Therma-Wave, Inc. Form S-8


Delaware		94-3000561
(State or Other Jurisdiction of Incorporation or Organization)		(I.R.S. Employer Identification Number)

1250 Reliance Way Fremont, California		94539
(Address of Principal Executive Offices)		(Zip Code)

L. RAY CHRISTIE
Secretary and Chief Financial Officer
Therma-Wave, Inc.
1250 Reliance Way
Fremont, California 94539
(Name and Address of Agent for Service)

Copy to:
Eva Herbst Davis, Esq.
Kirkland & Ellis LLP
777 South Figueroa Street
Los Angeles, California 90017
(213) 680-8400

Proposed Maximum

Title of Securities to

Amount to be

Offering Price Per

Aggregate

Amount of

be Registered

Registered

Share (1)

Offering Price

Registration Fee

Common Stock, par value $.01 per share

1,564,831 shares (2)

4.46

6,971,322

564

(1)

Estimated solely for the purpose of calculating the amount of the registration fee pursuant to Rules 457(h)(1) of the Securities Act of 1933, as amended. The price per share and aggregate offering price are calculated based on the weighted average of the average of the high and low price of the Registrant’s Common Stock as reported on the NASDAQ National Market on December 16, 2003.

INCORPORATION BY REFERENCE OF CONTENTS OF
REGISTRATION STATEMENT ON FORM S-8 NO. 333-30870

The Registration Statement on Form S-8 (No. 333-36140) filed by the Registrant with the Securities and Exchange Commission on May 2, 2000 is incorporated herein by reference.


5.1		Opinion of Kirkland & Ellis with respect to the legality of the shares of the common stock being registered hereby.

23.1		Consent of Independent Accountants.

23.2		Consent of Kirkland & Ellis is contained in Exhibit 5.1 to this Registration Statement.

24.1		Powers of Attorney are contained on the signature pages.

99.1		2000 Equity Incentive Plan, incorporated by reference to Exhibit 10.22 to the Company’s Annual Report on Form 10-K for the year ended April 2, 2000 (File No. 000-26911) filed June 30, 2000.

99.2		Amendment No. 1 to the 2000 Equity Incentive Plan, incorporated by reference to Exhibit 99.2 to the Company’s Registration Statement on Form S-8 (File No. 333-83282) filed February 22, 2002.

Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Fremont, State of California, on December 22, 2003.

KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Boris Lipkin and L. Ray Christie, and each of them, his or her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any or all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact an agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in- fact and agents or any of them, or their or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities and as of the date indicated.


Signature	Title	Date

/s/ Boris Lipkin Boris Lipkin	President, Chief Executive Officer and Director (Principal Executive Officer)	December 22, 2003

/s/ L. Ray Christie L. Ray Christie	Senior Vice President, Chief Financial Officer and Secretary (Principal Financial and Accounting Officer)	December 22, 2003

/s/ Papken Der Torossian Papken Der Torossian	Chairman of the Board	December 22, 2003

/s/ Frank Alvarez Frank Alvarez	Director	December 22, 2003

/s/ David Aspnes David Aspnes	Director	December 22, 2003


Signature	Title	Date


/s/ G. Leonard Baker, Jr. G. Leonard Baker, Jr.	Director	December 22, 2003

/s/ David Dominik David Dominik	Director	December 22, 2003

/s/ John D’Errico John D’Errico	Director	December 22, 2003

/s/ Talat F. Hasan Talat F. Hasan	Director	December 22, 2003


Exhibit
No.		Description

5.1		Opinion of Kirkland & Ellis with respect to the legality of the shares of the common stock being registered hereby.

23.1		Consent of Independent Accountants.

23.2		Consent of Kirkland & Ellis is contained in Exhibit 5.1 to this Registration Statement.

24.1		Powers of Attorney are contained on the signature pages.

99.1		2000 Equity Incentive Plan, incorporated by reference to Exhibit 10.22 to the Company’s Annual Report on Form 10-K for the year ended April 2, 2000 (File No. 000-26911) filed June 30, 2000.

99.2		Amendment No. 1 to the 2000 Equity Incentive Plan, incorporated by reference to Exhibit 99.2 to the Company’s Registration Statement on Form S-8 (File No. 333-83282) filed February 22, 2002.

