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Registration No._________
UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
MATTSON TECHNOLOGY, INC.
------------------------------------------------------
(Exact name of registrant as specified in its charter)
Delaware 77-0208119
- -------------------------------- -------------------------------------
(State or other jurisdiction (I.R.S. employer identification no.)
of incorporation or organization)
3550 West Warren Avenue
Fremont, California 94538
------------------------------------------------------
(Address of principal executive offices) (Zip code)
MATTSON TECHNOLOGY, INC.
AMENDED AND RESTATED 1989 STOCK OPTION PLAN
AND 1994 EMPLOYEE STOCK PURCHASE PLAN
------------------------------------------------------
(Full title of the plan)
Brad Mattson
Chief Executive Officer
Mattson Technology, Inc.
3550 West Warren Avenue
Fremont, California 94538
------------------------------------------------------
(Name and address of agent for service)
Telephone number, including area code, of agent for service: (510) 657-5900
This registration statement shall hereafter become effective in accordance with
Rule 462 promulgated under the Securities Act of 1933, as amended.
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<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------
CALCULATION OF REGISTRATION FEE
- ------------------------------------------------------------------------------------------------------------
Proposed
Proposed maximum
Title of Amount to be maximum aggregate Amount of
Securities to be registered offering price per offering price(2) registration fee
registered(1) share(2)
- ------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
AMENDED AND RESTATED 1989 STOCK OPTION PLAN
Common Stock 300,000 $10.2813 $3,084,390.00
Par Value $0.001
1994 EMPLOYEE STOCK PURCHASE PLAN
Common Stock 400,000 $8.7391 $3,495,640.00
Par Value $0.001
TOTALS 700,000 $6,580,030.00 $1,993.95
</TABLE>
- --------------------------------
(1) The securities to be registered include options and rights to acquire such
Common Stock.
(2) Estimated pursuant to Rule 457 solely for purposes of calculating the
registration fee. As to the shares under the Amended and Restated 1989 Stock
Option Plan, the price is based upon the average of the high and low prices of
the Common Stock on October 28, 1997, as reported on the National Association of
Securities Dealers Automated Quotations System. The 1994 Employee Stock
Purchase Plan establishes a purchase price equal to 85% of the fair market value
of the Company's Common Stock and, therefore, the price for purchase rights
under this plan is based upon 85% of the average of the high and low prices of
the Common Stock on October 28, 1997, as reported on the National Association of
Securities Dealers Automated Quotations System.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
Mattson Technology, Inc. (the "Company") hereby incorporates by
reference in this registration statement the following documents:
(a) The Company's latest annual report on Form 10-K, and
Amendment No. 1 thereto, filed pursuant to Sections 13(a) or 15(d) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), containing
audited financial statements for the Company's latest fiscal year ended December
31, 1996, as filed with the Securities and Exchange Commission (File No.
0-21970).
(b) All other reports filed pursuant to Section 13(a) or 15(d)
of the Exchange Act since the end of the fiscal year covered by the registrant
document referred to in (a) above.
(c) The description of the Company's Common Stock contained in
the Company's Registration Statement on Form 8-A filed under the Exchange Act,
including any amendment or report filed for the purpose of updating such
description.
All documents subsequently filed by the Company pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of
a post-effective amendment to this registration statement which indicates that
all securities offered hereby have been sold or which deregisters all securities
remaining unsold, shall be deemed to be incorporated by reference in this
registration statement and to be a part hereof from the date of filing of such
documents.
ITEM 4. DESCRIPTION OF SECURITIES
The class of securities to be offered is registered under
Section 12 of the Exchange Act.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Inapplicable.
Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Delaware law authorizes corporations to eliminate the personal
liability of directors to corporations and their stockholders for monetary
damages for breach or alleged breach of the directors' "duty of care." While
the relevant statute does not change directors' duty of care, it enables
corporations to limit available relief to equitable remedies such as injunction
or rescission. The statute has no effect on directors' duty of loyalty, acts or
omissions not in good faith or involving intentional misconduct or knowing
violations of law, illegal payment of
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dividends and approval of any transaction from which a director derives an
improper personal benefit.
The Company has adopted provisions in its Certificate of Incorporation
which eliminate the personal liability of its directors to the Company and its
stockholders for monetary damages for breach or alleged breach of their duty of
care. The Bylaws of the Company provide for indemnification of its directors,
officers, employees and agents to the full extent permitted by the General
Corporation Law of the State of Delaware, the Company's state of incorporation,
including those circumstances in which indemnification would otherwise be
discretionary under Delaware Law. Section 145 of the General Corporation Law of
the State of Delaware provides for indemnification in terms sufficiently broad
to indemnify such individuals, under certain circumstances, for liabilities
(including reimbursement of expenses incurred) arising under the Securities Act
of 1933, as amended.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Inapplicable.
ITEM 8. EXHIBITS
See Exhibit Index.
ITEM 9. UNDERTAKINGS
(a). Rule 415 Offering
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth in the
registration statement;
(iii) To include any material information with respect
to the plan of distribution not previously disclosed in the registration
statement or any material change to such information in the registration
statement;
PROVIDED, HOWEVER, that paragraphs (a)(1)(i) and (a)(l)(ii) do not apply if the
registration statement is on Form S-3 or Form S-8, and the information required
to be included in a post-effective amendment by those paragraphs is contained in
periodic reports filed by the registrant
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pursuant to Section 13 or Section 15(d) of the Exchange Act that are
incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(b) FILING INCORPORATING SUBSEQUENT EXCHANGE ACT DOCUMENTS BY REFERENCE
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in the registration statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(h) REQUEST FOR ACCELERATION OF EFFECTIVE DATE OR FILING OF REGISTRATION
STATEMENT ON FORM S-8
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or otherwise,
the registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
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SIGNATURE
Pursuant to the requirements of the Securities Act of 1933, as amended, 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 October 29, 1997.
Mattson Technology, Inc.
By: /s/ Richard S. Mora
-----------------------------------
Richard S. Mora, Vice President,
Finance, Chief Financial Officer,
and Secretary
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SIGNATURES AND POWER OF ATTORNEY
The officers and directors of Mattson Technology, Inc. whose signatures
appear below, hereby constitute and appoint Brad Mattson, Ralph S. Martin, and
Richard S. Mora, and each of them, their true and lawful attorneys and agents,
with full power of substitution, each with power to act alone, to sign and
execute on behalf of the undersigned any amendment or amendments to this
registration statement on Form S-8, and each of the undersigned does hereby
ratify and confirm all that each of said attorney and agent, or their or his
substitutes, shall do or cause to be done by virtue hereof. Pursuant to the
requirements of the Securities Act of 1933, as amended, this registration
statement has been signed by the following persons in the capacities indicated
on October 29, 1997.
Signature Title
- --------------------------------------------------------------------------------
/s/ Brad Mattson Chief Executive Officer
- ------------------------------ and Director (Principal
Brad Mattson Executive Officer)
/s/ Richard S. Mora Vice President, Finance, Chief
- ------------------------------ Financial Officer, and Secretary
Richard S. Mora (Principal Financial and Accounting
Officer)
/s/ John C. Savage Director
- ------------------------------
John C. Savage
Director
- ------------------------------
Kenneth G. Smith
/s/ Stephen J. Ciesinski Director
- ------------------------------
Stephen J. Ciesinski
Director
- ------------------------------
Shigeru Nakayama
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EXHIBIT INDEX
4.1 Certificate of Merger of Mattson Technology, Inc. into Mattson
Technology, Inc. Delaware, with attached Certificate of Incorporation
4.2 Amended and Restated Bylaws of the Company
5 Opinion re legality
23.1 Consent of Counsel (included in Exhibit 5)
23.2 Consent of Price Waterhouse LLP
24 Power of Attorney (included in signature pages to this registration
statement)
8
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EXHIBIT 4.1
CERTIFICATE OF MERGER
OF
MATTSON TECHNOLOGY, INC.
