THERMA-WAVE, INC.
PURCHASE AGREEMENT
This Purchase Agreement (this "Agreement") is made and entered into as
of November 18, 2005, by and between Therma-Wave, Inc., a Delaware corporation
(the "Company"), and each of the purchasers listed on Exhibit A attached hereto
(collectively, the "Purchasers" and individually, a "Purchaser").
RECITALS
WHEREAS, the Company desires to sell to the Purchasers, and the
Purchasers desire to purchase from the Company, an aggregate of ten thousand
four hundred (10,400) units (each, a "Unit" and collectively, the "Units"), with
each Unit being comprised of (i) one share of Series B Preferred Stock, par
value $0.01 per share (the "Preferred Stock") and (ii) one hundred fifty (150)
warrants to purchase common stock of the Company, par value $0.01 per share
("Common Stock"), (each a "Warrant" and, together with the Preferred Stock, the
"Securities") of Common Stock, on the terms and conditions set forth in this
Agreement; and
NOW, THEREFORE, in consideration of the foregoing, the mutual promises
hereinafter set forth, and other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. AGREEMENT TO PURCHASE AND SELL STOCK.
(a) Authorization. The Company's Board of Directors has authorized the issuance,
pursuant to the terms and conditions of this Agreement, of up to ten thousand
four hundred (10,400) Units.
(b) Agreement to Purchase and Sell Securities. Subject to the terms and
conditions of this Agreement, each Purchaser severally agrees to purchase, and
the Company agrees to sell and issue to each Purchaser, at the Closing
(as defined below), that number of Units set forth opposite the appropriate
Purchaser's name on Exhibit A attached hereto. The purchase price of
each Unit (the "Per Unit Price") shall be $1,000.
(c) Use of Proceeds. The Company intends to apply the net proceeds from the
sale of the Units for general corporate purposes.
2. CLOSING. Subject to the satisfaction of closing conditions, the purchase and
sale of the Units shall take place within two (2) business days after the
satisfaction of closing conditions at the offices of Xxxxxx Xxxxxxx Xxxxxxxx &
Xxxxxx, Professional Corporation, 000 Xxxx Xxxx Xxxx, Xxxx Xxxx, Xxxxxxxxxx, at
10:00 a.m. California time, on November 22, 2005, or at such other time and
place as the Company and the Purchasers mutually agree upon (which time and
place are referred to in this Agreement as the "Closing"). At the Closing, the
Company shall authorize its transfer agent to issue to each Purchaser, against
delivery of payment for the Units, one or more stock certificates (the
"Certificates") registered in the name of each Purchaser, representing the
number of shares of Preferred Stock set forth opposite such Purchaser's name on
Exhibit A hereto, and bearing the legend set forth in Section 4(k) herein and
one or more warrant certificates representing the number of Warrants set forth
opposite such person's name on Exhibit A hereto. Closing documents may be
delivered by facsimile with original signature pages sent by overnight courier.
The date of the Closing is referred to herein as the "Closing Date".
3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company hereby represents
and warrants to each Purchaser that the statements in this Section 3 are true
and correct as of the date hereof and as of the Closing Date, except as set
forth in the disclosure letter delivered to the Purchasers concurrently herewith
(the "Disclosure Letter"):
(a) Organization Good Standing and Qualification. The Company is a corporation
duly organized, validly existing and in good standing under the laws of the
State of Delaware and has all corporate power and authority required to (a)
carry on its business as presently conducted and (b) enter into this Agreement,
the Stockholder Agreement dated as of the date hereof (the "Stockholder
Agreement"), the Registration Rights Agreement, dated as of the date hereof (the
"Registration Rights Agreement") and the Warrants (collectively, the "Operative
Documents"), and to consummate the transactions contemplated hereby and thereby.
The Company is qualified to do business and is in good standing in each
jurisdiction in which the failure to so qualify would have a Material Adverse
Effect. As used in this Agreement, "Material Adverse Effect" means a material
adverse effect on, or a material adverse change in, or a group of such effects
on or changes in, the business, operations, financial condition, results of
operations, assets or liabilities of the applicable party and its subsidiaries,
taken as a whole.
(b) Capitalization. The capitalization of the Company, without giving effect to
the transactions contemplated by this Agreement, is as follows. The authorized
stock of the Company consists of (i) 75,000,000 shares of Common Stock; and (ii)
1,000,000 shares of Series A Convertible Preferred Stock, and (iii) 5,000,000
shares of undesignated Preferred Stock. As of October 28, 2005, the Company
consists of 36,867,751 shares of Common Stock issued and outstanding and no
shares issued and outstanding of Series A Convertible Preferred Stock or
undesignated Preferred Stock. All such shares of Common Stock and Preferred
Stock have been duly authorized, and all such issued and outstanding shares of
Common Stock have been validly issued, are fully paid and nonassessable. No such
outstanding shares of Common Stock were issued in violation of any pre-emptive
rights.