EX-5.1 3 f95343orexv5w1.txt EXHIBIT 5.1 EXHIBIT 5.1 [Letterhead of Kirkland & Ellis LLP] December 22, 2003 Therma-Wave, Inc. 1250 Reliance Way Fremont, California 94539 Re: Therma-Wave, Inc. Registration Statement on Form S-8 Ladies and Gentlemen: We are acting as special counsel to Therma-Wave, Inc., a Delaware corporation (the "Company"), in connection with the proposed registration by the Company of up to 1,564,831 shares (the "Shares") of its common stock, par value $0.01 per share, to be issued and sold by the Company under a Registration Statement on Form S-8, filed with the Securities and Exchange Commission (the "Commission") under the Securities Act of 1933, as amended (the "Act") (such Registration Statement, as amended or supplemented, is hereinafter referred to as the "Registration Statement"). The Shares are to be issued under the Company's 2000 Equity Incentive Plan (the "Plan"). In that connection, we have examined such corporate proceedings, documents, records and matters of law as we have deemed necessary to enable us to render this opinion. For purposes of this opinion, we have assumed the authenticity of all documents submitted to us as originals, the conformity to the originals of all documents submitted to us as copies and the authenticity of the originals of all documents submitted to us as copies. We have also assumed the legal capacity of all natural persons, the genuineness of the signatures of persons signing all documents in connection with which this opinion is rendered, the authority of such persons signing on behalf of the parties thereto other than the Company and the due authorization, execution and delivery of all documents by the parties thereto other than the Company. As to any facts material to the opinions expressed herein, we have relied upon the statements and representations of officers and other representations of the Company and others. For purposes of numbered paragraph 1, we have relied exclusively upon certificates issued by governmental authorities in the relevant jurisdictions and such opinion is not intended to provide any conclusion or assurance beyond that conveyed by such certificates. Our opinion expressed below is subject to the qualifications that we express no opinion as to the applicability of, compliance with, or effect of any laws except the internal laws of the State of California, the General Corporation Law of the State of Delaware and the federal law of the United States of America. Based upon and subject to the foregoing qualifications, assumptions and limitations and the further limitations set forth below, we hereby advise you that in our opinion: (1) The Company is a corporation existing and in good standing under the laws of the State of Delaware. (2) The Shares are duly authorized and reserved for issuance under the Plan, and, when (i) the Registration Statement becomes effective under the Act, (ii) the Shares have been duly executed and delivered on behalf of the Company countersigned by the Company's transfer agent/registrar and (iii) the Shares are issued in accordance with the terms of the Plan upon receipt of the consideration to be paid therefor of at least $0.01 per share, the Shares will be validly issued, fully paid and nonassessable. We hereby consent to the filing of this opinion with the Commission as Exhibit 5.1 to the Registration Statement. We also consent to the reference to our firm under the heading "Interests of Named Experts and Counsel" in the Registration Statement. In giving this consent, we do not thereby admit that we are in the category of persons whose consent is required under Section 7 of the Act or the rules and regulations of the Commission. We do not find it necessary for the purposes of this opinion, and accordingly we do not purport to cover herein, the application of the securities or "Blue Sky" laws of the various states to the issuance and sale of the Shares. This opinion is limited to the specific issues addressed herein, and no opinion may be inferred or implied beyond that expressly stated herein. We assume no obligation to revise or supplement this opinion should the present laws of the State of California, the General Corporation Law of the State of Delaware or the federal law of the United States be changed by legislative action, judicial decision or otherwise. This opinion is furnished to you pursuant to the applicable rules and regulations promulgated under the Act in connection with the filing of the Registration Statement. Very truly yours, /s/ Kirkland & Ellis LLP KIRKLAND & ELLIS LLP EX-23.1 4 f95343orexv23w1.txt EXHIBIT 23.1 EXHIBIT 23.1 CONSENT OF INDEPENDENT ACCOUNTANTS We hereby consent to the incorporation by reference in this Registration Statement on Form S-8 of our report dated May 28, 2003, except as to the Liquidity section of Note 1, which is as of October 29, 2003, relating to the financial statements and financial statement schedule of Therma-Wave, Inc., which appear in Therma-Wave, Inc.'s Current Report on Form 8-K to be filed on December 22, 2003. /s/ PricewaterhouseCoopers LLP San Jose, California December 18, 2003 -----END PRIVACY-ENHANCED MESSAGE-----


INCORPORATION BY REFERENCE OF CONTENTS OF REGISTRATION STATEMENT ON FORM S-8 NO. 333-30870
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
	Item 8. Exhibits.
SIGNATURES
EXHIBIT INDEX
EXHIBIT 5.1
EXHIBIT 23.1

Table of Contents

Table of Contents

Table of Contents

Table of Contents

Table of Contents


By:		/s/ L. Ray Christie

L. Ray Christie
Senior Vice President, Chief Financial Officer and Secretary