<PAGE>
As filed with the Securities and Exchange Commission on May 2, 2000
Registration No. 333-_____
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
---------------
Form S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
THERMA-WAVE, INC.
(Exact name of registrant as specified in its charter)
Delaware 94-3000561
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
1250 Reliance Way 94539
Fremont, California (Zip Code)
(Address of Principal Executive Offices)
THERMA-WAVE, INC. 1997 STOCK PURCHASE AND OPTION PLAN
THERMA-WAVE, INC. 1997 EMPLOYEE STOCK PURCHASE AND OPTION PLAN
THERMA-WAVE, INC. 1997 SPECIAL EMPLOYEE STOCK PURCHASE AND OPTION PLAN
THERMA-WAVE, INC. 2000 EQUITY INCENTIVE PLAN
(Full Title of the Plan)
DR. ALLAN ROSENCWAIG
Chairman and Chief Technology Officer
Therma-Wave, Inc.
1250 Reliance Way
Fremont, California 94539
(Name and Address of Agent for Service)
(510) 668-2200
(Telephone Number, including Area Code of Agent for Service)
Copy to:
-------
Eva Herbst Davis, Esq.
Kirkland & Ellis
777 South Figueroa Street
Los Angeles, California 90017
(213) 680-8400
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
========================================================================================================
Proposed Maximum Proposed Maximum Amount of
Title of Securities to be Amount to be Offering Price Aggregate Registration
Registered Registered Per Share (1) Offering Price Fee
- --------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock,
par value $.01 per share 3,145,183 shares (2) $10.2893 $32,361,798 $8,543.50
========================================================================================================
</TABLE>
(1) Calculated by taking the weighted average of (a) the exercise price for all
options that have been issued under the Therma-Wave, Inc. 1997 Stock
Purchase and Option Plan, 1997 Employee Stock Purchase and Option Plan and
1997 Special Employee Stock Purchase and Option Plan and (b) the estimate
pursuant to Rule 457(h) based on the average of the high and low prices of
the shares reported on the NASDAQ National Market on April 25, 2000 for all
shares which have not been issued under the Therma-Wave, Inc. 2000 Equity
Incentive Plan.
(2) Shares issued under the Therma-Wave, Inc. 1997 Stock Purchase and Option
Plan, 1997 Employee Stock Purchase and Option Plan, 1997 Special Employee
Stock Purchase and Option Plan and reserved for issuance under the Therma-
Wave, Inc. 2000 Equity Incentive Plan.
================================================================================
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Information required by Part I to be contained in the Section 10(a)
prospectus is omitted from this Registration Statement in accordance with Rule
428 under the Securities Act of 1933, as amended (the "Securities Act") and the
--------------
Note to Part I of Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference.
The following documents filed by Therma-Wave, Inc., a Delaware corporation,
(the "Corporation") with the Securities and Exchange Commission (the
-----------
"Commission") are incorporated herein by reference except to the extent any
----------
statement or information therein is modified, superseded or replaced by a
statement or information contained in this document or in any other subsequently
filed document incorporated herein by reference:
(a) The Corporation's Prospectus filed pursuant to Rule 424(b)(4) on
February 8, 2000 (File No. 333-76019).
(b) The Corporation's Quarterly Reports on Form 10-Q for the quarterly
periods ended July 4, 1999, October 3, 1999 and January 2, 2000.
(c) The description of the Corporation's common stock, par value $0.01 per
share (the "Common Stock") contained in Item 1 of the Corporation's Registration
Statement on Form 8-A filed with the Commission pursuant to Section 12 of the
Exchange Act of 1934, as amended (the "Exchange Act"), on August 2, 1999.
(d) All reports and other documents subsequently filed by the Registrant
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to
the filing of a post-effective amendment which indicates that all securities
offered hereby have been sold or which deregisters all securities then remaining
unsold, shall be deemed to be incorporated by reference herein and to be a part
hereof from the date of the filing of such reports and documents.
Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Registration Statement to the extent that a statement
contained herein or in any other subsequently filed document which also is
incorporated or deemed to be incorporated by reference herein modifies or
supersedes such statement. Any such statement so modified or superseded shall
not be deemed, except as so modified or superseded, to constitute a part of this
Registration Statement.
2
<PAGE>
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
The validity of the common stock offered hereby will be passed upon for the
Corporation by Kirkland & Ellis (as partnership that includes professional
corporations), Los Angeles, California. Some partners of Kirkland & Ellis are
partners in Randolph Street Partners, which owns 106,613 shares of the
Corporation's common stock.