The Company has also reserved: (i) 3,500,000 shares of Common
Stock for issuance upon exercise of options granted under the Company's 2000
Employee Stock Purchase Plan; and (ii) 8,387,429 shares of Common Stock for
issuance to employees of the Company under the Company's 2000 Equity Incentive
Plan. All shares of Common Stock subject to issuance as aforesaid, upon issuance
on the terms and conditions specified in the instruments pursuant to which they
are issuable, will be duly authorized, validly issued, fully paid and
nonassessable. Except as provided in this Agreement and set forth in the
Disclosure Letter, and except for the (i) shares of Common Stock subject to
outstanding options issued under any of the Company's stock plans referenced in
this paragraph, and (ii) 162,006 shares of Common Stock subject to outstanding
warrants, there are no other equity securities, options, warrants, calls,
rights, commitments or agreements of any character to which the Company is a
party or by which it is bound obligating the Company to issue, deliver, sell,
repurchase or redeem, or cause to be issued, delivered, sold, repurchased or
redeemed, any shares of the capital stock of the Company or obligating the
Company to grant, extend or enter into any such equity security, option,
warrant, call, right, commitment or agreement.
(c) Due Authorization. All corporate actions on the part of the Company
necessary for the authorization, execution, delivery of, and the performance of
all obligations of the Company under the Operative Documents and the
authorization, issuance, reservation for issuance and delivery of all of the
Securities being sold under the Operative Documents have been taken, and the
Operative Documents constitute the legal, valid and binding obligation of the
Company, enforceable against the Company in accordance with its terms, except
(a) as may be limited by (i) applicable bankruptcy, insolvency, reorganization
or others laws of general application relating to or affecting the enforcement
of creditors' rights generally and (ii) the effect of rules of law governing the
availability of equitable remedies and (b) as rights to indemnity or
contribution may be limited under federal or state securities laws or by
principles of public policy thereunder.
(d) Valid Issuance of Stock.
(i) Valid Issuance. The Securities to be issued pursuant to this Agreement
will be, upon payment therefor by the Purchasers in accordance with this
Agreement, duly authorized, validly issued, fully paid and non-assessable,
free from all taxes, liens and charges with respect to the issue thereof.
The issuance of the shares of Common Stock issued or issuable from time to time
upon the conversion of the Preferred Stock will be, and at all times prior to
such conversion, will have been, duly authorized, duly reserved for issuance
upon such conversion, and will be, upon such conversion, validly issued, fully
paid and non-assessable, free from all taxes, liens and charges with respect
to the issue thereof. The issuance of the shares of Common Stock issued or
issuable from time to time upon the exercise of the Warrants will be, and at
all times prior to such exercise, will have been, duly authorized, duly
reserved for issuance upon such exercise and payment of the exercise price of
the Warrants, and will be, upon such exercise and payment, validly issued,
fully paid and non-assessable, free from all taxes, liens and charges with
respect to the issue thereof.
(ii) Compliance with Securities Laws. Subject to the accuracy of the
representations made by the Purchasers in Section 4 hereof, the Securities will
be issued to the Purchasers in compliance with applicable exemptions from (i)
the registration and prospectus delivery requirements of the Securities Act of
1933, as amended (the "Securities Act") and (ii) the registration and
qualification requirements of all applicable securities laws of the states of
the United States.
(e) Governmental Consents. Except as set forth in the Disclosure Letter, no
consent, approval, order or authorization of, or registration, qualification,
designation, declaration or filing with, or notice to, any federal, state or
local governmental authority on the part of the Company is required in
connection with the issuance of the Securities to the Purchasers, or the
consummation of the other transactions contemplated by this Agreement, except
(i) such filings as have been made prior to the date hereof, (ii) the filing of
a notification form with The Nasdaq Stock Market, Inc. ("Nasdaq") and (iii) the
filing of the notice required by Section 25102(f) or 25102.1 of the California
Corporations Code and (b) the filing of a notice on Form D with the Securities
and Exchange Commission.
(f) Non-Contravention. Except as set forth in the Disclosure Letter, the
execution, delivery and performance of this Agreement by the Company, and the
consummation by the Company of the transactions contemplated hereby (including
issuance of the Securities), do not (i) contravene or conflict with the
Certificate of Incorporation, as amended, or Bylaws of the Company; (ii)
constitute a violation of any provision of any federal, state, local or foreign
law binding upon or applicable to the Company or its assets, etc.; or (iii)
constitute a default or require any consent under, give rise to any right of
termination, cancellation or acceleration of, or to a loss of any material
benefit to which the Company is entitled under, or result in the creation or
imposition of any lien, claim or encumbrance on any assets of the Company under,
any Material Contract (as defined below) to which the Company is a party or any
material permit, license or similar right relating to the Company or by which
the Company may be bound or affected.
