Exhibit 10.21
REGISTRATION AGREEMENT
----------------------
THIS REGISTRATION AGREEMENT (this "Agreement") dated as of May 16,
1997 is made by and among Therma-Wave, Inc., a Delaware corporation (the
"Company"), the Persons listed on Schedule A attached hereto or certain
designees thereof that execute a counterpart to this Agreement (the "Xxxx
Group"), the Persons listed on Schedule B attached hereto (the "Xxxxxx Group"),
the Persons listed on Schedule C attached hereto (the "Existing Stockholders"),
the Persons listed on Schedule D attached hereto or other employees of the
Company that execute a counterpart to this Agreement (the "Management
Stockholders") and Antares International Partners, Inc. ("Antares"). The Xxxx
Group, the Xxxxxx Group, the Existing Stockholders, the Management Stockholders
and Antares are collectively referred to herein as the "Stockholders," and each
as a "Stockholder". Unless otherwise provided in this Agreement, capitalized
terms used herein shall have the meanings set forth in paragraph 9 hereof.
The parties to this Agreement hereby agree as follows:
1. Demand Registrations.
(a) Requests for Registration. At any time the holders of a majority
of the Xxxx Registrable Securities may request registration under the Securities
Act of all or part of their Registrable Securities on Form S-1 or any similar
long-form registration ("Long-Form Registrations") or, if available, on Form S-2
or S-3 or any similar short-form Registration ("Short-Form Registrations"). In
addition, (i) at any time after the underwritten initial public offering of the
Company's Common Stock (the "IPO"), the holders of a majority of the Existing
Stockholder Registrable Securities may request a Long-Form Registration or, if
available, a Short-Form Registration and (ii) at any time after the later of (A)
the fifth anniversary of the date hereof and (B) 180 days after the IPO, the
holders of a majority of the Management Registrable Securities may request a
Long-Form Registration or, if available, a Short-Form Registration (a
"Management Demand Registration"). Each request for a Demand Registration shall
specify the approximate number of Registrable Securities requested to be
registered and the anticipated per share price range for such offering. Within
ten days after receipt of any such request, the Company will give written notice
of such requested registration to all other holders of Registrable Securities
and, subject to paragraph 1(d) below, will include in such registration all
Registrable Securities with respect to which the Company has received written
requests for inclusion therein within 15 days after the receipt of the Company's
notice. All registrations requested pursuant to this paragraph 1(a) are
referred to herein as "Demand Registrations."
(b) Long-Form Registrations. The holders of a majority of the Xxxx
Registrable Securities will be entitled to request three (3) Long-Form
Registrations in which the Company will pay all Registration Expenses, the
holders of a majority of the Existing Stockholder Registrable Securities will be
entitled to request one (1) Long-Form Registration or Short-Form Registration in
which the Company will pay all Registration Expenses, and the holders of a
majority of the Management Registrable Securities will be entitled to request
one (1) Long-Form Registration or Short-Form Registration in which the Company
will pay all Registration Expenses. A registration
will not count as one of the permitted Long-Form Registrations until it has
become effective, and the last Long-Form Registration (or Short-Form
Registration) will not count as one of the Long-Form Registrations (or Short-
Form Registrations) permitted to be requested by the holders of Xxxx Registrable
Securities, Existing Stockholder Registrable Securities or Management
Registrable Securities (as the case may be) unless the holders of Registrable
Securities initially requesting such registration have been able to register and
sell at least 90% of the Registrable Securities initially requested to be
registered by such holders; provided that in any event the Company will pay all
Registration Expenses in connection with any registration initiated as a Long-
Form Registration whether or not it has become effective. All Long-Form
Registrations may be underwritten regis trations.
(c) Short-Form Registrations. In addition to the Long-Form
Registrations provided pursuant to paragraph 1(b), the holders of a majority of
the Xxxx Registrable Securities will be entitled to request six (6) Short-Form
Registrations in which the Company will pay all Registration Expenses. Demand
Registrations will be Short-Form Registrations whenever the Company is permitted
to use any applicable short form. After the Company has become subject to the
reporting requirements of the Securities Exchange Act, the Company will use its
best efforts to make Short-Form Registrations available for the sale of
Registrable Securities.
(d) Priority on Demand Registrations. The Company will not include in
any Demand Registration any securities which are not Registrable Securities
without the prior written consent of the holders of a majority of the Xxxx
Registrable Securities included in such registration. If a Demand Registration
is an underwritten offering and the managing underwriters advise the Company in
writing that in their opinion the number of Registrable Securities and, if
permitted hereunder, other securities requested to be included in such offering
exceeds the number of Registrable Securities and other securities, if any, which
can be sold therein without adversely affecting the marketability of the
offering, the Company will include in such registration (i) first, the
Registrable Securities requested to be included in such Demand Registration, pro
rata among the holders thereof on the basis of the number of shares Registrable
Securities owned by each such holder, and (ii) second, other securities
requested to be included in such Demand Registration, pro rata among the holders
of such securities; provided that if the Demand Registration is a Management
Demand Registration, the Company will include in such registration (A) first,
the Aggregate Permitted Amount of Management Registrable Securities requested to
be included in such Demand Registration by the holders of Management Registrable
Securities (or if less, the amount of Management Registrable Securities actually
requested to be included in such Demand Registration by the holders of
Management Registrable Securities (the "Requested Amount")), pro rata among the
holders thereof on the basis of each such holder's Permitted Amount of
Management Registrable Securities (and, with respect to each such holder, in an
amount not to exceed such holder's Permitted Amount of Management Registrable
Securities), (B) second, the amount of Registrable Securities (other than
Management Registrable Securities) requested to be included in such Demand
Registration equal to the total amount of Registrable Securities (other than
Management Registrable Securities) multiplied by a fraction, the numerator of
which equals the Aggregate Permitted Amount of Management Registrable Securities
(or, if less, the Requested Amount) and the denominator of which equals the
aggregate amount of Management Registrable Securities, pro rata among the
holders thereof on the basis of the number of shares of Registrable Securities
(other than
-2-
Management Registrable Securities) owned by each such holder, (C) third, the
remaining Registrable Securities requested to be included in such Demand
Registration, pro rata among the holders thereof on the basis of the number of
shares Registrable Securities owned by each such holder, and (D) fourth, other
securities requested to be included in such Demand Registration, pro rata among
the holders of such securities.
