exv10w1



 






Exhibit
10.1


THERMA-WAVE, INC.




2000 EMPLOYEE STOCK PURCHASE PLAN




(As Amended and Restated effective as of July 27, 2006)




     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 through
accumulated payroll deductions. 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 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.




 









 








          (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 Offering Period.




          (m) “Offering Period” means, effective with the first Offering Period commencing on
and after August 1, 2006, a period of three (3) months commencing on November 1, February 1, May 1
and August 1 of each year except as adjusted pursuant to Section 19.




          (n) “Plan” means this Employee Stock Purchase Plan.




          (o) “Purchase Date” means the last day of each Offering Period of the Plan.




          (p) “Purchase Price” means, for Offering Periods commencing on or after August 1,
2006, 95% of the Fair Market Value (as defined in Section 7(b) below) of a Share of Common Stock on
the Purchase Date; provided however, that the Purchase Price may be adjusted by the Board pursuant
to Section 19.




          (q) “Share” means a share of Common Stock, as adjusted in accordance with Section 18
of the Plan.




          (r) “Subsidiary” shall mean a “subsidiary corporation,” whether now or hereafter
existing, as defined in Section 424(f) of the Code.




     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




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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. Effective for Offering Periods commencing on and after August 1,
2006 the Plan shall be implemented by a series of Offering Periods of three (3) months duration,
with new Offering Periods commencing on or about November 1, February 1, May 1 and August 1 of each
year (or at such other time or times as may be determined by the Board of Directors). The Plan
shall continue until terminated in accordance with Section 19 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, and to create and change purchase periods within an Offering
Period, 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 (or purchase period, as
applicable).



     5. Participation.



          (a) An eligible Employee may become a participant in the Plan by completing a subscription
agreement authorizing periodic payroll deductions 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.




          (b) 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 Purchase Date of the Offering 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. All payroll
deductions made by a participant shall be credited to 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 an Offering Period may increase and on one occasion only during
an Offering 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. 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.




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          (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 may be decreased by the
Company to 0% at any time during an Offering Period. Payroll deductions shall re-commence at the
rate provided in such participant’s subscription agreement at the beginning of the first Offering
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 may be
decreased by the Company to 0% at any time during an Offering 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 shall re- commence at the rate provided in such
participant’s subscription agreement at the beginning of the next Offering 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 Offering Period shall be 600 Shares (subject to any adjustment pursuant to
Section 18 below), and provided further that such purchase shall be subject to the limitations set
forth in Sections 3(b) and 12.




          (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 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



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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 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.




          (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. Interest. No interest shall accrue on the Contributions of a participant in the
Plan.



     12. Stock.



          (a) Subject to adjustment as provided in Section 18, the maximum number of Shares which shall
be made available for sale under the Plan shall be 3,500,000 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

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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 19 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.




          (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.




     13. 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.



     14. 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 an Offering 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.




     15. 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 14) 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.



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     16. Use of Funds. 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.



     17. 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.



     18. 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 an Offering Period, the number of shares of
Common Stock set forth in Section 12(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 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 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 Offering Period then in progress will
terminate. The New Purchase Date shall be on or before the date of 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 18, 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

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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 18); 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.




     19. Amendment or Termination.



          (a) The Board may at any time and for any reason terminate or amend the Plan. Except as
provided in Section 18, 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 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 18 and in this Section 19 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.




          (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 create and change 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.




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     20. 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.



     21. 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.




     22. Term of Plan; Effective Date. The Plan shall become effective upon the earlier to
occur of its adoption by the Board of Directors or its approval by the shareholders of the Company.
It shall continue in effect until terminated under Section 19 hereof.



     23. 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 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.



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EXHIBIT A




THERMA-WAVE, INC.




2000 EMPLOYEE STOCK PURCHASE PLAN




As amended and Restated effective as of July 27, 2006




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, as amended and restated effective as of July 27, 2006 (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 authorize payroll deductions from each paycheck 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 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.






	4.	 	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.






	5.	 	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 Offering Period by completing and
filing a new Subscription Agreement with such increase or decrease taking effect as of the
beginning of the next payroll period following the date of filing of the new Subscription
Agreement, if filed at least ten (10) business days prior to such date. Further, I may change
the rate of my Contributions for future Offering Periods by filing a 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.






	6.	 	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.






	7.	 	Shares purchased for me under the Plan should be issued in the name(s) of (name of employee
or employee and spouse only):





     8. In the event of my death, I hereby designate the following as my beneficiary:




	 	 	 	 	 	 	 	 	 
	NAME: (please print)
	 	 	 	 	 	 	 	 
	 	 
	 

	 	(First)
	 	 	 	(Middle)
	 	(Last)






	 	 	 
	 

	 	 
	Relationship
	 	 
	 
	 	 
	 

	 	 
	Percentage Benefit

	 	(Address)






	 	 	 	 	 	 	 	 	 
	NAME: (please print)
	 	 	 	 	 	 	 	 
	 	 
	 

	 	(First)
	 	 	 	(Middle)
	 	(Last)






	 	 	 
	 

	 	 
	Relationship
	 	 
	 
	 	 
	 

	 	 
	Percentage of Benefit

	 	(Address)







	9.	 	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. 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.




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	10.	 	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) 5% 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.






	11.	 	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:
	 	 	 	 
	 

	 	 

	 	 
	 
	 	 	 	 
	Print Name:
	 	 	 	 
	 

	 	 

	 	 
	 
	 	 	 	 
	Social Security #:
	 	 	 	 
	 

	 	 

	 	 
	 
	 	 	 	 
	Date:
	 	 	 	 
	 

	 	 

	 	 
	 
	 	 	 	 
	Spouse’s Signature:
	 	 	 	 
	 

	 	 

	 	 
	(necessary if beneficiary is not spouse)
	 	 	 	 
	 
	 	 	 	 
	Print Name:
	 	 	 	 
	 

	 	 

	 	 







-3-









 








EXHIBIT B




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.



	 	 	 
	 

	 	Name and Address of Participant:
	 
	 	 
	 

	 	 
	 
	 	 
	 

	 	 
	 
	 	 
	 

	 	 
	 
	 	 
	 

	 	Signature:
	 
	 	 
	 

	 	 





	 	 	 
	 	Date: