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Filed with the Securities and Exchange Commission on September 24, 1999
Registration No. 333-_______
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 no.)
of incorporation or organization)
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)
Brian McDonald
Vice President, Finance, Chief Financial Officer and Secretary
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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<TABLE>
<CAPTION>
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CALCULATION OF REGISTRATION FEE
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Proposed
Proposed maximum
Title of Amount to be maximum aggregate Amount of
Securities to registered offering price per offering price(2) registration fee
be registered(1) share(2)
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<S> <C> <C> <C> <C>
AMENDED AND RESTATED 1989 STOCK OPTION PLAN
Common Stock 1,125,000 $14.344 $16,137,000
Par Value $0.001
1994 EMPLOYEE STOCK PURCHASE PLAN
Common Stock 475,000 $12.192 $5,791,200
Par Value $0.001
TOTALS 1,600,000 $21,928,200 $6,096.04
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</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 September 21, 1999, as reported on the Nasdaq National
Market. 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 this plan is based upon 85% of the average of the high and low
prices of the Common Stock on September 21, 1999, as reported on the Nasdaq
National Market.
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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, 1998, 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 (the "Securities Act").
ITEM 7 EXEMPTION FROM REGISTRATION CLAIMED
Inapplicable.
ITEM 8 EXHIBITS
See Exhibit Index.
ITEM 9 UNDERTAKINGS
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;
(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 (1)(i) and (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, 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.
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, 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.
Insofar as indemnification for liabilities arising under the Securities
Act 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 Securities 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 Securities 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 September 20,
1999.
MATTSON TECHNOLOGY, INC.
By: /s/ Brian McDonald
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Brian McDonald
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 and Brian McDonald, 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 and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
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<S> <C> <C>
/s/ Brad Mattson Chief Executive Officer September 20, 1999
- ------------------------------------- and Director (Principal
Brad Mattson Executive Officer)
/s/ Brian McDonald Vice President, Finance, September 20, 1999
- ------------------------------------- Chief Financial Officer,
Brian McDonald and Secretary (Principal
Financial and Accounting
Officer)
/s/ John C. Savage Director September 20, 1999
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John C. Savage
/s/ Kenneth G. Smith Director September 20, 1999
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Kenneth G. Smith
Director
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Shigeru Nakayama
/s/ Ken Kannappan Director September 20, 1999
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Ken Kannappan
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EXHIBIT INDEX
4.1 Restated Certificate of Incorporation of the Company is incorporated by
reference to Exhibit 4.1 to the Company's Registration Statement on
Form S-8 filed with the Securities and Exchange Commission on July 24,
1998 (File No. 333-59859)
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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[Letterhead of Gray Cary Ware & Freidenrich LLP ]
EXHIBIT 5
400 Hamilton Avenue, Palo Alto, CA 94301-1825
Phone 650-833-2000 Fax 650-327-3699 www.graycary.com
September 22, 1999
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 1,600,000 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 1,600,000 shares of
Common Stock which may be issued 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 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 February 9, 1999 relating to the
financial statements, which appears in Mattson Technology, Inc.'s Annual
Report on Form 10-K for the year ended December 31, 1998.
/s/ PricewaterhouseCoopers LLP
PricewaterhouseCoopers LLP
San Jose, California
September 22, 1999
