Exhibit 10.1
THERMA-WAVE, INC.
DIRECTOR STOCK OPTION AGREEMENT
(Nonqualified Stock Option)
THIS DIRECTOR STOCK OPTION AGREEMENT (this "Agreement") is made and
entered into as of _____________________, 20__ by and between Therma-Wave, Inc.,
a Delaware corporation (the "Company"), and the director of the Company listed
on the signature page hereto ("Optionee").
Pursuant to the Company's 2000 Equity Incentive Plan (the "Plan"),
the Company and the Optionee desire to enter into an agreement to evidence the
grant by the Company to the Optionee of an option (the "Option") to acquire that
number of shares of the Company's common stock, par value $0.01 per share (the
"Common Stock") listed on the signature page hereto (the "Option Shares").
Capitalized terms used herein and not otherwise defined are defined in Section 6
hereof.
The parties hereto agree as follows:
1. Option Grant. The Company hereby grants to the Optionee, pursuant
to the Plan, an Option to purchase the Option Shares at a price per share equal
to that amount listed on the signature page hereto (the "Exercise Price"). The
Exercise Price and the number of Option Shares will be equitably adjusted for
any stock split, stock dividend, reclassification or recapitalization of the
Company which occurs subsequent to the date of this Agreement. The Option is not
intended to be an "incentive stock option" within the meaning of Section 422A of
the Code.
2. Exercise of Option.
(1) Normal Vesting. The Option granted hereunder may be exercised
only to the extent it has become vested. The Option shall vest and become
exercisable with respect to the following number of Option Shares (set forth on
a cumulative basis): (i) 25% of the Option Shares on the first year anniversary
of the Grant Date; (ii) 2.083% of the Option Shares each month on the thirteenth
(13th) through the forty eighth (48th) monthly anniversary of the Grant Date
(each a "Vesting Date"), if and only if the Optionee is, and has been,
continuously serving as a director of the Company from the Grant Date through
the applicable Vesting Date.
(2) No Vesting After Termination Date. The Option shall cease to
vest after the Termination Date. Any portion of the Option which has vested and
become exercisable prior to the Termination Date shall remain exercisable for
the period set forth in Section 3.
(3) Procedure for Exercise. At any time prior to the Expiration
Date, Optionee may exercise all or a portion of the Option (to the extent
vested), which has not expired pursuant to subsection 3(b) below by delivering
written notice of exercise to the Company, together with (i) a written
acknowledgment that Optionee has read and has been afforded an opportunity to
ask questions of members of the Company's management regarding all financial and
other information provided to Optionee regarding the Company and (ii) full
payment for the Shares with respect to which the Option is exercised. Full
payment may consist of payment in cash, check, other shares of capital stock of
the Company or any combination of the foregoing. As a condition to any exercise
of the Option, Optionee will permit the Company to deliver to him all financial
and other information regarding the Company and its Subsidiaries which it
believes necessary to enable Optionee to make an informed investment decision.
Shares issued upon exercise of an Option shall be issued in the name of the
Optionee or, if requested by the Optionee, in the name of the Optionee and his
or her spouse.
3. Expiration of Option.
(1) Normal Expiration. In no event shall any part of the Option be
exercisable after the Expiration Date.
(2) Expiration Upon Termination Date. Any portion of the Option that
was not vested and exercisable on the Termination Date shall expire on such date
and may not be exercised thereafter under any circumstance. Any portion of the
Option that was vested and exercisable on the Termination Date shall expire on
the earlier of (i) three months after the Termination Date (or 12 months after
the Termination Date if the termination was caused by Optionee's death,
disability or retirement) and (ii) the Expiration Date and may not be exercised
thereafter under any circumstance.
(3) Non-Transferability of Option. The Option is personal to
Optionee and is not transferable by Optionee except pursuant to the laws of
descent or distribution and may be exercised, during the lifetime of the
Optionee, only by the Optionee.
