<PAGE>
As filed with the Securities and Exchange Commission on February 22, 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. 2000 EMPLOYEE STOCK PURCHASE 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
Proposed Maximum Amount of
Title of Securities to be Amount to be Maximum Offering Aggregate Registration
Registered Registered Price Per Share (1) Offering Price Fee
- -----------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, 500,000 shares (2) $35.25 $17,625,000 $4,653
par value $.01 per share.....
- -----------------------------------------------------------------------------------------------------------
</TABLE>
(1) Estimated 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 February 16,
2000.
(2) Shares reserved for issuance under Therma-Wave, Inc. 2000 Employee Stock
Purchase 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 2000 Employee Stock Purchase 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.
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.
4
<PAGE>
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
The Registrant. 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 February 18, 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 any
registration statement filed pursuant to Rule 462(b) under the Securities Act of
1993, as amended, for the offering which this Registration Statement relates),
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.
Signature Title Date
--------- ----- ----
/s/ Allan Rosencwaig Chairman of the Board February 18, 2000
- -------------------------
Allan Rosencwaig and Chief Technology Officer
/s/ Martin M. Schwartz President, Chief Executive February 18, 2000
- -------------------------
Martin M. Schwartz Officer and Director
(Principal Executive Officer)
<PAGE>
/s/ L. Ray Christie Vice President and Chief February 18, 2000
- -------------------
L. Ray Christie Financial Officer (Principal
Financial and Accounting
Officer)
/s/ Leonard Baker, Jr. Director February 18, 2000
- ----------------------
G. Leonard Baker, Jr.
/s/ David Dominik Director February 18, 2000
- -----------------
David Dominik
/s/ Adam W. Kirsch Director February 18, 2000
- ------------------
Adam W. Kirsch
/s/ Ian K. Loring Director February 18, 2000
- -----------------
Ian K. Loring
<PAGE>
EXHIBIT INDEX
-------------
Exhibit
No. Description of Document
- ------- -----------------------
*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 2000 Employee Stock Purchase 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).
____________________________________
*Incorporated by reference to the Registration Statement of Therma-Wave, Inc. on
Form S-1 (File No. 333-76019) filed on February 2, 2000.
<PAGE>
EXHIBIT 4.4
THERMA-WAVE, INC.
2000 EMPLOYEE STOCK PURCHASE PLAN
The following constitute the provisions of the 2000 Employee Stock Purchase
Plan of Therma-Wave, Inc.
1. PURPOSE.
The purpose of the Plan is to provide employees of the Company and its
Designated Subsidiaries with an opportunity to purchase Common Stock of the
Company. It is the intention of the Company to have the Plan qualify as an
"Employee Stock Purchase Plan" under Section 423 of the Code. The provisions of
the Plan shall, accordingly, be construed so as to extend and limit
participation in a manner consistent with the requirements of that section of
the Code.
2. DEFINITIONS.
(a) "BOARD" means the Board of Directors of the Company.
(b) "CODE" means the Internal Revenue Code of 1986, as amended.
(c) "COMMON STOCK" means the Company's common stock, par value $0.01 per
share.
(d) "COMPANY" means Therma-Wave, Inc., a Delaware corporation.
(e) "COMPENSATION" means all regular straight time gross earnings, and
shall not include commissions, payments for overtime, shift premium, incentive
compensation, incentive payments, bonuses and other compensation.
(f) "CONTINUOUS STATUS AS AN EMPLOYEE" means the absence of any
interruption or termination of service as an Employee. Continuous Status as an
Employee shall not be considered interrupted in the case of (i) sick leave; (ii)
military leave; (iii) any other leave of absence approved by the Administrator,
provided that such leave is for a period of not more than 90 days, unless
reemployment upon the expiration of such leave is guaranteed by contract or
statute, or unless provided otherwise pursuant to Company policy adopted from
time to time; or (iv) in the case of transfers between locations of the Company
or between the Company and its Designated Subsidiaries.
(g) "CONTRIBUTIONS" means all amounts credited to the account of a
participant pursuant to the Plan.
(h) "CORPORATE TRANSACTION" means a sale of all or substantially all of the
Company's assets, or a merger, consolidation or other capital reorganization of
the Company with or into another corporation.
1
<PAGE>
(i) "DESIGNATED SUBSIDIARIES" means the Subsidiaries which have been
designated by the Board from time to time in its sole discretion as eligible to
participate in the Plan; provided however that the Board shall only have the
discretion to designate Subsidiaries if the issuance of options to such
Subsidiary's Employees pursuant to the Plan would not cause the Company to incur
adverse accounting charges.
