exv4w1



 





Exhibit 4.1




TENDER AND SUPPORT AGREEMENT




     TENDER AND SUPPORT AGREEMENT (this “Agreement”) dated as of January 7, 2007 between KLA Tencor
Corporation, a Delaware corporation (“Parent”), Fenway Acquisition Corporation, a Delaware
corporation and wholly-owned subsidiary of Parent (“Merger Subsidiary”), Therma-Wave, Inc., a
Delaware corporation (the “Company”), and the parties listed on Annex I and Annex
II (each, a “Securityholder”), each an owner of the Company Shares, Series B Convertible
Preferred Stock and/or Series B Warrants of the Company.



     WHEREAS, as of the date hereof, each Securityholder on Annex I is the holder of the
number of Company Shares set forth opposite such Securityholder’s name (all such directly owned
Company Shares that are outstanding as of the date hereof, together with any Company Shares that
are hereafter issued to or otherwise acquired or owned by any Securityholder prior to the
termination of this Agreement (including pursuant to any exercise of Company Stock Options or
exercise or conversion of the Series B Convertible Preferred Stock, Series B Warrants or other
Company Convertible Securities, acquisition by purchase, or stock dividend, distribution, split-up,
recapitalization, combination or similar transaction, the “Subject Company Shares”));



     WHEREAS, as of the date hereof, each Securityholder on Annex II holding shares of
Series B Convertible Preferred Stock is the holder of the number of shares of Series B Convertible
Preferred Stock set forth opposite such holder’s name (the Series B Convertible Preferred Stock
together with the Subject Company Shares, the “Subject Shares”);



     WHEREAS, as a condition to their willingness to enter into the Agreement and Plan of Merger
(the “Merger Agreement”) dated as of the date hereof among Parent, Merger Subsidiary and the
Company, Parent and Merger Subsidiary have required that each Securityholder, and in order to
induce Parent and Merger Subsidiary to enter into the Merger Agreement each Securityholder (only in
such Securityholder’s capacity as a holder of the Subject Shares) has agreed to, enter into this
Agreement; and



     WHEREAS, capitalized terms used but not otherwise defined herein shall have the respective
meanings ascribed to such terms in the Merger Agreement, and the other definitional and
interpretative provisions set forth in Section 1.02 of the Merger Agreement shall apply hereto as
if such provisions were set forth herein.



     NOW, THEREFORE, in consideration of the foregoing and the respective representations,
warranties, covenants and agreements set forth below, the parties hereto agree as follows:



 









 





ARTICLE 1



Agreement to Tender




     Section 1.01. Agreement to Tender. (a) Each Securityholder shall validly tender or cause to
be tendered in the Offer all of such Securityholder’s Subject Shares pursuant to and in accordance
with the terms of the Offer. As promptly as practicable, but in any event no later than three
Business Days after receipt by such Securityholder of all documents or instruments required to be
delivered pursuant to the terms of the Offer, including but not limited to the letter of
transmittal, each Securityholder shall (i) deliver to the depositary designated in the Offer (the
“Depositary”) (A) a letter of transmittal with respect to its Subject Shares complying with the
terms of the Offer, (B) a certificate or certificates representing such Subject Shares or an
“agent’s message” (or such other evidence, if any, of transfer as the Depositary may reasonably
request) in the case of a book-entry transfer of any uncertificated Subject Shares and (C) all
other documents or instruments required to be delivered by other stockholders of the Company
pursuant to the terms of the Offer, and/or (ii) instruct its broker or such other Person that is
the holder of record of any Subject Shares beneficially owned by such Securityholder to tender such
Subject Shares pursuant to and in accordance with the terms of the Offer. Each Securityholder
agrees that once its Subject Shares are tendered by such Securityholder will not withdraw any of
such Subject Shares from the Offer, unless and until (i) the Offer shall have been terminated by
Merger Subsidiary in accordance with the terms of the Merger Agreement or (ii) this Agreement shall
have been terminated in accordance with Section 5.03.



     Section 1.02. Merger Consideration. Any amount of Merger Consideration paid for each Company
Share in excess of the Offer Price must be paid, promptly after the Effective Time, to each
Securityholder in respect of such Securityholder’s Subject Shares.



