of the employment of the Executive by the Company or an Affiliate,
including, without limitation, any information concerning plans for the Company
to make a public offering of its securities or to be acquired by or merged with
or into another firm or entity.

    


    
      
         

      

      
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    3.           Legend.  All
certificates representing the Granted Shares to be issued to the Executive
pursuant to this Agreement shall have endorsed thereon a legend substantially as
follows:

    


    “The
shares represented by this certificate are subject to restrictions set forth in
a Restricted Stock Agreement dated as of March __, 2009 with this Company, a
copy of which Agreement is available for inspection at the offices of the
Company or will be made available upon request.”

    


    4.           Purchase for Investment;
Securities Law Compliance.  The Executive hereby represents and
warrants that he is acquiring the Granted Shares for his own account, for
investment, and not with a view to, or for sale in connection with, the
distribution of any such Granted Shares. The Executive specifically acknowledges
and agrees that any sales of Granted Shares shall be made in accordance with the
requirements of the Securities Act of 1933, as amended, in a transaction as to
which the Company shall have received an opinion of counsel satisfactory to it
confirming such compliance.  The Executive shall be bound by the
provisions of the following legend which shall be endorsed upon the
certificate(s) evidencing the Shares issued:

    


    “The
shares represented by this certificate have been taken for investment and they
may not be sold or otherwise transferred by any person, including a pledgee,
unless (1) either (a) a Registration Statement with respect to such shares shall
be effective under the Securities Act of 1933, as amended, or (b) the Company
shall have received an opinion of counsel satisfactory to it that an exemption
from registration under such Act is then available, and (2) there shall have
been compliance with all applicable state securities laws.”

    


    5.           Rights as a
Stockholder.  The Executive shall have all the rights of a
stockholder with respect to the Granted Shares, including voting and dividend
rights, subject to the transfer and other restrictions set forth
herein.

    


    6.           Tax Liability of the
Executive and Payment of Taxes. The Executive acknowledges and agrees
that any income or other taxes due from the Executive with respect to the
Granted Shares issued pursuant to this Agreement, including, without limitation,
the Lapsing Repurchase Right, shall be the Executive’s
responsibility.  Without limiting the foregoing, the Executive agrees
that, to the extent that the lapsing of restrictions on disposition of any of
the Granted Shares or the declaration of dividends on any such shares before the
lapse of such restrictions on disposition results in the Executive’s being
deemed to be in receipt of earned income under the provisions of the Code, the
Company shall be entitled to immediate payment from the Executive of the amount
of any tax required to be withheld by the Company.

    


    Upon execution of this Agreement, the
Executive may file an election under Section 83 of the Code in substantially the
form attached as Exhibit
B.  The Executive acknowledges that if he does not file such an
election, as the Granted Shares are released from the Lapsing Repurchase Right
in accordance with Section 2.1, the Executive will have income for tax purposes
equal to the fair market value of the Granted Shares at such date, less the
price paid for the Granted Shares by the Executive.  The Executive has
been given the opportunity to obtain the advice of his tax advisors with respect
to the tax consequences of the purchase of the Granted Shares and the provisions
of this Agreement.

    


    
      
         

      

      
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    7.           Equitable
Relief.  The Executive specifically acknowledges and agrees
that in the event of a breach or threatened breach of the provisions of this
Agreement, including the attempted transfer of the Granted Shares by the
Executive in violation of this Agreement, monetary damages may not be adequate
to compensate the Company, and, therefore, in the event of such a breach or
threatened breach, in addition to any right to damages, the Company shall be
entitled to equitable relief in any court having competent
jurisdiction.  Nothing herein shall be construed as prohibiting the
Company from pursuing any other remedies available to it for any such breach or
threatened breach.

