exh10-13_16709.htm


    EXHIBIT 10.13

    
 

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page has been redacted and filed separately with the Securities and Exchange
Commission. Confidential treatment has been requested with respect to the
omitted portions.

     

     

    MANUFACTURING
AGREEMENT

     

    This
Manufacturing Agreement (the “Agreement”) is made and
entered into as of this 11th day of February,
2003 by and between DAKOTA SYSTEMS, INC., a Massachusetts corporation
with a principal
place of business at 1057 Broadway Road, Dracut, Massachusetts 01826 (“Seller”)
and NEXX SYSTEMS, INC., a corporation organized under the laws of the State of
Delaware, with a principal place of business at 90 Industrial Way, Wilmington,
Massachusetts 01887 (“Buyer”).

     

    WHEREAS,
Seller is engaged in the business of manufacturing and selling certain machinery
and equipment; and

     

    WHEREAS,
the Buyer desires to engage Seller to be Buyer's exclusive supplier of certain
machinery and equipment identified on Schedule A attached hereto and
incorporated herein (the “Products”), and Buyer desires to engage Seller as
Buyer's sole and exclusive manufacturer and supplier for the Products upon the
terms and conditions set forth herein;

     

    NOW,
THEREFORE, in consideration of the mutual covenants hereinafter set forth, and
for other good and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, the parties hereto agree as follows:

     

    1. Purchase
of Requirements.

     

    1.1 During
the Term of this Agreement, Buyer shall order and purchase exclusive)
from Seller the Products identified and set forth on Schedule A attached hereto
and incorporated herein. During the term of this Agreement, Seller shall be the
sole and exclusive supplier of the Products for Buyer, and Buyer shall not order
or purchase such Products from any other person, firm or entity without the
prior written consent of Seller.

     

    1.2
During the Term of this Agreement, and thereafter for a period of two (2)
years,
Seller agrees not to manufacture for any person or business other than Buyer any
products competitive with the Products in markets addressed by NEXX, assemblies
and subassemblies manufactured by Buyer hereunder.

     

    2. Pricing;
Terms and Conditions of Purchase.

     

    2.1 The
purchase price for the Products manufactured by Seller and sold to Buyer,
and all other terms and conditions for the manufacture and sale of such Products
by Seller, including, but not limited to specifications for the Products,
delivery dates and terms, warranties and other applicable terms, shall be
mutually agreed upon by Buyer and Seller from time to time throughout the term
of this Agreement in connection with each order which the Buyer desires to place
with the Seller for the purchase of Products. In connection with the products
and systems listed on Schedule A, the parties have agreed upon the
pricing


    
      
         


      

      
         


        
          

        

      

      
         


        
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    methodology
for the Products set forth in Schedule “A”. All of the agreed upon pricing and
other terms and conditions for the manufacture and sale of the Products by
Seller shall be set forth in a written purchase order issued by Buyer and
accepted in writing by Seller (a “Purchase Order”). No terms and conditions set
forth in any Purchase Order issued by Buyer for the manufacture and sale of the
Products by Seller shall be binding upon Seller in any manner unless and until
Seller has accepted said Purchase Order in writing. Seller shall notify Buyer in
writing within [*] of receipt of a Purchase Order, with standard terms and
conditions and which has appeared in the rolling forecast for at least [*] as to
whether Seller shall honor such Purchase Order. If Seller elects not to honor
the Purchase Order or does not respond to such notice within the [*] timeframe,
then Buyer may elect to manufacture the Product(s) referenced in such Purchase
Order itself or cause such products to be manufactured by a third party and,
thereafter, such future Products to be manufactured hereunder may be
manufactured, at Buyer's option, by the Seller, the Buyer or a third party
selected by Buyer, without any further obligation by Buyer to purchase such
Products from Seller on an exclusive basis.

     

    2.2 Seller
represents and warrants the manufacturing services will be performed
in a timely, workmanlike and professional manner, with manufacturing personnel
reasonably acceptable to Buyer and that the Products will be manufactured to
Buyer's reasonable good faith satisfaction, in accordance with the Product
specifications referenced in any Purchase Order. Seller may not subcontract with
any third party to perform any of its obligations hereunder without the prior
written consent of Buyer. In no event shall any such subcontract release Seller
from any of its obligations under this Agreement. Seller shall not modify the
purchase specifications for any Product without the prior written approval of
the Buyer. Seller shall cooperate with Buyer to provide configuration control
and traceability systems for Products supplied hereunder.

