**EXHIBIT 10.9****AMENDED AND RESTATED EMPLOYMENT AGREEMENT**     THIS AGREEMENT is made as of August 10, 2005, between Therma-Wave, Inc., a Delawarecorporation (the “Company”), and Boris Lipkin (“Executive”).     WHEREAS, Executive and the Company entered into an employment agreement on February 5, 2003,as amended (the “Original Agreement”);WHEREAS, the Original Agreement was amended on August 21, 2003 and March 25, 2004;     WHEREAS, on March 25, 2004, the Compensation Committee of the Company’s Board of Directorsapproved an increase in the severance payable to Executive under the Original Agreement, in theevent Executive’s employment with the Company is terminated by the Company for Cause (as definedbelow) or by Executive for Good Reason (as defined below) within 24 months of a Change of Control(as defined below);     WHEREAS, the amendment dated March 25, 2004 did not accurately reflect the CompensationCommittee’s change;     WHEREAS, the Executive and the Company’s Board of Directors wishes to amend and restate theOriginal Agreement as set forth below.     NOW, THEREFORE, in consideration of the mutual covenants contained herein and other good andvaluable consideration, the receipt and sufficiency of which are hereby acknowledged, the partieshereto agree as follows:     1. Employment. The Company shall employ Executive, and Executive hereby acceptsemployment with the Company, upon the terms and conditions set forth in this Agreement for theperiod beginning on the date hereof and ending as provided in Section 5 hereof (the “EmploymentPeriod”).     2. Position and Duties.          (a) During the Employment Period, Executive shall serve as the President and Chief ExecutiveOfficer of the Company and shall have the normal duties, responsibilities, functions and authorityof the President and Chief Executive Officer, subject to the power and authority of the Board toexpand or limit such duties, responsibilities, functions and authority and to overrule actions ofofficers of the Company. During the Employment Period, Executive shall render such administrative,financial and other executive and managerial services to the Company and its Subsidiaries, whichare consistent with Executive’s position as the Board may from time to time direct.          (b) During the Employment Period, Executive shall report to the Board and shall devote hisbest efforts and his full business time and attention (except for permitted vacation periods andreasonable periods of illness or other incapacity) to the business and affairs of the Company and
 

 
its Subsidiaries. Executive shall perform his duties, responsibilities and functions to theCompany and its Subsidiaries hereunder to the best of his abilities in a diligent, trustworthy,professional and efficient manner and shall comply with the Company’s and its Subsidiaries’policies and procedures in all material respects.          (c) For purposes of this Agreement, “Subsidiaries” shall mean any corporation or otherentity of which the securities or other ownership interests having the voting power to elect amajority of the board of directors or other governing body are, at the time of determination, ownedby the Company, directly or through one of more Subsidiaries.     3. Compensation and Benefits.          (a) Duringthe Employment Period, Executive’s base salary shall be $400,000 per annum or suchother rate as the Board may determine from time to time (as adjusted from time to time, the“Base Salary”), which salary shall be payable by the Company in regular installments inaccordance with the Company’s general payroll practices (in effect from time to time). Inaddition, during the Employment Period, Executive shall be entitled to participate in all of theCompany’s employee benefit programs for which senior executive employees of the Company and itsSubsidiaries are generally eligible (together with the COBRA Benefits defined below, the“Benefits”).          (b) During the Employment Period, the Company shall reimburse Executive for all reasonablebusiness expenses incurred by him in the course of performing his duties and responsibilities underthis Agreement which are consistent with the Company’s policies in effect from time to time withrespect to travel, entertainment and other business expenses, subject to the Company’s requirementswith respect to reporting and documentation of such expenses.          (c) In addition to the Base Salary, for each of the Company’s fiscal years, Executive will be eligible to earn a bonus of up to 50% of his Base Salary (the“Bonus”) based on the Company achieving certain corporate performance goals and Executiveachieving certain individual goals. Each of the target amount of the Bonus, the corporateperformance goals and the individual goals shall be set annually by the Board.          (d) During the Employment period, the Company shall provide Executive with an automobileallowance in amount of $1000 per month (the “Automobile Allowance”) to be used as Executivedetermines is necessary for the use and maintenance of an automobile (including but not limited tolease payments, licenses, insurance, gasoline and repairs).          (e) All amounts payable to Executive as compensation hereunder shall be subject to allrequired and customary withholding by the Company.     4.Stock Options. Executive has been granted options for thepurchase of 1,000,000shares of common stock of the Company. The term, vesting and other provisions relatingto such options are set forth in and governed by stock optionagreements and the Company’s