(g) Litigation. There is no material action, suit, proceeding, claim,
arbitration or investigation ("Action") pending or, to the Company's knowledge,
threatened: (a) against the Company, its activities, properties or assets, or
any officer, director or employee of the Company in connection with such
officer's, director's or employee's relationship with, or actions taken on
behalf of, the Company, or (b) that seeks to prevent, enjoin, alter or delay the
transactions contemplated by this Agreement (including issuance of the
Securities). The Company is not a party to or subject to the provisions of, any
order, writ, injunction, judgment or decree of any court or government agency or
instrumentality. The Company does not intend to initiate any Action that is
reasonably likely to have a Material Adverse Effect on the Company.
(h) Compliance with Law and Charter Documents. The Company is not in violation
or default of any provisions of its Certificate of Incorporation, as amended, or
Bylaws. The Company has complied in all material respects and is in compliance
in all material respects with all applicable statutes, laws, rules, regulations
and orders of the United States of America and all states thereof, foreign
countries and other governmental bodies and agencies having jurisdiction over
the Company's business or properties.
(i) SEC Documents.
(1) Reports. The Company has filed in a timely manner all reports,
schedules, forms, statements and other documents required to be filed by it
with the SEC pursuant to the reporting requirements of the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), and the rules and regulations
promulgated thereunder, except for where the failure to do so would not be
reasonably likely to have a Material Adverse Effect. The Company has made
available to the Purchasers prior to the date hereof copies of its Annual
Report on Form 10-K for the fiscal year ended April 3, 2005, its quarterly
report on Form 10-Q for the fiscal quarters ended July 3, 2005 and October 2,
2005, its current reports on Form 8-K filed on August 23, 2005, October 6, 2005
and October 27, 2005 and its Proxy Statement for its 2005 Annual Meeting of
Stockholders filed by the Company with the Securities and Exchange Commission
("SEC") (the Form 10-K, Form 10-Q and Proxy Statement are collectively
referred to herein as the "SEC Documents"). Each of the SEC Documents, as of
the respective date thereof (or if amended or superseded by a filing prior to
the date hereof, then on the date of such filing), did not contain any untrue
statement of a material fact or omit to state a material fact necessary in
order to make the statements made therein, in light of the circumstances under
which they were made, not misleading. The Company has filed all material
contracts that are required to be filed as exhibits to the SEC Documents
(the "Material Contracts").
(2) Financial Statements. The financial statements
of the Company in the SEC Documents present fairly, in accordance with United
States generally accepted accounting principles ("GAAP"), the financial
position of the Company as of the dates indicated, and the results of its
operations and cash flows for the period therein specified, subject,
in the case of unaudited financial statements for interim periods, to normal
year-end audit adjustments.
(3) Xxxxxxxx-Xxxxx. The Chief Executive Officer and the acting Chief
Financial Officer of the Company have signed, and the Company has furnished to
the SEC, all certifications required by Sections 302 and 906 of the
Xxxxxxxx-Xxxxx Act of 2002. Such certifications contain no qualifications or
exceptions to the matters certified therein and have not been modified or
withdrawn; and neither the Company nor any of its officers has received notice
from any governmental entity questioning or challenging the accuracy,
completeness, form or manner of filing or submission of such certifications. The
Company is otherwise in compliance with all applicable effective provisions of
the Xxxxxxxx-Xxxxx Act of 2002 and the rules and regulations issued thereunder
by the SEC, except where such non-compliance would not be reasonably likely to
have a Material Adverse Effect
(j) Absence of Certain Changes. Since June 27, 2005, and the date hereof, and
except as set forth in the Disclosure Letter or in the SEC Documents, the
business and operations of the Company have been conducted in the ordinary
course consistent with past practice. Since June 27, 2005, and the date hereof,
and except as set forth in the Disclosure Letter, there has not been (i) any
change, circumstance or event that is reasonably likely to have a Material
Adverse Effect, (ii) any declaration, setting aside or payment of any dividend
or other distribution of the assets of the Company with respect to any shares
of capital stock of the Company or any repurchase,
redemption or other acquisition by the Company of any outstanding shares of the
Company's capital stock, (iii) any damage, destruction or loss, whether or not
covered by insurance, except for such occurrences, individually and
collectively, that have not had, and would not reasonably be expected to have, a
Material Adverse Effect, (iv) any waiver by the Company of a valuable right or
of a material debt owed to it, except for such waivers, individually and
collectively, that have not had, and would not reasonably be expected to have, a
Material Adverse Effect, (v) any material change by the Company in its
accounting principles, methods or practices or in the manner in which it keeps
its accounting books and records, except any such change required by a change in
GAAP or by the SEC, and (vi) any entry into, amendment of, termination or
non-renewal by the Company of any material contract, license, lease,
transaction, commitment or other right or obligation.
(k) Registration Rights. Except as provided in Section 5 herein and the
Disclosure Letter, effective upon the Closing, the Company is not currently
subject to any agreement providing any person or entity any rights
(including piggyback registration rights) to have any securities of the
Company registered with the SEC or registered or qualified with any other
governmental authority.
(l) Taxes. The Company has filed all necessary federal, state, and foreign
income and franchise tax returns due prior to the date hereof and has paid or
accrued all taxes shown as due thereon, and the Company has no knowledge of any
material tax deficiency which has been or might be asserted or threatened
against it.