(e) Restrictions on Demand Registrations. The Company will not be
obligated to effect any Demand Registration within six months after the
effective date of a previous Demand Registration. The Company may postpone for
up to six months (from the date of the request) the filing or the effectiveness
of a registration statement for a Demand Registration if the Company believes
that such Demand Registration would reasonably be expected to have an adverse
effect on any proposal or plan by the Company or any of its Subsidiaries to
engage in any acquisition of assets (other than in the ordinary course of
business) or any merger, consolidation, tender offer or similar transaction;
provided, however, that in such event, the holders of Registrable Securities
initially requesting such Demand Registration will be entitled to withdraw such
request and, if such request is withdrawn, such Demand Registration will not
count as one of the permitted Demand Registrations hereunder and the Company
will pay all Registration Expenses in connection with such registration.
(f) Selection of Underwriters. The holders of a majority of the Xxxx
Registrable Securities included in any Demand Registration will have the right
to select the investment banker(s) and manager(s) to administer the offering,
subject to the Company's approval which will not be unreasonably withheld. If
no Xxxx Registrable Securities are included in a Demand Registration, the
Company will have the right to select the investment banker(s) and manager(s) to
administer the offering.
(g) Other Registration Rights. Except as provided in this Agreement,
the Company will not grant to any Persons the right to request the Company to
register any equity securities of the Company, or any securities convertible or
exchangeable into or exercisable for such securities, without the prior written
consent of the holders of a majority of the Xxxx Registrable Securities.
2. Piggyback Registrations.
(a) Right to Piggyback. Whenever the Company proposes to register any
of its equity securities under the Securities Act (other than (i) in connection
with the IPO, unless any holders of Registrable Securities are permitted to
participate in the IPO, (ii) pursuant to a Demand Registration or (iii) pursuant
to a registration on Form S-4 or S-8 or any successor or similar forms) and the
registration form to be used may be used for the registration of Registrable
Securities (a "Piggyback Registration"), whether or not for sale for its own
account, the Company will give prompt written notice to all holders of
Registrable Securities of its intention to effect such a registration and will
include in such registration all Registrable Securities with respect to which
the Company has received written requests for inclusion therein within 15 days
after the receipt of the Company's notice.
-3-
(b) Piggyback Expenses. The Registration Expenses of the holders of
Registrable Securities will be paid by the Company in all Piggyback
Registrations.
(c) Priority on Primary Registrations. If a Piggyback Registration is
an underwritten primary registration on behalf of the Company, and the managing
underwriters advise the Company in writing (with a copy to each party hereto
requesting registration of Registrable Securities) that in their opinion the
number of securities requested to be included in such registration exceeds the
number which can be sold in such offering without adversely affecting the
marketability of such offering, the Company will include in such registration
(i) first, the securities the Company proposes to sell, (ii) second, the
Registrable Securities requested to be included in such registration, pro rata
among the holders thereof on the basis of the number of shares of Registrable
Securities owned by each such holder, and (iii) third, other securities
requested to be included in such registration pro-rata among the holders of such
securities.
(d) Priority on Secondary Registrations. If a Piggyback Registration
is an underwritten secondary registration on behalf of holders of the Company's
securities (other than the parties hereto) who have been granted contractual
demand registration rights, and the managing underwriters advise the Company in
writing that in their opinion the number of securities requested to be included
in such registration exceeds the number which can be sold in such offering
without adversely affecting the marketability of the offering, the Company will
include in such registration (i) first, the securities requested to be included
therein by the holders requesting such registration, pro rata among the holders
of such securities on the basis of the number of shares owned by each such
holder, (ii) second, the Registrable Securities requested to be included in such
registration, pro rata among the holders thereof on the basis of the number of
shares of Registrable Securities owned by each such holder, and (iii) third,
other securities requested to be included in such registration pro-rata among
the holders of such securities.
(e) Other Registrations. If the Company has previously filed a
registration statement with respect to Registrable Securities pursuant to
paragraph 1 or pursuant to this paragraph 2, and if such previous registration
has not been withdrawn or abandoned, the Company will not file or cause to be
effected any other registration of any of its equity securities or securities
convertible or exchangeable into or exercisable for its equity securities under
the Securities Act (except on Form S-4 or S-8 or any successor form), whether on
its own behalf or at the request of any holder or holders of such securities,
until a period of at least six months has elapsed from the effective date of
such previous registration.
3. Holdback Agreements.
(a) To the extent not inconsistent with applicable law, each holder of
Registrable Securities agrees not to effect any public sale or distribution
(including sales pursuant to Rule 144) of equity securities of the Company, or
any securities, options or rights convertible into or exchangeable or
exercisable for such securities, during the seven days prior to and the 180-day
period beginning on the effective date of any underwritten public offering of
the Company's common stock (including Demand and Piggyback Registrations)
(except as part of such
-4-
underwritten registration), unless the underwriters managing the registered
public offering otherwise agree.
(b) The Company agrees not to effect any public sale or distribution
of its equity securities, or any securities convertible into or exchangeable or
exercisable for such securities, during the seven days prior to and during the
180-day period beginning on the effective date of any underwritten public
offering of the Company's common stock (including Demand and Piggyback
Registrations) (except as part of such underwritten registration or pursuant to
registrations on Form S-4 or S-8 or any successor form), unless the underwriters
managing the registered public offering otherwise agree.
