EXHIBIT 4.6
REGISTRATION RIGHTS AGREEMENT
BY AND AMONG
THERMA-WAVE, INC.
AND
THE HOLDERS NAMED HEREIN
DATED AS OF SEPTEMBER 15, 2003
TABLE OF CONTENTS
PAGE
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Section 1. Shelf Registration.............................. 1
Section 2. Registration Procedures......................... 2
Section 3. Registration Expenses........................... 6
Section 4. Indemnification................................. 6
Section 5. Miscellaneous................................... 9
Schedules and Annexes
Schedule of Holders
Form of Selling Securityholder Notice and Questionnaire
i
THERMA-WAVE, INC.
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT is made as of September 15, 2003, by
and among Therma-Wave, Inc., a Delaware corporation (the "Company"), and the
holders of the Restricted Securities (as defined below) listed on the Schedule
of Holders attached hereto (collectively referred to herein as the "Holders" and
individually as a "Holder"). The Company and the Holders are sometimes
collectively referred to herein as the "Parties" and individually as a "Party."
The parties to this Agreement are parties to a Common Stock Purchase
Agreement dated as of September 12, 2003 (the "Purchase Agreement"). In order to
induce the Holders to enter into the Purchase Agreement, the Company has agreed
to provide the registration rights set forth in this Agreement. The execution
and delivery of this Agreement is a condition to the Closing under the Purchase
Agreement. Capitalized terms used but not defined herein shall have the meanings
ascribed to them in the Purchase Agreement.
NOW, THEREFORE, in consideration of the mutual covenants contained
herein and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the Parties to this Agreement hereby agree as
follows:
Section 1. Shelf Registration.
(a) The Company shall, at its cost, prepare and, as promptly as
practicable (but in no event more than 45 days after the Closing Date) file with
the Securities and Exchange Commission (the "Commission") and thereafter use its
commercially reasonable efforts to cause to be declared effective within 150
days of its filing a registration statement on an appropriate form under the
Securities Act (the "Shelf Registration Statement") relating to the offer and
sale of the Restricted Securities by the Holders thereof from time to time in
accordance with the methods of distribution set forth in the Shelf Registration
Statement and Rule 415 under the Securities Act of 1933, as amended (the
"Securities Act") (hereinafter, the "Shelf Registration").
(b) Except as set forth below in Section 1(d) below, the Company
shall use its commercially reasonable efforts to keep the Shelf Registration
Statement continuously effective in order to permit the Prospectus included
therein (the "Prospectus") to be lawfully delivered by the Holders of the
Restricted Securities, for a period of two years (or for such longer period if
extended pursuant to Section 2(h) below) from the first date of the original
issuance of the Restricted Securities or such shorter period that will terminate
when all the Restricted Securities covered by the Shelf Registration Statement
(i) have been sold pursuant thereto, or have otherwise been disposed of in
accordance with the Securities Act, (ii) are eligible to be sold to the public
pursuant to Rule 144(k) under the Securities Act or any successor rule thereof,
without limitations under clauses (c), (e), (f) and (h) of Rule 144 under the
Securities Act or any successor provisions thereof, assuming for this purpose
that the Holders thereof are not affiliates of the Company (in any such case,
such period being called the "Shelf Registration Period"). The Company shall be
deemed not to have used its commercially reasonable efforts to keep the Shelf
Registration Statement effective during the requisite period if it voluntarily
takes any action that would result in Holders of the Restricted Securities
covered thereby not being able to
offer and sell such Restricted Securities during that period, unless such action
is (i) required by applicable law, (ii) pursuant to Section 1(d) below or (iii)
taken by the Company in good faith upon the occurrence of any event contemplated
by Section 2(b)(v) below, and the Company thereafter complies with the
requirements of Section 2(h).
(c) Notwithstanding any other provisions of this Agreement to the
contrary, the Company shall cause the Shelf Registration Statement and the
Prospectus and any amendment or supplement thereto, as of the effective date of
the Shelf Registration Statement, amendment or supplement, (i) to comply in all
material respects with the applicable requirements of the Securities Act and the
rules and regulations of the Commission and (ii) not to contain any untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary in order to make the statements therein, in light of
the circumstances under which they were made, not misleading.
(d) The Parties hereby acknowledge that the Company is currently
only eligible to file a "long-form" registration statement on Form S-1.
Accordingly, the Company will likely suspend the effectiveness and the use of
any Shelf Registration Statement during those periods of time in which a
post-effective amendment to the Shelf Registration Statement needs to be filed
or has been filed following the date hereof in order to update the Shelf
Registration Statement for the information contained in any filing with the
Commission pursuant to the Securities Exchange Act of 1934, as amended (the
"Exchange Act").
(e) A payment (each, a "Penalty Payment") will be paid by the
Company if the Shelf Registration Statement has not been declared effective by
the Commission on or prior to the 150th day after the Closing Date. Such Penalty
Payment shall be made on the first business day following such 150th day to each
record holder of Restricted Securities in an amount equal to $.022 per share of
Restricted Securities. If the Shelf Registration Statement has not been declared
effective by the Commission on or prior to the 180th day, 210th day, 240th day,
270th day, 300th day, 330th day, or 360th day following the Closing Date, then
an additional Penalty Payment shall be paid by the Company on the first business
day following any such date to each record holder of Restricted Securities in an
amount equal to $.022 per share of Restricted Securities. Each Penalty Payment,
if any, shall be payable, at the Company's option, in cash, Common Stock or a
combination of the foregoing. If any portion of such Penalty Payment shall be
payable in shares of Common Stock, such payment shall be calculated based on the
average of the closing sales price of the Common Stock on the Nasdaq National
Market (or any national securities exchange) over the ten trading days
immediately preceding the date of such payment. The form of payment made
(whether in cash, shares of Common Stock or a combination of the foregoing)
shall be the same for each record holder of Restricted Securities.