    


    8.           No Obligation to Maintain
Relationship.  The Company is not obligated to continue the
Executive as an employee, director or consultant of the Company or an
Affiliate.  The Executive acknowledges:  (i) that the grant
of the Shares is a one-time benefit which does not create any contractual or
other right to receive future grants of shares, or benefits in lieu of shares;
(ii) that all determinations with respect to any such future grants, including,
but not limited to, the times when shares shall be granted, the number of shares
to be granted, the purchase price, and the time or times when each share shall
be free from a lapsing repurchase right, will be at the sole discretion of the
Company; (iii) that the value of the Shares is an extraordinary item of
compensation which is outside the scope of the Executive’s Offer Letter; and
(iv) that the Shares are not part of normal or expected compensation for
purposes of calculating any severance, resignation, redundancy, end of service
payments, bonuses, long-service awards, pension or retirement benefits or
similar payments.

    


    9.           Notices.  Any
notices required or permitted by the terms of this Agreement shall be given by
recognized courier service, facsimile, registered or certified mail, return
receipt requested, addressed as follows:

    


    If to the Company:

    


    NEXX
Systems, Inc.

    900
Middlesex Turnpike Building 6

    Billerica,
MA 01821

    Attention:  Chief
Financial Officer

    


    With a copy to:

    


    Mintz
Levin

    One
Financial Center

    Boston,
Massachusetts 02111

    Attention:  Neil
Aronson, Esquire

    


    If to the Executive:

    


    Dr.
Thomas Walsh

    15536
Village Drive

    Lake
Oswego, Oregon 97034

    


    
      
         

      

      
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    or to
such other address or addresses of which notice in the same manner has
previously been given.  Any such notice shall be deemed to have been
given on the earliest of receipt, one business day following delivery by the
sender to a recognized courier service, or three business days following mailing
by registered or certified mail.

    


    10.           Benefit of
Agreement.  Subject to the provisions hereof, this Agreement
shall be for the benefit of and shall be binding upon the heirs, executors,
administrators, successors and assigns of the parties hereto.

    


    11.           Governing
Law.  This Agreement shall be construed and enforced in
accordance with the laws of the State of Delaware, without giving effect to the
conflict of law principles thereof.  For the purpose of litigating any
dispute that arises under this Agreement, whether at law or in equity, the
parties hereby consent to exclusive jurisdiction in the Commonwealth of
Massachusetts and agree that such litigation shall be conducted in the courts of
Suffolk County, the Commonwealth of Massachusetts or the federal courts of the
United States for the District of the Commonwealth of
Massachusetts.

    


    12.           Severability.  If
any provision of this Agreement is held to be invalid or unenforceable by a
court of competent jurisdiction, then such provision or provisions shall be
modified to the extent necessary to make such provision valid and enforceable,
and to the extent that this is impossible, then such provision shall be deemed
to be excised from this Agreement, and the validity, legality and enforceability
of the rest of this Agreement shall not be affected thereby.

    


    13.           Entire
Agreement.  This Agreement, together with the Right of
First Refusal and Co-Sale Agreement, constitutes the entire agreement and
understanding between the parties hereto with respect to the subject matter
hereof and supersedes all prior oral or written agreements and understandings
relating to the subject matter hereof.  No statement, representation,
warranty, covenant or agreement not expressly set forth in this Agreement shall
affect or be used to interpret, change or restrict the express terms and
provisions of this Agreement.

    


    14.           Modifications and
Amendments; Waivers and Consents.  The terms and provisions of
this Agreement may be waived, or consent for the departure therefrom granted,
only by written document executed by the party entitled to the benefits of such
terms or provisions.  No such waiver or consent shall be deemed to be
or shall constitute a waiver or consent with respect to any other terms or
provisions of this Agreement, whether or not similar.  Each such
waiver or consent shall be effective only in the specific instance and for the
purpose for which it was given, and shall not constitute a continuing waiver or
consent.