4. Registration Procedures. Whenever the holders of Registrable
Securities have requested that any Registrable Securities be registered pursuant
to this Agreement, the Company will use its best efforts to effect the
registration and the sale of such Registrable Securities in accordance with the
intended method of disposition thereof and pursuant thereto the Company will as
expeditiously as possible:
(a) prepare and (within 60 days after the end of the period within
which requests for registration may be given to the Company) file with the
Securities and Exchange Commission a registration statement with respect to such
Registrable Securities and thereafter use its best efforts to cause such
registration statement to become effective (provided that before filing a
registration statement or prospectus or any amendments or supplements thereto,
the Company will furnish to the counsel selected by the holders of a majority of
the Xxxx Registrable Securities covered by such registration statement and to
counsel selected by the holders of a majority of the Existing Stockholder
Registrable Securities covered by such registration statement copies of all such
documents proposed to be filed, which documents will be subject to review of
such counsel);
(b) prepare and file with the Securities and Exchange Commission such
amendments and supplements to such registration statement and the prospectus
used in connection therewith as may be necessary to keep such registration
statement effective for a period of either (i) not less than six months (subject
to extension pursuant to paragraph 7(b)) or, if such registration statement
relates to an underwritten offering, such longer period as in the opinion of
counsel for the underwriters a prospectus is required by law to be delivered in
connection with sales of Registrable Securities by an underwriter or dealer or
(ii) such shorter period as will terminate when all of the securities covered by
such registration statement have been disposed of in accordance with the
intended methods of disposition by the seller or sellers thereof set forth in
such registration statement (but in any event not before the expiration of any
longer period required under the Securities Act), and to comply with the
provisions of the Securities Act with respect to the disposition of all
securities covered by such registration statement until such time as all of such
securities have been disposed of in accordance with the intended methods of
disposition by the seller or sellers thereof set forth in such registration
statement;
(c) furnish to each seller of Registrable Securities such number of
copies of such registration statement, each amendment and supplement thereto,
the prospectus included in such registration statement (including each
preliminary prospectus) and such other documents as such
-5-
seller may reasonably request in order to facilitate the disposition of the
Registrable Securities owned by such seller;
(d) use its best efforts to register or qualify such Registrable
Securities under such other securities or blue sky laws of such jurisdictions as
any seller reasonably requests and do any and all other acts and things which
may be reasonably necessary or advisable to enable such seller to consummate the
disposition in such jurisdictions of the Registrable Securities owned by such
seller (provided that the Company will not be required to (i) qualify generally
to do business in any jurisdiction where it would not otherwise be required to
qualify but for this subparagraph, (ii) subject itself to taxation in any such
jurisdiction or (iii) consent to general service of process in any such
jurisdiction);
(e) notify each seller of such Registrable Securities, at any time
when a prospectus relating thereto is required to be delivered under the
Securities Act, upon discovery that, or upon the discovery of the happening of
any event as a result of which, the prospectus included in such registration
statement contains an untrue statement of a material fact or omits any fact
necessary to make the statements therein not misleading in the light of the
circumstances under which they were made, and, at the request of any such
seller, the Company will prepare and furnish to such seller a reasonable number
of copies of a supplement or amendment to such prospectus so that, as thereafter
delivered to the purchasers of such Registrable Securities, such prospectus will
not contain an untrue statement of a material fact or omit to state any fact
necessary to make the statements therein not misleading in the light of the
circumstances under which they were made;
(f) cause all such Registrable Securities to be listed on each
securities exchange on which similar securities issued by the Company are then
listed and, if not so listed, to be listed on the NASD automated quotation
system;
(g) provide a transfer agent and registrar for all such Registrable
Securities not later than the effective date of such registration statement;
(h) enter into such customary agreements (including underwriting
agreements in customary form) and take all such other actions as the holders of
a majority of the Registrable Securities being sold or the underwriters, if any,
reasonably request in order to expedite or facilitate the disposition of such
Registrable Securities (including, without limitation, effecting a stock split
or a combination of shares);
(i) make available for inspection by any seller of Registrable
Securities, any underwriter participating in any disposition pursuant to such
registration statement and any attorney, accountant or other agent retained by
any such seller or underwriter, all financial and other records, pertinent
corporate documents and properties of the Company, and cause the Company's
officers, directors, employees and independent accountants to supply all
information reasonably requested by any such seller, underwriter, attorney,
accountant or agent in connection with such registration statement;
-6-
(j) otherwise use its best efforts to comply with all applicable rules
and regulations of the Securities and Exchange Commission, and make available to
its security holders, as soon as reasonably practicable, an earnings statement
covering the period of at least twelve months beginning with the first day of
the Company's first full calendar quarter after the effective date of the
registration statement, which earnings statement shall satisfy the provisions of
Section 11(a) of the Securities Act and Rule 158 thereunder;
(k) in the event of the issuance of any stop order suspending the
effectiveness of a registration statement, or of any order suspending or
preventing the use of any related prospectus or suspending the qualification of
any securities included in such registration statement for sale in any
jurisdiction, the Company will use its reasonable best efforts promptly to
obtain the withdrawal of such order;
(l) obtain a comfort letter, dated the effective date of such
registration statement (and, if such registration includes an underwritten
public offering, dated the date of the closing under the underwriting
agreement), signed by the Company's independent public accountants in customary
form and covering such matters of the type customarily covered by comfort
letters as the holders of a majority of the Registrable Securities being sold
reasonably request (provided that such Registrable Securities constitute at
least 10% of the securities covered by such registration statement); and
(m) provide a legal opinion of the Company's outside counsel, dated
the effective date of such registration statement (and, if such registration
includes an underwritten public offering, dated the date of the closing under
the underwriting agreement), with respect to the registration statement, each
amendment and supplement thereto, the prospectus included therein (including the
preliminary prospectus) and such other documents relating thereto in customary
form and covering such matters of the type customarily covered by legal opinions
of such nature.
The Company may require each seller of Registrable Securities as to which any
registration is being effected to furnish the Company such information regarding
such seller and the distribution of such securities as the Company may from time
to time reasonably request in writing.