Section 2. Registration Procedures. In connection with the Shelf
Registration contemplated by Section 1 hereof, the following provisions shall
apply:
(a) The Company shall (i) furnish to each Holder, prior to the
filing thereof with the Commission, a copy of the Shelf Registration Statement
and each amendment thereof and each supplement, if any, to the Prospectus
included therein and, in the event that such Holder is participating in the
Shelf Registration Statement and (ii) use its reasonable best efforts to include
the names of the Holders who propose to sell Restricted Securities pursuant to
the Shelf
2
Registration Statement as selling securityholders; provided that the Holders
have complied with Section 2(k).
(b) The Company shall give written notice to the Holders of the
Restricted Securities included within the coverage of the Shelf Registration
Statement (which notice pursuant to clauses (ii)-(v) hereof shall be accompanied
by an instruction to suspend the use of the Prospectus until the requisite
changes have been made):
(i) when the Shelf Registration Statement or any
amendment thereto has been filed with the Commission and when the Shelf
Registration Statement or any post-effective amendment thereto has
become effective;
(ii) of any request by the Commission for amendments or
supplements to the Shelf Registration Statement or the Prospectus or
for additional information;
(iii) of the issuance by the Commission of any stop order
suspending the effectiveness of the Shelf Registration Statement or the
initiation of any proceedings for that purpose;
(iv) of the receipt by the Company or its legal counsel of
any notification with respect to the suspension of the qualification of
the Restricted Securities for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose; and
(v) of the happening of any event that requires the
Company to make changes in the Shelf Registration Statement or the
Prospectus in order that the Shelf Registration Statement or the
Prospectus does not contain an untrue statement of a material fact nor
omit to state a material fact required to be stated therein or
necessary to make the statements therein (in the case of the
Prospectus, in light of the circumstances under which they were made)
not misleading, which written notice need not provide any detail as to
the nature of such event.
(c) The Company shall make every reasonable effort to obtain the
withdrawal at the earliest possible time, of any order suspending the
effectiveness of the Shelf Registration Statement.
(d) The Company shall furnish to each Holder of Restricted
Securities included within the coverage of the Shelf Registration, without
charge, at least one copy of the Shelf Registration Statement and any
post-effective amendment thereto, including financial statements and schedules,
and, if the Holder so requests in writing, all exhibits thereto (including
those, if any, incorporated by reference).
(e) The Company shall, during the Shelf Registration Period,
deliver to each Holder of Restricted Securities included within the coverage of
the Shelf Registration, without charge, as many copies of the Prospectus
(including each preliminary Prospectus) included in the Shelf Registration
Statement and any amendment or supplement thereto as such person may reasonably
request. The Company consents, subject to the provisions of this Agreement, to
the use of the Prospectus or any amendment or supplement thereto by each of the
selling Holders of the Restricted Securities in connection with the offering and
sale of the Restricted Securities
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covered by the Prospectus, or any amendment or supplement thereto, included in
the Shelf Registration Statement.
(f) Prior to any public offering of the Restricted Securities
pursuant to the Shelf Registration Statement, the Company shall register or
qualify or cooperate with the Holders of the Restricted Securities included
therein and their respective counsel in connection with the registration or
qualification of the Restricted Securities for offer and sale under the
securities or "blue sky" laws of such states of the United States as any Holder
of the Restricted Securities reasonably requests in writing and do any and all
other acts or things necessary or advisable to enable the offer and sale in such
jurisdictions of the Restricted Securities covered by such Registration
Statement; provided, however, that the Company shall not be required to (i)
qualify generally to do business in any jurisdiction where it is not then so
qualified or (ii) take any action which would subject it to general service of
process or to taxation in any jurisdiction where it is not then so subject.
(g) The Company shall cooperate with the Holders of the Restricted
Securities to facilitate the timely preparation and delivery of certificates
representing the Restricted Securities to be sold pursuant to any Registration
Statement free of any restrictive legends and in such denominations and
registered in such names as the Holders may request a reasonable period of time
prior to sales of the Restricted Securities pursuant to the Shelf Registration
Statement.
(h) Upon the occurrence of any event contemplated by paragraphs
(ii) through (v) of Section 2(b) above during the period for which the Company
is required to maintain an effective Shelf Registration Statement, the Company
shall as required hereby prepare and file a post-effective amendment to the
Shelf Registration Statement or an amendment or supplement to the Prospectus and
any other required document so that, as thereafter delivered to Holders or
purchasers of the Restricted Securities included within the coverage of such
Shelf Registration Statement, the Prospectus will not contain an untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading; provided, however,
that the Company may delay filing and distributing any such supplement or
amendment (and continue the suspension of the use of the Prospectus) if the
Company determines in good faith that such supplement or amendment would, in the
reasonable judgment of the Company, (i) interfere with or affect the negotiation
or completion of a transaction that is being contemplated by the Company or (ii)
involve initial or continuing disclosure obligations that are not in the best
interests of the Company's stockholders at such time; provided, further, that
neither such delay nor such suspension shall extend for a period of more than
150 consecutive days or an aggregate of 270 days in any twelve-month period. If
the Company notifies the Holders in accordance with paragraphs (ii) through (v)
of Section 2(b) above to suspend the use of the Prospectus until the requisite
changes to the Prospectus have been made, then the Holders shall suspend use of
such Prospectus, and the period of effectiveness of the Shelf Registration
Statement provided for in Section 1(b) above shall be extended by the number of
days from and including the date of the giving of such notice to and including
the date when the Holders shall have received such amended or supplemented
Prospectus pursuant to this Section 2(h).