    


    
      
         

      

      
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    15.           Consent of Spouse/Domestic
Partner.  If the Executive has a spouse or a domestic partner
as of the date of this Agreement, the Executive’s spouse or domestic partner
shall execute a Consent of Spouse/Domestic Partner in the form of Exhibit C hereto,
effective as of the date hereof.  Such consent shall not be deemed to
confer or convey to the spouse or domestic partner any rights in the Granted
Shares that do not otherwise exist by operation of law or the agreement of the
parties.  If the Executive subsequent to the date hereof, marries,
remarries or applies to the Company for domestic partner benefits, the Executive
shall, not later than 60 days thereafter, obtain his new spouse/domestic
partner’s acknowledgement of and consent to the existence and binding effect of
all restrictions contained in this Agreement by having such spouse/domestic
partner execute and deliver a Consent of Spouse/Domestic Partner in the form of
Exhibit C.

    


    16.           Counterparts.  This
Agreement may be executed in one or more counterparts, and by different parties
hereto on separate counterparts, each of which shall be deemed an original, but
all of which together shall constitute one and the same instrument.

    


    17.           Data
Privacy.  By entering into this Agreement, the
Executive:  (i) authorizes the Company and each Affiliate, and any
agent of the Company, to disclose to the Company or any of its Affiliates such
information and data as the Company or any such Affiliate shall request in order
to facilitate the grant of Shares; (ii) waives any data privacy rights he may
have with respect to such information; and (iii) authorizes the Company and each
Affiliate to store and transmit such information in electronic
form.

    


     

     

    
 

    [THE NEXT
PAGE IS THE SIGNATURE PAGE]

    


    
      
         

      

      
        B-10

        
          

        

      

      
         

      

    

    IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day
and year first above written.

     

     

    
      
        	 	NEXX
      SYSTEMS, INC.	 
	 	 	 	 
	
                 

              	
                By:
      

              	/s/ Stanley
      Piekos	 
	 	 	Name: 
      Stanley Piekos	 
	 	 	Title:   
      CFO	 
	 	 	 	 


      



    
      
        	 	EXECUTIVE:	 
	 	 	 
	 	/s/
      Thomas Walsh	 
	 	Thomas
      Walsh	 


      

    

     

     

     

     

    
 

    
      
         

      

      
        B-11

        
          

        

      

      
         

      

    

    EXHIBIT
A

    


    


    OFFER
LETTER DATED SEPTEMBER 13, 2008

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

    
 

    
      
         

      

      
         

        
          

        

      

      
         

      

    

    EXHIBIT
B

    


    Election
to Include Gross Income in Year

    of
Transfer Pursuant to Section 83(b)

    of
the Internal Revenue Code of 1986, as amended

    


    In accordance with Section 83(b) of the
Internal Revenue Code of 1986, as amended (the “Code”), the undersigned hereby
elects to include in his gross income as compensation for services the excess,
if any, of the fair market value of the property (described below) at the time
of transfer over the amount paid for such property.

    


    The
following sets for the information required in accordance with the Code and the
regulations promulgated hereunder:

     

    
      	
              1.

            	
              The
      name, address and social security number of the undersigned
      are:

            


    

    


    
      	
               
      

            	
              Name:
      Thomas Walsh

            


    

    
      	
               
      

            	
              Address:

            



    
      
        	
                 
      

              	
                Social
      Security No.:

              


      

      
        	
                 
      

              	
              


      

       

    

    
      	
              2.

            	
              The
      description of the property with respect to which the election is being
      made is as follows:

            


    

    


    
      	
               
      

            	
              4,490.920
      shares (the “Shares”) of Common Stock, $0.01 par value per share, of NEXX
      Systems, Inc., a Delaware corporation (the
  “Company”).

            


    

    


    
      	
              3.

            	
              This
      election is made for the calendar year 2009, with respect to the transfer
      of the property to the Taxpayer on June 23,
  2009.

            


    

    


    
      	
              4.

            	
              Description
      of restrictions:  The property is subject to the following
      restrictions:

            


    

    


    
      	
               
      

            	
              In
      the event taxpayer’s employment with the Company or an Affiliate is
      terminated, the Company may repurchase all or any portion of the Shares
      determined as set forth below at the acquisition price paid by the
      taxpayer:

            


    

    


    
      	
               
      

            	
              A.