ARTICLE 2



Representations and Warranties of the Securityholders




     Each Securityholder represents and warrants to Parent and Merger Subsidiary as to itself,
severally and not jointly, that:



     Section 2.01. Authorization; Binding Agreement. If such Securityholder is not a natural
Person, such Securityholder is a business entity duly organized, validly existing and in good
standing under the laws of its jurisdiction of organization, and the execution, delivery and
performance by such Securityholder of this Agreement and the consummation of the transactions
contemplated hereby are within such Securityholder’s corporate or organizational powers and have



2









 







been duly authorized by all necessary corporate or organizational actions on the part of such
Securityholder. If such Securityholder is a natural Person, the execution, delivery and
performance by such Securityholder of this Agreement and the consummation of the transactions
contemplated hereby are within his or her legal capacity and requisite powers, and if this
Agreement is being executed in a representative or fiduciary capacity, the Person signing this
Agreement has full power and authority to execute, deliver and perform this Agreement. This
Agreement constitutes a valid and binding agreement of such Securityholder enforceable against such
Securityholder in accordance with its terms, except as such enforceability may be limited by
bankruptcy, insolvency, moratorium and other similar Applicable Law affecting creditors’ rights
generally and by general principles of equity.



     Section 2.02. Non-Contravention. The execution, delivery and performance by such
Securityholder of this Agreement and the consummation of the transactions contemplated hereby do
not and will not (i) violate any certificate of incorporation, bylaws or other organizational
documents of such Securityholder, (ii) violate any Applicable Law applicable to such
Securityholder, (iii) require any consent or other action by any Person under, constitute a default
under, or give rise to any right of termination, cancellation or acceleration or to a loss of any
benefit to which such Securityholder is entitled under any provision of any agreement or other
instrument binding on such Securityholder or (iv) result in the imposition of any Lien on any asset
of such Securityholder, in the case of each of clauses (ii) through (iv) such as would impair or adversely affect such Securityholder’s
ability to perform its obligations hereunder. No governmental licenses, authorizations, permits,
consents or approvals are required in connection with the execution and delivery of this Agreement
by such Securityholder or the consummation by such Securityholder of the transactions contemplated
hereby, except for applicable requirements, if any, under the 1934 Act and any other applicable
U.S. state or federal securities laws and for such licenses, authorizations, permits, consents or
approvals the absence of which would not impair or adversely affect such Securityholder’s ability
to perform its obligations hereunder.



     Section 2.03. Ownership of Subject Shares; Total Shares. Such Securityholder is the record
or beneficial owner (as defined in Rule 13d-3 under the 1934 Act) of its Subject Shares and, as of
the date of Merger Subsidiary’s acceptance of the Tender Shares in the Offer, such Subject Shares
will be free and clear of any Lien and any other limitation or restriction (including any
restriction on the right to vote or otherwise transfer such Subject Shares), except as provided
hereunder or pursuant to any applicable restrictions on transfer under the 1933 Act. As of the
date hereof, such Securityholder does not own, beneficially or otherwise, any Company Securities
other than (x) as set forth opposite such Securityholder’s name in Annex I and Annex II, as
applicable, (y) the Company Stock Options set forth opposite such Securityholder’s name on Section
5.05(b) of



3









 







the Company Disclosure Schedule and (z) the Company Shares issuable upon the exercise or
conversion of such Securityholder’s Company Stock Options, Series B Convertible Preferred Stock or
Series B Warrants.



     Section 2.04. Voting Power. Such Securityholder has full voting power, with respect to its
Subject Shares, and full power of disposition, full power to issue instructions with respect to the
matters set forth herein, and full power to agree to all of the matters set forth in this
Agreement, in each case with respect to all of its Subject Shares. None of such Securityholder’s
Subject Shares are subject to any voting trust or other agreement or arrangement with respect to
the voting of such shares, except as provided hereunder.



     Section 2.05. Finder’s Fees. Except as provided in the Merger Agreement, no investment
banker, broker, finder or other intermediary is entitled to a fee or commission from the Company or
any of its Subsidiaries in connection with the transactions contemplated by the Merger Agreement or
this Agreement based upon any arrangement or agreement made by or on behalf of such Securityholder.



     Section 2.06. Reliance by Parent. Such Securityholder understands and acknowledges that
Parent is entering into the Merger Agreement in reliance upon such Securityholder’s execution and
delivery of this Agreement.



     Section 2.07. Receipt of Notice. Such Securityholder has received any notice from the
Company required to be made to such Securityholder in connection with the Merger Agreement or the
transactions contemplated thereby and hereby waives any rights such Securityholder may have against
the Company with respect to the Company’s failure to timely provide any such notice.