(i) The Company will comply with all rules and regulations of the
Commission to the extent and so long as they are applicable to the Shelf
Registration and will make generally
4
available to its security holders (or otherwise provide in accordance with
Section 11(a) of the Securities Act) an earnings statement satisfying the
provisions of Section 11(a) of the Securities Act, no later than 45 days after
the end of a 12-month period (or 90 days, if such period is a fiscal year)
beginning with the first month of the Company's first fiscal quarter commencing
after the effective date of the Shelf Registration Statement, which statement
shall cover such 12-month period.
(j) Each Holder agrees, by acquisition of the Restricted
Securities, that no Holder shall be entitled to sell any such Restricted
Securities pursuant to the Shelf Registration Statement or to receive a
prospectus relating thereto, unless such Holder has furnished the Company with a
Notice and Questionnaire as required pursuant to and in accordance with Section
2(k) hereof and the information set forth in the next sentence. Each Holder
agrees promptly to furnish the Company all information required to be disclosed
in order to make the information previously furnished to the Company by such
Holder not misleading and any other information regarding such Holder and the
distribution of such Restricted Securities as the Company may from time to time
reasonably request.
(k) Each Holder agrees that if such Holder wishes to sell such
Holder's Restricted Securities pursuant to the Shelf Registration Statement and
related Prospectus, it will do so in accordance with this Section 2(k). Each
Holder wishing to sell Securities pursuant to a Shelf Registration Statement and
related prospectus agrees to deliver a properly, completely and signed Notice
and Questionnaire to the Company concurrently with the execution of this
Agreement. From and after the date the Shelf Registration Statement is declared
effective, the Company shall, as promptly as is practicable after the date a
revised Notice and Questionnaire is delivered, and in any event within 30
business days after such date, (i) if required by law, file with the Commission
a post-effective amendment to the Registration Statement or prepare and, if
required by applicable law, file a supplement to the related prospectus or a
supplement or amendment to any document incorporated therein by reference or
file any other required document so that the Holder delivering such revised
Notice and Questionnaire is named a selling securityholder in the Registration
Statement and the related Prospectus in such a manner as to permit such Holder
to deliver such Prospectus to purchasers of the Restricted Securities in
accordance with applicable law and, if the Company shall file a post-effective
amendment to the Registration Statement, use all commercially reasonable efforts
to cause such post-effective amendment to be declared effective under the
Securities Act as promptly as practical after the date such post-effective
amendment is required by this clause to be filed; (ii) provide such Holder
copies of any documents filed pursuant to this Section; and (iii) notify such
Holder as promptly as practicable after the effectiveness under the Securities
Act of any post-effective amendment filed pursuant to this Section; provided,
that if such revised Notice and Questionnaire is delivered during a period in
which the use of such Prospectus is suspended pursuant to Section 2(c) hereof,
the Company shall so inform the Holder delivering such Notice and Questionnaire
and shall take the actions set forth in clauses (i), (ii) and (iii) above upon
expiration of such suspension period. Notwithstanding anything contained herein
to the contrary, the Company shall be under no obligation to name any Holder
that has not supplied the requisite information as required by and in accordance
with the procedures and time periods set forth in this section as a selling
securityholder in the Registration Statement and related prospectus and any
amendment or supplement thereto; provided, however, that any Holder that has
subsequently supplied the requisite information required by this Section
pursuant to the
5
provisions of this Section (whether or not such Holder has supplied the
requisite information required by this Section at the time the Registration
Statement was declared effective) shall be named as a selling securityholder in
the Registration Statement or related prospectus in accordance with the
requirements of this Section. Notwithstanding anything contained herein to the
contrary, the Company shall not be required to file more than one post-effective
amendment or supplement for the purpose of naming selling security holders in
any 30 business-day period.
(l) The Company shall use its commercially reasonable efforts to
take all other steps necessary to effect the registration of the Restricted
Securities covered by a Registration Statement contemplated hereby.
Section 3. Registration Expenses.
(a) The Company shall bear all fees and expenses incurred in
connection with the performance of its obligations under Sections 1 and 2
hereof, whether or not a Shelf Registration Statement is filed or becomes
effective and shall bear or reimburse the Holders of the Restricted Securities
covered thereby for reasonable fees and disbursements of not more than one
counsel, designated by the Holders of a majority in principal amount of the
Restricted Securities covered by the Shelf Registration Statement to act as
counsel for the Holders in connection therewith.
(b) Except as provided in Section 3(a) hereunder, each Holder
shall pay all expenses of its counsel, underwriting discounts and commissions,
and transfer taxes, if any, relating to the sale or disposition of such Holder's
Restricted Securities pursuant to a Shelf Registration Statement.
Section 4. Indemnification.