(j) "EMPLOYEE" means any person, including an Officer, who is customarily
employed for at least twenty (20) hours per week and more than five (5) months
in a calendar year by the Company or one of its Designated Subsidiaries.
(k) "EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended.
(l) "OFFERING DATE" means the first business day of each Offering Period of
the Plan.
(m) "OFFERING PERIOD" means a period of twenty-four (24) months commencing
on April 1, July 1, October 1 and January 1 of each year, except for the first
Offering Period as set forth in Section 4(a).
(n) "OFFICER" means a person who is an officer of the Company within the
meaning of Section 16 of the Exchange Act and the rules and regulations
promulgated thereunder.
(o) "PLAN" means this Employee Stock Purchase Plan.
(p) "PURCHASE DATE" means the last day of each Purchase Period of the Plan.
(q) "PURCHASE PERIOD" means a period of three (3) months within an Offering
Period, except for the first Purchase Period as set forth in Section 4(b).
(r) "PURCHASE PRICE" means with respect to a Purchase Period an amount
equal to 85% of the Fair Market Value (as defined in Section 7(b) below) of a
Share of Common Stock on the Offering Date or on the Purchase Date, whichever is
lower; provided, however, that in the event (i) of any increase in the number of
Shares available for issuance under the Plan as a result of a stockholder-
approved amendment to the Plan, and (ii) all or a portion of such additional
Shares are to be issued with respect to one or more Offering Periods that are
underway at the time of such increase ("Additional Shares"), and (iii) the Fair
Market Value of a Share of Common Stock on the date of such increase (the
"Approval Date Fair Market Value") is higher than the Fair Market Value on the
Offering Date for any such Offering Period, then in such instance the Purchase
Price with respect to Additional Shares shall be 85% of the Approval Date Fair
Market Value or the Fair Market Value of a Share of Common Stock on the Purchase
Date, whichever is lower.
2
<PAGE>
(s) "SHARE" means a share of Common Stock, as adjusted in accordance with
Section 19 of the Plan.
(t) "SUBSIDIARY" means a corporation, domestic or foreign, of which not
less than 50% of the voting shares are held by the Company or a Subsidiary,
whether or not such corporation now exists or is hereafter organized or acquired
by the Company or a Subsidiary.
3. ELIGIBILITY.
(a) Any person who is an Employee as of the Offering Date of a given
Offering Period shall be eligible to participate in such Offering Period under
the Plan, subject to the requirements of Section 5(a) and the limitations
imposed by Section 423(b) of the Code; provided however that eligible Employees
may not participate in more than one Offering Period at a time.
(b) Any provisions of the Plan to the contrary notwithstanding, no Employee
shall be granted an option under the Plan (i) if, immediately after the grant,
such Employee (or any other person whose stock would be attributed to such
Employee pursuant to Section 424(d) of the Code) would own capital stock of the
Company and/or hold outstanding options to purchase stock possessing five
percent (5%) or more of the total combined voting power or value of all classes
of stock of the Company or of any subsidiary of the Company, or (ii) if such
option would permit his or her rights to purchase stock under all employee stock
purchase plans (described in Section 423 of the Code) of the Company and its
Subsidiaries to accrue at a rate which exceeds Twenty-Five Thousand Dollars
($25,000) of the Fair Market Value (as defined in Section 7(b) below) of such
stock (determined at the time such option is granted) for each calendar year in
which such option is outstanding at any time.
4. OFFERING PERIODS AND PURCHASE PERIODS.
(a) OFFERING PERIODS. The Plan shall be implemented by a series of Offering
Periods of twenty-four (24) months duration, with new Offering Periods
commencing on or about April 1, July 1, October 1 and January 1 of each year (or
at such other time or times as may be determined by the Board of Directors). The
first Offering Period shall commence on the beginning of the effective date of
the Registration Statement on Form S-1 for the initial public offering of the
Company's Common Stock (the "IPO Date") and continue until March 31, 2002. The
Plan shall continue until terminated in accordance with Section 20 hereof. The
Board of Directors of the Company shall have the power to change the duration
and/or the frequency of Offering Periods with respect to future offerings
without stockholder approval if such change is announced at least five (5) days
prior to the scheduled beginning of the first Offering Period to be affected.