Item 6. Indemnification of Directors and Officers.
We are incorporated under the laws of the State of Delaware. Section 145
("Section 145") of the General Corporation Law of the State of Delaware, as
the same exists or may hereafter be amended (the "General Corporation Law"),
inter alia, provides that a Delaware corporation may indemnify any persons who
were, are or are threatened to be made, parties to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of such corporation), by
reason of the fact that such person is or was an officer, director, employee or
agent of such corporation, or is or was serving at the request of such
corporation as a director, officer, employee or agent of another corporation or
enterprise. The indemnity may include expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement actually and reasonably incurred
by such person in connection with such action, suit or proceeding, provided such
person acted in good faith and in a manner he reasonably believed to be in or
not opposed to the corporation's best interests and, with respect to any
criminal action or proceeding, had no reasonable cause to believe that his
conduct was illegal. A Delaware corporation may indemnify any persons who are,
were or are threatened to be made, a party to any threatened, pending or
completed action or suit by or in the right of the corporation by reasons of the
fact that such person was a director, officer, employee or agent of such
corporation, or is or was serving at the request of such corporation as a
director, officer, employee or agent of another corporation or enterprise. The
indemnity may include expenses (including attorneys' fees) actually and
reasonably incurred by such person in connection with the defense or settlement
of such action or suit, provided such person acted in good faith and in a manner
he reasonably believed to be in or not opposed to the corporation's best
interests, provided that no indemnification is permitted without judicial
approval if the officer, director, employee or agent is adjudged to be liable to
the corporation. Where an officer, director, employee or agent is successful on
the merits or otherwise in the defense of any action referred to above, the
corporation must indemnify him against the expenses which such officer or
director has actually and reasonably incurred.
Section 145 further authorizes a corporation to purchase and maintain
insurance on behalf of any person who is or was a director, officer, employee or
agent of the corporation, or is or was serving at the request of the corporation
as a director, officer, employee or agent of another corporation or enterprise,
against any liability asserted against him and incurred by him in any such
capacity, arising out of his status as such, whether or not the corporation
would otherwise have the power to indemnify him under Section 145.
3
<PAGE>
The Corporation also has Indemnification Agreements with its officers and
directors. The Indemnification Agreements require that the Corporation advance
to any covered officer or director the expenses to investigate, defend, settle
or appeal any proceeding. The Indemnification Agreements also require the
Corporation to maintain directors' and officers' liability insurance to cover
actions of the officers and directors who are parties to the Indemnification
Agreement. Whether a claim against an officer or director should be indemnified
by the Corporation can be decided, at the option of the officer or director, by
an attorney or law firm which has no conflict of interest in the matter, or by
the disinterested members of the Board of Directors. If the determination is
made that the officer or director is not entitled to indemnification, the
officer or director has the right to apply to the judicial system for a
determination that he is entitled to indemnification. In the event of a change
of control of the Corporation, an attorney or law firm which has no conflict of
interest in the matter shall issue an opinion as to the right to indemnification
of the officer or director. Alternatively, upon a change in control the officer
or director may submit the question of indemnification to a panel of
arbitrators.
The Indemnification Agreements also prohibit a cause of action from being
asserted against an officer or director who is a party to the agreement by the
Corporation or a stockholder on behalf of the Corporation more than one year
after the conduct of the officer or director that would give rise to liability.
The Corporation shall not be required to indemnify an officer or director who
settles a proceeding without the written consent of the Corporation.
Indemnification of officers and directors from liability under the Securities
Act of 1933 is unenforceable.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
*4.1 Restated Certificate of Incorporation of Therma-Wave, Inc.
*4.2 Amended and Restated By-Laws of Therma-Wave, Inc.
*4.3 Form of certificate representing shares of common stock.
*4.4 Form of 1997 Stock Purchase and Option Plan.
*4.5 Form of 1997 Employee Stock Purchase and Option Plan.
*4.6 Form of 1997 Special Employee Stock Purchase and Option Plan.
*4.7 Form of 2000 Equity Incentive Plan.
5.1 Opinion of Kirkland & Ellis with respect to the legality of the
shares of the common stock being registered hereby.
23.1 Consent of PricewaterhouseCoopers LLP.
4
<PAGE>
23.2 Consent of Kirkland & Ellis (included in opinion filed as
Exhibit 5.1).
24.1 Powers of Attorney (included on signature page).
_____________________________
*Incorporated by reference to the Registration Statement of Therma-Wave, Inc. on
Form S-1 (File No. 333-76019) filed on February 2, 2000.