(a) The Company agrees to indemnify and hold harmless each Holder
and each person, if any, who controls such Holder within the meaning of the
Securities Act or the Exchange Act (each Holder, and such controlling persons
are referred to collectively as the "Indemnified Parties") from and against any
losses, claims, damages or liabilities, joint or several, or any actions in
respect thereof (including, but not limited to, any losses, claims, damages,
liabilities or actions relating to purchases and sales of the Restricted
Securities) to which each Indemnified Party may become subject under the
Securities Act, the Exchange Act or otherwise, insofar as such losses, claims,
damages, liabilities or actions arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact contained in the Shelf
Registration Statement or Prospectus including any document incorporated by
reference therein, or in any amendment or supplement thereto or in any
preliminary prospectus relating to the Shelf Registration, or arise out of, or
are based upon, the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein
not misleading, and shall reimburse, as incurred, the Indemnified Parties for
any legal or other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, liability or action in
respect thereof; provided, however, that (i) the Company shall not be liable in
any such case to the extent that such loss, claim, damage or liability arises
out of or is based upon any untrue statement or alleged untrue statement or
omission or alleged omission made in the Shelf Registration Statement or
Prospectus or in any amendment or supplement thereto or in any preliminary
prospectus relating to the Shelf
6
Registration in reliance upon and in conformity with written information
pertaining to such Holder and furnished to the Company by or on behalf of such
Holder specifically for inclusion therein and (ii) with respect to any untrue
statement or omission or alleged untrue statement or omission made in any
preliminary prospectus relating to the Shelf Registration Statement, the
indemnity agreement contained in this subsection (a) shall not inure to the
benefit of any Holder from whom the person asserting any such losses, claims,
damages or liabilities purchased the Restricted Securities concerned, to the
extent that a prospectus relating to such Restricted Securities was required to
be delivered by such Holder under the Securities Act in connection with such
purchase and any such loss, claim, damage or liability of such Holder results
from the fact that there was not sent or given to such person, at or prior to
the written confirmation of the sale of such Restricted Securities to such
person, a copy of the final Prospectus if the Company had previously furnished
copies thereof to such Holder; provided further, however, that this indemnity
agreement will be in addition to any liability which the Company may otherwise
have to such Indemnified Party. The Company shall also indemnify underwriters,
their officers and directors and each person who controls such underwriters
within the meaning of the Securities Act or the Exchange Act to the same extent
as provided above with respect to the indemnification of the Holders of the
Restricted Securities if requested by such Holders.
(b) Each Holder, severally and not jointly, will indemnify and
hold harmless the Company, its officers and directors and each person, if any,
who controls the Company within the meaning of the Securities Act or the
Exchange Act from and against any losses, claims, damages or liabilities or any
actions in respect thereof, to which the Company or any such controlling person
may become subject under the Securities Act, the Exchange Act or otherwise,
insofar as such losses, claims, damages, liabilities or actions arise out of or
are based upon any untrue statement or alleged untrue statement of a material
fact contained in the Shelf Registration Statement or Prospectus or in any
amendment or supplement thereto or in any preliminary prospectus relating to the
Shelf Registration, or arise out of or are based upon the omission or alleged
omission to state therein a material fact necessary to make the statements
therein not misleading, but in each case only to the extent that the untrue
statement or omission or alleged untrue statement or omission was made in
reliance upon and in conformity with written information pertaining to such
Holder and furnished to the Company by or on behalf of such Holder specifically
for inclusion therein; and, subject to the limitation set forth immediately
preceding this clause, shall reimburse, as incurred, the Company for any legal
or other expenses reasonably incurred by the Company or any such controlling
person in connection with investigating or defending any loss, claim, damage,
liability or action in respect thereof. This indemnity agreement will be in
addition to any liability which such Holder may otherwise have to the Company or
any of its controlling persons.
(c) Promptly after receipt by an indemnified party under this
Section 4 of notice of the commencement of any action or proceeding (including a
governmental investigation), such indemnified party will, if a claim in respect
thereof is to be made against the indemnifying party under this Section 4,
notify the indemnifying party of the commencement thereof; but the failure to
notify the indemnifying party shall not relieve it from any liability that it
may have under subsection (a) or (b) above except to the extent that it has been
materially prejudiced (through the forfeiture of substantive rights or defenses)
by such failure; and provided further that the failure to notify the
indemnifying party shall not relieve it from any liability that it may have to
an indemnified party otherwise than under subsection (a) or (b) above. In case
any such action is
7
brought against any indemnified party, and it notifies the indemnifying party of
the commencement thereof, the indemnifying party will be entitled to participate
therein and, to the extent that it may wish, jointly with any other indemnifying
party similarly notified, to assume the defense thereof, with counsel reasonably
satisfactory to such indemnified party (who shall not, except with the consent
of the indemnified party, be counsel to the indemnifying party), and after
notice from the indemnifying party to such indemnified party of its election so
to assume the defense thereof the indemnifying party will not be liable to such
indemnified party under this Section 4 for any legal or other expenses, other
than reasonable costs of investigation, subsequently incurred by such
indemnified party in connection with the defense thereof. No indemnifying party
shall, without the prior written consent of the indemnified party, effect any
settlement of any pending or threatened action in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party unless such settlement (i) includes
an unconditional release of such indemnified party from all liability on any
claims that are the subject matter of such action, and (ii) does not include a
statement as to or an admission of fault, culpability or a failure to act by or
on behalf of any indemnified party. No indemnified party shall effect any
settlement of any pending or threatened action without the prior written consent
of the indemnifying party, which such consent shall not be unreasonably withheld
or delayed.