(A California Corporation)
INTO
MATTSON TECHNOLOGY, INC. DELAWARE
(a Delaware Corporation)
THE UNDERSIGNED CORPORATION, A DELAWARE CORPORATION, DOES HEREBY CERTIFY:
FIRST: That the name and state of incorporation of each of the
constituent corporations of the merger is as follows:
NAME STATE OF INCORPORATION
Mattson Technology, Inc. California
Mattson Technology, Inc. Delaware
Delaware
SECOND: That an Agreement and Plan of Merger dated as of June 16,
1997, by and between Mattson Technology, Inc. and Mattson Technology, Inc.
Delaware (the "Merger Agreement") has been approved, adopted, certified,
executed and acknowledged by each of the constituent corporations in accordance
with the requirements of Section 252 of the General Corporation Law of the State
of Delaware.
THIRD: That the name of the corporation surviving the merger is
Mattson Technology, Inc. Delaware, a Delaware corporation (the "Surviving
Corporation").
FOURTH: That the Certificate of Incorporation of the Surviving
Corporation is hereby amended to read in its entirety as set forth in EXHIBIT A
attached hereto and made a part hereof.
FIFTH: That the executed Agreement and Plan of Merger is on file at
the principal place of business of the Surviving Corporation. The address of
said principal place of business is 3550 West Warren Avenue, Fremont, California
94538.
SIXTH: That a copy of the Agreement and Plan of Merger will be
furnished by Surviving Corporation upon request and without charge to any
stockholder of any constituent corporation.
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SEVENTH: The authorized capital stock of Mattson Technology, Inc. as
of the date of this Certificate is 60,000,000 shares of Common Stock, no par
value, and 2,000,000 shares of undesignated Preferred Stock, no par value.
EIGHTH: This Certificate of Merger shall be effective immediately
upon filing.
IN WITNESS WHEREOF, the undersigned has caused this Certificate to be
executed by its duly authorized officer this 22nd day of September, 1997.
MATTSON TECHNOLOGY, INC. DELAWARE,
a Delaware corporation
By: /S/ RICHARD S. MORA
--------------------
Richard S. Mora, Vice President, Finance,
Chief Financial Officer and Secretary
2
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EXHIBIT A
CERTIFICATE OF INCORPORATION
OF MATTSON TECHNOLOGY, INC., DELAWARE
FIRST: The name of the Corporation is Mattson Technology, Inc. (hereinafter
sometimes referred to as the "Corporation").
SECOND: The address of the registered office of the Corporation in the State
of Delaware is Incorporating Services, Ltd., 15 East North Street, in
the City of Dover, County of Kent. The name of the registered agent
at that address is Incorporating Services, Ltd.
THIRD: The purpose of the Corporation is to engage in any lawful act or
activity for which a corporation may be organized under the General
Corporation Law of Delaware.
FOURTH:
A. The total number of shares of all classes of stock which the
Corporation shall have authority to issue is Sixty-Two Million Shares
(62,000,000) consisting of.
1. Sixty Million (60,000,000) shares of Common Stock, par value
one-tenth of one cent ($.001) per share (the "Common Stock"); and
2. Two Million (2,000,000) shares of Preferred Stock, par value
one-tenth of one cent ($.001) per share (the "Preferred Stock").
B. The Board of Directors is authorized, subject to any limitations
prescribed by law, to provide for the issuance of shares of Preferred
Stock in series and, by filing a certificate pursuant to the
applicable law of the State of Delaware, to establish from time to
time the number of shares to be included in each such series, and to
fix the designation, powers, preferences and rights of the shares of
each such series and any qualifications, limitations or restrictions
thereon. The number of authorized shares of Preferred Stock may be
increased or decreased (but not below the number of shares thereof
then outstanding) by the affirmative vote of the holders of a majority
of the Common Stock without a vote of the holders of the Preferred
Stock, or of any series thereof, unless a vote of any such holders is
required pursuant to the certificate or certificates establishing the
series of Preferred Stock.
FIFTH: The following provisions are inserted for the management of the
business and the conduct of the affairs of the Corporation, and for
further definition, limitation and regulation of the powers of the
Corporation and of its directors and stockholders:
A. The business and affairs of the Corporation shall be managed by or
under the direction of the Board of Directors. In addition to the
powers and authority
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expressly conferred upon them by statute or by this Certificate of
Incorporation or the Bylaws of the Corporation, the directors are
hereby empowered to exercise all such powers and do all such acts
and things as may be exercised or done by the Corporation.
B. The directors of the Corporation need not be elected by written ballot
unless the Bylaws so provide.
C. Any action required or permitted to be taken by the stockholders of
the Corporation must be effected at a duly called annual or special
meeting of stockholders of the Corporation and may not be effected by
any consent in writing by such stockholders.
D. Special meetings of stockholders of the Corporation may be called only
by the Board of Directors, the Chairman of the Board of Directors, the
President or the Chief Executive Officer.
SIXTH:
A. The number of directors shall initially be five (5) and thereafter
shall be fixed from time to time exclusively by the Board of Directors
pursuant to a resolution adopted by a majority of the total number of
authorized directors (whether or not there exist any vacancies in
previously authorized directorships at the time any such resolution is
presented to the Board for adoption). Upon the effective date of the
merger of Mattson Technology, Inc., a California corporation, with and
into the Corporation (the "Effective Date") the directors shall be
divided into three classes with the term of office of the first class
to expire at the first annual meeting of the stockholders following
the Effective Date, the term of office of the second class to expire
at the second annual meeting of stockholders held following the
Effective Date, the term of office of the third class to expire at the
third annual meeting of stockholders following the Effective Date, and
thereafter for each such term to expire at each third succeeding
annual meeting of stockholders after such election. All directors
shall hold office until the expiration of the term for which elected,
and until their respective successors are elected, except in the case
of the death, resignation, or removal of any director.
B. Subject to the rights of the holders of any series of Preferred Stock
then outstanding, newly created directorships resulting from any
increase in the authorized number of directors or any vacancies in the
Board of Directors resulting from death, resignation or other cause
(including removal from office by a vote of the stockholders) may be
filled only by a majority vote of the directors then in office, though
less than a quorum, or by sole remaining director, and directors so
chosen shall hold office for a term expiring at the next annual
meeting of stockholders at which the term of office of the class to
which they have been elected expires, and until their respective
successors are elected, except in the case of the death, resignation,
or removal of any director.
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SEVENTH: The Board of Directors is expressly empowered to adopt, amend or
repeal Bylaws of the Corporation. The stockholders shall also have
power to adopt, amend or repeal the Bylaws of the Corporation. Any
adoption, amendment or repeal of Bylaws of the Corporation by the
stockholders shall require, in addition to any vote of the holders of
any class or series of stock of the Corporation required by law or by
this Certificate of Incorporation, the affirmative vote of the holders
of at least sixty-six and two thirds percent (66 2/3%) of the voting
power of all of the then outstanding shares of the capital stock of
the Corporation entitled to vote generally in the election of
directors, voting together as a single class.
EIGHTH: A director of the Corporation shall not be personally liable to the
Corporation or its stockholders for monetary damages for breach of
fiduciary duty as a director, except for liability (i) for any breach
of the director's duty of loyalty to the Corporation or its
stockholders, (ii) for acts or omissions not in good faith or which
involved intentional misconduct or a knowing violation of law, (iii)
under Section 174 of the Delaware General Corporation Law, or (iv) for
any transaction from which the director derived an improper personal
benefit.
If the Delaware General Corporation Law is hereafter amended to
authorize the further elimination or limitation of the liability of a
director, then the liability of a director of the Corporation shall be
eliminated or limited to the fullest extent permitted by the Delaware
General Corporation Law, as so amended.
Any repeal or modification of the foregoing provisions of this Article
EIGHTH by the stockholders of the Corporation shall not adversely
affect any right or protection of a director of the Corporation
existing at the time of such repeal or modification.
NINTH: The Corporation reserves the right to amend or repeal any provision
contained in this Certificate of Incorporation in the manner
prescribed by the laws of the State of Delaware and all rights
conferred upon stockholders are granted subject to this reservation;
PROVIDED, however, that, notwithstanding any other provision of this
Certificate of Incorporation or any provision of law which might
otherwise permit a lesser vote or no vote, but in addition to any vote
of the holders of any class or series of the stock of this Corporation
required by law or by this Certificate of Incorporation, the
affirmative vote of the holders of at least sixty-six and two thirds
percent (66 2/3%) of the voting power of all of the then outstanding
shares of the capital stock of the Corporation entitled to vote
generally in the election of directors, voting together as a single
class, shall be required to amend or repeal this Article NINTH,
Article FIFTH, Article SIXTH, Article SEVENTH or Article EIGHTH.