ARTICLE 3



Additional Covenants of the Securityholders




     Subject
to Section 5.15, each Securityholder hereby covenants and agrees as to itself, severally and not
jointly, that:



     Section 3.01. Voting of Subject Shares. (a) At every meeting of the stockholders of the
Company called, and at every adjournment or postponement thereof, such Securityholder shall, or
shall cause the holder of record on any applicable record date to, vote its Subject Shares (to the
extent that any of such Securityholder’s Subject Shares are not purchased in the Offer) (i) in
favor of the adoption of the Merger Agreement and the transactions contemplated thereby, (ii)
against (A) any agreement or arrangement related to any Acquisition Proposal, (B) any liquidation,
dissolution, recapitalization, extraordinary dividend or other significant corporate reorganization
of the Company or any of its Subsidiaries or



4









 




(C) any other transaction the consummation of which would reasonably be expected to impede,
interfere with, prevent or materially delay the Offer or the Merger or that would reasonably be
expected to dilute materially the benefits to Parent of the transactions contemplated by the Merger
Agreement and (iii) in favor of any other matter necessary for consummation of the transactions
contemplated by the Merger Agreement, which is considered at any such meeting of stockholders, and
in connection therewith to execute any documents reasonably requested by Parent which are necessary
or appropriate in order to effectuate the foregoing.




     (b) Each Securityholder shall retain at all times the right to vote such Securityholder’s
Subject Shares in such Securityholder’s sole discretion and without any other limitation on those
matters other than those set forth in Section 3.01(a) that are at any time or from time to time
presented for consideration to the Company’s stockholders generally.



     Section 3.02. Irrevocable Proxy. In order to secure the performance of such Securityholder’s
obligations under this Agreement, by entering into this Agreement, such Securityholder hereby
irrevocably grants a proxy appointing each executive officer of Parent as such Securityholder’s
attorney-in-fact and proxy, with full power of substitution, for and in its name, to vote, express
consent or dissent, or otherwise to utilize such voting power in the
manner contemplated by Section 3.01 as
such attorney-in-fact and proxy, in its sole discretion, deems proper with respect to such
Securityholder’s Subject Shares. The proxy granted by such
Securityholder pursuant to this Section 3.02 shall
be revoked automatically, without any notice or other action by any Person, upon termination of
this Agreement in accordance with its terms. Such Securityholder hereby revokes any and all
previous proxies granted with respect to its Subject Shares.



     Section 3.03. No Transfers; No Inconsistent Arrangements. (a) Except as provided hereunder
or under the Merger Agreement, such Securityholder shall not, directly or indirectly, (i) transfer
(which term shall include any sale, assignment, gift, pledge, hypothecation or other disposition),
or consent to or permit any such transfer of, any or all of its Subject Shares, or any interest
therein, or create or permit to exist any Lien, other than any restrictions imposed by Applicable
Law or pursuant to this Agreement, on any such Subject Shares, (ii) enter into any Contract with
respect to any transfer of such Subject Shares or any interest therein, (iii) grant or permit the
grant of any proxy, power of attorney or other authorization in or with respect to such Subject
Shares, (iv) deposit or permit the deposit of such Subject Shares into a voting trust or enter into
a voting agreement or arrangement with respect to such Subject Shares or (v) take or permit any
other action that would in any way restrict, limit or interfere with the performance of its
obligations hereunder or the transactions contemplated hereby



5









 







or otherwise make any representation or warranty of each Securityholder herein untrue or
incorrect.



     (b) Any
attempted transfer of Subject Shares, or any interest therein, in
violation of this Section 3.03
shall be null and void. In furtherance of this Agreement, such Securityholder shall and hereby
does authorize the Company and Merger Subsidiary’s counsel to notify the Company’s transfer agent
that there is a stop transfer restriction with respect to all of its Subject Shares (and that this
Agreement places limits on the voting and transfer of its Subject Shares); provided that any such
stop transfer restriction shall terminate automatically, without any notice or other action by any
Person, upon the termination of this Agreement in accordance with
Section 5.03 and, upon such event, Parent or
the Company shall promptly notify the Company’s transfer agent of such termination.



     Section 3.04. No Solicitation; Other Offers. Such Securityholder hereby agrees to comply
with the obligations imposed on the Company’s Representatives pursuant to Section 7.04 of the
Merger Agreement as if a party thereto.



     Section 3.05. No Exercise of Appraisal Rights. Such Securityholder agrees not to exercise
any appraisal rights or dissenter’s rights in respect of its Subject Shares which may arise with
respect to the Merger.



     Section 3.06. Legends. If so requested by Parent, such Securityholder agrees that its
Subject Shares shall bear a legend stating that they are subject to this Agreement; provided that
the Company shall remove such legend upon the Termination Date.