     

    2.3 All
records, including, without limitation, originals thereof, relating to
manufacturing
of the Products shall be retained by Seller for a period of at least five (_5_)
Calendar Years from the date of shipment of each Product to which such records
pertain, or such longer period as may be required by applicable law. The Seller
shall provide Buyer with copies of such records upon the completion of the
initial acceptance testing for each such Product sold to Buyer
hereunder.

     

    3. Inventory;
Risk of Loss. Buyer may, from time to time, deliver to Seller certain
Buyer-owned
inventory, tools and fixtures to be incorporated or utilized in the manufacture
of the Products. Seller shall maintain such Buyer-owned inventory, tools and
fixtures, and finished Products to be shipped to Buyer in a separate locked
location within Seller's facility. Seller shall issue [*] reports regarding
Buyer-owned inventory and finished Products being held in inventory by Seller,
and Seller shall permit Buyer and its representatives from time to time to
conduct audits and yearly fiscal inventory counts at Seller's facility. Such
audits and inventory counts shall be conducted during normal business hours upon
reasonable advance notice to Seller, and Buyer shall conduct such audits and
inventory counts in such a manner as not to unreasonably interfere with the
business or operations of Seller. Buyer shall comply with all reasonable rules
and regulations which Seller may specify from time to time with respect to the
presence of Buyer's employees and representatives at Seller's facility, and
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    indemnify,
defend and hold harmless Seller from and against any and all claims for personal
injury (including death) and/or property damage, including any claims asserted
by Buyer's employees and representatives, arising out of the conduct of such
audits or inventory counts or the presence of such employees or representatives
at Seller's facility. During the time that Buyer-owned inventory, tools and
fixtures and finished Products being held in inventory for Buyer are located at
Seller's facility, [*] shall bear the risk of loss thereof and shall be
responsible for maintaining appropriate casualty insurance to cover any loss
with respect thereto. Delivery of finished Products shall be made [*][*] shall
bear the risk of loss for all Products, and for any Buyer-owned inventory, tools
and/or fixtures, [*][*]

     

    4. Term. The term of this Agreement shall
be for a period of three (3) years commencing
on the date of the execution of the Agreement and ending on the third
anniversary thereof (the “Term”), unless sooner terminated as hereinafter
provided. The Term of this Agreement shall be automatically extended for
consecutive additional terms of three (3) years each unless either Seller or
Buyer gives the other party written notice of its intention not to extend the
term of this Agreement not less than [*] prior to the expiration of the then
current term.

     

    5. Requirement
Forecasts by Buyer.

     

    5.1
During the Term of this Agreement, Buyer shall submit to Seller written
non-binding
forecasts on a [*] basis of Buyer's good faith estimate of the types, numbers
and delivery dates of the Products which Buyer in good faith estimates it will
order from Seller during the subsequent [*] Rolling Forecasts”). Such forecast
may be submitted every [*] but must be submitted at least every [*]

     

    5.2
Simultaneously with the execution of this Agreement, Buyer shall deliver
to Seller
its first [*] Rolling Forecast.

     

    5.3 Buyer
shall have no obligation to order Products with respect to the amounts
of Products shown on any forecast. Notwithstanding the foregoing, in the event
that Seller has purchased custom inventory reasonably necessary to meet Buyer's
[*] Rolling Forecasts or has acquired other inventory for such purpose which may
not be returned by Seller and is not capable of being used by Seller in the
normal course of Seller's business operations, upon the expiration or any
earlier termination of this Agreement, Buyer shall purchase all of such custom
and other inventory as aforesaid from Seller and all finished Products being
held in inventory by Seller at an amount equal to [*] or as otherwise specified
in the attachments hereto. Notwithstanding the foregoing, Seller shall
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    purchase
in the aggregate any custom inventory in excess of [*] without the prior written
consent of the Chief Financial Officer of the Buyer. In the event any such
inventory held by Seller may be returned, but such return requires a restocking
or similar charge to be paid by Seller, Buyer shall reimburse Seller for such
charges within [*] of Seller's invoice therefor.