(b) PURCHASE PERIODS. Each Offering Period shall consist of eight (8)
consecutive Purchase Periods of three (3) months' duration. The last day of each
Purchase Period shall be the "Purchase Date" for such Purchase Period. A
Purchase Period
3
<PAGE>
commencing on April 1 shall end on the next June 30. A Purchase Period
commencing on July 1 shall end on the next September 30. A Purchase Period
commencing on October 1 shall end on the next December 31. A Purchase Period
commencing on January 1 shall end on the next March 31. The first Purchase
Period shall commence on the IPO Date and shall end on March 31, 2000. The Board
of Directors of the Company shall have the power to change the duration and/or
frequency of Purchase Periods with respect to future purchases without
stockholder approval if such change is announced at least five (5) days prior to
the scheduled beginning of the first Purchase Period to be affected.
5. PARTICIPATION.
(a) An eligible Employee may become a participant in the Plan by completing
a subscription agreement on the form provided by the Company and filing it with
the Company's payroll office prior to the applicable Offering Date, unless a
later time for filing the subscription agreement is set by the Board for all
eligible Employees with respect to a given Offering Period. The subscription
agreement shall set forth the percentage of the participant's Compensation
(subject to Section 6(a) below) to be paid as Contributions pursuant to the
Plan. The eligible Employee may choose one of the following methods of payment
for the Shares to be acquired on his or her behalf during the Purchase Period:
(i) periodic payroll deduction; or
(ii) lump sum cash payment; provided, however, that the Board
may, for any Purchase Period, prohibit lump sum cash
payments.
(b) If periodic payroll deductions are selected, payroll deductions shall
commence on the first payroll following the Offering Date and shall end on the
last payroll paid on or prior to the last Purchase Period of the Offering Period
to which the subscription agreement is applicable, unless sooner terminated by
the participant as provided in Section 10.
(c) If the lump sum cash payment alternative is selected, the lump sum
payment must be paid by the participant within the first fifteen (15) days of
the final month of the Purchase Period to which the subscription agreement is
applicable, unless sooner terminated by the participant as provided in Section
10.
6. METHOD OF PAYMENT OF CONTRIBUTIONS.
(a) A participant shall elect to have payroll deductions made on each
payday during the Offering Period in an amount not less than one percent (1%)
and not more than fifteen percent (15%) (or such greater percentage as the Board
may establish from time to time before an Offering Date) of such participant's
Compensation on each payday during the Offering Period; provided, however, that,
in the event the participant chooses the lump sum payment alternative, such
payment may not exceed 15% of the Compensation paid to such participant. All
payroll deductions made by a participant shall be credited to
4
<PAGE>
his or her account under the Plan. A participant may not make any additional
payments into such account.
(b) A participant may discontinue his or her participation in the Plan as
provided in Section 10, or, on one occasion only during a Purchase Period may
increase and on one occasion only during a Purchase Period may decrease the rate
of his or her Contributions with respect to the Offering Period by completing
and filing with the Company a new subscription agreement authorizing a change in
the payroll deduction rate or lump sum payment, as applicable. The change shall
be effective as of the beginning of the next payroll period following the date
of filing of the new subscription agreement, if the agreement is filed at least
ten (10) business days prior to such date and, if not, as of the beginning of
the next succeeding payroll period.
(c) Notwithstanding the foregoing, to the extent necessary to comply with
Section 423(b)(8) of the Code and Section 3(b) hereof, a participant's payroll
deductions or lump sum payment, as applicable, may be decreased by the Company
to 0% at any time during a Purchase Period. Payroll deductions or lump sum
payments shall re-commence at the rate provided in such participant's
subscription agreement at the beginning of the first Purchase Period which is
scheduled to end in the following calendar year, unless terminated by the
participant as provided in Section 10. In addition, a participant's payroll
deductions or lump sum payment, as applicable, may be decreased by the Company
to 0% at any time during a Purchase Period in order to avoid unnecessary payroll
contributions as a result of application of the maximum share limit set forth in
Section 7(a), in which case payroll deductions or lump sum payments shall re-
commence at the rate provided in such participant's subscription agreement at
the beginning of the next Purchase Period, unless terminated by the participant
as provided in Section 10.
7. GRANT OF OPTION.
(a) On the Offering Date of each Offering Period, each eligible Employee
participating in such Offering Period shall be granted an option to purchase on
each Purchase Date a number of Shares of the Company's Common Stock determined
by dividing such Employee's Contributions accumulated prior to such Purchase
Date and retained in the participant's account as of the Purchase Date by the
applicable Purchase Price; provided however that the maximum number of Shares an
Employee may purchase during any Purchase Period shall be 400 Shares (subject to
any adjustment pursuant to Section 19 below), and provided further that such
purchase shall be subject to the limitations set forth in Sections 3(b) and 13.
