Amendment No. 1 to Tender and Support Agreement, dated February 7, 2007, by and among KLA-Tencor Corporation, Fenway Acquisition Corporation, Therma-Wave, Inc., the directors and executive officers of Therma-Wave, Inc. and the holders of Series B Convertible Preferred Stock of Therma-Wave, Inc

EX-4.2 2 f27242a1exv4w2.htm EXHIBIT 4.2 exv4w2

Exhibit 4.2

AMENDMENT NO. 1 TO TENDER AND SUPPORT AGREEMENT

This AMENDMENT NO. 1 (this “Amendment”) dated as of February 7, 2007 by and among KLA Tencor Corporation, a Delaware corporation (“Parent”), Fenway Acquisition Corporation, a Delaware corporation and a 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”) to the Tender and Support Agreement dated as of January 7, 2006 by and among Parent, Merger Subsidiary, the Company and each Securityholder (the “Tender and Support Agreement”), hereby amends certain provisions of the Tender and Support Agreement. Any capitalized term that is used but not otherwise defined in this Amendment shall have the meaning given to that term in the Tender and Support Agreement.

RECITALS

WHEREAS, the parties to the Tender and Support Agreement desire to amend the Tender and Support Agreement by amending and restating Annex I thereto, as set forth in this Amendment; and

WHEREAS, the parties hereto have duly authorized and approved this Amendment.

NOW THEREFORE, in consideration of the foregoing and the respective representations, warranties, covenants and agreements set forth in this Amendment and the Tender and Support Agreement, as applicable, the parties hereto hereby agree as follows:

AGREEMENT

SECTION 1. Annex I. Annex I to the Tender and Support Agreement is hereby amended and superseded in its entirety as set forth in Annex A hereto.

SECTION 2. Governing Law. This Amendment 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 3. Counterparts; Effectiveness. This Amendment 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 Amendment shall become effective when each party hereto shall have received a counterpart hereof signed by all of the other parties hereto.

SECTION 4. Amendment. This Amendment may not be altered, amended or supplemented except by an agreement in writing signed by each of the parties hereto.

SECTION 5. Tender and Support Agreement. Except as amended by this Amendment, the Tender and Support Agreement shall remain in full force and effect.

[signature page follows]

IN WITNESS WHEREOF, the parties hereto have caused this Amendment 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