Item 9. Undertakings.
(a) The undersigned Registrant hereby undertakes (1) to file, during any
period in which offers or sales are being made, a post-effective amendment to
this Registration Statement (i) to include any prospectus required by Section
10(a)(3) of the Securities Act of 1933; (ii) to reflect in the prospectus any
facts or events arising after the effective date of the registration statement
(or most recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth in the
Registration Statement; and (iii) to include any material information with
respect to the plan of distribution not previously disclosed in this
Registration Statement or any material change to such information in this
Registration Statement; (2) that, for the purpose of determining any liability
under the Securities Act, each such post-effective amendment shall be deemed to
be a new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof; and (3) to remove from registration by means of a
post-effective amendment any of the securities being registered which remain
unsold at the termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in the Registration Statement shall be deemed to be a
new registration statement relating to the securities offered herein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the Registrant pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the Securities Act and
is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Registrant of expenses
incurred or paid by a director, officer or controlling person of the Registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
5
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant certifies
that it has reasonable grounds to believe that it meets all of the requirements
for filing on Form S-8 and has duly caused this Registration Statement to be
signed on its behalf by the undersigned, thereunto duly authorized, in the City
of Fremont, State of California, on April 27, 2000.
THERMA-WAVE, INC.
By: /s/ Allan Rosencwaig
--------------------------------
Allan Rosencwaig
Chairman of the Board
Power of Attorney
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below
constitutes and appoints Allan Rosencwaig, Martin M. Schwartz and L. Ray
Christie, and each of them, his true and lawful attorneys-in-fact and agents,
with full power of substitution and resubstitution, for him and in his name,
place and stead, in any and all capacities, to sign any or all amendments
(including post-effective amendments) to this registration statement, and to
file the same, with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, granting unto said
attorneys-in-fact an agents, and each of them, full power and authority to do
and perform each and every act and thing requisite and necessary to be done in
and about the premises, as fully to all intents and purposes as he might or
could do in person, hereby ratifying and confirming all that said attorneys-in-
fact and agents or any of them, or their or his substitute or substitutes, may
lawfully do or cause to be done by virtue hereof.
* * * *
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed by the following persons in the capacities and as of
the date indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<C> <S> <C>
/s/ Allan Rosencwaig Chairman of the Board and April 27, 2000
- ---------------------- Chief Technology Officer
Allan Rosencwaig
/s/ Martin M. Schwartz President, Chief Executive April 27, 2000
- ---------------------- Officer and Director (Principal
Martin M. Schwartz Executive Officer)
/s/ L. Ray Christie Vice President and Chief April 27, 2000
- ---------------------- Financial Officer (Principal
L. Ray Christie Financial and Accounting Officer)
</TABLE>
6
<PAGE>
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<C> <S> <C>
/s/ Leonard Baker, Jr.
- ---------------------- Director April 27, 2000
G. Leonard Baker, Jr.
/s/ David Dominik
- ---------------------- Director April 27, 2000
David Dominik
/s/ Adam W. Kirsch
- ---------------------- Director April 27, 2000
Adam W. Kirsch
/s/ Ian K. Loring
- ---------------------- Director April 27, 2000
Ian K. Loring
</TABLE>
7
<PAGE>
EXHIBIT INDEX
-------------
<TABLE>
<CAPTION>
Exhibit
No. Description of Document
- ------- -----------------------
<C> <S>
*4.1 Restated Certificate of Incorporation of Therma-Wave, Inc.
*4.2 Amended and Restated By-Laws of Therma-Wave, Inc.
*4.3 Form of certificate representing shares of common stock.
*4.4 Form of 1997 Stock Purchase and Option Plan.
*4.5 Form of 1997 Employee Stock Purchase and Option Plan.
*4.6 Form of 1997 Special Employee Stock Purchase and Option Plan.
*4.7 Form of 2000 Equity Incentive Plan.
5.1 Opinion of Kirkland & Ellis with respect to the legality of the shares of
the Common Stock being registered.
23.1 Consent of PricewaterhouseCoopers LLP.
23.2 Consent of Kirkland & Ellis (included in opinion filed as Exhibit 5.1).
24.1 Powers of Attorney (included on signature page).
</TABLE>
____________________________________
*Incorporated by reference to the Registration Statement of Therma-Wave, Inc. on
Form S-1 (File No. 333-76019) filed on February 2, 2000.
8
<PAGE>
Exhibit 5.1
-----------
[LETTERHEAD OF KIRKLAND & ELLIS]
May 2, 2000
Therma-Wave, Inc.