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stock option plan. Notwithstanding anything in the option agreements, the vesting of all ofExecutive’s options (whether granted prior to the date of this Agreement or a future date) shallbe accelerated and the options shall become immediately exercisable upon a Change of Control (asdefined below).     5. Termination.          (a) The Employment Period (i) shall terminate upon Executive’s resignation (other than forGood Reason) or death, (ii) shall terminate upon Executive’s Disability, (iii) may be terminated bythe Company at any time for Cause (as defined below) or without Cause and (iv) may be terminated byExecutive for Good Reason.          (b) If the Employment Period is terminated by the Company without Cause or by Executive forGood Reason, Executive shall be entitled to receive the Base Salary, the Automobile Allowance andthose certain benefits to which Executive shall be entitled under the Consolidated Omnibus BudgetReconciliation Act of 1985 upon Executive’s timely submission of an appropriate application to theapplicable insurance carrier and such insurance carrier’s acceptance of such application (the“COBRA Benefits”) to be paid for by the Company (collectively, the “SeverancePayment”), in each case until the date which is six (6) months after the date of suchtermination (the “Severance Period”); provided that the portion of the Bonus that Executivewould have been entitled to receive for the fiscal year in which the Severance Period terminatesshall be reduced proportionately by the ratio of the number of days of such fiscal year notincluded in the Severance Period to the total number of days in such fiscal year. If the EmploymentPeriod is terminated by the Company without Cause or by Executive for Good Reason at any timewithin 24 months following a Change of Control (as defined below), Executive shall be entitled toreceive the Severance Payment until the date which is 24 months after the date of such termination(the “Change of Control Severance Period”); provided, however, that Executive shall not beentitled to receive any portion of his Bonus for the fiscal year in which the Change of ControlSeverance Period terminates. The Severance Payment will be payable at such times as such paymentswould have been payable had Executive not been terminated. Notwithstanding this provision,Executive shall be entitled to receive the COBRA Benefits following the Severance Period or theChange of Control Severance Period for the maximum time allowed under applicable law to the extentExecutive pays for such COBRA Benefits. Notwithstanding anything in this Agreement to the contrary,the Company shall have no obligation to pay any part or all of the Severance Payment if at any timeduring the Severance Period or the Change of Control Severance Period Executive is in breach ofSections 6 through 9 hereof. If the Employment Period is terminated for any of the foregoingreasons, the Severance Payment shall be reduced by fifty percent (50%) of the amount of anycompensation Executive receives in respect of any other employment during the Severance Period orthe Change of Control Severance Period. Upon request from time to time, Executive shall furnish theCompany with a true and complete certificate specifying any such compensation due to or received byhim. As a condition to the Company’s obligations (if any) to make the Severance Payment pursuant tothis Section 5(b), Executive will execute and deliver a general release substantially in the formof Exhibit A attached hereto.          (c) If the Employment Period is terminated as a result of Executive’s Disability, Executiveshall be entitled to receive the Severance Payment until the date, which is twelve (12) months
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after the date of such termination (the “Disability Severance Period”). Notwithstandingthisprovision, Executive shall be entitled to receive the COBRA Benefits following the DisabilitySeverance Period for the maximum time allowed under applicable law to the extent Executive pays forsuch COBRA Benefits.          (d) If the Employment Period is terminated by the Company for Cause or is terminated uponExecutive’s resignation (other than for Good Reason) or death, Executive shall be entitled toreceive the Base Salary through the date of termination. If the Employment Period is terminated byExecutive’s death, the Board may, in its good faith determination, grant Executive the pro rataportion of Executive’s Bonus that Executive would have received if Executive had remained livinguntil such Bonus had been granted.          (e) Except as specifically provided herein, all of Executive’s rights to Benefits and bonuseswhich accrue or become payable after the termination of the Employment Period shall cease upon suchtermination.          (f) For purposes of this Agreement, “Disability” shall mean any physical or mentalillness or incapacity of Executive if, as reasonably determined by the Board in good faith, suchillness or incapacity results in Executive’s inability to perform his full-time duties andresponsibility for the Company (i) for a period of three consecutive months, (ii) for a period ofsix (6) months in any twelve (12) month period, or (iii) at such time when satisfactory medicalevidence exists that Executive has a physical or mental illness or incapacity that will likelyprevent him from returning to the performance of his work duties for six (6) months or longer.          (g) For purposes of this Agreement, “Cause” shall mean (i) the commission of a felonyor any other act or omission involving dishonesty, disloyalty or fraud with respect to the Companyor any of its Subsidiaries or any of their customers or suppliers, (ii) conduct tending to bringthe Company or any of its Subsidiaries into substantial public disgrace or disrepute, (iii)substantial and repeated failure to perform duties as reasonably direct by the Board, (iv) grossnegligence or willful misconduct with respect to the Company or any of its Subsidiaries, or (v) anyother material breach of this Agreement.          (h) For purposes of this Agreement, “Good Reason” shall mean the occurrence (withoutExecutive’s consent) of any one of the following acts by the Company, or failure by the Company toact: (i) the assignment to Executive of duties that represent a substantial adverse alteration inthe nature or status of his responsibilities as a senior executive officer of the Company, exceptin the event Executive is unable to or fails to perform his normal full-time duties andresponsibility with the Company as a result of incapacity due to physical or mental illness orincapacity; (ii) a reduction in the Base Salary as in effect on the date hereof if there is notalso a reduction in the base salaries of a majority of the Company’s other senior executives; (iii)the relocation of the Company’s principal executive offices to a location outside the San FranciscoArea (which includes the counties of San Francisco, Alameda, Santa Clara, Contra Costa, San Mateoand Marin) or the Company’s requiring Executive to be based anywhere other than the Company’sprincipal executive offices (but not including required travel on the Company’s business); (iv)after a Change of Control Executive (A) is not subsequently offered a comparable position to thatof President and Chief Executive Officer with comparable Base Salary, Bonus and Benefits
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(a“Comparable Position”) or (B) is offered and accepts a Comparable Position but, within 24 monthsof the Change of Control, terminates his employment in such Comparable Position for any of thereasons listed in clauses (i)-(iii) or (v) of this Section 5(h); or (v) the wrongful failure by theCompany to pay to Executive any portion of the Base Salary, Bonus, Automobile Allowance orBenefits, or to pay to Executive any portion of an installment of deferred compensation or Benefitsunder any deferred compensation or benefits program of the Company, within 45 days of the date suchBase Salary, Bonus, Automobile Allowance, compensation or Benefit is due.          (i) For purposes of this Agreement, “Change of Control” shall mean any transactioninvolving the Company and an Independent Third Party or affiliated group of Independent ThirdParties pursuant to which such party or parties acquire (i) a majority of the outstanding shares ofcapital stock of the Company entitled to vote in the election of the Board (whether by merger,consolidation or sale or transfer of the Company’s capital stock) or (ii) all or substantially allof the Company’s assets determined on a consolidated basis.          (j) For purposes of this Agreement, “Independent Third Party” means any person who,immediately prior to the contemplated transaction, does not own in excess of 5% of the capitalstock on a fully diluted basis, who is not controlling, controlled by or under common control withany such 5% owner of the capital stock and who is not the spouse or descendant (by birth oradoption) of any such 5% owner of the capital stock).     6. Confidential Information and Right to Company Materials.          (a) Executive acknowledges that the information, observations and data (including TradeSecrets as defined below) obtained by him while employed by the Company and its Subsidiariesconcerning the business or affairs of the Company, Sensys Instruments Corporation or any otherSubsidiary (“Confidential Information”) are the property of the Company or such Subsidiary.Therefore, Executive agrees that he shall not disclose to any unauthorized person or use for hisown purposes any Confidential Information without the prior written consent of the Board, unlessand to the extent that the Confidential Information becomes generally known to and available foruse by the public other than as a result of Executive’s acts or omissions. Executive shall deliverto the Company at the termination or expiration of the Employment Period, or at any other time theCompany may reasonably request, all memoranda, notes, plans, records, reports, computer tapes,printouts and software and other documents and data (and copies thereof) embodying or relating tothe Confidential Information, Work Product (as defined below) or the business of the Company,Sensys Instruments Corporation or any other Subsidiaries which he may then possess or have underhis control.          (b) Executive agrees that all styles, designs, lists, materials, books, files, reports,correspondence, data, records, and other documents pertaining to his employment or to anyconfidential information referred to above (“Company Material”) used or prepared by, ormade available to, Executive, shall be and shall remain the property of the Company or itsdesignees. Upon the termination of Executive’s employment or the expiration of this Agreement, allCompany Materials shall be returned immediately to the Company, and Executive shall not make orretain any copies or excerpts thereof.