(d) If the indemnification provided for in this Section 4 is
unavailable or insufficient to hold harmless an indemnified party under
subsections (a) or (b) above, then each indemnifying party shall contribute to
the amount paid or payable by such indemnified party as a result of the losses,
claims, damages or liabilities (or actions in respect thereof) referred to in
subsection (a) or (b) above in such proportion as is appropriate to reflect the
relative benefits received by the indemnifying party or parties on the one hand
and the indemnified party on the other from the sale of the Securities, pursuant
to the Shelf Registration, or (ii) if the allocation provided by the foregoing
clause (i) is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the indemnifying party or parties on the
one hand and the indemnified party on the other in connection with the
statements or omissions that resulted in such losses, claims, damages or
liabilities (or actions in respect thereof) as well as any other relevant
equitable considerations. The relative fault of the parties shall be determined
by reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact relates to information supplied by the Company on the one hand or
such Holder or such other indemnified party, as the case may be, on the other,
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The amount paid by
an indemnified party as a result of the losses, claims, damages or liabilities
referred to in the first sentence of this subsection (d) shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any action or claim which is
the subject of this subsection (d). Notwithstanding any other provision of this
Section 4(d), the Holders shall not be required to contribute any amount in
excess of the amount by which the net proceeds received by such Holders from the
sale of the Restricted Securities pursuant to the Shelf Registration Statement
exceeds the amount of damages which such Holders have otherwise been required to
pay by reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) shall be entitled to contribution from
any person who was not guilty of such
8
fraudulent misrepresentation. For purposes of this paragraph (d), each person,
if any, who controls such indemnified party within the meaning of the Securities
Act or the Exchange Act shall have the same rights to contribution as such
indemnified party and each person, if any, who controls the Company within the
meaning of the Securities Act or the Exchange Act shall have the same rights to
contribution as the Company.
(e) The agreements contained in this Section 4 shall survive the
sale of the Restricted Securities pursuant to the Shelf Registration Statement
and shall remain in full force and effect, regardless of any termination or
cancellation of this Agreement or any investigation made by or on behalf of any
indemnified party.
(f) "Restricted Securities" means the Common Stock issued pursuant
to the Purchase Agreement and any securities issued with respect to the Common
Stock issued hereunder by way of a stock dividend or stock split or in
connection with a combination of shares, recapitalization, merger, consolidation
or other reorganization. As to any particular Restricted Securities, such
securities shall cease to be Restricted Securities when they have (a) been
effectively registered under the Securities Act and disposed of in accordance
with the registration statement covering them, (b) been distributed to the
public through a broker, dealer or market maker pursuant to Rule 144 (or any
similar provision then in force) under the Securities Act or become eligible for
sale pursuant to Rule 144(k) (or any similar provision then in force) under the
Securities Act or (c) been otherwise transferred and new certificates for them
not bearing the Securities Act legend set forth in Section 5C(i) of the Purchase
Agreement have been delivered by the Company in accordance with Section 5D of
the Purchase Agreement. Whenever any particular securities cease to be
Restricted Securities, the holder thereof shall be entitled to receive from the
Company, without expense, new securities of like tenor not bearing a Securities
Act legend of the character set forth in Section 5C(i) of the Purchase
Agreement. Any reference herein to a "majority of the Restricted Securities" or
the "number of Restricted Securities" or words of like effect for purposes of
comparison or calculation shall refer, with respect to any particular Restricted
Securities, to the number of shares of Common Stock (or equivalent common equity
securities of the Company) then represented by such Restricted Securities (on a
fully diluted, as-if-converted basis).
Section 5. Miscellaneous.
(a) Remedies. The Company acknowledges and agrees that any failure
by the Company to comply with its obligations hereunder may result in material
irreparable injury to the Holders for which there is no adequate remedy at law,
that it will not be possible to measure damages for such injuries precisely and
that, in the event of any such failure, any Holder may obtain such relief as may
be required to specifically enforce the Company's obligations hereunder.
(b) No Inconsistent Agreements. The Company will not on or after
the date of this Agreement enter into any agreement with respect to its
securities that is inconsistent with the rights granted to the Holders in this
Agreement or otherwise conflicts with the provisions hereof. The rights granted
to the Holders hereunder do not in any way conflict with and are not
inconsistent with the rights granted to the holders of the Company's securities
under any agreement in effect on the date hereof. Subject to the foregoing, the
Company shall not be
9
limited or in any way prevented from entering into any agreement granting any
holder or prospective holder of any securities of the Company registration
rights with respect to such securities.
(c) Amendments and Waivers. The provisions of this Agreement may
not be amended, modified or supplemented, and waivers or consents to departures
from the provisions hereof may not be given, except by the Company and the
written consent of the holders of a majority in principal amount of the
Restricted Securities affected by such amendment, modification, supplement,
waiver or consents.
(d) Notices. All notices, demands or other communications to be
given or delivered under or by reason of the provisions of this Agreement shall
be in writing and shall be deemed to have been given when delivered personally
to the recipient, telecopied to the recipient (with hard copy sent by overnight
courier in the manner provided hereunder) if sent prior to 4:00 p.m. Chicago
time on a business day (and otherwise, on the immediately succeeding business
day), one business day after being sent to the recipient by reputable overnight
courier service (charges prepaid) or three business days after being mailed to
the recipient by certified or registered mail, return receipt requested and
postage prepaid.