1250 Reliance Way
Fremont, California 94539
Re: Therma-Wave, Inc.
Registration Statement on Form S-8
----------------------------------
Ladies and Gentlemen:
We are acting as special counsel to Therma-Wave, Inc., a Delaware
corporation (the "Company"), in connection with the proposed registration by the
Company of up to 3,145,183 shares (the "Shares") of its common stock, par value
$0.01 per share, to be issued and sold by the Company under a Registration
Statement on Form S-8, filed with the Securities and Exchange Commission (the
"Commission") under the Securities Act of 1933, as amended (the "Act") (such
Registration Statement, as amended or supplemented, is hereinafter referred to
as the "Registration Statement"). The Shares are to be issued under the
Company's 1997 Stock Purchase and Option Plan, 1997 Employee Stock Purchase and
Option Plan, 1997 Special Employee Stock Purchase and Option Plan and 2000
Equity Incentive Plan (the "Plans").
In that connection, we have examined such corporate proceedings,
documents, records and matters of law as we have deemed necessary to enable us
to render this opinion.
For purposes of this opinion, we have assumed the authenticity of all
documents submitted to us as originals, the conformity to the originals of all
documents submitted to us as copies and the authenticity of the originals of all
documents submitted to us as copies. We have also assumed the legal capacity of
all natural persons, the genuineness of the signatures of persons signing all
documents in connection with which this opinion is rendered, the authority of
such persons signing on behalf of the parties thereto other than the Company and
the due authorization, execution and delivery of all documents by the parties
thereto other than the Company. As to any facts material to the opinions
expressed herein, we have relied upon the statements and representations of
officers and other representations of the Company and others. For purposes of
numbered paragraph 1, we have relied exclusively upon certificates issued by
governmental authorities in the relevant jurisdictions and such opinion is not
intended to provide any conclusion or assurance beyond that conveyed by such
certificates.
1
<PAGE>
Therma-Wave, Inc.
May 2, 2000
Page 2
Our opinion expressed below is subject to the qualifications that we
express no opinion as to the applicability of, compliance with, or effect of any
laws except the internal laws of the State of California, the General
Corporation Law of the State of Delaware and the federal law of the United
States of America.
Based upon and subject to the foregoing qualifications, assumptions
and limitations and the further limitations set forth below, we hereby advise
you that in our opinion:
(1) The Company is a corporation existing and in good standing under
the laws of the State of Delaware.
(2) The Shares are duly authorized and reserved for issuance under the
Plans, and, when (i) the Registration Statement becomes effective under the Act,
(ii) the Shares have been duly executed and delivered on behalf of the Company
countersigned by the Company's transfer agent/registrar and (iii) the Shares are
issued in accordance with the terms of the Plans upon receipt of the
consideration to be paid therefor of at least $0.01 per share, the Shares will
be validly issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion with the Commission as
Exhibit 5.1 to the Registration Statement. We also consent to the reference to
our firm under the heading "Legal Matters" in the Registration Statement. In
giving this consent, we do not thereby admit that we are in the category of
persons whose consent is required under Section 7 of the Act or the rules and
regulations of the Commission. This opinion and consent may be incorporated by
reference in a subsequent registration statement on Form S-8 filed pursuant to
Rule 462(b) under the Act with respect to the registration of additional
securities issuable under the Plans.
We do not find it necessary for the purposes of this opinion, and
accordingly we do not purport to cover herein, the application of the securities
or "Blue Sky" laws of the various states to the issuance and sale of the Shares.
This opinion is limited to the specific issues addressed herein, and
no opinion may be inferred or implied beyond that expressly stated herein. We
assume no obligation to revise or supplement this opinion should the present
laws of the State of California, the General Corporation Law of the State of
Delaware or the federal law of the United States be changed by legislative
action, judicial decision or otherwise.
2
<PAGE>
Therma-Wave, Inc.
May 2, 2000
Page 3
This opinion is furnished to you pursuant to the applicable rules and
regulations promulgated under the Act in connection with the filing of the
Registration Statement.
Very truly yours,
/s/ Kirkland & Ellis
KIRKLAND & ELLIS
3
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Exhibit 23.1
------------
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 (File No. 333-_____) of our reports dated April 27, 1999
relating to the financial statements and financial statement schedule, which
appear in Therma-Wave, Inc.'s Registration Statement on Form S-1 (No. 333-76019)
filed February 2, 2000.
/s/ PricewaterhouseCoopers LLP
San Jose, California
April 27, 2000