(m) General Solicitation. Neither the Company nor any other person
or entity authorized by the Company to act on its behalf has engaged in a
general solicitation or general advertising (within the meaning of Regulation D
of the Securities Act) of investors with respect to offers or sales of the
Securities.
(n) S-3 Eligibility. The Company meets the eligibility requirements
for use of a Form S-3 Registration Statement.
(o) Intellectual Property. The Company owns or possesses
sufficient rights to use all inventions, trade secrets, know-how, trademarks,
service marks, trade names, copyrights or other intellectual property and, to
its knowledge, all patent and patent rights (collectively, "Intellectual
Property"), which are necessary to conduct its businesses as currently
conducted, except where the failure to currently own or possess would not
reasonably be expected to result, either individually or in the aggregate, in a
Material Adverse Effect. The Company has not received any written notice of, and
has no actual knowledge of, any infringement of or conflict with asserted rights
of others with respect to any Intellectual Property, and to the Company's
knowledge, none of the patent rights owned or licensed by the Company are
unenforceable or invalid.
(p) Internal Accounting Controls. Except as expressly set
forth under Item 9A of the Company's Annual Report on Form for the fiscal year
ended on April 3, 2005, the Company maintains a system of internal accounting
controls sufficient to provide reasonable assurance that (i) transactions are
executed in accordance with management's general or specific authorizations,
(ii) transactions are recorded as necessary to permit preparation of financial
statements in conformity with GAAP and to maintain asset accountability, (iii)
access to assets is permitted only in accordance with management's general or
specific authorization, and (iv) the recorded accountability for assets is
compared with the existing assets at reasonable intervals and appropriate action
is taken with respect to any differences.
(q) No Undisclosed Liabilities. Except as disclosed, reflected or reserved
against in the financial statements and supporting schedules included in the
Company's Quarterly Report on Form 10-Q for fiscal quarter ended July 3, 2005,
to the Company's knowledge there are no material liabilities of the Company or
any subsidiary, other than liabilities incurred in the ordinary course of
business consistent with past practice since July 3, 2005 or which in the
aggregate would not reasonably be expected to result in a Material Adverse
Effect.
(r) Related Party Transactions. Except as expressly disclosed in the SEC
Documents, the Company has not entered into any agreements, understandings, or
proposed transactions between the Company or any subsidiary, on the one hand,
and any of its officers, affiliates or directors, or any of their affiliates on
the other hand that would be required to be disclosed pursuant to Regulation SK,
Item 404, as promulgated by the Securities and Exchange Commission.
4. REPRESENTATIONS, WARRANTIES AND CERTAIN AGREEMENTS OF THE PURCHASER. Each
Purchaser hereby represents and warrants to the Company severally and not
jointly, and agrees that:
(a) Organization Good Standing and Qualification. The
Purchaser has all corporate, membership or partnership power and authority
required to enter into this Agreement and the other Operative Documents, and to
consummate the transactions contemplated hereby and thereby.
(b) Authorization. The execution of this Agreement has been duly authorized by
all necessary corporate, membership or partnership action on the part of the
Purchaser. This Agreement constitutes the Purchaser's legal, valid and binding
obligation, enforceable in accordance with its terms, except (a) as may be
limited by (i) applicable bankruptcy, insolvency, reorganization or other laws
of general application relating to or affecting the enforcement of creditors'
rights generally and (ii) the effect of rules of law governing the availability
of equitable remedies and (b) as rights to indemnity or contribution may be
limited under federal or state securities laws or by principles of public policy
thereunder.
(c) Litigation. There is no Action pending against the Purchaser that seeks to
prevent, enjoin, alter or delay the transactions contemplated by this Agreement.
(d) Purchase for Own Account. The Securities are being acquired for investment
for the Purchaser's own account, not as a nominee or agent, and not with a view
to the public resale or distribution thereof within the meaning of the
Securities Act, without prejudice, however, to such Purchaser's right at all
times to sell or otherwise dispose of all or any part of such securities in
compliance with applicable federal and state securities laws and as otherwise
contemplated by this Agreement. The Purchaser also represents that it has not
been formed for the specific purpose of acquiring the Securities.
(e) Investment Experience. The Purchaser understands that the purchase of the
Securities involves substantial risk. The Purchaser has experience as an
investor in securities of companies and acknowledges that it is able to fend for
itself, can bear the economic risk of its investment in the Securities and has
such knowledge and experience in financial or business matters that it is
capable of evaluating the merits and risks of this investment in the Securities
and protecting its own interests in connection with this investment.
(f)
Accredited Purchaser Status. The Purchaser is an "accredited investor" within
the meaning of Regulation D promulgated under the Securities Act.
(g) Reliance Upon Purchaser's Representations. The Purchaser understands that
the issuance and sale of the Securities to it will not be registered under the
Securities Act on the ground that such issuance and sale will be exempt from
registration under the Securities Act pursuant to Section 4(2) thereof, and that
the Company's reliance on such exemption is based on each Purchaser's
representations set forth herein.