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EXHIBIT 4.2
AMENDED AND RESTATED
BYLAWS
OF
MATTSON TECHNOLOGY, INC.
<PAGE>
TABLE OF CONTENTS
PAGE
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ARTICLE 1. STOCKHOLDERS. . . . . . . . . . . . . . . . . . . . . . . . . 1
1.1 Place of Meetings . . . . . . . . . . . . . . . . . . . . . . 1
1.2 Annual Meeting. . . . . . . . . . . . . . . . . . . . . . . . 1
1.3 Special Meetings. . . . . . . . . . . . . . . . . . . . . . . 1
1.4 Notice of Meetings. . . . . . . . . . . . . . . . . . . . . . 1
1.5 Voting List . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.6 Quorum. . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.7 Adjournments. . . . . . . . . . . . . . . . . . . . . . . . . 2
1.8 Voting and Proxies. . . . . . . . . . . . . . . . . . . . . . 2
1.9 Action at Meeting . . . . . . . . . . . . . . . . . . . . . . 2
1.10 Notice of Stockholder Business. . . . . . . . . . . . . . . . 3
1.11 Conduct of Business . . . . . . . . . . . . . . . . . . . . . 3
1.12 No Stockholder Action Without Meeting . . . . . . . . . . . . 4
ARTICLE 2. BOARD OF DIRECTORS. . . . . . . . . . . . . . . . . . . . . . 4
2.1 General Powers. . . . . . . . . . . . . . . . . . . . . . . . 4
2.2 Number and Term of Office . . . . . . . . . . . . . . . . . . 4
2.3 Vacancies and Newly Created Directorships . . . . . . . . . . 5
2.4 Resignation . . . . . . . . . . . . . . . . . . . . . . . . . 5
2.5 Regular Meetings. . . . . . . . . . . . . . . . . . . . . . . 5
2.6 Special Meetings. . . . . . . . . . . . . . . . . . . . . . . 5
2.7 Notice of Special Meetings. . . . . . . . . . . . . . . . . . 5
2.8 Participation in Meetings by Telephone Conference Calls . . . 6
2.9 Quorum. . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
2.10 Action at Meeting . . . . . . . . . . . . . . . . . . . . . . 6
2.11 Action by Consent . . . . . . . . . . . . . . . . . . . . . . 6
2.12 Removal . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
2.13 Committees. . . . . . . . . . . . . . . . . . . . . . . . . . 6
2.14 Compensation of Directors . . . . . . . . . . . . . . . . . . 7
2.15 Nomination of Director Candidates . . . . . . . . . . . . . . 7
ARTICLE 3. OFFICERS. . . . . . . . . . . . . . . . . . . . . . . . . . . 8
3.1 Enumeration . . . . . . . . . . . . . . . . . . . . . . . . . 8
3.2 Election. . . . . . . . . . . . . . . . . . . . . . . . . . . 8
3.3 Qualification . . . . . . . . . . . . . . . . . . . . . . . . 8
3.4 Tenure. . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
3.5 Resignation and Removal . . . . . . . . . . . . . . . . . . . 8
3.6 Chairman of the Board . . . . . . . . . . . . . . . . . . . . 8
3.7 Chief Executive Officer . . . . . . . . . . . . . . . . . . . 9
3.8 President . . . . . . . . . . . . . . . . . . . . . . . . . . 9
3.9 Vice Presidents . . . . . . . . . . . . . . . . . . . . . . . 9
3.10 Secretary and Assistant Secretaries . . . . . . . . . . . . . 9
3.11 Chief Financial Officer . . . . . . . . . . . . . . . . . . . 9
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TABLE OF CONTENTS
(continued)
PAGE
----
3.12 Salaries. . . . . . . . . . . . . . . . . . . . . . . . . . . 10
3.13 Delegation of Authority . . . . . . . . . . . . . . . . . . . 10
ARTICLE 4. CAPITAL STOCK . . . . . . . . . . . . . . . . . . . . . . . . 10
4.1 Issuance of Stock . . . . . . . . . . . . . . . . . . . . . . 10
4.2 Certificates of Stock . . . . . . . . . . . . . . . . . . . . 10
4.3 Transfers . . . . . . . . . . . . . . . . . . . . . . . . . . 10
4.4 Lost, Stolen or Destroyed Certificates. . . . . . . . . . . . 11
4.5 Record Date . . . . . . . . . . . . . . . . . . . . . . . . . 11
ARTICLE 5. GENERAL PROVISIONS. . . . . . . . . . . . . . . . . . . . . . 11
5.1 Fiscal Year . . . . . . . . . . . . . . . . . . . . . . . . . 11
5.2 Corporate Seal. . . . . . . . . . . . . . . . . . . . . . . . 11
5.3 Waiver of Notice. . . . . . . . . . . . . . . . . . . . . . . 11
5.4 Actions with Respect to Securities of Other Corporations. . . 12
5.5 Evidence of Authority . . . . . . . . . . . . . . . . . . . . 12
5.6 Certificate of Incorporation. . . . . . . . . . . . . . . . . 12
5.7 Severability. . . . . . . . . . . . . . . . . . . . . . . . . 12
5.8 Pronouns. . . . . . . . . . . . . . . . . . . . . . . . . . . 12
5.9 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
5.10 Reliance Upon Books, Reports and Records. . . . . . . . . . . 12
5.11 Time Periods. . . . . . . . . . . . . . . . . . . . . . . . . 13
5.12 Facsimile Signatures. . . . . . . . . . . . . . . . . . . . . 13
ARTICLE 6. AMENDMENTS. . . . . . . . . . . . . . . . . . . . . . . . . . 13
6.1 By the Board of Directors . . . . . . . . . . . . . . . . . . 13
6.2 By the Stockholders . . . . . . . . . . . . . . . . . . . . . 13
ARTICLE 7. INDEMNIFICATION OF DIRECTORS AND OFFICERS . . . . . . . . . . 13
7.1 Right to Indemnification. . . . . . . . . . . . . . . . . . . 13
7.2 Right of Claimant to Bring Suit . . . . . . . . . . . . . . . 14
7.3 Indemnification of Employees and Agents . . . . . . . . . . . 14
7.4 Non-Exclusivity of Rights . . . . . . . . . . . . . . . . . . 15
7.5 Indemnification Contracts . . . . . . . . . . . . . . . . . . 15
7.6 Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . 15
7.7 Effect of Amendment . . . . . . . . . . . . . . . . . . . . . 15
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AMENDED AND RESTATED
BYLAWS OF MATTSON TECHNOLOGY, INC.
Article 1. STOCKHOLDERS
1.1. PLACE OF MEETINGS. All meetings of stockholders shall be held at
such place within or without the State of Delaware as may b1e designated from
time to time by the Board of Directors or the President and Chief Executive
Officer or, if not so designated, at the registered office of the corporation.
1.2. ANNUAL MEETING. The annual meeting of stockholders for the
election of directors and for the transaction of such other business as may
properly be brought before the meeting shall be held on a date to be fixed by
the Board of Directors or the President and Chief Executive Officer at the time
and place to be fixed by the Board of Directors or the President and stated in
the notice of the meeting. If no annual meeting is held in accordance with the
foregoing provisions, the Board of Directors shall cause the meeting to be held
as soon thereafter as convenient.
1.3. SPECIAL MEETINGS. Special meetings of Stockholders may be called
at any time only by the Board of Directors, the Chairman of the Board, the
President or the Chief Executive Officer.