     Section 3.07. Documentation and Information. Such Securityholder (i) consents to and
authorizes the publication and disclosure by Parent of its identity and holding of Subject Shares,
the nature of its commitments and obligations under this Agreement (including, for the avoidance of
doubt, the disclosure of this Agreement) and any other information, in each case, that Parent
reasonably determines is required to be disclosed by Applicable Law in any press release, the Offer
Documents, or any other disclosure document in connection with the Offer, the Merger and any
transactions contemplated by the Merger Agreement and (ii) agrees promptly to give to Parent any
information it may reasonably require for the preparation of any such disclosure documents. Such
Securityholder agrees to promptly notify Parent of any required corrections with respect to any
written information supplied by it specifically for use in any such disclosure document, if and to
the extent that any shall have become false or misleading in any material respect.



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ARTICLE 4



Series B Warrants




     Section 4.01. Redemption or Sale. (a) On the second Business Day following Merger
Subsidiary’s acceptance of the Tender Shares in the Offer, at the election of Parent, (i) the
Company shall redeem such Series B Warrants substantially in accordance with their terms or (ii)
each holder of the Series B Warrants shall sell all of such holder’s Series B Warrants to Parent
(or a subsidiary of Parent). For each of clause (i) and (ii) above, the redemption price or
purchase price, as the case may be, to be paid to each holder for its Series B Warrants shall be
equal to what such holder of Series B Warrants would have received had such holder exercised such
Series B Warrants by means of a “cashless exercise” under the terms of the Series B Warrants
immediately prior to Merger Subsidiary’s acceptance of the Tender Shares in the Offer.



     (b) Parent shall give notice of its election to the Company and the holders of the Series B
Warrants on the Business Day following Merger Subsidiary’s acceptance of the Tender Shares in the
Offer. Payment shall be made to the holders of the Series B Warrants no later than the third
Business Day following Merger Subsidiary’s acceptance of the Tender Shares in the Offer.



     (c) In the event that the Offer is not consummated, the Series B Warrants shall remain
outstanding until redeemed, exercised or otherwise terminated pursuant to their terms.



     Section 4.02. Covenant of the Holders. Each holder of the Series B Warrants hereby agrees
that it will not exercise, convert or transfer such warrants prior to the termination of this
Agreement without the written consent of Parent, except as provided by this Article 4.



     Section 4.03. Covenants of the Company. (a) The Company hereby waives any right to receive
notice from the holders of the Series B Warrants required to be made pursuant to the terms of
Series B Warrants in connection with a redemption in the event of a “Change of Control”.



     (b) The Company further agrees to use its reasonable efforts to take, or cause to be taken,
all actions and to do, or cause to be done, all things necessary, proper or advisable to consummate
the transactions contemplated in this Article 4.



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ARTICLE 5



Miscellaneous




     Section 5.01. Notices. All notices, requests and other communications to any party hereunder
shall be in writing (including facsimile transmission) and shall be given,



     if to Parent or Merger Subsidiary, to:


KLA-Tencor Corporation

160 Rio Robles

San Jose, California 95134

Attention: Chief Financial Officer

Facsimile No.: (408) 875-3030




     with a copy to:


Davis Polk & Wardwell

1600 El Camino Real

Menlo Park, California 94025

Attention: William M. Kelly

                  Mischa Travers

Facsimile No.: (650) 752-2111




     if to the Company, to:


Therma-Wave, Inc.

1250 Reliance Way

Fremont, California 94539

Attention: Chief Financial Officer

Facsimile No.: (510) 656-3852




     with a copy to:


Morrison & Foerster LLP

755 Page Mill Road

Palo Alto, California 94304

Attention: Michael Phillips

                  Michael O’Bryan

Facsimile No.: (650) 494-0792




     if to any Securityholder, to it at that address specified on Schedule A, with copies to the
persons identified therein,


or to such other address or facsimile number as such party may hereafter specify for the purpose by
notice to each other party hereto. All such notices, requests


8









 






and other communications shall be deemed received on the date of receipt by the recipient thereof
if received prior to 5:00 p.m. on a Business Day in the place of receipt. Otherwise, any such
notice, request or communication shall be deemed to have been received on the next succeeding
Business Day in the place of receipt.




     Section 5.02. Further Assurances. (a) Each Securityholder shall, from time to time, execute
and deliver, or cause to be executed and delivered, such additional or further transfers,
assignments, endorsements and other instruments as Parent or Merger Subsidiary may reasonably
request to carry out the transactions expressly set forth in this Agreement.



