Exhibit 10.11
STOCKHOLDERS AGREEMENT
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THIS STOCKHOLDERS AGREEMENT (this "Agreement") is made as of May __,
1997, by and among Therma-Wave, Inc., a Delaware corporation (the "Company"),
each of the Persons listed on Schedule I attached hereto or certain designees
thereof that execute a counterpart to this Agreement (the "Xxxx Group"), each of
the Persons listed on Schedule II attached hereto (the "Xxxxxx Group"), and each
of the Persons listed on Schedule III attached hereto (the "Existing
Stockholders"), and Antares International Partners, Inc. ("Antares") (the Xxxx
Group, the Xxxxxx Group, the Existing Stockholders and Antares are collectively
referred to herein as the "Stockholders," and each as a "Stockholder"). Unless
otherwise indicated herein, capitalized terms used herein are defined in Section
7 hereof.
WHEREAS, the Company, as of the date hereof, is authorized by its
Certificate of Incorporation to issue capital stock consisting of 2,000,000
shares of its Class L Common Stock, par value $.01 per share ("Class L Common"),
20,000,000 shares of its Class A Common Stock, par value $.01 per share ("Class
A Common"), 4,000 shares of its Class B Common Stock, par value $.01 per share
("Class B Common"), and 1,000,000 shares of its Series A Convertible Preferred
Stock, par value $.01 per share ("Series A Preferred"). The Class L Common, the
Class A Common and the Class B Common are sometimes collectively referred to
herein as "Common Stock".
WHEREAS, the Stockholders and the Company desire to enter into this
Agreement to establish the composition of the Company's Board of Directors (the
"Board"), to restrict the sale, assignment, transfer, encumbrance or other
disposition of the Common Stock and to provide for certain rights and
obligations in respect thereto as hereinafter provided.
NOW, THEREFORE, the Company and the Stockholders hereby agree as
follows:
1. Voting Agreement.
(a) From and after the date of this Agreement each holder of
Stockholder Shares shall vote all of his or its Stockholder Shares and shall
take all other necessary or desirable actions within his or its control (whether
in his or its capacity as a stockholder 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 within
its control (including, without limitation, calling special board and
stockholder meetings), so that:
(i) the authorized number of directors on the Board shall be
established at 5 directors;
(ii) the following individuals shall be elected to the Board:
a. 2 representatives designated by Xxxx Capital Fund V, L.P.
("BCF V");
b. 1 representatives designated by Xxxx Capital Fund V-B, L.P.
("BCF V-B");
c. 1 representatives designated by BCIP Associates ("BCIP"); and
d. 1 representatives designated by BCIP Trust Associates, L.P.
("BCIP Trust"); and
(iii) the removal from the Board (with or without cause) of any
representative designated hereunder by BCF V, BCF V-B, BCIP, or BCIP Trust
shall be at BCF V's, BCFV-B's, BCIP's, BCIP Trust's written request,
respectively, but only upon such written request and under no other
circumstances; and
(iv) in the event that any representative designated hereunder by BCF
V, BCF V-B, BCIP, BCIP Trust 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
BCIP Trust, 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.
(c) The provisions of this Section 1 shall terminate upon the
consummation of a Public Offering.
2. Restrictions on Transfer of Stockholder Shares.
(a) Transfer of Stockholder Shares. No holder of Stockholder Shares
shall sell, transfer, assign, pledge or otherwise dispose of (a "Transfer") any
interest in any Stockholder Shares, except pursuant to and in accordance with
Sections 2(b), 2(c), 2(d) and 3 below. Each Stockholder agrees not to
consummate any Transfer until 20 days after the later of the delivery to the
Company and, to the extent required below, the other holders of Stockholder
Shares, of such Stockholder's Sale Notice or Transfer Notice (if any) (each as
defined below), unless the parties to the Transfer have been finally determined
pursuant to this Section 2 prior to the expiration of such 20-day period (the
date of the first to occur of such events is referred to herein as the
"Authorization Date"). Notwithstanding anything to the contrary in this
Agreement, (i) no holder of Stockholder Shares shall transfer any Stockholder
Shares to any Person who is a direct or indirect competitor of the Company or
any of its subsidiaries, (ii) until July 1, 1998, no Existing Stockholder shall
Transfer any interest in any Stockholder Shares, except pursuant to and in
accordance with Sections 2(c), 2(d) and 3 and (iii) no member of the Xxxxxx
Group may Transfer any interest in any Stockholder Shares, except pursuant to
and in accordance with Sections 2(c), 2(d) and 3.