(i) if to a Holder of the Restricted Securities, at the
most current address given by such Holder to the Company.
(ii) if to the Company, at its address as follows:
Therma-Wave, Inc.
0000 Xxxxxxxx Xxx
Xxxxxxxx, XX 00000
Attn: Chief Financial Officer
Telecopy No.: (000) 000-0000
with a copy to:
Xxxxxxxx & Xxxxx LLP
000 Xxxxx Xxxxxxxx Xxxxxx
Xxx Xxxxxxx, XX 00000-0000
Attn: Xxx Xxxxx, Esq.
Telecopy No.: (000) 000-0000
All such notices and communications shall be deemed to have been duly given: at
the time delivered by hand, if personally delivered; three business days after
being deposited in the mail, postage prepaid, if mailed; when receipt is
acknowledged by recipient's facsimile machine operator, if sent by facsimile
transmission; and on the day delivered, if sent by overnight air courier
guaranteeing next day delivery.
(e) Successors and Assigns. Except as otherwise expressly provided
herein, all covenants and agreements contained in this Agreement by or on behalf
of any of the Parties hereto shall bind and inure to the benefit of the
respective successors and assigns of the Parties
10
hereto whether so expressed or not. In addition, and whether or not any express
assignment has been made, the provisions of this Agreement which are for any
Holder's benefit as a holder or Holder are also for the benefit of, and
enforceable by, any subsequent holder of such Common Stock.
(f) Counterparts. This Agreement may be executed simultaneously in
two or more counterparts (including by means of telecopied signature pages), any
one of which need not contain the signatures of more than one Party, but all
such counterparts taken together shall constitute one and the same Agreement.
(g) Descriptive Headings; Interpretation. The descriptive headings
and captions used in this Agreement and the table of contents to this Agreement
are for convenience and reference purposes only and shall not constitute a
substantive part of, or affect in any way the meaning or interpretation of, this
Agreement. Any capitalized terms used in any Schedule or Exhibit attached hereto
or delivered in connection herewith and not otherwise defined therein shall have
the meanings set forth in this Agreement. The use of the word "including" herein
shall mean "including without limitation." The Parties intend that each covenant
contained herein shall have independent significance. If any Party has breached
any covenant contained herein in any respect, the fact that there exists another
covenant relating to the same subject matter (regardless of the relative levels
of specificity) which the Party has not breached shall not detract from or
mitigate the fact that the Party is in breach of the first covenant.
(h) Governing Law. The corporate law of the State of Delaware
shall govern all issues and questions concerning the relative rights and
obligations of the Company and its shareholders. All other issues and questions
concerning the construction, validity, enforcement and interpretation of this
Agreement and the Exhibits and Schedules hereto shall be governed by, and
construed in accordance with, the laws of the State of Delaware, without giving
effect to any choice of law or conflict of law rules or provisions (whether of
the State of Delaware or any other jurisdiction) that would cause the
application of the laws of any jurisdiction other than the State of Delaware.
(i) Severability. Whenever possible, each provision of this
Agreement shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be prohibited
by or invalid under applicable law, such provision shall be ineffective only to
the extent of such prohibition or invalidity, without invalidating the remainder
of this Agreement.
(j) Restricted Securities Held by the Company. Whenever the
consent or approval of Holders of a specified percentage of principal amount of
Restricted Securities is required hereunder, the Restricted Securities held by
the Company or its affiliates (other than subsequent Holders of Restricted
Securities if such subsequent Holders are deemed to be affiliates solely by
reason of their holdings of such Restricted Securities) shall not be counted in
determining whether such consent or approval was given by the Holders of such
required percentage.
(k) No Strict Construction. The Parties have participated jointly
in the negotiation and drafting of this Agreement. In the event an ambiguity or
question of intent or interpretation arises, this Agreement shall be construed
as if drafted jointly by the Parties, and no presumption
11
or burden of proof shall arise favoring or disfavoring any Party by virtue of
the authorship of any of the provisions of this Agreement.
(l) Complete Agreement. Except as otherwise expressly set forth
herein, this Agreement and the other agreements, certificates and instruments
expressly required to be delivered hereby embody the complete agreement and
understanding of the parties hereto and supersede and preempt any prior
understandings, agreements or representations by or among the parties, whether
written or oral, which may have related to the subject matter hereof in any way.
The parties hereto acknowledge and agree there are no oral understandings or
agreements between them with respect to the subject matter hereof.
12
IN WITNESS WHEREOF, the Parties have executed this Registration Rights
Agreement on the date first written above.
THERMA-WAVE, INC.
By: /s/ L. Xxx Xxxxxxxx
----------------------------------------
Name: L. Xxx Xxxxxxxx
Title: Vice President, Chief Financial
Officer & Secretary
GALLEON TECHNOLOGY OFFSHORE, LTD.
By: /s/ Xxx Xxxxxxxxxx
-----------------------------
Its: Director
GALLEON CAPTAIN'S OFFSHORE, LTD.
