Exhibit 2.1
AMENDMENT NO. 1 AND SUPPLEMENT
TO RECAPITALIZATION AGREEMENT
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Amendment No. 1 and Supplement to Recapitalization Agreement (this
"Amendment") is made and entered into as of May 16, 1997 by and among Therma-
Wave, Inc., a Delaware corporation, Toray Industries, Inc., a Japanese
corporation, Toray Industries (America), Inc., a New York corporation, Shimadzu
Corporation, a Japanese corporation, and Xxxx Capital Fund V, L.P., Xxxx Capital
Fund V-B, L.P., BCIP Associates and BCIP Trust Associates, L.P.
WHEREAS, the parties hereto entered into the Recapitalization
Agreement on December 18, 1996 (the "Recapitalization Agreement") pursuant to
which the Company will undergo a recapitalization which will result in, among
other things, the Purchasers, the Sellers and certain members of the Company's
management owning all of the outstanding capital stock of the Company.
WHEREAS, the parties each desire to amend the Recapitalization
Agreement on the terms and in the manner set forth in this Amendment.
NOW, THEREFORE, for themselves and their respective successors and
permitted assigns, the parties hereto agree as follows:
Section 1. Definitions, Etc. Terms defined (directly or indirectly by
reference) in the Recapitalization Agreement and used without other definition
herein shall have the respective meanings herein assigned to such terms in the
Recapitalization Agreement. The rules of interpretation set forth in the
Recapitalization Agreement shall likewise govern this Amendment.
Section 2. Amendment to Preamble.
(a) The second "whereas" clause in the Preamble to the Agreement is
amended hereby by replacing the reference to "8,135,003 shares of the Common
Stock" in the third line of such clause with the phrase "6,960,035.3446 shares
of the Common Stock".
(b) The fourth "whereas" clause in the Preamble of the Agreement is
amended hereby as follows:
(i) by replacing the reference to "8,490,567 shares" in the fifth line
of such clause with "7,264,236 shares",
(ii) by replacing the reference to "943,396 shares" in the sixth and
seventh lines of such clause with "807,138 shares",
(iii) by deleting the word "and" set forth in the ninth line of such
clause immediately prior to "(ii) Sellers", and
(iv) by inserting the following language into the last line of such
clause immediately following the words "hereinafter set forth": "and (iii)
Company will issue to certain of its executive employees an aggregate of
1,226,331 shares of Common-A Stock and 136,258 shares of Common-L Stock for
an aggregate purchase price of $2,888,671.72."
Section 3. Amendment to Section 2(a). Section 2(a) is amended hereby by
replacing "$20,000,000" in the eighth line of such subsection with
"$17,111,328.28."
Section 4. Amendment to Section 2(c). Section 2(c) is amended hereby as
follows by replacing the references to "8,490,567 shares" and "943,396 shares"
in the fifth line of such subsection to "7,264,236 shares" and "807,138 shares",
respectively.
Section 5. Amendment to Section 7(c). Section 7(c) is hereby amended by
replacing the reference to $2,500,000" in clause (i) of the second sentence
thereof with "$3,500,000" and by adding the following immediately prior to the
clause (x) of clause (ii) of such sentence: "(w) to provide that Company shall
make a $500,000 payment to Sobrato as a prepayment of rent upon the
effectiveness of such amendment."
Section 6. Acknowledgment Regarding Termination of Subscription
Obligation. The parties hereto hereby acknowledge and agree that any obligation
which Toray might have had to pay approximately $1,425,000 or any other amount
to Company to acquire shares of stock of Company or for any other purpose
pursuant to the Key Employee Stock Agreement dated October 30, 1991 among Toray,
Company and certain Key Employees of Company or pursuant to any other agreement
in connection with Company's repurchase of shares from Xxxxxxx Xxxxxxx was
cancelled and terminated pursuant to the terms of the Agreement dated January
25, 1996 among Toray, Company and certain Key Employees of Company. It is
further agreed that Sellers shall have no obligation whatsoever to Purchasers or
Company pursuant to the Recapitalization Agreement with regard to any
representations or warranties contained therein relating to any such purported
obligation of Toray to make any such payments to Company.
Section 7. Acknowledgment Regarding Additional Investor Parties. The
parties hereto hereby acknowledge that each of the parties set forth on Schedule
A attached hereto is a designee of the Purchasers under the Recapitalization
Agreement and as such, at the closing of the Recapitalization Agreement, shall
purchase from the Company Purchaser Shares in the amount and for that portion of
the Company Purchase Price set forth in Schedule A hereto, and thereafter shall
deliver to the Company such Purchaser Shares and receive in exchange therefor
New Common Stock in the amounts set forth on Schedule A, and otherwise shall be
entitled to all other rights and be subject to all other obligations of the
Purchasers under the Recapitalization Agreement.
Section 8. Acknowledgment Regarding Location of Closing. Notwithstanding
the provisions of Section 10(a) of the Recapitalization Agreement, the parties
acknowledge that the
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Closing will take place at 10:00 A.M. on May 16, 1997 at the offices of White &
Case, 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx, 00000.