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(b) First Refusal Rights.
(i) Prior to making any Transfer other than pursuant to Section 3,
each Existing Stockholder seeking to Transfer any interest in any
Stockholder Shares (a "Selling Stockholder"), shall deliver written notice
(the "Sale Notice") to the Company and to the Xxxx Group. Such Sale Notice
shall disclose in reasonable detail the identity of the prospective
transferee(s), the number of shares to be transferred and the terms and
conditions of the proposed transfer.
(ii) The Company may elect to purchase all or a portion of the shares
specified in the Sale Notice (the "Sale Stock") upon the same terms and
conditions as those set forth in the Sale Notice by delivering a written
notice of such election to the Selling Stockholder and the Xxxx Group
within 15 days after the Sale Notice has been delivered to the Company. If
the Company has not elected to purchase all of the Sale Stock, the Xxxx
Group may elect to purchase all or a portion of the Sale Stock upon the
same terms and conditions as those set forth in the Sale Notice by
delivering written notice of such election to the Selling Stockholder
within 20 days after the Sale Notice has been given to the Xxxx Group. If
neither the Company nor the Xxxx Group elects to purchase all of the shares
of Sale Stock, the Selling Stockholder may transfer the shares of Sale
Stock, at a price and on terms no more favorable to the transferee(s)
thereof than specified in the Sale Notice, during the 60-day period
immediately following the Authorization Date. Any shares of Sale Stock not
transferred within such 60-day period shall be subject to the provisions of
this Section 2(b) upon subsequent transfer. If the Company or the Xxxx
Group have elected to purchase all of the shares of Sale Stock hereunder,
the Transfer of such shares shall be consummated as soon as practical after
the delivery of notice of such election to the Selling Stockholder, but in
any event within 30 days after the delivery of such notice of election.
(c) Participation Rights.
(i) At least 20 days prior to any Transfer of Stockholder Shares by
any member of the Xxxx Group (the "Transferring Stockholder"), the
Transferring Stockholder will deliver a written notice (the "Transfer
Notice") to the Company, the Xxxxxx Group and the Existing Stockholders
specifying in reasonable detail the identity of the prospective
transferee(s) and the terms and conditions of the Transfer. Any member of
the Xxxxxx Group and any Existing Stockholder may elect to participate in
the contemplated Transfer by delivering written notice to the Transferring
Stockholder within 20 days after delivery of the Transfer Notice. If any
Stockholders (other than the Transferring Stockholders) have elected to
participate in such Transfer ("Participating Stockholder(s)"), the
Transferring Stockholder and each Participating Stockholder will be
entitled to sell in the contemplated Transfer, at the same price and on the
same terms, a number of shares of Common Stock equal to the product of (A)
the quotient determined by dividing the number of shares of Stockholder
Shares owned by such Transferring Stockholder or Participating Stockholder
by the aggregate number of outstanding shares of Stockholder Shares owned
by the Transfer ring Stockholder and all Participating Stockholders (on a
fully diluted basis and assuming for such purpose that all shares of Common
Stock issuable upon conversion of the Preferred
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Stock are outstanding) and (B) the number of shares of Stockholder Shares
to be sold in the contemplated Transfer.
