EXHIBIT 10.9
AMENDMENT NO. 2 TO
EMPLOYMENT AGREEMENT
THIS AMENDMENT NO. 2 TO EMPLOYMENT AGREEMENT (this "Amendment") is made
and entered into as of March 25, 2004, between Therma-Wave, Inc., a Delaware
corporation (the "Company"), and Xxxxx Xxxxxx ("Executive") and amends that
Employment Agreement, entered into as of February 5, 2003, between the Company
and Executive (the "Original Agreement") and Amendment No. 1 to the Original
Agreement, entered into as of August 21, 2003 between the Company and Executive
(together with the Original Agreement, the "Amended Agreement"). All terms used
herein but not defined herein shall have the meanings given them in the Amended
Agreement.
WHEREAS, the Company's Board of Directors wishes to amend the Amended
Agreement to reward Executive for work well done as the Company's President and
Chief Executive Officer.
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. Amendment. Clause (iv) of Section 5(h) of the Amended Agreement shall be
amended and restated as follows:
"(iv) after a Change of Control Executive (A) is not subsequently offered
a comparable position to that of President and Chief Executive Officer
with comparable Base Salary, Bonus and Benefits (a 'Comparable Position')
or (B) is offered and accepts a Comparable Position but, within 24 months
of the Change of Control, terminates his employment in such Comparable
Position for any of the reasons listed in clauses (i)-(iii) or (v) of this
Section 5(h)."
2. Effect of Amendment. Except as herein expressly amended, all terms,
covenants and provisions of the Amended Agreement are and shall remain in
full force and effect, and all references therein to the "Agreement" shall
henceforth refer to the Amended Agreement as amended by this Amendment.
This Amendment shall be deemed incorporated into, and a part of, the
Amended Agreement.
3. Complete Agreement. This Amendment, the Amended Agreement and those
documents expressly referred to herein and therein embody the complete
agreement and understanding between the parties and supersede and preempt
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.
4. Successors and Assigns. This Amendment is intended to bind and inure to
the benefit of and be enforceable by Executive and the Company and their
respective heirs, successors and assigns, except that Executive may not
assign his rights or delegate his obligations hereunder without the prior
written consent of the Company.
5. Choice of Law. All issues and questions concerning the construction,
validity, enforcement and interpretation of this Amendment and the
exhibits and schedules hereto shall be governed by, and construed in
accordance with, the laws of the State of California, without giving
effect to any choice of law or conflict of law rules or provisions
(whether of the State of California or any other jurisdiction) that would
cause the application of the laws of any jurisdiction other than the State
of California.
6. Amendment and Waiver. The provisions of this Amendment or the Amended
Agreement may be amended or waived only with the prior written consent of
the Company and Executive, and no course of conduct or failure or delay in
enforcing the provisions of this Amendment shall affect the validity,
binding effect or enforceability of this Amendment or the Amended
Agreement.
2
The undersigned have executed this Amendment No. 2 to Employment Agreement
as of March 25, 2004.
THERMA-WAVE, INC.
By: /s/ L. Xxx Xxxxxxxx
---------------------------------
Name: L. Xxx Xxxxxxxx
Title: Senior VP and CFO
/s/ Xxxxx Xxxxxx
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Xxxxx Xxxxxx
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