5. Registration Expenses.
(a) All expenses incident to the Company's performance of or
compliance with this Agreement, including, without limitation, all registration
and filing fees, fees and expenses of compliance with securities or blue sky
laws, printing expenses, messenger and delivery expenses, and fees and
disbursements of counsel for the Company and all independent certified public
accountants, underwriters (excluding discounts and commissions) and other
Persons retained by the Company (all such expenses being herein called
"Registration Expenses"), will be borne as provided in this Agreement, except
that the Company will, in any event, pay its internal expenses (including,
without limitation, all salaries and expenses of its officers and employees
performing legal or accounting duties), the expense of any annual audit or
quarterly review, the expense of any liability insurance and the expenses and
fees for listing the securities to be registered on each securities
-7-
exchange on which similar securities issued by the Company are then listed or on
the NASD automated quotation system.
(b) In connection with each Demand Registration and each Piggyback
Registration, the Company will reimburse (i) the holders of the Xxxx Registrable
Securities covered by such registration for the reasonable fees and
disbursements of one counsel chosen by the holders of a majority of the Xxxx
Registrable Securities included in such registration and (ii) the holders of
Existing Stockholder Registrable Securities covered by such registration for the
reasonable fees and disbursements of one counsel chosen by the holders of a
majority of the Existing Stockholder Registrable Securities included in such
registration, in the case of this clause (ii) in an amount not to exceed
$10,000.
(c) To the extent Registration Expenses are not required to be paid by
the Company, each holder of securities included in any registration hereunder
will pay those Registration Expenses allocable to the registration of such
holder's securities so included, and any Registration Expenses not so allocable
will be borne by all sellers of securities included in such registration in
proportion to the aggregate selling price of the securities to be so registered.
6. Indemnification.
(a) The Company agrees to indemnify and hold harmless, to the full
extent permitted by law, each holder of Registrable Securities, its officers,
directors, agents, and employees and each Person who controls such holder
(within the meaning of the Securities Act) against any losses, claims, damages,
liabilities, joint or several, together with reasonable costs and expenses
(including reasonable attorney's fees), to which such holder or any such
director or officer or controlling Person may become subject under the
Securities Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions or proceedings, whether commenced or threatened, in
respect thereof) arise out of or are based upon (i) any untrue or alleged untrue
statement of material fact contained (A) in any registration statement,
prospectus or preliminary prospectus or any amendment thereof or supplement
thereto or (B) in any application or other document or communication (in this
paragraph 6 collectively called an "application") executed by or on behalf of
the Company or based upon written information furnished by or on behalf of the
Company filed in any jurisdiction in order to qualify any securities covered by
such registration statement under the "blue sky" or securities laws thereof, or
(ii) any omission or alleged omission of a material fact required to be stated
therein or necessary to make the statements therein not misleading, and the
Company will reimburse such holder and each such director, officer and
controlling Person for any legal or any other expenses incurred by them in
connection with investigating or defending any such loss, claim, liability,
action or proceeding; provided, however, that the Company shall not be liable in
any such case to the extent that any such loss, claim, damage, liability (or
action or proceeding in respect thereof) or expense arises out of or is based
upon an untrue statement or alleged untrue statement, or omission or alleged
omission, made in such registration statement, any such prospectus or
preliminary prospectus or any amendment or supplement thereto, or in any
application, in reliance upon, and in conformity with, written information
prepared and furnished to the Company by such holder expressly for use therein
or by such holder's failure to deliver a copy of the registration statement or
prospectus or any amendments or supplements thereto after the Company has
furnished
-8-
such holder with a sufficient number of copies of the same. In connection with
an underwritten offering, the Company will indemnify such underwriters, their
officers and directors and each Person who controls such underwriters (within
the meaning of the Securities Act) to the same extent as provided above with
respect to the indemnification of the holders of Registrable Securities.
(b) In connection with any registration statement in which a holder of
Registrable Securities is participating, each such holder will furnish to the
Company in writing such information and affidavits as the Company reasonably
requests for use in connection with any such registration statement or
prospectus and, to the full extent permitted by law, will indemnify and hold
harmless the other holders of Registrable Securities, the Company, its
directors, officers, agents and employees and each other Person who controls the
Company (within the meaning of the Securities Act) against any losses, claims,
damages, liabilities, joint or several, together with reasonable costs and
expenses (including reasonable attorney's fees), to which such holder, the
Company or any such director or officer or controlling Person may become subject
under the Securities Act or otherwise, insofar as such losses, claims, damages
or liabilities (or actions or proceedings, whether commenced or threatened, in
respect thereof) arise out of or are based upon (i) any untrue or alleged untrue
statement of material fact contained in the registration statement, prospectus
or preliminary prospectus or any amendment thereof or supplement thereto or in
any application or (ii) any omission or alleged omission of a material fact
required to be stated therein or necessary to make the statements therein not
misleading, but only to the extent that such untrue statement or omission is
made in such registration statement, any such prospectus or preliminary
prospectus or any amendment or supplement thereto, or in any application, in
reliance upon and in conformity with written information prepared and furnished
to the Company by such holder expressly for use therein, and such holder will
reimburse the Company and each such director, officer and controlling Person for
any legal or any other expenses incurred by them in connection with
investigating or defending any such loss, claim, liability, action or
proceeding; provided, however, that the obligation to indemnify will be
individual to each holder and will be limited to the net amount of proceeds
received by such holder from the sale of Registrable Securities pursuant to such
registration statement.