1.4. NOTICE OF MEETINGS. Written notice of each meeting of
stockholders, whether annual or special, shall be given not less than ten (10)
nor more than sixty (60) days before the date on which the meeting is to be
held, to each stockholder entitled to vote at such meeting, except as otherwise
provided herein or as required by law (meaning here and hereafter, as required
from time to time by the Delaware General Corporation Law or the Certificate of
Incorporation). The notices of all meetings shall state the place, date and
hour of the meeting. The notice of a special meeting shall state, in addition,
the purpose or purposes for which the meeting is called. If mailed, notice is
given when deposited in the United States mail, postage prepaid, directed to the
stockholder at his address as it appears on the records of the corporation.
1.5. VOTING LIST. The officer who has charge of the stock ledger of the
corporation shall prepare, at least ten (10) days before each meeting of
stockholders, a complete list of the stockholders entitled to vote at the
meeting, arranged in alphabetical order, and showing the address of each
stockholder and the number of shares registered in the name of each stockholder.
Such list shall be open to the examination of any stockholder, for any purpose
germane to the meeting, during ordinary business hours, for a period of at least
ten (10) days prior to the meeting, at a place within the city where the meeting
is to be held, which place shall be specified in the notice of the meeting, or
if not so specified, at the place where the meeting is to be held. The list
shall also be produced and kept at the time and place of the meeting during the
whole time of the meeting, and may be inspected by any stockholder who is
present. This list shall preemptively determine the identity of the
stockholders entitled to vote at the meeting and the number of shares held by
each of them.
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1.6. QUORUM. Except as otherwise provided by law or these Bylaws, the
holders of a majority of the shares of the capital stock of the corporation
entitled to vote at the meeting, present in person or represented by proxy,
shall constitute a quorum for the transaction of business. If a quorum shall
fail to attend any meeting, the chairman of the meeting or the holders of a
majority of the shares of stock entitled to vote who are present, in person or
by proxy, may adjourn the meeting to another place, date or time.
If a notice of any adjourned special meeting of stockholders is sent to all
stockholders entitled to vote thereat, stating that it will be held with those
present constituting a quorum, then except as otherwise required by law, those
present at such adjourned meeting shall constitute a quorum, and all matters
shall be determined by a majority of the votes cast at such meeting.
1.7. ADJOURNMENTS. Any meeting of stockholders may be adjourned to any
other time and to any other place at which a meeting of stockholders may be held
under these Bylaws by the holders of a majority of the shares of stock present
or represented at the meeting and entitled to vote, although less than a quorum,
or, if no stockholder is present, by any officer entitled to preside at or to
act as Secretary of such meeting. When a meeting is adjourned to another place,
date or time, written notice need not be given of the adjourned meeting if the
place, date and time thereof are announced at the meeting at which the
adjournment is taken; provided, however, that if the date of any adjourned
meeting is more than thirty (30) days after the date for which the meeting was
originally noticed, or if a new record date is fixed for the adjourned meeting,
written notice of the place, date, and time of the adjourned meeting shall be
given in conformity herewith. At the adjourned meeting, the corporation may
transact any business which might have been transacted at the original meeting.
1.8. VOTING AND PROXIES. Each stockholder shall have one vote for each
share of stock entitled to vote held of record by such stockholder and a
proportionate vote for each fractional share so held, unless otherwise provided
by law. Each stockholder of record entitled to vote at a meeting of
stockholders, may vote in person or may authorize any other person or persons to
vote or act for him by written proxy executed by the stockholder or his
authorized agent or by a transmission permitted by law and delivered to the
Secretary of the corporation. No stockholder may authorize more than one proxy
for his shares. Any copy, facsimile telecommunication or other reliable
reproduction of the writing or transmission created pursuant to this Section may
be substituted or used in lieu of the original writing or transmission for any
and all purposes for which the original writing or transmission could be used,
provided that such copy, facsimile transmission or other reproduction shall be a
complete reproduction of the entire original writing or transmission.
1.9. ACTION AT MEETING. When a quorum is present at any meeting, any
election shall be determined by a plurality of the votes cast by the
stockholders entitled to vote at the election, and all other matters shall be
determined by a majority of the votes cast affirmatively or negatively on the
matter (or if there are two or more classes of stock entitled to vote as
separate classes, then in the case of each such class, a majority of each such
class present or represented and voting affirmatively or negatively on the
matter) shall decide such matter, except when a
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different vote is required by express provision of law, the Certificate of
Incorporation or these Bylaws.
All voting, including on the election of directors, but excepting where
otherwise required by law, may be by a voice vote; provided, however, that upon
demand therefor by a stockholder entitled to vote or his or her proxy, a stock
vote shall be taken. Every stock vote shall be taken by ballots, each of which
shall state the name of the stockholder or proxy voting and such other
information as may be required under the procedure established for the meeting.
Every vote taken by ballots shall be counted by an inspector or inspectors
appointed by the chairman of the meeting. The corporation may, and to the
extent required by law, shall, in advance of any meeting of stockholders,
appoint one or more inspectors to act at the meeting and make a written report
thereof. The corporation may designate one or more persons as an alternate
inspector to replace any inspector who fails to act. If no inspector or
alternate is able to act at a meeting of stockholders, the person presiding at
the meeting may, and to the extent required by law, shall, appoint one or more
inspectors to act at the meeting. Each inspector, before entering upon the
discharge of his duties, shall take and sign an oath faithfully to execute the
duties of inspector with strict impartiality and according to the best of his or
her ability.
1.10. NOTICE OF STOCKHOLDER BUSINESS. At an annual meeting of the
stockholders, only such business shall be conducted as shall have been properly
brought before the meeting. To be properly brought before an annual meeting,
business must be (i) specified in the notice of meeting (or any supplement
thereto) given by or at the direction of the Board of Directors, (ii) properly
brought before the meeting by or at the direction of the Board of Directors, or
(iii) properly brought before an annual meeting by a stockholder. For business
to be properly brought before an annual meeting by a stockholder, the
stockholder must have given timely notice thereof in writing to the Secretary of
the Corporation. To be timely, a stockholder proposal to be presented at an
annual meeting shall be received at the Corporation's principal executive
offices not less than 120 calendar days in advance of the date that the
Corporation's (or the Corporation's predecessor's) proxy statement was released
to stockholders in connection with the previous year's annual meeting of
stockholders, except that if no annual meeting was held in the previous year or
the date of the annual meeting has been advanced by more than 30 calendar days
from the date contemplated at the time of the previous year's proxy statement,
notice by the stockholders to be timely must be received not later than the
close of business on the tenth day following the day on which the date of the
annual meeting is publicly announced.
A stockholder's notice to the Secretary of the Corporation shall set forth
as to each matter the stockholder proposes to bring before the annual meeting
(i) a brief description of the business desired to be brought before the annual
meeting, (ii) the name and address, as they appear on the Corporation's books,
of the stockholder proposing such business, (iii) the class and number of shares
of the Corporation which are beneficially owned by the stockholder, and (iv) any
material interest of the stockholder in such business.
1.11. CONDUCT OF BUSINESS. At every meeting of the stockholders, the
Chairman of the Board, if there is such an officer, or if not, the person
appointed by the Board of Directors, shall act as Chairman. The Secretary of
the corporation or a person designated by the Chairman of the
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meeting shall act as Secretary of the meeting. Unless otherwise approved by the
Chairman of the meeting, attendance at the stockholders' meeting is restricted
to stockholders of record, persons authorized in accordance with Section 1.8 of
these Bylaws to act by proxy, and officers of the corporation.
The Chairman of the meeting shall call the meeting to order, establish the
agenda, and conduct the business of the meeting in accordance therewith or, at
the Chairman's discretion, it may be conducted otherwise in accordance with the
wishes of the stockholders in attendance. The date and time of the opening and
closing of the polls for each matter upon which the stockholders will vote at
the meeting shall be announced at the meeting.
The Chairman shall also conduct the meeting in an orderly manner, rule on
the precedence of, and procedure on, motions and other procedural matters, and
exercise discretion with respect to such procedural matters with fairness and
good faith toward all those entitled to take part. The Chairman may impose
reasonable limits on the amount of time taken up at the meeting on discussion in
general or on remarks by any one stockholder. Should any person in attendance
become unruly or obstruct the meeting proceedings, the Chairman shall have the
power to have such person removed from participation. Notwithstanding anything
in the Bylaws to the contrary, no business shall be conducted at a meeting
except in accordance with the procedures set forth in this Section 1.11 and
Section 1.10 above. The Chairman of a meeting shall, if the facts warrant,
determine and declare to the meeting that any proposed item of business was not
brought before the meeting in accordance with the provisions of this Section
1.11 and Section 1.10, and if he should so determine, he shall so declare to the
meeting and any such business not properly brought before the meeting shall not
be transacted.