Notwithstanding the foregoing, in the event that the Transferring
Stockholder intends to Transfer shares of more than one class of Common
Stock, each Participating Stockholder shall be required to sell in the
contemplated Transfer a pro rata portion of shares of all such classes of
Stockholder Shares, which portion shall be determined in the manner set
forth immediately above. Any holder of Preferred Stock participating in
such Transfer shall be entitled to sell in such Transfer up to such
holder's pro-rata portion of each class of Stockholder Shares and shall
have the opportunity to either (x) sell Common Stock of such class obtained
upon exercise of such holder's Preferred Stock or (y) sell Shares of
Preferred Stock convertible into shares of such class of Common Stock.
(ii) The Transferring Stockholder will use reasonable efforts to
obtain the agreement of the prospective transferee(s) to the participation
of any Participating Stockholders in any contemplated Transfer and to the
inclusion of the Preferred Stock in any contemplated transfer, and the
Transferring Stockholder will not transfer any of its Stockholder Shares to
the prospective transferee(s) unless (A) the prospective transferee(s)
agrees to allow the participation of the other Stockholders and the
inclusion of the Preferred Stock or (B) the Transferring Stockholder agrees
to purchase the number of such class of Stockholder Shares or portion of
the Preferred Stock (based upon the number of Stockholder Shares obtainable
upon conversion thereof) from any Participating Stockholders which the
Participating Stockholders would have been entitled to sell pursuant to
this Section 2(c).
(d) Permitted Transfers. Notwithstanding anything to the contrary in
any other provision of this Agreement, the restrictions contained in this
Section 2 shall not apply to (i) any Transfer of Stockholder Shares by any
Stockholder to or among any of its Affiliates, (ii) a Public Sale, (iii)
Transfers among Existing Stockholders, or (iv) an Approved Sale (as hereinafter
defined); provided that the restrictions contained in this Agreement will
continue to be applicable to the Stockholder Shares after any Transfer pursuant
to clause (i) above and the transferees of such Stockholder Shares shall agree
in writing to be bound by the provisions of this Agreement. Upon the Transfer of
Stockholder Shares pursuant to this Section 2(d), the transferees will deliver a
written notice to the Company, which notice will, in the case of a Transfer
pursuant to clause (i) above, disclose in reasonable detail the identity of such
transferee.
(e) Termination of Restrictions. The restrictions set forth in this
Section 2 shall continue with respect to each Stockholder Share until the
earlier of (i) the date on which such Stockholder Share has been transferred in
a Public Sale, (ii) the consummation of an Approved Sale, or (iii) the
consummation of a Public Offering.
3. Sale of the Company.
(a) If the holders of a majority of the Xxxx Shares (the "Majority
Xxxx Stockholders") approve a sale of all or substantially all of the Company's
assets determined on a consolidated basis or a sale of all or substantially all
of the Company's outstanding capital stock
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(whether by merger, recapitalization, consolidation, reorganization, combination
or otherwise) to an Independent Third Party (collectively an "Approved Sale"),
each holder of Stockholder Shares will consent to and raise no objections
against such Approved Sale. If the Approved Sale is structured as (i) a merger
or consolidation, each holder of Stockholder Shares will waive any dissenters
rights, appraisal rights or similar rights in connection with such merger or
consolidation or (ii) sale of stock, each holder of Stockholder Shares will
agree to sell all of his Stockholder Shares and rights to acquire Stockholder
Shares on the terms and conditions approved by the Majority Xxxx Stockholders.
Each holder of Stockholder Shares will take all necessary or desirable actions
in connection with the consummation of the Approved Sale as requested by the
Company.