            	
              If
      the termination takes place prior to October 6, 2009, the Purchase Option
      will apply to all of the Shares.

            


    

    


    
      	
               
      

            	
              B.

            	
              If
      the termination takes place on or after October 6, 2009, the number of
      Shares to which the Purchase Option applies shall be all Shares less
      93,561 Shares for each full month period elapsed after October 6, 2009 if
      the taxpayer is employed by the Company or an
  Affiliate.

            


    

    


    


    
      
         

      

      
        B-1

        
          

        

      

      
         

      

    

    
      	
              5.

            	
              The
      fair market value at time of transfer (determined without regard to any
      restrictions other than restrictions which by their terms will never
      lapse) of the property with respect to which this election is being made
      was not more than $0.01 per Share.

            


    

    


    
      	
              6.

            	
              The
      amount paid by taxpayer for said property was $0.01 per
    Share.

            


    

    


    
      	
              7.

            	
              A
      copy of this statement has been furnished to the
  Company.

            


    

    


    


    Signed
this 23 day of June, 2009.

    


    


    /s/ Thomas
Walsh                                            
     

    Print Name: Thomas Walsh

     

     

     

     

     

     

     

     

     

     

     

     

     

     

    
      
         

      

      
        B-2

        
          

        

      

      
         

      

    

    EXHIBIT
C

    


    CONSENT OF SPOUSE/DOMESTIC
PARTNER

    


    I,
Mariann M. Walsh, spouse or domestic partner of Thomas Walsh acknowledge that I
have read the RESTRICTED STOCK AGREEMENT dated as of March, 2009 (the
“Agreement”) to which this Consent is attached as Exhibit A and that I know its
contents.  Capitalized terms used and not defined herein shall have
the meanings assigned to such terms in the Agreement.  I am aware that
by its provisions the Granted Shares granted to my spouse/domestic partner
pursuant to the Agreement are subject to a Lapsing Repurchase Right in favor of
NEXX Systems, Inc. (the “Company”) and that, accordingly, the Company has the
right to repurchase up to all of the Granted Shares of which I may become
possessed as a result of a gift from my spouse/domestic partner or a court
decree and/or any property settlement in any domestic litigation.

    


    I hereby
agree that my interest, if any, in the Granted Shares subject to the Agreement
shall be irrevocably bound by the Agreement and further understand and agree
that any community property interest I may have in the Granted Shares shall be
similarly bound by the Agreement.

    


    I agree
to the Lapsing Repurchase Right described in the Agreement and I hereby consent
to the repurchase of the Granted Shares by the Company and the sale of the
Granted Shares by my spouse/domestic partner or my spouse/domestic partner’s
legal representative in accordance with the provisions of the
Agreement.  Further, as part of the consideration for the Agreement, I
agree that at my death, if I have not disposed of any interest of mine in the
Granted Shares by an outright bequest of the Granted Shares to my spouse or
domestic partner, then the Company shall have the same rights against my legal
representative to exercise its rights of repurchase with respect to any interest
of mine in the Granted Shares as it would have had pursuant to the Agreement if
I had acquired the Granted Shares pursuant to a court decree in domestic
litigation.

    


    I
AM AWARE THAT THE LEGAL, FINANCIAL AND RELATED MATTERS CONTAINED IN THE
AGREEMENT ARE COMPLEX AND THAT I AM FREE TO SEEK INDEPENDENT PROFESSIONAL
GUIDANCE OR COUNSEL WITH RESPECT TO THIS CONSENT.  I HAVE EITHER
SOUGHT SUCH GUIDANCE OR COUNSEL OR DETERMINED AFTER REVIEWING THE AGREEMENT
CAREFULLY THAT I WILL WAIVE SUCH RIGHT.

    


    Dated as
of the 23rd day
of June, 2009.

    


    


    


    /s/ Mariann M.
Walsh                                     

    Print
name: Mariann Walsh

    


    
 

     

     

    
      
         

      

      
        C-1