     

    6. Warranty; Seller Facilities and
Manufacturing.

     

    6.1
Seller warrants and represents to Buyer that the Products (including any
assemblies
or sub-assemblies) will conform to the specifications for the Products and
assemblies or sub-assemblies mutually agreed upon by Seller and Buyer in writing
for a period of [*] from the date of shipment. Seller agrees to use its
reasonable efforts to have its vendors provide warranties for products sold to
the Seller consistent with the terms of Buyer's then standard warranty. In the
event that the Products, or any assembly or sub-assembly included within
the Products, shall fail to conform to such written specifications during such
[*] period, Buyer shall return such non-conforming Products or
non-conforming assemblies or sub, assemblies to Seller, and Seller shall repair
such Products or assemblies or sub-assemblies and cause the same to conform with
the written
specifications mutually agreed upon by the parties for such
Products or assemblies or sub-assemblies. If Seller is unable to repair
such Products or assemblies or sub-assemblies, then Seller shall refund Buyer
the amount paid by Buyer for such Products. If Buyer cannot practically return
any such non-conforming Products or non­conforming assemblies or
sub-assemblies to Seller, and Buyer has satisfied Seller that such Products or
assemblies or sub-assemblies are indeed non-conforming and cannot be returned to
Seller for repair, Seller will reimburse Buyer for Buyer's costs of making any
necessary repairs on site; provided, however, that the amount of such
reimbursement shall in no event exceed the amount paid by Buyer for such
non-conforming Products. The foregoing obligations of Seller with respect to the
repair of such Products, or assemblies or sub-assemblies, or refund with respect
thereto, shall be the sole and exclusive remedy of Buyer with respect to any
failure of the Products to conform with the foregoing warranty. Notwithstanding
anything to the contrary contained herein, the foregoing warranty by Seller
shall not extend to or be applicable to any defects in the Products, or
assemblies or subassemblies, or any failure of the Products, or assemblies or
subassemblies, to meet the written specifications mutually agreed upon by the
parties as a result of any defects in Buyer owned inventory which is
incorporated into the Products. Further, notwithstanding the foregoing, if the
failure of any of Seller's products, or any assemblies or
sub-assemblies, to conform to the mutually agreed upon specifications is the
result of a defective or non-conforming component supplied by any third party
manufacturer, the foregoing warranty of Seller shall not be applicable thereto
and Seller shall have no obligation with respect to the repair or replacement of
such non-conforming Products or assemblies or sub­assemblies; and Buyer
covenants and agrees to look solely to such third party manufacturer in
accordance with the
terms and conditions of any warranty provided by such third party
manufacturer.

     

    
      
        6.2 Except as shall be expressly set forth
above, Seller does not make any express or implied warranties or
representations as to any of the Products to be manufactured
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    sold by
Seller pursuant to this Agreement, including, but not limited to, any implied
warranties of merchantability or fitness for a particular purpose.

     

    6.3 Buyer
shall be responsible for providing the specifications for the manufacture
of the Products and Buyer represents and warrants to Seller that Seller's
manufacture and sale of the Products based upon such specifications shall not
infringe any patent, copyright or proprietary right of any third party. If any
third party brings any claim or proceeding based upon a claim that the Products
breach any patent, copyright or other proprietary right of such third party,
then Buyer shall defend and hold Seller harmless from and against any and all
losses, damages, expenses and costs, including reasonable attorney's fees,
relating to or arising from any such claim.

     

    6.4 Notwithstanding
anything to the contrary contained herein, Seller's liability
hereunder for damages, regardless of the form of action, and whether in contract
or tort, with respect to any Purchase Order issued by Buyer to Seller, shall not
exceed the total amount paid to Seller for Products pursuant to the applicable
Purchase Order. In no event shall either party be liable to the other for
special, incidental, indirect or consequential damages even if such party has
been advised of the possibility of such damages. No action, regardless of the
form thereof, arising out of or relating to this Agreement or any Purchase Order
issued by Buyer to Seller pursuant hereto, may be brought by either party more
than [*] after the cause of action has accrued, except in an action for
non-payment may be brought within [*] of the date of the last
payment.

     

    6.5 In
order to minimize the risk of a failure of a Product in the field, Buyer
may, from
time to time, inspect the assembly of the Product at Seller's facility and will
be given notice of when the Product is expected to be completed. Seller will
make Seller's facilities available to Buyer to allow Buyer to conduct quality
assurance and final testing procedures to insure compliance of the Product with
all applicable specifications.