1.12. NO STOCKHOLDER ACTION WITHOUT MEETING. Any action required or
permitted to be taken by the stockholders of the Corporation must be effected at
a duly called annual or special meeting of stockholders of the Corporation and
may not be effected by any consent in writing by such stockholders.
Article 2. BOARD OF DIRECTORS
2.1. GENERAL POWERS. The business and affairs of the corporation shall
be managed by or under the direction of a Board of Directors, who may exercise
all of the powers of the corporation except as otherwise provided by law or the
Certificate of Incorporation. In the event of a vacancy in the Board of
Directors, the remaining directors, except as otherwise provided by law, may
exercise the powers of the full Board until the vacancy is filled.
2.2. NUMBER AND TERM OF OFFICE. The number of directors shall initially
be five (5) and, thereafter, shall be fixed from time to time exclusively by the
Board of Directors pursuant to a resolution adopted by a majority of the total
number of authorized directors (whether or not there exist any vacancies in
previously authorized directorships at the time any such resolution is presented
to the Board for adoption). Upon the effective date of the Agreement and Plan
of Merger between the Corporation and Mattson Technology, Inc., a California
corporation (the "Effective Date"), the directors shall be divided into three
classes, with the term of office of the first class to expire at the first
annual meeting of stockholders held after the Effective Date; the
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term of office of the second class to expire at the second annual meeting of
stockholders held after the Effective Date; the term of office of the third
class to expire at the third annual meeting of stockholders held after the
Effective Date; and thereafter for each such term to expire at each third
succeeding annual meeting of stockholders after such election. All directors
shall hold office until the expiration of the term for which elected and until
their respective successors are elected, except in the case of the death,
resignation or removal of any director.
2.3. VACANCIES AND NEWLY CREATED DIRECTORSHIPS. Subject to the rights
of the holders of any series of Preferred Stock then outstanding, newly created
directorships resulting from any increase in the authorized number of directors
or any vacancies in the Board of Directors resulting from death, resignation,
retirement, disqualification or other cause (including removal from office by a
vote of the stockholders) may be filled only by a majority vote of the directors
then in office, though less than a quorum, and directors so chosen shall hold
office for a term expiring at the next annual meeting of stockholders at which
the term of office of the class to which they have been elected expires. No
decrease in the number of directors constituting the Board of Directors shall
shorten the term of any incumbent director.
2.4. RESIGNATION. Any director may resign by delivering his written
resignation to the corporation at its principal office or to the President or
Secretary. Such resignation shall be effective upon receipt unless it is
specified to be effective at some other time or upon the happening of some other
event.
2.5. REGULAR MEETINGS. Regular meetings of the Board of Directors may
be held without notice at such time and place, either within or without the
State of Delaware, as shall be determined from time to time by the Board of
Directors; provided that any director who is absent when such a determination is
made shall be given notice of the determination. A regular meeting of the Board
of Directors may be held without notice immediately after and at the same place
as the annual meeting of stockholders.
2.6. SPECIAL MEETINGS. Special meetings of the Board of Directors may
be held at any time and place, within or without the State of Delaware,
designated in a call by the Chairman of the Board, the President and Chief
Executive Officer, two or more directors, or by one director in the event that
there is only a single director in office.
2.7. NOTICE OF SPECIAL MEETINGS. Notice of any special meeting of
directors shall be given to each director by the Secretary or by the officer or
one of the directors calling the meeting. Notice shall be duly given to each
director (i) by giving notice to such director in person or by telephone or
electronic voice message system at least 24 hours in advance of the meeting,
(ii) by sending a telegram, telecopy or telex, or delivering written notice by
hand, to his last known business or home address at least 24 hours in advance of
the meeting, or (iii) by mailing written notice to his last known business or
home address at least three (3) day in advance of the meeting. A notice or
waiver of notice of a meeting of the Board of Directors need not specify the
purposes of the meeting. Unless otherwise indicated in the notice thereof, any
and all business may be transacted at a special meeting.
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2.8. PARTICIPATION IN MEETINGS BY TELEPHONE CONFERENCE CALLS. Directors
or any members of any committee designated by the directors may participate in a
meeting of the Board of Directors or such committee by means of conference
telephone or similar communications equipment by means of which all persons
participating in the meeting can hear each other, and participation by such
means shall constitute presence in person at such meeting.
2.9. QUORUM. A majority of the total number of authorized directors
shall constitute a quorum at any meeting of the Board of Directors. In the
event one or more of the directors shall be disqualified to vote at any meeting,
then the required quorum shall be reduced by one for each such director so
disqualified; provided, however, that in no case shall less than one-third (1/3)
of the number so fixed constitute a quorum. In the absence of a quorum at any
such meeting, a majority of the directors present may adjourn the meeting from
time to time without further notice other than announcement at the meeting,
until a quorum shall be present. Interested directors may be counted in
determining the presence of a quorum at a meeting of the Board of Directors or
at a meeting of a committee which authorizes a particular contract or
transaction.
2.10. ACTION AT MEETING. At any meeting of the Board of Directors at
which a quorum is present, the vote of a majority of those present shall be
sufficient to take any action, unless a different vote is specified by law, the
Certificate of Incorporation or these Bylaws.
2.11. ACTION BY CONSENT. Any action required or permitted to be taken at
any meeting of the Board of Directors or of any committee of the Board of
Directors may be taken without a meeting, if all members of the Board or
committee, as the case may be, consent to the action in writing. Any such
written consents shall be filed with the minutes of proceedings of the Board or
committee.
2.12. REMOVAL. Subject to the rights of the holders of any series of
Preferred Stock then outstanding, any directors, or the entire Board of
Directors, may be removed from office at any time, but only for cause and only
by the affirmative vote of the holders of at least a majority of the voting
power of all of the outstanding shares of capital stock entitled to vote
generally in the election of directors, voting together as a single class.
2.13. COMMITTEES. The Board of Directors may designate one or more
committees, each committee to consist of one or more of the directors of the
corporation, with such lawfully delegated powers and duties as it therefor
confers, to serve at the pleasure of the Board. The Board may designate one or
more directors as alternate members of any committee, who may replace any absent
or disqualified member at any meeting of the committee. In the absence or
disqualification of a member of a committee, the member or members of the
committee present at any meeting and not disqualified from voting, whether or
not he or they constitute a quorum, may unanimously appoint another member of
the Board of Directors to act at the meeting in the place of any such absent or
disqualified member. Any such committee, to the extent provided in the
resolution of the Board of Directors and subject to the provisions of the
General Corporation Law of the State of Delaware, shall have and may exercise
all the powers and authority of the Board of Directors in the management of the
business and affairs of the corporation and may authorize the seal of the
corporation to be affixed to all papers which may require it. Each such
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committee shall keep minutes and make such reports as the Board of Directors may
from time to time request. Except as the Board of Directors may otherwise
determine, any committee may make rules for the conduct of its business, but
unless otherwise provided by such rules, its business shall be conducted as
nearly as possible in the same manner as is provided in these Bylaws for the
Board of Directors.
2.14. COMPENSATION OF DIRECTORS. Directors may be paid such compensation
for their services and such reimbursement for expenses of attendance at meetings
as the Board of Directors may from time to time determine. No such payment
shall preclude any director from serving the corporation or any of its parent or
subsidiary corporations in any other capacity and receiving compensation for
such service.