(h) Receipt of Information. The Purchaser has
had an opportunity to ask questions and receive answers from the Company
regarding the terms and conditions of the issuance and sale of the Securities
and the business, properties, prospects and financial condition of the Company
and to obtain any additional information requested and has received and
considered all information it deems relevant to make an informed decision to
purchase the Securities.
(i) Restricted Securities. The Purchaser will not sell, offer to sell, assign,
pledge, hypothecate or otherwise transfer any of the Securities unless (i)
pursuant to an effective registration statement under the Securities Act, (ii)
such holder provides the Company with an opinion of counsel, in a generally
acceptable form, to the effect that a public sale, assignment or transfer of the
Securities may be made without registration under the Securities Act, or (iii)
such holder provides the Company with reasonable assurances that the Securities
can be sold pursuant to Rule 144 under the Securities Act without any
restriction as to the number of securities acquired as of a particular date that
can be immediately sold. Notwithstanding anything to the contrary contained in
the Agreement, the Purchaser may transfer (without restriction and without the
need for an opinion of counsel) the Securities to its affiliates provided that
such affiliate is an "accredited investor" under Regulation D and such affiliate
agrees to be bound by the terms and conditions of the Agreement.
(j) No Affiliation. The Purchaser represents and warrants that it is not
affiliated with any other Purchaser, that it has not been identified as a
party to any group with any other Investor in any filing with the Securities
and Exchange Commission, and that it not otherwise a member of an identified
group that includes any other Investor.
(k) Legends. The Purchaser agrees that the certificates for the Preferred Stock
and the Common Stock issuable upon exercise of the Warrants shall bear the
following legend:
"The securities represented by this certificate have
not been registered under the Securities Act of 1933
or with any state securities commission, and may not
be transferred or disposed of by the holder in the
absence of a registration statement which is
effective under the Securities Act of 1933 and
applicable state laws and rules, or, unless,
immediately prior to the time set for transfer, such
transfer may be effected without violation of the
Securities Act of 1933 and other applicable state
laws and rules."
In addition, the Purchaser agrees that the Company may place stop
transfer orders with its transfer agents with respect to such certificates. The
legend set forth above shall be removed from the certificates for the Preferred
Stock and the Common Stock issuable upon exercise of the Warrants, (i) following
any sale of such Preferred Stock or Common Stock pursuant to Rule 144 or any
effective registration statement, or (ii) if such Preferred Stock or Common
Stock is eligible for sale under Rule 144(k) (and the holder of such Preferred
Stock or Common Stock has submitted a written request for removal of the legend
indicating that the holder has complied with the applicable provisions of Rule
144), or (iii) if such legend is not required under applicable requirements of
the Securities Act (including judicial interpretations and pronouncements issued
by the Staff of the SEC) (and the holder of such Preferred Stock or Common Stock
has submitted a written request for removal of the legend indicating that the
holder has complied with such judicial interpretation or pronouncement). Subject
to receipt of appropriate certifications, the Company shall cause its counsel to
issue a legal opinion to the Company's transfer agent promptly upon the
occurrence of any of the events in clauses (i), (ii) or (iii) above to effect
the removal of the legend on certificates for the Preferred Stock or Common
Stock. The Company agrees that at such time as such legend is no longer required
under this Section 4(k), it will, no later than three (3) business days
following the delivery by a Purchaser to the Company (attention: Chief Financial
Officer) or the Company's transfer agent (with a copy to the Company or the
transfer agent, as applicable) of a certificate representing the Preferred Stock
or Common Stock issued with a restrictive legend, deliver or cause to be
delivered to such Purchaser a certificate representing such Preferred Stock or
Common Stock that is free from all restrictive and other legends; provided that
in the case of removal of the legend for reasons set forth in clause (ii) above,
the holder of such Preferred Stock or Common Stock has submitted a written
request for removal of the legend indicating that the holder has complied with
the applicable provisions of Rule 144. The Company may not make any notation on
its records or give instructions to any transfer agent of the Company that
enlarge the restrictions on transfer set forth in this Section 4(k).
(l) HSR Compliance.
(i) Each Purchaser is its own "ultimate parent entity" as defined in
the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended or the
rules and regulations promulgated thereto (together, the "HSR Act").
(ii) Each Investor will hold less than $50,000,000 in voting
securities of the Company following execution of this Agreement, as valued
under the HSR Act.
5. COMPANY COVENANTS.
(a) Reporting for Income Tax. The Preferred Stock is intended to be Common Stock
for tax purposes, and the Company intends to report the Preferred Stock for
purposes of Section 305 of the Internal Revenue Code of 1986, as amended (the
"Code").
(
b) Covenant Regarding Dividends. Until the third anniversary of the date on
which no Preferred Stock is outstanding, the Company shall not make any payment
or declaration of any dividend or making of any other distribution on any share
of capital stock or other security or interest in the Corporation other than the
Preferred Stock if the effect of such dividend or distribution could reasonably
be expected to (i) cause the right to receive the Liquidation Value (as defined
in the Certificate of Designation) to result in, (ii) cause an increase in the
Liquidation Value to be, (iii) cause the conversion of the Preferred Stock into
Common Stock to be or (iv) make an adjustment of the Conversion Rate (as defined
in the Certificate of Designation) a taxable event to the holders of the
Preferred Stock.
