Exhibit 10.16
THERMA-WAVE, INC.
VOTING AGREEMENT
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THIS VOTING AGREEMENT (this "Agreement") is made and entered into as
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of May 16, 1997 by and between Therma-Wave, Inc., a Delaware corporation (the
"Company"), the Investors listed on Schedule I attached hereto (the "Investors")
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and the Key Employees listed on Schedule II attached hereto (the "Key
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Employees").
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WHEREAS, the parties hereto desire to enter into this Agreement to
establish the composition of the Company's Board of Directors (the "Board").
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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 hereto agree as follows:
1. Board of Directors.
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(a) From and after the date of this Agreement, each Investor and
each Key Employee shall vote all of his shares of the Company's common stock
(the "Common Stock") and any other voting securities of the Company over which
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such holder has voting control and shall take all other necessary or desirable
actions within its control (whether as a stockholder, director, member of a
board committee or officer of the Company or otherwise, and including, without
limitation, attendance at meetings in person or by proxy for purposes of
obtaining a quorum and execution of written consents in lieu of meetings), and
the Company shall take all necessary and desirable actions (including, without
limitation, calling special board and stockholder meetings), so that:
(i) the authorized number of directors on the Board shall be
established at five (5) directors;
(ii) the following individuals shall be elected to the Board:
(A) one representative designated by Xxxx Capital Fund
V.L.P. ("BCF V");
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(B) one representative designated by Xxxx Capital Fund
V-B, L.P. ("BCF V-B");
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(C) one representatives designated by BCIP Associates
("BCIP"); and
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(D) Xxxxx Xxxxxxxxxx and (so long as Xxxxx Xxxxxxxxxx is
employed by the Company) another Key Employee
designated by Xxxxx Xxxxxxxxxx;
(iii) the removal from the Board (with or without cause) of any
representative designated hereunder by BCF V, BCF V-B, BCIP, or Xxxxx
Xxxxxxxxxx shall be at the written request of BCF V, BCF V-B, BCIP, or
Xxxxx Xxxxxxxxxx, respectively, but only upon such written request and
under no other circumstances, provided that if any director designated
pursuant to subparagraph (ii)(D) above ceases to be an employee of the
Company for any reason, he shall be removed as a director promptly after
his employment ceases; and
(iv) in the event that any representative designated hereunder
by BCF V, BCF V-B, BCIP, or Xxxxx Xxxxxxxxxx for any reason ceases to serve
as a member of the Board during his term of office, the resulting vacancy
on the Board shall be filled by a representative designated by BCF V, BCF
V-B, BCIP or Xxxxx Xxxxxxxxxx, respectively, as provided hereunder.
(b) The Company shall pay the reasonable out-of-pocket expenses
incurred by each director in connection with attending the meetings of the Board
or any committee thereof.
2. Notices. Any notice provided for in this Agreement must be in
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writing and must be personally delivered, received by certified mail, return
receipt requested, or sent by guaranteed overnight delivery service, to the
recipients at the addresses indicated below:
To the Company:
Therma-Wave, Inc.
x/x Xxxx Xxxxxxx, Xxx.
Xxx Xxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn: Xxxx X. Xxxxxx
Xxxxx Xxxxxxx
Xxx Xxxxxx
With a copy to:
Xxxxxxxx & Xxxxx
000 Xxxx Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxx
Xxxxxxx X. Xxxxxxx
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To Investors:
x/x Xxxx Xxxxxxx, Xxx.
Xxx Xxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxxxx
Xxxx X. Xxxxxx
Xxx Xxxxxx
With a copy to:
Xxxxxxxx & Xxxxx
000 Xxxx Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxx
Xxxxxxx X. Xxxxxxx
To the Key Employees:
c/o Xxxxx Xxxxxxxxxx
0000 Xxxx Xxxxxx Xxxxx
Xxxxxxxx, XX 00000
With a copy to:
Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx LLP
000 Xxxxxxx Xxxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000-0000
Attn: Xxxx X. Xxxxxx
or such other address or to the attention of such other person as the recipient
party shall have specified by prior written notice to the sending party. Any
notice under this Agreement will be deemed to have been given when so delivered
or mailed.
3. Termination. This Agreement shall terminate and be of no further
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force and effect upon the consummation of an initial public offering and sale of
Common Stock pursuant to an effective registration statement under the
Securities Act of 1933, as amended.
4. Severability. Whenever possible, each provision of this
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Agreement will 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 invalid,
illegal or unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability will not affect
any other provision or the effectiveness or validity of any provision in any
other jurisdiction, and this Agreement will be reformed, construed and enforced
in such jurisdiction as if such invalid, illegal or unenforceable provision had
never been contained herein.
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5. Complete Agreement. This Agreement embodies the complete
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agreement and understanding among the parties and supersedes and preempts any
prior understandings, agreements or representations by or among the parties,
written or oral, which may have related to the subject matter hereof in any way.
6. Counterparts. This Agreement may be executed in separate
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counterparts, each of which will be deemed to be an original and all of which
taken together will constitute one and the same agreement.
7. Successors and Assigns; Transfer. This Agreement is intended to
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bind and inure to the benefit of and be enforceable by the Company, the
Investors, the Key Employees and their respective successors and assigns;
provided that the Key Employees may not assign any of their rights hereunder
without the written consent of the Investors.
8. Governing Law. The corporate law of the State of Delaware shall
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govern all questions concerning the relative rights of the Company and its
stockholders. All other issues concerning the enforceability, validity and
binding effect of this Agreement will be governed by and construed in accordance
with the laws of the State of New York, without giving effect to any choice of
law or conflict of law provision or rule (whether of the State of New York or
any other jurisdiction) that would cause the application of the law of any
jurisdiction other than the State of New York.