(b) The obligations of the holders of Stockholder Shares with respect
to an Approved Sale are subject to the satisfaction of the following conditions:
(i) upon the consummation of the Approved Sale, each holder of Stockholder
Shares will receive the same form of consideration and the same portion of the
aggregate consideration that such holders of Stockholder Shares would have
received if such aggregate consideration had been distributed by the Company in
complete liquidation pursuant to the rights and preferences set forth in the
Company's Certificate of Incorporation as in effect immediately prior to such
Approved Sale; (ii) each holder of shares of a class of Stockholder Shares will
be given the same consideration with respect to each share of such class, and,
if any holders of Stockholder Shares are given an option as to the form and
amount of consideration to be received, each holder of Stockholder Shares will
be given the same option; and (iii) each holder of then currently exercisable
rights to acquire shares of Stockholder Shares will be given an opportunity to
exercise such rights prior to the consummation of the Approved Sale and
participate in such sale as holders of Stockholder Shares. Notwithstanding
anything herein to the contrary, (i) the Existing Stockholders shall not be
required to provide indemnification in connection with such Approved Sale, (ii)
in no event shall an Existing Stockholder be required to enter into an agreement
not to compete in connection with such Approved Sale, and (iii) in determining
the amount of consideration to be paid to the Existing Stockholders in such
Approved Sale, all consideration paid directly or indirectly to the Xxxx Group
in connection with such Approved Sale (other than customary investment banking
and legal fees) shall be taken into account.
(c) If the Company or the holders of the Company's securities enter
into any negotiation or transaction for which Rule 506 (or any similar rule then
in effect) promulgated by the Securities and Exchange Commission may be
available with respect to such negotiation or transaction (including a merger,
consolidation or other reorganization), the holders of Stockholder Shares that
are not accredited investors will, at the request of the Company, appoint a
purchaser representative (as such terms are defined in Rule 501) reasonably
acceptable to the Company. If any holder of Stockholder Shares appoints a
purchaser representative designated by the Company, the Company will pay the
fees of such purchaser representative, but if any holder of Stockholder Shares
declines to appoint the purchaser representative designated by the Company such
holder will appoint another purchaser representative, and such holder will be
responsible for the fees of the purchaser representative so appointed.
(d) Holders of Stockholder Shares will bear their pro-rata share
(based upon the number of shares sold) of the costs of any sale of Stockholder
Shares pursuant to an Approved Sale to the extent such costs are incurred for
the benefit of all holders of Common Stock and are not
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otherwise paid by the Company or the acquiring party. Costs incurred by holders
of Stockholder Shares on their own behalf will not be considered costs of the
transaction hereunder.
(e) The provisions of this Section 3 will terminate upon completion of
a Public Offering.
4. Preemptive Rights.
(a) Except as set forth in subsection (b) below, the Company will not
issue, sell or otherwise transfer for consideration to any member of the Xxxx
Group or Affiliate thereof (an "Issuance") at any time prior to a Public
Offering, any Common Stock (or securities convertible into or exercisable or
exchangeable for Common Stock or securities containing any profit participation
features or options to purchase Common Stock or any stock appreciation right or
phantom stock plan) unless, at least 30 days and not more than 60 days prior to
such Issuance, the Company notifies each holder of Stockholder Shares in writing
of the Issuance (including the price, the purchasers thereof and the other terms
thereof) and grants to each holder of Stockholder Shares, the right (the
"Right") to subscribe for and purchase a portion of such additional shares or
other securities so issued at the same price and on the same terms as issued in
the Issuance equal to the quotient determined by dividing (1) the number of
fully diluted shares of Common Stock held by such holder by (2) the total number
of shares of Common Stock outstanding on a fully diluted basis. Notwithstanding
the foregoing, if all Persons entitled to purchase or receive such stock or
securities are required to also purchase other securities of the Company, the
holders of Stockholder Shares exercising their Right pursuant to this Section
shall also be required to purchase the same strip of securities (on the same
terms and conditions) that such other Persons are required to purchase; provided
that, at the request of any holder of Stockholders Shares, the Company shall
offer to such holder stock or securities which have no voting rights (other than
required by applicable law) and which are convertible into voting securities but
which are otherwise identical to the stock or securities being offered. The
Right may be exercised by such holder at any time by written notice to the
Company received by the Company within 15 days after receipt by such holder of
the notice from the Company referred to above. The closing of the purchase and
sale pursuant to the exercise of the Right shall occur not less than 10 days
after the Company receives notice of the exercise of the Right and concurrently
with the closing of the Issuance. In the event that the consideration received
by the Company in connection with an Issuance is property other than cash, each
holder of Stockholder Shares may, at its election, pay the purchase price for
such additional shares or other securities in such property or solely in cash.