4. Adjustments upon Dissolution, Merger or Asset Sale.
(1) Dissolution or Liquidation. In the event of the proposed
dissolution or liquidation of the Company, the Board shall notify each Optionee
as soon as practicable prior to the effective date of such proposed transaction.
To the extent it has not been previously exercised, an Option will terminate
immediately prior to the consummation of such proposed action.
(2) Change in Control. In the event of a Change in Control any
Option awarded under this Agreement not previously vested shall become fully
vested and fully exercisable immediately upon the Change in Control.
5. Definition of Option Shares. For all purposes of this Agreement,
Option Shares will continue to be Option Shares in the hands of any holder other
than Optionee (except
for the Company, purchasers pursuant to an offering registered under the 1933
Act and subsequent transferees), and each such other holder of Option Shares
will succeed to all rights and obligations attributable to Optionee as a holder
of Option Shares hereunder. Option Shares will also include shares of the
Company's capital stock issued with respect to Option Shares by way of a stock
split, stock dividend or other recapitalization.
6. Definitions. The following terms are defined as follows:
"1933 Act" means the Securities Act of 1933, as amended from time to
time.
"Affiliate" means, with respect to any Person, any other Person who
is controlling, controlled by, or under common control with such Person and, in
the case of a Person which is a partnership, any partner of such Person.
"Board" means the Company's Board of Directors.
"Change in Control" means the occurrence of any of the following:
(1) When any "person" as defined in Section 3(a)(9) of the
Securities Exchange Act of 1934, as amended (the "Exchange
Act") and as used in Sections 13(d) and 14(d) thereof,
including a "group" as defined in Section 13(d) of the
Exchange Act but excluding the Company and any Subsidiary and
any employee benefit plan sponsored or maintained by the
Company or any Subsidiary (including any trustee of such plan
acting as trustee), directly or indirectly, becomes the
"beneficial owner" (as defined in Rule 13d-3 under the
Exchange Act, as amended from time to time), after the
effective date of the Plan, of securities of the Company
representing 50 percent or more of the combined voting power
of the Company's then outstanding securities;
(2) When, during any period of 24 consecutive months during the
existence of the Plan, the individuals who, at the beginning
of such period, constitute the Board (the "Incumbent
Directors") cease for any reason other than death to
constitute at least a majority thereof, provided, however,
that a director who was not a director at the beginning of
such 24-month period shall be deemed to have satisfied such
24-month requirement (and be an Incumbent Director) if such
director was elected by, or on the recommendation of or with
the approval of, at least two-thirds of the directors who then
qualified as Incumbent Directors either actually (because they
were directors at the beginning of such 24-month period) or by
prior operation of this provision; or
(3) The consummation of a transaction involving the acquisition of
the Company by an entity other than the Company or a
Subsidiary through purchase of assets, by merger, or
otherwise.
"Code" means the Internal Revenue Code of 1986, as amended from time
to time.
"Common Stock" means, collectively, the Company's common stock, par
value $0.01 per share.
"Expiration Date" means, with respect to any Option, the date which
is the tenth anniversary of the date hereof.
"Grant Date" means the date the Board approves the grant by the
Company to the Optionee of the Option governed by this Agreement.
"Option Shares" means (i) all shares of Common Stock purchased
pursuant to the Options granted pursuant to this Agreement and (ii) all shares
of Common Stock issued with respect to Common Stock referred to in clause (i) by
way of stock dividend or stock split or in connection with a recapitalization or
other reorganization affecting the Common Stock.
"Person" means an individual, a partnership, a joint venture, a
corporation, a trust, an unincorporated organization and a government or any
department or agency thereof.
"Plan" has the meaning set forth in the preamble.
"Subsidiary" means any corporation of which shares of stock having a
majority of the general voting power in electing the board of directors are, at
the time as of which any determination is being made, owned by the Company
either directly or through its Subsidiaries.
"Termination Date" means the date that Optionee ceases to serve as a
director of the Company for any reason.