2.15. NOMINATION OF DIRECTOR CANDIDATES. Subject to the rights of
holders of any class or series of Preferred Stock then outstanding, nominations
for the election of Directors may be made by the Board of Directors or a proxy
committee appointed by the Board of Directors or by any stockholder entitled to
vote in the election of Directors generally. However, any stockholder entitled
to vote in the election of Directors generally may nominate one or more persons
for election as Directors at a meeting only if timely notice of such
stockholder's intent to make such nomination or nominations has been given in
writing to the Secretary of the Corporation. To be timely, a stockholder
nomination for a director to be elected at an annual meeting shall be received
at the Corporation's principal executive offices not less than 120 calendar days
in advance of the date that the Corporation's (or the Corporation's
predecessor's) proxy statement was released to stockholders in connection with
the previous year's annual meeting of stockholders, except that if no annual
meeting was held in the previous year or the date of the annual meeting has been
changed by more than 30 calendar days from the date contemplated at the time of
the previous year's proxy statement, or in the event of a nomination for
director to be elected at a special meeting, notice by the stockholders to be
timely must be received not later than the close of business on the tenth day
following the day on which such notice of the date of the special meeting was
mailed or such public disclosure was made. Each such notice shall set forth:
(a) the name and address of the stockholder who intends to make the nomination
and of the person or persons to be nominated; (b) a representation that the
stockholder is a holder of record of stock of the Corporation entitled to vote
for the election of directors on the date of such notice and intends to appear
in person or by proxy at the meeting to nominate the person or persons specified
in the notice; (c) a description of all arrangements or understandings between
the stockholder and each nominee and any other person or persons (naming such
person or persons) pursuant to which the nomination or nominations are to be
made by the stockholder; (d) such other information regarding each nominee
proposed by such stockholder as would be required to be included in a proxy
statement filed pursuant to the proxy rules of the Securities and Exchange
Commission, had the nominee been nominated, or intended to be nominated, by the
Board of Directors; and (e) the consent of each nominee to serve as a director
of the Corporation if so elected.
In the event that a person is validly designated as a nominee in accordance
with this Section 2.15 and shall thereafter become unable or unwilling to stand
for election to the Board of Directors, the Board of Directors or the
stockholder who proposed such nominee, as the case may
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be, may designate a substitute nominee upon delivery, not fewer than five days
prior to the date of the meeting for the election of such nominee, of a written
notice to the Secretary setting forth such information regarding such substitute
nominee as would have been required to be delivered to the Secretary pursuant to
this Section 2.15 had such substitute nominee been initially proposed as a
nominee. Such notice shall include a signed consent to serve as a director of
the Corporation, if elected, of each such substitute nominee.
If the chairman of the meeting for the election of Directors determines
that a nomination of any candidate for election as a Director at such meeting
was not made in accordance with the applicable provisions of this Section 2.15,
such nomination shall be void; provided, however, that nothing in this Section
2.15 shall be deemed to limit any voting rights upon the occurrence of dividend
arrearages provided to holders of Preferred Stock pursuant to the Preferred
Stock designation for any series of Preferred Stock.
Article 3. OFFICERS
3.1. ENUMERATION. The officers of the corporation shall consist of a
Chief Executive Officer, a President, a Secretary, a Chief Financial Officer and
such other officers with such other titles as the Board of Directors shall
determine, including, at the discretion of the Board of Directors, a Chairman of
the Board, and one or more Vice Presidents and Assistant Secretaries. The Board
of Directors may appoint such other officers as it may deem appropriate.
3.2. ELECTION. Officers shall be elected annually by the Board of
Directors at its first meeting following the annual meeting of stockholders.
Officers may be appointed by the Board of Directors at any other meeting.
3.3. QUALIFICATION. No officer need be a stockholder. Any two or more
offices may be held by the same person.
3.4. TENURE. Except as otherwise provided by law, by the Certificate of
Incorporation or by these Bylaws, each officer shall hold office until his
successor is elected and qualified, unless a different term is specified in the
vote appointing him, or until his earlier death, resignation or removal.
3.5. RESIGNATION AND REMOVAL. Any officer may resign by delivering his
written resignation to the corporation at its principal office or to the
President or Secretary. Such resignation shall be effective upon receipt unless
it is specified to be effective at some other time or upon the happening of some
other event. Any officer may be removed at any time, with or without cause, by
the Board of Directors.
3.6. CHAIRMAN OF THE BOARD. The Board of Directors may appoint a
Chairman of the Board. If the Board of Directors appoints a Chairman of the
Board, he shall perform such duties and possess such powers as are assigned to
him by the Board of Directors. Unless otherwise provided by the Board of
Directors, he shall preside at all meetings of the stockholders, and, if he is a
director, at all meetings of the Board of Directors.
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3.7. CHIEF EXECUTIVE OFFICER. The Chief Executive Officer shall,
subject to the direction of the Board of Directors, have responsibility for the
general management and control of the business and affairs of the Corporation
and shall perform all duties and have all powers which are commonly incident to
the office of chief executive or which are delegated to him or her by the Board
of Directors. The Chief Executive Officer shall perform such other duties and
shall have such other powers as the Board of Directors may from time to time
prescribe. He or she shall have power to sign stock certificates, contracts and
other instruments of the Corporation which are authorized and shall have general
supervision and direction of all of the other officers, employees and agents of
the Corporation, other than the Chairman of the Board.
3.8. PRESIDENT. Should there exist an office of President which is held
by a person other than the Chief Executive Officer and which differs from the
office of Chief Executive Officer, the President shall have the responsibilities
delegated to him or her by the Board of Directors.
3.9. VICE PRESIDENTS. Any Vice President shall perform such duties and
possess such powers as the Board of Directors or the Chief Executive Officer may
from time to time prescribe. In the event of the absence, inability or refusal
to act of the President, the Vice President (or if there shall be more than one,
the Vice Presidents in the order determined by the Board of Directors) shall
perform the duties of the Chief Executive Officer and when so performing shall
have at the powers of and be subject to all the restrictions upon the Chief
Executive Officer. The Board of Directors may assign to any Vice President the
title of Executive Vice President, Senior Vice President or any other title
selected by the Board of Directors.
3.10. SECRETARY AND ASSISTANT SECRETARIES. The Secretary shall perform
such duties and shall have such powers as the Board of Directors or the Chief
Executive Officer may from time to time prescribe. In addition, the Secretary
shall perform such duties and have such powers as are incident to the office of
the Secretary, including, without limitation, the duty and power to give notices
of all meetings of stockholders and special meetings of the Board of Directors,
to keep a record of the proceedings of all meetings of stockholders and the
Board of Directors, to maintain a stock ledger and prepare lists of stockholders
and their addresses as required, to be custodian of corporate records and the
corporate seal and to affix and attest to the same on documents.
Any Assistant Secretary shall perform such duties and possess such powers
as the Board of Directors, the Chief Executive Officer or the Secretary may from
time to time prescribe. In the event of the absence, inability or refusal to
act of the Secretary, the Assistant Secretary (or if there shall be more than
one, the Assistant Secretaries in the order determined by the Board of
Directors) shall perform the duties and exercise the powers of the Secretary.
In the absence of the Secretary or any Assistant Secretary at any meeting
of stockholders or directors, the person presiding at the meeting shall
designate a temporary secretary to keep a record of the meeting.
3.11. CHIEF FINANCIAL OFFICER. Unless otherwise designated by the Board
of Directors, the Chief Financial Officer shall be the Treasurer. The Chief
Financial Officer shall perform
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such duties and shall have such powers as may from time to time be assigned to
him by the Board of Directors or the Chief Executive Officer. In addition, the
Chief Financial Officer shall perform such duties and have such powers as are
incident to the office of chief financial officer, including without limitation,
the duty and power to keep and be responsible for all funds and securities of
the corporation, to maintain the financial records of the Corporation, to
deposit funds of the corporation in depositories as authorized, to disburse such
funds as authorized, to make proper accounts of such funds, and to render as
required by the Board of Directors accounts of all such transactions and of the
financial condition of the corporation.
3.12. SALARIES. Officers of the corporation shall be entitled to such
salaries, compensation or reimbursement as shall be fixed or allowed from time
to time by the Board of Directors.
3.13. DELEGATION OF AUTHORITY. The Board of Directors may from time to
time delegate the powers or duties of any officer to any other officers or
agents, notwithstanding any provision hereof.
Article 4. CAPITAL STOCK.