     (b) Parent and Merger Subsidiary shall, from time to time, execute and deliver, or cause to be
executed and delivered, such additional or further consents and other instruments as any other
party may reasonably request to carry out the transactions contemplated by this Agreement.



     Section 5.03. Termination. (a) This Agreement shall terminate automatically, without any
notice or other action by any Person, upon the earlier of (i) the termination of the Merger
Agreement in accordance with its terms and (ii) the Effective Time.



     (b) Any holder of the Series B Convertible Preferred Stock shall have the right to terminate
this Agreement immediately following (A) any change in the nature of the consideration payable in
the Offer or the Merger, (B) any decrease in consideration payable in the Offer or the Merger, (C)
any increase in the consideration payable to holders of Subject Shares that is not made equally
available to holders of Series B Convertible Preferred Stock (on an as-converted basis), (D) any
waiver of the Minimum Condition by each of the Company and Parent or (E) the date that is 9 months
after the date of this Agreement.



     (c) Notwithstanding
the foregoing, nothing set forth in this Section 5.03 or elsewhere in this Agreement
shall relieve either party hereto from liability, or otherwise limit the liability of either party
hereto, for any breach of this Agreement.



     Section 5.04. Survival of Representations and Warranties. The representations and warranties
contained herein and in any certificate or other writing delivered pursuant hereto shall not
survive the Effective Time.



     Section 5.05. Amendments and Waivers. (a) Any provision of this Agreement may be amended or
waived if such amendment or waiver is in writing and is signed, in the case of an amendment, by
each party to this Agreement or, in the case of a waiver, by each party against whom the waiver is
to be effective.



9









 





     (b) No failure or delay by any party in exercising any right, power or privilege hereunder
shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any
other or further exercise thereof or the exercise of any other right, power or privilege. The
rights and remedies herein provided shall be cumulative and not exclusive of any rights or remedies
provided by Applicable Law.



     Section 5.06. Expenses. Except as otherwise provided herein, all costs and expenses incurred
in connection with this Agreement shall be paid by the party incurring such cost or expense.



     Section 5.07. Binding Effect; Benefit; Assignment. (a) The provisions of this Agreement
shall be binding upon and shall inure to the benefit of the parties hereto and their respective
successors and assigns. No provision of this Agreement is intended to confer any rights, benefits,
remedies, obligations or liabilities hereunder upon any Person other than the parties hereto and
their respective successors and assigns.



     (b) No party may assign, delegate or otherwise transfer any of its rights or obligations under
this Agreement without the consent of each other party hereto, except that each of Parent and
Merger Subsidiary may transfer or assign its rights and obligations under this Agreement, in whole
or from time to time in part, to one or more of its Affiliates at any time; provided that such
transfer or assignment shall not relieve Parent or Merger Subsidiary of any of its obligations
hereunder.



     Section 5.08. Governing Law. This Agreement shall be governed by and construed in accordance
with the laws of the State of Delaware, without regard to the conflicts of law rules of such State.



     Section 5.09. Jurisdiction. The parties hereto agree that any Proceeding seeking to enforce
any provision of, or based on any matter arising out of or in connection with, this Agreement or
the transactions contemplated hereby shall be brought in any federal court located in the State of
Delaware or any Delaware state court, and each of the parties hereby irrevocably consents to the
exclusive jurisdiction of such courts (and of the appropriate appellate courts therefrom) in any
such suit, action or proceeding and irrevocably waives, to the fullest extent permitted by law, any
objection that it may now or hereafter have to the laying of the venue of any such suit, action or
proceeding in any such court or that any such suit, action or proceeding brought in any such court
has been brought in an inconvenient forum. Process in any such Proceeding may be served on any
party anywhere in the world, whether within or without the jurisdiction of any such court. Without
limiting the foregoing, each party agrees that service of process on
such party as provided in Section 5.01
shall be deemed effective service of process on such party.



10









 





     Section 5.10. Waiver of Jury Trial. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ANY
AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT
OR THE TRANSACTIONS CONTEMPLATED HEREBY.



     Section 5.11. Counterparts; Effectiveness. This Agreement may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if the signatures thereto
and hereto were upon the same instrument. This Agreement shall become effective when each party
hereto shall have received a counterpart hereof signed by all of the other parties hereto. Until
and unless each party has received a counterpart hereof signed by each other party hereto, this
Agreement shall have no effect and no party shall have any right or obligation hereunder (whether
by virtue of any other oral or written agreement or other communication).