(c) Any Person entitled to indemnification hereunder will (i) give
prompt written notice to the indemnifying party of any claim with respect to
which it seeks indemnification and (ii) unless in such indemnified party's
reasonable judgment a conflict of interest between such indemnified and
indemnifying parties may exist with respect to such claim, permit such
indemnifying party to assume the defense of such claim with counsel reasonably
satisfactory to the indemnified party. If such defense is assumed, the
indemnifying party will not be subject to any liability for any settlement made
by the indemnified party without its consent (but such consent will not be
unreasonably withheld). An indemnifying party who is not entitled to, or elects
not to, assume the defense of a claim will not be obligated to pay the fees and
expenses of more than one counsel for all parties indemnified by such
indemnifying party with respect to such claim, unless in the reasonable judgment
of any indemnified party a conflict of interest may exist between such
indemnified party and any other of such indemnified parties with respect to such
claim.
(d) The indemnifying party shall not, except with the approval of each
indemnified party, consent to entry of any judgment or enter into any settlement
which does not
-9-
include as an unconditional term thereof the giving by the claimant or plaintiff
to each indemnified party of a release from all liability in respect to such
claim or litigation without any payment or consideration provided by such
indemnified party.
(e) If the indemnification provided for in this Paragraph 6 is
unavailable to or is insufficient to hold harmless an indemnified party under
the provisions above in respect to any losses, claims, damages or liabilities
referred to therein, then each indemnifying party shall contribute to the amount
paid or payable by such indemnified party as a result of such losses, claims,
damages or liabilities (i) in such proportion as is appropriate to reflect not
only the relative benefits received by the Company on the one hand and the
sellers of Registrable Securities and any other sellers participating in the
registration statement on the other from the sale of Registrable Securities
pursuant to the registered offering of securities as to which indemnity is
sought but also the relative fault of the indemnified party and the indemnifying
party as well as any other relevant equitable considerations or (ii) if the
allocation provided by clause (i) above 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 Company on
the one hand and of the sellers of Registrable Securities and any other sellers
participating in the registration statement on the other in connection with the
registration statement or in connection with the statement or omissions which
resulted in such losses, claims, damages or liabilities, as well as any other
relevant equitable considerations. The relative benefits received by the Company
on the one hand and the sellers of Registrable Securities and any other sellers
participating in the registration statement on the other shall be deemed to be
in the same proportion as the total net proceeds from the offering (before
deducting expenses) to the Company bear to the total net proceeds from the
offering (before deducting expenses) to the sellers of Registrable Securities
and any other sellers participating in the registration statement. The relative
fault of the Company on the one hand and of the sellers of Registrable
Securities and any other sellers participating in the registration statement on
the other shall be determined by reference to, among other things, whether the
untrue or alleged omission to state a material fact relates to information
supplied by the Company or by the sellers of Registrable Securities or other
sellers participating in the registration statement and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission.
The Company and the sellers of Registrable Securities agree that it
would not be just and equitable if contribution pursuant to this Paragraph 6
were determined by pro rata allocation (even if the sellers of Registrable
Securities were treated as one entity for such purpose) or by any other method
of allocation which does not take account of the equitable considerations
referred to in the immediately preceding paragraph. The amount paid or payable
by an indemnified party as a result of the losses, claims, damages and
liabilities referred to in the immediately preceding paragraph shall be deemed
to include, subject to the limitations set forth above, any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Paragraph 6, no seller of Registrable Securities shall be
required to contribute any amount in excess of the net proceeds received by such
Seller from the sale of Registrable Securities covered by the registration
statement filed pursuant hereto. 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
fraudulent misrepresentation.
-10-
(f) The indemnification and contribution by any such party provided
for under this Agreement shall be in addition to any other rights to
indemnification or contribution which any indemnified party may have pursuant to
law or contract and will remain in full force and effect regardless of any
investigation made or omitted by or on behalf of the indemnified party or any
officer, director or controlling Person of such indemnified party and will
survive the transfer of securities.
7. Participation in Underwritten Registrations.
(a) No Person may participate in any registration hereunder which is
underwritten unless such Person (i) agrees to sell such Person's securities on
the basis provided in any underwriting arrangements approved by the Person or
Persons entitled hereunder to approve such arrangements (including, without
limitation, pursuant to the terms of any over-allotment or "green shoe" option
requested by the managing underwriter(s), provided that no holder of Registrable
Securities will be required to sell more than the number of Registrable
Securities that such holder has requested the Company to include in any
registration) and (ii) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents reasonably
required under the terms of such underwriting arrangements, except that no
Existing Stockholder shall be required to indemnify any underwriter beyond its
indemnification and contribution obligations hereunder.
(b) Each Person that is participating in any registration hereunder
agrees that, upon receipt of any notice from the Company of the happening of any
event of the kind described in paragraph 4(e) above, such Person will forthwith
discontinue the disposition of its Registrable Securities pursuant to the
registration statement until such Person's receipt of the copies of a
supplemented or amended prospectus as contemplated by such paragraph 4(e). In
the event the Company shall give any such notice, the applicable time period
mentioned in paragraph 4(b) during which a Registration Statement is to remain
effective shall be extended by the number of days during the period from and
including the date of the giving of such notice pursuant to this paragraph to
and including the date when each seller of a Registrable Security covered by
such registration statement shall have received the copies of the supplemented
or amended prospectus contemplated by paragraph 4(e).
8. Current Public Information. At all times after the Company has
filed a registration statement with the Securities and Exchange Commission
pursuant to the requirements of either the Securities Act or the Securities
Exchange Act, the Company will file all reports required to be filed by it under
the Securities Act and the Securities Exchange Act and the rules and regulations
adopted by the Securities and Exchange Commission thereunder, and will take such
further action as any holder or holders of Registrable Securities may reasonably
request, all to the extent required to enable such holders to sell Registrable
Securities pursuant to Rule 144 adopted by the Securities and Exchange
Commission under the Securities Act (as such rule may be amended from time to
time) or any similar rule or regulation hereafter adopted by the Securities and
Exchange Commission.
-11-
9. Definitions.
"Aggregate Permitted Amount" means the sum of the Permitted Amounts
for each holder of Management Registrable Securities.
"Bain Registrable Securities" means (i) any shares of Common Stock
issued to the Xxxx Group pursuant to the Recapitalization Agreement or held by
the Xxxx Group as of the date hereof, (ii) any shares of Common Stock otherwise
acquired by the Xxxx Group, and (iii) any shares of Common Stock issued or
issuable directly or indirectly with respect to the securities referred to in
clauses (i) or (ii) above by way of stock dividend or stock split or in
connection with a combination of shares, recapitalization, merger, consolidation
or other reorganization, including a recapitalization or exchange; provided,
however, that in the event that pursuant to such recapitalization or exchange
equity securities are issued which do not participate in the residual equity of
the Company ("Non-Participating Securities"), such Non-Participating Securities
will not be Registrable Securities.
"Class A Common" means the Class A Common Stock, par value $.01 per
share, of the Company.
"Class L Common" means the Class L Common Stock, par value $.01 per
share, of the Company.
"Common Stock" means the Class A Common and the Class L Common.
"Existing Stockholder Registrable Securities" means (i) any shares of
Common Stock issued to any Existing Stockholder pursuant to the Recapitalization
Agreement or held by an Existing Stockholder on the date hereof, (ii) any shares
of Common Stock issued or issuable upon conversion of the Preferred Stock, (iii)
any shares of Common Stock otherwise acquired by any Existing Stockholder and
(iv) any shares of Common Stock issued or issuable directly or indirectly with
respect to the securities referred to in clauses (i), (ii) or (iii) above by way
of stock dividend or stock split or in connection with a combination of shares,
recapitalization, merger, consolidation or other reorganization, including a
recapitalization or exchange; provided, however, that in the event that pursuant
to such recapitalization or exchange Non-Participating Securities are issued,
such Non-Participating Securities will not be Registrable Securities.
"Fair Market Value" of each share of Common Stock means the average of
the closing prices of the sales of the Common Stock on all securities exchanges
on which Common Stock may at the time be listed, or, if there have been no sales
on any such exchange on any day, the average of the highest bid and lowest asked
prices on all such exchanges at the end of such day, or, if on any day Common
Stock is not so listed, the average of the representative bid and asked prices
quoted in the NASDAQ System as of 3:00 P.M., Chicago time, or, if on any day
Common Stock is not quoted in the NASDAQ System, the average of the highest and
lowest asked prices on such day in the domestic over-the-counter market as
reported by the National Quotation Bureau Incorporated, or any similar successor
organization, in each such case as of the effective date of the applicable
registration hereunder.
-12-
"Management Registrable Securities" means (i) any shares of Common
Stock issued to any Management Stockholder pursuant to the Recapitalization
Agreement or held by any Management Stockholder as of the date hereof, (ii) any
shares of Common Stock issued or issuable upon the exercise of any stock options
issued to any Management Stockholder, (iii) any shares of Common Stock otherwise
acquired by any Management Stockholder and (iv) any shares of Common Stock
issued or issuable directly or indirectly with respect to the securities
referred to in clauses (i), (ii) or (iii) above by way of stock dividend or
stock split or in connection with a combination of shares, recapitalization,
merger, consolidation or other reorganization, including a recapitalization or
exchange; provided, however, that in the event that pursuant to such
recapitalization or exchange Non-Participating Securities are issued, such Non-
Participating Securities will not be Registrable Securities.
"Permitted Amount" means, with respect to a holder of Management
Registrable Securities, an amount of Management Registrable Securities with a
Fair Market Value on the effective date of a Management Demand Registration (the
"Determination Date") which, when added to the proceeds of any prior sale,
transfer or other disposition of such holder's Management Registrable
Securities, equals the aggregate amount of all federal, state, and local taxes
required to be paid by such holder (or on such holder's behalf) as a direct
result of the payment to such holder of a Deferred Bonus (as defined in the
agreement with respect to such Deferred Bonus between the Company and such
holder) minus the Fair Market Value on the Determination Date of the amount of
Management Registrable Securities permitted to be sold by such holder under Rule
144 (or any similar provision then if effect) under the Securities Act within
the one-year period following the date on which the "Permitted Amount" is being
determined; provided that the "Permitted Amount" shall be increased by an amount
of Management Registrable Securities with a Fair Market Value on the
Determination Date equal to the amount of any underwriter's discounts or
commissions, if any, payable by such holder in connection with the sale of such
holder's Permitted Amount (without giving effect to this proviso) of Management
Registrable Securities.
"Person" means an individual, a partnership, a joint venture, an
association, a joint stock company, a corporation, a trust, an unincorporated
organization and a governmental entity or any department, agency or political
subdivision thereof.
"Preferred Stock" means the Company's Series A Convertible Preferred
Stock, par value $.01 per share.
"Recapitalization Agreement" means that certain Recapitalization
Agreement dated as of the date hereof, among the Company, the Xxxx Group and the
Existing Stockholders.
"Registrable Securities" means collectively Bain Registrable
Securities, Xxxxxx Registrable Securities, Existing Stockholder Registrable
Securities and Management Registrable Securities. As to any particular shares
constituting Registrable Securities, such shares will cease to be Registrable
Securities when they have been (x) effectively registered under the Securities
Act and disposed of in accordance with the registration statement covering them,
or (y) sold to the public through a broker, dealer or market maker pursuant to
Rule 144 (or by similar provision then in force) under the Securities Act.
-13-
"Securities Act" means the Securities Act of 1933, as amended, or any
similar federal law then in force.
"Securities and Exchange Commission" includes any governmental body or
agency succeeding to the functions thereof.
"Securities Exchange Act" means the Securities Exchange Act of 1934,
as amended, or any similar federal law then in force.
"Xxxxxx Registrable Securities" means (i) any shares of Common Stock
issued to the Xxxxxx Group pursuant to the Recapitalization Agreement or held by
the Xxxxxx Group as of the date hereof, (ii) any shares of Common Stock
otherwise acquired by the Xxxxxx Group, and (iii) any shares of Common Stock
issued or issuable directly or indirectly with respect to the securities
referred to in clauses (i) or (ii) above by way of stock dividend or stock split
or in connection with a combination of shares, recapitalization, merger,
consolidation or other reorganization, including a recapitalization or exchange;
provided, however, that in the event that pursuant to such recapitalization or
exchange equity securities are issued which do not participate in the residual
equity of the Company ("Non-Participating Securities"), such Non-Participating
Securities will not be Registrable Securities.
Unless otherwise stated, other capitalized terms contained herein have
the meanings set forth in the Recapitalization Agreement.
10. Miscellaneous.
(a) No Inconsistent Agreements. The Company will not hereafter enter
into any agreement with respect to its securities which is inconsistent with or
violates the rights granted to the holders of Registrable Securities in this
Agreement.
(b) Adjustments Affecting Registrable Securities. The Company will
not take any action, or permit any change to occur, with respect to its
securities which would materially and adversely affect the ability of the
holders of Registrable Securities to include such Registrable Secu rities in a
registration undertaken pursuant to this Agreement or which would adversely
affect the marketability of such Registrable Securities in any such registration
(including, without limitation, effecting a stock split or a combination of
shares).
(c) Remedies. The parties hereto agree and acknowledge that money
damages may not be an adequate remedy for any breach of the provisions of this
Agreement and that any party hereto shall 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.
(d) Amendments and Waivers. Except as otherwise provided herein, the
provisions of this Agreement may be amended or waived only upon the prior
written consent of the Company, the holders of a majority of the Bain
Registrable Securities and the holders of a majority of the Existing Stockholder
Registrable Securities; provided, however, that in the event that such
-14-
amendment or waiver would treat a holder or group of holders of Registrable
Securities materially and adversely differently from any other holders of
Registrable Securities, then such amendment or waiver will require the consent
of such holder or the holders of a majority of the Registrable Securities of
such group materially adversely treated.
(e) Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of and be enforceable by the parties hereto and their
respective successors and assigns. In addition, and whether or not any express
assignment shall have been made, the provisions of this Agreement which are for
the benefit of the holders of Registrable Securities (or any portion thereof) as
such shall be for the benefit of and enforceable by any subsequent holder of any
Registrable Securities (or of such portion thereof).
(f) 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 invalid,
illegal or unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability shall not affect
any other provision or the effectiveness or validity of any provision in any
other jurisdiction, and this Agreement shall be reformed, construed and enforced
in such jurisdiction as if such invalid, illegal or unenforceable provision had
never been contained herein.
(g) Counterparts. This Agreement may be executed simultaneously in
two or more counterparts, any one of which need not contain the signatures of
more than one party, but all such counterparts taken together will constitute
one and the same Agreement.
(h) Descriptive Headings. The descriptive headings of this Agreement
are inserted for convenience only and do not constitute a part of this
Agreement.
(i) Governing Law. All issues concerning this Agreement shall 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.
(j) 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 personally delivered or
received by certified mail, return receipt requested, or sent by guaranteed
overnight courier service. Such notices, demands and other communications will
be sent to the Stockholders at the addresses indicated on the schedules hereto
and to any subsequent holder of Registrable Securities at such address as
indicated by the Company's records, or at such address or to the attention of
such other person as the recipient party has specified by prior written notice
to the sending party, and to the Company at the address indicated below:
-15-
Chief Executive Officer
Therma-Wave, Inc.
0000 Xxxxxxxx Xxx
Xxxxxxx, Xxxxxxxxxx 00000
Telecopier No. (000) 000-0000
with a copy (not to constitute notice to the Company) to:
Xxxx Capital, Inc.
Xxx Xxxxxx Xxxxx
Xxxxxx, XX 00000
Attention: Xxxx Xxxxxx
Telecopier: (000) 000-0000
and to:
Xxxxxxxx & Xxxxx
000 Xxxx Xxxxxxxx Xxxxx
Xxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxx
Xxxxxxx X. Xxxxxxx
Telecopier: (000) 000-0000
or to such other address or to the attention of such other person as the
recipient party has specified by prior written notice to the sending party.
* * * * *
-16-
IN WITNESS WHEREOF, the parties have executed this Registration
Agreement on the day and year first above written.
THERMA-WAVE, INC.
By: /s/ Xxxxx Xxxxxxxxxx
---------------------------------------
Its: President and Chief Executive Director
---------------------------------------
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 X. Xxxxxx
---------------------------------------
Its: Managing Director
---------------------------------------
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 X. Xxxxxx
---------------------------------------
Its: Managing Director
---------------------------------------
BCIP ASSOCIATES
By: /s/ Xxxx X. Xxxxxx
---------------------------------------
A General Partner
(Signature Page to Registration Agreement)
BCIP TRUST ASSOCIATES, L.P.
By: /s/ Xxxx X. Xxxxxx
-------------------------------
A General Partner
XXXXXXXX STREET PARTNERS
By: /s/ Xxxxxxx X. Xxxxxxx
-------------------------------
A General Partner
XXXXXX HILL VENTURES, a California limited
partnership
By: /s/ [signature illegible]
---------------------------------------
Its: General Partner of the General Partner
---------------------------------------
XXXXXX XXXX ASSOCIATES, L.P.
By: /s/ [signature illegible]
---------------------------------------
Its: General Partner
---------------------------------------
XXXXX FARGO BANK, TRUSTEE
SHV M/P/T FBO XXXXX X. XXXXXXXX
By: /s/ Xxxxxxxxxxx X. Xxxxxxxx
-------------------------------
Its: Assistant Vice President
-------------------------------
XXXXX FARGO BANK, TRUSTEE
SHV M/P/T FBO XXXXXXX XXXXX, XX.
By: /s/ Xxxxxxxxxxx X. Xxxxxxxx
-------------------------------
Its: Assistant Vice President
-------------------------------
(Signature Page to Registration Agreement)
XXXXX FARGO BANK, TRUSTEE
SHV M/P/T FBO XXXXXXX X. XXXXXXX, XX.