(c) Covenant Regarding Stock Issuance. Until the Closing Date, Company shall not
issue any shares of Common Stock, Series A Convertible Preferred Stock,
undesignated Preferred Stock or securities convertible into or exchangeable or
exercisable for equity securities of the Company, except those shares of Common
Stock issued pursuant to the Company's employee stock purchase plan and equity
incentive plan and shares of Common Stock issued upon the exercise or conversion
of options or convertible securities outstanding as of the date hereof.
6. PURCHASER COVENANT REGARDING SHORT SALE.
(a) Short Sale Restrictions. Prior to the earlier of (i) the second anniversary
of the issuance of the Preferred Stock and (ii) the time at which all shares of
Preferred Stock have converted into shares of Common Stock, each Purchaser,
severally and not jointly, agrees it will not engage in any short sale
transactions (or transactions, including transactions in derivative securities,
having the effect of a short sale) of the Common Stock, as defined in Rule
200(a) of Regulation SHO under the Exchange Act. For the avoidance of doubt, the
parties agree that nothing herein shall be interpreted to (i) prevent a sale by
a Purchaser of the Common Stock now owned or herein after acquired that does not
involve a short sale (including a short sale "against the box") or (ii) limit
the ability to receive the transaction consideration paid by another person or
entity in connection with an acquisition of the Company by means of any
transaction or series of transactions (including any reorganization, merger,
consolidation or share transfer), where the shareholders of the Company
immediately preceding such transaction own, following such transaction, less
than 50% of the voting securities of the Company (a "Change of Control").
7. CONDITIONS TO THE PURCHASERS' OBLIGATIONS AT CLOSING. The obligations of the
Purchasers under Section 2(a) of this Agreement are subject to the fulfillment
or waiver, on or before the Closing, of each of the following conditions:
(a) Representations and Warranties True. Each of the representations and
warranties of the Company contained in Section 3 shall be true and correct in
all material respects on and as of the date of the date hereof and on and as of
the date of the Closing, with the same effect as though such representations and
warranties had been made as of the Closing.
(b) Performance. The Company shall have performed and complied in all material
respects with all agreements, obligations and conditions contained in this
Agreement that are required to be performed or complied with by it on or before
the Closing and shall have obtained all approvals, consents and qualifications
necessary to complete the purchase and sale described herein.
(c) Compliance Certificate. The Company will have delivered to the Purchasers at
the Closing a certificate signed on its behalf by its Chief Executive Officer or
Chief Financial Officer certifying that the conditions specified in Sections
7(a) and 7(b) hereof have been fulfilled.
(d) Securities Exemptions. The offer and sale of the Securities to the
Purchasers pursuant to this Agreement shall be exempt from the registration
requirements of the Securities Act and the registration and/or qualification
requirements of all applicable state securities laws.
(e) Opinion of Company Counsel. The Purchasers will have received an opinion on
behalf of the Company, dated as of the date of the Closing, from Wilson,
Sonsini, Xxxxxxxx & Xxxxxx, PC, counsel to the Company, in the form attached as
Exhibit B.
(f) No Suspension of Trading or Listing of Common Stock. The
Common Stock of the Company (i) shall be designated for quotation or listed on
Nasdaq and (ii) shall not have been suspended from trading on Nasdaq.
g) Good Standing Certificates. The Company shall have
delivered to the Purchasers a certificate of the Secretary of State of the State
of Delaware, dated as of a date within five days of the date of the Closing,
with respect to the good standing of the Company.
(h) Secretary's Certificate. The Company shall have delivered
to the Purchasers a certificate of the Company executed by the Company's
Secretary attaching and certifying to the truth and correctness of (1) the
Certificate of Incorporation, (2) the Bylaws and (3) the resolutions adopted by
the Company's Board of Directors in connection with the transactions
contemplated by the Operative Documents.
(i) No Statute or Rule Challenging Transaction. No statute,
rule, regulation, executive order, decree, ruling, injunction, action,
proceeding or interpretation by a court, regulatory body, self-regulatory
organization or governmental authority of competent jurisdiction shall have been
enacted, entered, promulgated, or adopted by any court, regulatory body,
self-regulatory organization or governmental authority of competent jurisdiction
or the staff of any of the foregoing, having authority over the matters
contemplated hereby which questions the validity of, or challenges or prohibits
the consummation of, any of the transactions contemplated by this Agreement.
(j) Closing. The Closing shall occur by no later than November 30, 2005.
(k) Other Actions. The Company shall have executed such
certificates, agreements, instruments and other documents, and taken such other
actions as shall be customary or reasonably requested by the Purchasers in
connection with the transactions contemplated hereby.