     Section 5.12. Entire Agreement. This Agreement constitutes the entire agreement between the
parties with respect to the subject matter of this Agreement and supersedes all prior agreements
and understandings, both oral and written, between the parties with respect to its subject matter.



     Section 5.13. Severability. If any term, provision, covenant or restriction of this
Agreement is held by a court of competent jurisdiction or other Governmental Authority to be
invalid, void or unenforceable, the remainder of the terms, provisions, covenants and restrictions
of this Agreement shall remain in full force and effect and shall in no way be affected, impaired
or invalidated so long as the economic or legal substance of the transactions contemplated hereby
is not affected in any manner materially adverse to any party. Upon such a determination, the
parties shall negotiate in good faith to modify this Agreement so as to effect the original intent
of the parties as closely as possible in an acceptable manner in order that the transactions
contemplated hereby be consummated as originally contemplated to the fullest extent possible.



     Section 5.14. Specific Performance. The parties hereto agree that each of Parent and Merger
Subsidiary would be irreparably damaged if for any reason any Securityholder fails to perform any
of its obligations under this Agreement, and that each of Parent and Merger Subsidiary would not
have an adequate remedy at law for money damages in such event. Accordingly, each of Parent and
Merger Subsidiary shall be entitled to specific performance and injunctive and other equitable
relief to prevent breaches of this Agreement or to enforce specifically the performance of the
terms and provisions hereof in any federal court located in the State of Delaware or any Delaware
state court, in addition to any other remedy to which they are entitled at law or in equity.



11









 





     Section 5.15. Securityholder Capacity. Notwithstanding any provision of this Agreement to
the contrary, nothing in this Agreement shall (or shall require any Securityholder to attempt to)
limit or restrict any Securityholder who is a director or officer of the Company from acting in
such capacity (it being understood that this Agreement shall apply to each Securityholder solely in
each Securityholder’s capacity as a holder of the Subject Shares).



     Section 5.16. Securityholder Obligations Several and not Joint. The obligations of each
Securityholder hereunder shall be several and not joint and no Securityholder shall be liable for
any breach of the terms of this Agreement by any other Securityholder.



[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]



12









 





     IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their
respective authorized officers as of the day and year first above written.



	 	 	 	 	 
	 	KLA-TENCOR CORPORATION

 	 
	 	By:  	/s/ Jeffrey L. Hall
 	 
	 	 	Name:  	Jeffrey L. Hall 	 
	 	 	Title:  	Chief Financial Officer 	 
	 



	 	 	 	 	 
	 	FENWAY ACQUISITION CORPORATION

 	 
	 	By:  	/s/ Jeffrey L. Hall
 	 
	 	 	Name:  	Jeffrey L. Hall 	 
	 	 	Title:  	President 	 
	 



	 	 	 	 	 
	 	THERMA-WAVE, INC.

 	 
	 	By:  	/s/ Boris Lipkin
 	 
	 	 	Name:  	Boris Lipkin 	 
	 	 	Title:  	President and CEO 	 
	 



[Signature Page to Tender and Support Agreement]




 









 








	 	 	 	 	 
	SECURITYHOLDERS


NORTH RUN MASTER FUND, LP


By: North Run GP, LP, its General Partner

By: North Run Advisors, LLC, its General Partner	 	 
	 
	 	 	 	 
	By:

	 	/s/ Thomas B. Ellis
 

	 	 
	Thomas B. Ellis, Member	 	 
	 
	 	 	 	 
	By:

	 	/s/ Todd B. Hammer
 

	 	 
	Todd B. Hammer, Member	 	 






[Signature Page to Tender and Support Agreement]




 









 








	 	 	 
	DEEPHAVEN LONG/SHORT EQUITY TRADING LTD.
	 
	 	 
	By:

	 	Deephaven Capital Management LLC
	Its:

	 	Investment Manager






	 	 	 	 	 
	 	 	 
	 	By:  	/s/ Scott Nelson
 	 
	 	 	Name:  	Scott Nelson 	 
	 	 	Title:  	Chief Operating Officer 	 
	 



	 	 	 
	DEEPHAVEN RELATIVE VALUE EQUITY TRADING LTD.
	 