(b) The fair market value of the Company's Common Stock on a given
date (the "Fair Market Value") shall be determined by the Board in its
discretion based on the closing sales price of the Common Stock for such date
(or, in the event that the Common Stock is not traded on such date, on the
immediately preceding trading date), as reported by the National Association of
Securities Dealers Automated Quotation (Nasdaq) National Market or, if such
price is not reported, the mean of the bid and asked prices per share of the
Common Stock as reported by Nasdaq or, in the event the Common Stock is listed
on a stock exchange, the Fair Market Value per share shall be the closing sales
5
<PAGE>
price on such exchange on such date (or, in the event that the Common Stock is
not traded on such date, on the immediately preceding trading date), as reported
in The Wall Street Journal. For purposes of the Offering Date under the first
Offering Period under the Plan, the Fair Market Value of a share of the Common
Stock of the Company shall be the Price to Public as set forth in the final
prospectus filed with the Securities and Exchange Commission pursuant to Rule
424 under the Securities Act of 1933, as amended.
8. EXERCISE OF OPTION.
Unless a participant withdraws from the Plan as provided in Section 10, his
or her option for the purchase of Shares will be exercised automatically on each
Purchase Date of an Offering Period, and the maximum number of full Shares
subject to the option will be purchased at the applicable Purchase Price with
the accumulated Contributions in his or her account. No fractional Shares shall
be issued. The Shares purchased upon exercise of an option hereunder shall be
deemed to be transferred to the participant on the Purchase Date. During his or
her lifetime, a participant's option to purchase Shares hereunder is exercisable
only by him or her.
9. DELIVERY.
As promptly as practicable after each Purchase Date of each Offering
Period, the Company shall arrange the delivery to each participant, as
appropriate, the Shares purchased upon exercise of his or her option. No
fractional Shares shall be purchased; any payroll deductions accumulated in a
participant's account which are not sufficient to purchase a full Share shall be
retained in the participant's account for the subsequent Purchase Period or
Offering Period, subject to earlier withdrawal by the participant as provided in
Section 10 below. Any other amounts left over in a participant's account after a
Purchase Date shall be returned to the participant.
10. VOLUNTARY WITHDRAWAL; TERMINATION OF EMPLOYMENT.
(a) A participant may withdraw all but not less than all the Contributions
credited to his or her account under the Plan at any time prior to each Purchase
Date by giving written notice to the Company. All of the participant's
Contributions credited to his or her account will be paid to him or her promptly
after receipt of his or her notice of withdrawal and his or her option for the
current period will be automatically terminated, and no further Contributions
for the purchase of Shares will be made during the Offering Period.
(b) Upon termination of the participant's Continuous Status as an Employee
prior to the Purchase Date of an Offering Period for any reason, including
retirement or death, the Contributions credited to his or her account will be
returned to him or her or, in the case of his or her death, to the person or
persons entitled thereto under Section 14, and his or her option will be
automatically terminated.
6
<PAGE>
(c) In the event an Employee fails to remain in Continuous Status as an
Employee of the Company for at least twenty (20) hours per week during the
Offering Period in which the employee is a participant, he or she will be deemed
to have elected to withdraw from the Plan and the Contributions credited to his
or her account will be returned to him or her and his or her option terminated.
(d) A participant's withdrawal from an offering will not have any effect
upon his or her eligibility to participate in a succeeding offering or in any
similar plan which may hereafter be adopted by the Company.
11. AUTOMATIC WITHDRAWAL.
If the Fair Market Value of the Shares on any Purchase Date of an Offering
Period is less than the Fair Market Value of the Shares on the Offering Date for
such Offering Period, then every participant shall automatically (i) be
withdrawn from such Offering Period at the close of such Purchase Date and after
the acquisition of Shares for such Purchase Period, and (ii) be enrolled in the
Offering Period commencing on the first business day subsequent to such Purchase
Period.
12. INTEREST.
No interest shall accrue on the Contributions of a participant in the Plan.