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          (c) Executive represents and warrants to the Company that Executive took nothing with himwhich belonged to any former employer when Executive left his prior position and that Executive hasnothing that contains any information, which belongs to any former employer. If at any timeExecutive discovers this is incorrect, Executive shall promptly return any such materials toExecutive’s former employer. The Company does not want any such materials, and Executive shall notbe permitted to use or refer to any such materials in the performance of Executive’s dutieshereunder.     7. Intellectual Property, Inventions and Patents. Executive acknowledges that alldiscoveries, concepts, ideas, inventions, innovations, improvements, developments, methods,designs, analyses, drawings, reports, patent applications, copyrightable work and mask work(whether or not including any confidential information) and all registrations or applicationsrelated thereto, all other proprietary information and all similar or related information (whetheror not patentable) which relate to the Company’s or any of its Subsidiaries’ actual or anticipatedbusiness, research and development or existing or future products or services and which areconceived, developed or made by Executive (whether above or jointly with others) while employed bythe Company or its predecessor and its Subsidiaries, whether before or after the date of thisAgreement (“Work Product”), belong to the Company or such Subsidiary. Executive shallpromptly disclose such Work Product to the Board and, at the Company’s expense, perform all actionsreasonably requested by the Board (whether during or after the Employment Period) to establish andconfirm such ownership (including, without limitation, assignments, consents, powers of attorneyand other instruments).     8. Protection of Trade Secrets. Executive acknowledges and agrees with the Companythat Executive’s services to the Company require the use of information including a formula,pattern, compilation, program, device, method, technique, or process that the Company has madereasonable efforts to keep confidential and that derives independent economic value, actual orpotential, from not being generally known to the public or to other persons who can obtain economicvalue from its disclosure or use (“Trade Secrets”). Executive further acknowledges andagrees that the Company would be irreparably damaged if Executive were to provide similar servicesrequiring the use of such Trade Secrets to any person or entity competing with the Company orengaged in a similar business. Executive accordingly covenants and agrees with the Company thatduring the period commencing with the date of this Agreement and ending on the second anniversaryof the date of the termination of Executive’s employment with the Company (the “ProtectionPeriod”), Executive shall not, directly or indirectly, either for himself or for any otherindividual, corporation, partnership, joint venture or other entity, participate in any business inthe United States, Europe, China, Japan, Korea, Singapore and Taiwan in which he would be requiredto employ, reveal, or otherwise utilize Trade Secrets used hereafter by the Company but prior tothe Executive’s termination. For purposes of this Agreement, the term “participate in” shallinclude, without limitation, having any direct or indirect interest in any corporation,partnership, joint venture or other entity, whether as a sole proprietor, owner, stockholder,partner, joint venturer, creditor or otherwise, or rendering any direct or indirect service orassistance to any individual, corporation, partnership, joint venture and other business entity(whether as a director, officer, manager, supervisor, employee, agent, consultant or otherwise).     9. Nonsolicitation. During the Protection Period, Executive shall not (i) induce orattempt to induce any employee of the Company to leave the employ of the Company, or in any way
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interfere with the relationship between the Company and any employee thereof, or (ii) induceor attempt to induce any customer, supplier, licensee or other business relation of the Company tocease doing business with the Company (including, without limitation, making any negativestatements or communications concerning the Company).     10. Executive’s Representations. Executive hereby represents and warrants to theCompany that (i) the execution, delivery and performance of this Agreement by Executive do not andshall not conflict with, breach, violate or cause a default under any contract, agreement,instrument, order, judgment or decree to which Executive is a party or by which he is bound, (ii)Executive is not a party to or bound by any employment agreement, noncompete agreement orconfidentiality agreement with any other person or entity and (iii) upon the execution and deliveryof this Agreement by the Company, this Agreement shall be the valid and binding obligation ofExecutive, enforceable in accordance with its terms. Executive hereby acknowledges and representsthat he has consulted with independent legal counsel regarding his rights and obligations underthis Agreement and that he fully understands the terms and conditions contained herein.     11. Survival. Sections 5 through 19 shall survive and continue in full force inaccordance with their terms notwithstanding the expiration or termination of the Employment Period.     12. Notices. Any notice provided for in this Agreement shall be in writing and shallbe either personally delivered, sent by reputable overnight courier service or mailed by firstclass mail, return receipt requested, to the recipient at the address below indicated:Notices to Executive:Boris Lipkin