Section 9. Subsequent Transaction. Subsequent to the completion of the
sale and exchange of shares contemplated by Section 2 of the Recapitalization
Agreement, at the Closing, Company shall issue and deliver to Sellers 9,853
shares of Common-A Stock and 1,095 shares of Common-L Stock in exchange for
1,261 shares of Preferred Stock. The number of shares of Common-A Stock, Common-
L Stock and Preferred Stock to be transferred pursuant to this Section shall be
allocated 6,504, 723 and 833 to Toray, 1,242, 138 and 159 to Toray America and
2,107, 234 and 269 to Shimadzu, respectively. Company and Purchaser agree that
all the relevant provisions in the Stockholders Agreement and the Company's
Restated Certificate of Incorporation which prohibit the transfer of those
shares shall be waived for the purpose of this particular transaction.
Section 10. Conditions to Effectiveness. This Amendment shall take effect
on a date (the "Amendment Effective Date") when each of the parties has executed
a duly executed original counterpart of this Amendment.
Section 11. Ratification, Etc. Except as expressly modified or waived
hereby, each term and provision of the Recapitalization Agreement and the other
agreements executed in connection therewith is hereby ratified and confirmed and
shall continue in full force and effect. From and after the Amendment Effective
Date, all references to the Recapitalization Agreement shall be deemed to be
references to the Recapitalization Agreement as amended by this Amendment.
Section 12. Representations and Warranties of the Company. Each of the
Company, each Seller and each Purchaser hereby represents and warrants that (a)
it has the requisite corporate or partnership power and authority, as the case
may be, and is duly authorized, to enter into this Amendment and (b) after
giving effect to this Amendment, the Recapitalization Agreement and the other
documents contemplated thereby shall continue to be the valid and binding
obligations of such person, enforceable against such person in accordance with
their respective terms.
Section 13. Governing Law. This Amendment shall be governed by, construed
and enforced in accordance with the laws of the State of New York, without
regard to the principles thereof relating to conflict of laws.
Section 14. Counterparts. This Amendment may be executed in any number of
counterparts, which shall together constitute but one and the same instrument.
Section 15. Successors and Assigns. This Amendment shall be binding upon,
and inure to the benefit of, the parties hereto and their respective successors
and assigns.
* * *
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IN WITNESS WHEREOF, each of the parties hereto has caused this
Amendment to be executed to take effect as of the date first hereinabove
written.
PURCHASER
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XXXX CAPITAL FUND V, L.P., a Delaware
limited partnership
By: Xxxx Capital Partners V, L.P.
Its: General Partner
By: Xxxx Capital Investors V, Inc.
Its: General Partner
By: ______________________________
Its: ______________________________
XXXX CAPITAL FUND V-B, L.P., a Delaware
limited partnership
By: Xxxx Capital Partners V, L.P.
Its: General Partner
By: Xxxx Capital Investors V, Inc.
Its: General Partner
By: ______________________________
Its: ______________________________
BCIP ASSOCIATES, a Delaware general
partnership
By: ______________________________
A General Partner
BCIP TRUST ASSOCIATES, L.P., a Delaware
limited partnership
By: ______________________________
A General Partner
TORAY INDUSTRIES, INC.
By: ______________________________
Its: ______________________________
TORAY INDUSTRIES (AMERICA), INC.
By: ______________________________
Its: ______________________________
SHIMADZU CORPORATION
By: ______________________________
Its: ______________________________
THERMA-WAVE, INC.
By: ______________________________
Its: ______________________________
SCHEDULE A
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Purchaser
Investment Shares Class A Class L
------------- ------------ --------- -------
Xxxxxxxx Street Partners $ 200,000.00 81,350.42 84,906 9,434
Xxxxxx Xxxx Ventures,
a California limited partnership $2,901,557.56 1,180,214.59 1,231,787 136,866
Xxxxxx Hill Associates, L.P. $ 392,453.45 159,631.26 264,303 17,309
Xxxxx Fargo Bank, Trustee
SHV M/P/T FBO
Xxxx X. Xxxxxx $ 54,983.89 22,364.81 --- 2,881
Xxxxx Fargo Bank, Trustee
SHV M/P/T FBO
Xxxxx X. Xxxxxxxx $ 181,708.29 73,910.23 --- 9,521
Xxxxx Fargo Bank, Trustee
SHV M/P/T FBO
G. Xxxxxxx Xxxxx, Xx. $ 181,708.29 73,910.23 --- 9,521
Xxxxx Fargo Bank, Trustee
SHV M/P/T FBO
Xxxxxxx X. Xxxxxxx, Xx. $ 20,865.18 8,486.96 88,788 ---
Xxxxx Fargo Bank, Trustee
SHV M/P/T FBO
Xxxxx Xxxx $ 132,946.15 54,076.12 56,443 6,271
Xxxxx Fargo Bank, Trustee
SHV M/P/T FBO
Xxxxxxx X. Xxxxxxx $ 2,501.36 1,017.43 1,061 118
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