13. STOCK.
(a) Subject to adjustment as provided in Section 19, the maximum number of
Shares which shall be made available for sale under the Plan shall be 500,000
Shares or such lesser number of Shares as is determined by the Board. If the
Board determines that, on a given Purchase Date, the number of shares with
respect to which options are to be exercised may exceed (i) the number of shares
of Common Stock that were available for sale under the Plan on the Offering Date
of the applicable Offering Period, or (ii) the number of shares available for
sale under the Plan on such Purchase Date, the Board may in its sole discretion
provide (x) that the Company shall make a pro rata allocation of the Shares of
Common Stock available for purchase on such Offering Date or Purchase Date, as
applicable, in as uniform a manner as shall be practicable and as it shall
determine in its sole discretion to be equitable among all participants
exercising options to purchase Common Stock on such Purchase Date, and continue
all Offering Periods then in effect, or (y) that the Company shall make a pro
rata allocation of the shares available for purchase on such Offering Date or
Purchase Date, as applicable, in as uniform a manner as shall be practicable and
as it shall determine in its sole discretion to be equitable among all
participants exercising options to purchase Common Stock on such Purchase Date,
and terminate any or all Offering Periods then in effect pursuant to Section 20
below. The Company may make pro rata allocation of the Shares available on the
Offering Date of any applicable Offering Period pursuant to the preceding
sentence, notwithstanding any authorization of additional Shares for issuance
under the Plan by the Company's stockholders subsequent to such Offering Date.
7
<PAGE>
(b) The participant shall have no interest or voting right in Shares
covered by his or her option until such option has been exercised.
(c) Shares to be delivered to a participant under the Plan will be
registered in the name of the participant or in the name of the participant and
his or her spouse.
14. ADMINISTRATION.
The Board, or a committee named by the Board, shall supervise and
administer the Plan and shall have full power to adopt, amend and rescind any
rules deemed desirable and appropriate for the administration of the Plan and
not inconsistent with the Plan, to construe and interpret the Plan, and to make
all other determinations necessary or advisable for the administration of the
Plan.
15. DESIGNATION OF BENEFICIARY.
(a) A participant may file a written designation of a beneficiary who is to
receive any Shares and cash, if any, from the participant's account under the
Plan in the event of such participant's death subsequent to the end of a
Purchase Period but prior to delivery to him or her of such Shares and cash. In
addition, a participant may file a written designation of a beneficiary who is
to receive any cash from the participant's account under the Plan in the event
of such participant's death prior to the Purchase Date of an Offering Period. If
a participant is married and the designated beneficiary is not the spouse,
spousal consent shall be required for such designation to be effective.
(b) Such designation of beneficiary may be changed by the participant (and
his or her spouse, if any) at any time by written notice. In the event of the
death of a participant and in the absence of a beneficiary validly designated
under the Plan who is living at the time of such participant's death, the
Company shall deliver such Shares and/or cash to the executor or administrator
of the estate of the participant, or if no such executor or administrator has
been appointed (to the knowledge of the Company), the Company, in its
discretion, may deliver such Shares and/or cash to the spouse or to any one or
more dependents or relatives of the participant, or if no spouse, dependent or
relative is known to the Company, then to such other person as the Company may
designate.
16. TRANSFERABILITY.
Neither Contributions credited to a participant's account nor any rights
with regard to the exercise of an option or to receive Shares under the Plan may
be assigned, transferred, pledged or otherwise disposed of in any way (other
than by will, the laws of descent and distribution, or as provided in Section
15) by the participant. Any such attempt at assignment, transfer, pledge or
other disposition shall be without effect, except that the Company may treat
such act as an election to withdraw funds in accordance with Section 10.
8
<PAGE>
17. USE OF FUNDS.
All Contributions received or held by the Company under the Plan may be
used by the Company for any corporate purpose, and the Company shall not be
obligated to segregate such Contributions.
18. REPORTS.
Individual accounts will be maintained for each participant in the Plan.
Statements of account will be given to participating Employees at least
annually, which statements will set forth the amounts of Contributions, the per
Share Purchase Price, the number of Shares purchased and the remaining cash
balance, if any.