4.1. ISSUANCE OF STOCK. Unless otherwise voted by the stockholders and
subject to the provisions of the Certificate of Incorporation, the whole or any
part of any unissued balance of the authorized capital stock of the corporation
or the whole or any part of any unissued balance of the authorized capital stock
of the corporation held in its treasury may be issued, sold, transferred or
otherwise disposed of by vote of the Board of Directors in such manner, for such
consideration and on such terms as the Board of Directors may determine.
4.2. CERTIFICATES OF STOCK. Every holder of stock of the corporation
shall be entitled to have a certificate, in such form as may be prescribed by
law and by the Board of Directors, certifying the number and class of shares
owned by him in the corporation. Each such certificate shall be signed by, or
in the name of the corporation by, the Chairman or Vice-Chairman, if any, of the
Board of Directors, or the President or a Vice President, and the Chief
Financial Officer, or the Secretary or an Assistant Secretary of the
corporation. Any or all of the signatures on the certificate may be a
facsimile.
Each certificate for shares of stock which are subject to any restriction
on transfer pursuant to the Certificate of Incorporation, the Bylaws, applicable
securities laws or any agreement among any number of shareholders or among such
holders and the corporation shall have conspicuously noted on the face or back
of the certificate either the full text of the restriction or a statement of the
existence of such restriction.
4.3. TRANSFERS. Except as otherwise established by rules and
regulations adopted by the Board of Directors, and subject to applicable law,
shares of stock may be transferred on the books of the corporation by the
surrender to the corporation or its transfer agent of the certificate
representing such shares properly endorsed or accompanied by a written
assignment or power of attorney properly executed, and with such proof of
authority or authenticity of signature as the corporation or its transfer agent
may reasonably require. Except as may be otherwise required by
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law, by the Certificate of Incorporation or by the Bylaws, the corporation shall
be entitled to treat the record holder of stock as shown on its books as the
owner of such stock for all purposes, including the payment of dividends and the
right to vote with respect to such stock, regardless of any transfer, pledge or
other disposition of such stock until the shares have been transferred on the
books of the corporation in accordance with the requirements of these Bylaws.
4.4. LOST, STOLEN OR DESTROYED CERTIFICATES. The corporation may issue
a new certificate of stock in place of any previously saved certificate alleged
to have been lost, stolen, or destroyed, upon such terms and conditions as the
Board of Directors may prescribe, including the presentation of reasonable
evidence of such loss, theft or destruction and the giving of such indemnity as
the Board of Directors may require for the protection of the corporation or any
transfer agent or registrar.
4.5. RECORD DATE. The Board of Directors may fix in advance a date as a
record date for the determination of the stockholders entitled to notice of or
to vote at any meeting of stockholders or to express consent (or dissent) to
corporate action in writing without a meeting, or entitled to receive payment of
any dividend or other distribution or allotment of any rights in respect of any
change, concession or exchange of stock, or for the purpose of any other lawful
action. Such record date shall not be more than sixty (60) nor less than ten
(10) days before the date of such meeting, nor more than sixty (60) days prior
to any other action to which such record date relates.
If no record date is fixed, the record date for determining stockholders
entitled to notice of or to vote at a meeting of stockholders shall be at the
close of business on the day before the day on which notice is given, or, if
notice is waived, at the close of business on the day before the day on which
the meeting is held. The record date for determining stockholders entitled to
express consent to corporate action in writing without a meeting when no prior
action by the Board of Directors is necessary, shall be the day on which the
first written consent is expressed. The record date for determining
stockholders for any other purpose shall be at the close of business on the day
on which the Board of Directors adopts the resolution relating to such purpose.
A determination of stockholders of record entitled to notice of or to vote
at a meeting of stockholders shall apply to any adjournment of the meeting;
provided, however, that the Board of Directors may fix a new record date for the
adjourned meeting.
Article 5. GENERAL PROVISIONS.
5.1. FISCAL YEAR. The fiscal year of the corporation shall be as fixed
by the Board of Directors.
5.2. CORPORATE SEAL. The corporate seal shall be in such form as shall
be approved by the Board of Directors.
5.3. WAIVER OF NOTICE. Whenever any notice whatsoever is required to be
given by law, by the Certificate of Incorporation or by these Bylaws, a waiver
of such notice either in
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writing signed by the person entitled to such notice or such person's duly
authorized attorney, or by telecopy, telegraph, cable or any other available
method, whether before, at or after the time stated in such waiver, or the
appearance of such person or persons at such meeting in person or by proxy,
shall be deemed equivalent to such notice.
5.4. ACTIONS WITH RESPECT TO SECURITIES OF OTHER CORPORATIONS. Except
as the Board of Directors may otherwise designate, the President or any officer
of the corporation authorized by the President shall have the power to vote and
otherwise act on behalf of the corporation, in person or proxy, and may waive
notice of, and act as, or appoint any person or persons to act as, proxy or
attorney-in-fact to this corporation (with or without power of substitution) at
any meeting of stockholders or shareholders (or with respect to any action of
stockholders) of any other corporation or organization, the securities of which
may be held by this corporation and otherwise to exercise any and all rights and
powers which this corporation may possess by reason of this corporation's
ownership of securities in such other corporation or other organization.
5.5. EVIDENCE OF AUTHORITY. A certificate by the Secretary, or an
Assistant Secretary, or a temporary Secretary, as to any action taken by the
stockholders, directors, a committee or any officer or representative of the
corporation shall as to all persons who rely on the certificate in good faith be
conclusive evidence of such action.
5.6. CERTIFICATE OF INCORPORATION. All references in these Bylaws to
the Certificate of Incorporation shall be deemed to refer to the Certificate of
Incorporation of the corporation, as amended and in effect from time to time.
5.7. SEVERABILITY. Any determination that any provision of these Bylaws
is for any reason inapplicable, illegal or ineffective shall not affect or
invalidate any other provision of these Bylaws.
5.8. PRONOUNS. All pronouns used in these Bylaws shall be deemed to
refer to the masculine, feminine or neuter, singular or plural, as the identity
of the person or persons may require.
5.9. NOTICES. Except as otherwise specifically provided herein or
required by law, all notices required to be given to any stockholder, director,
officer, employee or agent shall be in writing and may in every instance be
effectively given by hand delivery to the recipient thereof, by depositing such
notice in the mails, postage paid, or by sending such notice by prepaid
telegram, mailgram, telecopy or commercial courier service. Any such notice
shall be addressed to such stockholder, director, officer, employee or agent at
his or her last known address as the same appears on the books of the
Corporation. The time when such notice shall be deemed to be given shall be the
time such notice is received by such stockholder, director, officer, employee or
agent, or by any person accepting such notice on behalf of such person, if hand
delivered, or the time such notice is dispatched, if delivered through the mails
or be telegram or mailgram.
5.10. RELIANCE UPON BOOKS, REPORTS AND RECORDS. Each director, each
member of any committee designated by the Board of Directors, and each officer
of the Corporation shall, in the performance of his duties, be fully protected
in relying in good faith upon the books of account
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or other records of the Corporation, including reports made to the Corporation
by any of its officers, by an independent certified public accountant, or by an
appraiser selected with reasonable care.
5.11. TIME PERIODS. In applying any provision of these Bylaws which
require that an act be done or not done a specified number of days prior to an
event or that an act be done during a period of a specified number of days prior
to an event, calendar days shall be used, the day of the doing of the act shall
be excluded, and the day of the event shall be included.
5.12. FACSIMILE SIGNATURES. In addition to the provisions for use of
facsimile signatures elsewhere specifically authorized in these Bylaws,
facsimile signatures of any officer or officers of the Corporation may be used
whenever and as authorized by the Board of Directors or a committee thereof.
Article 6. AMENDMENTS.
6.1. BY THE BOARD OF DIRECTORS. Except as is otherwise set forth in
these Bylaws, these Bylaws may be altered, amended or repealed or new Bylaws may
be adopted by the affirmative vote of a majority of the directors present at any
regular or special meeting of the Board of Directors at which a quorum is
present.