     

    6.6 The
Seller shall supply, at its own expense, all equipment required for the
purpose
of manufacturing the Products. The Seller shall maintain, at its own expense,
the facility, including, without limitation, the equipment, in a state of repair
and operating efficiency consistent with the requirements of the Specifications
for the Products, good manufacturing practices in a manner consistent with ISO
9002 or other guidelines typically required by Buyer's customers, and other
applicable legal requirements. Seller may not change any approved manufacturing
processes in any respect without the prior written consent of Buyer. Seller
shall be responsible for performing all validation testing of the facility and
for validating all production, cleaning and packaging processes employed in the
manufacturing process, in accordance with any procedures reasonably required by
Buyer and notified to Seller in writing.

     

    7.Confidentiality;
Improvements.

     

    7.1 The
parties hereto acknowledge that during the term of this Agreement and in the
course of their relationship pursuant to this Agreement, each party may come into
contact

    
      
        
           


        

        
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with
confidential information, trade secrets and proprietary information of the other
party, including, without limitation, information regarding the other party and
its business, strategies, technologies, pricing, customers, customer
requirements, marketing techniques, methods of business development, and other
financial and business related information (the foregoing being hereinafter
referred to collectively as “Confidential Information”). Each party receiving or
coming into possession of such Confidential Information shall be deemed a
“Receiving Party” and the party providing or furnishing such Confidential
Information shall be deemed a “Disclosing Party”. The Receiving Party shall hold
in confidence and shall not disclose to any third party or use for the Receiving
Party's own benefit or for the benefit of any other person, firm or entity, any
such Confidential Information except as may be necessary to perform the
Receiving Party's obligations pursuant to this Agreement or any Purchase Order
issued by Buyer to Seller hereunder. Each Receiving Party agrees to hold secret
and protect the Confidential Information of the Disclosing Party, to not make
copies of any written version thereof and do not discuss with, or disclose to,
any third party any of the Confidential Information without the prior written
consent of the Disclosing Party, except, and only to the extent, necessary for
the performance of any obligations pursuant to this Agreement or any
Purchase Order issued by Buyer to Seller hereunder. Upon termination of this
Agreement for any reason whatsoever, regardless of the form or manner of
termination, the Receiving Party shall return to the Disclosing Party all
documents, memoranda, notes, records, files, correspondence, drawings,
specifications and any and all other writings and materials of any type
regarding or containing any of the Confidential Information, and all copies
thereof. Notwithstanding anything to the contrary contained herein, the term
“Confidential Information” shall not include any information that is: (i)
already in the possession of the Receiving Party prior to its receipt from the
Disclosing Party, (ii) publicly known at the time of disclosure or becomes
publicly known through no wrongful act or failure of the Receiving Party, (iii)
subsequently disclosed to the Receiving Party on a non-confidential basis by a
third party not having a confidential relationship with the Disclosing Party and
which rightfully acquired such information, (iv) shown to be independently
developed by the Receiving Party without resort to or use of any Confidential
Information of the Disclosing Party, or (v) communicated to a third party by the
Receiving Party with the express written consent of the Disclosing Party.
Furthermore, the Receiving Party may disclose the Confidential Information to
the extent required by any subpoena, summons, order or other judicial process,
so long as the Receiving Party promptly advises the Disclosing Party of the need
to make such disclosure in order to allow the Disclosing Party to lawfully seek
to prevent such disclosure at the Disclosing Party's sole cost and
expense.

     

    7.2. All
ideas, discoveries, drawings or inventions, know-how, processing and formulation
technology, whether or not patentable, (i) made jointly by Buyer personnel and
Seller personnel directly relating to the Products (the “Jointly Developed
Improvements”), or (ii) made solely by Buyer personnel directly
relating to the Products and/or the manufacturing of the Products are
owned by Buyer and shall become
Buyer Confidential Information.
All ideas;-discoveries, drawings or inventions, know-how, processing and
formulation technology, whether or not patentable, (i) made solely by Seller
personnel directly relating to the Products and/or the manufacturing of the
Products or (ii) made jointly by Buyer personnel and Seller personnel directly
relating to the
manufacturing of the
Products (but
not including the Products themselves) (items i) and (ii) together, the “Seller
Improvements”) are owned by Seller and shall become

    
      
        
           


        

        
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    Seller
Confidential Information. Seller agrees to grant Buyer an irrevocable, global,
exclusive, royalty-free license to practice and use any and all Seller
Improvements. Such license to Buyer includes the right to grant sublicenses to
practice and use any and all Seller Improvements. Seller shall promptly inform
Buyer of any anticipated Seller Improvements.