8. CONDITIONS TO THE COMPANY'S OBLIGATIONS AT CLOSING. The obligations of the
Company to the Purchasers under this Agreement are subject to the fulfillment or
waiver, on or before the Closing, of each of the following conditions:
(a) Representations and Warranties True. The representations and warranties of
the Purchasers contained in Section 4 shall be true and correct in all material
respects on and as of the date hereof and on and as of the date of the Closing
with the same effect as though such representations and warranties had been made
as of the Closing.
(b) Performance. The Purchasers shall have performed and complied in all
material respects with all agreements, obligations and conditions contained in
this Agreement that are required to be performed or complied with by it on or
before the Closing.
(c) Securities Exemptions. The offer and sale of the Securities to the
Purchasers pursuant to this Agreement shall be exempt from the registration
requirements of the Securities Act and the registration and/or qualification
requirements of all applicable state securities laws.
(d) Payment of Purchase Price. The Purchasers shall have delivered to the
Company same day funds in full payment of the purchase price as specified in
Section 1(b). (e) Other Actions. The Purchasers shall have executed such
certificates, agreements, instruments and other documents, and taken such other
actions as shall be customary or reasonably requested by the Company in
connection with the transactions contemplated hereby.
9. MISCELLANEOUS.
(a) Successors and Assigns. The terms and conditions of this Agreement will
inure to the benefit of and be binding upon the respective successors and
permitted assigns of the parties. The Company may not assign this Agreement or
any rights or obligations hereunder without the prior written consent of each
Purchaser; provided, however, that upon any Change of Control, this Agreement
and all rights or obligations hereunder may be assigned by the Company only to
the surviving entity without the prior written consent of the other party or
parties. Each Purchaser may assign or transfer any or all of its rights under
this Agreement to an affiliate or an entity advised by the same management
company that advises such Purchaser, provided that such assignee or transferee
agrees in writing to be bound, with respect to the transferred Securities, by
Section 6 hereof; whereupon such assignee or transferee shall be deemed to be a
"Purchaser" for all purposes of this Agreement
(b) Governing Law. This Agreement will be governed by and construed under the
internal laws of the State of Delaware, without reference to principles of
conflict of laws or choice of laws.
(c) Counterparts. This Agreement may be executed in two or more counterparts,
each of which will be deemed an original, but all of which together will
constitute one and the same instrument.
(d) Headings. The headings and captionsused in this Agreement are used for
convenience only and are not to be considered in construing or interpreting
this Agreement. All references in this Agreement to sections, paragraphs,
exhibits and schedules will, unless otherwise provided, refer to sections
and paragraphs hereof and exhibits and schedules attached hereto, all of which
exhibits and schedules are incorporated herein by this reference.
(e) Notices. Any notice required or permitted under this Agreement shall be
given in writing, shall be effective when received, and shall in any event be
deemed received and effectively given upon personal delivery to the party to be
notified or three (3) business days after deposit with the United States Post
Office, by registered or certified mail, postage prepaid, or one (1) business
day after deposit with a nationally recognized courier service such as Federal
Express for next business day delivery under circumstances in which such service
guarantees next business day delivery, or one (1) business day after facsimile
with copy delivered by registered or certified mail, in any case, postage
prepaid and addressed to the party to be notified at the address indicated for
such party on the signature page hereof or at such other address as the
Purchaser or the Company may designate by giving at least ten (10) days advance
written notice pursuant to this Section 10(e).
(f) Amendments and Waivers. This Agreement may be amended and the observance
of any term of this Agreement may be waived (either generally or in a
particular instance and either retroactively or prospectively), only with
the written consent of the Company and the holders of Preferred Stock
representing at least a majority of the total aggregate number
of Preferred Stock then outstanding. Any amendment or waiver effected in
accordance with this Section 10(f) will be binding upon the Purchasers, the
Company and their respective successors and assigns.
(g) Severability. If any
provision of this Agreement is held to be unenforceable under applicable law,
such provision will be excluded from this Agreement and the balance of the
Agreement will be interpreted as if such provision were so excluded and will be
enforceable in accordance with its terms.
(h) Entire Agreement. This Agreement,
together with all exhibits and schedules hereto and thereto constitutes the
entire agreement and understanding of the parties with respect to the subject
matter hereof and supersedes any and all prior negotiations, correspondence,
agreements, understandings, duties or obligations between the parties with
respect to the subject matter hereof.
(i) Further Assurances. From and after the date of this Agreement upon the
request of the Company or the Purchasers, the Company and the Purchasers will
execute and deliver such instruments, documents or other writings, and take such
other actions, as may be reasonably necessary or desirable to confirm and carry
out and to effectuate fully the intent and purposes of this Agreement.
(j) Meaning of Include and Including. Whenever in this Agreement the word
"include" or "including" is used, it shall be deemed to mean "include, without
limitation" or "including, without limitation," as the case may be, and the
language following "include" or "including" shall not be deemed to set forth an
exhaustive list.