In the event that any such holder elects to pay cash, the amount thereof shall
be determined based on the fair value of the consideration received or
receivable by the Company in connection with the Issuance.
(b) Notwithstanding the foregoing, the Right shall not apply to (i)
issuances of Common Stock (or securities convertible into or exchangeable for,
or options to purchase, Common Stock), pro rata to all holders of Common Stock,
as a dividend on, subdivision of or other distribution in respect of, the Common
Stock in accordance with the Company's Certificate of Incorporation, (ii) the
issuance of Common Stock upon conversion of the Preferred Stock, or (iii) the
issuance of Common Stock (or securities convertible into or exchangeable for, or
options to
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purchase, Common Stock) on customary, arm's length terms in connection with the
provision by the Xxxx Group (or Affiliates thereof) of debt financing to the
Company or its Subsidiaries.
(c) The provisions of this Section 4 will terminate upon the
consummation of a Public Offering.
5. Legend. Each certificate evidencing Stockholder Shares and each
certificate issued in exchange for or upon the transfer of any Stockholder
Shares (if such shares remain Stockholder Shares as defined herein after such
Transfer) shall be stamped or otherwise imprinted with a legend in substantially
the following form:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO
CERTAIN TRANSFERS AND VOTING RESTRICTIONS PURSUANT TO
STOCKHOLDERS AGREEMENT DATED AS OF MAY 16, 1997, AMONG THE
ISSUER OF SUCH SECURITIES (THE "COMPANY") AND CERTAIN OF THE
COMPANY'S STOCKHOLDERS. A COPY OF SUCH STOCKHOLDERS AGREEMENT
WILL BE FURNISHED WITHOUT CHARGE BY THE COMPANY TO THE HOLDER
HEREOF UPON WRITTEN REQUEST."
The Company shall imprint such legend on certificates evidencing Stockholder
Shares outstanding prior to the date hereof. The legend set forth above shall
be removed from the certificates evidencing any shares which cease to be
Stockholder Shares in accordance with the definition thereof in Section 7.
6. Transfer. Prior to Transferring any Stockholder Shares (other
than in a Public Sale or in an Approved Sale) to any person or entity, the
transferring Stockholder shall cause the prospective transferee to execute and
deliver to the Company and the other Stockholders a counterpart of this
Agreement.
7. Definitions.
"Affiliate" of a Stockholder means any other person, entity or
investment fund controlling, controlled by or under common control with the
Stockholder and, in the case of a Stockholder which is a partnership, any
partner of the Stockholder.
"Xxxx Shares" means (i) any Common Stock issued to the Xxxx Group
pursuant to the Recapitalization Agreement, (ii) any shares of Common Stock
otherwise acquired by the Xxxx Group and (iii) any equity securities issued or
issuable directly or indirectly with respect to the Common Stock referred to in
clauses (i) or (ii) by way of stock dividend or stock split or in connection
with a combination of shares, recapitalization, merger, consolidation or other
reorganization.
"Certificate of Incorporation" means the Company's certificate of
incorporation in effect at the time as of which any determination is being made.
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"Existing Stockholder Shares" means (i) any shares of Common Stock
issued to the Existing Stockholders pursuant to the Recapitalization Agreement
or held by the Existing Stockholders as of the date hereof, (ii) any shares of
Common Stock otherwise acquired by the Existing Stockholders, (iii) any shares
of Common Stock issued or issuable upon conversion of the Preferred Stock, and
(iv) any equity securities issued or issuable directly or indirectly with
respect to the Common Stock referred to in clauses (i), (ii) and (iii) by way of
stock dividend or stock split or in connection with a combination of shares,
recapitalization, merger, consolidation or other reorganization.
