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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.
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(Exact name of registrant as specified in its charter)
Delaware 77-0208119
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(State or other jurisdiction (I.R.S. employer identification
of incorporation or organization) no.)
3550 West Warren Avenue
Fremont, California 94538
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(Address of principal executive offices) (Zip code)
MATTSON TECHNOLOGY, INC.
AMENDED AND RESTATED 1989 STOCK OPTION PLAN
AND 1994 EMPLOYEE STOCK PURCHASE PLAN
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(Full title of the plan)
Brad Mattson
Chief Executive Officer
Mattson Technology, Inc.
3550 West Warren Avenue
Fremont, California 94538
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(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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CALCULATION OF REGISTRATION FEE
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Proposed Proposed
Title of maximum maximum Amount of
Securities to be Amount to be offering price per aggregate registration fee
registered (1) registered share (2) offering price (2)
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<S> <C> <C> <C> <C>
AMENDED AND RESTATED 1989 STOCK OPTION PLAN
Common Stock 250,000 $5.7188 $1,429,687.50
Par Value $0.001
1994 EMPLOYEE STOCK PURCHASE PLAN
Common Stock 450,000 $4.8609 $2,187,405.00
Par Value $0.001
TOTALS 700,000 $3,617,092.50 $1,067.04
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(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 July 22, 1998, 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 July 22, 1998, 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,
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, 1997, as
filed with the Securities and Exchange Commission (File No. 0-24838).
(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 dividends and
approval of any transaction from which a director derives an improper
personal benefit.
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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 pursuant to Section 13
or Section 15(d) of the Exchange Act that are incorporated by reference in
the registration statement.
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(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 July 24, 1998.
Mattson Technology, Inc.
By: /s/ Richard S. Mora
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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 July 24, 1998.
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Signature Title
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<S> <C>
/s/ Brad Mattson
---------------------------- Chief Executive Officer and
Brad Mattson Director (Principal Executive
Officer)
/s/ Richard S. Mora
---------------------------- Vice President, Finance, Chief
Richard S. Mora Financial Officer, and Secretary
(Principal Financial and Accounting Officer)
/s/ John C. Savage
---------------------------- Director
John C. Savage
/s/ Kenneth G. Smith
---------------------------- Director
Kenneth G. Smith
/s/ Stephen J. Ciesinski
---------------------------- Director
Stephen J. Ciesinski
/s/ Shigeru Nakayama
---------------------------- Director
Shigeru Nakayama
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EXHIBIT INDEX
4.1 Restated Certificate of Incorporation of the Company
4.2 Amended and Restated Bylaws of the Company are incorporated by
reference to Exhibit 4.2 to the Company's Registration Statement
on Form S-8 filed with the Securities and Exchange Commission on
October 31, 1997 (File No. 333-39129)
5 Opinion re legality
23.1 Consent of Counsel (included in Exhibit 5)
23.2 Consent of PricewaterhouseCoopers LLP
24 Power of Attorney (included in signature pages to this
registration statement)
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EXHIBIT 4.1
RESTATED 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
1
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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.
2
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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.
3
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EXHIBIT 5
[Letterhead of Gray Cary Ware & Freidenrich LLP]
July 24, 1998
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 LLP
GRAY CARY WARE & FREIDENRICH LLP
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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 22, 1998 appearing on page 37
of Mattson Technology, Inc.'s Annual Report on Form 10-K for the year ended
December 31, 1997.
/s/ PricewaterhouseCoopers LLP
PRICEWATERHOUSECOOPERS LLP
San Jose, California
July 23, 1998