By: /s/ Xxxxxxxxxxx X. Xxxxxxxx
-----------------------------------
Its: Assistant Vice President
----------------------------------
XXXXX FARGO BANK, TRUSTEE
SHV M/P/T FBO XXXXX XXXX
By: /s/ Xxxxxxxxxxx X. Xxxxxxxx
-----------------------------------
Its: Assistant Vice President
----------------------------------
XXXXX FARGO BANK, TRUSTEE
SHV M/P/T FBO XXXXXXX X. XXXXXXX
By: /s/ Xxxxxxxxxxx X. Xxxxxxxx
-----------------------------------
Its: Assistant Vice President
----------------------------------
TORAY INDUSTRIES, INC.
By: /s/ Xxxxx Xxxxxxxxx
-----------------------------------
Its: General Manager
----------------------------------
TORAY INDUSTRIES (AMERICA), INC.
By: /s/ Xx. Xxxx
-----------------------------------
Its:
----------------------------------
(Signature Page to Registration Agreement)
SHIMADZU CORPORATION
By: /s/ Shoji Onosce
-------------------------
Its:________________________
/s/ Xxxxx Xxxxxxxxxx
_____________________________________________
Xxxxx Xxxxxxxxxx
/s/ Xxxxxxx X. Xxx
_____________________________________________
Xxxxxxx X. Xxx
/s/ W. Xxx Xxxxx
_____________________________________________
W. Xxx Xxxxx
/s/ Xxxxx Xxxxxxxxxx
_____________________________________________
Xxxxx Xxxxxxxxxx
/s/ Xxx Xxxxx
_____________________________________________
Xxx Xxxxx
(Signature Page to Registration Agreement)
XXXXX FARGO BANK, TRUSTEE
SHV M/P/T FBO XXXX X. XXXXXX
By: /s/ Xxxxxxxxxxx X. Xxxxxxxx
--------------------------------
Its: Assistant Vice President
--------------------------------
ANTARES INTERNATIONAL PARTNERS, INC.
By: /s/ Xxxx X. Xxxx
--------------------------------
Its: Managing Director
--------------------------------
(Signature Page to Registration Agreement)
Schedule A
----------
The Xxxx Group
--------------
Xxxx Capital Fund V, X.X.
Xxxx Capital Fund V-B, L.P.
BCIP Associates
BCIP Trust Associates, L.P.
c/o Bain Capital, Inc.
Two Xxxxxx Place
Boston, MA 02116
Attention: Xxxx Xxxxxx
with a copy to:
Xxxxxxxx & Xxxxx
000 Xxxx Xxxxxxxx Xxxxx
Xxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxx
Xxxxxxx X. Xxxxxxx
Xxxxxxxx Street Partners
c/o Bain Capital, Inc.
Two Xxxxxx Place
Boston, MA 02116
Attention: Xxxx Xxxxxx
with a copy to:
Xxxxxxxx & Xxxxx
000 Xxxx Xxxxxxxx Xxxxx
Xxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxx
Xxxxxxx X. Xxxxxxx
Schedule B
----------
The Xxxxxx Group
----------------
Xxxxxx Hill Ventures, a California limited partnership
000 Xxxx Xxxx Xxxx
Xxxxx X-000
Xxxx Xxxx, XX 00000
Attention: G. Xxxxxxx Xxxxx
Xxxxxx Xxxx Associates, L.P.
000 Xxxx Xxxx Xxxx
Xxxxx X-000
Xxxx Xxxx, XX 00000
Attention: G. Xxxxxxx Xxxxx
Xxxxx Fargo Bank, Trustee
SHV M/P/T FBO Xxxx X. Xxxxxx
P.O. Box 63050 MAC 0188-161
Xxx Xxxxxxxxx, XX 00000
Attention: Xxxxx Xxxxxxxx
Xxxxx Fargo Bank, Trustee
SHV M/P/T FBO Xxxxx X. Xxxxxxxx
P.O. Box 63050 MAC 0188-161
Xxx Xxxxxxxxx, XX 00000
Attention: Xxxxx Xxxxxxxx
Xxxxx Fargo Bank, Trustee
SHV M/P/T FBO Xxxxxxx Xxxxx, Xx.
P.O. Box 63050 MAC 0188-161
Xxx Xxxxxxxxx, XX 00000
Attention: Xxxxx Xxxxxxxx
Xxxxx Fargo Bank, Trustee
SHV M/P/T FBO Xxxxxxx X. Xxxxxxx, Xx.
P.O. Box 63050 MAC 0188-161
Xxx Xxxxxxxxx, XX 00000
Attention: Xxxxx Xxxxxxxx
Xxxxx Fargo Bank, Trustee
SHV M/P/T FBO Xxxxx Xxxx
P.O. Box 63050 MAC 0188-161
Xxx Xxxxxxxxx, XX 00000
Attention: Xxxxx Xxxxxxxx
Xxxxx Fargo Bank, Trustee
SHV M/P/T FBO Xxxxxxx X. Xxxxxxx
P.O. Box 63050 MAC 0188-161
Xxx Xxxxxxxxx, XX 00000
Attention: Xxxxx Xxxxxxxx
Schedule C
----------
Existing Stockholders
---------------------
Toray Industries, Inc.
0-0-0 Xxxxxxxxxx-Xxxxxxxxx
Xxxx-xx, Xxxxx 000 Xxxxx
Attention: Xxxxxx Xxxxxxxx
Shimadzu Corporation
0, Xxxxxxxxxx-Xxxxxxxxxxx
Xxxxxxx-xx, Xxxxx 000, Xxxxx
Attention: Soju Onose
Toray Industries (America), Inc.
000 Xxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xx. Xxxxxx
Schedule D
----------
Management Stockholders
-----------------------
Xxxxx Xxxxxxxxxx
Xxxxxxx X. Xxx
W. Xxx Xxxxx
Xxxxx Xxxxxxxxxx
Xxx Xxxxx