	 	 
	By:

	 	Deephaven Capital Management LLC
	Its:

	 	Investment Manager






	 	 	 	 	 
	 	 	 
	 	By:  	/s/ Scott Nelson
 	 
	 	 	Name:  	Scott Nelson 	 
	 	 	Title:  	Chief Operating Officer 	 
	 



[Signature Page to Tender and Support Agreement]




 









 








	 	 	 
	LAWRENCE TOMLINSON
	 	 
	 
	 	 
	/s/ LAWRENCE TOMLINSON
 


	 	 
	 
	 	 
	G. LEONARD BAKER, JR.
	 	 
	 
	 	 
	/s/ G. LEONARD BAKER, JR.
 


	 	 
	 
	 	 
	JOHN J. D’ERRICO
	 	 
	 
	 	 
	/s/ JOHN J. D’ERRICO
 


	 	 
	 
	 	 
	GREGORY GRAVES
	 	 
	 
	 	 
	/s/ GREGORY GRAVES
 


	 	 
	 
	 	 
	NAM PYO SUH
	 	 
	 
	 	 
	/s/ NAM PYO SUH
 


	 	 






[Signature Page to Tender and Support Agreement]




 









 








	 	 	 
	JOHN WILLINGE
	 	 
	 
	 	 
	/s/ JOHN WILLINGE
 


	 	 
	 
	 	 
	PETER HANLEY
	 	 
	 
	 	 
	/s/ PETER HANLEY
 


	 	 
	 
	 	 
	DAVID E. ASPNES
	 	 
	 
	 	 
	/s/ DAVID E. ASPNES
 


	 	 
	 
	 	 
	PAPKEN DER TOROSSIAN
	 	 
	 
	 	 
	/s/ PAPKEN DER TOROSSIAN
 


	 	 
	 
	 	 
	BORIS LIPKIN
	 	 
	 
	 	 
	/s/ BORIS LIPKIN
 


	 	 






[Signature Page to Tender and Support Agreement]




 









 








	 	 	 
	JOSEPH PASSARELLO
	 	 
	 
	 	 
	/s/ JOSEPH PASSARELLO
 


	 	 
	 
	 	 
	BRIAN RENNER
	 	 
	 
	 	 
	/s/ BRIAN RENNER
 


	 	 
	 
	 	 
	JON L. OPSAL
	 	 
	 
	 	 
	/s/ JON L. OPSAL
 


	 	 
	 
	 	 
	JOHN MATTHEWS
	 	 
	 
	 	 
	/s/ JOHN MATTHEWS
 


	 	 
	 
	 	 
	RAUL TAN
	 	 
	 
	 	 
	/s/ RAUL TAN
 


	 	 






[Signature Page to Tender and Support Agreement]




 









 








	 	 	 
	NOEL SIMMONS
	 	 
	 
	 	 
	/s/ NOEL SIMMONS
 


	 	 
	 
	 	 
	LENA NICOLAIDES
	 	 
	 
	 	 
	/s/ LENA NICOLAIDES
 


	 	 






[Signature Page to Tender and Support Agreement]




 









 








ANNEX I




	 	 	 	 	 
	 	 	Subject Company
	Securityholder	 	Shares
	Larry Tomlinson (BOD)
	 	 	—	 
	Leonard Baker (BOD)
	 	 	150,807	 
	Leonard Baker (BOD)
	 	 	186,631 	(1)
	John D’Errico (BOD)
	 	 	20,000	 
	Gregory Graves (BOD)
	 	 	—	 
	Nam Suh (BOD)
	 	 	—	 
	John Willinge (BOD)
	 	 	—	 
	Peter Hanley (BOD)
	 	 	—	 
	David Aspnes (BOD)
	 	 	25,500	 
	Papken Der Torossian (Chairman)
	 	 	154,108	 
	Papken Der Torossian (Chairman)
	 	 	209,800 	(2)
	Boris Lipkin
	 	 	29,999	 
	Joe Passarello
	 	 	14,275	 
	Brian Renner
	 	 	992	 
	Jon Opsal
	 	 	161,176	 
	John Mathews
	 	 	5,386	 
	Raul Tan
	 	 	15,850	 
	Noel Simmons
	 	 	42,321	 
	Lena Nicolaides
	 	 	11,460	 
	North Run Master Fund
	 	 	3,606,900	 








 




			
	(1)	 	Of these shares, 69,831 are held in a trust where Mr. Baker is a trustee. The remaining 116,800
shares are held by a limited partnership of which Mr. Baker is a general partner. Mr. Baker
disclaims beneficial ownership in these shares as he only has pecuniary interest in the trust and
limited partnership.
	 
	(2)	 	The shares are held in a family trust of which Mr. Der Torossian is a trustee. Mr. Der
Torossian disclaims beneficial ownership in these shares as he only has pecuniary interest in the
trust.