     

    7.3. In
the event of any breach by a party (the “Breaching Party”) of the provisions of
Section 7.1, the Breaching Party shall pay to the non-breaching party (the
“Non-Breaching Party”) as liquidated damages, and not as a penalty, all amounts
received by the Breaching Party as a result of its disclosure of the
Confidential Information, including, without limitation, all license fees or
other remuneration of any type derived from such breach, directly or indirectly,
and all such amounts received by any person or entity to whom disclosure of
Information in violation of this Agreement is made. For the purposes of the
foregoing, any revenues arising from products made by: (i) Seller which are the
same or substantially the same as the Products, or (ii) a third party which are
the same or substantially the same as the Products and with respect to which
such third party is obligated to pay to Seller any fees or other
remuneration of any type, directly or indirectly, shall, in either case, be
presumed to have resulted from such breach.

     

    7.4
Notwithstanding the foregoing, each party agrees that the other shall have
the right
to seek injunctive relief in the event of any breach of the provisions of this
Section 7.

     

    8. Indemnification.

     

    8.1
Seller hereby agrees to indemnify and hold harmless Buyer and Buyer's
officers,
directors, shareholders, employees, servants and agents from and against any and
all costs, liabilities and expenses of any nature whatsoever, including, but not
limited to reasonable attorney's fees, with respect to any claims of any nature,
including any claims for bodily injury, death or property damage, to the extent
caused by the [*] of, or breach of this Agreement by, Seller. In respect of any
of the foregoing, Seller shall indemnify all of the foregoing indemnities from
and against any and all costs, expenses (including reasonable attorney's fees)
and liabilities incurred in connection with any such claim, action or proceeding
brought thereon. Seller will maintain all necessary permits, licenses and
certifications necessary for the manufacturing of the Products. Seller will
comply with laws and regulations relating to environmental matters, wages and
hours, equal employment opportunity, tax withholding on payrolls, working and
sanitary conditions and workers' compensation, in each case, as well as all
other applicable laws, regulations, ordinances and other rules of the federal,
state or local authorities, with respect to maintenance and operation of
Seller's manufacturing facility, except where not material. Notwithstanding
anything different into this Agreement, Seller will be exclusively responsible
for costs and/or capital investments required to comply with laws and
regulations affecting, without limitation, health, safety or environmental and
any such costs or capital investments necessary to comply with laws and
regulations related to manufacturing.

     

    8.2 Buyer
hereby agrees to indemnify and hold harmless Seller and Seller's officers,
directors, shareholders, employees, servants and agents from and against any and
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    costs,
liabilities and expenses of any nature whatsoever, including, but not limited to
reasonable attorney's fees, with respect to any claims of any nature, including
any claims for bodily injury, death or property damage, to the extent caused by
the [*] of, or breach of this Agreement by, Buyer. In respect of the foregoing,
Buyer shall indemnify all of the foregoing indemnities from and against any and
all costs, expenses (including reasonable attorney's fees) and liabilities
incurred in connection with any such claim, action or proceeding brought
thereon.

     

    8.3 Notice
of Claims; Information. Each party agrees to give the other party
prompt
written notice of any claims made for which the other party might be liable
under Sections 8.1 or 8.2, as the case may be. The indemnifying party shall have
the opportunity to defend, negotiate, and settle such claims; provided,
however,
that the indemnified party shall be entitled to participate in the defense of
such matter and to employ at its expense counsel to assist therein.
Notwithstanding the foregoing, Seller shall not agree to settle any claim on
such terms or conditions as would impair Buyer's ability or right to market and
sell the Product. The party seeking indemnification shall provide the
indemnifying party with such information and assistance as the indemnifying
party may reasonably request, at the expense of the indemnifying
party.

     

    8.4 Settlement
of Claims. Neither party shall be responsible or bound by any
settlement
of any claim or suit made without its prior written consent; provided, however, that the
indemnified party shall not unreasonably withhold or delay such
consent.