By: /s/ Xxx Xxxxxxxxxx
-----------------------------
Its: Director
GALLEON CAPTAIN'S PARTNERS, LP
By: /s/ Xxx Xxxxxxxxxx
-----------------------------
Its: Managing General Partner
BUCCANEERS FUND PARTNERS, LP
By: /s/ Xxx Xxxxxxxxxx
-----------------------------
Its: Partner
GALLEON TECHNOLOGY PARTNERS II, LP
By: /s/ Xxx Xxxxxxxxxx
-----------------------------
Its: Managing General Partner
XXXXXXX SMALL CAP GROWTH FUND
SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT
By: /s/ Xxxxxxx Xxxxxxxxx
-----------------------------
Its: Executive Vice President/Portfolio
Manager
XXXXXXX EMERGING GROWTH PARTNERS, L.P.
By: /s/ Xxxx X. Xxxxxxxx
-----------------------------
Its: General Partner, CFO
XXXXXXX EMERGING GROWTH PARTNERS (CAYMANS),
L.P.
By: /s/ Xxxx X. Xxxxxxxx
-----------------------------
Its: General Partner, CFO
XXXXXXX CONTRARIAN FUND, L.P.
By: /s/ Xxxx X. Xxxxxxxx
-----------------------------
Its: General Partner, CFO
SPINNER GLOBAL TECHNOLOGY FUND, LPD
By: /s/ Art Spinner
-----------------------------
Its: Chairman
SPECIAL SITUATIONS PRIVATE EQUITY FUND,
L.P.
By: /s/ Xxxxxx Xxxxxx
-----------------------------
Its: Managing Director
XXXXXX X. XXXXX
By: /s/ Xxxxxx X. Xxxxx
-----------------------------
Its: ----------------------------
THE XXXXX FOUNDATION
By: Xxxxx Xxxxx
-----------------------------
Its: Trustee
Millrace Fund, LP
By: /s/ Xxxxxxx X. Xxxxxxx
-----------------------------
Its: on behalf of Millrace Capital GP,
LP the General Partner of Millrace Fund, LP
ASCEND PARTNERS LP
By: /s/ Xxxxxxx Xxxxxxxxx
-----------------------------
Its: General Partner
ASCEND PARTNERS SAPIENT LP
By: /s/ Xxxxxxx Xxxxxxxxx
-----------------------------
Its: General Partner
ASCEND OFFSHORE FUND, LTD.
By: /s/ Xxxxxxx Xxxxxxxxx
-----------------------------
Its: General Partner
SCHEDULE OF HOLDERS
Names and Addresses Number of Shares
------------------- ----------------
Galleon Technology Offshore, Ltd. 1,549,364
c/o Galleon Group
000 Xxxx 00xx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Galleon Captain's Offshore, Ltd. 607,000
c/o Galleon Group
000 Xxxx 00xx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Galleon Captain's Partners, LP 143,000
c/o Galleon Group
000 Xxxx 00xx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Buccaneers Fund Partners, LP 500,000
c/o Galleon Group
000 Xxxx 00xx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Galleon Technology Partners II, LP 437,000
c/o Galleon Group
000 Xxxx 00xx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Xxxxxxx Small Cap Growth Fund 100,000
c/o Needham & Company
000 Xxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Needham Emerging Growth Partners, L.P. 525,000
c/o Needham & Company
000 Xxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Needham Emerging Growth Partners (Caymans), L.P. 155,000
SCHEDULE
Names and Addresses Number of Shares
------------------- ----------------
c/o Needham & Company
000 Xxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Needham Contrarian Fund, L.P. 356,363
c/o Needham & Company
000 Xxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Spinner Global Technology Fund, LPD 500,000
000 Xxxx Xxxxxx
Xxxxx 0000
Xxx Xxxx, XX 00000
Special Situations Private Equity Fund, L.P. 454,545
000 Xxxx 00xx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Xxxxxx X. Xxxxx 159,091
000 Xxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
The Xxxxx Foundation 113,637
00 Xxxxxxxxxx Xxxxxx
Xxxxx 0
Xxxxxx, XX 00000
Millrace Fund, LP 100,000
0000 Xxxxxxxx Xx
0xx Xxxxx
Xxxxxx, XX 00000
Ascend Partners LP 8,323
c/o Xxxxxxxx X. Xxxxxx
Ascend Capital, LLC
000 Xxxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Names and Addresses Number of Shares
------------------- ----------------
Ascend Partners Sapient LP 23,372
c/o Xxxxxxxx X. Xxxxxx
Ascend Capital, LLC
000 Xxxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Ascend Offshore Fund, Ltd. 68,305
c/o Xxxxxxxx X. Xxxxxx
Ascend Capital, LLC
000 Xxxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Total 5,800,000
ANNEX A
THERMA-WAVE, INC.
FORM OF SELLING SECURITYHOLDER NOTICE AND QUESTIONNAIRE
The undersigned beneficial holder of common stock (such common stock, the
"registrable securities") understands that the Company and certain of its
subsidiaries have filed or intend to file with the SEC a registration statement
on an appropriate form for the registration of the resale under Rule 415 of the
Securities Act, of the registrable securities in accordance with the terms of
the Registration Rights Agreement, among the Company and the holders thereto. A
copy of the Registration Rights Agreement is available from the Company upon
request at the address set forth below.
In order to sell or otherwise dispose of any registrable securities pursuant to
the shelf registration statement, a beneficial owner of registrable securities
generally will be required to be named as a selling securityholder in the
related prospectus, deliver a prospectus to purchasers of registrable securities
and be bound by those provisions of the Registration Rights Agreement applicable
to such beneficial owner (including certain indemnification provisions, as
described below). The Company has agreed to pay additional interest pursuant to
the Registration Rights Agreement under certain circumstances as set forth
therein.