19. ADJUSTMENTS UPON CHANGES IN CAPITALIZATION; CORPORATE TRANSACTIONS.
(a) ADJUSTMENT. Subject to any required action by the stockholders of the
Company, the number of Shares covered by each option under the Plan which has
not yet been exercised and the number of Shares which have been authorized for
issuance under the Plan but have not yet been placed under option (collectively,
the "Reserves"), as well as the maximum number of shares of Common Stock which
may be purchased by a participant in a Purchase Period, the number of shares of
Common Stock set forth in Section 13(a) above, and the price per Share of Common
Stock covered by each option under the Plan which has not yet been exercised,
shall be proportionately adjusted for any increase or decrease in the number of
issued Shares resulting from a stock split, reverse stock split, stock dividend,
combination or reclassification of the Common Stock (including any such change
in the number of Shares of Common Stock effected in connection with a change in
domicile of the Company), or any other increase or decrease in the number of
Shares effected without receipt of consideration by the Company; provided
however that conversion of any convertible securities of the Company shall not
be deemed to have been "effected without receipt of consideration." Such
adjustment shall be made by the Board, whose determination in that respect shall
be final, binding and conclusive. Except as expressly provided herein, no issue
by the Company of shares of stock of any class, or securities convertible into
shares of stock of any class, shall affect, and no adjustment by reason thereof
shall be made with respect to, the number or price of Shares subject to an
option.
(b) CORPORATE TRANSACTIONS. In the event of a dissolution or liquidation of
the Company, any Purchase Period and Offering Period then in progress will
terminate immediately prior to the consummation of such action, unless otherwise
provided by the Board. In the event of a Corporate Transaction, each option
outstanding under the Plan shall be assumed or an equivalent option shall be
substituted by the successor corporation or a parent or Subsidiary of such
successor corporation. In the event that the successor corporation refuses to
assume or substitute for outstanding options, each Purchase Period and Offering
Period then in progress shall be shortened and a new Purchase Date shall be set
(the "New Purchase Date"), as of which date any Purchase Period and Offering
Period then in progress will terminate. The New Purchase Date shall be on or
before the date of
9
<PAGE>
consummation of the transaction and the Board shall notify each participant in
writing, at least ten (10) days prior to the New Purchase Date, that the
Purchase Date for his or her option has been changed to the New Purchase Date
and that his or her option will be exercised automatically on the New Purchase
Date, unless prior to such date he or she has withdrawn from the Offering Period
as provided in Section 10. For purposes of this Section 19, an option granted
under the Plan shall be deemed to be assumed, without limitation, if, at the
time of issuance of the stock or other consideration upon a Corporate
Transaction, each holder of an option under the Plan would be entitled to
receive upon exercise of the option the same number and kind of shares of stock
or the same amount of property, cash or securities as such holder would have
been entitled to receive upon the occurrence of the transaction if the holder
had been, immediately prior to the transaction, the holder of the number of
Shares of Common Stock covered by the option at such time (after giving effect
to any adjustments in the number of Shares covered by the option as provided for
in this Section 19); provided however that if the consideration received in the
transaction is not solely common stock of the successor corporation or its
parent (as defined in Section 424(e) of the Code), the Board may, with the
consent of the successor corporation, provide for the consideration to be
received upon exercise of the option to be solely common stock of the successor
corporation or its parent equal in Fair Market Value to the per Share
consideration received by holders of Common Stock in the transaction.
The Board may, if it so determines in the exercise of its sole
discretion, also make provision for adjusting the Reserves, as well as the price
per Share of Common Stock covered by each outstanding option, in the event that
the Company effects one or more reorganizations, recapitalizations, rights
offerings or other increases or reductions of Shares of its outstanding Common
Stock, and in the event of the Company's being consolidated with or merged into
any other corporation.
20. AMENDMENT OR TERMINATION.
(a) The Board may at any time and for any reason terminate or amend the
Plan. Except as provided in Section 19, no such termination of the Plan may
affect options previously granted, provided that the Plan or an Offering Period
may be terminated by the Board on a Purchase Date or by the Board's setting a
new Purchase Date with respect to an Offering Period and Purchase Period then in
progress if the Board determines that termination of the Plan and/or the
Offering Period is in the best interests of the Company and the stockholders or
if continuation of the Plan and/or the Offering Period would cause the Company
to incur adverse accounting charges as a result of a change after the effective
date of the Plan in the generally accepted accounting rules applicable to the
Plan. Except as provided in Section 19 and in this Section 20, no amendment to
the Plan shall make any change in any option previously granted which adversely
affects the rights of any participant. In addition, to the extent necessary to
comply with Rule 16b-3 under the Exchange Act, or under Section 423 of the Code
(or any successor rule or provision or any applicable law or regulation), the
Company shall obtain stockholder approval in such a manner and to such a degree
as so required.