     

    8.5 Insurance.
Seller will maintain all risks property and extended coverage insurance
to cover the value of all of Seller's equipment, inventory and buildings
(including raw materials, packaging materials work-in-progress and finished
Products), to cover replacement destruction by fire, vandalism, or perils
otherwise capable of rendering unusable such inventory or equipment for the
purpose intended by this Agreement, and to cover the risk of business
interruption, such risk to be exclusively borne by Seller. Seller shall
maintain, at its sole cost and expense, with companies acceptable to Buyer,
Commercial General Liability and Automobile Liability Insurance with limits of
liability not less than $1,000,000.00 per occurrence and including liability
coverage for bodily injury or property damage (1) assumed in a contract or
agreement pertaining to Seller's business and (2) arising out of Seller's
product, Services or work. Seller's insurance shall be primary, and any
applicable insurance maintained by Buyer shall be excess and non-contributing.
Seller shall also maintain statutory Workers' Compensation coverage, including a
Broad Form All States Endorsement in the amount required by law, and Employers'
Liability Insurance in the amount of $1,000,000.00 per occurrence. Such
insurance shall include an insurer's waiver of subrogation in favor of Buyer.
Seller shall provide Buyer with properly executed Certificate(s) of Insurance
prior to commencement of any operation hereunder and shall notify Buyer, no less
than 30 days in advance, of any reduction or cancellation of the above
coverages.

     

    9. Independent
Contractor Status. Nothing set forth in this Agreement shall be
construed
so as to constitute Seller and Buyer as joint ventures, partners or affiliates,
or as to make
either party liable for the obligations or debts of the other. Seller is and
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    for all
purposes an independent contractor. Neither party shall have any authority to
bind the other party by any act, omission, representation, agreement or
otherwise. All personnel used by Seller for the performance of services pursuant
to this Agreement shall remain under the exclusive direction and control of
Seller and shall in no manner be deemed employees, servants or agents of Buyer,
and Seller shall be solely responsible for the payment of all wages, employment
taxes and other related expenses with respect to all of its employees, servants,
agents and consultants who may perform services on behalf of the Seller with
respect to the manufacture and sale of Products by Seller pursuant to this
Agreement.

     

    Seller
represents and agrees that it is in compliance with Executive Order 11246 and
implementing Equal Employment Opportunity regulations, the Vietnam Era Veterans'
Readjustment Assistance Act as amended by the Veterans Employment Opportunities
Act of 1998 (to include: Vietnam-era Veterans and other Veterans who served on
active duty during a war or campaign or expedition for which a campaign badge
has been authorized), and the Immigration Act of 1987, unless exempted or
inapplicable. Seller shall indemnify and hold Buyer harmless from any penalties
assessed against Buyer because of its violations of said laws due to its
relationship with Seller under this Agreement.

     

    10. Termination.

     

    10.1 Either
party shall have the right to terminate this Agreement upon written notice to
the other party if the other party breaches or is in default of any material
obligation hereunder and the defaulting party fails to cure such default within
[*] days after receipt of written notice of such default or such longer period
of time as shall be reasonable necessary to cure such default, provided that the
defaulting party commences to cure such default within such [*] day period and
thereafter diligently prosecutes the same. Notwithstanding anything to the
contrary contained herein, in the event that any amounts due and owing to Seller
hereunder shall be outstanding for more than [*] days from the date of Seller's
invoice, Seller shall, in addition to, and not in lieu of, the foregoing rights
have the right to immediately suspend the manufacture and sale of Products to
Buyer hereunder until such time as all amounts then due and owing to Seller have
been paid in full by Buyer.

     

    10.2 Either
party may regard the other party in default of this Agreement and may terminate
this Agreement by written notice to the other in the event such other party
becomes insolvent, make a general assignment for the benefit of creditors, files
a voluntary petition for bankruptcy, suffers or permits and appointment of a
receiver for its business or assets, becomes subject to any proceeding under any
bankruptcy or insolvency law, whether domestic or foreign, or fails to pay its
obligations when they become due.