"Family Group" means a Stockholder's spouse and descendants (whether
or not adopted) and any trust solely for the benefit of the Stockholder and/or
the Stockholder's spouse and/or descendants.
"Independent Third Party" means any Person who, immediately prior to
the contemplated transaction, does not own in excess of 5% of the Company's
Common Stock on a fully-diluted basis (a "5% Owner"), and who is not
controlling, controlled by or under common control with any such 5% Owner or, in
the case of a partnership, is a general partner thereof.
"Person" means an individual, a partnership, a corporation, a limited
liability company, an association, a joint stock company, a trust, a joint
venture, an unincorporated organization and a governmental entity or any
department, agency or political subdivision thereof.
"Public Company" shall mean a company (i) which is subject to the
reporting requirements of Section 15(d) of the Securities Exchange Act or (ii)
any of whose securities are registered pursuant to Section 12(b) or 12(g) of the
Securities Exchange Act.
"Public Offering" means an initial public offering and sale of Common
Stock pursuant to an effective registration statement under the Securities Act.
"Public Sale" means any sale of Stockholder Shares to the public
pursuant to an offering registered under the Securities Act or to the public
through a broker, dealer or market maker pursuant to the provisions of Rule 144
(other than Rule 144(k) prior to the time the Company is a Public Company)
adopted under the Securities Act.
"Recapitalization Agreement" means the Recapitalization Agreement,
dated as of December 18, 1996, among the Company, the Xxxx Group and the
Existing Stockholders.
"Registration Agreement" means that certain Registration Agreement
dated the date hereof, between the Company and certain of its stockholders.
"Securities Act" means the Securities Act of 1933, as amended from
time to time.
"Securities Exchange Act" means the Securities Exchange Act of 1934,
as amended.
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"Stockholder Shares" means the Xxxx Shares, the Xxxxxx Shares and the
Existing Stockholder Shares. As to any particular shares constituting
Stockholder Shares, such shares will cease to be Stockholder Shares 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 any
similar provision then in force) under the Securities Act.
"Xxxxxx Shares" means (i) any Common Stock issued to the Xxxxxx Group
pursuant to the Recapitalization Agreement, (ii) any shares of Common Stock
otherwise acquired by the Xxxxxx Group and (iii) any equity securities issued or
issuable directly or indirectly with respect to the Common Stock referred to in
clauses (i) or (ii) by way of stock dividend or stock split or in connection
with a combination of shares, recapitalization, merger, consolidation or other
reorganization.
8. Information Rights.
(a) Quarterly Information. Except for any quarter at the end of which
the Company is a Public Company, the Company shall deliver to each Existing
Stockholder as soon as practicable after the end of each of the first three
quarterly fiscal periods in each fiscal year of the Company, and in any event
within 45 days thereafter, a copy of (i) an unaudited consolidated balance sheet
of the Company and its subsidiaries as at the end of such quarter, and (ii) an
unaudited consolidated statement of income of the Company and its subsidiaries
for such quarter and (in the case of the second and third quarters) for the
portion of the fiscal year ending with such quarter. Such statements will be
prepared in accordance with United States generally accepted accounting
principles ("GAAP"), consistently applied, subject to normal year end audit
adjustments and to the absence of footnotes.
(b) Annual Information. Except following any year at the end of which
the Company is a Public Company, the Company shall deliver to each Existing
Stockholder as soon as practicable after the end of each fiscal year of the
Company, and in any event within 90 days thereafter, a copy of (i) an audited
consolidated balance sheet of the Company and its subsidiaries as at the end of
such year, and (ii) audited consolidated statements of income, retained earnings
and consolidated cash flows of the Company and its subsidiaries for such year;
setting forth in each case in comparative form the figures for the previous
years. Such statements shall be (i) prepared in accordance with GAAP,
consistently applied, (ii) in reasonable detail and (iii) certified by a firm of
independent certified public accountants of recognized national standing
selected by the Company.