10
<PAGE>
(b) Without stockholder consent and without regard to whether any
participant rights may be considered to have been adversely affected, the Board
(or its committee) shall be entitled to change the Offering Periods and Purchase
Periods, limit the frequency and/or number of changes in the amount withheld
during an Offering Period, establish the exchange ratio applicable to amounts
withheld in a currency other than U.S. dollars, permit payroll withholding in
excess of the amount designated by a participant in order to adjust for delays
or mistakes in the Company's processing of properly completed withholding
elections, establish reasonable waiting and adjustment periods and/or accounting
and crediting procedures to ensure that amounts applied toward the purchase of
Common Stock for each participant properly correspond with amounts withheld from
the participant's Compensation, and establish such other limitations or
procedures as the Board (or its committee) determines in its sole discretion
advisable which are consistent with the Plan.
21. NOTICES.
All notices or other communications by a participant to the Company under
or in connection with the Plan shall be deemed to have been duly given when
received in the form specified by the Company at the location, or by the person,
designated by the Company for the receipt thereof.
22. CONDITIONS UPON ISSUANCE OF SHARES.
Shares shall not be issued with respect to an option unless the exercise of
such option and the issuance and delivery of such Shares pursuant thereto shall
comply with all applicable provisions of law, domestic or foreign, including,
without limitation, the Securities Act of 1933, as amended, the Exchange Act,
the rules and regulations promulgated thereunder, applicable state securities
laws and the requirements of any stock exchange upon which the Shares may then
be listed, and shall be further subject to the approval of counsel for the
Company with respect to such compliance.
As a condition to the exercise of an option, the Company may require the
person exercising such option to represent and warrant at the time of any such
exercise that the Shares are being purchased only for investment and without any
present intention to sell or distribute such Shares if, in the opinion of
counsel for the Company, such a representation is required by any of the
aforementioned applicable provisions of law.
23. TERM OF PLAN; EFFECTIVE DATE.
The Plan shall become effective upon the IPO Date. It shall continue in
effect for a term of ten (10) years unless sooner terminated under Section 20.
24. ADDITIONAL RESTRICTIONS OF RULE 16b-3.
The terms and conditions of options granted hereunder to, and the purchase
of Shares by, persons subject to Section 16 of the Exchange Act shall comply
with the
11
<PAGE>
applicable provisions of Rule 16b-3. This Plan shall be deemed to contain, and
such options shall contain, and the Shares issued upon exercise thereof shall be
subject to, such additional conditions and restrictions as may be required by
Rule 16b-3 to qualify for the maximum exemption from Section 16 of the Exchange
Act with respect to Plan transactions.
12
<PAGE>
THERMA-WAVE, INC.
2000 EMPLOYEE STOCK PURCHASE PLAN
FORM OF SUBSCRIPTION AGREEMENT
New Election ______
Change of Election______
1. I, ________________________, hereby elect to participate in the Therma-
Wave, Inc. 2000 Employee Stock Purchase Plan (the "Plan") for the Offering
Period ______________, ____ to _______________, ____, and subscribe to
purchase shares of the Company's Common Stock in accordance with this
Subscription Agreement and the Plan.
2. I elect to have Contributions in the amount of ____% of my Compensation, as
those terms are defined in the Plan, applied to this purchase. I understand
that this amount must not be less than 1% and not more than 15% of my
Compensation during the Offering Period. (Please note that no fractional
percentages are permitted).
3. I elect to have these Contributions made through (choose one): ____ Payroll
Deduction or ____ Lump Sum Payment.
4. In the event the payroll deduction option was selected, I hereby authorize
payroll deductions from each paycheck during the Offering Period at the
rate stated in Item 2 of this Subscription Agreement. I understand that all
payroll deductions made by me shall be credited to my account under the
Plan and that I may not make any additional payments into such account.
5. I understand that all payments made by me shall be accumulated for the
purchase of shares of Common Stock at the applicable purchase price
determined in accordance with the Plan. I further understand that, except
as otherwise set forth in the Plan, shares will be purchased for me
automatically on the Purchase Date of each Offering Period unless I
otherwise withdraw from the Plan by giving written notice to the Company
for such purpose.
6. I understand that I may discontinue at any time prior to the Purchase Date
my participation in the Plan as provided in Section 10 of the Plan. I also
understand that I can increase or decrease the rate of my Contributions on
one occasion only with respect to any increase and one occasion only with
respect to any decrease during any Purchase Period by completing and filing
a new Subscription Agreement with such increase or decrease taking effect
as of the beginning of the calendar month following the date of filing of
the new Subscription Agreement, if filed at least ten (10) business days
prior to the beginning of such month. Further, I may change the rate of my
Contributions for future Offering Periods by filing a
13
<PAGE>
new Subscription Agreement, and any such change will be effective as of the
beginning of the next Offering Period. In addition, I acknowledge that,
unless I discontinue my participation in the Plan as provided in Section 10
of the Plan, my election will continue to be effective for each successive
Offering Period.