7. Notices. Any notice provided for in this Agreement must be in
writing and must be personally delivered, received by certified mail, return
receipt requested, or sent by guaranteed overnight delivery service, to the
Optionee at the address appearing on the signature page hereto and to the other
recipients at the address indicated below:
To the Company:
Therma-Wave, Inc.
0000 Xxxxxxxx Xxx
Xxxxxxx, Xxxxxxxxxx 00000
Attn: President
and
Xxxxxxxx & Xxxxx
000 Xxxxx Xxxxxxxx Xxxxxx
Xxx Xxxxxxx, XX 00000
Attn: Xxx Xxxxx
or such other address or to the attention of such other person as the recipient
party will have specified by prior written notice to the sending party. Any
notice under this Agreement will be deemed to have been given when so delivered
or mailed.
8. Severability. Whenever possible, each provision of this Agreement
will be interpreted in such manner as to be effective and valid under applicable
law, but if any provision of this Agreement is held to be invalid, illegal or
unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability will not affect
any other provision or the effectiveness or validity of any provision in any
other jurisdiction, and this Agreement will be reformed, construed and enforced
in such jurisdiction as if such invalid, illegal or unenforceable provision had
never been contained herein.
9. Complete Agreement. This Agreement and the Plan embody the
complete agreement and understanding among the parties and supersedes and
preempts any prior understandings, agreements or representations by or among the
parties, written or oral, which may have related to the subject matter hereof in
any way. Without limiting the foregoing, all existing stock option agreements
between the Company and/or the Company's existing stockholders and Optionee are
hereby cancelled and terminated.
10. Counterparts. This Agreement may be executed in separate
counterparts, each of which will be deemed to be an original and all of which
taken together will constitute one and the same agreement.
11. Successors and Assigns; Transfer. This Agreement is intended to
bind and inure to the benefit of and be enforceable by Optionee, the Company,
and their respective successors and assigns, provided that Optionee may not
assign any of his or her rights or obligations, except as expressly provided by
the terms of this Agreement.
12. Governing Law. The corporate law of the State of Delaware will
govern all questions concerning the relative rights of the Company and its
stockholders. All other issues concerning the enforceability, validity and
binding effect of this Agreement will be governed by and construed in accordance
with the laws of the State of California, without giving effect to any choice of
law or conflict of law provision or rule (whether of the State of California or
any other jurisdiction) that would cause the application of the law of any
jurisdiction other than the State of California.
13. Remedies. The parties hereto acknowledge and agree that money
damages may not be an adequate remedy for any breach of the provisions of this
Agreement and that any party hereto will have the right to injunctive relief, in
addition to all of its other rights and remedies at law or in equity, to enforce
the provisions of this Agreement.
14. Effect of Transfers in Violation of Agreement. The Company will
not be required (a) to transfer on its books any Option Shares which have been
sold or transferred in violation of any of the provisions set forth in this
Agreement or (b) to treat as owner of such Option Shares, to accord the right to
vote as such owner or to pay dividends to any transferee to whom such Option
Shares have been transferred in violation of this Agreement.
15. Amendments and Waivers. The Board may at any time amend, alter,
suspend or terminate the Plan without the consent of any Optionee; provided,
however, that no amendment, alteration, suspension or termination of the Plan
shall impair the rights of any Optionee.
16. Therma-Wave, Inc. 2000 Equity Incentive Plan. The grant of any
Option hereunder is pursuant to and subject to all of the terms and conditions
of the Plan.
IN WITNESS WHEREOF, the parties have executed this Director Stock
Option Agreement on the day and year first above written.
THERMA-WAVE, INC.
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By: L. XXX XXXXXXXX
Its: Vice President Finance & CFO
OPTIONEE:
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Name:
Address (please print):
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Number of Option Shares: ______________
Exercise Price: $___________
[insert closing price on trading date
immediately preceding date of Board
authorization of this agreement]