 









 










ANNEX II




	 	 	 	 	 	 	 	 	 
	 	 	Series B Convertible	 	 
	Securityholder	 	Preferred Stock	 	Series B Warrants
	Deephaven Long Short Equity Trading Co.
	 	 	1,000	 	 	 	150,000	 
	Deephaven Relative Value Equity Trading Ltd.
	 	 	4,200	 	 	 	630,000	 
	North Run Master Fund
	 	 	5,200	 	 	 	780,000	 






 









 






SCHEDULE A




Address for Notices




	 	 	 
	Security Holder	 	Address
	 

	 	c/o Therma-Wave, Inc.
	Larry Tomlinson (BOD)
	 	1250 Reliance Way
	 
	 	Fremont, California 94539
	 	 	 
	 
	 	c/o Therma-Wave, Inc.
	Leonard Baker (BOD)
	 	1250 Reliance Way
	 
	 	Fremont, California 94539
	 	 	 
	 
	 	c/o Therma-Wave, Inc.
	Leonard Baker (BOD)
	 	1250 Reliance Way
	 
	 	Fremont, California 94539
	 	 	 
	 
	 	c/o Therma-Wave, Inc.
	John D’Errico (BOD)
	 	1250 Reliance Way
	 
	 	Fremont, California 94539
	 	 	 
	 
	 	c/o Therma-Wave, Inc.
	Gregory Graves (BOD)
	 	1250 Reliance Way
	 
	 	Fremont, California 94539
	 	 	 
	 
	 	c/o Therma-Wave, Inc.
	Nam Suh (BOD)
	 	1250 Reliance Way
	 
	 	Fremont, California 94539
	 	 	 
	 
	 	c/o Therma-Wave, Inc.
	John Willinge (BOD)
	 	1250 Reliance Way
	 
	 	Fremont, California 94539
	 	 	 
	 
	 	c/o Therma-Wave, Inc.
	Peter Hanley (BOD)
	 	1250 Reliance Way
	 
	 	Fremont, California 94539
	 	 	 
	 
	 	c/o Therma-Wave, Inc.
	David Aspnes (BOD)
	 	1250 Reliance Way
	 
	 	Fremont, California 94539
	 	 	 
	 
	 	c/o Therma-Wave, Inc.
	Papken Der Torossian (Chairman)
	 	1250 Reliance Way
	 
	 	Fremont, California 94539
	 	 	 
	 
	 	c/o Therma-Wave, Inc.
	Papken Der Torossian (Chairman)
	 	1250 Reliance Way
	 
	 	Fremont, California 94539
	 	 	 
	 
	 	c/o Therma-Wave, Inc.
	Boris Lipkin
	 	1250 Reliance Way
	 
	 	Fremont, California 94539
	 	 	 
	 
	 	c/o Therma-Wave, Inc.
	Joe Passarello
	 	1250 Reliance Way
	 
	 	Fremont, California 94539






 









 






	 	 	 
	Security Holder	 	Address
	 
	 	c/o Therma-Wave, Inc.
	Brian Renner
	 	1250 Reliance Way
	 
	 	Fremont, California 94539
	 	 	 
	 
	 	c/o Therma-Wave, Inc.
	Jon Opsal
	 	1250 Reliance Way
	 
	 	Fremont, California 94539
	 	 	 
	 
	 	c/o Therma-Wave, Inc.
	John Mathews
	 	1250 Reliance Way
	 
	 	Fremont, California 94539
	 	 	 
	 
	 	c/o Therma-Wave, Inc.
	Raul Tan
	 	1250 Reliance Way
	 
	 	Fremont, California 94539
	 	 	 
	 
	 	c/o Therma-Wave, Inc.
	Noel Simmons
	 	1250 Reliance Way
	 
	 	Fremont, California 94539
	 	 	 
	 
	 	c/o Therma-Wave, Inc.
	Lena Nicolaides
	 	1250 Reliance Way
	 
	 	Fremont, California 94539
	 	 	 
	 
	 	North Run Capital LP
	 
	 	One International Pl
	North Run Capital LP
	 	Suite 2401
	 
	 	Boston, MA 02110
	 	 	 
	Deephaven Relative Value Equity
	 	130 Cheshire Parkway,
	Trading Ltd.
	 	Suite 102
	 
	 	Minnetonka, MN 55305
	 	 	 
	Deephaven Long Short Equity Trading
	 	130 Cheshire Parkway,
	Ltd.
	 	Suite 102
	 
	 	Minnetonka, MN 55305