7. I have received a copy of the complete "Therma-Wave, Inc. 2000 Employee
Stock Purchase Plan." I understand that my participation in the Plan is in
all respects subject to the terms of the Plan.
8. Shares purchased for me under the Plan should be issued in the name(s) of
(name of employee or employee and spouse only):
9. In the event of my death, I hereby designate the following as my
beneficiary(ies) to receive all payments and shares due to me under the
Plan:
NAME: (Please print)
(First) (Middle) (Last)
(Relationship) (Address)
AND
NAME: (Please print)
(First) (Middle) (Last)
(Relationship) (Address)
10. I understand that if I dispose of any shares received by me pursuant to the
Plan within 2 years after the Offering Date (the first day of the Offering
Period during which I purchased such shares) or within 1 year after the
Purchase Date, I will be treated for federal income tax purposes as having
received ordinary compensation income at the time of such disposition in an
amount equal to the excess of the fair market value of the shares on the
Purchase Date over the price which I paid for the shares, regardless of
whether I disposed of the shares at a price less than their fair market
value at the Purchase Date. The remainder of the gain or loss, if any,
recognized on such disposition will be treated as capital gain or loss.
14
<PAGE>
I hereby agree to notify the Company in writing within 30 days after the
date of any such disposition, and I will make adequate provision for
federal, state or other tax withholding obligations, if any, which arise
upon the disposition of the Common Stock. The Company may, but will not be
obligated to, withhold from my compensation the amount necessary to meet
any applicable withholding obligation including any withholding necessary
to make available to the Company any tax deductions or benefits
attributable to the sale or early disposition of Common Stock by me.
11. If I dispose of such shares at any time after expiration of the 2-year and
1-year holding periods, I understand that I will be treated for federal
income tax purposes as having received compensation income only to the
extent of an amount equal to the lesser of (1) the excess of the fair
market value of the shares at the time of such disposition over the
purchase price which I paid for the shares under the option, or (2) 15% of
the fair market value of the shares on the Offering Date. The remainder of
the gain or loss, if any, recognized on such disposition will be treated as
capital gain or loss.
I understand that this tax summary is only a summary and is subject to
change. I further understand that I should consult a tax advisor concerning
the tax implications of the purchase and sale of stock under the Plan.
12. I hereby agree to be bound by the terms of the Plan. The effectiveness of
this Subscription Agreement is dependent upon my eligibility to participate
in the Plan.
SIGNATURE:
SOCIAL SECURITY #:
DATE:
SPOUSE'S SIGNATURE (necessary
if beneficiary is not spouse):
(Signature)
(Print name)
15
<PAGE>
THERMA-WAVE, INC.
2000 EMPLOYEE STOCK PURCHASE PLAN
NOTICE OF WITHDRAWAL
I, __________________________, hereby elect to withdraw my participation
in the Therma-Wave, Inc. 2000 Employee Stock Purchase Plan (the "Plan") for the
Offering Period that began on _________ ___, _____. This withdrawal covers all
Contributions credited to my account and is effective on the date designated
below.
I understand that all Contributions credited to my account will be paid
to me within ten (10) business days of receipt by the Company of this Notice of
Withdrawal and that my option for the current period will automatically
terminate, and that no further Contributions for the purchase of shares can be
made by me during the Offering Period.
The undersigned further understands and agrees that he or she shall be
eligible to participate in succeeding offering periods only by delivering to the
Company a new Subscription Agreement.
Dated:
Signature of Employee
Social Security Number
16
<PAGE>
Exhibit 5.1
-----------
KIRKLAND & ELLIS
PARTNERSHIPS INCLUDING PROFESSIONAL CORPORATIONS
777 South Figueroa Street
Los Angeles, California 90017
To Call Writer Direct: 213 680-8400 Facsimile:
213 680-8400 213 680-8500
February 18, 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 500,000 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 2000 Employee Stock Purchase Plan (the "Plan").
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>
KIRKLAND & ELLIS
Therma-Wave, Inc.
February 18, 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
Plan, 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 Plan 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 Plan.
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>
KIRKLAND & ELLIS
Therma-Wave, Inc.
February 18, 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
<PAGE>
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
February 18, 2000