9. Capitalization. The Company hereby represents and warrants that,
as of the closing under the Recapitalization Agreement and immediately
thereafter, the authorized capital stock of the Company shall consist of (a)
1,000,000 shares of Series A Preferred (of which 748,739 shares shall be issued
and outstanding), (b) 2,000,000 shares of Class L Common, of which 1,008,170
shares shall be issued and outstanding, (c) 20,000,000 shares of Class A Common,
of which 9,073,532 shares shall be issued and outstanding and 750,000 shares
shall be reserved for issuance upon conversion of the Series A Preferred, and
(d) 4,000,000 shares of Class B Common, up to 2,687,500 of which shares shall
either be outstanding or reserved for issuance upon exercise
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of stock options granted to the Company's employees (the "Key Employee
Options"). As of the Closing, neither the Company nor any subsidiary of the
Company shall have outstanding any stock or securities convertible or
exchangeable for any shares of its capital stock or containing any profit
participation features, nor shall it have outstanding any rights or options to
subscribe for or to purchase its capital stock or any stock or securities
convertible into or exchangeable for its capital stock or any stock appreciation
rights or phantom stock plans, except for the Series A Preferred, the Key
Employee Options and the Warrants.
10. Transfers in Violation of Agreement. Any Transfer or attempted
Transfer of any Stockholder Shares in violation of any provision of this
Agreement shall be void, and the Company shall not record such Transfer on its
books or treat any purported transferee of such Stockholder Shares as the owner
of such shares for any purpose.
11. Amendment and Waiver. Except as otherwise provided herein, no
modification, amendment or waiver of any provision of this Agreement shall be
effective against the Company or the Stockholders unless such modification,
amendment or waiver is approved in writing by the Company and the holders of at
least a majority of the then outstanding Xxxx Shares and the holders of at least
a majority of the then outstanding Existing Stockholder Shares. The failure of
any party to enforce any of the provisions of this Agreement shall in no way be
construed as a waiver of such provisions and shall not affect the right of such
party thereafter to enforce each and every provision of this Agreement in
accordance with its terms.
12. 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.
13. Entire Agreement. Except as otherwise expressly set forth
herein, this document, the Recapitalization Agreement and the Registration
Agreement embody the complete agreement and understanding among the parties
hereto with respect to the subject matter hereof 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.
14. Successors and Assigns. Except as otherwise provided herein,
this Agreement shall bind and inure to the benefit of and be enforceable by the
Company and its successors and assigns and the Stockholders and any subsequent
holders of Stockholder Shares and the respective successors and assigns of each
of them, so long as they hold Stockholder Shares.
15. Counterparts. This Agreement may be executed in one or more
counterparts each of which shall be an original and all of which taken together
shall constitute one and the same agreement.
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16. 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 the Company and any Stockholder shall have the right to
injunctive relief, in addition to all of its rights and remedies at law or in
equity, to enforce the provisions of this Agreement. Nothing contained in this
Agreement shall be construed to confer upon any Person who is not a signatory
hereto any rights or benefits, as a third party beneficiary or otherwise.
17. Arbitration.
(a) Arbitration. In the event of disputes between the parties with
respect to the terms and conditions of this Agreement, such disputes shall be
resolved by and through an arbitration proceeding to be conducted under the
auspices of the American Arbitration Association (or any like organization
successor thereto) at Boston, Massachusetts. Such arbitration proceeding shall
be conducted in as expedited a manner as is then permitted by the commercial
arbitration rules (formal or informal) of the American Arbitration Association,
and the arbitrator or arbitrators in any such arbitration shall be persons who
are expert in the subject matter of the dispute. Both the foregoing agreement
of the parties to arbitrate any and all such claims, and the results,
determination, finding, judgment and/or award rendered through such arbitration,
shall be final and binding on the parties hereto and may be specifically
enforced by legal proceedings. The parties 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 may, in his or its sole discretion, ask for
specific performance and/or injunctive relief in order to enforce or prevent any
violations of the provisions of this Agreement.
(b) Procedure. Such arbitration may be initiated by written notice
from either party to the other which shall be a compulsory and binding
proceeding on each party. The arbitration shall be conducted before a panel of
arbitrators selected in accordance with the rules of the American Arbitration
Association. The costs of said arbitrators and the arbitration shall be borne
equally by the parties to the arbitration. Each party shall bear separately the
cost of their respective attorneys, witnesses and experts in connection with
such arbitration. Time is of the essence of this arbitration procedure, and the
arbitrators shall be instructed and required to render their decision within ten
(10) days following completion of the arbitration.
(c) Venue and Jurisdiction. Any and all legal proceedings to enforce
this Agreement (including any action to compel arbitration hereunder or to
enforce any award or judgment rendered thereby) shall be governed in accordance
with this Section.
18. Notices. Any notice provided for in this Agreement shall be in
writing and shall be either personally delivered, or sent by certified mail,
return receipt requested, or sent by reputable overnight courier service
(charges prepaid) to the Company at the address set forth below and to any other
recipient at the address indicated on the schedules hereto and to any subsequent
holder of Stockholder Shares subject to this Agreement 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. Notices will be deemed to have been
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given hereunder when delivered personally, three days after deposit in the U.S.
mail and one day after deposit with a reputable overnight courier service. The
Company's address is:
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
19. Governing Law. The corporate law of Delaware will govern all
issues concerning the relative rights of the Company and its stockholders. All
other 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.
20. Descriptive Headings. The descriptive headings of this Agreement
are inserted for convenience only and do not constitute a part of this
Agreement.
* * * * *
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IN WITNESS WHEREOF, the parties hereto have executed this Stockholders
Agreement on the day and year first above written.
THERMA-WAVE, INC.
By: _______________________________________
Its: _______________________________________
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: _______________________________________
Its: _______________________________________
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: _______________________________________
Its: _______________________________________
BCIP ASSOCIATES
By: _______________________________
A General Partner
(Signature Page to Stockholders Agreement)
BCIP TRUST ASSOCIATES, L.P.
By: _______________________________
A General Partner
XXXXXXXX STREET PARTNERS
By: _______________________________
Its: _______________________________
XXXXXX HILL VENTURES, a California limited
partnership
By: _______________________________
Its: _______________________________
XXXXXX XXXX ASSOCIATES, L.P.
By: _______________________________
Its: _______________________________
XXXXX FARGO BANK, TRUSTEE
SHV M/P/T FBO XXXXX X. XXXXXXXX
By: _______________________________
Its: _______________________________
(Signature Page to Stockholders Agreement)
XXXXX FARGO BANK, TRUSTEE
SHV M/P/T FBO XXXXXXX XXXXX, XX.
By: _______________________________
Its: _______________________________
XXXXX FARGO BANK, TRUSTEE
SHV M/P/T FBO XXXXXXX X. XXXXXXX, XX.
By: _______________________________
Its: _______________________________
XXXXX FARGO BANK, TRUSTEE
SHV M/P/T FBO XXXXX XXXX
By: _______________________________
Its: _______________________________
XXXXX FARGO BANK, TRUSTEE
SHV M/P/T FBO XXXXXXX X. XXXXXXX
By: _______________________________
Its: _______________________________
TORAY INDUSTRIES, INC.
By: _______________________________
Its: _______________________________
(Signature Page to Stockholders Agreement)
TORAY INDUSTRIES (AMERICA), INC.
By: _______________________________
Its: _______________________________
SHIMADZU CORPORATION
By: _______________________________
Its: _______________________________
(Signature Page to Stockholders Agreement)
XXXXX FARGO BANK, TRUSTEE
SHV M/P/T FBO XXXX X. XXXXXX
By: _______________________________
Its: _______________________________
ANTARES INTERNATIONAL PARTNERS, INC.
By: _______________________________
Its: _______________________________
(Signature Page to Stockholders Agreement)
SCHEDULE I
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 II
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 III
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