     

    10.3 Notwithstanding
anything to the contrary contained herein, in the event that either party shall
sell or transfer its business to a third party through a merger or consolidation
or through a sale of all or substantially all of its assets (the “Transferring
Party”), either such third party, as successor to the Transferring Party
hereunder in accordance with the provisions of Section 11.1 below, or the
non-Transferring Party may terminate this Agreement

    
      
         


      

      
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    effective
no earlier that [*] days after the date of the closing of any such transaction
by giving written notice to the non-Transferring Party within [*] days after the
date of the closing of such transaction. Said termination shall in no event be
effective earlier than [*] days after the date of the closing of the transaction
pursuant to which the Transferring Party disposed of its business to such third
party. Notwithstanding the foregoing, such third party, as successor to the
Transferring Party hereunder, shall remain bound to perform all of the
Transferring Party's obligations as set forth herein. Notwithstanding the
foregoing, Buyer, at its option, may terminate its obligation to continue to use
the Seller for such [*] if, in its discretion, it elects not to consent to the
assignment of this Agreement by Seller.

     

    11. Miscellaneous.

     

    11.1 This
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and permitted assigns. . Without the prior
written consent of the other party hereto, which consent shall not be
unreasonably withheld or delayed, neither party shall sell, transfer, assign,
delegate, pledge, or otherwise dispose of, whether voluntarily, involuntarily,
by operation of law, by merger, sale of all or substantially all of its stock or
assets, or otherwise, this Agreement or any of its rights or duties hereunder;
provided,
however, that Buyer
may, without such consent, assign this Agreement and its rights and obligations
hereunder to an affiliate, to the purchaser of all or substantially all of its
assets related to the
Products or its business, or to its successor entity or acquiror in the
event of a merger, consolidation or change in control of Buyer. Any attempted
assignment or delegation in violation of the preceding sentence shall be void.
All validly assigned and delegated rights and obligations of the parties
hereunder shall be binding upon and inure to the benefit of and be enforceable
by and against the successors and permitted assigns of Seller or Buyer, as the
case may be. In the event either party seeks and obtains the other party's
consent to assign or delegate its rights or obligations to another party, the
assignee or transferee shall assume all obligations of its assignor or
transferor under this Agreement and the performance of such obligations must be
guaranteed in writing by the assignor or transferor.

     

    11.2 Each
party shall be excused for the period of any delay and shall not be deemed in
default with respect to the performance of any of the terms, covenants, and
conditions of this Agreement, other than those requiring the payment of money,
and the other party shall not have the right to terminate this Agreement due to
any delay in such party's performance under this Agreement, when such party is
prevented from performing such obligations (other than the payment of money) by
a cause or causes beyond such party's reasonable control, which shall include,
without limitation, all labor disputes, fire or other casualty, inability to
obtain any material or services, acts of God, or any other cause not within the
reasonable control of such party. A party affected by an event of
force majeure shall use its best efforts to remedy, remove or mitigate
such event and the effects thereof with all reasonable dispatch; provided, however,
that this Section 11.2 shall not require that the affected party settle a strike
or labor controversy by acceding to the demands of the opposing party or
parties. The party affected by any event of force
majeure shall promptly notify the other party, explaining the nature,
details and expected duration thereof. Such party shall also notify the other
party from time to time as to when the

    
      
         


      

      
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    affected
party reasonably expects to resume performance in whole or in part of its
obligations hereunder, and notify the other party of the cessation of any such
event. If a party anticipates that an event
of force
majeure
may occur, such party
shall notify the other party of the nature, details and expected
duration thereof.

     

    11.3 For
purposes of this Agreement, notices and communications provided for and
permitted to be given hereunder shall be deemed duly given if sent by (i) telex,
telecopy of facsimile transmission, (ii) reputable overnight courier service or
(iii) mailed by the US Postal Service via certified mail, return receipt
requested, postage prepaid, to the parties at their addresses set forth above or
at such other address as either party may designate in writing as its address
from time to time in accordance with the foregoing provisions.

     

    11.4 The
failure of either party to insist strict adherence to any term of this Agreement
on any occasion shall not be construed as a waiver of or deprive that party of
the right thereafter to insist upon strict adherence to that term or any other
term of this Agreement. Any waiver by a party hereto must be in writing and
signed by a duly authorized representative of the party.

     

    11.5 This
Agreement and the legal relations between the parties hereto pursuant to this
Agreement and the Purchase Order issued by Buyer to Seller hereunder shall be
governed by and construed in accordance with the internal laws of the
Commonwealth of Massachusetts, without giving effect to the conflicts of law
principals thereof. Except as otherwise specifically provided herein, any
dispute or claim arising out of or in connection with this Agreement will be
finally settled by binding arbitration in accordance with the then current rules
and procedures of the American Arbitration Association by one arbitrator
appointed in accordance with such rules and procedures. Such arbitration will be
held in Boston, Massachusetts. The arbitrator will apply the law of the
Commonwealth of Massachusetts to the merits of any dispute or claim, without
reference to rules of conflicts of laws. Judgment on any award rendered by the
arbitrator may be entered in any court having jurisdiction thereof. The parties
agree that, any provision of applicable law notwithstanding, they will not
request, and the arbitrator will have no authority to award, punitive or
exemplary damages against any party.