9. Remedies. The parties hereto acknowledge and agree that money
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damages may not be an adequate remedy for any breach of the provisions of this
Agreement and that any party hereto will have the right to injunctive relief, in
addition to all of its other rights and remedies at law or in equity, to enforce
the provisions of this Agreement.
10. Amendments and Waivers. Any provision of this Agreement may be
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amended or waived only with the prior written consent of the Company, the
Investors holding a majority of the Common Stock held by all the Investors at
such time, and the Key Employees holding a majority of the fully-diluted Common
Stock held by all the Key Employees at such time.
* * * * *
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IN WITNESS WHEREOF, the parties have executed this Agreement on the
day and year first above written.
THE COMPANY: THERMA-WAVE, INC.
By: /s/ Xxxxx Xxxxxxxxxx
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Its: President and Chief Executive Officer
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INVESTORS: XXXX CAPITAL FUND V, L.P.
By: Xxxx Capital Partners V, L.P.
Its: General Partner
By: Xxxx Capital Investors V, Inc.
Its: General Partner
By: /s/ Xxxx Xxxxxx
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Its: Managing Director
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XXXX CAPITAL FUND V-B, L.P.
By: Xxxx Capital Partners V, L.P.
Its: General Partner
By: Xxxx Capital Investors V, Inc.
Its: General Partner
By: /s/ Xxxx Xxxxxx
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Its: Managing Director
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BCIP ASSOCIATES
By: /s/ Xxxx Xxxxxx
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A General Partner
[Signature Page to Voting Agreement]
BCIP TRUST ASSOCIATES, L.P.
By: /s/ Xxxx Xxxxxx
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A General Partner
XXXXXXXX STREET PARTNERS
By: /s/ Xxxxxxx X. Xxxxxxx
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Its: General Partner
XXXXXX HILL VENTURES, a California limited
partnership
By: /s/ [Signature illegible]
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Its: General Partner of the General Partner
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XXXXXX XXXX ASSOCIATES, L.P.
By: /s/ [Signature illegible]
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Its: General Partner
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XXXXX FARGO BANK, TRUSTEE
SHV M/P/T FBO XXXXX X. XXXXXXXX
By: /s/ Xxxxxxxxxxx X. Xxxxxxxx
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Its: Assistant Vice President
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[Signature Page to Voting Agreement]
XXXXX FARGO BANK, TRUSTEE
SHV M/P/T FBO XXXXXXX XXXXX, XX.
By: /s/ Xxxxxxxxxxx X. Xxxxxxxx
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Its: Assistant Vice President
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XXXXX FARGO BANK, TRUSTEE
SHV M/P/T FBO XXXXXXX X. XXXXXXX, XX.
By: /s/ Xxxxxxxxxxx X. Xxxxxxxx
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Its: Assistant Vice President
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XXXXX FARGO BANK, TRUSTEE
SHV M/P/T FBO XXXXX XXXX
By: /s/ Xxxxxxxxxxx X. Xxxxxxxx
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Its: Assistant Vice President
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XXXXX FARGO BANK, TRUSTEE
SHV M/P/T FBO XXXXXXX X. XXXXXXX
By: /s/ Xxxxxxxxxxx X. Xxxxxxxx
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Its: Assistant Vice President
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[Signature Page to Voting Agreement]
KEY EMPLOYEES:
/s/ Xxxxx Xxxxxxxxxx
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XXXXX XXXXXXXXXX
/s/ Xxxxxxx X. Xxx
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XXXXXXX X. XXX
/s/ Xxx X. Xxxxx
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XXX X. XXXXX
/s/ W. Xxx Xxxxx
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W. XXX XXXXX
/s/ Xxxxx X. Xxxxxxxxxx
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XXXXX X. XXXXXXXXXX
[Signature Page to Voting Agreement]
XXXXX FARGO BANK, TRUSTEE
SHV M/P/T FBO XXXX X. XXXXXX
By: /s/ Xxxxxxxxxxx X. Xxxxxxxx
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Its: Assistant Vice President
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ANTARES INTERNATIONAL PARTNERS, INC.
By: /s/ Xxxx X. Xxxx
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Its: Managing Director
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[Signature Page to Voting Agreement]
Schedule 1
Investors:
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Xxxx Capital Fund V, X.X.
Xxxx Capital Fund V-B, L.P.
BCIP Associates
BCIP Trust Associates, X.X.
Xxxxxxxx Street Partners
Xxxxxx Hill Ventures, a California limited partnership
Xxxxxx XXxx Associates, X.X.
Xxxxx Fargo Bank, Trustee
SHV M/P/T FBO Xxxx X. Xxxxxx
Xxxxx Fargo Bank, Trustee
SHV M/P/T FBO Xxxxx X. Xxxxxxxx
Xxxxx Fargo Bank, Trustee
SHV M/P/T FBO Xxxxxxx Xxxxx, Xx.
Xxxxx Fargo Bank, Trustee
SHV M/P/T FBO Xxxxxxx X. Xxxxxxx, Xx.
Xxxxx Fargo Bank, Trustee
SHV M/P/T FBO Xxxxx Xxxx
Xxxxx Fargo Bank, Trustee
SHV M/P/T FBO Xxxxxxx X. Xxxxxxx
Schedule II
Key Employees:
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Xxxxx Xxxxxxxxxx
Xxxxxxx Xxx
Xxxxx Xxxxxxxxxx
W. Xxx Xxxxx
Xxx Xxxxx