Certain legal consequences arise from being named as a selling securityholder in
the shelf registration statement and the related prospectus. Accordingly,
holders and beneficial owners of registrable securities are advised to consult
their own securities law counsel regarding the consequences of being named or
not being named as a selling securityholder in the shelf registration statement
and the related prospectus.
NOTICE
The undersigned beneficial owner (the "Selling Securityholder") of Registrable
Securities hereby gives notice to the Company of its intention to sell or
otherwise dispose of registrable securities beneficially owned by it and listed
below in Item 3 (unless otherwise specified under Item 3) pursuant to the shelf
registration statement. The undersigned, by signing and returning this Notice
and Questionnaire, understands that it will be bound by the terms and conditions
of this Notice and Questionnaire and the Registration Rights Agreement. The
undersigned hereby provides the following information to the Company and
represents and warrants that such information is accurate and complete.
A-1
QUESTIONNAIRE
1. (a) Full Legal Name of Selling Securityholder:
____________
(b) Full Legal Name of Registered Holder (if not the same as (a)
above) through which Registrable Securities listed in (3)
below are held:
____________
(c) Full Legal Name of DTC Participant (if applicable and if not
the same as (b) above) through which Registrable Securities
listed in (3) below are held:
____________
2. Address for Notices to Selling Securityholder:
____________
____________
Telephone:_____________________________________________________________
Fax: _____
Contact Person:________________________________________________________
3. Beneficial Ownership of Registrable Securities: Type and Principal
Amount of Registrable Securities beneficially owned:
____________
____________
4. Beneficial Ownership of the Company's securities owned by the Selling
Securityholder:
Except as set forth below in this Item (4), the undersigned is not the
beneficial or registered owner of any "Other Securities," defined as
securities of the Company other than the Registrable Securities listed
above in Item (3).
(a) Type and Amount of Other Securities beneficially owned by the
Selling Securityholder:
____________
____________
A-2
(b) CUSIP No(s). of such Other Securities beneficially owned:
____________
____________
5. Relationship with the Company:
Except as set forth below, neither the undersigned nor any of its
affiliates, officers, directors or principal equityholders (5% or more)
has held any position or office or has had any other material
relationship with the Company (or its predecessors or affiliates)
during the past three years.
State any exceptions here:
____________
____________
____________
____________
6. Plan of Distribution:
Except as set forth below, the undersigned (including its donees or
pledgees) intends to distribute the Registrable Securities listed above
in Item (3) pursuant to the Shelf Registration Statement only as
follows (if at all): Such Registrable Securities may be sold from time
to time directly by the undersigned or alternatively, through
underwriters, broker-dealers or agents. If the Registrable Securities
are sold through underwriters or broker-dealers, the Selling
Securityholder will be responsible for underwriting discounts or
commissions or agent's commissions. Such Registrable Securities may be
sold in one or more transactions at fixed prices, at prevailing market
prices at the time of sale, at varying prices determined at the time of
sale, or at negotiated prices. Such sales may be effected in
transactions (which may involve block transactions) (i) on any national
securities exchange or quotation service on which the Registrable
Securities may be listed or quoted at the time of sale, (ii) in the
over-the-counter market, (iii) in transactions otherwise than on such
exchanges or services or in the over-the-counter market, or (iv)
through the writing of options. In connection with sales of the
Registrable Securities or otherwise, the undersigned may enter into
hedging transactions with broker-dealers, which may in turn engage in
short sales of the Registrable Securities and deliver Registrable
Securities to close out such short positions, or loan or pledge
Registrable Securities to broker-dealers that in turn may sell such
securities.
State any exceptions here:
____________
____________
____________
A-3
____________
7. NASD Affiliates:
____________
____________
The undersigned acknowledges that it understands its obligation to
comply with the provisions of the Securities Exchange Act of 1934, as amended,
and the rules thereunder relating to stock manipulation, particularly Regulation
M thereunder (or any successor rules or regulations), in connection with any
offering of Registrable Securities pursuant to the Shelf Registration Statement.
The undersigned agrees that neither it nor any person acting on its behalf will
engage in any transaction in violation of such provisions.
The Selling Securityholder hereby acknowledges its obligations under the
Registration Rights Agreement to indemnify and hold harmless certain persons as
set forth therein.
Pursuant to the Registration Rights Agreement, the Company has agreed under
certain circumstances to indemnify the Selling Securityholder against certain
liabilities.
In accordance with the undersigned's obligation under the Registration
Rights Agreement to provide such information as may be required by law for
inclusion in the Shelf Registration Statement, the undersigned agrees to
promptly notify the Company of any inaccuracies or changes in the information
provided herein that may occur subsequent to the date hereof at any time while
the Shelf Registration Statement remains effective. All notices hereunder and
pursuant to the Registration Rights Agreement shall be made in writing at the
address set forth below.
By signing below, the undersigned consents to the disclosure of the
information contained herein in its answers to items (1) through (7) above and
the inclusion of such information in the Shelf Registration Statement and the
related Prospectus. The undersigned understands that such information will be
relied upon by the Company in connection with the preparation or amendment of
the Shelf Registration Statement and the related prospectus.
IN WITNESS WHEREOF, the undersigned, by authority duly given, has caused
this Notice and Questionnaire to be executed and delivered either in person or
by its duly authorized agent.
Dated: ________________________ Beneficial Owner
By: _______________________________
Name:__________________________
Title: ________________________
A-4