6.2. BY THE STOCKHOLDERS. Except as otherwise set forth in these
Bylaws, these Bylaws may be altered, amended or repealed or new Bylaws may be
adopted by the affirmative vote of the holders of at least sixty-six and
two-thirds percent (66-2/3%) of the shares of the capital stock of the
corporation issued and outstanding and entitled to vote at any annual meeting of
stockholders, or at any special meeting of stockholders, provided notice of such
alteration, amendment, repeat or adoption of new Bylaws shall have been stated
in the notice of such special meeting.
Article 7. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
7.1. RIGHT TO INDEMNIFICATION. Each person who was or is made a party
or is threatened to be made a party to or is involved in any action, suit or
proceeding, whether civil, criminal, administrative or investigative
("proceeding"), by reason of the fact that he or she or a person of whom he or
she is the legal representative, is or was a director or officer of the
Corporation or is or was serving at the request of the Corporation as a director
or officer of another corporation, or of a partnership, joint venture, trust or
other enterprise, including service with respect to employee benefit plans,
whether the basis of such proceeding is alleged action in an official capacity
as a director, officer or employee or in any other capacity while serving as a
director, officer or employee, shall be indemnified and held harmless by the
Corporation to the fullest extent authorized by Delaware Law, as the same exists
or may hereafter be amended (but, in the case of any such amendment, only to the
extent that such amendment permits the Corporation to provide broader
indemnification rights than said Law permitted the Corporation to provide prior
to such amendment) against all expenses, liability and loss reasonably incurred
or suffered by such person in connection therewith and such indemnification
shall continue as to a person who has ceased to be a director, officer or
employee and shall inure to the benefit of his
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or her heirs, executors and administrators; PROVIDED, however, that, except as
provided in Section 7.2 of this Article 7, the Corporation shall indemnify any
such person seeking indemnity in connection with an action, suit or proceeding
(or part thereof) initiated by such person only if (a) such indemnification is
expressly required to be made by law, (b) the action, suit or proceeding (or
part thereof) was authorized by the Board of Directors of the Corporation, (c)
such indemnification is provided by the Corporation, in its sole discretion,
pursuant to the powers vested in the Corporation under the Delaware General
Corporation Law, or (d) the action, suit or proceeding (or part thereof) is
brought to establish or enforce a right to indemnification under an indemnity
agreement or any other statute or law or otherwise as required under Section 145
of the Delaware General Corporation Law. Such right shall be a contract right
and shall include the right to be paid by the Corporation expenses incurred in
defending any such proceeding in advance of its final disposition; PROVIDED,
HOWEVER that, unless the Delaware General Corporation Law then so prohibits, the
payment of such expenses incurred by a director or officer of the Corporation in
his or her capacity as a director or officer (and not in any other capacity in
which service was or is tendered by such person while a director or officer,
including, without limitation. service to an employee benefit plan) in advance
of the final disposition of such proceeding, shall be made only upon delivery to
the Corporation of an undertaking, by or on behalf of such director or officer,
to repay all amounts so advanced if it should be determined ultimately that such
director or officer is not entitled to be indemnified under this Section or
otherwise.
7.2. RIGHT OF CLAIMANT TO BRING SUIT. If a claim under Section 7.1 is
not paid in full by the Corporation within ninety (90) days after a written
claim has been received by the Corporation, the claimant may at any time
thereafter bring suit against the Corporation to recover the unpaid amount of
the claim and, if such suit is not frivolous or brought in bad faith, the
claimant shall be entitled to be paid also the expense of prosecuting such
claim. It shall be a defense to any such action (other then an action brought
to enforce a claim for expenses incurred in defending any proceeding in advance
of its final disposition where the required undertaking, if any, has been
tendered to this Corporation) that the claimant has not met the standards of
conduct which make it permissible under the Delaware General Corporation Law for
the Corporation to indemnify the claimant for the amount claimed. Neither the
failure of the Corporation (including its Board of Directors, independent legal
counsel, or its stockholders) to have made a determination prior to the
commencement of such action that indemnification of the claimant is proper in
the circumstances because he or she has met the applicable standard of conduct
set forth in the Delaware General Corporation Law, nor an actual determination
by the Corporation (including its Board of Directors, independent legal counsel,
or its stockholders) that the claimant has not met such applicable standard of
conduct, shall be a defense to the action or create a presumption that claimant
has not met the applicable standard of conduct.
7.3. INDEMNIFICATION OF EMPLOYEES AND AGENTS. The Corporation may, to
the extent authorized from time to time by the Board of Directors, grant rights
to indemnification, and to the advancement of related expenses, to any employee
or agent of the Corporation to the fullest extent of the provisions of this
Article with respect to the indemnification of and advancement of expenses to
directors and officers of the Corporation.
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7.4. NON-EXCLUSIVITY OF RIGHTS. The rights conferred on any person in
Sections 7.1 and 7.2 shall not be exclusive of any other right which such
persons may have or hereafter acquire under any statute, provision of the
Certificate of Incorporation, bylaw, agreement, vote of stockholders or
disinterested directors or otherwise.
7.5. INDEMNIFICATION CONTRACTS. The Board of Directors is authorized to
enter into a contract with any director, officer, employee or agent of the
Corporation, or any person serving at the request of the Corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, including employee benefit plans, providing
for indemnification rights equivalent to or, if the Board of Directors so
determines, greater than, those provided for in this Article 7.
7.6. INSURANCE. The Corporation shall maintain insurance to the extent
reasonably available, at its expense, to protect itself and any such director,
officer, employee or agent of the Corporation or another corporation,
partnership, joint venture, trust or other enterprise against any such expense,
liability or loss, whether or not the Corporation would have the power to
indemnify such person against such expense, liability or loss under the Delaware
General Corporation Law.
7.7. EFFECT OF AMENDMENT. Any amendment, repeal or modification of any
provision of this Article 7 by the stockholders and the directors of the
Corporation shall not adversely affect any right or protection of a director or
officer of the Corporation existing at the time of such amendment, repeal or
modification.
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[Letterhead of Gray Cary Ware &
Freidenrich, A Professional Corporation ]
EXHIBIT 5
ATTORNEYS AT LAW
400 HAMILTON AVENUE
PALO ALTO, CA 94301-1825
TEL: (650) 328-6561
FAX: (650) 327-3699
October 30, 1997
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Ladies and Gentlemen:
As legal counsel for Mattson Technology, Inc., a Delaware corporation (the
"Company"), we are rendering this opinion in connection with the registration
under the Securities Act of 1933, as amended, of up to 700,000 shares of the
Common Stock, $0.001 par value, of the Company which may be issued pursuant to
the exercise of options and purchase rights granted under the Mattson
Technology, Inc. Amended and Restated 1989 Stock Option Plan and 1994 Employee
Stock Purchase Plan (the "Plans").
We have examined all instruments, documents and records which we deemed
relevant and necessary for the basis of our opinion hereinafter expressed. In
such examination, we have assumed the genuineness of all signatures and the
authenticity of all documents submitted to us as originals and the conformity to
the originals of all documents submitted to us as copies. We are admitted to
practice only in the State of California and we express no opinion concerning
any law other than the law of the State of California, the corporation laws of
the State of Delaware and the federal law of the United States. As to matters
of Delaware corporation law, we have based our opinion solely upon our
examination of such laws and the rules and regulations of the authorities
administering such laws, all as reported in standard, unofficial compilations.
We have not obtained opinions of counsel licensed to practice in jurisdictions
other than the State of California.
Based on such examination, we are of the opinion that the 700,000 shares of
Common Stock which may be issued upon exercise of options and purchase rights
granted under the Plans are duly authorized shares of the Company's Common
Stock, and, when issued against receipt of the consideration therefor in
accordance with the provisions of the Plans, will be validly issued, fully paid
and nonassessable. We hereby consent to the filing of this opinion as an
exhibit to the Registration Statement referred to above and the use of our name
wherever it appears in said Registration Statement.
Very truly yours,
/s/ Gray Cary Ware & Freidenrich
GRAY CARY WARE & FREIDENRICH
A Professional Corporation
<PAGE>
EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated January 20, 1997 appearing on page 38
of Mattson Technology, Inc.'s Annual Report on Form 10-K/A for the year ended
December 31, 1996.
/s/ Price Waterhouse LLP
PRICE WATERHOUSE LLP
San Jose, California
October 30, 1997