     

    11.6 The
various headings and subheadings to this Agreement are inserted for convenience
only and shall affect the meaning or
interpretation of this Agreement or any provision hereof.

     

    11.7 Each
section and subsection of this Agreement constitutes a separate and distinct
provision hereof. It is the intent of the parties hereto that the provisions of
this Agreement be enforced to the fullest extent permissible under the laws and
public policies applicable in each jurisdiction in which enforcement is sought.
Accordingly, if any provision of this Agreement
shall be adjudicated to be invalid, ineffective or unenforceable, the
remaining provisions shall not be affected thereby. The invalid, ineffective or
unenforceable provisions shall, without further action by the parties, be
automatically amended to affect the original purpose and intent of the invalid,
ineffective or unenforceable provisions; provided, however,

    
      
         


      

      
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    that such
amendment shall apply only with respect to the operation of such provision in
the particular jurisdiction with respect to which such adjudication shall be
made.

     

    11.8 Nothing
expressed or implied in this Agreement is intended, or shall be construed, to
confer upon or give any person or entity other than the parties hereto, any
rights or remedies under, or by reason of, this Agreement.

     

    11.9 This
Agreement constitutes the complete and exclusive statement of the Agreement
between and among the parties with respect to the subject matter hereof and
supersedes all prior or contemporaneous negotiations, understandings and
proposals and other agreements, whether oral or written, express or implied, and
all other communications between and among the parties related to the subject
matter of this Agreement. No addition to or modification of any of the foregoing
provisions shall be binding upon any party unless made in writing expressly
setting forth the provisions so being added or modified and signed by all
parties to this Agreement.

     

    11.10
This Agreement may be executed in two or more counterparts, each of which shall
be deemed an original, but all of which together shall constitute one and the
same instrument, and shall not be conditioned to the effectiveness of this
Agreement that each party shall have executed the same counterpart.

     

    11.11
Each party shall execute such other instruments, give such further assurances
and perform such acts that are or may become necessary or appropriate to
effectuate and carry out the provisions of this Agreement, including, but not
limited to, any and all documents or instruments relating to patent or patent
applications.

     

    11.12 The
rights and obligations of the parties as contained in Sections 1.1, 2.3, 6, 7,
8, 9, and 11.5 and shall survive the termination or expiration of this
Agreement. In addition, any right or legal obligation of a party contained in
any Exhibit, amendment, Purchase Order or statement of work, which by its
express term or nature extends for a period beyond the term of the Agreement,
shall also survive the termination or expiration of the Agreement for such
extended period.

    
      
         


      

      
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    Executed
as a scaled instrument as of the day and
year first above written.

     

    
      	 	
              SELLER

              DAKOTA
      SYSTEMS, INC.

               

               

               

               

              By:

              /s/
      John Thomas

              John
      Thomas, President

               

               

              BUYER:

              NEXX
      SYSTEMS, INC

              /s/
      Richard Post

              By: Richard
      Post

              Title:  President

            


    

     

     

    
      
         


      

      
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    SCHEDULE
A

    LIST OF
PRODUCTS

     

    A. The
following is a list of NEXX Systems products to be manufactured exclusively by
Dakota
Systems:

     

    1. Nimbus
product line: including Models 250/260, 300/310, 304/314, 354/364, and other
models which may be developed to meet customer requirements.

     

    2. Cirrus
product line: including Models 80, 150, 300, 350 (Series V), and other models
which may be developed to meet customer requirements.

     

    B.
Following is the pricing structure for these products:

     

    Direct
material and direct labor costs incurred by the Seller and used the Products
will be quoted and charged to the Buyer as follows, unless otherwise agreed to
in advance, and documented in a P.O. which is accepted by the Seller in
writing:

     

    1. Materials:

     

    [*]

     

    2. Labor:

     

    [*]

     

    3. Invoicing:

     

    [*]

     

     

    
 

    
      
        
        

      

      
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