(k) Fees, Costs and Expenses. The Company and each Purchaser
shall each pay their own expenses in connection with the transactions
contemplated by this Agreement; provided, however, that if the Closing is
effected, the Company shall pay Purchasers' reasonable and out-of-pocket
expenses, including fees of counsel, consultants and accountants, incurred in
connection with the purchase of the Securities and the negotiation, execution
and delivery under the Operative Documents, such expenses not to exceed two
hundred thousand dollars ($200,000) in the aggregate.
(l) Survival. The representations and warranties of the Company and the
Purchasers contained in Sections 3 and 4 of this Agreement shall survive until
eighteen (18) months after the Closing Date.
(m) No Third Party Rights. This Agreement is intended solely for the benefit
of the parties hereto and their respective successors and permitted assigns
and is not intended to confer any benefits upon, or create any rights in favor
of, any person (including, without limitation, any stockholder or debt holder
of the Company) other than the parties hereto.
(o) Remedies. In addition to being entitled to exercise all
rights provided herein or granted by law, including recovery of damages, each
Purchaser and the Company will be entitled to specific performance under this
Agreement. The parties agree that monetary damages may not be adequate
compensation for any loss incurred by reason of any breach of obligations
described in the foregoing sentence and hereby agrees to waive in any action for
specific performance of any such obligation the defense that a remedy at law
would be adequate.
[The balance of this page is intentionally left blank.]
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date and year first above written.
THERMA-WAVE, INC.
By:
-------------------------------------
Name: Xxxxx Xxxxxx
----------------------------------
Title: Chief Executive Officer
---------------------------------
[PURCHASER SIGNATURE PAGES TO FOLLOW]
SIGNATURE PAGE TO
PURCHASE AGREEMENT
DATED AS OF NOVEMBER __, 2005
BY AND AMONG
THERMA-WAVE, INC.
AND EACH PURCHASER NAMED THEREIN
The undersigned hereby executes and delivers to Therma-Wave, Inc. the
Purchase Agreement (the "Agreement") to which this Signature Page is attached
effective as of the date of the Agreement, which Agreement and Signature Page,
together with all counterparts of such Agreement and signature pages of the
other Purchasers named in such Agreement, shall constitute one and the same
document in accordance with the terms of such Agreement.
Number of Units:
----------------------------
North Run Master Fund, LP
By: North Run GP, LP, its General Partner
By: North Run Advisors, LLC, its General
Partner
By:_________________________________________
Xxxxxx X. Xxxxx, Member
By:_________________________________________
Xxxx X. Xxxxxx, Member
Address: Xxx Xxxxxxxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxx, XX 00000
SIGNATURE PAGE TO
PURCHASE AGREEMENT
DATED AS OF NOVEMBER __, 2005
BY AND AMONG
THERMA-WAVE, INC.
AND EACH PURCHASER NAMED THEREIN
The undersigned hereby executes and delivers to Therma-Wave, Inc. the
Purchase Agreement (the "Agreement") to which this Signature Page is attached
effective as of the date of the Agreement, which Agreement and Signature Page,
together with all counterparts of such Agreement and signature pages of the
other Purchasers named in such Agreement, shall constitute one and the same
document in accordance with the terms of such Agreement.
Number of Units:
------------------------------
Deephaven Relative Value Equity Trading Ltd.
By: /s/ Xxxxx Xxxxx
Name: Xxxxx Xxxxx
Title: CEO
Address: 000 Xxxxxxxx Xxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
SIGNATURE PAGE TO
PURCHASE AGREEMENT
DATED AS OF NOVEMBER __, 2005
BY AND AMONG
THERMA-WAVE, INC.
AND EACH PURCHASER NAMED THEREIN
The undersigned hereby executes and delivers to Therma-Wave, Inc. the
Purchase Agreement (the "Agreement") to which this Signature Page is attached
effective as of the date of the Agreement, which Agreement and Signature Page,
together with all counterparts of such Agreement and signature pages of the
other Purchasers named in such Agreement, shall constitute one and the same
document in accordance with the terms of such Agreement.
Number of Units:
---------------------------
Deephaven Long Short Equity Trading Ltd.
By: /s/ Xxxxx Xxxxx
Name: Xxxxx Xxxxx
Title: CEO
Address: 000 Xxxxxxxx Xxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
Exhibit A
Schedule of Purchasers
Shares of Series B
Number of Convertible Preferred Number of
Name of Purchaser Units Stock Warrants
North Run Master Fund, LP 5,200 5,200 780,000
Xxx Xxxxxxxxxxxxx Xxxxx,
Xxxxx 0000
Xxxxxx, XX 00000
Deephaven Relative Value
Equity
Trading Ltd.
000 Xxxxxxxx Xxxx,
Xxxxx 000 4,200 4,200 630,000
Xxxxxxxxxx, XX 00000
Deephaven Long Short
Equity
Trading Ltd.
000 Xxxxxxxx Xxxx,
Xxxxx 000 1,000 1,000 150,000
Xxxxxxxxxx, XX 00000
TOTAL 10,400 10,400 1,560,000
Exhibit B
Form of Legal Opinion
